E.N.T. Associates v. Collentine, 93-1132

• Decision Date: 21 December 1994
• Docket Number: No. 93-1132,93-1132
• Citation: 525 N.W.2d 827
• Parties: E.N.T. ASSOCIATES and Aetna Casualty Insurance Company, Appellants, v. Marvin E. COLLENTINE, Appellee.
• Court: Iowa Supreme Court

Page 827

525 N.W.2d 827

E.N.T. ASSOCIATES and Aetna Casualty Insurance Company, Appellants, v. Marvin E. COLLENTINE, Appellee.

No. 93-1132.

Supreme Court of Iowa.

Dec. 21, 1994.

Thomas J. Shields and Maria Mihalakis Waterman of Lane & Waterman, Davenport, for appellants.

Vicki L. Seeck of Betty, Neuman & McMahon, Davenport, for appellee.

Considered by HARRIS, P.J., and LARSON, LAVORATO, ANDREASEN, and TERNUS, JJ.

PER CURIAM.

The question on appeal is whether, in a review-reopening proceeding, the industrial commissioner may rely solely upon a claimant's uncorroborated testimony that his earning capacity has decreased in allowing additional industrial disability benefits. The district court concluded the industrial commissioner's award of additional benefits was supported by substantial evidence. We affirm.

The respondent, Marvin Collentine, suffered a herniated disc while employed as an otolaryngologist with the petitioner, E.N.T. Associates. Collentine received the injury while helping operating room staff move a patient on whom Collentine had operated. The injury left Collentine with chronic pain in his legs that initially required him to curtail his surgery practice. Collentine continued to specialize in the treatment of allergies. Collentine sought workers' compensation benefits and was ultimately awarded benefits on the basis of a finding that he had suffered a twenty percent industrial disability to the body as a whole.

Collentine subsequently determined he could not perform his surgery practice with the pain he suffered from his injuries and quit that practice. He still treated allergies. This change in his practice reduced his salary.

Collentine petitioned for a review-reopening hearing alleging that he was entitled to additional disability benefits because of a reduction in his earning capacity caused by his injury. Collentine did not introduce any new medical expert testimony regarding a change of condition but claimed that he decided to abandon his surgery practice because he determined he could not competently perform surgeries with the pain he was suffering from the injury.

A deputy industrial commissioner determined that Collentine suffered an additional forty percent loss of earning capacity over the original arbitration award. The industrial commissioner affirmed the deputy's decision on the appeal by E.N.T. Associates and its workers' compensation carrier, Aetna Casualty Insurance Co.

E.N.T. Associates and Aetna sought judicial review asserting that the industrial commissioner's decision awarding additional benefits was not supported by substantial evidence. The district court affirmed the industrial commissioner's decision. E.N.T. Associates and Aetna filed this appeal.

Our scope of review is for the correction of errors at law. King v. City of Mt. Pleasant, 474 N.W.2d 564, 565-66 (Iowa 1991). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(8) (1993) to the agency action to determine whether our conclusions are the same as those of the district court. Jackson County Pub. Hosp. v. PERB, 280 N.W.2d 426, 429-30 (Iowa 1979). On review, the industrial commissioner's findings of fact are binding on this court if reasonable minds can draw different inferences from the evidence or if the evidence is in dispute. Gallardo v. Firestone Tire & Rubber Co., 482 N.W.2d 393, 395 (Iowa 1992). The test is whether the commissioner's decision is supported by substantial evidence. Id. at 395.

Pursuant to Iowa Code section 86.14(2), the industrial commissioner is authorized to reopen an award of workers' compensation benefits to determine whether or not the condition of the employee warrants a decrease or increase in compensation. The claimant carries the burden of establishing by a preponderance of the evidence that, subsequent to the date of the award under review, he or she has suffered an impairment or lessening of earning capacity proximately caused by the original injury. Blacksmith v. All-American, Inc., 290 N.W.2d 348, 350 (Iowa 1980). The necessary showing in a review-reopening proceeding may be made without proof of change in physical condition. Id. at 350. We have recognized that industrial disability is the product of many factors, not just physical impairment. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa 1980). Other factors include age, education, experience, and inability, because of the injury, to engage...