                   IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1152
                                 Filed April 7, 2019


RONALD N. McDONALD,
    Petitioner-Appellant,

vs.

EZ PAYROLL & STAFFING SOLUTIONS, LLC and ZURICH AMERICAN
INSURANCE COMPANY,
     Respondents-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Lars G. Anderson,

Judge.

      Ronald N. McDonald appeals from the district court’s judicial review ruling

upholding the workers’ compensation commissioner’s denial of permanent

disability benefits. AFFIRMED.




      Eric D. Tindal of Keegan Tindal & Mason, Iowa City, for appellant.

      Charles A. Blades of Smith Mills Schrock Blades Monthei, P.C., Cedar

Rapids, for appellees.



      Considered by Mullins, P.J., Bower, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                           2


DANILSON, Senior Judge.

       Ronald N. McDonald appeals from the district court’s judicial review ruling

upholding the workers’ compensation commissioner’s denial of permanent

disability benefits. Because we find no abuse of discretion in the commissioner’s

evidentiary ruling and there is substantial evidence to support the commissioner’s

determination that McDonald had not proved causation, we affirm the district court

in upholding the commissioner’s findings.

I. Background Facts and Proceedings.

       On August 17, 2012, McDonald was hired by EZ Payroll1 who assigned him

to ALPLA, a plastic fabrication company. McDonald began working for ALPLA on

August 20 where he was to clean molds used in the production of plastic bottles.

This process used water to clean the molds and assure they were properly sealed

together after they were cleaned. As part of this process McDonald also used

pressurized air to blow debris and water out of the molds, leading McDonald to get

misted water droplets in his face. During the same period, McDonald was also

working at Proctor & Gamble, where he swept the floors, cleaned public areas,

and mopped floors.

       On August 27, McDonald was injured at ALPLA while attempting to catch a

large cutting blade that had fallen from its sheath. He need surgery, which was

scheduled for August 31. However, on August 31, McDonald had a fever when he

reported for surgery and surgery was rescheduled.




1
  We will refer to EZ Payroll & Staffing Solutions, LLC and its insurer, Zurich American
Insurance Company collectively as the employer.
                                         3


      On Monday, September 3, a neighbor looked in on McDonald and noticed

he was ill and confused. McDonald was taken by ambulance to the emergency

room at Mercy Hospital in Iowa City with a profoundly abnormal neurologic status.

He was transferred to the intensive care unit where he underwent testing.

McDonald was diagnosed with Legionnaires’ disease, pneumonia, respiratory

failure, and a brain lesion that was thought to be secondary to Legionella. He also

learned he was HIV positive. HIV did not make McDonald more susceptible to

Legionnaires’ disease but did increase the risk that if acquired the symptoms of

the disease would be more severe. Dr. Jack Stapleton was McDonald’s treating

physician at UIHC.

      McDonald       sought   workers’   compensation    benefits,   asserting   his

Legionnaire’s disease arose out of and in the course of his employment with

ALPLA. An arbitration hearing was originally set for March 12, 2015. However,

McDonald filed an amendment to his claim on the day before the hearing, asserting

an odd-lot claim. The deputy commissioner allowed the amendment and granted

the employer’s motion to continue hearing, which was rescheduled for June 16.

      McDonald submitted the opinion of Dr. Stapleton in support of his claim for

workers’ compensation: “It is my opinion that Mr. McDonald was exposed to the

Legionella bacterium and contracted Legionella pneumonia during his work at

ALPLA while spraying molds during the latter part of August 2012.”           In his

deposition, Dr. Stapleton stated,

              Based on the history and the epidemiology and given the
      exposure to mists—sprays and mists of water, water mist at his
      employment the week prior to his first fever and the Monday prior to
      his first fever on Friday before Labor Day, and then diagnosis on—
                                        4


      ten days later, the epidemiology strongly supports that the most likely
      source is from the spray at work.

      The employer submitted the affidavit of Richard Aiken, the Environmental

Health, and Safety Manager for ALPLA, provided an affidavit in which he outlined

his responsibilities, one of which is “mitigate risks to prevent contaminants from

entering our facility or interfere with our manufacturing process.” He averred the

water within the facility “contains several additives to control microbes and

bacteria” and ALPLA utilizes a highly-controlled, closed-circuit water system

chemically treated to control any biological issues. Aiken also stated McDonald

worked alongside others and his duties were performed by others on other shifts,

and after learning of McDonald’s claims about Legionella exposure, Aiken

“conducted an investigation and reviewed our records dating back to 2010.” Aiken

stated, “It is my sworn testimony that ALPLA’s water supply has never been

compromised with Legionella bacteria at any time to my knowledge.” He also

noted, “ALPLA has no reported cases of Legionella, pneumonia, any respiratory

conditions, infections, or exceptional health issues from any team member before,

during or after Mr. McDonald’s brief period of employment at ALPLA.”

      Dr. David S. McKinsey, an infectious disease specialist, reviewed Aiken’s

affidavit, McDonald’s medical records, and the depositions of McDonald and Dr.

Stapleton and opined the Legionnaires’ disease could not be attributed to exposure

to water at ALPLA.

      Following the hearing, the deputy commissioner ruled in McDonald’s favor,

finding, “Dr. Stapleton’s conclusions concerning causation of the Legionnaires’

disease was due to his workplace exposure the most convincing.”
                                              5


         The employer appealed to the workers’ compensation commissioner. After

a de novo review,2 the commissioner reversed the arbitration ruling and concluded

McDonald failed to prove causation for contracting Legionnaires’ disease:

                 Both Dr. Stapleton and Dr. [Sunil] Bansal [an occupational
         health physician] appear to be entirely unaware of the procedures
         followed by ALPLA to prevent contamination of its water supply.
         Nowhere in the record of this case does it appear either doctor was
         ever provided with this information. The procedures followed by
         ALPLA at all times, including the short time period during which
         claimant worked at ALPLA, include using water supplied by the City
         of Iowa City, which contains several additives to control microbes
         and bacteria, using a highly-controlled closed-circuit water system
         inside the facility and treating the water used within that closed-circuit
         system with a product called ChemAqua “to control any biological
         issues to comply with food grade manufacturing processes” and
         using cold water below 68 degrees Fahrenheit. Nothing in the record
         indicates Dr. Stapleton and Dr. Bansal were ever made aware of this
         information. This is crucial information which goes to the very heart
         of the issue of causation in this matter. . . . I therefore find the
         opinions of Dr. Stapleton and Dr. Bansal to be unconvincing, as
         those opinions pertain to the causation of claimant’s Legionnaires’
         disease, because it appears Dr. Stapleton and Dr. Bansal relied upon
         incomplete information in formulating those opinions.
                 On the other hand, while Dr. McKinsey did not actually
         evaluate claimant, I find Dr. McKinsey’s causation opinion to be
         persuasive because Dr. McKinsey makes it clear in his report he was
         aware of the crucial information which was not provided to Dr.
         Stapleton and Dr. Bansal.

         McDonald filed a petition for judicial review in the district court, which upheld

the commissioner’s findings and conclusions. McDonald now appeals.




2
    See IBP, Inc. v. Burress, 779 N.W.2d 210, 220 (Iowa 2010):
                 It is within the commissioner’s authority to re-consider and modify
         issues on inter-agency appeal. Under Iowa Code section 86.24, the
         commissioner reviews the deputy commissioner’s determination de novo
         and “may affirm, modify or reverse . . . or the commissioner may remand
         the decision.” See Giere v. Aase Haugen Homes, Inc., 146 N.W.2d 911,
         914 (Iowa 1966).
                                        6


II. Scope and Standard of Review.

             Iowa Code chapter 17A governs our review of the
      commissioner’s decision. See Iowa Code § 86.26 (2009); Watson v.
      Iowa Dep’t of Transp., 829 N.W.2d 566, 568 (Iowa 2013). The district
      court acts in an appellate capacity when reviewing the
      commissioner’s decisions to correct errors of law. See Watson, 829
      N.W.2d at 568; Ludtke v. Iowa Dep’t of Transp., 646 N.W.2d 62, 64
      (Iowa 2002). “On appeal, we apply the standards of chapter 17A to
      determine whether we reach the same conclusions as the district
      court. If we reach the same conclusions, we affirm; otherwise we
      may reverse.” Watson, 829 N.W.2d at 568 (citation omitted).

Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888–89 (Iowa 2014)

III. Discussion.

      McDonald’s appeal is essentially a two-pronged challenge to the employer’s

experts’ opinions. McDonald argues the commissioner placed undue emphasis

on the affidavit of Aiken and the written report of Dr. McKinsey while ignoring or

not giving enough emphasis to his expert’s opinions. McDonald also asserts the

opinions were introduced in an untimely manner and therefore should not have

been available for the commissioner to consider.      As is often repeated: “Our

decision is controlled in large part by the deference we afford to decisions of

administrative agencies.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d

839, 845 (Iowa 2011).

      A claimant seeking workers’ compensation benefits has the burden to prove

by a preponderance of the evidence the existence of an injury “arising out of or in

the course of employment.” See Iowa Code § 85.3; Quaker Oats Co. v. Ciha, 552

N.W.2d 143, 150 (Iowa 1996). “Medical causation presents a question of fact that

is vested in the discretion of the workers’ compensation commissioner.” Pease,

807 N.W.2d at 845. Thus, we only disturb the commissioner’s finding if it is
                                           7

unsupported by substantial evidence.           Id. (citing Iowa Code § 17A.19(10)(f)

(2017)).

       McDonald notes both Dr. Stapleton and Dr. McKinsey agree his period of

exposure to Legionella occurred between August 19 and August 27, 2012, “which

align nearly identically with McDonald’s employment with EZ Payroll at ALPLA.”

He asserts his evidence therefore reflected the most likely source of his exposure

to Legionella was his work at ALPLA, but the commissioner “effectively” required

him to prove he could not have inhaled Legionella bacterium from any other

source. The question of causation is for the commissioner in the first instance; our

role is limited to whether the commissioner’s ruling is supported by substantial

evidence.

       Substantial evidence is “the 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 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, 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.’” Pease, 807 N.W.2d at 845 (quoting Iowa Code

§ 17A.19(10)(f)(3)).

       We do not determine whether the evidence supports a different finding.

Instead, “our task is to determine whether substantial evidence, viewing the record

as a whole, supports the findings actually made.” Id. “Because the commissioner

is charged with weighing the evidence, we liberally and broadly construe the
                                        8

findings to uphold [the commissioner’s] decision.” Schutjer v. Algona Manor Care

Ctr., 780 N.W.2d 549, 558 (Iowa 2010). “In addition, we give due regard to the

commissioner’s discretion to accept or reject testimony based on his assessment

of witness credibility.” Id.

       Although a close issue, we conclude there is substantial evidence to support

the commissioner’s finding that McDonald failed to prove his Legionnaires’ disease

arose out of his employment at ALPLA. Aiken’s affidavit and Dr. McKinsey’s report

both reference the efforts made to mitigate risks of contaminants in the water at

ALPLA not known by McDonald’s experts. The commissioner determined this was

crucial information and therefore concluded Dr. McKinsey’s opinion was more

persuasive than McDonald’s experts. “[T]he determination of whether to accept or

reject an expert opinion is within the ‘peculiar province’ of the commissioner.”

Pease, 807 N.W.2d at 845 (citation omitted). We do not reassess the evidence or

make or our own determination of the weight it is to be given. See Burns v. Bd. of

Nursing, 495 N.W.2d 698, 699 (Iowa 1993).              We are troubled by the

commissioner’s reliance on two exhibits—an affidavit and a physician’s report—

neither of which was the subject of cross-examination. This reliance is a concern

here because there is no evidence that Legionella bacteria was one of the

contaminants ALPHA was attempting to mitigate in its water. Yet we acknowledge

there was evidence of steps taken to reduce or mitigate contaminants in the water

that apparently were not known to McDonald’s experts and may cast doubt on the

reliability of their opinions.

       McDonald also attempts to evade a determination of substantial evidence

by attacking the admissibility of Aiken’s affidavit and Dr. McKinsey’s report. But
                                           9

we review the commissioner’s evidentiary rulings for an abuse of discretion. See

IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 630-31 (Iowa 2000). Here, we adopt the

district court’s reasoning:

       There had been initial hearing deadlines that were extended
       following a continuance and [McDonald’s] amendment to add his
       odd-lot claim. In reviewing the record, the court finds that Deputy
       Elliott specifically stated . . . she did not limit the parties’ discovery
       efforts when she granted [McDonald’s] motion to amend, and all
       parties could continue to develop their cases following the
       continuance in proceedings. The record does not reflect that
       [McDonald] sought to have a narrower continuance order, in light of
       filing his amendment to pursue the odd-lot claim, or that [McDonald]
       specifically sought to limit discovery following the continuance.
       Additionally, [McDonald] had access to the Aiken Affidavit and Dr.
       McKinsey’s report more than thirty days before the agency hearing.
       It does not appear that [McDonald] conducted additional discovery
       or investigation after receipt of these materials, but prior to the
       agency hearing date. While [McDonald] has argued that Aiken was
       an undisclosed expert, the court agrees with [the employer] that
       Aiken provided only fact testimony regarding water within ALPLA’s
       facility. Nothing about Deputy Elliott’s decision to continue the case
       precluded [the employer] from engaging in additional investigation of
       their claims during the continuance period, and this includes
       evidence regarding the water within ALPLA’s facility. It does not
       appear that [McDonald] made any attempt to question or contact
       Aiken prior the agency hearing date. To the extent that [McDonald]
       claims Aiken’s testimony is hearsay, the court notes that hearsay
       generally is admissible in administrative proceedings. . . . To the
       extent that [McDonald] claims Aiken’s testimony lacks credibility, the
       court finds that Aiken's affidavit indicates it is based on his personal
       knowledge, and it was appropriate for Commissioner Cortese to find
       the contents of the affidavit to be credible and persuasive.

We find no abuse of discretion in allowing the evidence over McDonald’s objection.

       McDonald also argues the Commissioner applied a causation standard

higher than the proper standard to be applied where a disease constitutes an

"injury" under our worker's compensation laws. We disagree with McDonald that

the Commissioner imposed a requirement that he must prove there was no other

potential sources.     The Commissioner’s ruling on application for rehearing
                                       10


specifically addressed the causation issue and the proof relied upon. We find no

improper application of the causation standard as may have been suggested in

IBP, 779 N.W.2d at 218.

      Finding no abuse of discretion in admitting the evidence and determining

the affidavit and report provide substantial evidence for the commissioner’s

findings and conclusions, we affirm.

      AFFIRMED.
