Jeffrey Bolton v. Second Injury Fund of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1620
Filed July 30, 2014
JEFFREY BOLTON,
Plaintiff-Appellant,
vs.
SECOND INJURY FUND OF IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
Jeffrey Bolton appeals from the district court order affirming the denial of
Second Injury Fund benefits. AFFIRMED.
Corey J.L. Walker of Walker, Billingsley & Bair, Newton, for appellant.
Thomas J. Miller, Attorney General, and Deborah M. Stein, Assistant
Attorney General, Department of Justice-Special Litigation, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.
Jeffrey Bolton appeals from the district court order affirming the denial of
Second Injury Fund benefits. He argues he is entitled to benefits because he
has suffered two permanent disabilities resulting in the loss or loss of use of a
scheduled member. Because substantial evidence supports the commission’s
finding that Bolton did not suffer a first qualifying injury, we affirm.
I. Background Facts and Proceedings.
Bolton was employed by Suburban Lumber Company (Suburban) when
he sustained a severe injury to his right hand while using a power saw at work in
November 2007. He filed a petition seeking workers’ compensation benefits from
Suburban for the injury. He also sought Second Injury Fund benefits, alleging he
sustained a first qualifying injury to his left knee in 1982 while riding his bicycle to
work.
Following an arbitration hearing, the deputy workers’ compensation
commissioner found Bolton’s hand injury resulted in a forty-seven percent
functional loss of his upper-right extremity. The deputy found Bolton failed to
establish the left-knee injury was a first qualifying injury and denied his claim
against the Second Injury Fund. After the commissioner affirmed the arbitration
decision, Bolton sought judicial review. The district court affirmed.
II. Scope and Standard of Review.
This appeal is reviewed under standards described in Iowa Code chapter
17A. See Iowa Code § 86.26 (2007). “The agency decision itself is reviewed
under the standards set forth in section 17A.19(10).” Gregory v. Second Injury
Fund of Iowa, 777 N.W.2d 395, 397 (Iowa 2010). We will reverse the agency’s
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decision if a determination of fact by the commissioner is “not supported by
substantial evidence in the record before the court when that record is viewed as
a whole.” Iowa Code § 17A.19(10)(f). Evidence is substantial “if a reasonable
mind would find it adequate to reach a conclusion.” Second Injury Fund v.
Bergeson, 526 N.W.2d 543, 546 (Iowa 1995). In deciding if substantial evidence
supports the commissioner’s conclusions, we broadly and liberally construe the
commissioner’s findings to uphold the decision rather than defeat it. Id.
III. Analysis.
Bolton claims he is entitled to Second Injury Fund benefits under Iowa
Code section 85.64, which limits an employer’s liability to the second injury,
where there are two qualifying injuries. The code section states in part:
If an employee who has previously lost, or lost the use of,
one hand, one arm, one foot, one leg or one eye, becomes
permanently disabled by a compensable injury which has resulted
in the loss of use of another such member or organ, the employer
shall be liable only for the degree of disability which would have
resulted from the latter injury if there had been no pre-existing
disability.
An employee must prove three things to trigger the liability of the Fund: (1) the
loss, or loss of use of a hand, arm, foot, leg, or eye; (2) another loss, or loss of
use of such member through a work-related, compensable injury; and (3) some
permanent disability from both injuries. Bergeson, 526 N.W.2d at 547–48. When
these three circumstances are present, the Fund becomes responsible for the
difference between the compensation for which the current employer is liable and
the total amount of industrial disability suffered by the employee, reduced by the
compensable value of the first injury. Iowa Code § 85.64.
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There is no dispute that Bolton’s 2007 injury to his right hand qualifies as
another loss of use of a scheduled member through a work-related, compensable
injury. The fighting issue on appeal is whether Bolton suffered a first qualifying
injury. Bolton argues there is undisputed evidence he suffered a first qualifying
injury to his left knee in 1982, citing doctors’ notes that indicate he complained of
knee pain in February and March of 2007. He also cites the “undisputed medical
opinion” provided by Dr. Kuhnlein, who conducted an independent medical
examination and “extrapolated” a one-percent impairment rating to his left leg for
the mild patellar pain Bolton described.
We conclude substantial evidence supports the commissioner’s decision.
Bolton admits he did not experience any difficulties with his knee until after he
began working for Suburban in 2000, some eighteen years after the injury that he
alleges resulted in a permanent loss of use of his knee. Bolton did not seek
medical treatment for his injury after his initial treatment in 1982. He did not even
mention left-knee pain to his doctors until twenty-five years later, when he also
complained of right-knee, hip, and back pain. Even then, Bolton made no
reference to the 1982 incident that allegedly caused the pain. There is, quite
simply, nothing in the record to tie Bolton’s complaints of knee pain to the 1982
injury until after he filed for workers’ compensation benefits in this matter.
Although Bolton claims the one-percent impairment rating Dr. Kuhnlein
assigned to his left leg is overwhelming evidence that he sustained a first
qualifying injury, the only evidence upon which Dr. Kuhnlein assigned an
impairment rating is Bolton’s subjective complaints of pain. Bolton has never
been given any restrictions as a result of the injury and there is no objective
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evidence of loss of use. For these reasons, the commissioner did not give
weight to Dr. Kuhnlein’s opinion on this matter, and neither do we. See Lithcote
Co. v. Ballenger, 471 N.W.2d 64, 66 (Iowa Ct. App. 1991) (noting the weight to
be given the expert opinion is for the agency, which may accept or reject the
opinion, in whole or in part, even if uncontroverted).
The district court determined substantial evidence supports the
commissioner’s decision. We agree and affirm. See Mycogen Seeds v. Sands,
686 N.W.2d 457, 464 (Iowa 2004) (noting that in applying the standards of
chapter 17A, we affirm the district if we reach the same conclusions).
AFFIRMED.