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.

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