VELENE K. MERRICK, Plaintiff-Appellant,
CRESTRIDGE, INC. and IOWA LONG TERM CARE RISK MANAGEMENT ASSOCIATION, Defendants-Appellees.
from the Iowa District Court for Scott County, Henry W.
Latham II, Judge.
seeks judicial review of the workers' compensation
commissioner's decision denying her benefits.
Matthew A. Leddin of Soper Leddin Law Firm, P.C., Davenport,
Matthew R. Phillips of Bradshaw, Fowler, Proctor &
Fairgrave, Des Moines, for appellees.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
Velene Merrick seeks judicial review of the workers'
compensation commissioner's decision denying her claim
for industrial disability benefits. The workers'
compensation commissioner concluded Merrick established she
suffered a work-related injury to her shoulder but did not
meet her burden of proof in establishing the shoulder injury
resulted in permanent disability. The district court affirmed
the agency's ruling, and Merrick timely filed this
appeal. On appeal, Merrick contends the agency's decision
is not supported by substantial evidence and the agency
misapplied the law to the facts.
Code chapter 17A governs our review of the workers'
compensation commissioner's decision. See Iowa
Code § 86.26 (2017); Mike Brooks, Inc. v.
House, 843 N.W.2d 885, 888 (Iowa 2014). Judicial 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). "When we review findings
of the industrial commissioner, those findings carry the
effect of a jury verdict. We will reverse an agency's
findings only if, after reviewing the record as a whole, we
determine that substantial evidence does not support
them." Terwilliger v. Snap-On Tools Corp., 529
N.W.2d 267, 271 (Iowa 1995). In determining whether the
agency's decision is supported by substantial evidence,
the ultimate question is not whether the evidence supports a
different finding but whether it supports the findings the
commissioner actually made. See id. "Further,
the commissioner's application of law to the facts as
found by the commissioner will not be reversed unless it is
irrational, illogical, or wholly unjustifiable."
Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 518
(Iowa 2012). Rarely will the judiciary reverse final agency
action on the ground the decision is not supported by
substantial evidence or involves an irrational application of
the law to the facts. 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 . . . an urban legend, rumored to
exist but never confirmed.").
agency record shows Merrick commenced employment with
Crestridge, Inc., a retirement home, as a CNA in April 2011.
Several months later, Merrick suffered an injury to her right
shoulder when a patient grabbed or struck her arm. The record
reflects Merrick had suffered a work-related injury to her
right shoulder with a prior employer, but she had recovered
from the injury before her employment with Crestridge. With
respect to the injury at issue, Merrick claimed she felt a
pop and experienced right shoulder pain. The same day, she
treated with Dr. Bybee, a general practitioner, who
recommended limited activity, pain management, and a
follow-up. An x-ray was negative for fracture or dislocation.
After several follow-up visits, Merrick was referred to Dr.
Hussain, an orthopedic specialist.
began treating with Dr. Hussain in August 2011. Dr.
Hussain's initial impression was Merrick "likely had
an injury that has caused capsulitis." He ordered
light-duty work, recommended physical therapy, and gave
Merrick an injection in her shoulder to reduce pain and
inflammation. At a follow-up appointment in September 2011,
Dr. Hussain noted Merrick's underlying problem was
"multidirectional instability that probably got
flared." He continued to recommend light-duty work,
including lifting restrictions, and physical therapy. Dr.
Hussain's records from a November appointment provide:
She reports she is doing really well after injection therapy
and physical therapy course. She is getting back pain-free
range of motion and has regained motion quite significantly.
She has some mild discomfort in her biceps tendon but is
overall improving accordingly . . . She would like to go back
to work in terms of full duty. . . . .
Assessment: Resolving shoulder discomfort with marked
improvement since last time I saw her.
Plan: I am going to have her, per the recommendation of the
therapist, do a home exercise program. We will release her to
full duty with no restrictions in a month, but in the
meanwhile I am going to limit her to lifting less than 50
pounds in order to help progress her back into normal
activities to prevent ...