                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1467
                             Filed January 13, 2016


GLEESON CONSTRUCTORS AND ENGINEERS, LLC, and TRAVELERS
INDEMNITY CO. OF CONNECTICUT,
     Respondents-Appellants,

vs.

JOE MADRIGAL,
     Petitioner-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      An employer and its insurance carrier appeal from the district court order

affirming the workers’ compensation commissioner’s award of total disability

benefits to the petitioner. AFFIRMED.




      Patrick V. Waldron and Jason W. Miller of Patterson Law Firm, L.L.P., Des

Moines, for appellants.

      Chadwyn D. Cox of Reynolds & Kenline, P.C., Dubuque, for appellee.



      Considered by Danilson, C.J., McDonald, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.

      Joe Madrigal injured his back on August 26, 2009, while working for

Gleeson Constructors and Engineers, LLC.            The workers’ compensation

commissioner awarded total disability benefits against Gleeson and its insurer,

Travelers Indemnity Co. of Connecticut. Gleeson and Travelers have appealed

after the district court affirmed the commissioner’s award.

   I. Background Facts

      Madrigal was born in Mexico in May 1973, where he graduated from high

school. After high school he attended college for three semesters in Mexico and

studied electricity. Madrigal came to the United States in 1989 or 1990 and

became a United States citizen in 2006. An interpreter was used at the hearing

before the commission, but in some of the medical visits his wife, Maria, was the

only interpreter. At other medical visits the provider was a Spanish speaker or an

interpreter was used.

      Madrigal has primarily worked at labor-intensive jobs. He began working

for Gleeson in 2007 and was working with concrete at a worksite in Dubuque

when he developed a pain in his low back. By midafternoon he took a restroom

break and had trouble getting off of the stool. Coworkers were needed to help

him get to the construction site office. As he explained it, his back “locked up.”

He was unable to work the rest of that day but continued to work at light duty with

Gleeson until he underwent surgery. In October 2009, he received an injection in

his back, but it did not help a great deal. He took medications and engaged in

physical therapy while he continued to work but quit in December 2009 when he

underwent surgery.      He has not worked at Gleeson or elsewhere since the
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surgery.   He has been examined and treated by multiple physicians and

therapists since the surgery, and their collective opinion is that the surgery was

successful and there remains no objective physical impairment to his back that

can be ascertained.    Nevertheless, Madrigal reports that although there was

some relief as the result of the surgery, he still experiences periodic excruciating

back pain and frequent locking of his back. He testified that his pain extends

from his left buttock onto his heel and he has lost strength in his leg. He usually

uses a cane when walking.        He recounts he can neither sit nor stand for

extended periods but must alternate between the two positions. He sleeps fitfully

and awakens frequently because of the pain and the uncontrollable jerking in his

left leg. He intermittently loses bladder control, and his activities are limited to

short periods of household work and short periods of driving an automobile.

Maria testified that he has had a personality change and frequently becomes

antisocial and does not join in activities with his two teenage children.      The

reports of medical providers who have treated him indicate he is depressed and

has anger problems.

       The pain and disability as set out above is subjective. No objective cause

has been determined as the source of the discomfort. Without a determined

cause or injury, further surgery would be of no value.          The postoperative

treatment has been limited to physical therapy and medications. There is an

agreement among those who have examined and treated Madrigal that he needs

to become more active and further therapy is the only cure to his present

condition. There is also general agreement that Madrigal is experiencing pain

and because of his pain, his movements are limited and weight restrictions are
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appropriate. It appears that the required remedial activity increases the pain to

the point that Madrigal considers it intolerable.     He does find water therapy

tolerable and goes to a pool three times a week, but medical opinions in the

record state that water therapy is not enough to overcome his discomfort and

increase his mobility.

         Medical reports indicate he has attained maximum medical improvement.

There is no dispute that the August 26 injury necessitated the operation and that

the pain that still exists relates to the injury or the operation. The dispute centers

around the degree of pain Madrigal continues to experience, how it impacts his

ability to work in a competitive labor force, and to what extent his pain and his

ability to work are the product of his inactivity, failure to do therapy, and

exaggeration.

         The subjective nature of Madrigal’s complaints makes his credibility an

issue.    Gleeson contends that Madrigal has a history of inaccurate medical

reporting.    The inaccurate medical reports cluster around a preexisting liver

problem,      apparently   resulting   from   Madrigal’s    previous    battle   with

mononucleosis, and Madrigal’s unsubstantiated belief that further surgery would

eliminate his pain. When treatment on his back commenced, Madrigal failed to

advise the medical providers of his liver problem. When liver problems were

detected, a provider conjectured that it had been created by the prescribed

medication.     Thereafter, Madrigal and Maria insisted that medications were

having an adverse effect on his liver, although they were later assured by

medical personnel that it had no effect. Further surgery had been suggested by

medical providers, but a subsequent MRI did not show any continuing
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physiological problem resolvable by surgery. Madrigal and Maria at one point

told a treating physician that three other surgeons had recommended further

surgery, but it was discovered that the representation had been fabricated.

Apparently Madrigal was desperate for relief and hoped that surgery would be

the answer.

       Gleeson also contends Madrigal has a history of attempting to avoid work.

The record indicates that over the course of his work history and previous to his

employment with Gleeson, Madrigal had on occasion requested time off for

medical reasons that were denied by his employer. He also made a disability

claim that was denied by an examining medical professional.

       Gleeson also contends Madrigal is exaggerating the pain he experiences.

There were three functional capacity exams administered that were considered

invalid because of inconsistency in Madrigal’s responses, based in part on what

was considered invalid efforts or reporting on Madrigal’s behalf. Nevertheless,

there were tests that were considered to be valid that established Madrigal’s

inability to compete in the labor market.    On December 15, 2011, Madrigal

underwent a functional capacity evaluation that the evaluator considered to be

valid. That test indicated Madrigal would be able to do appropriate light duty

work while experiencing back pain but his functions would be slower when the

pain elevated.      The evaluator opined that Madrigal would be able to do

appropriate light-duty work but acknowledged it was only a two hour test that he

had administered and that it was possible that Madrigal could not work a full

eight-hour shift.   A “hands on” employability assessment was undertaken in

August 2012 by Area Residential Care at the request of Iowa Vocational
                                         6


Rehabilitation Services.   Madrigal was given a three-day light-duty temporary

part-time job at the care center. The assessment indicated Madrigal showed a

good work ethic, was motivated, followed directions, and stayed on task. The

conclusion of Area Residential Care, adopted by the Iowa Vocational

Rehabilitation Services, was that Madrigal had a genuine physical disability that

posed a barrier to competitive employment. Laughlin Management Vocational

Rehabilitation Specialists reviewed the relevant background information and the

medical restrictions that had been placed on Madrigal and opined that he

suffered a 98—100% loss of access to a transferable occupation.            Lack of

English-speaking skills and computer skills greatly increased his lack of

employment opportunities.

      Madrigal has applied at approximately twenty-five to thirty businesses for

employment and received a call-back from only two. He was disqualified on one

because of his lack of language skills and on the other because of his inability to

stand for extended periods of time.

      Madrigal has attempted to obtain social security benefits because of his

physical condition on two different occasions but has been denied both times.

On December 6, 2011, a hearing was held to consider Madrigal’s social security

claim. The decision denying benefits was primarily based on functional capacity

exams that determined that Madrigal was unable to perform tasks for relevant

work, but he did have the ability to do light work such as the assembly of small

products, produce sorting, or acting as a cafeteria attendant.
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   II. Error Preservation

       An issue must be raised both before the commissioner and in the petition

for judicial review to the district court before error is considered to have been

preserved. Armstrong Tire & Rubber Co. v. Kuble, 312 N.W.2d 60, 64 (Iowa Ct.

App. 1981). The entitlement to disability benefits was raised at both levels. Error

has been preserved.

   III. Scope of Review

       In review of the district court’s decision, the standards of Iowa Code

chapter 17A (2013) are applicable. Second Injury Fund of Iowa v. Nelson, 544

N.W.2d 258, 264 (Iowa 1995).         A commissioner’s disability determination

involves an application of law to the facts, and we will not disturb it unless the

commissioner’s decision is irrational, illogical, or wholly unjustified.   Neal v.

Annett Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012). The agency’s decision

may be reversed, modified, or remanded if not supported by substantial evidence

or affected by an error of law. Nelson, 544 N.W. 2d at 264.

   IV. Discussion

       Gleeson contends that the law as applied to the evidence does not

support the finding that Madrigal is permanently and totally disabled, and

therefore, its rights have been prejudiced by the agency’s decision. Gleeson also

contends that the agency placed the burden of mitigation on it and to do so was

irrational, illogical, and unjustifiable, and when the record is viewed as a whole,

substantial evidence does not support the finding Madrigal is permanently and

totally disabled.
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       Industrial disability is not the same as functional disability but it includes

other factors which are to be considered such as age, education, work

experience, employer’s qualifications, intellectual, emotional, and physical and

other factors which may contribute to a loss of earning capacity. I.B.P., Inc. v. Al-

Gharib, 604 N.W.2d 621, 632-33 (Iowa 2000).            Dr. John Kuhnlein did an

independent medical examination on January 24, 2012, and although critical of

Madrigal for not being more active, stated in his report,

       The prognosis for complete symptom resolution appears to be nil.
       The prognosis for unrestricted return to work appears to be nil. The
       prognosis for return to work with appropriate accommodations
       should be excellent but I will have to say it is guarded based on the
       nonphysiologic behaviors in examination and the length of time he
       has been off work.

Three of the examining or treating physicians, including Dr. Kuhnlein, opined

Madrigal was not a malingerer.

       Dr. Kuhnlein’s medical evaluation, Madrigal’s “hands on” test as reported

by Area Residential Care and adopted by Iowa Vocational Rehabilitation

Services, and the Laughlin Management report were all finalized after the social

security hearing. Taken together, they verify a loss of earning capacity and the

conclusion that Madrigal was totally disabled.

       The deputy commissioner in its arbitration decision had held that the

greater weight of the evidence of those who had done a vocational study had

concluded that Madrigal was not employable.         On review, the commissioner

considered the deputy’s assertion to be error and noted that Madrigal’s and

Gleeson’s vocational consultants’ testing as to Madrigal’s ability to return to the

competitive labor market were in conflict. Gleeson contends the commissioner’s
                                             9


correction of the deputy’s finding meant that the commissioner had found

Madrigal had not established an inability to enter the labor force. That conflicting

evidence existed as to Madrigal’s employability does not establish substantial

evidence that unemployability did not exist. The commissioner acknowledged

the conflict but based its decision on the medical reports stating, “it is the medical

opinions as to restrictions on function and employability that are more persuasive

than the opinions of vocational experts.” The commissioner later stated, “[I]t is

concluded that claimant is presently disabled for work and his work injury totally

disabled him at the time of the arbitration hearing from performing work with his

experience, training, and physical capacity.” The record is replete with weight

and movement restrictions medical providers placed on Madrigal because of his

back pain. The commissioner’s conclusion that Madrigal is permanently and

totally disabled is not irrational, illogical, or wholly unjustified.

       We are bound by the commissioner’s finding of facts supported by

substantial evidence. Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa

2004). Substantial evidence means “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 establishment

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

§ 17A.19(10)(f)(1). Clearly, Madrigal’s physical condition is based on subjective

symptoms and Gleeson has attacked his credibility, but the court is not allowed

to re-determine the commissioner’s findings of credibility. See Arndt v. City of

LeClaire, 728 N.W.2d 389, 394-95 (Iowa 2007).
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       At the end of the commissioner’s appeal decision, the commissioner

encouraged the defendants to adopt the suggestion of Dr. Kuhnlein to engage

Madrigal in aerobic activity and pain management, and help locate medically-

appropriate jobs.      He further stated that Madrigal had not proven the

psychological component to his inability to overcome his pain and loss of function

but that active medical health treatment might be appropriate. Gleeson attacks

the commissioner’s comments as shifting the burden of mitigation onto it. The

medical reports frequently mentioned Madrigal’s depression and mental state.

The commissioner was only commenting that no responsibility had been placed

on Gleeson for Madrigal’s mental condition but was suggesting the likelihood of a

connection between Madrigal’s pain and his mental condition, and that

addressing the latter might affect the former. The commissioner did not order

Gleeson to mitigate Madrigal’s damage, and although he acknowledged

Madrigal’s mental health was not an issue, he suggested assistance with

Madrigal’s mental health might accelerate his recovery.

       The commissioner’s conclusion that Madrigal is permanently and totally

disabled is not irrational, illogical, or unjustified based on the application of law to

facts. His decision is not contradictory and does not place the responsibility to

mitigate on the employer. Finally, when the record is viewed as a whole, there is

substantial evidence supporting the commissioner’s decision.

       AFFIRMED.
