Joseph Andrew Leeper v. Pioneer Hi-Bred International, Inc., a/k/a DuPont Pioneer ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1637
Filed November 27, 2019
JOSEPH ANDREW LEEPER,
Petitioner-Appellant,
vs.
PIONEER HI-BRED INTERNATIONAL, INC., a/k/a DUPONT PIONEER,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Samantha Gronewald,
Judge.
The claimant appeals from the district court’s ruling on judicial review
affirming the Workers’ Compensation Commissioner’s denial of permanent
disability benefits. AFFIRMED.
Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for
appellant.
James M. Ballard of Ballard Law Firm, PLLC, Waukee, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.
Joseph Leeper appeals from the district court’s ruling on judicial review
affirming the Workers’ Compensation Commissioner’s denial of permanent
disability benefits. The deputy workers’ compensation commissioner found:
. . . Leeper argues that he sustained permanent impairment as a
result of the work injury because even after the surgeries he had
ongoing symptomatology. In support of this position he, in part, relies
on the opinions of Dr. Kuhnlein [retained by Leeper to perform an
independent medical evaluation (IME)]. Dr. Kuhnlein is the only
expert in this matter who has assigned any permanent impairment to
Leeper as a result of the work injury. As previously, noted
Dr. Kuhnlein opined that “there was no objective basis upon which to
assign impairment.” However, he did assign 1 percent impairment
to each upper extremity based on chapter 18 of the AMA Guides.
According to chapter 18 of the AMA Guides there is a specific
protocol for assessment which permits physicians to reach
conclusions about pain-related impairment. Unfortunately,
Dr. Kuhnlein did not reveal what, if any, of the protocols he used
when arriving at his impairment rating. Dr. Kuhnlein merely states,
“I would assign a 1% right upper extremity impairment for the pillar
pain. I would also assign a 1% left upper extremity impairment for
the pillar pain.” Because Dr. Kuhnlein failed to disclose the protocol
or basis for the assessment of impairment I do not find Dr. Kuhnein‘s
opinion regarding permanent impairment to be persuasive.
Furthermore, the record as a whole does not support a finding
of permanency. Neither orthopaedic surgeon, Dr. Gaffey or
Dr. Paulson [both treating doctors], assigned any permanent
impairment to Leeper. Nor did either treating doctor assign any
permanent restrictions to Leeper. As previously noted Dr. Kuhnlein
was the only physician to assign any permanency and for the
reasons set forth above I did not find his opinion with regard to
permanency to be persuasive. Therefore, I find claimant has failed
to carry his burden of proof to show by a preponderance of the
evidence that the August 27, 2013, work injury was the cause of
permanent Impairment. [References omitted].
Rehearing was denied and the deputy’s decision was affirmed by the
Commissioner. Leeper appealed to the district court. On judicial review, the
district court found:
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Here, the evidence supports Deputy Pals’ ultimate conclusion that
the record as a whole does not support a finding of permanency.
Deputy Pals stated the evidence she relied upon and specified the
reasons for her conclusions. More specifically, she noted that
[Leeper] reported to Dr. Gaffey at his last exam that he was doing
well. While Dr. Gaffey advised [Leeper] to perform home exercises
to improve his strength and to wear his night splints, Dr. Gaffey
released [Leeper] to full-duty work, without restriction. Likewise,
Dr. Paulson released [Leeper] to full-duty work, without restriction.
Further, Dr. Paulson noted that [Leeper]’s pain symptoms were
nearly completely resolved and that [Leeper]’s motion and sensation
were normal. For these reasons, coupled with her determination
regarding Dr. Kuhnlein’s impairment rating, Deputy Pals found that
[Leeper] had failed to prove by a preponderance of the evidence that
his work injury was the cause of permanent impairment. Substantial
evidence supports Deputy Pals’ decision and; therefore, she did not
err by not awarding any permanent partial disability compensation.
[footnotes omitted].
Leeper appeals.
On a petition for judicial review, Iowa Code section 17A.19(10) governs our
review of an agency’s decision. See Ghost Player, LLC v. Iowa Dep’t of Econ.
Dev., 906 N.W.2d 454, 462 (Iowa 2018). “The district court may properly grant
relief if the agency action prejudiced the substantial rights of the petitioner and the
agency action fits one of the enumerated criteria included in Iowa Code section
17A.19(10)(a)-(n).” Id. “In reviewing the decision of the district court, we must
apply the standards set forth in Iowa Code section 17A.19(10) to determine
whether we reach the same result as the district court.” Kopecky v. Iowa Racing
& Gaming Comm’n, 891 N.W.2d 439, 442 (Iowa 2017).
Determining whether to accept or reject an expert opinion is within the
“peculiar province” of the agency. See Deaver v. Armstrong Rubber Co., 170
N.W.2d 455, 464 (Iowa 1969). But that “deference afforded the agency on
substantial evidence review is predicated on the assumption the agency reviewed
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and considered the evidence in reaching its decision.” JBS Swift & Co. v. Hedberg,
873 N.W.2d 276, 281 (Iowa Ct. App. 2015). When we review a factual finding for
substantial evidence, we must judge the finding “in light of all the relevant evidence
in the record cited by any party that detracts from that finding as well as all of the
relevant evidence in the record cited by any party that supports it.” Iowa Code
§ 17A.19(10)(f)(3); see also Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d
839, 845 (Iowa 2011). “Evidence is substantial if a reasonable mind would find it
adequate to reach the same conclusion.” 2800 Corp. v. Fernandez, 528 N.W.2d
124, 126 (Iowa 1995).
As he did at the district court, Leeper cites many paragraphs of Iowa Code
section 17A.19(10) as grounds for reversal of the agency’s denial of benefits.
Leeper’s central claim is that the agency disregarded “the extensive evidence of
subjectively-manifested pain”—his own “sworn lay testimony” and documents
where he was noted of having complained about pain in the past. Upon our
intensive review of the record, we reach the same determination as the district
court—the agency’s factual finding that Leeper failed to establish a permanent
impairment is supported by substantial evidence when the record is viewed as a
whole.
Although a trier of fact might conclude Leeper sustained a permanent
impairment of one percent based on Leeper’s testimony and Dr. Kuhnlein’s
opinion, our task on appeal is not to determine whether the evidence supports a
different finding; our task is to determine whether substantial evidence supports
the finding made. See Pease, 807 N.W.2d at 845. In doing so, this court abstains
from making “a determination as to whether evidence ‘trumps’ other evidence or
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whether one piece of evidence is ‘qualitatively weaker’ than another piece of
evidence.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394 (Iowa 2007).
In the agency decision, the deputy commissioner, affirmed by the
commissioner, did not find Dr. Kuhnlein’s opinion that Leeper suffered a one-
percent permanent impairment persuasive, noting “Dr. Kuhnlein failed to disclose
the protocol or basis for the assessment of impairment.” The deputy instead relied
on the opinions of the treating doctors who found no permanent impairment. The
deputy noted those doctors treated Leeper after his 2013 injury and therapy.
Those doctors’ records referenced Leeper’s own reports that he was doing well,
that Leeper “denied any significant numbness or tingling or any other difficulty” and
“symptoms were acute and had improved.” Both doctors returned Leeper to full
duty without work restrictions and placed him at maximum medical improvement.
The treating doctors’ records and opinions constitute substantial evidence to
support the deputy’s finding that Leeper failed to establish he had a permanent
impairment.
Leeper further argues “the district court erred by treating any failure to prove
the paragraph section 17A.19(10)(f) ground as automatically precluding
consideration of any other section 17A.19(10) grounds.” But Leeper’s other
asserted grounds depend on us accepting his central claim—that the agency
“failed to weigh Leeper’s sworn lay testimony, particularly the testimony which
conflicted with the unsworn statements in the records of [the treating doctors].”
Because we conclude the deputy weighed that evidence and did not find it
persuasive, Leeper’s remaining arguments lack merit.
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Having considered all arguments set forth in this appeal, whether or not
specifically mentioned in this opinion, we affirm the district court’s ruling on judicial
review affirming the agency’s denial of permanent disability benefits under Iowa
Court Rule 21.26.
AFFIRMED.