State News : Iowa

Benito Villafana v. Blackhawk Foundry and Travelers, No. 2-441 / 11-1781 (Iowa Court of Appeal)

The Claimant, Benito Villafana, was born in Mexico and immigrated to the United States in 1976 after completing the sixth grade. Until 1988 he had worked as a farm laborer, but following that he went to work with the employer in the present case. The Claimant worked as a grinder for ten years until he suffered from a carpal tunnel injury related to his repetitive work. To accommodate the Clamiant’s permanent restrictions related to this injury, the employer moved the Claimant to the job of scale operator. This job required him to pick up castings, some of which weighed upwards of 100 lbs. When lifting these heavy castings, the employer instructed the Claimant to get the help of his supervisor or forklift operator.

The Claimant then sustained a shoulder injury in 1999. In relation to this injury, the Claimant was awarded a thirty five percent partial disability in 2004. In the present case, the Claimant alleged neck and hand pain beginning in 2006. The Claimant continued his employment until a plant wide lay off in 2009. At hearing, the Claimant admitted to his earlier carpal tunnel injury as well as ongoing neck problems before his alleged injury dates. In 1997, he reported neck pain in conjunction with finger pain. He also received treatment for neck pain in 1998. In 2002, he again complained to a physician that he was experiencing neck pain in conjunction with the pain from his shoulder injury, and in 2003 a neurosurgeon evaluated the Claimant for neck pain and ultimately recommended neck surgery.

The Claimant had alleged a first injury date of April 28, 2006 when he went to Dr. Pardubsky regarding his neck pain. Dr. Pardubsky believed the neck pain was related to Claimant’s prior shoulder injury. In a subsequent visit, Dr. Pardubsky told the Claimant there was nothing further he could offer. The Claimant also alleged a second injury date of January 2, 2007 when he was referred by the employer to Dr. Frederick. The Claimant complained of chronic right trapezium and cervical pain, as well as numbness and tingling in his right fourth and fifth fingers. Dr. Frederick noted the right trapezius pain and cervical pain were well documents since 1999. In a follow up visit, Dr. Frederick noted that the Claimant’s EMG was “positive for moderate to severe right carpal tunnel.” She believed the condition was work-related based on the history provided by the Claimant that he was performing “highly repetitive grasping tasks” in his job. Blackhawk did not offer further treatment for the Claimant’s carpal tunnel or other chronic problems related to the prior work injury, nor did the Claimant seek treatment for his ailments, aside from some chiropractic care.

At the employer’s request, Dr. Frederick revisited her opinion regarding the Claimant and ultimately concluded that she could not relate his recurrent right carpal tunnel to his job with the employer. She also noted that the Claimant did not suffer a new injury of 2006 and any pain was likely caused by an ongoing spondylosis that has never resolved since 1998.

One month before his hearing with the deputy commissioner, the Claimant visited neurosurgeon Robert Milas in June of 2009. Dr. Milas noted the Claimant was a poor historian but stated that the Claimant experienced a significant change in cervical pain as well as loss of strength in his right hand in 2007. He opined the 2007 injury was linked to his recurrent carpal tunnel syndrome and cervical radiculopathy, and that the injuries caused Villafana to be permanently impaired.

After hearing, the deputy concluded that the Claimant failed to show he suffered an injury in the course of his employment and denied his claim. The deputy was more persuaded by the opinions of Dr. Frederick as opposed to Dr. Milas. The deputy noted that:

While Dr. Milas may have superior qualifications as a specialist in neurosurgery than those of Dr. Frederick, the record does not indicate what prior medical records, if any, were reviewed by Dr. Milas before making his opinion. This is a critical flaw in claimant’s case given Benito’s past medical history involving not only cervical and right extremity pain, but facial numbness dating back four years prior to the claimed neck injury. Also, it is not clear if Dr. Milas had any understanding of what claimant’s job at Blackhawk involved.

On appeal, the Commissioner found the deputy’s findings were supported by the preponderance of the evidence. The decision was also affirmed by the district court. The Claimant then appealed to the Court of Appeals.

The Court began its review noting that the factual findings of the agency were reviewed for substantial evidence. The Court found that he arbitration decision detailed why the deputy found Dr. Frederick to be more convincing than Dr. Milas. Dr. Milas did not reveal whether he reviewed any medical records, the Claimant’s actual labor requirements for scale operators, or whether his injury was caused by the repetitive nature of his work. Conversely, the Court found Dr. Frederick documented her decision-making process, and although her ultimate conclusion contradicts her initial stance on the Claimant’s injury, the Court found she explained what subsequent information—an on-site job inspection—persuaded her to change her opinion. The deputy also credited Dr. Frederick’s review of the Claimant’s prior medical records, contrasted with Dr. Milas, who found the case factually confusing because the Claimant was a “poor historian.”

The Court stated that as the finder of fact, the agency determines the weight to give an expert opinion. Therefore the Court found that they would not give greater weight to the Claimant’s medical expert than what was afforded by the agency.

The Court then turned its attention to the finding that the Claimant had not suffered a permanent aggravation of his previous injury to his cervical spine. The Court found that the Claimant had not carried his burden to overturn the agency’s decision. The court state that “evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” The Court found that given the gravity of medical evidence on the issue of causation, and the fact-finder’s ability to accept or reject expert evidence in whole or in part, Dr. Frederick’s conclusion she “do[es] not feel there has been any new injury to his neck [and that] he has an ongoing cervical spondylosis from 1998 that has never resolved” supports the commissioner’s finding.

The decision of the district court was affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

College Community School District and EMC Insurance Company v. April Orris, No. 2-280 / 11-1848 (Iowa Court of Appeal)

The Claimant, April Orris, was employed as a middle school science teacher who chaperoned a field trip to the local roller skating rink on May 20, 2005. While on the trip, the Claimant fell and landed on her right wrist, arm, shoulder and back. She was treated at Mercy Care South and was placed in a sling and released with restrictions of no use of the right arm. The Claimant continued to treat with Dr. Pape and despite the treatment, she reported her right elbow pain progressively got worse. On April 20, 2006, the Claimant underwent an arthroscopic subacromial decompression with Dr. Pilcher. The Claimant reported the surgery increased her range of motion and decreased her shoulder pain, although her neck symptoms continued.

The Claimant resigned from her position with the College Community School District for reasons unrelated to her work injury. In August of 2006 she began a position with the Marion Independent School District. Four days after she began her employment, she began complaining of problems with her neck, shoulder and elbow. In February of 2007, the Claimant was discharged because she had exhausted her leave and failed to return to work. She then became a tutor.

The Claimant then began to treat with Dr. Bagheri, who noted she had symptoms consistent with fibromyalgia. The Claimant then saw Dr. Buck, an occupational medicine specialist in February of 2008 who placed the Claimant at maximum medical improvement and released her to light duty for six months and then full duty thereafter. He then assigned her an eight percent permanent impairment rating.

The Claimant underwent an independent medical examination in January of 2009 with Dr. Kuhnlein. He assessed the Claimant with an ten percent permanent impairment and stated he did not feel the Claimatn was capable of working full time, but felt she could work full time in the future.

At hearing, the deputy determined that the Claimant had sustained injuries and awarded her permanent partial disability benefits of thirty percent. On appeal, the commissioner affirmed the deputy’s decision. In support her motion for rehearing the Claimant argued that the agency had erroneously relied upon the opinion of Dr. Buck that Claimant’s fibromyalgia would be under control within six months. This motion was subsequently denied by the commissioner. On judicial review, the district court found the commissioner committed legal error in relying upon Dr. Buck’s prediction regarding the Claimant’s future condition when determining her industrial disability. The case was sent back to the commissioner for evaluation of the Claimant’s disability without consideration of her future consideration.

The Court began its analysis by stating that  in determining a scheduled or unscheduled award of workers’ compensation benefits, the workers’ compensation commissioner finds the facts “as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition.” The Court further stated that functional impairment and disability resulting from a scheduled loss must be determined at the time of the award and not based on any anticipated deterioration of function that may or may not occur in the future. The Court then noted that any future developments, including the worsening of a physical condition or a reduction in earning capacity, are properly addressed in review-reopening proceedings.

The Court then turned its attention to whether the agency improperly relied on the evidence regarding the Claimant’s future employment in its finding that she had suffered a thirty percent partial disability. The Court determined that the agency had not. The Court found that the agency had determined the Claimant was capable of full-time employment “in the sedentary to light categories” and found working as a teacher in a high school setting fit within the sedentary to light categories of labor. In making this determination, the deputy noted “Dr. Buck opined the Claimant was capable of resuming her duties as a teacher after a six month period of light duty to work.”

The Court, in their review of the record, found that the agency had not erronesouly relied on the opinion of Dr. Buck and that the agency had actually cited other evidence supporting the conclusion that the Claimant was capable of teaching full time. The additional evidence cited was the opinion of Dr. Kuhnleing that the Claimant was capable of working in light to sedentary categories, that the Claimant’s personal physician noted the Claimant needed a job where she could change positions and finally that Dr. Bagheri had never restricted the Claimant from working. Due to that evidence, the Court could not conclude that the agency relied on Dr. Buck’s opinion in its finding. The decision of the district court was thus reversed.

Wendy Leavens vs. Second Injury Fund, No 2-376 / 11-1636 (Iowa Court of Appeal)

The Claimant, Wendy Leavens, began working for Maytag in 1994. In October of 2007, the Claimant filed a petition with the Commissioner for a December 20, 2006 injury. The Claimant alleged she had sustained bilateral carpal tunnel syndrome stemming from cumulative and repetitive employment duties. This petition was ultimately resolved through settlement which was approved by the agency in May of 2008. This settlement stated the Claimant suffered a permanent disability of six percent of the body.

In June of 2008, the Claimant filed a Second Injury petition which alleged a first injury to her right hand in 2000 and second injury of bilateral carpal tunnel syndrome on December 20, 2006. After hearing, the deputy found the approved settlement from May of 2008 was valid and due to the issues being of mutuality of interest between the employer and the Fund, that the Fund was without recourse. The deputy found the hand and wrist losses equaled a twenty percent disability of the whole person and awarded Second Injury benefits.

The Claimant applied for rehearing asserting that the deputy did not appropriately consider all her injuries. An amended decision was issued which stated that subsequent to the original arbitration decision, the controlling authority on the preclusive effect of settlement agreements had been expressly reversed. The deputy noted that under the new authority, “the only preclusive effect of an agreement for settlement between worker and employer is upon the parties who entered into that agreement, and the settlement does not establish the compensability of any injury or the extent of entitlement to disability benefits in a subsequent claim against the Second Injury Fund.”

The deputy then found that the Claimant had the burden of proving that the injury was a proximate cause of the disability on which her claim was based. The deputy held that the Claimant failed to meet the burden of proof and was not entitled to an award of benefits from the Fund. On appeal to the commissioner, it was held that the deputy appropriately relied on the new authority. The ruling was subsequently upheld by the District Court. The Claimant then sought review with the Court of Appeals.

The Court first noted that they would only reverse in this case if it was found the agency decision was based on an erroneous interpretation of Iowa law. The Court next stated that the Claimant had entered into a settlement in regards to her December 20, 2006 injury under Section 85.32(2) and stated that under this code section, “The parties may enter into an agreement for settlement that establishes the employer’s liability, fixes the nature and extent of the employee’s current right to accrued benefits, and establishes the employee’s right to statutory benefits that accrue in the future.”

The Court then found in this case that the Claimant sought to use issue preclusions offensively because in the second action with the Second Injury Fund, the Claimant relied upon a former judgment as conclusively establishing in her favor an issue which she must prove as an essential element of her cause of action. The Court then stated that Iowa law was clear that issue preclusion required the issue be actually litigated in the prior proceeding. The Court further found that in this case, the employer and the Claimant stipulated to a compensable injury to the Claimant’s bilateral arms arising out of her employment but that the issue of liability was never actually raised and litigated before the agency. The Court then stated the Claimant would still have to establish that the party sought to be precluded (the Fund) was afforded a full and fair opportunity to litigate the issue in the action. The Court finally found that the Fund was not a party to the settlement and did not have an opportunity to fully and fairly litigate the issue of liability. The Court found the agency’s decision was not based on an erroneous interpretation of the law, and therefore affirmed the decision of the district court.

The Court next turned its attention to the issue raised by the Claimant as to the weight the commissioner gave to certain medical reports. The Court ultimately found that working backward in this case from the commissioner’s appeal decision to the deputy’s amended and substituted arbitration decision, the Court was able to “deduce what must have been the agency’s legal conclusions and findings of fact.” The deputy considered the evidence before him and concluded the opinion provided by Dr. Jones did not outweigh the opinions of Drs. Formanek and Quenzer. Further, he noted that he considered the record as a whole. The court noted that the Claimant asserted the deputy improperly relied on reports wherein Drs. Formanek and Quenzer responded to defense inquiries. The Claimant alleged she was “winning her case until the deputy came to the summary, leading, wish-list reports.” The Court found that while the Claimant is correct that the deputy analyzed Dr. Formanek’s and Dr. Quenzer’s responses to the defense inquiries, there is nothing in the record to indicate these inquiries and responses constituted the entire basis on which the deputy’s decision was founded. Ultimately the Court the denial of the rehearing was not unreasonable, arbitrary, capricious or an abuse of discretion.

The Court finally turned its attention to the finding of that the Claimant did not sustain a permanent disability as a result of her December 20, 2006 injury. The Court agreed with the district court that substantial evidence supports the agency’s denial of Fund liability because the Claimant failed to prove before the agency an impairment to a second qualifying scheduled member. The Court further recognized that the evidence relied on by the agency was “not insubstantial merely because a contrary inference is supported by the record.” Factual findings were vested in the discretion of the agency, and the Court found that because the findings in this case are supported by substantial evidence, they were bound by these findings.

The decision of the district court was then affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Finley Hospital v. Charles Stokes, No. 2-381 / 11-2024 (Iowa Court of Appeals)

The Claimant, Charles Stokes, sought alternate medical care by way petition to the workers’ compensation commissioner. Claimant’s first application was made in February of 2011 and was subsequently denied by the deputy workers’ compensation commissioner. In issuing the denial, the deputy found that the Claimant had expressed dissatisfaction with his current care in October of 2010 by way of a letter from his counsel. However, the employer had extended the offer to return the Claimant to Dr. Pearson and the deputy did not find this unreasonable. The deputy also found that the employer scheduled an appointment with Dr. Pearson for the Claimant on March 17, 2011. Further the employer represented that it would abide by Dr. Pearson’s treatment recommendations.

The Claimant filed another application for alternate medical care on April 14, 2011. At hearing of the matter, the Claimant testified that he attended the March 17, 2011 appointment with Dr. Pearson, who was unaware of the reason for the visit. The Claimant explained he had ongoing symptoms for which he had been seeing Dr. Tebbe for chiropractic relief. He then asked Dr. Pearson for treatment and a referral to Dr. Tebbe. Dr. Pearson suggested an MRI, but noted he would need prior authorization for this. He then stated he would not make a referral for chiropractic care, stating “I don’t treat pain.” Nothing was offered by Dr. Pearson in the way of treatment.

The Claimant then introduced correspondence from his counsel dated April 12, 2011, stating that Claimant’s counsel had written to the employer’s counsel on March 22, 2011 requesting a copy of Dr. Pearson’s notes or report and that to date Claimant’s counsel had heard no reply. The letter continued to express Claimant’s dissatisfaction with Dr. Pearson’s care. On April 21, the employer’s counsel replied providing Dr. Pearson’s medical notes. Another letter was sent by the employer’s counsel on April 25, the day before the alternate medical care hearing, authorizing an MRI with Dr. Pearson.

At hearing, the deputy determined that the employer failed to timely provide medical care to the Claimant. The deputy then granted the Claimant’s request for chiropractic care with Dr. Tebbe. On appeal to the district court, the Court found that there was substantial evidence to support the deputy’s findings that the care the employer offered the Claimant by way of Dr. Pearson was not offered promptly. The court also stated there was substantial evidence that the treatment made available to the Clamiant was not ‘reasonably suited to treat the injury without undue inconvenience to the employee,’ as required by section 85.27(1). The employer then appealed to the Court of Appeals.

The employer first challenged the deputy’s decision on the grounds that Claimant’s counsel’s letter in October of 2010 did not convey dissatisfaction of authorized care. The Court concluded that the deputy was correct in finding the letter substantially complied with Iowa law and communicated the Claimant’s dissatisfaction.

Next the employer challenged the decision of the deputy on the grounds that the designated care provider, Dr. Pearson, remained available to provide care. The Court dismissed this argument, as well, finding that while Dr. Pearson did perform an evaluation of the Claimant, he made no recommendations for ongoing care.

The Court ultimately found that after the Claimant expressed his dissatisfaction with the care provided, nearly six months had expired, and three petitions for alternative care had been filed, although the first petition was dismissed. During that time the only ongoing care ultimately authorized by the employer was an MRI test. However, that authorization came one day before the hearing on the third petition and as noted, Dr. Pearson’s medical notes only state that it “may” be needed.

The Court ultimately found that the deputy’s decision was supported by substantial evidence and affirmed the ruling of the district court upholding the deputy’s granting of alternate medical care.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Bernard Kent v. Diamond Shine Management Services, Inc. and United Heartland, Iowa Court of Appeals No. 2-064 / 11-1041

The Claimant, Bernard Kent, began work with the Defendant in 2000. Prior to that he had held jobs stocking shelves, repairing pallets, operating a forklift, working a production line as well as cooking and bartending. Since 2005, the Claimant’s duties with the Defendant including clearing floors at Target and Shopko stores in Nebraska and Minnesota and Fareway stores in Iowa.

On April 30, 2006, the Claimant injured his left and right shoulders during his employment. In May of 2006, he was diagnosed with tendonitis bursitis in the right shoulder and the emergency room. He was subsequently seen by Dr. Westpheling who diagnosed the Claimant with possible right shoulder tendonitis with possible right cervical radiculitis. An MRI subsequent to that diagnosis showed moderate degenerative changes in the AC joint.

As the Claimant did not experience any significant improvement, Dr. Westpheling referred the Claimant to Dr. Fabiano in June of 2006. Dr. Fabiano diagnosed the Claimant with shoulder pain and AC joint degenerative disease related to his May 2006 injury. He was then referred to Dr. Kim who gave the Claimant prolotherapy injections.

On November 9, 2006, Dr. Westpheling found the Claimant to be at MMI and gave him permanent work restrictions. In response to an inquiry from the employer’s insurer, Dr. Westpheling stated the Claimant had zero percent impairment. After an arbitration petition was filed, the Claimant was seen by Dr. Miller on referral by the Claimant’s attorney. Dr. Miller diagnosed the Claimant with degenerative arthritis of the AC joint bilaterally and carpal tunnel syndrome bilaterally. He then gave the Claimant twelve percent impairment to his right upper extremity and eight percent impairment to the left upper extremity.

The Claimant was subsequently re-seen by Dr. Miller in December of 2007 who assigned ten percent impairment to the Claimant’s right upper extremity and six percent impairment to the left (six and four percent body as a whole respectively). Dr. Westpheling concurred with these findings in January 2008 but noted that Claimant had not complained of left upper extremity pain in his May 2006 visit. These impairment ratings were also agreed to by Dr. Fabiano.

The Claimant was also seen by a vocational expert in December 2007 who opined that the Claimant did not currently possess the necessary capacities for competitive employment in the labor market. Based upon this, the Claimant moved to amend his petition to assert the odd-lot doctrine which was resisted by the Defendants as they would not have time to prepare before the February 2008 hearing. The deputy commissioner subsequently denied this motion.

At hearing, the deputy found that the Claimant had sustained a loss of earning capacity of forty percent. The deputy found that neither party’s vocational expert had provided ‘reliable, probative evidence.’ The case was appealed to the commissioner who found the deputy failed to take into account the Claimant’s disability in his arms as well as shoulders. The commissioner then increased the award to seventy percent disability. He did however endorse the deputy’s refusal to see the matter as an odd-lot claim.

On appeal to the district court, the court remanded the decision stating the decision was not sufficiently detailed to enable the court to consider whether there is substantial evidence to support the 70% disability rating, and that “it was arbitrary for the agency to refuse to consider” the odd-lot claim due to its untimely filing fifty-five days before the hearing.

On remand the Commissioner noted that the appeal decision identified the relevant factors of industrial disability at issue in this matter and thereafter concludes that the factors are evidence that claimant has “some residual ability to compete for employment positions in the competitive labor market.” The Commissioner also determined the Claimant failed to prove a prima facie case of total disability and that Diamond Shine proved the Claimant could find employment elsewhere in the community, and therefore the Claimant was not an odd-lot employee.

The case was again appealed to the district court which determined the seventy percent disability was based on an erroneous interpretation of the law and that the Claimant was “entitled to a finding of total disability under the odd-lot analysis.”

On Appeal, the Court of Appeals first noted that loss of earning capacity is determined by “the employee’s functional impairment, age, education, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining to the extent any of these factors affect the employee’s prospects for relocation in the job market.” The Court noted that the commissioner reviewed all these factors in his decisions and found that the Commissioner’s finding of seventy percent disability was supported by substantial evidence.

Of particular note to the Court was that the Claimant had continued to work two jobs at the time of hearing as well as the deputy’s interpretation of the parties’ vocational witnesses’ testimony being skewed towards the respective party for which they were retained. The Court found that both the Deputy and Commissioner both addressed all the factors affecting the industrial disability determination and explained their reasoning. The Court finally stated that “although reasonable minds could differ when measuring the extent of Kent’s industrial disability, we find substantial evidence to undergird the agency’s decision.”

The Court then examined the commissioner’s finding that the Claimant was not an odd-lot employee. The Court first noted that if an individual is able to perform only those services “so limited in quality, dependability or quantity that a reasonably stable market for them does not exist,” courts will consider the odd-lot worker to be totally disabled. The Court found that in making its determination, the Commissioner had relied on the opinion of one vocational expert more so than another. The Court found that the district court had stepped outside its role by substituting its own credibility finding for that of the commissioner when it determined that the Claimant was in fact an odd-lot employee. Ultimately, the Court found that the commissioner’s finding was supported by substantial evidence.

The final issue addressed by the Court was whether the commissioner’s refusal to grant the Claimant’s request for payment of its vocational expert was proper. The Claimant had sought payment of these fees based upon the admittance of the Defendant that the Claimant had sustained a cumulative trauma to his right shoulder but refusal to compensate the injury. The Claimant argued this caused him to have to retain the vocational expert. The Commissioner however noted that the vocational expert’s opinion related to the extent of the disability, not to its nature.

The Court found that the costs of retaining the vocational expert as a consultant were not “reasonable expenses incurred” in proving the truth of the matter at the heart of the request for admissions. The Court finally added that they found it more likely that the Claimant had hired the vocational expert to prove additional issues in the case—such as the Claimant’s odd-lot claim and his ability to gain future employment—and not to prove the threshold claim that he was entitled to relief; as such he was not entitled to payment of the expert’s fees.

Refugio Orozco Serratos v. Tyson Foods, Iowa Court of Appeals, No. 2-103 / 11-1186

The Claimant began his employment with Tyson in November of 1990 when he was 48 years old. The Claimant claimed that the janitorial staff and cleaning crew at Tyson left a chemical residue on machines he touched, which irritated his breathing. He further claimed that water vapor and fumes from the animal parts bothered him as well. The manager said the plant’s cleaning crew members used detergents and chlorine products, but they were required to rinse the machines to avoid contaminating the meat.

It was noted that the Claimant was a cigarette smoker, however there was conflicting evidence regarding the extent and duration of the habit. The deputy found it to be one to three packs daily for four years.

In 1996 the Claimant began complaining of difficulty breathing and similar symptoms. These complaints continued over the next two years and ultimately the Claimant was diagnosed with asthma. In 1998, the Claimant filled out of form for injury/illness which reported difficulty breathing related to work areas and vapors from machines. He also had an episode where he collapsed at a rest area. He was taken to the ER in Iowa City and was diagnosed by Dr. McBride as having reactive air-ways disease or COPD. He was instructed to wear a mask to complete his duties as a butcher.

Subsequent clinical appointments produced mixed diagnoses. Dr. James Merchant concluded Refugio’s asthma was related to his occupation and that he should not be exposed to his current working environment. Dr. Dale Minner found Refugio’s condition was not caused by his work environment, but that he should nonetheless avoid laboring in the cold. Following these diagnoses, the Claimant was transferred to a “hot side” of the plant.

Over the next nine years, the Claimant would continue to seek periodic treatment related to COPD. The Claimant filed a claim with Tyson in July of 2005, alleging another incident of inhaling ammonia and chemicals. This claim was denied by Tyson based on medical records showing The Claimant had been exposed to “lots of smoke” at a party he attended on July 3, 2005. The Claimant subsequently took an extended leave of absence in 2006 and Tyson was informed by Dr. Bedell that the Claimant was permanently disabled and would not be coming back to his job. The Claimant was then terminated.

The Claimant filed his petition in August of 2007 alleging that he had sustained an occupational disease (per Iowa Code 85A, specifically related to occupational diseases) on May 10 of 2006. The Claimant was seen by Dr. Conte, a cardiovascular thoracic surgeon, who opined that the Claimant suffered from COPD, but identified its cause as chronic exposure to tobacco and heavy dust. He testified at the hearing that he could not recall any documented case of COPD caused by pure water vapor.

Dr. Thomas Hughes performed an independent medical examination of Refugio. Dr. Hughes testified that steam or water vapor did not cause COPD, though it could exacerbate it, and that a cold environment would be worse than a warm setting for the condition. Dr. Hughes produced a detailed report of his impressions, concluding Refugio’s exposure to irritants in the work place aggravated his respiratory condition, but that non-occupational activities likely caused his condition.

On September 30, 2009, the deputy issued an arbitration decision, denying Refugio’s claim because he did not show a connection between his work environment and his COPD. Refugio appealed to the commissioner, who affirmed the denial. On judicial review, the district court affirmed the agency decision.

On Appeal, the Court of Appeals first noted that the Claimant must show: (1) his occupational disease was causally related to the exposure to harmful conditions of his field of employment, and (2) those harmful conditions were more prevalent in his employment than in everyday life or in other occupations. The Court found that The commissioner concentrated on the opinion of the claimant’s own expert, Dr. Hughes, and concluded that Dr. Hughes provided “significant evidence” that Refugio’s COPD resulted from “a hazard to which claimant would have been equally exposed outside of his occupation.” The Court also found that the commissioner pointed out that Refugio did not show that “he and his fellow workers were exposed to any risk that resulted in anyone else working with claimant to develop or suffer from COPD.” Similarly, Refugio offered “no evidence that employees who work in meat processing facilities are routinely subject to a risk resulting in the development of COPD.”

The Court stated that their conclusion was the same as that of the district court, which acknowledged while “there is some evidence here to support the Claimant’s contentions, there is also certainly evidence in the record to support the findings actually made by the Commissioner.” In this situation, the Court’s task is not to determine whether the evidence supports a different finding; “rather, our task is to determine whether substantial evidence, viewing the record as a whole, supports the findings actually made.” Ultimately, the Court found that the Commissioner’s findings were supported by substantial evidence. The Court concluded the commissioner appropriately weighed the evidence, and concluded the greater weight of the evidence supported the deputy’s determination that medical evidence did not satisfy the claimant’s burden to show causation.

The Court then next had to determine whether the deputy’s analysis of the Claimant’s COPD as an injury rather than a disease warranted reversal. While the Court acknowledged the analysis for a disease claim differs from that of an injury claim, any error in this case was cured by the commissioner applying the occupational disease analysis on review. In so finding, the Court had to determine whether the Claimant was prejudiced by the Commissioner’s alternative endorsement of the deputy that COPD could also be analyzed as an injury.

Ultimately the court found no prejudice as substantial evidence undergirds the commissioner’s determination that the Claimant’s COPD did not qualify as an occupational disease. The Court stated the Claimant had the benefit of the commissioner’s application of the proper legal test to the deputy’s fact-finding. Because the commissioner’s alternative endorsement of the deputy’s lapse into an injury-based analysis did not ultimately impact the Claimant’s substantial rights, the Court found the agency decision should stand.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

It appears that a U.S. District Court in Florida convicted a former Florida postal worker of health care fraud after she was caught participating in more than 80 long-distance races, including the Boston Marathon, all while taking workers compensation for a back injury.

55-year-old Jacquelyn V. Myers was also convicted of making false statements and faces up to 15 years in prison. Her sentencing is scheduled for July 25.

In May 2009, Myers claimed to have a lower back injury that prevented him from delivering the mail as part of her job. She was relieved of her mail carrying responsibilities and put on “light duty.”

However, photos and videos emerged showing Myers participating in the races, including a triathlon. And in what would ordinarily be considered good news, her race times actually improved after she made her initial injury claim.

Must have been quite the postal route if marathons qualify as light duty!