                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1409
                              Filed June 6, 2018


VICENTE LINARES,
     Plaintiff-Appellant,

vs.

TYSON FRESH MEATS, INC.,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.



      Vicente Linares appeals the district court order affirming the final agency

decision denying his review-reopen petition. AFFIRMED.




      James C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines, for

appellant.

      Timothy A. Clausen of Klass Law Firm, L.L.P., Sioux City, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Vicente Linares was awarded two-hundred weeks of permanent partial

disability benefits after the workers’ compensation commissioner found that he

sustained a forty-percent industrial disability when he was injured while working at

Tyson Fresh Meats (Tyson) in June 2009.          In 2013, Linares filed a review-

reopening petition, alleging that he sustained an increased loss of earning capacity

after he was awarded benefits. Following a hearing, the deputy commissioner

found that Linares failed his burden of proving an increased loss of earning

capacity and denied his petition.       The commissioner affirmed the deputy

commissioner’s decision, and Linares petitioned for judicial review in the district

court. He appeals the district court order affirming the final agency decision,

arguing the agency misinterpreted the law governing review-reopening

proceedings.

       Our scope of review is for correction of errors at law. See Iowa R. App. P.

6.907. In reviewing the district court’s decision on judicial review, we apply the

standards of Iowa Code chapter 17A to determine whether the conclusions we

reach are the same as the conclusions of the district court. See Neal v. Annett

Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012). If they are, we affirm; if not, we

reverse. See id.

       An award of workers’ compensation benefits “may be reviewed upon

commencement of reopening proceedings by the employer or the employee within

three years from the date of the last payment of weekly benefits made under the

award or agreement.” Iowa Code § 85.26(2) (2013). The question is whether the

condition of the employee warrants a change of compensation. See id. § 86.14(2).
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Linares’s benefits may be increased if he has proved by a preponderance of the

evidence that he “suffered an impairment or lessening of earning capacity” after

he was originally awarded benefits.       Simonson v. Snap-On Tools Corp., 588

N.W.2d 430, 434 (Iowa 1999). Linares is not required to show a change in physical

condition, only that his earning capacity had decreased. See id. In addition,

Linares must prove by a preponderance of the evidence that the decrease in his

earning capacity was “proximately caused by the original injury.” Kohlhaas v. Hog

Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) (quoting Simonson, 588 N.W.2d at

434.

       Linares claims his economic condition decreased because the permanent

restrictions imposed as a result of his work injury prevented him from continuing to

perform the work duties of the position he held before the injury, resulting in his

transfer to a lower-paying position at Tyson after his benefits were awarded.

Linares argues the workers’ compensation commissioner incorrectly applied the

law in affirming the deputy commissioner’s decision because his industrial

disability rating was calculated based on the assumption his earnings would not

be reduced.

       The arbitration decision discussed the following factors, which led to the

determination that Linares had sustained a forty-percent loss of earning capacity:

               [Linares]’s medical condition before the work injury was fairly
       good except for some prior flare-ups in the left shoulder and low
       back. He was able fully perform the physical tasks in his repetitive
       work. While [Linares] has returned to his job, it is quite apparent the
       repetitive work is really not suitable for him as it is likely he will
       continue to have problems if he continues such work as noted by Dr.
       McGuire. However, [Linares] needs to work and will likely continue
       this work until he can no longer tolerate it. He is now looking for other
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       jobs at Tyson. [Linares] remains at work without permanent loss of
       wages as a result of his injuries.
                [Linares] is 42 years old. He has very limited education.
       Given his language problems, age, and limited education, he has
       little potential for retraining into a more skilled lighter duty job. His
       restrictions, which prohibit heavy work and difficulty with repetitive
       work, will severely limit those limited jobs open to non-English
       speaking immigrants.

In the review-reopening decision, the deputy commissioner rejected Linares’s

claim that the change in his position at Tyson due to his work restrictions reduced

his earning capacity.     The deputy commissioner noted that the permanent

restrictions were known to the parties at the time of the arbitration hearing and

“[t]he deputy clearly considered the impact of these restrictions upon claimant’s

ability to engage in the labor market generally, as well as his ability to remain in

[his prior] position indefinitely.” The commissioner affirmed the decision.        In

Kohlhaas, our supreme court clarified that claimants in review-reopening actions

need not demonstrate that their current condition was not contemplated at the time

of the original settlement. 777 N.W.2d at 393. However, the court emphasized

that the principles of res judicata still apply and, accordingly, “the agency, in a

review-reopening petition, should not reevaluate an employee’s level of physical

impairment or earning capacity if all of the facts and circumstances were known or

knowable at the time of the original action.” Id. In denying Linares’s petition for

judicial review, the district court found that the commissioner properly interpreted

and applied Kohlhaas in concluding that Linares’s economic position had not

changed because his earning capacity was determined at the time of the original

action with the work restrictions in mind. We agree, and therefore affirm.
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       Linares’s also alleges his earning capacity diminished when his new

position was eliminated, leading to the termination of his employment with Tyson.

In Linares’s view, his original injury was a proximate cause of the loss of his

employment: but for the work injury, Linares would not have been transferred to a

new position and therefore would not have lost his employment when the new

position was eliminated. The deputy commissioner rejected this argument, finding

instead that Linares’s earning capacity decreased because of factors other than

his injury. The commissioner affirmed.

       In US West Communications, Inc. v. Overholser, 566 N.W.2d 873, 877

(Iowa 1997), the supreme court held a claimant was not entitled to review-

reopening when her economic condition decreased a due to a layoff.

       [The claimant’s] physical condition remained unchanged and her
       earning capacity decreased solely because of factors outside of the
       settlement with U.S. West, including her subsequent injuries, the
       downsizing by U.S. West, her lack of seniority, and her job seeking
       skills. Her inability to secure employment after the layoff was not due
       to her back injury, but to other factors not at issue in this case. [The
       claimant] has failed to prove by a preponderance of evidence that
       her decreased earning capacity was proximately caused by her initial
       injury.

Id. (citation omitted). In denying Linares’s petition for judicial review, the district

court concluded that “[t]he commissioner’s application of the proximate cause

standard is supported by the facts, which demonstrate petitioner was in the

position for approximately one year and nearly all of the employees who worked

on the line were also terminated by respondent.” Reaching the same conclusion,

we affirm.

       AFFIRMED.
