Regional Care Hospital v. Marrs

IN THE COURT OF APPEALS OF IOWA

No. 22-0959
Filed February 8, 2023

REGIONAL CARE HOSPITAL PARTNERS, INC., and ZURICH AMERICAN
INSURANCE COMPANY,
Petitioners-Appellants,

vs.

ROBERTA MARRS,
Respondent-Appellee.
________________________________________________________________

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

An employer appeals following the denial of a petition for judicial review of

a workers’ compensation commissioner’s decision. AFFIRMED.

Rachael Diane Neff and Charles A. Blades of Smith, Mills, Schrock, Blades,

P.C., Cedar Rapids, for appellants.

John P. Dougherty of Lawyer, Dougherty & Palmer, P.L.C., West Des

Moines, for appellee.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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SCHUMACHER, Judge.

Regional Care Hospital Partners, Inc. and its workers’ compensation

insurance carrier, American Zurich Insurance Company (collectively, Regional

Care), appeal the denial of a petition for judicial review following a workers’

compensation commissioner finding Roberta Marrs was permanently and totally

disabled. Regional Care contends the commissioner’s finding lacks substantial

evidence and is irrational, illogical, and wholly unjustifiable. Because the

commissioner’s findings are supported by substantial evidence and are not

irrational, illogical, or otherwise unjustifiable, we affirm.

I. Background Facts & Proceedings

This case began in July 2014, following an injury Marrs sustained while

working as a nurse for Regional Care. That injury primarily affected her neck and

upper back. Marrs sought workers’ compensation benefits for the injury. A deputy

commissioner found Marrs suffered injuries to her spine. As a result, she was

awarded healing period benefits and a penalty was imposed against Regional Care

in June 2017. Regional Care appealed to the commissioner, who affirmed the

award of healing benefits but slightly decreased the penalty Regional Care owed.

That order was upheld on appeal. See Regional Care Hosp. Part., Inc. v. Marrs,

No. 19-2138, 2021 WL 609072, at *2 (Iowa Ct App. Feb. 17, 2021).

Marrs has undergone numerous medical consultations and treatments

since 2017. In general, such treatment was “conservative,” limited to “medications,

physical therapy, and injections.” Physical therapy and the injections, in particular,

appear to have provided some temporary relief from the pain Marrs endured.
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Marrs underwent a functional capacity evaluation (FCE) that placed her in

the U.S. Department of Labor’s “light work” category. But it also noted that Marrs

should “[l]imit sitting and standing to rare basis 1–5% of an 8 hour day.” That

determination was consistent with Marrs’s testimony, which indicated she spends

about ninety percent of her day laying down or in a traction machine. Marrs has

seen multiple doctors for evaluations. Dr. Stoken, Dr. Harbach, and Dr. Mooney

indicated that reasonable work restrictions would follow those detailed in the FCE.

An employability report was prepared in March 2020. That report utilized the

findings in the FCE to determine what jobs were available for Marrs. The report

identified sixteen positions available to Marrs. Marrs contests the validity of the

report, noting that she never met with the author. Additionally, some jobs were

ones she had worked at, and she believed she was not physically capable of

performing them. Marrs does not contest that she has made no attempts to find

employment since her injury, as she believes she is not capable of working.

Marrs petitioned seeking review-reopening of the prior decision in October

2018, seeking a determination of the extent of her disability and the proper

commencement date for permanency benefits. On June 11, 2021, a deputy

commissioner filed their review-reopening decision. The deputy expressly found

the FCE persuasive and Marrs to be credible. The deputy found Marrs had

suffered an eighty percent loss of future earning capacity. However, the deputy

also determined that Marrs had failed to demonstrate that she was totally and

permanently disabled.

Marrs appealed to the commissioner. The commissioner highlighted how

the FCE was unrebutted and adopted by all the treating physicians and experts in
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this case. The commissioner diverged from the deputy’s findings, noting that while

the FCE placed Marrs in the “light work” category, the evaluation also limited her

to sitting and standing for at most five percent of the day. The commissioner

explained, “While defendants produced a vocational report with jobs that

technically fall within the light work category, it is unclear how claimant could

perform any of those jobs (or any other job, for that matter) while having to lay

down for the vast majority of the day.” The commissioner determined Marrs was

totally and permanently disabled.

Regional Care petitioned for judicial review. After stressing the nature of

judicial review, the district court affirmed the commissioner’s ruling. Regional Care

appeals.

II. Standard of Review

This appeal presents a mixed question of law and fact. Regional Care

presents a fact question on the extent of Marrs’s disability. A question then arises

over whether the commissioner properly applied the law to those facts to determine

that Marrs is permanently and totally disabled.

We review fact findings by the commissioner for substantial evidence.

Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). Our review “is not whether

the evidence supports a different finding than the finding made by the

commissioner, but whether the evidence ‘supports the findings actually made.’” Id.

(citation omitted). “Evidence is substantial if a reasonable mind would accept it as

adequate to reach the given conclusion.” St. Luke’s Hosp. v. Gray, 604 N.W.2d

646, 649 (Iowa 2000). We will only reverse the commissioner’s application of law
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to the facts if it was irrational, illogical, or wholly unjustifiable. Larson Mfg. Co. v.

Thorson, 763 N.W.2d 842, 850 (Iowa 2009).

III. Discussion

Regional Care contends the commissioner wrongly found Marrs is

permanently and totally disabled. The focus of an inquiry into disability is not the

injury itself, but the reduction in Marrs’s earning capacity and ability to be

employed. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 192 (Iowa

1980). Considerations include the claimant’s “age, education, qualifications,

experience and his inability, because the injury, to engage in employment for which

he is fitted.” Id. While functional disability is relevant, it is not dispositive. Id.

The commissioner determined that Marrs suffered an injury to her spine that

limits her ability to perform basic tasks. That finding is supported by substantial

evidence. The FCE report, while generally placing Marrs into the “light work”

category, included restrictions on her time spent sitting and standing. The report

limited those activities to one to five percent of an eight-hour day, or about five to

twenty-five minutes a day. The FCE was adopted by all of the physicians who

opined on what work restrictions would be appropriate. And it tracks Marrs’s own

testimony—which the deputy found credible—that indicated she spends about

ninety percent of her day laying down or in a traction machine. Thus, substantial

evidence supports the commissioner’s determination of the scope of Marrs’s injury.

The commissioner’s application of the law to those facts was not illogical or

irrational for largely the same reasons. The FCE—and by extension, the

physicians who adopted its findings—concluded Marrs could spend almost no time

sitting or standing. As the commissioner reasonably found, “it is unclear how
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claimant could perform any of those jobs [identified in the vocational report] (or any

job, for that matter) while having to lay down for the vast majority of the day.” It

was not irrational or illogical to take the findings of several physicians and the FCE

and conclude Marrs would not be able to find employment.

Regional Care raises several points to challenge that finding. First, they

contend the unrebutted vocational report included jobs in which Marrs could be

employed. As part of this argument, they also suggest Marrs could not rebut the

vocational report on her own. Instead, Regional Care contends, she needed

expert testimony.

We disagree. First, lay testimony is relevant when determining the extent

of the claimant’s injuries. See Sherman v. Pella Corp., 576 N.W.2d 312, 322 (Iowa

1998). Thus, Marrs’s testimony about her physical abilities was properly relevant

to the commissioner’s determination. Second, “the commissioner, as fact finder,

is responsible for determining the weight to be given expert testimony.” Cedar

Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 850 (Iowa 2011). Here, the

commissioner determined the vocational report was rebutted by the facts in the

FCE, namely Marrs’s inability to sit or stand. We, “in our appellate capacity, ‘are

not at liberty to accept contradictory opinions of other experts in order to reject the

finding of the commissioner.’” Id. (citation omitted). The commissioner reasonably

credited the restrictions in the FCE over the vocational report job options. As

explained above, every physician who examined the report indicated it placed

reasonable restrictions on Marrs. The commissioner was not irrational or illogical

in crediting the FCE over the vocational report.
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Finally, Regional Care highlights that Marrs never attempted to search for

jobs that may accommodate her disability. It is true that an award of permanent

and total disability generally requires the claimant to conduct a good faith job

search. Rathbun Reg’l Water Ass’n, Inc. v. Hardin, No. 01-1928, 2002 WL

31312149, at *2 (Iowa Ct. App. Oct. 16, 2002). However, a job search is not

necessary if there is substantial evidence the search would be futile. Id. Here,

Marrs credibly testified that she declined to search for a job because she believed

she would not find any due to her need to stay laying down for ninety percent of

the day. Her position is supported by the findings of the FCE. The lack of job

search is not fatal to her claim of permanent disability.

AFFIRMED.