                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1620
                               Filed July 30, 2014


JEFFREY BOLTON,
     Plaintiff-Appellant,

vs.

SECOND INJURY FUND OF IOWA,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      Jeffrey Bolton appeals from the district court order affirming the denial of

Second Injury Fund benefits. AFFIRMED.




      Corey J.L. Walker of Walker, Billingsley & Bair, Newton, for appellant.

      Thomas J. Miller, Attorney General, and Deborah M. Stein, Assistant

Attorney General, Department of Justice-Special Litigation, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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POTTERFIELD, J.

        Jeffrey Bolton appeals from the district court order affirming the denial of

Second Injury Fund benefits. He argues he is entitled to benefits because he

has suffered two permanent disabilities resulting in the loss or loss of use of a

scheduled member. Because substantial evidence supports the commission’s

finding that Bolton did not suffer a first qualifying injury, we affirm.

        I. Background Facts and Proceedings.

        Bolton was employed by Suburban Lumber Company (Suburban) when

he sustained a severe injury to his right hand while using a power saw at work in

November 2007. He filed a petition seeking workers’ compensation benefits from

Suburban for the injury. He also sought Second Injury Fund benefits, alleging he

sustained a first qualifying injury to his left knee in 1982 while riding his bicycle to

work.

        Following an arbitration hearing, the deputy workers’ compensation

commissioner found Bolton’s hand injury resulted in a forty-seven percent

functional loss of his upper-right extremity. The deputy found Bolton failed to

establish the left-knee injury was a first qualifying injury and denied his claim

against the Second Injury Fund. After the commissioner affirmed the arbitration

decision, Bolton sought judicial review. The district court affirmed.

        II. Scope and Standard of Review.

        This appeal is reviewed under standards described in Iowa Code chapter

17A. See Iowa Code § 86.26 (2007). “The agency decision itself is reviewed

under the standards set forth in section 17A.19(10).” Gregory v. Second Injury

Fund of Iowa, 777 N.W.2d 395, 397 (Iowa 2010). We will reverse the agency’s
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decision if a determination of fact by the commissioner is “not supported by

substantial evidence in the record before the court when that record is viewed as

a whole.” Iowa Code § 17A.19(10)(f). Evidence is substantial “if a reasonable

mind would find it adequate to reach a conclusion.”         Second Injury Fund v.

Bergeson, 526 N.W.2d 543, 546 (Iowa 1995). In deciding if substantial evidence

supports the commissioner’s conclusions, we broadly and liberally construe the

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

       III. Analysis.

       Bolton claims he is entitled to Second Injury Fund benefits under Iowa

Code section 85.64, which limits an employer’s liability to the second injury,

where there are two qualifying injuries. The code section states in part:

               If an employee who has previously lost, or lost the use of,
       one hand, one arm, one foot, one leg or one eye, becomes
       permanently disabled by a compensable injury which has resulted
       in the loss of use of another such member or organ, the employer
       shall be liable only for the degree of disability which would have
       resulted from the latter injury if there had been no pre-existing
       disability.

An employee must prove three things to trigger the liability of the Fund: (1) the

loss, or loss of use of a hand, arm, foot, leg, or eye; (2) another loss, or loss of

use of such member through a work-related, compensable injury; and (3) some

permanent disability from both injuries. Bergeson, 526 N.W.2d at 547–48. When

these three circumstances are present, the Fund becomes responsible for the

difference between the compensation for which the current employer is liable and

the total amount of industrial disability suffered by the employee, reduced by the

compensable value of the first injury. Iowa Code § 85.64.
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       There is no dispute that Bolton’s 2007 injury to his right hand qualifies as

another loss of use of a scheduled member through a work-related, compensable

injury. The fighting issue on appeal is whether Bolton suffered a first qualifying

injury. Bolton argues there is undisputed evidence he suffered a first qualifying

injury to his left knee in 1982, citing doctors’ notes that indicate he complained of

knee pain in February and March of 2007. He also cites the “undisputed medical

opinion” provided by Dr. Kuhnlein, who conducted an independent medical

examination and “extrapolated” a one-percent impairment rating to his left leg for

the mild patellar pain Bolton described.

       We conclude substantial evidence supports the commissioner’s decision.

Bolton admits he did not experience any difficulties with his knee until after he

began working for Suburban in 2000, some eighteen years after the injury that he

alleges resulted in a permanent loss of use of his knee. Bolton did not seek

medical treatment for his injury after his initial treatment in 1982. He did not even

mention left-knee pain to his doctors until twenty-five years later, when he also

complained of right-knee, hip, and back pain.          Even then, Bolton made no

reference to the 1982 incident that allegedly caused the pain. There is, quite

simply, nothing in the record to tie Bolton’s complaints of knee pain to the 1982

injury until after he filed for workers’ compensation benefits in this matter.

       Although Bolton claims the one-percent impairment rating Dr. Kuhnlein

assigned to his left leg is overwhelming evidence that he sustained a first

qualifying injury, the only evidence upon which Dr. Kuhnlein assigned an

impairment rating is Bolton’s subjective complaints of pain. Bolton has never

been given any restrictions as a result of the injury and there is no objective
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evidence of loss of use.        For these reasons, the commissioner did not give

weight to Dr. Kuhnlein’s opinion on this matter, and neither do we. See Lithcote

Co. v. Ballenger, 471 N.W.2d 64, 66 (Iowa Ct. App. 1991) (noting the weight to

be given the expert opinion is for the agency, which may accept or reject the

opinion, in whole or in part, even if uncontroverted).

       The   district   court   determined    substantial   evidence   supports   the

commissioner’s decision. We agree and affirm. See Mycogen Seeds v. Sands,

686 N.W.2d 457, 464 (Iowa 2004) (noting that in applying the standards of

chapter 17A, we affirm the district if we reach the same conclusions).

       AFFIRMED.
