Brian Barry v. John Deere Dubuque Works of Deere & Company

IN THE COURT OF APPEALS OF IOWA

No. 22-1000
Filed May 24, 2023

BRIAN BARRY,
Plaintiff-Appellant,

vs.

JOHN DEERE DUBUQUE WORKS OF DEERE & COMPANY,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather L. Lauber,

Judge.

Brian Barry appeals from judicial review affirming the denial of his review-

reopening petition before the Iowa Workers’ Compensation Commissioner.

AFFIRMED.

Thomas M. Wertz and Mindi M. Vervaecke of Wertz Law Firm, Cedar

Rapids, for appellant.

Dirk J. Hamel of Gilloon, Wright & Hamel, P.C., Dubuque, for appellee.

Considered by Bower, C.J., and Badding and Buller, JJ.
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BULLER, Judge.

Brian Barry appeals from a judicial-review proceeding affirming denial of a

review-reopening petition before the Iowa Workers’ Compensation Commissioner.

After reviewing the legal questions presented and affording appropriate deference

to the commissioner’s factual findings, we affirm.

I. Background Facts and Proceedings

This appeal relates to Barry’s attempt to reopen an award from a 2017

arbitration decision. During the arbitration hearing, Barry testified he developed

carpal tunnel syndrome while working for John Deere Dubuque Works of Deere &

Co., leading to surgery and ongoing difficulty with “gripping, grasping, pushing,

[and] pulling.” In the arbitration decision, a deputy workers’ compensation

commissioner found Barry sustained a work-related injury resulting in bilateral

injuries to both arms and causing permanent partial disability of 11% to the body

as a whole. The deputy relied on the report and disability rating of Dr. Robin

Sassman, who opined: “At first glance, this number appears high; however, given

that [Barry] still has significant residual symptoms even after surgery, and it has

impacted both of his upper extremities, this appears reasonable.”

In 2018, Barry saw multiple physicians who documented his symptoms and

recommended he continue to work without restrictions. Barry first reported he was

able to do his job without restrictions but with pain. Toward the middle of 2018,

Barry reported less pain but now had a work restriction. Barry reported the primary

pain during this time was in his shoulders, which caused him to wake up five times

per night. By September 2018, Barry changed jobs within his employer and

reported improvement in the use of his hands with an increased range of motion.
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But one month later, Barry reported to a different physician that he had tingling in

his hands, and an MRI showed problems with his shoulders. Barry was cleared to

return to work without additional restrictions.

From December 2018 to February 2020, Barry began to see a nurse

practitioner for the shoulder pain. During this time, Barry reported tingling in his

hands and fingers, along with the shoulder issues. By March 2020, Barry reported

to another physician that his wrists “do ok” if he follows his restrictions but they

swell up if he does too much.

In 2019, Barry filed a review-reopening petition alleging his bilateral carpal

tunnel had worsened since the original award. In October 2020, Barry saw

Dr. Stanley Mathew for an independent medical evaluation. Dr. Mathew noted

Barry “rates his discomfort at about a 6/10 most significantly in his shoulders,

wrists, forearms, and hands.” Dr. Mathew diagnosed Barry with “[b]ilateral carpal

tunnel syndrome,” “[s]tatus post bilateral carpal tunnel decompression surgery,”

“[b]ilateral forearm tendinitis,” “[b]ilateral multidigit trigger finger,” “[b]ilateral rotator

cuff tendonitis,” “[b]ilateral upper extremity weakness,” and “[c]hronic pain in

[b]ilateral upper extremities.” Dr. Mathew noted that “Barry continues to have

worsening forearm pain, stiffness, weakness, numbness, and tingling that have

progressively gotten worse” since the 2017 arbitration decision. Using Table 16-18

of the American Medical Association’s Guides to the Evaluation of Permanent

Impairment (5th Ed.) [hereinafter, “AMA Guides”], Dr. Mathew rated Barry’s

permanent impairment at “a 10% upper extremity rating to each of his elbows, a

15% upper extremity impairment to his wrists, and a 15% impairment rating as a

result of loss of function of his finger joints.” Of these impairments, Dr. Mathew
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opined that Barry’s shoulder complaints were new and separate from the wrist,

hand, finger, and forearm diagnoses. Dr. Mathew also reported that Barry’s

“chronic pain and weakness” were not adequately considered by the AMA Guides,

and he added further permanent restrictions.

A contested review-reopening hearing was held, during which Barry

testified he was living in Florida and not working due the COVID-19 pandemic; he

had neither formally retired nor made definite plans to return to work. Another

deputy workers’ compensation commissioner denied the petition, finding that Barry

had not met his burden to prove a change in the condition of his work-related injury.

The deputy commissioner specifically found the report of Barry’s expert, Dr.

Mathew, not credible in part because it was based on “incorrect” sections of the

AMA Guides.

Barry appealed the deputy’s decision to the Workers’ Compensation

Commissioner, who affirmed and adopted the deputy’s decision in its entirety.

Barry then petitioned for judicial review, and the district court affirmed. Barry

appealed to the supreme court, which transferred the case to our court.

II. Standard of Review

This appeal comes before us under Iowa Code chapter 17A, the Iowa

Administrative Procedure Act. See Iowa Code § 86.26 (2019). Under chapter

17A, we may only interfere with an agency decision if it is erroneous under one of

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

prejudiced. Id. § 17A.19(10). For example, we must reverse if the agency’s

decision was “unreasonable, arbitrary, capricious, or an abuse of discretion.” Id.

§ 17A.19(10)(n).
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To the extent that our review turns on interpretation of the workers’

compensation statute, interpretation has not been vested with the agency and we

do not defer to the agency’s legal conclusions. See id. § 17A.19(10)(c), (11)(b);

Ramirez-Trujillo v. Quality Egg, L.L.C., 878 N.W.2d 759, 769 (Iowa 2016).

Our review of the facts is limited to review for substantial evidence. See

Iowa Code § 17A.19(10)(f); Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006).

“Substantial evidence” is “the quantity and quality of evidence that would be

deemed sufficient by a neutral, detached, and reasonable person, to establish the

fact at issue when the consequences resulting from the establishment of that fact

are understood to be serious and of great importance.” Iowa Code

§ 17A.19(10)(f)(3).

III. Discussion

Barry filed a review-reopening petition under Iowa Code section 86.14,

which authorizes the commissioner “to ‘reopen an award for payments or

agreement for settlement . . . [to inquire] into whether or not the condition of the

employee warrants an end to, diminishment of, or increase of compensation so

awarded or agreed upon.’” Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 391 (Iowa

2009) (alterations in original) (quoting Iowa Code § 86.14(2)). When a claimant

seeks an increase in benefits, the claimant must establish “by a preponderance of

the evidence that, subsequent to the date of the award under review, he or she

has suffered an impairment or lessening of earning capacity proximately caused

by the original injury.” E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa

1994).
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Barry challenges the commissioner’s rejection of his expert’s opinion as an

abuse of discretion. He also challenges whether sufficient evidence supports the

commissioner’s decision. We affirm.

A. Weight Assigned to Barry’s Expert

Barry’s first contention is that the commissioner abused his discretion in

rejecting Dr. Mathew’s medical opinion, which Barry calls “the only expert medical

opinion in the record.” Barry’s characterization of the record is not quite correct,

as the evidence in the review-reopening proceeding included extensive medical

records as well as the opinions of Barry’s own expert in the original proceeding

and other treating providers. But even if Dr. Mathew were the only expert before

the agency, “[e]xpert opinion testimony, even if uncontroverted, may be accepted

or rejected in whole or in part by the trier of fact.” Sanchez v. Blue Bird Midwest,

554 N.W.2d 283, 285 (Iowa Ct. App. 1996).

Looking at Barry’s claim more broadly, we affirm the district court’s judicial-

review ruling, as “credibility determinations in workers’ compensation claims are

within the domain of the commissioner as trier of fact.” Cedar Rapids Cmty. Sch.

Dist. v. Pease, 807 N.W.2d 839, 847 (Iowa 2011). In finding Dr. Mathew’s report

not “persuasive,” the commissioner found that Dr. Mathew’s opinion lacked support

based on objective evidence, that Barry’s descriptions of his injuries at both the

original and review-reopening hearings were quite similar, that Barry “sought little

treatment” for injuries that he claimed were worsening (particularly when

contrasted with the prompt medical attention he sought for his shoulders), and that

Dr. Mathew misapplied the AMA Guides. All of these considerations are proper
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for a fact-finder to consider when determining what weight to assign evidence. See

id. We find no abuse of discretion in rejecting Dr. Mathew’s expert opinion.

B. Agency Consideration of the AMA Guides

Next, Barry challenges the commissioner’s reference to the AMA Guides

when weighing his expert’s credibility. Iowa Code section 85.34(2)(x) provides:

In all cases of permanent partial disability described in
paragraphs “a” through “u”, or paragraph “v” when determining
functional disability and not loss of earning capacity, the extent of
loss or percentage of permanent impairment shall be determined
solely by utilizing the [AMA Guides], as adopted by the workers’
compensation commissioner by rule pursuant to chapter 17A. Lay
testimony or agency expertise shall not be utilized in determining loss
or percentage of permanent impairment pursuant to paragraphs “a”
through “u”, or paragraph “v” when determining functional disability
and not loss of earning capacity.

Barry contends this language prohibits the commissioner from finding Dr. Mathew

misapplied the AMA Guides when weighing credibility and that the commissioner

abused his discretion by using the AMA Guides. We disagree.

We observe that the commissioner’s finding that Dr. Mathew applied “an

incorrect section of the [AMA] Guides” was made in the context of Dr. Sassman’s

conflicting application of the AMA Guides. Dr. Sassman provided a detailed

explanation for how he used the AMA Guides to calculate that Barry’s carpal tunnel

syndrome resulted in 11% whole person impairment, using the section that

specifically discusses carpal tunnel syndrome and tracing the impairment ratings

from Table 16-15 to Table 16-10. By contrast, Dr. Mathew opined as to upper

extremity impairment ratings of 10% for each elbow, 15% for each wrist, and 15%

for finger joints—all with little explanation beyond noting he relied on Table 16-18

located in Section 16.7 of the AMA Guides. Even Barry’s appellate brief provides
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little in the way of explanation. Overall, we find hardly any support for Dr. Mathew’s

reliance on Section 16.7, as the section itself indicates it should only be used for

hand and upper extremity “[c]onditions not previously described” in the AMA

Guides. Faced with this irreconcilable difference in how the experts applied the

AMA Guides, the commissioner was authorized to evaluate the experts’ competing

rating methods and conclude that Dr. Mathew “based his rating off an incorrect

section of the [AMA] Guides” when weighing witness credibility. See Pease, 807

N.W.2d at 847.

Contrary to Barry’s claim, the commissioner weighed expert credibility

without running afoul of the statutory prohibition on determining “the extent of loss

or percentage of permanent impairment.” See Iowa Code § 85.34(2)(x). The

commissioner did not abuse his discretion.

C. Sufficiency of the Evidence

Barry’s final challenge is to the commissioner’s conclusion that he did not

carry his burden to prove a change in his condition. We find the commissioner’s

decision was supported by substantial evidence. At the time of the initial award,

Dr. Sassman opined that Barry’s 11% permanent impairment rating appeared

“high” but was “reasonable” since Barry “has significant residual symptoms even

after surgery” that have “impacted both of his upper extremities.” In the review-

reopening proceeding, the commissioner correctly summarized the evidence,

noting the lack of objective support for Barry’s claim, that the subjective evidence

appeared to describe the same or very similar limitations as the original hearing,

and that much of the additional treatment sought by Barry related to his shoulders

rather than the original carpal tunnel injury. The commissioner also properly
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exercised his discretion in rejecting Dr. Mathew’s testimony for the reasons set

forth earlier in this opinion. Last, while Barry presented evidence about his new

shoulder injury, new injuries cannot increase the original impairment rating and are

correctly pursued in a separate proceeding. See id. § 86.14(2); Blacksmith v. All-

Am., Inc., 290 N.W.2d 348, 352 (Iowa 1980).

IV. Disposition.

The commissioner did not abuse his discretion in rejecting the opinion of

Barry’s expert or in evaluating the expert’s use of the AMA Guides when weighing

credibility. Substantial evidence supports the commissioner’s conclusion that

Barry failed to carry his burden to prove his current condition warranted reopening

his earlier disability award.

AFFIRMED.