January 11, 2017
ALFREDO AYALA, Petitioner-Appellant,
TYSON FOODS INC., Respondent-Appellee.
from the Iowa District Court for Polk County, Paul D. Scott,
appeals the denial of his petition for review-reopening.
W. Bribriesco and William J. Bribriesco of Bribriesco Law
Firm, Bettendorf, for appellant.
Z. Dickson of Betty, Neuman & McMahon, P.L.C., Davenport,
Considered by Danilson, C.J., and Doyle and McDonald, JJ.
Ayala challenges the Iowa Workers' Compensation
Commissioner's decision denying Ayala's
review-reopening petition to increase his permanent
disability benefits. Ayala contends the commissioner's
decision was irrational, illogical, and wholly unjustifiable.
Ayala also contends the decision is not supported by
review of final agency action is limited. See Iowa
Code § 17A.19(10). "The administrative process
presupposes judgment calls are to be left to the agency.
Nearly all disputes are won or lost there." Sellers
v. Emp't Appeal Bd., 531 N.W.2d 645, 646 (Iowa Ct.
App. 1995) (citation omitted). Rarely will the judiciary
reverse final agency action on the ground the decision is
irrational or not supported by substantial evidence. See
McComas-Lacina Constr. v. Drake, No. 15-0922, 2016 WL
2744948, at *1 (Iowa Ct. App. May 11, 2016) ("A case
reversing final agency action on the ground the agency's
action is unsupported by substantial evidence or is
irrational, illogical, or wholly unjustifiable is the Bigfoot
of the legal community-an urban legend, rumored to exist but
times material hereto, Ayala was employed by Tyson Foods,
Inc. Ayala suffered a compensable back injury in 2006. His
doctor assigned him a rating of thirteen percent partial
impairment to the body as a whole and imposed work
restrictions, including not lifting over twenty pounds and
avoiding repetitive bending, twisting, and stooping. In 2009,
the agency found Ayala suffered a forty-five percent
industrial disability and awarded him commensurate permanent
disability benefits. Neither Ayala nor Tyson appealed the
prior agency decision.
February 2013, Ayala filed a petition for review-reopening,
claiming his industrial disability had increased and he was
entitled to additional industrial disability benefits.
The workers' compensation statutory scheme contemplates
that future developments (post-award and post-settlement
developments), including the worsening of a physical
condition or a reduction in earning capacity, should be
addressed in review-reopening proceedings. The
review-reopening claimant need not prove, as an element of
his claim, that the current extent of disability was not
contemplated by the commissioner (in the arbitration award)
or the parties (in their agreement for settlement).
Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392
(Iowa 2009) (citation omitted). Instead, the claimant must
prove by a preponderance of the evidence an entitlement to
increased compensation. See Iowa Code §
86.14(2) ("In a proceeding to reopen an award for
payments or agreement for settlement as provided by section
86.13, inquiry shall be into whether or not the condition of
the employee warrants an end to, diminishment of, or increase
of compensation so awarded or agreed upon."); E.N.T.
Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994)
("The claimant carries the burden of establishing by a
preponderance of the evidence that, subsequent to the date of
the award under review, he or she has suffered an impairment
or lessening of earning capacity proximately caused by the
original injury."). In the context of an industrial
disability determination, this requires the claimant
establish a "reduction in the employee's earning
capacity." Iowa Code § 85.34(2)(u). "Factors
that should be considered [in assessing industrial
disability] include the employee's functional disability,
age, education, qualifications, experience, and the ability
of the employee to engage in employment for which the
employee is fitted." Quaker Oats Co. v. Ciha,
552 N.W.2d 143, 157 (Iowa 1996).
commissioner found Ayala had not proved any increase in his
industrial disability and denied the petition. The record
reflects Ayala underwent fusion surgery in May 2012. He
returned to work in October 2012. In 2013, his doctor, Dr.
Sergio Mendoza, found Ayala had sustained eighteen percent
partial impairment to the body as a whole and imposed a
restriction of not lifting more than fifty pounds. Ayala
chose to do a reevaluation in May 2014. His doctor, Dr.
Robert Milas, increased Ayala's impairment rating to
twenty-three percent. He also recommended restricting lifting
to twenty pounds. Ayala complained of new symptoms associated
with his injury, including numbness in his feet and
difficulty sleeping. The commissioner acknowledged the
medical evidence but also found there had been no change in
Ayala's earning capacity. Ayala was able to manage his
pain with over-the-counter medication. His work restrictions
remained largely unchanged or lessened. Ayala remained
employed by Tyson in a position within his work restrictions.
He earned $14.00 per hour-more than at the time of the
initial decision. He worked approximately forty to fifty
hours per week. He had not suffered any absenteeism due to
contends the commissioner's decision was irrational,
illogical, and wholly unjustifiable. Ayala argues the
commissioner improperly considered the work accommodations
provided Ayala and Ayala's actual earnings. Where, as
here, the application of law to fact "has clearly been
vested by a provision of law in the discretion of the agency,
" the court will disturb the commissioner's decision
only where it is "irrational, illogical, or wholly
unjustifiable." Iowa Code § 17A.19(10)(m); see
Larson Mfg. Co. v. Thorson, 763 N.W.2d 842, 856-57 (Iowa
2009) (finding because the claimant's "challenge to
the agency's industrial disability determination is a
challenge to the agency's application of law to the
facts, we review this issue under the 'irrational,
illogical, or wholly unjustifiable' standard."
(citation omitted)). "A decision is 'irrational'
when it is 'not governed by or according to reason.'
A decision is 'illogical' when it is 'contrary to
or devoid of logic.' A decision is
'unjustifiable' when it has no foundation in fact or
reason." Sherwin-Williams Co. v. Iowa Dep't of
Revenue, 789 N.W.2d 417, 432 (Iowa 2010) (citations
cannot conclude the commissioner's decision was
irrational, illogical, or wholly unjustifiable. The
commissioner considered Ayala's functional impairment.
However, functional impairment is a single, but not
controlling, factor in determining the extent of an
industrial disability. See Hill v. Fleetguard, Inc.,
705 N.W.2d 665, 673 (Iowa 2005). The commissioner properly
considered other factors, including Ayala's current
employment and work conditions, to the extent those factors
were probative of Ayala's earning capacity at the time of
the hearing. This was a permissible consideration. See
Warren Props. v. Stewart, 864 N.W.2d 307, 317 (Iowa
2015) (stating actual earnings can create a presumption of
earning capacity that can be overcome with other evidence
showing the claimant's "actual earnings do not
fairly reflect claimant's capacity." (citation
omitted)); Murillo v. Blackhawk Foundry, 571 N.W.2d
16, 18 (Iowa 1997) ("We think the proper rule should be
that an employer's special accommodation for an injured
worker can be factored into the award determination to the
limited extent the work in the newly created job discloses
that the worker has a discerned earning capacity. To qualify
as discernible, it must appear that the new job is not just
'make work' provided by the employer, but is also
available to the injured worker in the competitive
market."); Wright v. Midamerican Energy Co.,
No. 03-0496, 2004 WL 360475, at *2 (Iowa Ct. App. Feb. 27,
2004) (stating actual earnings are probative of earning
also argues the commissioner's decision was not supported
by substantial evidence. In support of this argument, Ayala
references medical evidence establishing his physical
condition may be worsening. "'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."
Iowa Code § 17A.19(10)(f)(1). "Evidence is not
insubstantial merely because different conclusions may be
drawn from the same evidence." Cedar Rapids Cmty.
Sch. Dist. v. Pease, 807 N.W.2d 839, 845 (Iowa 2011);
see McComas-Lacina Constr., 2016 WL 2744948, at *1.
conclude the agency's findings are supported by
substantial evidence. "[T]he question on appeal is not
whether the evidence supports a different finding than the
finding made by the commissioner, but whether the evidence
'supports the findings actually made.'"
Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006)
(citation omitted). The commissioner's findings are
applied broadly "to uphold his decision." Beier
Glass Co. v. Brundige, 329 N.W.2d 280, 282 (Iowa 1983).
While there may be some medical evidence supporting the
finding that Ayala's physical condition has worsened
since the time of the original industrial disability award,
the medical evidence is only a single factor in determining
industrial disability. Other evidence supported the
agency's finding that Ayala's earning capacity
remained unchanged. As the district court explained:
While Ayala underwent surgery following the original
arbitration decision, there is substantial evidence to
indicate that it did not further hinder his earning capacity.
He has been fully able to perform in the same capacity as he
did at the time of the Arbitration Decision. He does not
require any further accommodations than what he did at the
time of the Arbitration Decision. His work restrictions, if
changed, have improved. He is content in his job. He does not
take prescription medicine for pain. A reasonable mind would
deem this evidence adequate to support the conclusion that
Ayala's present condition is no worse than it was in
September of 2009.
agree with the district court's conclusion.
foregoing reasons, we affirm the judgment of the district