State News : Iowa

O’Reilly Auto Parts and Gallagher Bassett Services v. Jerry Alexander, No. 2-711 / 11-1864, Court of Appeals of Iowa

The Claimant began working with the employer in 1999. On May 8, 2008, the Claimant alleged he sustained hip and back injuries while unloading at tote from a truck and twisting his body to take a step. He encountered his supervisor and told him he could barely walk. He returned to work on May 12, 2008 using a walker and reported the injury to the store manager.

An injury report was filled out, however it listed the injury dates as August 8, 2006 and December 2007. This report was signed by both the Claimant and his manager. The claimant testified at hearing that he was upset as he was denied seeing the company doctor and likely signed the document without reading it. He further testified that he did not understand the importance of the form and that he was confused about what the dates represented.

The Claimant’s manager testified that the Claimant did report injuring his hip but she was uncertain as to when the report occurred. She apparently was also questionable of the report of injury as the Claimant had previously reported him pain which he had associated with a hip injury he sustained in 2003. Due to the inconsistencies in the Claimant’s statement, the employer maintained that the Claimant had not suffered any injury in May 2008.

The Claimant treated with Dr. Ray who ultimately opined that the Claimant’s work with the employer contributed to a worsening of pain from his pre-existing condition of spinal stenosis and assigned 8% whole person impairment. Prior to his deposition and hearing of this matter, the Claimant sustained a stroke. During his deposition and at hearing he frequently explained that he was having difficulties with his memory. After hearing of the matter, the deputy commissioner found that the Claimant had not sustained an injury in the course of his employment. This was reversed on appeal to the Commissioner, who found that the testimony of the Claimant and his wife, along with the medical records in the case provided substantial evidence that the claimant suffered an injury in May of 2008.

The decision of the commissioner was upheld on appeal to the district court. At the district court level, the employer argued there was insufficient evidence of the necessary causal connection between the conditions of employment and the injury to support the commissioner’s finding. The district court declined to address this argument as it was not presented at the agency level and not preserved for judicial review. The case was appealed to the Court of Appeals.

The Court first addressed that the argument on appeal was one that presented a mixed question of law and fact and thus the commissioner’s decision would only be disturbed if irrational, illogical or wholly unjustifiable. The Court then turned its attention to whether the argument that the injury to the Claimant was not caused by or related to the conditions of his employment as his work presented no particular hazards of such an injury. The Court first recognized that this was not raised in the initial pleadings nor as an issue the parties agreed were in dispute. However, the Court noted that among the issues identified by the deputy was “whether the injury arose out of and in the course of employment.” The Court then stated that while the majority of the focus of the proceedings centered upon whether and injury occurred and if so, if it occurred in the course of employment, the employer had consistently raised the issue of whether the Claimant’s act of lifting and carrying a tote allegedly containing a four ounce filter was sufficient to establish a compensable injury. Therefore, the Court viewed the contention as there being no causal connection between the injury and a condition, risk or hazard of the Claimant’s employment.

In the Court’s eyes, this satisfied them that the error was preserved as the “arising out of” requirement was raised, litigated and decided by the agency.

The Court next turned its attention to the issue of whether substantial evidence supported the commissioner’s finding that the Claimant sustained an injury arising out of and in the course of his employment. The Court stated that credibility determinations are to be made by the commissioner as a trier of fact and that while some testimony can be disregarded due to its impossibility or absurdity, the Claimant’s testimony did not fit that description. The Court did note that he exhibited confusion in his testimony and that he himself acknowledged that his memory was not as good as it used to be. However, the Court also found that the Claimant’s manager was in no way consistent in his testimony as to when the injury was reported. The Court also noted that while the Claimant did not report an injury to his family doctor in later May of 2008, he did report a fall having occurred a few weeks prior in a June 2, 2008 appointment with another doctor.

Ultimately the Court found that there was substantial evidence to support the Commissioner’s finding that the claimant did sustain an injury in May of 2008.

The employer also contended that Dr. Ray’s opinion on causation could not be relied on as he was unaware of the weight of the tote the Claimant was carrying at the time of the alleged injury. In finding that the Commissioner could rely on Dr. Ray’s opinion noted that the employer had not offered an expert opinion calling Dr. Ray’s opinion into question; nor had they offered evidence that Dr. Ray’s opinion would have changed if he had known that the tote was light in weight. Ultimately the Court concluded that substantial evidence supported the Commissioner’s reliance upon the testimony of Dr. Ray in finding medical causation was present for the Claimant’s injury.

The Court ultimately found that substantial evidence supported the findings of the Commissioner and the determination that the injury sustained by the Claimant was not irrational, illogical or wholly unjustified.

The final issue taken up by the Court on appeal was whether the Commissioner’s review of the employer’s proof of coverage information on the agency’s website to verify the appropriate insurer constituted bias or reversible error. The Court first noted that the Iowa Administrative Procedures Act provides that “[A]n individual who participates in the making of any . . . final decision in a contested case shall not have personally investigated . . . or advocated in connection with that case, the specific controversy underlying that case . . . .” The Court however found no evidence that the commissioner investigated the specific controversy underlying the case. Rather the Court found that he simply “consulted records maintained by the agency and corrected an error, which counsel failed to identify and remedy, making the decision he rendered enforceable against the proper insurance carrier.”

The Court then examined the commissioner’s decision in adding the correct insurance carrier for errors at law. The Court found that the “commissioner’s action in adding the correct insurance carrier was necessary and within the authority granted to him by the legislature under the power to adjudicate the rights and duties as between injured workers and the responsible insurance carriers and the power to enforce the provisions of the code.” Thus the Court did not find that the Commissioner’s action created an appearance of impropriety or evidence of bias.

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