Isaac Millanes-Ortiz v. Loyd Roling Construction and Grinnell Mutual Reinsurance

IN THE COURT OF APPEALS OF IOWA

No. 19-2077
Filed January 21, 2021

ISAAC MILLANES-ORTIZ,
Plaintiff-Appellant,

vs.

LOYD ROLING CONSTRUCTION and GRINNELL MUTUAL REINSURANCE,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.

The claimant appeals the district court’s ruling affirming the denial of

permanent partial disability benefits by the Workers’ Compensation

Commissioner. AFFIRMED.

Andrew W. Bribriesco, Bettendorf, for appellant.

Stephen W. Spencer and Christopher S. Spencer of Peddicord Wharton,

LLP, West Des Moines, for appellees.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

Isaac Millanes-Ortiz (Ortiz) fell at work and suffered injuries that required

hospitalization and surgery. While the work injury was not contested, Ortiz’s

request for permanent partial disability (PPD) benefits was.1 The Worker’s

Compensation Commissioner (the commissioner) found that Ortiz suffered no

PPD from the fall that occurred while in the course of his employment.2 With the

permanent-disability issue as the focus, Ortiz appeals from the district court

affirmance of the final agency decision. We affirm.

Factual Background and Procedural History.

Ortiz was hired by Loyd Roling Construction (Roling) in October 2008 to

perform various tasks including painting, roofing, driving truck, and feeding

livestock. He was paid a salary of $500 per week for his services, plus an

occasional cash payment. Ortiz suffered an injury while working on September

28, 2012. He fell approximately twelve feet off a roof, landing on his side. Taken

by ambulance to the University of Iowa Hospital, he was evaluated for complaints

of chest and left arm pain. Ortiz underwent X-rays of the chest, pelvis, left

shoulder, and left upper extremity, as well CT scans of the chest and cervical spine.

The scan of his chest revealed left pneumothorax and rib fractures, and the X-rays

revealed a mid-shaft fracture of the left humerus with a radial nerve palsy in the

left arm. In the trauma clinic, the doctor placed a chest tube as a result of the

1 Ortiz also claimed another work injury to his leg, but that claim for benefits is not
addressed in this appeal.
2 The decision also awarded temporary total disability benefits and a penalty

benefit of $500 and denied requests for medical expenses and alternate medical
care.
3

pneumothorax. A closed reduction with splinting of the humerus fracture was

performed, and Ortiz was provided a cock-up splint and physical therapy. After

five days in the hospital, he was discharged with therapy instructions.

Ortiz continued to experience discomfort in his arm. Seeking an answer for

the pain, he returned to the orthopedics department at the hospital on December

12, 2012, for possible surgical intervention on his left arm. At this visit, Ortiz

complained of some left-sided chest, neck, and shoulder pain that started the

previous week. Attributing some of his pain to carrying a heavy arm rest around

his neck while he walked, the doctor recommended Ortiz stop using that aid while

walking. The doctor concluded that surgery was needed to repair the nonunion of

the humeral fracture of the left arm. On January 28, 2013, Dr. Lawrence Marsh

performed an open reduction and internal fixation surgery on the humeral fracture,

inserting a plate and screws. By August 21, 2013, X-rays revealed a healed

humeral fracture, which had good fixation. The notes show that Ortiz’s radial nerve

palsy was also resolving despite his continuing complaints of pain. Ortiz was also

treated by Dr. Douglas Sedlacek in October and received injections for pain in his

shoulder and left upper extremity. Ortiz reported a “tremendous amount of relief”

from the injections.

Roling reached out to Ortiz and offered light-duty work compliant with the

restrictions last given by Ortiz’s doctors. Ortiz avoided the offer and, when

pressed, over-stated his lifting limitations, asserting he could only lift two to three

pounds instead of the twenty pounds suggested by the treating doctors. Ortiz

never returned to work with Roling.
4

After Ortiz switched physical therapy providers in the fall of 2013, he

reported dramatic improvement in his strength and range of motion. He completed

the physical therapy by January 2014.

Dr. Joseph Chen at the University of Iowa Hospital evaluated Ortiz in early

2014. Ortiz continued to complain of pain at each of his doctor appointments, and

it was recommended he complete a functional capacities evaluation (FCE) in

February 2014. The evaluator, John Kruzich, believed that Ortiz failed to give

maximum voluntary effort during evaluation, provided a highly inconsistent effort

during the objective testing, and failed the validity criteria. The FCE noted that the

pain questionnaires indicated symptom magnification. Likewise, the high pain

reports during the exam were inconsistent because there were minimal or no

demonstrated pain behaviors. For example, in the Kruzich report, he opined

[Ortiz] was able to lift on average nearly twice the amount of weight
at the conclusion of testing as he was able to lift at the beginning of
testing. Presumably the client, if indeed in a significant amount of
pain, would lift the same or considerably less weight as testing
proceeded and pain levels increased. Similar to the previously
mentioned published research concerning the use of this test the
only explanation for the substantial variation in the claimant’s
maximum lifting abilities is abnormal test behavior.

Ortiz saw Dr. Chen again in March after this FCE testing. Again, Ortiz reported

intense pain with the use of his left arm. Dr. Chen reviewed the FCE noting

“grossly inconsistent effort [by Ortiz] on a variety of scales.” When Dr. Chen

assessed Ortiz, he noted Ortiz was “in no distress.” Strength, coordination, and

muscle stretch reflexes were normal in the upper extremities bilaterally. The doctor

told Ortiz he had “chronic myofascial left arm pain . . . due to increased central

nervous system hyperexcitabiity” that he had to learn to manage but that the pain
5

should not limit his usual activities. With full range of motion and strength, Dr.

Chen found no permanent impairment and instructed Ortiz to return to full work

duties with no restrictions. Dr. Chen determined that Ortiz had “no ratable

impairment according to AMA[3] Guides to the Evaluation of Permanent

Impairment, 5th Edition.”

From March until June of 2014, Ortiz worked at a hotel in the Iowa City area.

Otherwise, Ortiz’s work history after the initial injury is unknown.

In June 2014, Ortiz underwent an independent medical examination (IME)

with Dr. Mark Taylor for Ortiz’s use in the worker’s compensation case. Dr. Taylor

discounted the results of the FCE and determined Ortiz had permanent injury from

the September 2012 fall. Using the AMA guidelines, Dr. Taylor opined that Ortiz

had a left upper extremity impairment rating of sixteen percent and a ten percent

permanent disability of the whole body. Dr. Taylor provided permanent impairment

ratings as follows: three percent of the left upper extremity for loss of elbow motion;

six percent of the left upper extremity for loss of shoulder motion; three percent of

the left upper extremity for the sensory deficits of the radial nerve palsy; and four

percent of the left upper extremity for the weakness related to the radial nerve

palsy. Dr. Taylor also recommended permanent restrictions. Contrary to Kruzich’s

FCE report addressing Ortiz’s abnormal testing behavior, Dr. Taylor believed pain

caused Ortiz to perform poorly on the functional examination.

In an opinion letter dated November 20, 2014, Dr. Marsh determined that

Ortiz was at maximum medical improvement (MMI) for his work injury. He agreed

3 AMA is an acronym for American Medical Association.
6

with Dr. Chen that Ortiz had no work restrictions. Future medical treatment was

not required. The report also referenced Ortiz’s radial nerve injury and his ongoing

complaints of pain. Dr. Marsh opined that the radial nerve injury had “improved by

objective measures and clinical presentation.” As for the pain complaints, the

doctor offered that the pain might be consistent with ongoing nerve dysfunction,

not necessarily attributable to a radial nerve injury. Yet, Dr. Marsh confirmed

“given the good recovery of function and the amount of time that has passed, it is

unlikely that any intervention or treatment is likely to change Mr. Ortiz’s complaints

of possibly neuritic pain.” Dr. Marsh discounted the opinions of Dr. Taylor, as Dr.

Chen had done in his notes.

Ortiz petitioned for benefits from the Worker’s Compensation Division, and

in January 2016, a deputy commissioner wrote a detailed thirty-four page

arbitration decision. Among other findings, the deputy commissioner found that

Ortiz failed to prove a permanent disability arising from his work fall. Notably, the

deputy commissioner determined Ortiz was not a credible witness and that the

opinions of Dr. Chen and the other treating doctors were more convincing than the

IME doctor used by Ortiz. In a final agency decision, the commissioner reached

“the same analysis, findings and conclusions as those reached by the deputy

commissioner.” The decision affirmed all facets of the arbitration decision and

found that Ortiz failed to carry his burden of proof that he sustained a permanent

disability. Ortiz appealed to the district court,4 focusing the appeal on the question

of the permanent-disability determination.

4Ortiz first petitioned for judicial review in September 2017. Because of perceived
procedural failures involving improper service under Iowa Code section 17A.19(2)
7

Operating in an appellate capacity, the district court affirmed the

commissioner’s ruling, finding that substantial evidence supported the finding Ortiz

did not sustain a permanent disability and that the decision of the commissioner

was not illogical, irrational, or wholly unjustifiable. Yet the district court observed

that “it does strike the Court as unusual that very serious injuries of the nature

sustained in this case would result in no permanent disability.”

Ortiz appeals. He attacks the commissioner’s decision from three angles.

First, he claims the commissioner erred as a matter of law by only considering the

AMA guidelines to determine permanency. Next, Ortiz argues the commissioner

misapplied law to fact by failing to consider chronic pain as sufficient evidence of

a change in physiological capacity in a scheduled-member case. And finally,

because the district court found Ortiz suffered from chronic pain, Ortiz maintains

the commissioner’s decision to deny permanent disability is not supported by

substantial evidence.

Standards of Review.

Iowa Code chapter 17A governs judicial review of an agency decision. See

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256 (Iowa 2012). Under the Act, we

may only interfere with the commissioner’s decision if it is erroneous under one of

the grounds enumerated in the statute and a party’s substantial rights have been

prejudiced. See id.; see also Iowa Code§ 17A.19(10). Under Iowa Code section

(2016), the case was dismissed. The Iowa Supreme Court reversed the dismissal
(and our affirmance of it), finding that emailing the petition to opposing counsel
within the ten days was proper service. Ortiz v. Loyd Roling Constr., 928 N.W.2d
651, 652 (Iowa 2019).
8

17A.19(10), our standard of review depends on the aspect of the agency’s decision

that forms the basis of the petition for judicial review. See Meyer v. IBP, Inc., 710

N.W.2d 213, 219 (Iowa 2006). If an agency has been clearly vested with the

authority to make factual findings on a particular issue, then a reviewing court can

only disturb those factual findings if they are “not supported by substantial

evidence in the record before the court when that record is reviewed as a whole.”

Iowa Code § 17A.19(10)(f); see also Meyer, 710 N.W.2d at 218. This review is

limited to the findings that were actually made by the agency, not other findings

that the agency could have made. Meyer, 710 N.W.2d at 218. When the

application of law to fact has been clearly vested in the discretion of an agency, a

reviewing court may only disturb the agency’s application of the law to the facts of

the particular case if that application is “irrational, illogical, or wholly unjustifiable.”

Iowa Code § 17A.19(10)(m); see also Burton, 813 N.W.2d at 256.

Analysis.

It is undisputed Ortiz suffered a work-related injury and was entitled to

temporary disability payments. But Ortiz requests payments for a permanent

partial disability because of his chronic pain and the changes sustained in his left

arm. He argues he was permanently injured and the commissioner erred by not

considering any evidence beyond the AMA guidelines5 when determining the

extent of permanent disability. He contends that had the commissioner considered

all of the evidence in the record, there would be a finding of permanent disability.

5Iowa Administrative Code section 876–2.4 adopts “The Guides to the Evaluation
of Permanent Impairment, Fifth Edition, published by the American Medical
Association . . . for determining the extent of loss or percentage of impairment for
permanent partial disabilities.”
9

Whether there was error as a matter of law to only apply AMA guidelines

and not consider lay testimony about pain.

To begin, Ortiz frames the legal question before us as one of first

impression. He asks “whether a finding of chronic pain in the arm—in and of

itself—is legally sufficient to award at minimum one percent (1%) permanent

disability despite the absence of a numerical rating pursuant to the AMA

guidelines.” Ortiz urges that the AMA guidelines are merely a guide for disability

determinations, and he points to the Iowa Supreme Court’s decisions in Terwilliger

v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995), and Miller v. Lauridsen

Foods, Inc., 525 N.W.2d 417, 421 (Iowa 1994), which allow for the use of non-

AMA evidence to arrive at a functional disability rating.

The parties agree the agency was to decide the functional disability of

Ortiz’s scheduled injury. And as Terwilliger states, “The law requires the

commissioner to consider all evidence, both medical and nonmedical, in arriving

at a disability determination.” 529 N.W.2d at 273. Functional disability is arrived

at by determining the loss of physiological capacity of the body part. Miller, 525

N.W.2d at 420 (citing Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 815

(Iowa 1994)). The AMA guidelines are not conclusive evidence on the extent of

permanent impairment. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839

(Iowa 1986). The agency’s rules specifically allow the commissioner to consider

other competent medical evidence when determining the percentage of permanent

partial disability resulting from a scheduled injury. See Westling v. Hormel Foods

Corp., 810 N.W.2d 247, 252 (Iowa 2012). In a case involving a scheduled injury,

if there is a causal connection between a work-related injury and a functional
10

impairment, the statute allows the commissioner to find a permanent partial

disability. Id.

While the commissioner must consider other evidence, the agency does not

have to list every fact in the record and explain if it was accepted or rejected.

Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549, 560-61 (Iowa 2010). Instead

the commissioner must provide a decision that is detailed enough to show how

conflicting evidence was evaluated. Id. The commissioner shall include both “an

explanation of why the relevant evidence in the record supports each material

finding of fact” and conclusions of law that are “supported by cited authority or by

a reasoned opinion.” Iowa Code § 17A.16(1). The arbitration decision, affirmed

by the commissioner, contained factual detail outside of the AMA guidelines

including how the injury occurred and the opinions of Mr. Ortiz’s treating doctors.

Unlike in Lauridsen Foods, where lay testimony was excluded, here the deputy

considered all testimony offered. 525 N.W.2d at 417.

Ortiz asks that we remand the case back to the commissioner and instruct

him to utilize the correct legal precedent. We agree with the district court and find

the commissioner applied the appropriate legal standards to the facts and also

considered the lay testimony related to the subjective complaints of pain. We

decline to overturn the decision under this theory.

Was there a misapplication of law to fact by failing to consider chronic pain

as sufficient evidence of a change in physiological capacity?

Ortiz next argues that a finding of chronic pain is sufficient per se to show a

change in physiological capacity, meaning the commissioner’s decision was

irrational, illogical, wholly unjustifiable, or otherwise unreasonable, arbitrary, and
11

capricious. We disagree. A decision is irrational when it is not governed by reason,

illogical when it is devoid of logic, or unjustifiable when it has no foundation in fact

or reason. See Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417,

432 (Iowa 2010). “Functional disability is arrived at by determining the impairment

of the employee’s body function. This disability is limited to the loss of the

physiological capacity of the body or body part.” Mortimer v. Fruehauf Corp., 502

N.W.2d 12, 14 (Iowa 1993). Ortiz argues that courts should look to the plain

meaning of physiological loss to determine if pain can support a finding of loss.

Yet, Ortiz referenced Taber’s Cyclopedic Medical Dictionary’s definition as

“concerning body function.”

The Iowa Supreme Court has addressed the tension between function and

complaints of pain in this same context. In Robbennolt v. Snap-On Tools Corp.,

the court noted that the commissioner is not required to award disability beyond

that of the AMA guidelines simply because the claimant is complaining of pain or

fatigue. 555 N.W.2d 229, 234 (Iowa 1996) (finding “there is no rule of law that

requires an award greater than the impairment rating determined by the AMA

guidelines where a claimant makes complaints of pain”). Dr. Chen evaluated Ortiz

under the AMA guidelines and found no permanent disability.6 Furthermore, the

question of Ortiz’s pain level was disputed. While Ortiz had a medical doctor

evaluate his condition, including his pain, other doctors contradicted those

conclusions. Dr. Marsh and Dr. Chen both released Ortiz with no restrictions.

6 Following a 2017 amendment, the Iowa Code now states: “[W]hen determining
functional disability . . . the extent of loss or percentage of permanent impairment
shall be determined solely by utilizing the [AMA guidelines].” 2017 Iowa Acts ch.
23, § 9 (codified at Iowa Code § 85.34(2)(x)).
12

Arguably, the medical providers believed the subjective pain complaints were not

limiting Ortiz’s functional capacity. Additionally, the FCE performed by Kruzich

indicated symptom magnification leading to credibility questions about Ortiz.

Ultimately, Dr. Chen was found credible, and he determined even with complaints

of pain Ortiz would not suffer any functional limitation by using his arm normally.

The deputy commissioner noted

Claimant has claimed permanent disability to his left arm, left
shoulder, neck, head, and chest, as well as his mental health.
Claimant certainly suffered with a fracture of the left humerus,
requiring placement of hardware, and a radial nerve palsy injury.
However, Dr. Chen opined claimant sustained no ratable impairment
as a result of these conditions. Dr. Taylor opined claimant sustained
ratable impairment, but did so in spite of FCE findings which
rendered examination results questionable. The undersigned is
bothered by Dr. Taylor’s disregard of the FCE results and the
determination of Mr. Kruzich that claimant’s FCE results could only
be described as demonstrating abnormal testing behavior, with signs
of symptom magnification. Mr. Kruzich convincingly rejected Dr.
Taylor’s assertion claimant’s poor FCE performance could be
attributable to increased pain complaints. As. Dr. Taylor bases his
permanent impairment ratings upon measures subject to
manipulation and fails to adequately explain claimant’s poor
performance at FCE, the undersigned determines the opinions of Dr.
Taylor are entitled to little weight. Having provided greater weight to
the opinion of Dr. Chen, in conjunction with the invalid FCE findings
of Mr. Kruzich, it is determined claimant has failed to prove he
sustained permanent disability to his left arm.

The deputy commissioner was in the best position to evaluate all this

evidence and make credibility findings. And there were red flags supporting a lack

of effort and candor by Ortiz. After the medical provider developed his work

restrictions, Roling offered light duty work to Ortiz commensurate with those

restrictions. Ortiz refused the work and then exaggerated the medical restriction

on lifting of twenty pounds, telling Roling he could only lift two pounds. The FCE

test referenced his failure to give maximum effort and offered inconsistent findings
13

for a pain condition where he lifted more towards the end of the testing as opposed

to the beginning, making it difficult to confirm Ortiz’s actual function. Medical

providers noted the “overt and magnified pain behaviors and the failed validity

criteria on the FCE.” And the deputy commissioner was able to see, hear, and

evaluate the testimony of Ortiz in real time. We do not find the commissioner’s

decision to be irrational, illogical, wholly unjustifiable, or otherwise unreasonable,

arbitrary, and capricious, and we see no reason to overturn their determination.

Substantial evidence test.

Finally, Ortiz argues substantial evidence does not support the

commissioner’s decision to deny permanent disability. In making this argument,

Ortiz again relies on his chronic pain complaints to overcome the AMA guideline

finding by Dr. Chen. The possibility of drawing two inconsistent conclusions from

the same evidence does not prevent the agency’s decision from being supported

by substantial evidence. Henry v. Iowa Dep’t of Job Serv., 391 N.W.2d 731, 734

(Iowa Ct. App. 1986). As discussed above, the treating physicians and the FCE

evaluator offered opinions supporting the commissioner’s findings. We read the

agency’s findings broadly and liberally with an eye to upholding rather than

defeating its decision. See IBP, Inc. v. Al–Gharib, 604 N.W.2d 621, 632 (Iowa

2000). And, we give deference to the commissioner’s credibility determinations.

Broadlawns Med. Ctr. v. Sanders, 792 N.W.2d 302, 306 (Iowa 2010).

“[F]acts determined by the . . . commissioner have the same effect as a jury

verdict; and we may not interfere with such findings where there is a conflict in the

evidence or when reasonable minds may disagree as to the inferences to be drawn

from the evidence . . . .” Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d
14

667, 668 (Iowa 1971). As the district court correctly concluded, the deputy not only

considered Dr. Chen’s determination of no ratable impairment but also his other

opinions about Ortiz’s condition. No restrictions were given to Ortiz, and no future

treatment was necessary. The deputy gave great weight to the FCE report and

concluded that unless corroborated by the evidence, Ortiz’s testimony was entitled

to little weight. We find substantial evidence supports the commissioner’s

determination. See Schutjer, 780 N.W.2d at 557-58 (“Our assessment of the

evidence focuses not on whether the evidence would support a different finding

than the finding made by the commissioner, but whether the evidence supports the

findings actually made.”). We find substantial evidence supports the finding of no

permanent disability.

For all of the reasons developed above, we affirm the commissioner’s

ruling.

AFFIRMED.