Darlene Janssen v. Merry Lanes, Inc. and Firstcomp Insurance

IN THE COURT OF APPEALS OF IOWA

No. 15-1511
Filed September 14, 2016

DARLENE JANSSEN,
Plaintiff-Appellant,

vs.

MERRY LANES, INC. and
FIRSTCOMP INSURANCE,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Osceola County, Nancy L.

Whittenburg, Judge.

An employee appeals the district court’s ruling on judicial review upholding

the workers’ compensation commissioner’s determination that she was entitled

benefits for a “scheduled” injury rather than industrial disability benefits.

AFFIRMED.

Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellant.

Sasha L. Monthei and Kent Smith of Scheldrup Blades, Cedar Rapids, for

appellees.

Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

An employee appeals the district court’s ruling on judicial review upholding

the workers’ compensation commissioner’s determination that she was entitled

benefits for a “scheduled” injury under Iowa Code section 85.34(2)(o) rather than

industrial disability benefits under section 85.34(2)(u) (2009). Because

substantial evidence supports the commissioner’s findings and its application of

law to the facts is not wholly unjustifiable, we affirm.

I. Background Facts and Proceedings.

Darlene Janssen sustained an injury to her hamstring when she slipped

and did the splits on October 30, 2010, while working as a bartender for the

employer, Merry Lanes, Inc. Janssen filed a petition for workers’ compensation

benefits with the Iowa Workers’ Compensation Commissioner. The employer

and its insurer denied Janssen sustained an injury to her body as a whole, and

instead maintained her injury was limited to her leg, a scheduled injury.

An arbitration hearing was held before a deputy commissioner, who

issued a ruling on February 3, 2014, finding Janssen sustained an injury to her

body as a whole and was permanently and totally disabled. On interagency

appeal, the acting commissioner determined Janssen had failed to prove she

sustained a whole-body injury and that the evidence demonstrated Janssen’s

injury was limited to her left lower extremity. The commissioner ruled Janssen

was entitled to 72.6 weeks of permanent-partial-disability benefits and no penalty

benefits.

Janssen sought judicial review in the district court, which affirmed the

commissioner. Janssen now appeals.
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II. Standard of Review.

The district court considering a petition for judicial review acts in an

appellate capacity and may reverse or modify an agency’s decision if the

agency’s decision is erroneous under a section of the Iowa Administrative

Procedure Act and a party’s substantial rights have been prejudiced. Iowa Code

§ 17A.19(10) (2013).

When dealing with the issue of whether substantial evidence
supports the agency’s findings, the district court and the appellate
court can only grant relief to a party from the agency’s decision if a
determination of fact by the agency “is not supported by substantial
evidence in the record before the court when that record is viewed
as a whole.”

Gits Mfg. Co. v. Frank, 855 N.W.2d 195, 197 (Iowa 2014) (quoting Iowa Code

§ 17A.19(10)(f)). “Substantial evidence supports an agency’s decision even if

the interpretation of the evidence may be open to a fair difference of opinion.” Id.

“Just because the interpretation of the evidence is open to a fair difference of

opinion does not mean the [agency’s] decision is not supported by substantial

evidence. An appellate court should not consider evidence insubstantial merely

because the court may draw different conclusions from the record.” Arndt v. City

of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007) (citations omitted). When we

review a district court decision that reviewed an agency action, our task is to

determine if we would reach the same result as the district court in applying the

Act. Gits, 855 N.W.2d at 197. If we reach the same result, we affirm; if not, we

reverse. Mike Brooks, Inc. v. House, 843 N.W.2d 885, 889 (Iowa 2014).
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III. Discussion.

We reject Janssen’s claim that the issue before us is a matter of

erroneous statutory interpretation. Janssen contends that the “essence” of prior

decisions by the appellate court is “that the nerves and veins are system wide

and extend beyond a scheduled member and are not listed as scheduled

members and are therefore compensated industrially.” She relies upon this

court’s rulings in Collins v. Department of Human Services, 529 N.W.2d 627

(Iowa Ct. App. 1995), and First Fleet Corp. v. Hannam, No. 14-1254, 2015 WL

4158941 (Iowa Ct. App. July 9, 2015). Janssen mischaracterizes the case

holdings.

The question presented in both cases was whether the agency’s factual

findings were supported by substantial evidence. See Collins, 529 N.W.2d at

628-29; Hannam, 2015 WL 4158941, at *4. In Collins, we found substantial

evidence supported the commissioner’s finding that the employee’s depression

was related to her work-related injury and was compensable by determining the

employee’s industrial disability. 529 N.W.2d at 629. Having “already found

Collins is entitled to compensation for industrial disability,” we did not address the

issue of whether her diagnosis of reflex sympathetic dystrophy1 was a second

injury compensable by industrial disability. Id. at 629-30. In Hannam we ruled,

“The commissioner’s determination that Hannam suffered nervous system injury

compensable as an unscheduled disability is supported by substantial evidence,

and the district court erred in ruling otherwise.” 2015 WL 4158941, at *4.

1
“Reflex sympathetic dystrophy is a dysfunction of the sympathetic nervous system.”
Collins, 529 N.W.2d at 629.
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Here, however, the commissioner concluded Janssen had suffered a

scheduled-member injury. As an appellate court, our task “is not to determine

whether the evidence supports a different finding; rather, our task is to determine

whether” there is substantial evidence supporting the findings the commissioner

“actually made.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845

(Iowa 2011). The question presented then is whether there is substantial

evidence to support the commissioner’s finding that Janssen suffered a

scheduled-member injury. There is.

On January 20, 2011, Dr. Gary Miller performed an electrophysiologic

(EMG) study which was described as abnormal. Dr. Miller’s report indicates the

EMG showed “irritation of the sciatic nerve in the area of the biceps femoris

muscles consistent with injury and irritation localized in that area” and that

“[t]here is no clear evidence of lumbosacral radiculopathy.” On April 25, 2011,

Dr. James Case performed a new EMG, which revealed a “severe partial sciatic

neuropathy to the sciatic branch supplying the right lower extremity lateral

hamstring groups.” Dr. Case also found no indication the injury extended beyond

the leg. Citing these expert opinions, the commissioner determined:

In the present case, claimant’s injury is confined to the leg.
There is no question claimant suffered a right proximal hamstring
tear causing damage to the sciatic nerve. The sciatic nerve injury
was limited to the section of the lateral upper hamstring. Objective
testimony showed the sciatic nerve injury did not extend into the
low back.

There is substantial evidence in the record supporting the agency’s finding

that Janssen’s injury does not extend beyond her right lower extremity. And the

commissioner’s conclusion that the injury is compensable as a scheduled-
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member injury is not “irrational, illogical, or wholly unjustifiable.” See Iowa Code

§ 17A.19(10)(m).

Having found no merit to Janssen’s contention that the agency erred in

concluding she suffered a scheduled-member injury, we need not address her

claim she should have been awarded penalty benefits based on that purported

error. We affirm.

AFFIRMED.