IN THE COURT OF APPEALS OF IOWA

No. 14-0044

Filed March 11, 2015

STEVEN J. BELL JR.,

Petitioner-Appellant,

vs.

3E, a/k/a ELECTRICAL & ENGINEERING

CO., and TRAVELERS INDEMNITY/CT,

Respondents-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P. 

McLellan, Judge. 

An employee appeals a judicial review decision affirming the award by the

workers’ compensation commissioner. AFFIRMED.

Mark Soldat of Soldat, Parrish-Sams & Gustafson, P.L.C., West Des 

Moines, for appellant.

James M. Ballard of Ballard Law Firm, P.L.L.C., Waukee, for appellees.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

Employee Steven Bell challenges a finding by the Iowa Workers’

Compensation Commissioner that he suffered a five percent industrial disability 

following a workplace fall. Bell claims the commissioner erred in not considering 

his possible career as a firefighter in determining his lost earning capacity. Bell 

also claims the commissioner failed to make the credibility findings required by

Iowa Code section 17A.16 (2011). Bell further argues the commissioner 

prematurely decided the extent of permanent disability. 

The commissioner adopted the deputy’s decision, which explained the 

deputy’s reasoning and pointed to relevant evidence in the record supporting the

conclusions. Substantial evidence supports the commissioner’s findings of five 

percent industrial disability and maximum medical improvement. Accordingly, we 

affirm. 

I. Background Facts and Proceedings

Steven Bell Jr. was working as an “inside sales” representative for 

Electrical & Engineering Co. (3E). He was on his way to lunch on March 19, 

2010, when he slipped and fell in the 3E lobby. At the time of the fall, Bell was 

forty-two years old. 

The fall resulted in a left wrist sprain, a trauma-induced ganglion cyst, 

lower back strain, and a contusion to the left shoulder and elbow. On March 22, 

2010, Bell saw Dr. Richard McCaughey, D.O. Dr. McCaughey diagnosed Bell 

with “residual tenderness” in his left elbow, wrist, shoulder, and right lower back. 

An MRI on March 23, 2010, revealed “arthritic changes with a bony hypertrophy 
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and soft tissue hypertrophy at the acromioclavicular joint” along with a “tiny 

inferior surface tear involving the supraspinatus tendon anteriorly.” Bell returned 

to work in late March, restricted from using his left arm. Bell saw Dr. Barron 

Bremner, D.O. for his wrist and shoulder. Dr. Bremner recommended physical 

therapy and predicted Bell “should have a full recovery.” 

Bell underwent surgery, performed by Dr. Bremner, to remove the cyst 

from his wrist in early May and continued physical therapy for his wrist and 

shoulder. After leaving physical therapy in mid-May 2010, Bell returned at the 

end of the month complaining of increased back pain. Dr. McCaughey ordered 

an MRI for Bell’s back. The MRI, done on June 22, 2010, revealed no problems 

or “abnormalities of the lumbar spine.” On June 24, 2010, Dr. McCaughey 

released Bell to work without restrictions. 

On June 4, 2010, Bell filed a petition with the workers’ compensation 

commission. A deputy commissioner held a hearing on May 4, 2011, and filed 

her decision on July 21, 2011. The deputy found Bell’s accident left him with a 

five percent industrial disability. On October 15, 2012, the commissioner 

adopted the findings of the deputy. Bell sought judicial review, and on July 9, 

2013, the district court affirmed the commissioner on all grounds. 

Bell now appeals.

II. Scope and Standards of Review

Our review is governed by Iowa Code chapter 17A. See Mike Brooks, Inc. 

v. House, 843 N.W.2d 885, 888 (Iowa 2014). Under chapter 17A, the district 

court acts in an appellate capacity to correct errors of law. Id. In reviewing the 
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district court’s decision, we apply the standards of chapter 17A to determine 

whether we reach the same conclusions as the district court. Id. at 889. If we 

do, we affirm; if not, we reverse. Id.

We have authority to affirm the agency action or remand to the agency for 

further proceedings. Iowa Code § 17A.19(10). We may “reverse, modify, or 

grant other appropriate relief” if we determine the agency’s ruling was “not 

supported by substantial evidence” or was otherwise legally flawed. Id. On 

appeal, Bell alleges error under the following paragraphs of Iowa Code section 

17A.19(10)—(b), (c), (f), (i), (j), (m), and (n). 

Substantial evidence is defined as “the quantity and quality of evidence 

that would be deemed sufficient by a . . . reasonable person, to establish the fact 

at issue.” Iowa Code § 17A.19(10)(f)(1). We give significant deference to the 

agency’s credibility findings. Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242, 

247 (Iowa 2006). As reviewing courts, we can only grant relief if the agency’s 

factual determination “is not supported by substantial evidence in the record 

before the court when that record is reviewed as a whole.” Id. 

Because Bell’s challenge to the commissioner’s industrial disability 

determination depends on the application of law to facts, we will not disturb the 

ruling unless it is “irrational, illogical, or wholly unjustifiable.” See Neal v. Annett 

Holdings, Inc., 814 N.W.2d 512, 526 (Iowa 2012).
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III. Analysis

A. Lost Earning Capacity

Bell first argues the commissioner erred in calculating the extent of his 

industrial disability because the deputy’s decision rejected evidence in the record 

comparing his pre-injury and post-injury capacity to be a firefighter.

Industrial disability measures an injured worker’s lost earning capacity. 

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

factors for determining disability include the employee’s functional impairment, 

age, intelligence, education, qualifications, experience, and the ability of the 

employee to engage in employment for which he is suited. Id. Considering 

these factors, the focus is not solely on what the worker can and cannot do; the 

focus is on the ability of the worker to be gainfully employed. Guyton v. Irving 

Jensen Co., 373 N.W.2d 101, 104 (Iowa 1985). 

The agency record included evidence concerning Bell’s aspirations to be a 

firefighter. Bell received his degree in fire and science technology from Des 

Moines Area Community College (DMACC) in 1997. He passed both the written 

and physical agility examinations required to serve as a firefighter. His name

appeared on the hiring list for the Des Moines Fire Department, but he was never 

offered a firefighter position. Bell served as a volunteer firefighter in Grimes for 

two years. Bell has not applied for any firefighter positions since 1997. After 

1997, Bell worked in counter sales for 3E, then in 2005 Bell moved to inside 

sales. The inside sales job requires Bell to enter orders into his computer at his 

desk in the office. 
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On appeal, Bell focuses on a footnote in the deputy’s decision and 

adopted by the commissioner, which is somewhat dismissive of the proof Bell 

had the capacity to be a firefighter. That footnote stated:

There was a great deal of evidence on [Bell’s] desire to someday 

get back to being a firefighter. He claimed that this was his dream 

position yet between 1997 when he quit because of the birth of his 

son and prior to his injury in 2010, [Bell] never applied for another 

position, either permanent or volunteer. Because of this, [the 

deputy commissioner] did not consider [Bell’s] industrial disability to 

include firefighter positions. If anything, the multitude of evidence 

regarding [Bell’s] desire to be a firefighter was an attempt to 

exaggerate his claim and incorrectly inflate [Bell’s] loss of 

employability. 

Bell argues this footnote shows the commissioner misapplied the legal 

principles governing industrial disability determinations. He claims the workers’

compensation statute does not require an employee to have pursued a particular

position to establish he or she has the capacity to perform it. Bell contends the 

commissioner failed to consider evidence Bell had the capacity to generate more 

earnings as a firefighter than the income he received from working in sales for

3E. Bell requests we reverse and remand for the commissioner to consider his 

earning capacity as a firefighter. 

On judicial review, the district court decided Bell “provided no objective 

proof that he was capable of becoming a firefighter immediately prior to his 2010 

injury. Therefore, the court finds that the commissioner properly considered the 

fact of Bell’s minimal work experience as a firefighter when he chose not to 

include any lost earning capacity from employment as a firefighter.”

We agree with the district court’s analysis. The commissioner noted Bell’s 

DMACC coursework and his work history as a volunteer firefighter. The 
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commissioner also observed that Bell “quit the volunteer firefighter position to 

spend more time with his son” in 1997 and had not worked in a physically 

demanding position since then. Bell presented no objective evidence he was still 

capable of being a firefighter; twelve years had passed between Bell taking the 

exams and his workplace injury. The commissioner properly considered Bell’s 

fitness for employment as a firefighter and determined the evidence did not show 

he had the current ability to work in that field. 

B. Section 17A.16

Bell next argues the arbitration decision drafted by the deputy 

commissioner and adopted by the commissioner failed to satisfy Iowa Code 

section 17A.16 because it did not separate its findings of fact from its conclusions

of law and did not offer credibility findings concerning the witnesses. 

Section 17A.16 requires the commissioner to give “findings of fact and 

conclusions of law, separately stated.” Iowa Code § 17A.16. The provision also 

mandates that the commissioner’s factual findings “if set forth in statutory 

language, shall be accompanied by a concise and explicit statement of 

underlying facts supporting the findings.” Iowa Code § 17A.16. This mandate is 

consistent with “the commissioner’s duty as the trier of fact to determine the 

credibility of the witnesses, weigh the evidence, and decide the facts in issue.” 

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 259–60 (Iowa 2012).

We do not hold the commissioner to technical compliance with this 

provision as long as we can determine where finding of facts end and 

conclusions of law begin or otherwise can track the commissioner’s analytical 
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process. See Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 

2008). If we can work backward from the agency’s ultimate outcome, we will not 

find error under section 17A.16. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 

904, 909 (Iowa 1987).

The agency decision is divided into a finding-of-fact section and a 

conclusion-of-law section. The decision logically sets forth the commissioner’s 

thought process. The decision gives specific findings on Bell’s credibility and 

while other credibility findings are not explicit, they can be discerned from the 

direction of the analysis. See Second Injury Fund v. Braden, 459 N.W.2d 467, 

471 (Iowa 1990) (finding credibility determination inhered in ruling when order 

contained no specific discussion of credibility). On this record, we find the 

agency complied with section 17A.16. See Bridgestone/Firestone, Pac. Emp’rs 

Ins. v. Cathy Accordino, 561 N.W.2d 60, 62 (Iowa 1997). 

C. Maximum Medical Improvement

In his final assignment of error, Bell argues the issue of permanent 

disability was not ripe for adjudication because the doctors did not find he had 

reached maximum medical improvement (MMI) for his back injury. MMI refers to 

stabilization of the worker’s condition or at least a finding the condition is not 

likely to abate in the future despite medical treatment. See Dunlap v. Action 

Warehouse, 824 N.W.2d 545, 557 (Iowa Ct. App. 2012). Before a worker has 

achieved MMI, only temporary benefits are available. See Bell Bros. Heating &

Air Conditioning v. Gwinn, 779 N.W.2d 193, 200 (Iowa 2010). 
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Dr. John D. Kuhnlein, D.O. performed an independent medical 

examination (IME) of Bell on February 23, 2011. Bell asserts Dr. Kuhnlein “only 

indicated conditionally” that Bell had “reached maximum medical improvement 

for his back pain without further treatment on June 24, 2010, his last visit with Dr. 

McCaughey.” Bell contends the commissioner’s decision on permanent benefits 

violated the dictates of Bell Bros., 779 N.W.2d at 201.

3E argues the commissioner’s decision that Bell had reached MMI was 

supported by substantial evidence. Dr. Kuhnlein stated: “Mr. Bell reached 

maximum medical improvement for his upper extremity conditions on November 

7, 2010, six months after surgery.” Dr. Kuhnlein further opined Bell reached MMI 

for his back in June 2010. 3E asserts that when Dr. Kuhnlein made the 

statement “without further treatment” he was only referring to future treatment if 

Bell could not tolerate the back pain, not future healing. 

Dr. Kuhnlein explained:

I would only suggest a pain specialist if his current treatment is not 

adequate to treat his back pain. Mr. Bell may need to acknowledge 

that he will have some ongoing back pain for the foreseeable 

future, and, only if it is unmanageable, would he need to see a 

chronic pain specialist for his back.

We agree with 3E. Reading the full opinion of Dr. Kuhnlein, it is evident the

expert believed Bell had reached MMI for his back injury and only suggested 

future treatment for pain management.

The commissioner granted future alternative care for any ongoing pain

treatment. MMI and alternative care are not necessarily mutually exclusive. Our 

supreme court has decided ongoing pain does not extend the healing period if it 
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does not decrease the industrial disability. Pitzer v. Rowley Interstate, 507 

N.W.2d 389, 392 (Iowa 1993). Here, the record shows any future treatments

anticipated by Dr. Kuhnlein would be aimed at managing Bell’s back pain. We 

find that in accordance with Bell Bros., the question of permanent impairment 

was ripe for the commissioner’s consideration.

AFFIRMED.