                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1170 / 13-0658
                             Filed March 12, 2014

SUSAN ANN SULLIVAN,
    Petitioner-Appellant,

vs.

CUMMINS FILTRATION-LAKE MILLS,
a/k/a CUMMINS, INC., f/k/a
FLEETGUARD, INC., and SECOND
INJURY FUND OF IOWA,
       Respondents-Appellees.
________________________________________________________________

      Appeal from the Iowa District Court for Winnebago County, Rustin

Davenport, Judge.



      Susan Ann Sullivan appeals the district court ruling of her petition for

judicial review. AFFIRMED.



      Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for

appellant.

      Richard G. Book of Huber, Book, Cortese & Lanz, P.L.L.C., West Des

Moines, for appellee Cummins Filtration-Lake Mills.

      Thomas J. Miller, Attorney General, and Julie Burger and Jennifer York,

Assistant Attorneys General, Special Litigation, Des Moines, for appellee Second

Injury Fund of Iowa.



      Heard by Potterfield, P.J., and Doyle and Bower, JJ.
                                          2




BOWER, J.

          Susan Ann Sullivan appeals the district court ruling of her petition for

judicial review.      Sullivan claims the workers’ compensation commissioner

misapplied the Iowa successive-disability statute, and did not properly

summarize the evidence and explain the agency’s decision-making process.

Sullivan also claims the commissioner erred by denying her application for

alternative medical care. We find the successive-disability statute is inapplicable

as Sullivan failed to prove a permanent partial disability and as a result there is

no successive disability under the statute.      We also find the commissioner’s

findings of fact and conclusions of law were sufficiently separated to allow us to

reconstruct the commissioner’s reasoning on appellate review. Because we find

there is no disability, an award of alternative medical care is not available. We

affirm.

I.        Background Facts and Proceedings

          Susan Ann Sullivan (Sullivan) is a former employee of Cummins Filtration1

(Cummins) where she worked on various production lines for several years.

During Sullivan’s employment with Cummins, she suffered a number of injuries

and physical ailments.2 Only the two petitions Sullivan filed with the workers’



1
  Cummins Filtration, also known as Cummins, Inc., was formerly known as Fleetguard,
Inc.
2
  Sullivan left Cummins for a brief period of time during which she worked at a Target
distribution center in Minnesota. With the exception of the time she was employed by
Target, she was employed at all material times by Cummins. Sullivan’s initial term of
employment with Cummins began on March 6, 1998. She was found to have no
significant medical impairment at that time.
                                           3



compensation commissioner on June 11, 2009, are before us for review.                  A

discussion of Sullivan’s prior medical and injury history is necessary to fully

understand this dispute.

        Sullivan sustained her first injury when she caught her right hand in a

crimping machine on January 14, 1999.           She was treated by Dr. Ciota who

assessed a five percent permanent impairment to the whole body.                 Sullivan

entered into a settlement that was approved by the commissioner establishing a

twenty-two percent permanent partial disability in her right hand. Upon returning

to work, Sullivan was symptom free.

        Sullivan began experiencing swelling and pain in her hands in late 2001.

The condition was reported to her supervisor on February 11, 2002. Sullivan

engaged in many treatments with several doctors but continued to have

symptoms.     Sullivan and Cummins entered into a settlement regarding the

February 11, 2002, injury that was approved by the commissioner on October 27,

2005.    The settlement states Sullivan suffered a 16.068 percent permanent

partial disability to her right arm.3 Following the settlement, Sullivan returned to

work with restrictions, which Cummins accommodated. 4

        There are two stipulated injuries that are presented on appeal. The first

was reported to Cummins on August 17, 2007, after Sullivan noticed her hands

were sore, swollen, numb, and tingling after she finished working the previous

day. She was given additional restrictions and returned to appropriate work. One


3
  Sullivan also complained of a right finger injury, compensability of which was disputed
by Cummins. Cummins paid Sullivan $1500 to settle the disputed claim.
4
  Sullivan also was self-employed part time during this period.
                                          4



week later, she reported minor tingling and stated her hands were improving.

She was referred to Dr. Mixdorf who diagnosed bilateral carpal tunnel syndrome.

Dr. Mixdorf determined the carpal tunnel syndrome was probably work related.

Sullivan was later transferred to Dr. Ciota who performed carpel tunnel release

surgery on each arm. During a follow-up appointment shortly after the surgeries,

Dr. Ciota found Sullivan to be “doing really well” and agreed she could return to

work needing some restrictions for only two weeks. Dr. Ciota found Sullivan to

be at maximum medical improvement (MMI) as of May 19, 2008 with no

restrictions and no additional permanent partial disability.

       Dr. Kuhnlein performed an independent medical evaluation on March 18,

2009, and related the carpal tunnel syndrome to Sullivan’s work. He assigned a

three percent permanent partial impairment to the right carpal tunnel, but found

no permanent impairment for the left carpal tunnel.

       The second stipulated injury was reported to Cummins on July 1, 2008.

Sullivan was referred to Dr. Ciota with left wrist pain and diagnosed with left

trigger finger. On July 16, 2008, Dr. Ciota diagnosed Sullivan with trigger finger

from tenosynovitis and imposed work restrictions. The condition was found to be

work related. Over the following months, Sullivan participated in physical therapy

and continued to experience some trigger finger symptoms. Sullivan continued

to experience symptoms when seen by Dr. Ciota on September 24, 2008. He

diagnosed her with overuse repetitive tendonitis but separately stated she

continues to suffer from trigger finger which would require surgery. The surgery

was performed on October 15, 2008.
                                          5



       On October 29, 2008, Dr. Ciota examined Sullivan and found her to be

doing well, though the overuse symptoms remained unchanged.              She was

released as to the trigger finger with no restrictions.

       Sullivan was next referred to Dr. Mooney for evaluation.5 After testing, Dr.

Mooney opined that Sullivan’s “complaints did not meet her diagnoses” and

recommended a three-phase bone scan and prescribed an anti-inflammatory

medication. Sullivan declined both recommendations. Dr. Mooney later found

no impairment due to carpel tunnel and expressed his opinion that Sullivan had

no evidence of overuse syndrome, tendinitis, or a repetitive trauma injury. As a

result there could be no impairment. Finally, Dr. Mooney opined Sullivan’s hand

complaints did not fit within a diagnostic category and could be influenced by a

“psychological component.”

       In his independent medical examination report, Dr. Kuhnlein related the

trigger finger condition to Sullivan’s employment, but was unable to relate the

bilateral hand pain from her overuse symptoms to her work. His opinion was

influenced, in part, by his conclusion that Sullivan’s complaints did not match the

findings of the medical examination. Dr. Kuhnlein found no impairment from the

trigger finger or the hand pain.

       Sullivan filed her petitions with the workers’ compensation commissioner

on June 11, 2009. The petitions named Cummins and The Second Injury Fund




5
 Sullivan self-servingly refers to Dr. Mooney as a “well-known defense doctor” on
multiple occasions throughout her brief despite no supporting evidence.
                                           6



of Iowa (the Fund).6 A hearing was held before a deputy workers’ compensation

commissioner on April 5, 2010. The arbitration decision was filed on November

11, 2010. In it, the deputy found the August 16, 2007 work injury was not the

cause of any permanent disability. Sullivan filed an application for rehearing

which was denied.        After an appeal to the commissioner,7 the case was

remanded so the deputy commissioner could rule on a number of outstanding

issues. Most relevant to this appeal, the deputy was asked to determine the

permanency claim for the July 1, 2008 stipulated injury. On remand, the deputy

found Sullivan had failed to prove a permanent disability as a result of the July 1,

2008 injury. On appeal, the commissioner adopted the deputy’s initial decision

as modified by the remand decision, with additional reasoning on several other

issues.   An application for rehearing was denied, and the commissioner’s

decision was affirmed on judicial review.

II.    Scope and Standard of Review

       We review workers’ compensation commissioner cases under the Iowa

Administrative Procedure Act, Iowa Code chapter 17A (2011). Meyer v. IBP,

Inc., 710 N.W.2d 213, 218 (Iowa 2006). “Under the Act, we may only interfere

with the commissioners decision if it is erroneous under one of the grounds

enumerated in the statute, and a party's substantial rights have been prejudiced.”

Id. The grounds are enumerated in section 17A.19. See Iowa Code § 17A.19.


6
  The Second Injury Fund is a named party to this appeal. Because we affirm on appeal,
all issues impact the Fund and Cummins identically, and we do not consider the Fund
separately.
7
  The commissioner delegated authority to a deputy who acted in the place of the
commissioner. Throughout this opinion, we refer to the decisions of the deputy acting on
delegated authority as “the commissioner.”
                                          7



We give deference to findings of fact made by the commissioner. Meads v. Iowa

Dep’t of Soc. Servs., 366 N.W.2d 555, 561 (Iowa 1985).

III.   Discussion

       Sullivan raises three separate issues on appeal. First, she claims the

commissioner misapplied the successive-disability statute found in section

85.34(7).   She also claims factual findings and decisions regarding material

evidence were not properly explained by the commissioner. Finally, she claims

the commissioner erred by denying alternate medical care and prematurely

determined permanent disability issues.

       A.     Permanency and successive disabilities

       Sullivan claims the commissioner erred by denying application of the

successive-disability statute. She contends the stipulated injuries should have

been considered successive injuries compensable under the statute.

       Section 85.34(7) governs an employer’s liability for successive workplace

injuries suffered while working for the same employer. The section holds when

an employee has a preexisting disability from the same employment

compensable under the same subsection and paragraph of the statute, the

employer is responsible for the combined disability resulting from the injuries as

compared to the employee’s condition prior to the first injury. See id.

       Sullivan contends the commissioner was also required to consider not a

singular disability, but the effect of the stipulated injuries when combined with her

prior disabilities. She also claims the commissioner should have entered findings

of fact regarding whether her prior injuries were compensable under the same
                                        8



subsection and paragraph of the statute, a threshold inquiry before the

successive-disability statute can be triggered. However, Sullivan skips the first

step in any successive-disability analysis. Before the commissioner can combine

two disabilities to a compensable whole, there must be two disabilities available

to be combined.

       The statute does speak of combining a preexisting disability with “the

employee’s present injury.” Iowa Code § 85.34(7)(b)(1). If the second injury,

however, adds no additional disability, there is nothing to combine the original

disability with.   The statute makes this clear. Employers are responsible for

compensating disabilities under section 85.34; a present disability is required

before the statute is applicable. Additionally, the prior disability must have been

“compensable under the same paragraph of subsection 2 as the employee’s

present injury . . . .” Id. § 85.34(7)(a). The clear requirement of the language is

the present injury must be compensable.       Only disabilities are compensable

under the statute. As a result, the present injury must itself be compensable as a

permanent disability before it can be combined into a successive whole.

       The commissioner, recognizing this, correctly considered whether the

present stipulated injuries were compensable permanent disabilities under the

statute and found they were not. Though expert evidence is normally necessary

to establish permanency, some injuries may by their very nature require a finding

of permanency. See Daniels v. Bloomquist, 138 N.W.2d 868, 873 (Iowa 1965).

As with other expert testimony, the commissioner must consider the expert’s

opinion along with all other evidence. Sherman v. Pella Corp., 576 N.W.2d 312,
                                       9



321 (Iowa 1998). It is then the commissioner’s duty to weigh all the evidence

and the commissioner may accept or reject the expert opinion in whole or in part.

Id.

      Though Sullivan does not explicitly claim her injuries are such that

permanency is implied in her present condition, this is the essence of her claim.

We find the commissioner was justified in relying upon the qualified medical

opinions of multiple doctors in concluding Sullivan has recovered from the

stipulated injuries and they have caused no permanent disability. Doctors have

uniformly found the carpal tunnel symptoms have resulted in no permanency,

and the evidence is overwhelming the trigger finger issues were completely

resolved by surgery.

      Without a compensable disability, the successive-disability statute is

inapplicable and the commissioner committed no error.

      B.     Form of the commissioner’s ruling

      Sullivan claims the commissioner’s ruling is in error because it fails to

separately state findings of fact and conclusions of law, as required by statute.

She also contends the commissioner did not state reasons for rejecting

uncontroverted evidence.

      Section 17A.16 requires the commissioner include “findings of fact and

conclusions of law, separately stated.” Iowa Code § 17A.16(1). The purpose of

the rule is to allow the reviewing court to determine when the commissioner is

making a determination of fact and when the commissioner is engaging in the

application or interpretation of law, so that we may properly review the relevant
                                        10



portion of the decision. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 137

(Iowa Ct. App. 2008) (finding format proper where court is able to clearly

determine where findings of fact end and conclusions of law begin despite lack of

individual headings). Our review in this case is complicated by the number of

decisions made during the agency process. Unlike the usual case, the record

contains four separate rulings by the deputy or commissioner.                  The

commissioner’s final decision adopts the original arbitration decision as the final

agency decision, as modified by the remand decision. The commissioner then

adds additional reasoning.     The conclusions, reasoning, and decision of the

commissioner are spread across three separate documents. Sullivan is correct,

the decision is not neatly broken down into a single set of findings of fact and a

single set of conclusions of law.

       Our supreme court has refrained from imposing “unnecessary and

burdensome requirements into the statute.”         Bridgestone/Firestone, Pacific

Emp’rs Ins. v. Cathy Accordino, 561 N.W.2d 60, 62 (Iowa 1997). Provided we

can deduce the commissioner’s decision making process, there is no

requirement the commissioner duplicate previous agency efforts to provide a

decision in an unnecessarily precise format. Id. Though the decision of the

commissioner is complicated and spread across a number of documents, we are

able to follow the commissioner’s decision-making process for purposes of

review. We are able to determine when the commissioner is engaging in fact

finding and are provided with a path to follow so that we may review those factual

conclusions.
                                       11



      Sullivan also claims the commissioner is required to go through each fact

in the record and discuss its applicability to the final decision.   This is not

required.   Id.   The commissioner clearly explained the evidence relied upon.

Sullivan asked the commissioner to reconsider the various restrictions she

believes proved a permanent partial disability.   The commissioner’s decision

discussed restrictions, but clearly finds the medical opinions of various doctors

more persuasive.

      C.      Alternative medical care

      Sullivan claims the commissioner erred in denying her request for

alternative medical care, or alternatively erred by prematurely determining there

had been no permanent disability.

      Section 85.27(4) provides an opportunity for the commissioner to order

alternative medical care when the employee is dissatisfied with the care provided

and it can be shown the care provided was unreasonable.         See Iowa Code

§ 85.27(4); Bell Bros. Heating and Air Conditioning v. Gwinn, 779 N.W.2d 193,

204 (Iowa 2010).      The injury, however, must be compensable.      Iowa Code

§ 85.27(1). A causal connection is an essential element of compensability.

      The commissioner found the two stipulated injuries had reached MMI and

were not the cause of a permanent disability.         We have affirmed those

conclusions. Alternative care is no longer needed for those injuries because no

further care is necessary.    Sullivan claims, however, an award of alternative

medical care is required for her additional symptoms that have been attributed to

overuse.    The commissioner determined she had failed to prove a causal
                                       12



connection between these symptoms and her work.            We agree.    As the

commissioner points out, Dr. Ciota considered these complaints and found them

unrelated to the stipulated, work related, injuries.   No doctor has offered an

opinion connecting the overuse symptoms to her employment.         Dr. Kuhnlein

discussed Sullivan’s overuse symptoms and expressed doubt as to the accuracy

of the complaints, finding a “strong psychological component” to her symptoms

and noting Sullivan ceased any display of her symptoms when she was

distracted during her examinations.

      Expert testimony is generally required to establish a causal connection.

See Sherman, 576 N.W.2d at 321. Sullivan offers no expert testimony to support

a causal connection between her overuse symptoms and her work. Rather, she

attempts to paint the overuse symptoms as a natural and unmistakable result of

her history of hand and limb problems while working for Cummins. We agree

with the commissioner that no such connection is compelled by the evidence.

Based upon the evidence in the record, we find the commissioner’s conclusion

that the overuse symptoms were not causally connected to Sullivan’s

employment was supported by substantial evidence.

      AFFIRMED.
