                  IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0960
                              Filed April 6, 2016


JACK COOPER TRANSPORT CO., INC.,
and CALIFORNIA INSURANCE CO.,
     Petitioners-Appellants,

vs.

BRUCE JONES,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Petitioners appeal the district court ruling affirming the workers’

compensation commissioner’s decision respondent was permanently and totally

disabled. AFFIRMED.




      Kent M. Smith of Scheldrup Blades, Cedar Rapids, for appellant.

      Jean Mauss of Schott Mauss & Associates, P.L.L.C., Des Moines, for

appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

        Petitioners Jack Cooper Transport Company, Inc. and California

Insurance Company1 appeal the district court ruling affirming the workers’

compensation       commissioner’s      decision    respondent      Bruce    Jones     was

permanently and totally disabled. We find there is substantial evidence in the

record to support the commissioner’s finding Jones sustained permanent

impairment due to an injury on December 6, 2009.                     We also find the

commissioner’s finding Jones was permanently and totally disabled is not

irrational, illogical, or wholly unjustifiable. We affirm the ruling of the district court.

        I.     Background Facts & Proceedings

        Jones, who was fifty-eight years old at the time of the administrative

hearing, had been employed as a truck driver since 1976. Jones injured his back

on June 19, 2006. An MRI showed a disc herniation compression at the L5 level,

and Jones had back surgery on August 25, 2006. He continued to have back

pain, but was able to return to work without limitations. Jones also sustained a

back injury on April 23, 2009.        An MRI at that time revealed a lumbar disc

herniation at the left L3-4 level. He had surgery for this injury on June 15, 2009.

Again, Jones was able to return to work without limitations.

        This case involves an injury which occurred on December 6, 2009. Jones

was lifting a skid and felt severe pain in his back. Dr. John Larson examined

Jones on December 23, 2009, and determined the pain appeared to be at the L4-

5 level.     Dr. Alexander Bailey examined an MRI and found evidence of

degenerative disc disease at L4-5 and L5-S1, stating “disc bulging is present, but

1
    We will refer to these two companies together as the employer.
                                        3


no gross evidence of recurrent disc herniation, spinal stenosis, foraminal stenosis

or other.” Dr. Yuri Tsirulnikov stated the MRI may provide an explanation for

Jones’s pain. Dr. John Ciccarelli found Jones had burning sensations across his

low back and right buttocks area, which were not present when he returned to

work in October 2009. Dr. David Boarini stated he did not believe Jones had any

significant structural abnormality or permanent problem caused by the

December 6, 2009 injury.

        Jones had an independent medical examination with Dr. Brent Koprivica,

who determined Jones should be restricted from any squatting, crawling,

kneeling, or climbing. Dr. Koprivica stated Jones could occasionally lift or carry

from twenty up to thirty-five pounds. He stated Jones should avoid frequent

bending, pushing, pulling, or twisting. In addition, Dr. Koprivica restricted Jones

from “whole body vibration or jarring activities such as operating heavy

equipment or commercial driving.”           Dr. Koprivica gave the opinion the

December 6, 2009 injury was the direct and prevailing factor in causing further

permanent aggravating injury to Jones’s back.

        Jones had left hip replacement surgery on February 24, 2010, which was

not due to his work-related injury. Jones requested Social Security disability

benefits, and he was determined to be disabled. He had right knee replacement

surgery on June 15, 2010.          Jones resigned from his employment on

September 15, 2010, stating he was in too much pain to continue working.

        Jones filed a claim for workers’ compensation benefits on December 5,

2011.     After a hearing, a deputy workers’ compensation commissioner

determined Dr. Koprivica’s opinion should be given more weight than Dr. Boarini
                                          4


or Dr. Ciccarelli. The deputy found Jones suffered permanent disability caused

by the December 6, 2009 work injury, noting Jones now had work restrictions,

which he did not have previously. The deputy found Jones was permanently and

totally disabled. The workers’ compensation commissioner affirmed and adopted

the deputy’s decision finding Jones was permanently and totally disabled.

         The employer filed a petition for judicial review. The district court found

there was substantial evidence in the record to support the commissioner’s

finding Jones suffered a permanent impairment following the December 6, 2009

injury. The court also found the commissioner’s conclusion Jones suffered an

industrial disability and was permanently and totally disabled was not irrational,

illogical, or wholly unjustifiable. The employer appeals the decision of the district

court.

         II.   Standard of Review

         Our review in this administrative action is governed by Iowa Code chapter

17A (2011).        We apply the standards of section 17A.19(10) to the

commissioner’s decision and decide whether the district court correctly applied

the law in its judicial review. Des Moines Area Reg’l Transit Auth. v. Young, 867

N.W.2d 839, 842 (Iowa 2015). “If we reach the same conclusions as the district

court, ‘we affirm; otherwise, we reverse.’” Id. (citation omitted).

         We will reverse the commissioner’s factual findings only if they are not

supported by substantial evidence when the record is viewed as a whole. Coffey

v. Mid Seven Transp. Co., 831 N.W.2d 81, 89 (Iowa 2013).               “Evidence is

substantial if a reasonable mind would find it adequate to reach the same

conclusion.”    2800 Corp. v. Fernandez, 528 N.W.2d 124, 126 (Iowa 1995).
                                          5


“Substantial evidence is more than a scintilla, but does not rise to the level of a

preponderance of the evidence.” Etchen v. Holiday Rambler Corp., 574 N.W.2d

355, 359 (Iowa Ct. App. 1997).

       III.   Merits

       A.     The employer claims there is not substantial evidence in the record

to support the commissioner’s finding Jones sustained a permanent injury on

December 6, 2009. It states the medical and factual evidence does not support a

finding Jones sustained any permanent impairment or new pain related to the

December 6, 2009 work injury. The employer claims the opinion of Dr. Koprivica

should be discounted because he did not have all of Jones’s previous medical

records. It also asserts the opinions of all of the other physicians in the record

support a finding Jones did not suffer a permanent injury.

       Jones testified he was able to return to work without restrictions following

his previous injuries. He stated before the injury he would be “a little bit stiff and

sore” by the end of the day. He testified on December 6, 2009, he was lifting a

skid and felt pain in his back. Jones testified, “Something changed in my back

during that injury. There was a lot more pain. It was more intense. I don’t know

if it was more localized or not, but I know it was just more of a sharper pain.” He

stated, “that pain has continued, even to this day.”

       Dr. Koprivica gave the opinion the December 6, 2009 injury was the direct

and prevailing factor in causing further permanent aggravating injury to Jones’s

back. The issue of medical causation is essentially within the domain of expert

testimony.    Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa

1995). The commissioner, as the finder of fact, determines the weight to be
                                           6

given expert testimony. Id. Also, Dr. Ciccarelli assigned an additional permanent

impairment rating of two percent to Jones based on the December 6, 2009 injury.

       While there is contrary evidence in the record, “[w]e do not consider the

evidence insubstantial merely because we may draw different conclusions from

the record.” Coffey, 831 N.W.2d at 89. “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.’” Mike

Brooks, Inc. v. House, 843 N.W.2d 885, 889 (Iowa 2014) (alteration in original)

(citation omitted). We determine there is substantial evidence in the record to

support the commissioner’s finding Jones sustained a permanent injury on

December 6, 2009.

       B.     The employer claims the commissioner’s finding Jones was

permanently and totally disabled was irrational, illogical, or wholly unjustifiable. It

states three physicians gave the opinion Jones sustained a minor back strain on

December 6, 2009, and did not require any permanent work restrictions. The

employer claims Jones voluntary retired after December 6, 2009, due to his other

unrelated medical issues.

       The issue of industrial disability is a mixed question of law and fact. Neal

v. Annett Holdings, Inc., 814 N.W.2d 512, 525 (Iowa 2012).               We review the

commissioner’s findings of fact for substantial evidence.          Id.    “Because the

challenge to the agency’s industrial disability determination challenges the

agency’s application of law to fact, we will not disrupt the agency’s decision

unless it is ‘irrational, illogical, or wholly unjustifiable.’”   Id. at 526 (citation

omitted).
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          “Industrial disability goes beyond body impairment and measures the

extent to which the injury impairs the employee’s earning capacity.”           Second

Injury Fund v. Shank, 516 N.W.2d 808, 813 (Iowa 1994). The commissioner

considers all of the factors bearing on a claimant’s actual employability, including

the employee’s “age, intelligence, education, qualifications, experience, and the

effect of the injury on the claimant’s ability to obtain suitable work.” Id. at 815

(citation omitted).

          The deputy found:

                  The record reflects that the claimant has significant
          permanent restrictions that preclude him from performing the only
          work that he has known. The claimant has no work experience that
          would be relevant to his education, which is now stale. There is no
          reason to believe, based on this record, that the claimant is going to
          return to the workforce. The reason that he is not able to return is a
          direct result of his work injury. The claimant is permanently and
          totally disabled.

The deputy stated, “Total disability does not mean a state of absolute

helplessness. Permanent total disability occurs where the injury wholly disables

the employee from performing work that the employee’s experience, training,

education, intelligence, and physical capacities would otherwise permit the

employee to perform.”         The commissioner affirmed the finding Jones was

permanently and totally disabled.

          The commissioner properly considered the facts and the law in finding

Jones was permanently and totally disabled. The evidence supports the finding

Jones was not able to return to work due to the injury he received on

December 6, 2009.        All of Jones’s previous work experience was as a truck

driver.     Dr. Koprivica restricted Jones from “whole body vibration or jarring
                                             8


activities such as operating heavy equipment or commercial driving,” meaning he

could no longer drive a truck. We conclude the commissioner’s decision on this

issue is not irrational, illogical, or wholly unjustifiable.

       We affirm the district court decision, which affirmed the ruling of the

workers’ compensation commissioner.

       AFFIRMED.
