                  IN THE COURT OF APPEALS OF IOWA

                             No. 4-64 / 13-1266
                             Filed April 16, 2014


CARGILL MEAT SOLUTIONS CORP. and
THE INSURANCE COMPANY OF
THE STATE OF PENNSYLVANIA,
      Petitioners-Appellants,

vs.

JUAN DELEON,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      An employer appeals the district court’s decision affirming the workers’

compensation commissioner’s award of benefits. AFFIRMED.




      Andrew T. Tice of Ahlers & Cooney, P.C., Des Moines, for appellant.

      Harry W. Dahl, Des Moines, and Philip F. Miller, West Des Moines, for

appellee.



      Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
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DANILSON, C.J.

       Cargill Meat Solutions Corporation and The Insurance Company of the

State of Pennsylvania (Cargill) appeal the district court’s ruling on judicial review,

which affirmed the Iowa Workers’ Compensation Commissioner’s award of

benefits to Juan DeLeon. Cargill contends the commissioner’s determination that

Deleon was permanently injured due to a work accident and the subsequent

award of permanent total disability was based on an unreliable expert opinion.

Because we find the commissioner’s award is the result of a decision process in

which the important and relevant matters were considered, and because we find

it is supported by substantial evidence in the record when the record is viewed as

a whole, we affirm.

I. Background Facts and Proceedings.

       We adopt the district court’s recitation of the facts as our own:

              Juan was 53 years old at the time of the hearing. He was
       born in a village in Guatemala and never attended school. He
       speaks limited English and does not read or write it. He can write
       his name, but his job application was filled out in Spanish by
       someone else.
              Juan farmed in Guatemala until he was twenty-five. His work
       history includes stocking produce, bakery work and meat packing.
              He began working at the Cargill plant in Ottumwa, Iowa in
       2004 after passing a pre-employment physical. That was the
       highest paying job he had ever had. He earned approximately
       $9.00/hr.
              Juan was working on the line on February 23, 2009, when
       one of the boxes of pork got stuck. As he tried to free it, his frock
       coat got caught in the machinery, twisting it and pulling him against
       the conveyer belt. He flailed around, trying to get free and
       screamed. Eventually a co-worker stopped the line and got his
       supervisor to cut him loose.
              Juan was bruised and had pain in his abdomen, neck and
       back. He was taken to the plant nurse. A co-worker filled out the
       accident report for Juan, and he signed it. Juan was seen by the
       on-site company doctor, Henri Cuddihy, M.D., at the plant. Dr.
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Cuddihy noted that, “He appears to have experienced a significant
constrictive type of injury to the abdomen and possibly the
abdominal contents.” A week later, a lump developed on Juan’s
abdomen where he had been pulled against the conveyer belt.
        In May 2009, Juan was still having pain in his neck and
shoulders and also in his abdomen. His family medical provider,
P.A. Franke, gave him a restriction of one hour on, one hour off. He
presented the restriction to Cargill and was told by Human
Resources and his supervisor that they did not have any work for
him based on his restrictions. They suggested that [he] seek
unemployment. They said they would send him a letter in 18
months, apparently to update his status.
        Juan applied for unemployment. Cargill then fought the
unemployment, claiming that Juan had a nonwork-related broken
arm. This was not true. Juan was awarded unemployment
benefits. Contrary to the information given by Cargill Human
Resources, he did not receive a status update letter after 18
months.
        Despite his initial report that Juan had sustained an
abdominal injury, Dr. Cuddihy later said that he had no findings
which would link Juan’s continuing abdominal condition to his work
injury. He placed Juan at MMI for the work injury. Dr. Cuddihy told
Juan that Cargill would never admit the work injury. He told Juan
that he had a back injury and should try to find a doctor in Iowa
City.
        Marc Hines, M.D., a neurologist, was retained to evaluate
Juan. Dr. Hines performed an examination as a part of his
independent medical examination, and issued a report on October
12, 2010. Dr. Hines examined and observed Juan’s abdominal
condition and auscultated the bowel just under the skin. Dr. Hines
concluded that when Juan was pulled and twisted against the
conveyer belt he sustained a stretch injury of the mesentery and
bowel, catching the bowel into scar formation in the far lower
portion of the left lower quadrant. He also concluded that Juan
sustained a neck and myofascial injury to the shoulder in the work
injury. Finally, Dr. Hines documented that Juan was suffering from
depression as a result of chronic pain and difficulty in obtaining
treatment despite his obvious abdominal condition. Dr. Hines
assigned a 26% permanent impairment rating and placed
permanent restrictions of not climbing ladders, avoiding extremes of
temperature and vibration, and alternating standing and sitting
every 20 minutes. Dr. Hines reported that Juan would be limited to
light duty and that his pain would limit his ability to lift. He did not
believe Juan could return to factory work.
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       DeLeon’s case came before the deputy commissioner on November 18,

2011. On January 23, 2012, the deputy issued an arbitration decision finding

DeLeon permanently and totally disabled as a result of his workplace injury and

awarding DeLeon permanent total disability benefits.

       Cargill appealed the deputy commissioner’s decision. On February 25,

2013, the commissioner issued a decision affirming the deputy’s decision and

adopting it as the final agency action.

       Cargill filed a petition for judicial review of the agency’s permanent total

disability award on March 18, 2013. The district court issued its ruling on July 19,

2013, finding substantial evidence supported the agency’s causation finding and

affirming the award of permanent total disability. Cargill appeals.

II. Standard of Review.

       On appeal from judicial review, the standard we apply depends on the

type of error allegedly committed. Jacobson Transp. Co. v. Harris, 778 N.W.2d

192, 196 (Iowa 2010). Our standard of review depends on the aspect of the

agency’s decision that forms the basis of the petition for judicial review. Iowa

Code § 17A.19(10). Here, Cargill raises two issues:

       Cargill’s first claim of error is the contention that the commissioner’s

finding that DeLeon sustained permanent injuries to his abdomen, neck, and

back as a result of a work accident is not supported by substantial evidence in

the record when viewed as a whole.            See id. § 17A.19(10)(f).   Cargill also

contends the finding was a product of a decision-making process in which the

commissioner did not consider “relevant and important” matters and was
                                          5

“unreasonable, arbitrary, capricious, or an abuse of discretion.”            See id.

§ 17A.19(10)(j), (n).

       Similarly, Cargill also contends the commissioner’s finding that DeLeon is

permanently and totally disabled is not supported by substantial evidence in the

record when viewed as a whole and was “unreasonable, arbitrary, capricious, or

an abuse of discretion.” Id. § 17A.19(10)(f), (n).

III. Discussion.

       A. Permanent Injuries as a Result of Work Accident.

       Cargill   maintains   the   commissioner’s    determination    DeLeon     was

permanently injured as a result of the work place accident is not supported by

substantial evidence in the record when viewed as a whole, was a product of a

decision-making processing in which the commissioner did not consider “relevant

and important” matters, and was “unreasonable, arbitrary, capricious, or an

abuse of discretion.” Id. § 17A.19(10)(f), (j), (n). Specifically, Cargill argues that

the commissioner was wrong to accept Dr. Hines’ opinion of causation because

he was not provided with all prior medical treatment records and was the only

doctor to opine DeLeon sustained permanent injury from the work place accident.

Cargill states this case is similar to Mike Brooks, Inc. v. House, No. 13-0303,

2013 WL 4504884 (Iowa Ct. App. Aug. 21, 2013) and relies on our holding that

because the experts lacked critical information, substantial evidence did not

support their finding of causation. We consider each of Cargill’s claims in turn.

       “Substantial evidence” is statutorily defined as:

       [T]he quantity and quality of evidence that would be deemed
       sufficient by a neutral, detached, and reasonable person, to
       establish the fact at issue when the consequences resulting from
                                          6


       the establishment of that fact are understood to be serious and of
       great importance.

Iowa Code § 17A.19(10)(f)(1). When reviewing a finding of fact for substantial

evidence in the record as a whole, we judge the finding “in light of all the relevant

evidence in the record cited by any party that detracts from that finding as well as

all of the relevant evidence in the record cited by any party that supports it.” Id.

§ 17A.19(10)(f)(3). “Our review of the record is ‘fairly intensive,’ and we do not

simply rubber stamp the agency finding of fact.” Cedar Rapids Cmty. Sch. Dist.

v. Pease, 807 N.W.2d 839, 845 (Iowa 2011) (quoting Wal–Mart Stores, Inc. v.

Caselman, 657 N.W.2d 493, 499 (Iowa 2003)). “We do not, however, engage in

a scrutinizing analysis, for if we trench in the lightest degree upon the

prerogatives of the commission, one encroachment will breed another, until

finally simplicity will give way to complexity, and informality to technicality.” Neal

v. Annett Holdings, Inc., 814 N.W.2d 512, 525 (Iowa 2012).              “Evidence is

substantial if a reasonable person would find it adequate to reach the given

conclusion, even if a reviewing court might draw a contrary inference.” Id. “On

appeal, our task “is not to determine whether the evidence supports a different

finding; rather, our task is to determine whether substantial evidence . . .

supports the findings actually made.’” See Brooks, ___ N.W.2d ___, 2014 WL

890152, at *4 (quoting Pease, 807 N.W.2d at 845).

       The legislature has, by a provision of law, vested the commissioner with

the discretion to make factual determinations. Finch v. Schneider Specialized

Carriers, Inc., 700 N.W.2d 328, 330–31 (Iowa 2005). Medical causation is a

question of fact vested in the commissioner’s discretion. Pease, 807 N.W.2d at
                                         7


844. “The determination of whether to accept or reject an expert opinion is within

the peculiar province of the commissioner.”       Id. at 845 (internal quotations

omitted). Our supreme court reiterated these principles in the recent decision

Brooks, ___ N.W.2d ___, 2014 WL 890152, at *3–4, which vacated the decision

upon which Cargill relies.

       Here, the deputy commissioner was able to observe DeLeon’s demeanor

as he testified regarding his injury and his ongoing pain and symptoms. The

deputy was also able to observe the “ongoing lump in [DeLeon’s] abdomen and

the redness from the injury,” which the deputy found “confirms [DeLeon’s]

description of his injury.” After reviewing all of the medical opinions present, the

deputy found that Dr. Hines conclusions were consistent with the symptoms

described by the claimant, while the other medical opinions failed to explain the

ongoing tenderness and pain described by DeLeon. Also, Dr. Hines’ opinion was

based both on prior medical records and a physical examination of DeLeon. It is

not the role of the court to reassess the evidence or make its own determination

of the weight to be given the various pieces of evidence. Burns v. Bd. of Nursing,

495 N.W.2d 698, 699 (Iowa 1993). Upon review, we find there is substantial

evidence in the record when viewing the record as a whole to support the

commissioner’s finding DeLeon was permanently injured as a result of the work

place accident.

       Cargill maintains Dr. Hines was not provided with all prior medical

treatment records and the commissioner failed to consider this relevant and

important matter when relying on solely Dr. Hines’ opinion of causation. See

Iowa Code § 17A.19(10)(j). In rejecting the other medical opinions offered, the
                                        8


commissioner explained its rationale, stating, “Significantly, claimant had no

abdominal, neck, or shoulder complaints before the injury, but has had significant

symptoms from the injury on. Dr. Cuddihy offers no explanation for this temporal

connection between claimant’s onset of pain and the work injury, and offers no

alternative cause for claimant’s abdominal pain.”

      The commissioner considered all of the expert medical opinions together

with all other evidence introduced bearing on the causal connection between the

injury and the disability. Brooks, ___ N.W.2d ___, 2014 WL 890152, at *4. In his

report, Hines stated:

      It is my opinion that the patient was injured at the time of his injury
      on 2-23-09, that he had a stretch injury of mesentery and bowel
      catching the bowel into scar formation in the far lower portion of his
      left lower quadrant. In addition to this the patient had some
      additional neck and myofascial injury in the shoulder. . . . The
      patient’s depression is felt to be related to the chronic difficulties
      with pain and the difficulty in obtaining any additional treatment
      evaluation at this point.

The commissioner found Dr. Hines’ medical opinion to be the most credible. The

district court accurately summarized the agency’s conclusion in stating:

              The deputy and the Commissioner both considered and
      explicitly found a permanent abdominal injury. The deputy based
      his decision on his personal observation of the wound, the IME
      report of Dr. Hines, and the lack of weight and/or credibility of the
      defense reports. The Commissioner found the deputy’s findings to
      be “detailed and are supported by the preponderance of the
      evidence.”
              The abdominal injury is documented in the initial medical
      records of Dr. Cuddihy, the company physician. Dr. Cuddihy noted,
      the day after the injury, that there was no evidence that the
      abdominal condition pre-existed the work injury or was caused by
      any other injury. Both the deputy and the Commissioner found Dr.
      Hines opinion to be detailed, thorough, and consistent with Juan’s
      ongoing abdominal symptoms.
              The Commissioner considered Cargill’s evidence, but
      concluded it was not credible and inconsistent with Juan’s
                                        9


       objectively verifiable ongoing symptoms. Dr. Mooney did not
       personally see or examine Juan. P.A. Franke does not have Dr.
       Hines’ qualifications or expertise in evaluating work injuries. Dr.
       Piper’s conclusion that the abdominal condition had resolved is
       inconsistent with the ongoing symptoms observed by the deputy
       and Dr. Hines.

The commissioner provided a thorough explanation regarding the reliance on

Dr. Hines’ opinion for causation.   We cannot say the commissioner failed to

consider relevant and important matters.

       Dr. Hines’ medical opinion, in conjunction with the deputy’s observations

of DeLeon’s wound and testimony, provides substantial evidence in the record as

a whole that DeLeon suffered a permanent work-related injury as a result of the

workplace accident.     The commissioner explained why, upon review of all

medical opinions, Dr. Hines’ opinion was the opinion he relied on and we cannot

say the commissioner failed to consider important and relevant matters in doing

so or that the determination was unreasonable, arbitrary, capricious, or an abuse

of discretion.

       B. Permanent and Total Disability.

       Next, Cargill maintains there is not substantial evidence in the record

when viewed as a whole to support the commissioner’s award of permanent total

disability benefits. Cargill also maintains the award was “unreasonable, arbitrary,

capricious, or an abuse of discretion.” Permanent total disability “occurs when

the injury wholly disables the employee from performing work that the

employee’s experience, training, intelligence, and physical capacity would

otherwise permit the employee to perform.” IBP, Inc. v. Al-Gharib, 604 N.W.2d

621, 633 (Iowa 2000).
                                        10


      Industrial disability measures an injured worker’s lost earning capacity.

Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).         “[I]ndustrial

impairment is the product of many factors, not just physical impairment.”

Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999). Our case

law requires that consideration be given to the injured employee’s “age,

education, qualifications, experience and his inability, because of the injury, to

engage in employment for which he is fitted.” McSpadden v. Big Ben Coal, 288

N.W.2d 181, 192 (Iowa 1980). There are no guidelines establishing the weight

each of these factors are to be given in the commissioner’s consideration; rather

the commissioner must “draw upon prior experience and general and specialized

knowledge to make a finding in regard to the degree of industrial disability.”

Lithcote Co. v. Ballenger, 471 N.W.2d 64, 68 (Iowa Ct. App. 1991). “[T]he focus

is not solely on what the worker can and cannot do; the focus is on the ability of

the worker to be gainfully employed.” Quaker Oats Co. v. Ciha, 552 N.W.2d 143,

157 (Iowa 1996).

      As the commissioner noted, DeLeon never attended school. He cannot

read or write Spanish, his native language, and he cannot speak, read, or write

English. It is unlikely he will be able to learn when he has not after more than

twenty-five years in United States.    DeLeon’s work history consists solely of

physically demanding jobs, mostly in factories. With the physical restrictions that

Dr. Hines prescribed,1 DeLeon is permanently disqualified from returning to many



1
  Dr. Hines also assigned permanent work restrictions of not climbing on ladders,
avoiding extremes of temperature and vibration, and alternating between sitting and
standing every twenty minutes. Hines also stated, “Though there is probably no
                                             11


of his pre-injury occupations, and due to his educational background, re-training

for a different type of position is not a legitimate option.

       These considerations constitute substantial evidence in the record when

viewing the evidence as a whole to support the commissioner’s award of total

permanent disability benefits. Upon review, we cannot say the commissioner’s

award was unreasonable, arbitrary, capricious, or an abuse of discretion.

IV. Conclusion.

       After considering each of the errors alleged by Cargill, we affirm.

       AFFIRMED.




question of his adequacy of strength to do any lifting, the patient’s pain and stability will
limit lifting capabilities . . . . He would probably be required to do only light labor work.”
