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Simmering v. Kirkwood Community College10/26/2005
A. Legal Standard
We turn first to Simmering's claim that the agency applied an incorrect legal standard in assessing whether his work injury aggravated his pre-existing condition. Simmering contends the agency erroneously ignored the following language, found in Ziegler v. U.S. Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1961):
It is, of course, well settled that when an employee is hired, the employer takes him subject to any active or dormant health impairments incurred prior to this employment. If his condition is more than slightly aggravated, this resultant condition is considered a personal injury within the Iowa law.
(Emphasis added). We cannot agree.
Both before and after its decision in Ziegler, our supreme court has repeatedly held that "if plaintiff was diseased and his condition was aggravated, accelerated, worsened or 'lighted up' by the injury so it resulted in the disability found to exist plaintiff was entitled to recover." Rose v. John Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 761 (1956). It has not repeated the "slightly aggravated" language of Ziegler, but has approved, at least implicitly, the standard of "material" aggravation or acceleration. See P.D.S.I., 685 N.W.2d at 630; Second Injury Fund of Iowa v. Nelson, 544 N.W.2d 258, 263 (Iowa 1995); Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 375, 112 N.W.2d 299, 302 (1961). This is the same standard applied by the agency.
To the extent Simmering contends the agency erroneously required a "substantial" aggravation or acceleration, we note the commissioner used the terms "substantial" and "material" interchangeably, apparently treating them as synonymous terms. This is consistent with the plain and ordinary meanings of the words. See Webster's New Collegiate Dictionary 702-03 (material), 1153 (substantial) (1980); Webster's Collegiate Thesaurus 511 (material), 796 (substantial) (1976). Moreover, we note that "slight" is defined, in relevant part, as "lacking in . . . substance" or "deficient in . . . importance." Id. at 1084. Thus, we perceive little difference between the "more than slightly" language used in Ziegler, and the "substantial or material" language employed by the agency. Like the district court, we find no legal error in the agency decision.
B. Substantial Evidence
We therefore turn to Simmering's contention that the agency failed to properly consider the following admission by Kirkwood: " he work injury of February 15, 2000, caused a fracture through the proximal tibial osteotomy site" of the left knee. Simmering asserts that proper consideration of this fact requires rejection of Dr. Kimelman's opinion because Dr. Kimelman stated, in part, that he saw no substantial difference in x-rays taken before and after the February 15 fall, and that while Simmering "may have hurt his knee and may have in some way torqued or twisted or contused the nonunion site causing increased pain, I don't believe it substantially had any effect in keeping that bone from healing . . . ." (Emphasis added). Simmering appears to assert that, once Dr. Kimelman's opinion is rejected, the record no longer contains substantial evidence in support of the agency's decision. Once again, we cannot agree with Simmering's contentions.
Kirkwood made a limited factual admission--that the work-related fall caused a fracture through the osteotomy site. The effect of the fracture on Simmering's pre-existing condition was a matter to be determined by the agency in light of the entire record, including the medical opinions. The agency gave detailed reasons as to why it found Dr. Kimelman's opinion was entitled to more weight than that o
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