Angela Harper v. Lensing, LTD, d/b/a Lensing Funeral Home and United Fire & Casualty Company

IN THE COURT OF APPEALS OF IOWA

No. 17-1615
Filed July 18, 2018

ANGELA HARPER,
Plaintiff-Appellant,

vs.

LENSING, LTD, d/b/a LENSING FUNERAL HOME and UNITED FIRE &
CASUALTY COMPANY,
Defendants-Appellees.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.

Angela Harper appeals a district court ruling on her petition for judicial

review of a determination of the workers’ compensation commissioner.

AFFIRMED.

Matthew D. Dake of Wertz, Dake & Anderson, P.C. Cedar Rapids, for

appellant.

Cory D. Abbas of Patterson Law Firm L.L.P., Des Moines, for appellees.

Considered by Vaitheswaran, P.J., Tabor, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2

SCOTT, Senior Judge.

Angela Harper appeals a district court ruling on her petition for judicial

review of a determination of the workers’ compensation commissioner. She

contends the district court erred in failing to remand the case to the commissioner

to provide a “logical pathway” outlining the commissioner’s industrial-disability

determination.1

1
This is the only contention for which Harper provides this court with an adequate
argument pursuant to Iowa Rule of Appellate Procedure 6.903(2)(g). Harper additionally
argues: (1) the court erred in failing to remand the case to require the commissioner to
address whether Harper, after her injury, returned to full-time employment or whether she
returned to accommodated employment; (2) the failure to remand will deprive her of a
meaningful review-reopening proceeding, which in turn violates her right to due process
of law; (3) the court erred in affirming the commissioner’s decision to not award certain
medical expenses; (4) the court erred in affirming the commissioner’s denial of healing-
period benefits flowing from a subsequent injury and the commissioner’s denial of penalty
benefits as a result of the alleged wrongful denial of the same.
In support of these contentions, Harper provides her version of the underlying facts
and conclusory statements in support of her allegations of error. On each of these issues,
however, Harper provides us with very few, and on some issues no, citations to legal
authorities to support her position on appeal. Of the citations to legal authority that are
actually provided, they are only referenced in passing, without any analysis of such legal
authority or how it applies to this case or is otherwise on point. To reach the merits of
these issues “would require us to assume a partisan role and undertake the appellant’s
research and advocacy. This role is one we refuse to assume.” Ingraham v. Dairyland
Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974). We therefore deem the arguments
waived. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an
issue may be deemed waiver of that issue.”); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa
1996) (“[W]e will not speculate on the arguments [a party] might have made and then
search for legal authority and comb the record for facts to support such arguments.”);
Ingraham, 215 N.W.2d at 240; see also City of Marquette v. Gaede, 672 N.W.2d 829, 835
(Iowa 2003); McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 184 (Iowa 1980); cf.
Hanson v. Harveys Casino Hotel, 652 N.W.2d 841, 843–44 (Iowa Ct. App. 2002).
Although Harper does provide some authority to support the second component of her
final argument, because we do not consider the first component of that argument, whether
the denial of healing-period benefits was appropriate, neither do we consider the second
component, whether penalty benefits would have been appropriate. In any event,
although Harper largely veils the aforementioned arguments as substantial-evidence
challenges, the substance of the arguments reveals they really flow from Harper’s
disagreement with the agency’s weighing of the evidence. We are not entitled to reweigh
the evidence in a substantial-evidence review. See Arndt v. City of Le Claire, 728 N.W.2d
389, 394–95 (Iowa 2007). We also do not consider any arguments raised for the first time
in Harper’s reply brief. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
3

I. Background Facts and Proceedings

Harper was employed by Lensing Funeral Home (Lensing) as a funeral

home director. She was involved in a motor-vehicle collision on March 23, 2012,

while working in the course of her employment with Lensing. Harper was

subsequently diagnosed with various conditions by a number of medical

professionals.2 She returned to work in June, part time, generally working four to

six hours per day. Harper returned to working full, eight-hour days in October. As

a result of one of the medications Harper was taking at this time, she was unable

to work the on-call night shift. Although Harper’s general duties at Lensing were

modified, she worked forty or more hours per week.

Harper continued to work for Lensing on a full-time basis until September

2013, when she suffered a fall while carrying laundry down the stairs in her home.

After this fall, Harper did not return to work until October 6, upon which she was

placed on light duty. Her restrictions were lifted on November 18. In early 2014,

Harper was hospitalized for pneumonia, which was unrelated to the original work

injury, and missed more work. Specifically, between late January and early March,

Harper missed twenty-four of twenty-seven work days. After recovering, Harper

requested reduced hours upon her return to work. Lensing ultimately decided to

terminate Harper’s employment, citing the fact that Harper had exhausted all of

her leave and Lensing’s desire to have a full-time employee in her position.

2
At the arbitration hearing, Harper generally testified her symptoms included depression,
anxiety, headaches, dizziness, vertigo, vision issues, balance issues, photophobia, and
issues with her ability to process information. However, Harper, prior to the March 2012
motor-vehicle collision, received treatment for anxiety, fatigue, depression, dizziness, and
headaches.
4

In March 2014, Harper filed a petition with the workers’ compensation

commissioner alleging she was owed additional benefits. The parties

subsequently stipulated the March 2012 injury was a cause of a permanent partial

industrial disability, but did not agree as to the amount of benefits Harper was

entitled to as a result thereof. Prior to hearing, Lensing voluntarily paid Harper

roughly seventeen weeks of permanent-disability benefits.3 Lensing disputed

Harper’s entitlement to any benefits beyond that already voluntarily paid, arguing

Harper’s industrial disability was minimal.

Following an arbitration hearing, the deputy commissioner noted Harper’s

impairment to the body as a whole amounted to an industrial disability, but

concluded Harper was not entitled to any additional permanent-disability benefits

beyond what Lensing previously paid. Harper appealed this ruling to the

commissioner, who affirmed “the deputy commissioner’s finding that [Harper] is

not entitled to any additional permanent disability benefits beyond what was

voluntarily paid by [Lensing] prior to the arbitration hearing.” In his ruling, the

commissioner noted his agreement with the deputy commissioner that the

causation opinions of two experts, Dr. Robert Jones and Dr. Robert Broghammer

were entitled to greater weight than the causation opinions of other medical

providers who determined the March 2012 injury caused a more substantial

permanent disability. Harper moved for a rehearing, requesting, among other

3
In the hearing report, the parties stipulated the applicable rate of compensation based
on Harper’s circumstances was $529.10 per week. The parties additionally stipulated that
Lensing, prior to the hearing, paid Harper fifteen weeks of benefits at this rate. The
evidence presented, however, shows that in early September 2014, Lensing voluntarily
paid Harper $9020.13 in permanent-disability benefits. Applying the stipulated rate of
compensation, this would amount to just under 17.05 weeks of benefits which, in turn,
amounts to a 3.4% industrial disability. See Iowa Code § 85.34(2)(u) (2014).
5

things, a more thorough evaluation of the industrial-disability determination in light

of the parties’ stipulation Harper sustained a permanent disability. In his rehearing

decision, the commissioner clarified that the stipulation that Harper suffered a

permanent disability was accepted, but noted Harper’s “industrial disability, or loss

of earning capacity, did not exceed permanent partial disability benefits already

paid.” The commissioner also repeated his reliance on the medical opinions of Dr.

Jones and Dr. Broghammer.

Harper filed a petition for judicial review. Following a hearing, the district

court affirmed the decision of the commissioner and denied Harper’s petition,

concluding “the agency’s decision is sufficient as it is possible to deduce the

agency’s legal conclusions and findings that [Harper] suffered minimal industrial

disability and was not entitled to benefits in addition to those already paid.” The

court denied Harper’s subsequent motion to enlarge or amend, and this appeal

followed.

II. Standard of Review

“Judicial review of agency decisions is governed by Iowa Code section

17A.19.” Brakke v. Iowa Dep’t of Nat. Res., 897 N.W.2d 522, 530 (Iowa 2017)

(quoting Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 216, 222 (Iowa

2014)); accord Warren Props. v. Stewart, 864 N.W.2d 307, 311 (Iowa 2015). The

district court acts in an appellate capacity in judicial-review proceedings. Iowa

Med. Soc’y v. Iowa Bd. of Nursing, 831 N.W.2d 826, 838 (Iowa 2013) (quoting City

of Sioux City v. GME, Ltd., 584 N.W.2d 322, 324 (Iowa 1998)). On appeal, this

court “appl[ies] the standards of section 17A.19(10) to determine if we reach the

same results as the district court.” Brakke, 897 N.W.2d at 530 (quoting Renda v.
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Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10 (Iowa 2010)); accord Des Moines

Area Transit Auth. v. Young, 867 N.W.2d 839, 842 (Iowa 2015). Relief in a judicial-

review proceeding is appropriate only “if the agency action prejudiced the

substantial rights of the petitioner and if the agency action falls within one of the

criteria listed in section 17A.19(10)(a) though (n).” Brakke, 897 N.W.2d at 530.

“Our review of a decision of the workers’ compensation commissioner

varies depending on the type of error allegedly committed by the commissioner.”

Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010). Where, as

here, the alleged “error is one of fact, we must determine if the commissioner’s

findings are supported by substantial evidence.” Id.; see Iowa Code

§ 17A.19(10)(f). This court is not entitled to reweigh the evidence in a substantial-

evidence review—we only determine whether substantial evidence supports the

agency finding. Arndt, 728 N.W.2d at 394–95. “Evidence is substantial when a

reasonable person could accept it as adequate to reach the same findings.”

Bearinger v. Iowa Dep’t of Transp., 844 N.W.2d 104, 106 (2014) (quoting Ludtke

v. Iowa Dep’t of Transp., 646 N.W.2d 62, 65 (Iowa 2002)). “If the agency’s findings

are supported by substantial evidence, those findings are binding upon us.” Fed.

Express Corp. v. Mason City Human Rights Comm’n, 852 N.W.2d 509, 510–11

(Iowa Ct. App. 2014).

III. Analysis

Harper contends the agency improperly failed to provide a “logical pathway”

outlining its industrial-disability determination and the district court improperly

failed to remand the case to the agency to correct the same. Specifically, Harper
7

complains the agency pulled its industrial-disability finding “out of thin air, with no

explanation.”

The commissioner has a duty to state the evidence relied upon and to detail

the reasons for the conclusions reached. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621,

633 (Iowa 2000). Additionally, the commissioner “must sufficiently detail [his or]

her decision to show the path [he or] she has taken through conflicting evidence.”

Id. at 633–34. These requirements are “satisfied if the reviewing court is able to

determine with reasonable certainty the factual basis on which the administrative

officer acted.” Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 2000).

The agency “decision is sufficient if ‘“it is possible to work backward [from the

agency’s written decision] and to deduce what must have been [the agency’s] legal

conclusions and [its] findings.”’” Al-Gharib, 604 N.W.2d at 634 (alterations in

original) (quoting Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 909 (Iowa

1987)). “To do so is to recognize our duty to broadly and liberally apply the

commissioner’s findings to uphold rather than defeat the commissioner’s decision.”

Id. The commissioner is not required to set out verbatim all the testimony or

evidence in its ruling, and a losing party cannot successfully urge the

commissioner did not consider all the evidence just because the commissioner

specifically refers to only some of the evidence. Myers, 592 N.W.2d at 356. “It is

permissible for the reviewing court to determine the commissioner ‘could have’ or

‘might have’ considered certain pieces of supporting evidence.” Id. at 357. “The

commissioner, as the fact finder, determines the weight to be given to any expert

testimony,” and “[s]uch weight depends on the accuracy of the facts relied upon by

the expert and other surrounding circumstances.” Sherman v. Pella Corp., 576
8

N.W.2d 312, 321 (Iowa 1998). “The commissioner may accept or reject the expert

opinion in whole or in part.” Id.

In his appeal and rehearing rulings, the commissioner specifically noted his

reliance on the expert opinions of Dr. Jones and Dr. Broghammer in reaching his

ultimate determination that Harper’s industrial disability was minimal, and Harper

was therefore not entitled to permanent partial disability benefits beyond those

already paid by Lensing. Likewise, the deputy commissioner detailed his

reasoning for rejecting the other medical opinions Harper believes should control.

Both doctors’ reports detail why each believed Harper’s industrial disability

was minimal or non-existent and are substantial evidence in support of the

commissioner’s ultimate conclusion that Harper’s industrial disability flowing from

the March 2012 collision was minimal. See Ludtke, 646 N.W.2d at 65 (“Evidence

is substantial when a reasonable person could accept it as adequate to reach the

same findings. Conversely, evidence is not insubstantial merely because it would

have supported contrary inferences, or because two inconsistent conclusions

could be drawn from it.”); see also Arndt, 728 N.W.2d at 395 (“The reviewing court

only determines whether substantial evidence supports a finding ‘according to

those witnesses whom the [commissioner] believed.’” (alteration in original)

(quoting Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa

1996))). Because we are “able to determine with reasonable certainty the factual

basis on which the [commissioner] acted,” Myers, 592 N.W.2d at 356, we conclude

the commissioner sufficiently showed the path he took through the conflicting

evidence. See Al-Gharib, 604 N.W.2d at 633. “Although a fact finder might have

reached a different and inconsistent conclusion from this record, our rules mandate
9

we are nevertheless bound by the conclusion the commissioner reached.” Id. at

635. Finally, although the commissioner’s industrial-disability determination was

not as precise as Harper desires, we note the “commissioner is not required to fix

disability with precise accuracy.” Myers, 592 N.W.2d at 357. The commissioner’s

determination that Harper was not entitled to any additional industrial-disability

benefits beyond what Lensing already paid was sufficient. Having considered the

only issue properly presented, we find no error in the district court’s decision not

to remand to the agency and affirm the district court’s denial of Harper’s judicial-

review petition.

AFFIRMED.