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[T] Thompson v. Brown Brothers Inc.11/17/2003
ubsequently appealed to this court. In Brown Bros., Inc., v. Thompson, No. 00-498 (Iowa Ct. App. April 27, 2001), we remanded to the workers' compensation commissioner after determining the commissioner had improperly applied the "last injurious exposure rule" to a cumulative injury case. Because a panel of this court was unable to discern whether the commissioner determined Thompson sustained his burden based on finding a causal connection between Thompson's injury and his work at Brown Brothers or simply because Brown Brothers was Thompson's last place of employment, we remanded to the commissioner for a redetermination of Brown Brothers' liability "under controlling legal principles."
Upon remand, the chief deputy workers' compensation commissioner found Thompson's rotator cuff tear occurred sometime before Thompson's May 15, 1995 re-employment with Brown Brothers and therefore concluded Thompson "has failed to prove... that there is a causal connection between his employment with defendant employer as alleged...." On judicial review, the district court affirmed, concluding substantial evidence supported the agency's determination Thompson's injury did not arise out of his employment with Brown Brothers from May 15, 1995, through July 8, 1995. Thompson appeals.
Standard of Review
Our review of a workers' compensation commissioner's decision is on error, not de novo. Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 271 (Iowa 1995). We, like the district court, are bound by factual findings made by the commissioner so long as those findings enjoy substantial support in the record made before the agency. Id. The commissioner's interpretation of the workers' compensation statutes is entitled to deference, but the final interpretation of law rests with the court. Teel v. McCord, 394 N.W.2d 405, 407 (Iowa 1986).
We will uphold the agency's action against a claim it is unsupported by substantial evidence in the record made before the agency when the record is viewed as a whole, if a reasonable person could accept the evidence as adequate to reach the findings made by the agency. Pointer v. Iowa Dep't of Transp., 546 N.W.2d 623, 625 (Iowa 1996). Evidence is not insubstantial merely because it would have supported contrary inferences. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Nor is evidence insubstantial because of the possibility of drawing two inconsistent conclusions from it. Id. The ultimate question is not whether the evidence supports a different finding but whether the evidence supports the findings actually made. Id. Therefore, if the agency's findings of fact are supported by substantial evidence, those findings are binding on us. Id.
Discussion
A claimant seeking workers' compensation benefits has the burden of proving by a preponderance of the evidence that the disability on which he or she bases a claim arose out of and in the course of the claimant's employment. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000). The question of causal connection is essentially within the domain of expert testimony. Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). The commissioner is free to accept or reject, in whole or in part, expert testimony even if uncontroverted. Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974).
This is a repetitive, or cumulative, trauma case. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 374 (Iowa 1985) (recognizing cumulative injury as a viable theory of recovery under the workers' compensation code). In McKeever our supreme court determined that when a disability develops over a period of time, the compensable injury is
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