Interstate Power & Light Co. v. Moyer

• Docket Number: 22-1917
• Decision Date: 20 December 2023
• Parties: INTERSTATE POWER &LIGHT COMPANY., Plaintiff-Appellee, v. JOSEPH MOYER, Defendant-Appellant.
• Court: Iowa Court of Appeals

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INTERSTATE POWER &LIGHT COMPANY., Plaintiff-Appellee,
v.
JOSEPH MOYER, Defendant-Appellant.

No. 22-1917

Court of Appeals of Iowa

December 20, 2023

Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.

An injured worker appeals the judicial review order finding that res judicata barred his review-reopening claims.

Mark J. Sullivan and Zeke R. McCartney of Reynolds &Kenline, L.L.P., Dubuque, for appellant.

James M. Peters of Simmons Perrine Moyer Bergman, P.C., Cedar Rapids, for appellee.

Considered by Tabor, P.J., Buller, J., and Vogel, S.J. ^[*]

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TABOR, PRESIDING JUDGE.

Joseph Moyer suffered a crush injury to his right foot while working as a lineman for Interstate Power and Light Company in 2012.^[1] He received an award of permanent partial disability benefits from the Iowa Workers' Compensation Commission in 2017. Three years later, Moyer petitioned for review-reopening of that award under Iowa Code sections 85.26 and 86.14 (2020). The agency granted him permanent total disability benefits for the work injury. But Interstate successfully argued on judicial review that the doctrine of res judicata barred Moyer's review-reopening claims. Moyer appeals that judicial review order.

After the district court issued its decision, our supreme court clarified the limited application of res judicata principles to review-reopening challenges. See Green v. N. Cent. Iowa Reg'l Solid Waste Auth., 989 N.W.2d 144, 148 (Iowa 2023). Because Green dictates a different result, we reverse the judicial review order. We also find that substantial evidence supports the award of permanent total disability benefits in the review-reopening proceedings.

I. Facts and Prior Proceedings

As part of a three-man crew, Moyer was working on a boom truck when a coworker lowered the outriggers designed to support the truck. One of the outriggers landed on Moyer's right foot. The coworkers rushed Moyer to the emergency room where x-rays revealed crush fractures to his second, third, fourth, and fifth toes. But the great toe and other foot bones were spared. Doctors

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prescribed painkillers, crutches, and physical therapy. Interstate stipulated to the work-related injury.

Moyer was restricted to light duty for about two months. When he returned to regular duties, he experienced significant pain and swelling in his foot. He received treatment from a foot and ankle specialist Phinit Phisitkul through the fall of 2012. In early 2013, Moyer sought chiropractic care for soreness in his right low back, hip, and knee that he attributed to changes in his gait to accommodate his right-foot pain. Moyer renewed his appointments with Dr. Phisitkul in August 2013. Dr. Phisitkul diagnosed Moyer with "interdigital neuritis at the second and third web spaces, related to the crushing [i]njury, and contracture of the gastrocnemius tendon." The doctor ordered physical therapy for Moyer's calf muscles, prescribed a night splint and insole, and limited Moyer's work hours. When Moyer didn't improve, Dr. Phisitkul performed surgery to remove a swollen and enlarged nerve between his second and third toes. But the surgery did not provide lasting relief. Meanwhile, Moyer started in a new position with Interstate that was less physically demanding. In 2014, Moyer had a second foot surgery that resulted in a slight improvement in his nerve pain.

According to three doctors, Moyer reached maximum medical improvement in August 2015. Dr. Phisitkul believed that Moyer sustained permanent impairment of "6 percent right foot or 4 percent right lower extremity." Dr. Robin Sassman set Moyer's permanent impairment at eleven percent "whole person" due to his ongoing pain. Dr. Erin Kennedy found that Moyer had permanent impairment of fifteen percent to the lower extremity based on damage to Moyer's peripheral nervous system. The deputy commissioner adopted Dr. Kennedy's view and

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awarded Moyer thirty-three weeks of permanent partial disability benefits in a March 2017 arbitration decision. Both the commissioner and the district court affirmed the award. Neither side appealed that judicial review order.

Moyer continued to endure foot pain, as well as hip, knee, and back soreness from 2017 through 2020. For relief, he continued to undergo chiropractic adjustments and physical therapy-as well as more invasive treatments. For instance, Dr. Rahul Rastogi performed a peripheral nerve block procedure at the University of Iowa Hospitals and Clinics in November 2017. Beyond that, in June 2018, Dr. Rastogi implanted a lumbar neurostimulator, which did not alleviate the burning pain that Moyer was experiencing in his right foot. In February 2019, Dr. John Femino performed a gastrocnemius release on Moyer's calf. Any improvement after that procedure was short-lived. Just two months later, Moyer complained of low back pain and hip pain to Dr. Rastogi. Dr. Rastogi documented those complaints were new and that "[t]here is a focal point of tenderness on the lateral aspect of his hip, and he feels that he has weakness now on the right leg" and low back pain radiating into his buttocks.

Moyer also sought a mental-health evaluation in 2018. Moyer reported irritability, social withdrawal, low frustration tolerance, a loss of interest and pleasure, some feelings of helplessness, fatigue, trouble concentrating, occasional passive fleeting suicidal ideation, and anxiety about treatment options for his foot pain. Dr. Katherine Hadlandsmyth diagnosed Moyer as suffering from pain disorder with psychological factors, including major depressive disorder, stemming from his right foot injury.

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Psychiatrist Terrence Augspurger and psychologist Amy Mooney conducted independent evaluations for Interstate. They agreed that Moyer was suffering from major depression but did not endorse a causal relationship with his work injury. Moyer attended psychotherapy during 2018 and met with psychiatrist Mark Mittauer for medication management through 2020. Dr. Mittauer disagreed with the opinions from the employer's experts, noting that scientific literature provides that "chronic pain can cause or exacerbate major depressive disorders and that major depressive disorders can also exacerbate pain."

In January 2020, Moyer petitioned for review-reopening of his award, asserting that since the arbitration decision he had changes of condition to his right foot, right knee, right hip, low back, and mental health. At a hearing in January 2021, Interstate argued that Moyer's claims were barred by res judicata. The employer also asserted that the evidence did not support a change in Moyer's physical or mental condition that left him permanently and totally disabled. The deputy commissioner rejected Interstate's res judicata claims. She also found that Moyer established a change of physical and mental condition warranting new compensation benefits. The deputy commissioner found that Moyer was permanently and totally disabled, awarding benefits from the date of the reviewreopening petition. The commissioner affirmed those findings. ^[2]

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Interstate petitioned for judicial review. The employer alleged that the commission's decision was erroneous because it failed to bar Moyer's reviewreopening claims for permanent back, hip, and mental-health conditions "under principles of res judicata/claim preclusion/issue preclusion." It also argued that the commission was wrong in finding that Moyer established a change in condition reflecting (1) "permanent low back, right hip and mental conditions causally related to his injury"; and (2) that he "has lost all earning capacity entitling him to lifetime weekly benefits." The district court ruled that Moyer's review-reopening claims were barred by "res judicata, claim preclusion, and/or issue preclusion." The court did not reach Interstate's other arguments. Moyer appeals.

II. Scope and Standards of Review

In workers' compensation cases, the district court serves as an appellate court correcting any legal error by the commissioner. See Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). And in reviewing the district court's ruling, we apply the standards in Iowa Code chapter 17A (2022) (the Iowa Administrative Procedure Act) to decide whether we reach the same result as that court. Clark v. Vicorp Rests. Inc., 696 N.W.2d 596, 603 (Iowa 2005).

But the standard of review varies depending on what aspect of the decision is challenged. See Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 255-56 (Iowa 2012). Under section 17A.19(10), we must "reverse, modify, or grant other appropriate relief" if we decide the award of benefits "is not supported by substantial evidence" or is otherwise irrational, illogical, or an unjustifiable application of law to fact. See Iowa Code § 17A.19(10)(f), (h), (i), (m). "Substantial evidence" means the quantity and quality of evidence a reasonable person would

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find sufficient to establish the fact at issue. Id. § 17A.19(10)(f)(1). And even though another fact finder might draw a different conclusion from the evidence does not mean it is insubstantial. Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011). In reviewing an agency's interpretation of a statute, we apply a...