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American National Can Co. v. Bacon5/31/2002
her disc at C7-T1 such that it finally did herniate.
I do not think that she is able to return to work because of her weak right hand grip and that this represents a permanent radiculopathy. The patient continues to have the symptoms as described in the first paragraph of this report.
His opinion is supported by medical progress notes from a visit approximately a year after the door episode in which he stated Bacon suffered from a "chronic lumbar strain" and a "chronic cervical strain" and opined it was "medically reasonable to say that this is causally related to the injury at work on 6/27/96."
The deputy commissioner accepted these opinions over those of two physicians retained by American Can who refused to find a causal connection. He was free to do so, as long as he explained why. See Al-Gharib, 604 N.W.2d at 631 (commissioner, as the fact finder, determines the weight to be given to any expert testimony). The deputy commissioner provided such an explanation. He noted the views of the treating physicians were more credible, as they were not retained solely for purposes of litigation and they had more clinical involvement with Bacon.
American Can nevertheless suggests we should accord little weight to this credibility determination, given Dr. Winston's equivocal final causation opinion and a contrary initial causation opinion. However, the fact that Dr. Winston did not opine that the door incident was the sole cause of Bacon's 1998 surgery does not undermine his opinion because, as Bacon points out, the incident need only be a "significant factor" in bringing about the injury. See Varied Enterprises v. Sumner, 353 N.W.2d 407, 410 (Iowa 1984). Additionally, Dr. Winston explained the discrepancies in his initial and final opinions by noting he had only reviewed one set of records prior to rendering his first opinion. For these reasons, we believe the commissioner was free to adopt his opinion over those of the employer's physicians. Id. Dr. Winston's opinion, together with Dr. Jones's opinion and Bacon's testimony concerning her pain provided substantial evidentiary support for the commissioner's causation determination.
III. Earning Capacity
The commissioner determined Bacon sustained a sixty percent loss of earning capacity. American Can contends this determination is not supported by substantial evidence.
Loss of earning capacity is the measure for compensation of unscheduled injuries such as the ones at issue here. St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 653 (Iowa 2000). It requires consideration of all factors bearing on a claimant's employability. Id. These factors include the claimant's age, qualifications, motivation, education and functional impairment. See Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 616 (Iowa 1995).
The deputy commissioner found:
Wilma has been financially devastated by this work injury and her inability to return to American Can. Wilma is essentially unable to return to light manufacturing work, the work that is best suited to her given her work history and lack of education. Wilma is 54 years of age. She has only a tenth grade formal education and no GED. Her only work experience outside of American Can has been as a custodian and mail clerk. Her job at American Can paid very well compared to unskilled, light work that she is only capable of performing today. Such work must be at or slightly above minimum wage.
These findings are supported by the agency record. Bacon earned more than eighteen dollars per hour when she last worked at American Can. Both Dr. Winston and Dr. Jones opined she could not return to her job there. Given these opinions, to
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