                   IN THE COURT OF APPEALS OF IOWA

                            No. 3-1119 / 13-0748
                           Filed February 19, 2014

CARE INITIATIVES d/b/a HERITAGE
NURSING & REHAB,
     Petitioner-Appellant,

vs.

BONNIE HOFFMAN,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      An employer appeals from a district court decision affirming the workers’

compensation commissioner’s ruling that the claimant is permanently and totally

disabled. AFFIRMED.



      Joseph Thornton of Smith Peterson Law Firm, L.L.P., Council Bluffs, for

appellant.

      Emily Anderson of Riccolo & Semelroth, P.C., Cedar Rapids, for appellee.



      Considered by Vogel, P.J., and Mullins and McDonald, JJ.
                                         2



MULLINS, J.

       An employer, Care Initiatives, appeals from a district court judicial review

decision affirming the ruling of the workers’ compensation commissioner

awarding the claimant, Bonnie Hoffman, permanent total disability benefits for an

injury she sustained while working.      The employer asserts: 1) there is not

substantial    evidence   to   support   the   commissioner’s    finding;   2)   the

commissioner’s decision was based upon an irrational, illogical, or wholly

unjustifiable application of the law to the facts; and 3) the commissioner’s

decision was an abuse of discretion.

I.     Background Facts and Proceedings.

       Hoffman was a registered nurse at the time she sustained an injury that is

the subject of this appeal. Hoffman graduated from high school and attended

one year of college. In 1968, she obtained a nursing diploma from St. Luke’s

Hospital and Coe College. After obtaining her nursing license, Hoffman worked

as a labor-and-delivery nurse, an office assistant, a nurse recruiter, an industrial

nurse in a factory, a nutrition- and weight-loss-class teacher, and finally a charge

nurse. At the time of the workers’ compensation hearing, Hoffman was sixty-five

years old and had been a nurse since 1968.

       In August 2007, Hoffman was working at Heritage Nursing and

Rehabilitation (Heritage), one of several residential, senior-care facilities

operated by Care Initiatives. On August 27, Hoffman injured her right shoulder

and arm while repositioning a resident in his bed and lifting another resident from

the floor.    Hoffman is right-hand dominant.     Hoffman reported her injury to
                                          3



Heritage’s assistant director. Upon consulting a doctor, Heritage placed Hoffman

on light duty.

        In November 2007, Hoffman underwent an MRI for her injury which

showed a torn rotator cuff, a sixty percent tear of the bicep tendon, and a

subluxation of the sternoclavicular joint. In January 2008, orthopedic surgeon Dr.

Fred Pilcher performed surgery on Hoffman’s shoulder and released her to work

four-hour days with no use of her right arm.1 Hoffman reported constant pain in

her shoulder that increased with a wider range of motion or repetitive movement.

Hoffman also attended physical therapy, but reported no improvement in her

pain. In July 2008, Dr. Pilcher reported Hoffman had achieved maximum medical

improvement and had a twelve percent whole-person impairment. On July 15,

2008, Heritage terminated Hoffman’s employment because of her physical

restrictions.    Hoffman petitioned for workers’ compensation benefits, and the

parties stipulated Hoffman’s injury was work-related. Hoffman’s petition came on

for hearing before the deputy workers’ compensation commissioner in June

2011.

        In   September    2009,   Hoffman     underwent    reverse   right   shoulder

replacement surgery under the care of Dr. Brian Adams. Dr. Adams released

Hoffman from his care in March 2010 after she achieved maximum medical

improvement.       He assessed her to have twenty-percent impairment and

recommended a number of physical restrictions: Hoffman was able to lift, push,

or pull one to five pounds frequently with one or both hands or six to thirty


1
  This work included washing handrails, filing papers, answering telephones, and other
clerical work.
                                              4



pounds occasionally with both hands; but never more than thirty pounds. Dr.

Adams also reported Hoffman was not able to climb. She was able to grasp,

push or pull, and reach out occasionally, but she should not reach above her

shoulder.     Dr. Adams also reported Hoffman was fully able to do fine

manipulation. Although Hoffman reported discomfort and pain in her shoulder

and arm, Dr. Adams stated he found no structural reason for the discomfort. He

also stated, “Some patients do report mild discomfort in the shoulder following a

successful reverse total shoulder but it is not considered to be a limiting factor

within the activity restrictions listed[.]”

       Between her termination in July 2008, and the hearing before the deputy

commissioner in June 2011, Hoffman never reentered employment.              At the

hearing Hoffman offered into evidence a spreadsheet giving details of her job

applications since August 2008 and their outcomes. The spreadsheet showed

Hoffman applied to around 150 employers.           For most positions Hoffman

submitted an online application or sent a resume. The spreadsheet contains

notations such as “sent resume,” “applied online,” “weight restrictions,” “must be

able to lift 50 lbs,” and other notes. Hoffman made in-person contact with the

prospective employer on only a few occasions. Hoffman had one interview, but

the prospective employer stated she was unable to perform the job due to lifting

restrictions. The positions she applied for include registered nurse, receptionist,

billing staff, pharmacy technician, clerical staff, retailer, and nurse recruiter.

There is a gap in the record from July 2009 to July 2010 during which Hoffman
                                        5



did not apply for any jobs. She testified she had shoulder surgery with follow-up

treatment and physical therapy during this time and was unable to drive.

       Hoffman also sought assistance in regaining employment.         In August

2010, she applied for assistance through Iowa Vocational Rehabilitation

Services, which classified her as “significantly disabled” and placed her on a

waiting list for services. She registered with the Iowa Reemployment Services

program for training on professional job application skills. She also obtained a

work certificate through Iowa Workforce Development designed to inform

prospective employers of her qualifications.     At Worklife Resources, Inc., a

vocational rehabilitation counselor, Kent Jayne, administered a number of

employment-related tests and evaluated her employment prospects.

       Pain continued to affect Hoffman’s ability to work. During a deposition on

December 16, 2010, Hoffman testified she was experiencing pain that day. Care

Initiatives’ counsel asked, “How would you describe the pain that you’re having

today.” Hoffman described it as “an aching in the shoulder and biceps, like a

nagging toothache, not one you really want to see a dentist about.” Hoffman also

testified the pain varied, feeling better and worse day-to-day. On that particular

day, she described the intensity of the pain as four or five out of ten, which was

unusually tolerable. She testified the pain intensity was nine out of ten roughly

half the time.

       In June 2011, at the hearing before the deputy commissioner, Hoffman

testified she still had constant pain in her right shoulder, bicep, and the area

where the clavicle and sternum meet. The pain increased with daily activities.
                                         6



Hoffman testified the pain had changed how she did many activities such as

washing dishes and going grocery shopping. She also testified she experienced

pain while driving, and her daughter drove her to a destination half an hour or

forty-five minutes away.    Although she took no medications, she did use a

transcutaneous electrical nerve stimulation (TENS) unit to treat the pain.

      Kent Jayne, of Worklife Resources, Inc., testified as Hoffman’s vocational

expert and provided a written report of his conclusions.      Jayne is a certified

rehabilitation counselor, has a master’s degree in rehabilitation counseling, is a

member of the American Academy of Pain Management, and has been a

vocational rehabilitation counselor for twenty-five years.     Jayne testified he

administered a number of tests to Hoffman to determine whether she was

capable of employment and what kind of employment she would be capable of

based on her physical limitations, background, training, and experience. Jayne

administered tests in nonverbal and verbal reasoning, clerical perception, fine

motor and finger dexterity, and gross manual dexterity. The testing simulated a

sedentary office work environment where the subject can take breaks and work

at their own pace.

      He also took into consideration the limitations outlined in Dr. Adams’

report. Jayne testified these restrictions on lifting, reaching, and handling were

very severe vocational limitations, not only in nursing but in the labor market

generally.   Jayne testified Hoffman performed adequately in nonverbal and

verbal reasoning tests, but poorly in the physical tests. In the context of the

simulated office environment, Hoffman was unable to complete some testing
                                          7



because of poor endurance and pain in her right arm and shoulder. Because this

simulation took only three-and-a-half hours, Jayne believed Hoffman would be

unable to work a full day carrying out similar activities, which included

keyboarding, reaching, and handling items. Such activities, Jayne stated, are

required in almost all jobs.

       In his written report, Jayne noted how the pain Hoffman reported affected

her daily activities such as lifting laundry or groceries, showering, dressing, and

doing housework.      She required the help of family or friends to complete

everyday tasks inside and outside the home.          When cross-examined, Jayne

agreed that no medical doctor had restricted Hoffman in any way due to pain.

Jayne also found Hoffman was very limited in some areas of fine motor

coordination, a finding Care Initiatives regards as inconsistent with Dr. Adams’

conclusion that Hoffman could perform fine manipulation without restriction.

Jayne testified he performed different testing than Dr. Adams and his finding was

in addition to Dr. Adams’ report, not inconsistent with it.

       Jayne’s report, consistent with his hearing testimony, concluded,

       Ms. Hoffman has been precluded as a consequence of her multiple
       difficulties from performing work that her experience, training,
       education, intelligence, and physical capacities would otherwise
       have permitted her to perform but for injury. She is unable to
       perform any services except those which are so limited in quantity,
       dependability, and/or quality that there is no reasonably stable labor
       market for them.

       About two months before the hearing, Care Initiatives hired a rehabilitation

consultant, Shannon Ford, to evaluate Hoffman’s employability and assist her in

applying for jobs. Ford produced a written report of her evaluation and testified

as Care Initiative’s vocational expert.       Ford is a medical case manager and
                                          8



rehabilitation consultant with Health Systems International. She is a certified

rehabilitation counselor with a master’s degree in rehabilitation counseling. She

has sixteen years of experience.         Ford testified she reviewed Hoffman’s

application to the Iowa Department of Vocational Rehabilitation, documentation

from the Iowa Works program, medical records, and list of job applications. Ford

had one initial vocational interview with Hoffman. Ford testified she interpreted

Dr. Adams’ restrictions to mean there was no limitation on Hoffman doing office

work, including working at a computer. Based on these limitations and Hoffman’s

experience and training, Ford believed Hoffman would be able to obtain

alternative employment in a less physically demanding area of nursing, such as

office nursing, working in a lab, or as a medical assistant.

       Ford testified she considered only objective factors in her assessment of

Hoffman, and did not consider any effect pain might have on Hoffman’s abilities.

Ford explained that to perform her analysis of Hoffman’s transferable skills, she

input information about Hoffman’s prior work history, functional capabilities, and

educational background into a computer program. The program then identified

categories of jobs in which Hoffman would be employable.             Ford provided

Hoffman a number of job leads based on the results of this program.              Ford

testified she did not look into whether any of the leads had any restrictions.

       Both Ford and Jayne testified regarding the possibility of Hoffman

retraining for a different employment. Ford testified Hoffman was capable of

retraining and that some classes or workshops existed that would not involve a

lengthy training process.      Ford did not perform any testing to determine
                                        9



Hoffman’s ability to retrain. Jayne testified he did not think Hoffman was capable

of retraining, given her physical limitations. Most important, her age was such

that retraining would not make employment more likely.

      The deputy commissioner heard this testimony and issued its ruling on

July 28, 2011. The deputy commissioner found that Hoffman’s pain was most

accurately described during her deposition testimony as “a tolerable aching in the

shoulder and biceps that was similar to a toothache, for which one would not see

a dentist.”   The deputy commissioner also found little to credit in Jayne’s

testimony and report.    The deputy commissioner had encountered Jayne in

previous workers’ compensation cases and found his conclusions were “stock

language that the undersigned [deputy commissioner] regularly encounters in Mr.

Jayne’s reports.” Instead, the deputy commissioner regarded as most credible

Dr. Adams’ report and Hoffman’s deposition description of her pain, which she

found was “consistent with her having right shoulder and upper extremity

discomfort that is a reasonable residual from the work related condition and its

treatment.”   The deputy commissioner also credited Ford’s testimony that

Hoffman was able to perform work with light physical demands. With respect to

her job search, the deputy commissioner also concluded Hoffman “made, at best,

a lackluster attempt to follow through on any job lead” and that Hoffman’s failure

to make personal contact with most potential employers signified a lack of

genuine motivation to find employment.         On July 28, 2011, the deputy

commissioner filed a decision finding Hoffman’s loss of earning capacity was 75
                                          10



percent and ordering Care Initiatives to pay Hoffman 375 weeks of permanent

partial disability benefits of $637.76.

       Hoffman appealed the deputy’s commissioner’s decision to the workers’

compensation commissioner for de novo review. The commissioner issued a

ruling on July 27, 2012, concluding Hoffman had a total and permanent disability.

In so finding, the commissioner considered the fact that Care Initiatives

terminated Hoffman due to her work restrictions as evidence of her lack of

employability:

       An employer knows the demands that are placed on its workforce.
       Its determination that the worker is too disabled for it to employ is
       entitled to considerable weight. If the employer in whose employ
       the disability occurred is unwilling to accommodate the disability,
       there is no reason to expect some other employer to have more
       incentive to do so.

The commissioner noted the deputy’s dismissal of Jayne’s testimony but made

different credibility findings:

       There is no showing that the findings of Mr. Jayne are not based
       upon his in-person assessment of claimant’s current condition. The
       report is quite specific and detailed to claimant’s impairment,
       restrictions, vocational history, and her present vocational status.
       The report does use concise language that mirrors the standards
       considered by this agency in considering disability.

With regard to Hoffman’s claims of pain, the commissioner also came to a

different conclusion, stating that although the deputy found Hoffman’s deposition

testimony of her pain most credible, the description Hoffman provided during the

hearing was equally compelling and was entitled to consideration in the

assessment of a vocational expert.             The commissioner noted particularly

Hoffman’s testimony of how the injury and pain have affected her ability to

function on a daily basis. Finally, the commissioner noted Hoffman’s age and the
                                       11



length of time she had been a nurse and found retraining efforts would be

unlikely to lead to future employment. The commissioner concluded, “[C]laimant

has sustained an injury which permanently disables her from performing work

within her experience, training, education, and physical capacities.”         The

commissioner then ordered Care Initiatives to pay Hoffman permanent total

disability benefits at the rate of $637.76 per week for the period of Hoffman’s

disability commencing March 31, 2010. Care Initiatives petitioned for judicial

review and the district court affirmed the commissioner’s findings.          Care

Initiatives appeals.

II.    Scope and Standard of Review.

       Our scope of review in judicial review cases is for correction of errors at

law. Iowa R. App. P. 6.907. Iowa Code section 17A.19 (2012) governs judicial

review of agency decisions. The district court acts in an appellate capacity when

it exercises its judicial review power. Neal v. Annett Holdings, Inc., 814 N.W.2d

512, 518 (Iowa 2012). We apply the same standards of section 17A.19(10) when

we review the district court’s decision to determine whether we reach the same

conclusions as the district court. Id. If our conclusions are the same, we affirm.

Id. Otherwise, we reverse. Id.

       Our standard of review depends on the issues raised on appeal.

Jacobson Transp. Co. v. Harris, 799 N.W.2d 192, 196 (Iowa 2010). In workers’

compensation cases, Iowa Code chapter 85 vests with the agency the

responsibility of determining an employee’s right to benefits.     See Mycogen

Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004). “Because the agency is
                                        12



charged with such responsibility, the agency must necessarily make factual

findings to determine that right.”      Id.   We are bound by the agency’s

determinations of fact unless the agency’s fact determinations are “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). Therefore, if what is alleged is an error

of fact, we must determine if the commissioner’s findings are supported by

substantial evidence. Id.; Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006).

“The determining factor is not whether the evidence supports a different finding

but whether the evidence supports the finding actually made.”         I.B.P. v. Al-

Gharib, 604 N.W.2d 621, 632 (Iowa 2000). Courts should broadly and liberally

apply those findings to uphold rather than defeat the agency’s decision. Id. If the

alleged error is in the commissioner’s application of the law to the facts, we

disturb the decision if it is “[b]ased upon an irrational, illogical, or wholly

unjustifiable application of law to fact[.]” Iowa Code § 17A.19(10)(m); Meyer, 710

N.W.2d at 219.

       The agency’s decision also cannot be unreasonable or involve an abuse

of discretion.   Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 831 (Iowa

1994). Unreasonableness is “action in the face of evidence as to which there is

no room for difference of opinion among reasonable minds, or not based on

substantial evidence.”     Id.    Abuse of discretion “is synonymous with

unreasonableness, and involves lack of rationality, focusing on whether the

agency has made a decision clearly against reason and evidence.” Id.
                                         13



III.   Analysis.

       In this case, Care Initiatives contends the district court erred in finding

substantial evidence to support the commissioner’s decision and in ignoring the

factual findings of the deputy commissioner. Next, Care Initiatives contends the

district court erred in finding the commissioner’s decision was not based on an

irrational, illogical, or wholly unjustifiable application of the law to the facts.

Finally, Care Initiatives contends the commissioners’ finding that Hoffman is

permanently disabled was an abuse of discretion.

       A.     Findings of the Deputy Commissioner.

       Our administrative code provides judicial review is available for “any final

agency action,” however, “the agency action shall not be final until all agency

remedies have been exhausted.” Iowa Code § 17A.19(1); see Myers v. F.C.A.

Servs., Inc., 592 N.W.2d 354, 358 (Iowa 1999) (“Only final agency action is

subject to judicial review.”). Here, administrative remedies were exhausted by

appeal to and de novo review by the commissioner.              The commissioner’s

decision is the final action of the agency; therefore, it is this decision that is now

subject to review.

       Care Initiatives agrees it is not the deputy’s decision but the

commissioner’s decision that is subject to judicial review. However, it argues the

district court should have considered and given weight to the deputy

commissioner’s findings because the deputy commissioner presided over the

hearing and is better able to assess the credibility of the witnesses than the

commissioner. Care Initiatives cites to the requirement that the district court
                                        14



examine the record “as a whole,” as set out in Iowa Code section

17A.19(10)(f)(3):

      [T]he adequacy of the evidence in the record before the court to
      support a particular finding of fact must be judged in light of all the
      relevant evidence in the record cited by any party that detracts from
      that finding as well as all of the relevant evidence in the record cited
      by any party that supports it, including any determinations of
      veracity by the presiding officer who personally observed the
      demeanor of the witnesses and the agency's explanation of why the
      relevant evidence in the record supports its material findings of fact.

Our supreme court has also stated,

      When the agency decision is attacked on the substantial evidence
      ground in section [17A.19(10)(f)(3)], the district court must examine
      the entire record. This includes the hearing officer’s decision. The
      hearing officer’s decision is not evidence, but his findings may
      affect its weight when credibility issues are involved.

Iowa State Fairgrounds Sec. v. Iowa Civil Rights Com’n, 322 N.W.2d 293, 295

(Iowa 1982). This is because “evidence supporting a conclusion may be less

substantial when an impartial, experienced examiner [the deputy commissioner]

who has observed the witnesses and lived with the case has drawn conclusions

different from the [commissioner].”     Id. (quoting Universal Camera Corp. v.

National Labor Relations Board, 340 U.S. 474, 496 (1982)).

      In this case, the district court found, “[A] deputy’s decision is not to be

considered in an appeal, which must be based solely upon the final agency

decision . . . . The Deputy’s opinion concerning Mr. Jayne’s testimony cannot be

used as a basis for overruling the Commissioner who did not agree with the

Deputy.” Because section 17A.19(10)(f)(3) requires the court to examine the

entire record, including any evidence that detracts from or supports any finding,

and because of the foregoing authority, the deputy’s credibility findings are
                                        15



entitled to consideration upon judicial review. See Iowa State Fairgrounds Sec.,

322 N.W.2d at 295. However, the deputy’s findings are not controlling and we

give no particular deference to them. Furthermore, our consideration of them

does not change the standard we apply when the claimant attacks the final

agency decision on substantial evidence grounds.

       B.      Substantial Evidence.

       The district court may disturb the final decision of the agency only under

circumstances set out in Iowa Code section 17A.19(10). One such circumstance

is when it determines “that substantial rights of the person seeking judicial relief

have been prejudiced” and the agency decision is “based upon a determination

of fact clearly vested by a provision of law in the discretion of the agency that 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). “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 the establishment of that fact are understood to be

serious and of great importance.”        Id. § 17A.19(10)(f)(1).   Care Initiatives

contends there was not substantial evidence to support the commissioner’s

findings of fact.

       An industrial disability is a “loss of earning capacity, and not a mere

‘functional disability’ to be computed in terms of percentages of the total physical

and mental ability of a normal [person].” Diederich v. Tri-City Ry. Co. of Iowa,

258 N.W. 899, 902 (Iowa 1935). The criteria considered include the claimant’s
                                        16



age, education, qualifications, experience, and ability to engage in the

employment previously held. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181,

192 (Iowa 1980).       Total disability does not mean a state of absolute

helplessness. I.B.P., Inc. v. Al-Gharib, 604 N.W.2d at 633 (Iowa 2000). Rather,

total disability occurs “when the injury wholly disables the employee from

performing work that the employee’s experience, training, intelligence, and

physical capacities would otherwise permit the employee to perform.” Id.

      The commissioner found Hoffman had “sustained an injury which

permanently disable[d] her from performing work within her experience, training,

education, and physical capacities.” In coming to this decision, the commissioner

credited Jayne’s testimony, particularly with regard to his assessment of

Hoffman’s restrictions and the effect of pain on her physical capacities.      The

commissioner relied upon Jayne’s testimony that, because of Dr. Adams’

restrictions, Hoffman would be unable to do the kinds of activities required by any

job she might otherwise be qualified to perform.

      The commissioner also gave greater credit to the description of Hoffman’s

pain she gave during the hearing. The deputy commissioner found Hoffman’s

deposition description, “an aching . . . like a toothache, not one you [ ] see a

dentist about,” most credible and, as stated above, this is entitled to some

consideration.   However, the deputy commissioner was not present for the

deposition testimony, thereby diminishing the rationale for general deference to

the credibility determinations of the hearing officer. Moreover, the description

Hoffman gave during the deposition was specifically limited to the pain she was
                                          17



experiencing on that particular day. She testified the pain varied day-by-day and

the day of the deposition the pain was unusually tolerable, rating four or five out

of ten. At the deposition, Hoffman further testified she experienced pain she

rated at nine out of ten about every other day. This part of Hoffman’s deposition

testimony was consistent with her testimony at the hearing in which she

described the pain she experienced and how it impaired her ability to carry out

daily activities.

       Jayne also testified on the same subject. Care Initiatives complains Jayne

is unqualified to testify about Hoffman’s pain because he is not a medical doctor.

Jayne is, however, a rehabilitation expert and a member of the American

Academy of Pain Management. He was not asked or required to provide an

explanation for Hoffman’s pain; his testimony is limited to how the pain has

affected Hoffman’s physical capacities. He took Hoffman’s medical records into

account, including Dr. Adams’ restrictions, in his assessment of Hoffman. He

also conducted his own testing of Hoffman’s abilities as part of his assessment.

       Care     Initiatives   also   argues     we   should   consider   the   deputy

commissioner’s findings that Jayne was not a credible expert witness because he

used similar language in multiple reports before that deputy commissioner. The

deputy commissioner’s statement is not evidence in this case; nothing else in the

record indicates Jayne’s report is not credible.       The commissioner found the

report to be specific, detailed, credible, and a result of Jayne’s in-person

assessment of Hoffman’s condition.            The commissioner found the language

Jayne used simply “mirror[ed] the standards considered by this agency in
                                           18



considering permanent disability.” Our review of Jayne’s report and testimony

discloses the commissioner’s findings with regard to Jayne’s credibility are

supported by substantial evidence.        Although the commissioner did not state

explicitly that he gave more weight to Jayne’s testimony than Ford’s, Ford

conducted no independent testing; selected jobs for Hoffman from a computer

program; and failed to look into whether the job leads she provided had

restrictions that would disqualify Hoffman.        Ford also ignored any effect that

constant pain had on Hoffman’s physical capacities. The record supports the

commissioner’s view of Jayne’s credibility.

       The commissioner concluded Hoffman had a total and permanent

industrial disability that prevented her from performing work within her

experience, training, education, and physical capacities.           Dr. Adams placed

restrictions on Hoffman with regard to lifting that mean she is no longer able to

perform the duties of a nurse. She is only occasionally able to grasp, push, pull

or reach out, motions that are required in almost all jobs. Dr. Adams reported

she was able to do fine manipulation, however, Jayne concluded from his testing

she would be unable to carry out most clerical-type work for a full work day due

to her restrictions and the pain remaining in her arm and shoulder. Hoffman

herself testified that the pain interferes with her ability to carry out daily activities.

She requires help from family members for many tasks, including driving longer

distances.

       The commissioner also found Hoffman’s job search was extensive, yet

unsuccessful.     Care Initiatives insists Hoffman’s tendency to apply for jobs
                                        19



through online applications or emailed resumes shows a lack of commitment to

reemployment.     Hoffman’s record of job applications shows over 150 job

applications submitted, and numerous notations indicating lifting restrictions,

responses from employers, and other follow-up work.            Hoffman had been

applying for jobs since she was terminated with no success, around three years.

Even Heritage, where she had worked without incident for seventeen years, was

unable or unwilling to accommodate her restrictions. The commissioner also

considered that Hoffman is an older worker who is close to retirement; has been

a registered nurse most of her life; has limited training, education, or experience

in any other field; and whose job prospects are unlikely to improve with more

retraining. Upon our review of the record as a whole, we conclude substantial

evidence supports the commissioner’s factual findings. Bound by these facts, we

agree with the commissioner and the district court that Hoffman has suffered an

injury that wholly disables her from performing the work that her experience,

training, and intelligence would otherwise permit her to perform. Therefore, we

come to the same conclusion as the district court, that Hoffman has a permanent

and total disability. Nothing in the record supports Care Initiatives’ contention

that the commissioner’s decision in this case was based on an irrational, illogical,

or wholly unjustifiable application of law to fact. Nor is there any evidence in the

record supporting the contention that the commissioner’s decision constitutes an

abuse of discretion.
                                       20



IV.   Conclusion.

      We find substantial evidence supports the commissioner’s findings of fact.

Bound to these facts, we find the injured claimant is wholly disabled from

performing work that her experience, training, intelligence, and physical

capacities would otherwise permit her to perform. Therefore, we come to the

same conclusion as the district court, that the claimant has a permanent and total

disability. Consequently, we affirm.

      AFFIRMED.
