IN THE COURT OF APPEALS OF IOWA No. 14

- 0141 Filed October 1, 2014 MARION LINDEN, Petitioner

- Appellant,

vs. TYSON FOODS, INC., Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Polk County, Robert J. Blink , Judge.

A worker appeals from the district court’s judicial review decision affirming the workers’ compensation commission’s decision. AFFIRMED.

Willis J. Hamilton of Hamilton Law Firm, P.C., Storm Lake, for appellant. Timothy A. Clausen and Deena A. Townley o f Klass Law Firm, L.L.P., Sioux City, for appellee.

Considered by Potterfield, P.J., and Tabor and Mullins, JJ.2

MULLINS, J. Marion Linden appeals the district court’s judicial review decision that affirmed the workers’ compensation commissioner’s rul ing awarding her benefits for a scheduled member injury to her right arm. She asserts the agency incorrectly interpreted the law regarding when a scheduled

- member injury becomes a body

- as - a - whole injury. She also claims the agency decision is not support ed by substantial evidence and should be remanded for the agency to calculate her industrial disability. Because we conclude the agency correctly interpreted the applicable law and substantial evidence supports the agency’s decision, we affirm the judicia l review decision of the district court. Linden suffered a severe comminuted facture of her right elbow as a result of a fall at work. The employer accepted the injury and provided benefits for the right upper extremity as a scheduled

- member injury. How ever, Linden asserts the injury has affected her shoulder, converting her scheduled

- member injury into a body

- as - a - whole injury. See Iowa Code § 85.34(2)(m), (u) (2011). The agency disagreed and awarded her disability benefits based only on her right upper extremity impairment. The district court affirmed the agency’s conclusions on judicial review, stating the agency “correctly noted ‘[t]he situs of the impairment is the anatomical location of the physical damage or derangement.’” Linden first alleges the agency incorrectly interpreted the applicable law regarding when a scheduled m ember injury converts to a body

- as - a - whole3

injury. 1 The agency correctly noted, “An inj ury to a scheduled member may, because of after effects or compensatory change, result in permanent impairment of the body as a whole. Such i mpairment may in turn be the basis for a rating of industrial disability.” See Lauhoff Grain Co. v. McIntosh , 395 N.W.2d 834, 837 (Iowa 1986) (“ ‘ [T ]he great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule d allowance for the lost member is not exclusiv e

. ’ ” ( citing 2 A. Larson, The Law of Workmens’ Compensation § 58.21, at
10

– 222 to 10

– 243 (1979) )); see also Dowell v. Wagler , 509 N.W.2d 134, 138 (Iowa Ct. App. 1993) (finding phantom pain syndrome may be compensated as an unscheduled injury to the body as a whole which resulted after the worker’s arm was amputated below the elbow )

. We conclude the agency correctly interpreted the applicable law. Linden’s second claim on appeal is that the agency was wrong when it chose to disbelieve Linden’s complaints of pain in her shoulder. This challenge addresses the agency’s factual finding, rather than its legal interpretation. “ The commissioner, as trier of fact, has a duty to weigh the evidence and measure the credibility of witnesses. ” Cedar Rapids Cm ty . Sc h. Dist. v. Pease , 807 N.W.2d 839, 845 (Iowa 2011). The agency is also charged with the duty to accept or reject expert testimony. Id

. Our job on judicial review is simply to see if

“ substantial evidence supports a finding ‘ according to those witnesses whom the

1 See Waldinger Corp. v. Mettler , 817 N.W.2d 1, 5

– 6 (Iowa 2012) (outlining the applicable scope and standard of review for judicial review actions that involv e the agency’s interpretation of law).4

[commissioner] believed

. ’” Arndt v. City of Le Claire , 728 N.W.2d 389, 395 (Iowa 2007) (citation omitted). The agency gave greatest weight to Linden’s statements of pain contained in the physical therapy records, c oncluding these statements were made in the course of Linden’s recovery and not as part of the litigation process, such as her statement to her independent medical examination (IME) physician or Linden’s hearing testimony. The agency recounted Linden’s co mplaints of shoulder pain to her physical therapist and noted that as of February 15, 2010, Linden said her shoulder was feeling better. 2 The agency also credited the testimony of the treating physician and the employer’s IME examiner, who opined the in jury was confined to Linden’s right elbow and does not extend to her right shoulder. The agency found these opinions more consistent with the overall medical evidence than the opinions of Linden’s IME physician who asserted her injury was to her body as a whole as a result of neuropathic pain extending from the elbow to the shoulder and the loss of the range of motion in the shoulder . We find substantial evidence to support the agency’ s factual findings. While the result may have been different had the

a gency believed Linden and her IME physician, “[e] vidence is not insubstantial merely because different conclusions may be drawn from the evidence. ” Pease , 807 N.W.2d at 845.
AFFIRMED.

2 The agency also noted Linden had a separate nonwork related injury to her right shoulder ove r New Year’s 2010.