                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0152
                             Filed February 6, 2019


NAIMA CERWICK,
     Plaintiff-Appellant,

vs.

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


       Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



       Naima Cerwick appeals the denial of her petition for judicial review of the

Iowa Workers’ Compensation Commissioner’s decision. AFFIRMED.



       R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des Moines,

for appellant.

       Jason P. Wiltfang of Scheldrup Blades, Cedar Rapids, and Stephanie L.

Marett (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.

       Thomas Newkirk of Newkirk Zwagerman P.L.C., Des Moines, amicus

curiae.

       Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and Lori

Bullock of Newkirk Zwagerman P.L.C., Des Moines, for amicus curiae National

Employment Lawyers Association.
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      Tyler M. Smith of Smith Law Firm PLC, Altoona, for amicus curiae Iowa

Defense Counsel Association.

      Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines, for

amicus curiae Iowa Association for Justice.



      Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.

      Naima Cerwick appeals the district court’s ruling on judicial review, which

affirmed the Iowa Workers’ Compensation Commissioner’s decision.              She

contends the decision was unfairly influenced by implicit bias.

      I. Background Facts and Proceedings.

      Cerwick was reporting for her work shift at Tyson Fresh Meats, Inc. (Tyson)

on February 28, 2013, when she slipped on ice and fell in the parking lot.

According to Cerwick, she fell backward and hit the ground with her hands first.

Cerwick reported the fall to a supervisor, who directed her to health services. She

reported no pain at that time and returned to work.

      On March 6, 2013, Cerwick returned to Tyson’s health services, reporting

that she was experiencing back pain and asking to see a doctor. Health services

referred Cerwick to Concentra, where Dr. Sherry Hutchins examined her and

assessed her as having a thoracic strain. Dr. Hutchins prescribed medication to

treat the pain and referred Cerwick to physical therapy. At a follow-up appointment

with Dr. Hutchins on March 25, 2013, Cerwick reported that she continued to have

intermittent back pain with limited improvement and some lower back pain at times.

      Dr. Hutchins referred Cerwick to an orthopedic surgeon, and thereafter, a

variety of medical providers examined and treated Cerwick for pain her back and

shoulders, lower back, and hip. An MRI performed in July 2013 showed an anterior

superior and superior labral tear to her right hip. The medical providers had

differing opinions as to whether her injuries were causally related to the fall and

whether the back injury is permanent.
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       In March 2014, Cerwick filed a petition seeking workers’ compensation

benefits for injuries to her right hip, right shoulder, and back. Tyson stipulated that

Cerwick had sustained a temporary work-related injury to her back on February

28, 2013, but denied she sustained any other injuries.

       Cerwick, who was born in Morocco and moved to the United States in 2001,

requested to use a translator at the arbitration hearing.1 As the district court

described in its judicial review ruling,

       [T]here were considerable problems with the interpretation during the
       hearing. [Cerwick] had difficulty identifying words in Arabic at times
       and asked to answer in English. There were other occasions [during]
       which the interpreter indicated that [Cerwick] did not understand the
       Arabic interpretation or did not respond correctly. During the course
       of [Cerwick]’s testimony, her attorney asked the deputy if [Cerwick]
       [c]ould answer in English unless she asked to have the question
       repeated in Arabic. The deputy decided to proceed with the
       interpreter because [Cerwick] had requested one, but allowed her to
       correct the record and answer in English if needed. Later, [Cerwick]
       stated that she was having trouble because she had not spoken
       Arabic for a long time. At that point, the deputy revisited the issue
       whether an interpreter should be used. After allowing [Cerwick] and
       her attorney to discuss the matter, she decided to waive the right to
       use an interpreter.

       The deputy workers’ compensation commissioner filed an arbitration

decision finding Cerwick failed to show by a preponderance of the evidence that

she sustained any injury beyond a temporary aggravation of her back as a result

of the fall. The workers’ compensation commissioner affirmed the arbitration order

in its entirety and denied Cerwick’s application for rehearing.




1
  Cerwick testified that because her husband and children only speak English, she speaks
English at home. She does not read or write in English but is able to understand “[a] little
bit” of English. When asked how well she speaks English, Cerwick testified, “Sometimes
I understand, sometimes I don’t understand.”
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         Cerwick petitioned for judicial review, challenging the agency’s fact findings

and alleged they were impacted by implicit bias. The district court affirmed the

agency decision after determining it was supported by substantial evidence.

Cerwick appeals.

         II. Standard of Review.

         On a petition for judicial review of a commissioner’s decision, the district

court acts in an appellate capacity to correct errors of law. See Mike Brooks, Inc.

v. House, 843 N.W.2d 885, 888-89 (Iowa 2014). When the judicial-review ruling

is appealed, the appellate court applies “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.”             Id. at 889.     Factual

determinations, including determinations of medical causation or whether to

accept or reject an expert opinion, are vested in the discretion of the commissioner,

and we are bound by those fact-findings “if they are supported by substantial

evidence in the record before the court when that record is viewed as a whole.” Id.

(citation omitted). “Evidence is substantial if a reasonable mind would find it

adequate to reach the same conclusion. An agency’s decision does not lack

substantial evidence because inconsistent conclusions may be drawn from the

same evidence.” Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa

2016).

         III. Discussion.

         Cerwick contends an        unconscious bias influenced the agency’s

assessment of the evidence. Specifically, she argues the deputy commissioner’s

implicit bias led the deputy to find that she was not credible and to disregard
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evidence that supported a finding that a permanent back injury and injuries to her

hip and shoulder resulted from the February 2013 fall.

       In support of her claim of implicit bias, Cerwick cites to the deputy’s

discussion of her use of an interpreter at the arbitration hearing. In the arbitration

decision, the deputy made the following observations about Cerwick’s need for an

interpreter and ability to effectively communicate in English:

       At the hearing, [Cerwick] started her testimony using an interpreter.
       However, during her testimony it became apparent that it was easier
       for [Cerwick] to testify in English than in Arabic. The only time
       [Cerwick] had difficulty finding words was when she was trying to
       think of an Arabic word. [Cerwick] testified that it had been a long
       time since she spoke Arabic. She said, “I’m not really speaking
       Arabic at all every day.” During the hearing it was eventually
       determined that she would testify without the use of the interpreter,
       as an interpreter was not necessary and it was actually more difficult
       for [Cerwick] to speak Arabic than to speak English. At that point,
       [Cerwick] specifically waived her right to an interpreter and confirmed
       that all of her answers to that point had been correctly interpreted.
       Based on my observations at hearing I find that [Cerwick] does not
       have any difficulty speaking English. I also note that when
       [Cerwick]’s counsel sent her for IMEs . . . , there was not an
       interpreter at those appointments. It is troubling to the undersigned
       that an interpreter was requested because [Cerwick] demonstrated
       that her ability to speak English is greater than her ability to speak
       Arabic.

       Cerwick complains that the deputy “grossly overstate[d] her communication

abilities” by finding she “had no difficulty” speaking or understanding English. She

argues that based on this finding, the deputy discredited her claim because she

failed to describe her fall or communicate her symptoms sufficiently to her medical

providers. For instance, one of the reasons the deputy gave in determining that

Cerwick’s February 2013 fall did not cause the right hip labral tear related to what

the deputy determined were inconsistencies in the records regarding Cerwick’s fall

and injury:
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       [T]he histories she provided to the medical providers are not
       consistent and become more detailed as time goes by. It is not until
       almost one year after the fall that she first reported that her legs went
       into a hyperabduction-type splits position when she fell. Prior to that
       time she had seen numerous providers and not one of them recorded
       this history. Dr. Wahl’s September 12, 2013 note does state that she
       landed directly on her back with her legs “extended and relatively
       abducted.” However, she did not provide this history to any providers
       who she saw closer in time to the fall . . . . Rather, her description
       was that her fall happened very quickly and she fell backwards and
       braced herself with her hands behind her. During the first several
       months following the fall there is no mention of any type of abduction
       of her legs. Additionally, she reported to Dr. Quam that she landed
       directly on her right buttock; this is a different history than she gave
       to other providers. It is not logical that [Cerwick] would have reported
       that her legs hyperabducted to these numerous providers and that
       all of the providers failed to document the pertinent history.

       The workers’ compensation commissioner gave “considerable deference”

to the deputy’s findings in affirming the arbitration decision on appeal, noting that

some of the findings were based on the deputy’s assessment of Cerwick’s

credibility. In denying Cerwick’s application for rehearing, the commissioner again

deferred to the deputy’s findings based on the deputy’s ability to observe and

evaluate the demeanor of the witnesses who testified at the hearing.               The

commissioner denied Cerwick’s claim that the deputy commissioner found she

lacked credibility based on her use of an interpreter at the hearing, stating:

       The arbitration decision does note [Cerwick] had no difficulty
       understanding English and it was easier for [Cerwick] to testify in
       English than Arabic. The arbitration decision suggests it was
       troubling counsel requested an interpreter, given [Cerwick]’s ability
       to speak English. The fact [Cerwick] had an interpreter has nothing
       to do with [Cerwick]’s credibility, but merely questions counsel’s
       decision.
               A review of the medical records indicates [Cerwick] gave
       inconsistent accounts of the February of 2013 accident to multiple
       providers. I defer to the deputy regarding credibility findings of the
       [Cerwick] at hearing. Given this, [Cerwick]’s application is denied as
       to this ground.
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Because the commissioner found Cerwick gave inconsistent accounts concerning

her fall to multiple providers, he deferred to the deputy’s credibility findings.

       The district court affirmed the agency on judicial review, finding that Cerwick

failed to show the deputy had an implicit bias:

              The deputy’s explanation of these events shows
       transparency, not bias. She understood this might be an issue on
       appeal, so she explained what happened and why she did what she
       did. She stated her impression, as the presiding officer at hearing,
       that [Cerwick] spoke English well. Her findings are supported by the
       course of the proceedings and the record as a whole. If the deputy
       had been biased, she could have ignored a written discussion of the
       issue altogether. The decision to provide a written explanation
       should not be held against the decision maker.

       The agency, as trier of fact, has a duty to weigh the evidence and measure

the credibility of the witnesses. See Cedar Rapids Cmty. Sch. Dist. v. Pease, 807

N.W.2d 839, 846 (Iowa 2011).         “Our review of such a determination by the

commissioner is limited to whether the commissioner’s finding is supported by

substantial evidence in the record made before the agency when that record is

viewed as a whole.” Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 854

(Iowa 1995); see also Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 500

(Iowa 2003) (finding substantial evidence supported the deputy commissioner’s

credibility finding). Because these determinations remain within the agency’s

exclusive domain and the “peculiar province” of the commissioner, we cannot

reassess the weight of the evidence.           Pease, 807 N.W.2d at 846; see also

Robbennolt v. Snap–On Tools Corp., 555 N.W.2d 229, 234 (Iowa 1996). In fact,

“we are obliged to broadly and liberally apply those findings to uphold rather than

defeat the commissioner’s decision.” Pirelli–Armstrong Tire Co. v. Reynolds, 562

N.W.2d 433, 436 (Iowa 1997) (citation omitted).               Although the severely
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circumscribed nature of our review of agency action means that nearly all disputes

are won or lost at the agency level, Burns v. Bd. of Nursing, 495 N.W.2d 698, 699

(Iowa 1993), we are not at liberty to change it, see Figley v. W.S. Indus., 801

N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are not at liberty to overturn

precedent of our supreme court.”); Caylor v. Emp’rs Mut. Cas. Co., 337 N.W.2d

890, 894 (Iowa 1983) (acknowledging it is for the legislature to enact changes to

the law).

       We review to determine whether the evidence in this case “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) (2017). “In our fairly intensive review, we view the record as a

whole, which includes a consideration of evidence supporting the challenged

finding as well as evidence detracting from it.” Neal v. Annett Holdings, Inc., 814

N.W.2d 512, 525 (Iowa 2012).

       Upon our “fairly intensive review” of the record, we conclude substantial

evidence supports the finding that Cerwick provided an inconsistent history of the

fall and resulting injury. Although a trier of fact might conclude the evolution of

Cerwick’s explanation of her fall and injuries was a result of communication

difficulties, our task on appeal is not to determine whether the evidence supports

a different finding; our task is to determine whether substantial evidence supports

the finding actually made. See Pease, 807 N.W.2d at 845; Dodd v. Fleetguard,

Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 2008) (“The fact that two inconsistent

conclusions may be drawn from the same evidence does not prevent the agency’s
                                        10


findings from being supported by substantial evidence.”). In doing so, this court

abstains from making “a determination as to whether evidence ‘trumps’ other

evidence or whether one piece of evidence is ‘qualitatively weaker’ than another

piece of evidence.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394 (Iowa 2007).

       The deputy’s finding concerning the explanation Cerwick gave her medical

providers concerning her fall and injuries is only one of several considerations the

deputy made in determining the injuries were not related to the February 2013 fall.

However, Cerwick argues the agency failed to weigh and consider material

evidence in determining she failed to prove causation. On this basis, she argues

reversal and remand is required.

       “The deference afforded the agency on substantial evidence review is

predicated on the assumption the agency reviewed and considered the evidence

in reaching its decision.” JBS Swift & Co. v. Hedberg, 873 N.W.2d 276, 281 (Iowa

Ct. App. 2015). If the record shows the agency ignored evidence, then its decision

is unreasonable, arbitrary, capricious, an abuse of discretion, and the product of

illogical reasoning. See id. In the event the agency fails to consider all of the

evidence, we must remand to allow the agency to re-evaluate the evidence unless

the facts are established as a matter of law. See id.

       Chapter 17A requires that an agency issuing a decision must state “why the

relevant evidence in the record supports each material finding of fact” and provide

citation to authority or a reason for each of its conclusions of law. Iowa Code

§ 17A.16(1). With regard to this requirement, our supreme court has

       long held that the commissioner must state the evidence relied upon
       and detail reasons for his conclusions.             Moreover, the
       commissioner’s decision must be sufficiently detailed to show the
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       path he has taken through conflicting evidence. We have refrained,
       however, from reading unnecessary and burdensome requirements
       into the statute. Thus we have held the commissioner need not
       discuss every evidentiary fact and the basis for its acceptance or
       rejection so long as the commissioner’s analytical process can be
       followed on appeal. So also have we held the commissioner’s duty
       to furnish a reasoned opinion satisfied if it is possible to work
       backward and to deduce what must have been the agency’s legal
       conclusions and its findings of fact.

Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997) (cleaned up).

       The arbitration decision sets forth a detailed recitation of the evidence and

the weight the deputy afforded it. Cerwick’s claim that the deputy ignored evidence

is unsupported; rather, the weight the deputy afforded the evidence and the

conclusions the deputy drew conflicts with Cerwick’s view of the evidence. The

decision complies with the requirements of section 17A.16(1), and it satisfies our

“substantial evidence” review. Accordingly, we affirm the district court’s denial of

Cerwick’s petition for judicial review.

       AFFIRMED.
