                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0038
                            Filed November 13, 2014


ANDERSON NEWS and AMERICAN HOME ASSURANCE,
    Plaintiff-Appellants,

vs.

JULIE REINS,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The appellants appeal from a district court ruling on a petition for judicial

review of a workers’ compensation commissioner’s ruling affirming the

commissioner’s ruling in part and remanding it to the commissioner for further

consideration in part. AFFIRMED.



      Stephen W. Spencer and Christopher S. Spencer of Peddicord, Wharton,

Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for appellants.

      Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellee.



      Considered by Potterfield, P.J., Mullins, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

      The appellants, Anderson News and American Home Insurance

(hereinafter referred to as the employer), have appealed from a district court

ruling on a petition for judicial review of a workers’ compensation commissioner’s

ruling affirming the commissioner’s ruling in part and remanding it to the

commissioner for further consideration.

   I. Procedural Background

      The respondent/appellee, Julie Reins (hereinafter referred to as the

claimant) was injured at work on July 15, 2005. She entered into an agreement

for settlement with the employer on June 15, 2009. The settlement provided the

claimant a healing benefit and permanent partial disability benefits for a twelve

percent loss in her earning capacity.

      On October 1, 2010, the claimant filed a petition for review-reopening, and

a hearing was held November 16, 2011.               At the hearing, the deputy

commissioner found the claimant had established a material change in conditions

since the settlement was finalized. An additional permanent partial impairment

was found, and additional benefits were awarded accordingly. The employer

was also ordered to pay past medical charges as submitted and future medical

expenses, including a high-yield MRI if ordered by Dr. Quenzer or another

authorized treating physician. An appeal and cross-appeal were filed and the

commissioner affirmed the deputy’s ruling.

      The employer filed a petition for judicial review with the district court. The

district court affirmed the ruling allowing the review-reopening, denied the

additional disability award on the existing record because of a lack of a showing
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of a loss in earning capacity, and remanded it to the commissioner for a

determination of the claimant’s loss in earning capacity. The district court also

affirmed the award of an additional MRI if ordered by an authorized physician

and future medical benefits to the claimant. The employer has appealed.

   II. Factual Background

      The claimant was employed in the reorder department of Anderson News

at the time of the injury. A box that she was retrieving from a shelf was initially

caught, but came loose, hitting her in the shoulder. The injury resulted in surgery

to her shoulder performed by Dr. Quenzer on December 12, 2005. Dr. Quenzer

found maximum medical improvement (MMI) from the shoulder injury and

operation was reached on June 13, 2006.

      The claimant obtained an independent medical examination from Dr.

Kirkland. Dr. Kirkland performed a second surgery in April 2008, and determined

the claimant had reached MMI on August 18, 2008, but suffered a ten percent

whole person impairment. Dr. Kirkland prescribed exercises, and the claimant

continued to complain of pain in her right shoulder.

      The claimant retained employment with the employer, but because of her

concern that she could no longer lift, she was given a new position that consisted

primarily of data entry. She continued to work full-time and was earning $10.75

per hour when the company closed in February 2009. She was unemployed until

October 10, 2010, when she became re-employed by Data Vision, at a primarily

data-entry job paying $10.50 per hour.

      The June 15, 2009 settlement was based on Dr. Kirkland’s report, and it

was stipulated that there were jobs at Anderson she would have difficulty
                                       4


performing.   It was further stipulated that she had significant subjective

complaints and the possibility of further medical treatment existed. The claimant

was unemployed at the time of the settlement. The commissioner approved the

settlement agreement.

      The claimant visited Dr. Kirkland on July 15, 2009, and complained of

continuing pain. The doctor told her that continuing with exercise was the only

way to eliminate the pain. Dr. Kirkland testified there was no change relative to

impairment of the claimant’s right shoulder since his report of August 18, 2008,

on which the settlement was based. He further testified there was no reason to

change the claimant’s impairment rating or her work restrictions. He stated that

to an extent the claimant had lost any range of motion, it could be corrected by

exercise. Dr. Quenzer had also examined the claimant after the settlement and,

apparently because of a loss of motion, stated that the claimant exhibited a four

percent increase of impairment to her upper extremity.

      Dr. Basil examined the claimant in 2011. He had not examined her prior

to the 2009 agreement.       Dr. Basil found a fourteen percent whole body

impairment and believed that there was some loss in the claimant’s range of

motion. Since Dr. Kirkland’s 2008 rating, both Dr. Quenzer and Dr. Basil thought

temporary work restrictions were appropriate. On June 10, 2010, Dr. Quenzer

ordered physical therapy, and the claimant presented herself twenty-four times

and was reported as giving good effort. On February 17, 2011, Dr. Quenzer

recommended a high-yield MRI of the claimant’s shoulder for the purpose of

determining whether a surgical option would be appropriate. In May 2011, he

withdrew the recommendation, but on October 4, 2011, he reinstated it.
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      The employer has appealed, asserting as follows: (1) the finding that the

claimant had a substantial and material change in circumstances since the

agreement for settlement, thereby justifying a review-reopening, is not supported

by substantial evidence and was based on an improper legal standard; (2) even if

substantial and material changes have been established, additional industrial

loss has not been established; (3) the order to provide treatment in the form of a

high-yield MRI was contrary to the law and evidence; and (4) the order awarding

medical benefits is not supported by fact or law.

   III. Scope of Review

      The scope of review of an administrative agency is controlled by Iowa

Code section 17A.19 (2013). The commissioner’s legal findings are reviewed for

errors of law. Iowa Code § 17A.19(10)(b), (c). In acting on a review of an

agency’s action the court functions solely in an appellate capacity to correct

errors of law. IBP Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). The

findings of fact made by the commissioner are binding so long as they are

supported by substantial evidence. Excel Corp. v. Smithart, 654 N.W.2d 891,

896 (Iowa 2002). The court will reverse the application of law to fact if it is

irrational, illogical, or wholly unjustifiable. Lakeside Casino v. Blue, 743 N.W.2d

169, 173 (Iowa 2007).

   IV. Preservation of Error

      It is generally considered that the issue must be raised and ruled on by the

trial court for it to have been preserved for appeal.    Meier v. Senecaut, 641

N.W.2d 532, 537 (Iowa 2002). All four issues were raised and ruled on by the

trial court, and therefore, error has been preserved. Other medical benefits were
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included in the petition for judicial review and future medical benefits were ruled

on by the district court, therefore, error has been preserved. The commissioner

awarded past medical benefits as submitted, but none in fact were submitted,

and the issue related to past medical benefits is moot.

   V. Discussion

          A. This is a review-reopening case. “In a proceeding to reopen an

award for payments or agreement for settlements . . ., inquiry shall be into

whether or not the condition of the employee warrants an end to, diminishment

of, or increase of compensation so awarded or agreed upon.”             Iowa Code

§ 86.14(2).   To prevail the claimant must prove by a preponderance of the

evidence that his or her current condition is proximately caused by the original

injury. Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999).

The amount of the claimant’s loss is determined by the condition as it exists at

the time without speculation about some future condition. Kohlhaas v. Hog Slat,

Inc., 777 N.W.2d 387, 392 (Iowa 2009). Once there has been an agreement,

absent an appeal and remand, the commission has no authority to review an

award based on the same or substantially same set of facts as previously

considered. Gosek v. Garmen & Stiles Co., 158 N.W.2d 731, 732 (Iowa 1968).

       The dispute in this matter is as to the legal standard of the required

change and whether claimant has met that standard.              Worsening of the

claimant’s physical condition is a way to satisfy the reopening requirement, but

the principles of res judicata still apply. Kohlhaas, 777 N.W.2d at 392-93. The

employer contends that there must be a “substantial” worsening of the claimant’s

condition to permit a review reopening. It relies on Kohlhaas for its position.
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      Kohlhaas was concerned with whether the worsening condition must be a

condition not anticipated at the time of the original award.       Id. at 391-92.

Kohlhaas eliminated the “not anticipated” requirement and sent the matter back

to the commissioner to consider whether there had been a worsening of the

claimant’s condition. Id. Kohlhaas did not state that a “substantial worsening” of

the claimant’s condition was required, but only a “worsening.” Id. at 392.

      The commissioner did not apply an incorrect standard in determining

whether a review-reopening hearing could be held. The commissioner found a

worsening condition of the claimant’s physical condition. The commissioner’s

finding must be affirmed if supported by substantial evidence. Excel Corp., 654

N.W.2d at 896. “Substantial evidence means the quantity or 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)(1). The commissioner’s finding that the claimant is

suffering from a worsening condition is supported both by her testimony and by

medical testimony.       Substantial evidence supports the commissioner’s

determination. A review-reopening was appropriate.

          B. The commissioner increased the claimant’s permanent partial

impairment to fifteen percent. The employer contends that the claimant did not

prove a lessening of her earning capacity. In a review-reopening procedure the

claimant has the burden to prove whether she has suffered an impairment of

earning capacity proximately caused by the original injury. See E.N.T. Assocs. v.

Collentine, 525 N.W.2d 827, 829 (Iowa 1994).
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      The trial court found that the commissioner failed to explicitly consider

whether the claimant had suffered a loss of earning capacity that would warrant

an increase in the benefits, and remanded the matter to the commissioner for

such a determination.    See Iowa Code § 17A.19(10) (providing one of the

resolutions available to the district court on judicial review is to remand to the

agency for further proceedings). The deputy commissioner’s ruling, approved by

the commissioner, contained the following comments:

             Claimant has not shown any permanent work restriction
      since the prior settlement. In addition, she has not shown an
      adverse change in her economic condition . . . . She had been
      relegated to doing data entry work instead of heavier book
      inventory work, but that occurred prior to the agreement for
      settlement. Today, she works full-time for Data Vision, so she has
      not suffered any loss of earning since the prior settlement.
             However, although claimant has not suffered an economic
      change of condition, she has suffered some change in physical
      condition . . . .
             . . . Her economic condition has actually improved
      considerably.

      Industrial disability measures an injured worker’s lost earning capacity.

Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).                The

commissioner’s language cited above made it difficult to imply or reach a finding

of lost earning capacity.    The trial court’s remand to the commissioner to

determine whether lost earning capacity existed was appropriate. The claimant’s

“economic condition” and “earning capacity” are not necessarily synonymous.

The commissioner made no finding as to the claimant’s lost earning capacity to

support an increase of her permanent partial impairment.

          C. The settlement agreement provided for future medical care that

resulted from the injury. The commissioner then held that the employer should
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pay for the future medical expenses necessitated by the work injury referring

directly to the high-yield MRI if Dr. Quenzer or another authorized physician

recommended it to be done.           Both the commissioner and the trial court

considered the requested high-yield MRI as alternative care and not contingent

on the review-reopening procedure.

      If an employer and employee cannot agree on the alternate care to be

provided, the matter can be submitted to the commissioner, and the agency may

grant on proof of its necessity. See Iowa Code § 85.27(4). The commissioner

found that the claimant’s continued shoulder pain and loss of motion was related

to the shoulder injury and that, if ordered by an authorized physician, the high-

yield MRI would be considered a necessity.           Dr. Quinzer in his deposition

affirmed that he felt a high-yield MRI was an appropriate treatment.          The

commissioner’s finding on the high-yield MRI as a future medical procedure is

supported by substantial evidence.

      The decision of the trial court is in all aspects affirmed.

      AFFIRMED.
