                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1391
                            Filed October 29, 2014

WEST DES MOINES COMMUNITY
SCHOOLS,
    Plaintiff-Appellant,

vs.

JOHN FRY,
     Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      An employer challenges an award by the Workers’ Compensation

Commissioner paying permanent partial disability benefits, healing period

benefits, alternative medical care, and expenses. AFFIRMED.



      Charles E. Cutler and Amanda R. Rutherford of Cutler Law Firm, P.C.,

West Des Moines, for appellant.

      Jean Mauss of Schott, Mauss & Associates, P.C., Des Moines, for

appellee.



      Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
                                           2



TABOR, J.

       The employer, West Des Moines Community Schools, challenges the

award of workers’ compensation benefits to school custodian John Fry. The

commissioner determined Fry lost twenty-five percent of his earning capacity due

to a cumulative injury to his left sacroiliac (SI) joint, manifested in October 2008.

The commissioner awarded permanent, partial disability benefits; healing period

benefits; alternate medical care; and expenses related to the workplace injury.

West Des Moines Schools contend the agency’s determination was not

supported by substantial evidence and its application of the cumulative injury

doctrine to the facts of this case was irrational, illogical and wholly unjustifiable.

       Like the district court on judicial review, we find substantial evidence in the

record to uphold the commissioner’s decision concerning Fry’s work-related

injury and industrial disability. We also agree with the court’s conclusion that the

commissioner’s reliance on cumulative injury was rational, logical, and justifiable.

Accordingly, we affirm.

I.     Background Facts and Proceedings

       Fry started working as a custodian for the West Des Moines Schools in

March 2001 and was eventually promoted to head custodian at Valley

Southwoods Freshman High School. His work entailed considerable physical

activity. A written job description listed the following requirements:

            Repetitious hand movement, gripping, bending, lifting,
        stooping, squatting, and kneeling
            Periodically climb stairs and ladders, and work overhead
            Frequently lifting and carrying 50 pounds.
            Periodic maneuvering, pushing and pulling of over 100
        pounds
                                        3



            Constant standing, moving and walking eight or more hours
        per day.

      Fry, who has a high school education, previously worked as a crew chief

for a carpet cleaning and upholstery business and as a production worker and

inspector for Titan Tire. While at Titan Tire, Fry suffered a serious neck injury

requiring surgery. He did not work from 1995 through 2000. Fry also sustained

injuries to his neck, back, and knees in a 2003 car accident.

      Important to this appeal are two injuries incurred by Fry on two different

dates while he was on the job at Valley Southwoods. On January 15, 2007, Fry

was walking down an icy ramp leading to the back dock and lost his footing,

landing on the left side of his body. The fall left an abrasion on his left hip and

caused lasting pain in his collarbone and left shoulder area. West Des Moines

Schools placed him on light duty for a week after the fall. On October 6, 2008,

Fry was maneuvering a heavy vacuum sweeper in the media center when he felt

a “pop” and experienced stinging pain on the “left side of [his] spine, that hip

area, that SI joint.” He recalled: “I just had excruciating pain and that numb,

tingling burn sensation, the way it feels to hit your funny bone. Started up and

back down the leg.” West Des Moines Schools reassigned Fry to various light

duties until May 2009.

      On December 29, 2009, Fry filed petitions for workers’ compensation for

both injuries. The employer answered and raised a statute of limitations defense.

Before the agency hearing, Fry dismissed the petition related to the January

2007 injury. The remaining petition alleged the October 2008 injury was both

traumatic and cumulative.
                                          4



       Fry was fifty-one years old when his claims came before the deputy

worker’s compensation commissioner for hearing in July 2011.             The deputy

concluded Fry failed to carry his burden to prove the October 2008 injury resulted

in permanent or temporary disability. The arbitration decision was critical of the

opinion of Dr. Jacqueline Stoken, who performed an independent medical exam

(IME) on Fry, finding she “lumps together” both the January 2007 and October

2008 injuries to find permanent impairment.

       Fry appealed and the commissioner1 reversed the arbitration decision,

relying on the opinion of Fry’s long-time treating physician Dr. Scott Honsey, as

well as the IME by Dr. Stoken.       The commissioner highlighted Dr. Honsey’s

“unique vantage point of having treated claimant’s back since 2001” and gave

weight to Dr. Honsey’s view that Fry’s pain was in the left SI joint and worsened

after the October 2008 injury.

       The commissioner then wrote: “Combining this view with the view of Dr.

Stoken that claimant’s sacroiliac injury is cumulative, placed in context both the

2007 injury and the last significant exacerbation on October 6, 2008.”           The

commissioner found “the cumulative work injury beginning in January 2007 and

manifested on October 6, 2008, is a cause of the permanent impairment and

activity restrictions delineated by Dr. Stoken.”      The commissioner held the

October 2008 injury resulted in a twenty-five percent loss of earning capacity and

Fry was entitled to temporary or healing period benefits, permanent partial



1
  Deputy Workers’ Compensation Commissioner Larry Walshire rendered the final
agency decision upon delegation of authority by the commissioner. We will refer to his
ruling as the commissioner’s decision throughout our opinion.
                                          5



disability benefits, alternate medical care, and expenses. On judicial review, the

district court affirmed the commissioner’s decision. The employer now appeals.

II.    Scope and Standards of Review

       In judicial review proceedings, the district court acts in an appellate

capacity, reviewing the commissioner’s decision to correct legal error.         Mike

Brooks, Inc. v. House, 843 N.W.2d 885, 888 (Iowa 2014). On appeal, we apply

the standards of Iowa Code chapter 17A (2013) to decide if we reach the same

conclusion as the district court did. Id. at 889.

       Whether the commissioner misapplied the cumulative injury doctrine to

Fry’s situation depends on the application of law to facts; we will not disturb that

decision unless it is “irrational, illogical, or wholly unjustifiable.”   See Neal v.

Annett Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012); see also Iowa Code

§ 17A.19(10)(m).

       Whether Fry suffered a cumulative injury to his left SI joint, manifesting on

October 6, 2008, and resulting in permanent impairment is a question of fact.

The legislature vested the commissioner with discretion to decide fact questions.

Schutjer v. Algona Manor Care Center, 780 N.W.2d 549, 558 (Iowa 2010). We

defer to the commissioner’s factual determinations if they are supported by

substantial evidence in the record when that record is viewed as a whole. Id.

“Substantial evidence” is defined as “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
                                          6



establishment of that fact are understood to be serious and of great importance.”

Iowa Code § 17A.19(10)(f)(1).

         When analyzing worker’s compensation appeals, we recognize the law

“should be, within reason, liberally construed” to benefit working men and

women. See Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 96 (Iowa

2004).

III.     Analysis of Employer’s Claims

         A.     Error Preservation

         As its first assignment of error, the employer claims the commissioner

abused his discretion by “combining separate and unrelated portions of several

expert opinions to find [Fry] suffered a cumulative injury to his left sacroiliac (SI)

joint that manifested on October 6, 2008.” Specifically, the employer accuses the

commissioner of “selectively culling of parts of expert opinions” from Dr. Honsey

and Dr. Stoken and thereby “distorting these opinions almost beyond

recognition.”    According to the employer, the commissioner combined Dr.

Honsey’s opinion that Fry suffered a traumatic injury to his SI joint on January 15,

2007, with Dr. Stoken’s view that Fry’s hip condition related to the cumulative

strain of his job duties of repetitive bending, twisting, and lifting, and Dr. Stoken’s

impairment rating for both the January 2007 and the October 2008 injury dates.

         Fry argues the employer did not preserve this claim in the manner it is

framed on appeal. He contends the employer only alleged substantial evidence

under section 17A.19(10)(f) on judicial review, but here is alleging an error of law

under section 17A.19(10)(c) (erroneous interpretation of law). In reply, West Des
                                        7



Moines Schools acknowledges wording the issue differently at the district court

level, but claims the district court recognized it was alleging an abuse of

discretion under section 17A.19(10)(n).     West Des Moines Schools does not

point to any part of the judicial review order which addresses its appellate claim

that the commissioner lacked the discretion to “combine distinct and unrelated

sections from expert opinions.”

      Our preservation rules demand an issue be presented to and passed upon

by the district court before it can be raised on appeal. See Metz v. Amoco Oil

Co., 581 N.W.2d 597, 600 (Iowa 1998); see also Hy-Vee Food Stores, Inc. v.

Iowa Civil Rights Comm’n, 453 N.W.2d 512, 527 (Iowa 1990) (issue not raised

before district court in judicial review is not preserved for appellate review).

Accordingly, we will not consider the employer’s objection to the “combining” of

expert opinions as an independent claim, though we recognize the general

complaint about the commissioner’s “distortion” of these expert opinions

underlies the employer’s substantial evidence argument.2

      B.     Application of Cumulative Injury Doctrine

      Disabilities arising from one-time accidents are not the only kind of injuries

covered by our workers’ compensation statute; disabilities gradually developing

over a period of time also subject employers to liability.      McKeever Custom

Cabinets v. Smith, 379 N.W.2d 368, 373 (Iowa 1985). A cumulative injury results

from repetitive physical trauma in the workplace. Id. at 372–74. In other words,

a cumulative injury “develops over time from performing work-related activities


2
  We will address the employer’s substantial evidence argument after discussing the
commissioner’s application of the cumulative injury doctrine.
                                          8



and ultimately produces some degree of industrial disability.”           Ellingson v.

Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa 1999), overruled on other grounds

by Waldinger v. Mettler, 817 N.W.2d 1 (Iowa 2012). The “cumulative injury rule”

means an employee whose work activities collectively cause him to suffer a

debilitating condition may receive compensation when the employee becomes

aware of the injury. Excel Corp. v. Smithart, 654 N.W.2d 891, 896–97 (Iowa

2002).

         West Des Moines Schools argues on appeal that the agency and the

district court both incorrectly applied the cumulative injury doctrine to the facts of

this case. The employer asserts the record contains “no evidence” Fry suffered a

cumulative injury to his left SI joint—the only condition that received a permanent

impairment rating. Rather, the employer contends Fry’s condition was the result

of a traumatic injury that occurred on January 15, 2007.

         Fry responds in two ways. First, he echoes the analysis of the district

court, that reading the commissioner’s decision as a whole, it is apparent he

believed the October 2008 incident had a traumatic aspect to it. Second, Fry

argues the commissioner’s finding that the October 2008 injury is compensable

under the cumulative error doctrine is supported by the record. Fry reads the

case law as allowing a traumatic injury to “represent the manifestation of a

cumulative injury.”    We find Fry’s second response to be persuasive; given the

broad interpretation our supreme court has given the cumulative injury doctrine.

         In the prototypical cumulative injury case, years of continuous, repetitive

movement takes a physical toll on the worker’s body. See, e.g., Larson Mfg.,
                                          9



Co., Inc. v. Thorson, 763 N.W.2d 842, (Iowa 2009) (chronicling daily tasks of

worker at storm door factory). In such cases, a series of smaller hurts advance

toward manifestation as an employee requires medical treatment and

modification of work activities due to deterioration in function. Id. at 859.

       But the acceptance of gradual injury as the mechanism of harm does not

exclude the idea that acute injuries can contribute to the employee’s

compensable disability under the cumulative injury doctrine. In the first Iowa

case to recognize cumulative injury as a viable theory of recovery under the

workers’ compensation code, our supreme court recognized two acute injuries to

the worker’s wrist as “the beginning of a series of hurts.” McKeever Custom

Cabinets, 379 N.W.2d at 373. Similarly, in Floyd v. Quaker Oats, 646 N.W.2d

105, 108 (Iowa 2002), the court rejected the employer’s argument that

cumulative injury was a “distinct and discrete disability solely attributable to work

activities over time, as opposed to an aggravation of a preexisting injury from an

identified traumatic event.” The court decided when an earlier traumatic injury

had not been compensated because the petition was dismissed in the face of a

statute of limitations defense by the employer, the claimant could recover by way

of a cumulative-injury claim for any functional disability shown to have occurred

as a result of day-to-day activities in the workplace subsequent to the traumatic

injury. Floyd, 646 N.W.2d at 108. The court recognized: “Full compensation is

allowed for the result of workplace activities aggravating a preexisting condition.”

Id. at 110.
                                           10



       Fry’s situation is similar to that in Floyd. The cumulative injury to his left SI

joint began with an acute injury in January 2007 and manifested in another acute

injury in September 2008. Between these bookends, Fry performed rigorous and

repetitive physical work activities as a school custodian.            Both his treating

physician, Dr. Honsey, and Dr. Stoken discussed multiple aggravations

worsening the initial injury to Fry’s SI joint. Under the analysis in Floyd, Fry may

recover by way of a cumulative-injury claim for any functional disability resulting

from his day-to-day activities at the school, subsequent to his fall in January

2007. See id. at 108. Fry anticipated the possibility the commissioner would

view the September 2008 vacuuming incident as a cumulative injury in his

pleading. It is not unusual that the concepts of cumulative and acute injuries

would be intertwined in a work situation like Fry’s.           See, e.g., Waters, 674

N.W.2d at 98–99 (upholding award to long-time hospital custodian on

cumulative-injury theory because employer was not prejudiced when employee’s

pleadings discussed specific dates implying acute injuries).

       The case law does not support the employer’s position that the possible

existence of a compensable injury in January 2007 precluded application of the

cumulative-injury doctrine to subsequent work-related aggravations. West Des

Moines Schools has not shown the commissioner’s application of the cumulative

injury doctrine to Fry’s condition was irrational, illogical, or wholly unjustifiable.

       C.     Substantial Evidence

       West Des Moines Schools contend the opinions of Dr. Honsey and Dr.

Stoken do not support the commissioner’s finding that Fry suffered a cumulative
                                            11



injury to his left SI joint or a permanent aggravation of a preexisting SI joint

condition as a result of the October 6, 2008 vacuuming incident. The employer

acknowledges Dr. Honsey found a significant injury to Fry’s SI joint from the

January 2007 fall, which was aggravated by the October 2008 vacuuming work.

But the employer emphasizes Dr. Honsey did not opine the aggravation was

permanent nor did he provide an impairment rating. The employer further argues

Dr. Honsey never indicated Fry’s injury was cumulative as determined by the

commissioner.

       As for Dr. Stoken, the employer quotes her significant findings:

           “Impression: Status post work injury on 1/15/07 with a fall
          subsequent left hip, shoulder and back contusions and left
          sacroiliac joint dysfunction.”
           “Mr. Fry’s incident of 01/15/2007 and/or 10/6/2008 were a
          substantial causal or substantial aggravating factor in the
          development of medical conditions that I have diagnosed
          above.”[3]
           “The diagnoses identified [above] relates to the January 15,
          2007 injury and the October 6, 2008 injury. There is a
          cumulative component to his condition to his left should and left
          him due to repetitive bending, twisting and lifting.”

The employer then parses her opinions very finely, contending she never stated

Fry suffered cumulative trauma to the SI joint, but rather found his hip and

shoulder complaints were cumulative in nature due to the repetitive bending,

twisting, and lifting nature of his work. The employer also contends Dr. Stoken’s

use of the phrase “and/or” leaves it unclear whether she found the October 2008

incident was a cause of Fry’s SI joint condition.



3
  The employer left out the remainder of this finding: “These are injuries that cause a
severe strain and sprain to the left shoulder, left hip, and low back with a left sacroiliac
joint dysfunction. This trauma has resulted in chronic pain that he exhibits.”
                                          12



         We recognize, as did the district court, that this case features conflicting

expert opinions. Those expert opinions provide the foundation for determining

medical causation and present a question of fact vested in the commissioner’s

discretion. Dunlap v. Action Warehouse, 824 N.W.2d 545, 555 (Iowa Ct. App.

2012).    We will disturb the commissioner’s causation finding only if it is not

supported by substantial evidence. See Iowa Code § 17A.19(10)(f). We view

the record as a whole. Id. As a reviewing court, our job is not to search for a

way to read the expert opinions to defeat the commissioner’s findings.          See

Schutjer, 780 N.W.2d at 558 (noting “[b]ecause the commissioner is charged with

weighing the evidence, we liberally and broadly construe the findings to uphold

his decision”). The ability to draw differing conclusions from the record does not

equate with insubstantial evidence. See Coffey v. Mid Seven Transp. Co., 831

N.W.2d 81, 89 (Iowa 2013).

         The commissioner’s reliance on the views of Dr. Honsey and Dr. Stoken

was reasonable and within his discretion.          Their expert opinions provided

substantial evidence to support the commissioner’s conclusion that Fry suffered

a cumulative injury to his SI joint, starting from his fall in January 2007 and

manifesting itself on October 6, 2008.

         Contrary to the employer’s argument, the commissioner does have

authority to pick and choose which aspects of an expert opinion deserve weight.

See Gifts Mfg. Co. v. Frank, __ N.W.2d __, 2014 WL 5286513, at *2 (Iowa 2014).

Findings of the commissioner are akin to a jury verdict, and we broadly apply

them to uphold the agency decision.         Frye v. Smith-Doyle Contractors, 569
                                          13



N.W.2d 154, 155 (Iowa Ct. App. 1997).            Expert opinion testimony may be

accepted or rejected in whole or in part by the trier of fact. Id. at 156.

       Dr. Honsey identified the SI joint as the “primary pain generator” since the

January 2007 incident and at the time of the litigation. Dr. Honsey further opined

the October 2008 event “significantly exacerbated his January 2007 injury and

was more significant than the lesser aggravations Mr. Fry experienced between

January 2007 and October 2008. . . .” Dr. Honsey concluded the chronic pain in

Fry’s SI joint has become “a permanent injury and results from his original fall on

January 15, 2007, and a number of activities cause exacerbations which

occurred since that time, including the vacuuming incident of October 15, 2008.”

Dr. Honsey’s references to multiple aggravations warranted the commissioner’s

finding that Fry’s SI joint injury was cumulative in nature. See McKeever Custom

Cabinets, 379 N.W.2d at 374 (finding worker “came by his disabled wrist from

numerous incidents over a period of time” including two traumatic injuries).

       Dr. Stoken also found a cumulative component to Fry’s condition based on

the repetitive bending, twisting, and lifting he did as a school custodian. When

read in its entirety, Dr. Stoken’s evaluation recognized the incremental strains on

Fry’s shoulder, hip, and SI joint from his strenuous work duties.              The

commissioner was entitled to find that Dr. Stoken’s view placed “in context both

the 2007 injury and the last significant exacerbation on October 6, 2008.”

       As noted above, workers’ compensation benefits are available when

workplace activities aggravate a preexisting condition. Floyd, 646 N.W.2d at 110

(finding sufficient evidence to show cumulative injury to worker’s knee, which
                                        14



occurred subsequent to initial work-related knee injury).          The substantial

aggravating factors causing Fry’s permanent impairment were discussed by both

Dr. Honsey and Dr. Stoken. When we review the agency record as a whole, we

find their opinions offer ample support for the commissioner’s finding that Fry

should be compensated for a cumulative injury to his left SI joint. Fry’s injury

manifested during the October 2008 vacuuming incident, but resulted from

aggravations of his preexisting condition stemming from the January 2007 fall.

       The commissioner was also entitled to rely on Dr. Stoken’s opinion

concerning the extent of Fry’s industrial disability. Industrial disability measures

an injured worker’s lost earning capacity. Swiss Colony, Inc. v. Deutmeyer, 789

N.W.2d 129, 137 (Iowa 2010) (reiterating multi-factored test for functional

disability, including worker’s age, qualifications, and ability to engage in similar

employment). Fry is now in his mid-fifties and has a high school education. His

professional life has been spent in physically demanding jobs.          Dr. Stoken

believed Fry should have reasonable work restrictions to avoid repetitive

bending, twisting, and lifting items of more than thirty pounds. The commissioner

determined Fry had lost a significant amount of access to the labor market

should he lose his current custodian position. The commissioner placed Fry’s

loss of earning capacity at twenty-five percent. Substantial evidence supports

the commissioner’s decision.

       D.     Healing Period Benefits, Alternate Medical Care and Mileage

       West Des Moines Schools contend Fry was not entitled to healing period

benefits under Iowa Code section 85.34 or temporary total disability benefits
                                         15



under section 85.33. The employer alleges Fry did not miss work as a result of

the October 6, 2008 vacuuming incident. The employer also argues Fry is not

entitled to alternate medical care or mileage expenses because his ongoing

health complaints are not related to a workplace injury.

       We reject the employer’s contentions. The record shows Fry missed work

due to his workplace injury on the dates stipulated to by his employer.

Accordingly, he is entitled to the healing period benefits identified in the

commissioner’s decision. Fry also is entitled to the reimbursement of medical

expenses and alternative medical care ordered by the commissioner under

section 85.27. We affirm the judicial review order in its entirety.

       AFFIRMED.
