                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0470
                             Filed October 1, 2014


CON-E-CO and TRAVELERS INDEMNITY COMPANY,
     Plaintiff-Appellants,

vs.

JOHN T. NOWATZKE,
     Defendant-Appellee.
________________________________________________________________


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

Judge.




      An employer and its insurer appeal from a district court ruling upholding

the Iowa Workers’ Compensation Commissioner’s award of permanent total

disability benefits for an employee’s injury. AFFIRMED.




      Timothy W. Wegman and Joseph M. Barron of Peddicord, Wharton,

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

      Rick D. Crowl of Stuart Tinley Law Firm LLP, Council Bluffs, for appellee.




      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

       Con-E-Co (employer) and Travelers Indemnity Company (insurer) appeal

from an adverse ruling by the district court on their petition for judicial review of

the Iowa Workers’ Compensation Commissioner’s decision awarding employee

John Nowatzke benefits for permanent total disability. We affirm.

       I. Scope of Review.

       It must first be noted that our review of final agency action is “severely

circumscribed.” Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d

823, 839 (Iowa 2002); Sellers v. Emp’t Appeal Bd., 531 N.W.2d 645, 646 (Iowa

Ct. App. 1995). Nearly all disputes are won or lost at the agency level; the

cardinal rule of administrative law is that judgment calls are within the province of

the administrative tribunal, not the courts. See id.

       In the realm of workers’ compensation proceedings, it is the workers’

compensation commissioner, not the court, who weighs the evidence and

measures the credibility of witnesses. Cedar Rapids Cmty. Sch. Dist. v. Pease,

807 N.W.2d 839, 845 (Iowa 2011). This includes the “determination of whether

to accept or reject an expert opinion,” as well as the weight to give the expert

testimony.   Id.   Because these determinations remain within the agency’s

exclusive domain and the “peculiar province” of the commissioner, we cannot

reassess the weight of the evidence. Id.; see also Robbennolt v. Snap-On Tools

Corp., 555 N.W.2d 229, 234 (Iowa 1996). In fact, “‘we are obliged to broadly and

liberally apply those findings to uphold rather than defeat the commissioner’s

decision.’” Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa

1997) (quoting Long v. Roberts Dairy Co., 528 N.W.2d 122, 123 (Iowa 1995)).
                                        3


       “We are bound by the commissioner’s factual determinations if they are

supported by substantial evidence in the record before the court when that record

is viewed as a whole.” Mike Brooks, Inc. v. House, 843 N.W.2d 885, 889 (Iowa

2014) (citation and internal quotation marks omitted). “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)(1) (2009). When

we conduct a substantial evidence review of an agency decision, it is not for us to

make “a determination as to whether evidence ‘trumps’ other evidence or

whether one piece of evidence is ‘qualitatively weaker’ than another piece of

evidence.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394 (Iowa 2007). “On

appeal, our task ‘is not to determine whether the evidence supports a different

finding;   rather,   our    task   is   to    determine     whether    substantial

evidence . . . supports the findings actually made.’” House, 843 N.W.2d at 889

(quoting Pease, 807 N.W.2d at 845).

       II. Background Facts and Proceedings.

       Nowatzke suffered a low back injury in July 2009 while working for Con-E-

Co as a welder. His symptoms abated to some extent, and he was told he could

return to work by his physician. His pain then worsened, preventing him from

carrying out his normal day-to-day work and leisure activities. He filed a petition

for workers’ compensation benefits.

       After an arbitration hearing was held, a deputy workers’ compensation

commissioner issued an arbitration decision.        The deputy concluded that,
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although there were conflicting medical records regarding causation, it was more

likely and logical that Nowatzke’s increased pain in his back and legs was

caused by the 2009 work injury. The deputy further concluded Nowatzke was

totally and permanently disabled as an odd-lot worker.

       The employer and its insurer appealed, and the commissioner affirmed the

deputy’s arbitration decision. The employer and its insurer then filed a petition

for judicial review. In its ruling, the district court set forth the issues on appeal as

follows:

               On appeal, Con-E-Co argues that the commissioner’s finding
       that Nowatzke’s condition and disability are causally related to the
       July 2009 work injury is not supported by substantial evidence
       when viewing the record as a whole. Con-E-Co asserts that
       Nowatzke’s back problems and leg pain stem from a preexisting
       condition, and that Nowatzke’s July 2009 work injuries healed by
       October of 2009. Con-E-Co asserts that Nowatzke’s later back and
       leg problems are the result of a subsequent injury or manifestation
       of a degenerative condition. In support, Con-E-Co relies on
       medical records that provide that Nowatzke did not complain of
       back problems in late 2009 and early 2010, and was performing
       activities at that time which he can no longer perform. Con-E-Co
       also relies on medical opinions relating to Nowatzke’s treatment
       and complaints in asserting that substantial evidence does not
       support the commissioner’s finding. Finally, Con-E-Co asserts that
       Dr. McGuire’s opinion, which provided that a causal connection
       existed between the work injury and Nowatzke’s current condition,
       was based on incorrect and incomplete information. Con-E-Co
       argues that substantial evidence does not support the
       commissioner’s causation finding and this finding must be reversed.
               Con-E-Co also argues that the commissioner erred in finding
       that Nowatzke was permanently and totally disabled as an odd-lot
       worker. Con-E-Co asserts that, based on functional testing and
       medical opinions, Nowatzke could perform within the “medium”
       category and his physical limitations would not preclude
       employment. Con-E-Co argues that the finding that Nowatzke
       could not walk or stand for extended periods of time was not
       supported by any medical evidence or opinion. Con-E-Co asserts
       that Nowatzke’s FCE provided that he could stand and walk for
       extended periods of time, and that he could work in positions in the
       “medium” category of work. Therefore, Con-E-Co argues that
                                          5


       Nowatzke is not permanently and totally disabled as an odd-lot
       worker, and the commissioner’s finding must be reversed.
               Nowatzke argues that substantial evidence supports the
       commissioner’s finding that Nowatzke’s work injury caused his
       condition and disability. Nowatzke points out that the commissioner
       has discretion to accept or reject expert testimony, and that the
       commissioner accepted the opinions of Dr. McGuire, Dr. Phillips,
       and Dr. Sprague in finding that the work injury caused Nowatzke’s
       disability. Nowatzke points out that his own testimony and that of
       his wife buttress these expert opinions as to causation. Nowatzke
       argues that the petition for judicial review on this point should be
       denied.
               Nowatzke also argues that substantial evidence supports the
       commissioner’s finding that he is permanently and totally disabled
       as an odd-lot worker. Nowatzke points out that, by law, the
       commissioner considered industrial disability, as well as age,
       education, qualification, experience, motivation, loss of earnings,
       severity and situs of injury, work restrictions, and inability to engage
       in work for which he is suited. Nowatzke asserts that the evidence
       considered under these factors, as well as the evidence considered
       regarding available work, provide substantial evidence to support
       the commissioner’s finding that Nowatzke is permanently and
       totally disabled as an odd-lot worker. Therefore, Nowatzke argues
       that the petition for judicial review on this point should be denied.

The district court concluded, after considering evidence to the contrary, that

substantial evidence in the record supported the commissioner’s finding

regarding causation. Further, the court concluded substantial evidence in the

record existed to support the commissioner’s finding that Nowatzke was

permanently and totally disabled as an odd-lot worker. The court denied the

petition for judicial review.

       The employer and its insurer now appeal, raising the same issues

proffered to the district court.

       III. Discussion.

       We have carefully reviewed the record, the briefs of the parties, and the

district court’s thorough and well-reasoned ruling.       The district court’s ruling
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identifies and considers all the issues presented.       In applying the above

standard-of-review precepts, and in giving the due deference we are statutorily

obligated to afford the commissioner’s findings of fact, we approve of the reasons

and conclusions in the district court ruling.   Further discussion of the issues

would be of no value. See Iowa Ct. R. 21.26(1)(b), (d), and (e). Accordingly, we

affirm the district court’s decision affirming the Iowa Workers’ Compensation

Commissioner’s decision.

      AFFIRMED.
