THE DEXTER COMPANY and EMC INSURANCE COMPANIES, Petitioners-Appellants, vs. RICHARD L. JONES, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-971 / 07-1025
Filed February 13, 2008
THE DEXTER COMPANY and
EMC INSURANCE COMPANIES,
Petitioners-Appellants,
vs.
RICHARD L. JONES,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Artis Reis, Judge.
The Dexter Company and its insurance carrier appeal a workers’
compensation decision in favor of a former employee. AFFIRMED.
Steven Ort of Bell, Ort & Liechty, New London, for appellant.
Dennis Emanuel of Webber, Gaumer & Emanuel, P.C., Ottumwa, for
appellee.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
2
VAITHESWARAN, J.
The Dexter Company and its insurance carrier appeal a workers’
compensation decision in favor of a former employee. We affirm the agency
decision.
I. Background Facts and Proceedings
For twenty-seven years, Richard Jones was employed by the Dexter
Company as a foundry laborer. In December 2002, Jones began experiencing
pain in his left shoulder. Knowing that he would be able to rest his arm during a
holiday plant shutdown, he did not immediately “say anything more about [his]
arm to anybody.”
On December 27, 2002, during the plant shutdown, Jones visited his
physician and mentioned the shoulder discomfort. Medical progress notes from
that visit state, “the patient is having left shoulder discomfort from repetitive work
he does at the factory.”
Jones returned to work after the holidays and his shoulder discomfort
quickly worsened. Jones reported the pain to his supervisor, suggesting the
cause might be “repetitive motion.” An orthopedic surgeon evaluated him and
concluded “given his history, exam, and x-rays, as well as his work activity and
recreational activity, the shoulder condition is most likely related and caused by
his work activities.”
Jones continued to work but, by October 2003, he could not lift his left
arm. He filed a workers’ compensation petition, which Dexter contested on the
ground the injury was not work-related.
3
Jones’s injury required surgery to repair a damaged rotator cuff tendon.
Following a recuperation and rehabilitation period, he was cleared to return to
work with lifting restrictions. However, Dexter terminated Jones’s employment,
concluding he “could not perform all the essential functions of this job with
restrictions.”
Jones’s workers’ compensation claim was heard and initially decided by a
deputy workers’ compensation commissioner.
She determined (1) Jones
experienced a cumulative injury that arose out of and in the course of his
employment at Dexter, (2) the injury manifested itself on December 27, 2002,
and (3) Jones sustained “a permanent partial disability in the amount of 82
percent.” In a final agency decision, the workers’ compensation commissioner
affirmed these key determinations, as did the district court.
II. Analysis
Dexter and its insurance carrier raise a host of challenges to the
commissioner’s decision, some factual and others involving the application of law
to fact. Our review of the agency’s fact-findings is for substantial evidence. Iowa
Code section 17A.19(10)(f) (2003). Our review of the agency’s application of law
to fact is under the “irrational, illogical, or wholly unjustifiable” standard. Iowa
Code § 17A.19(10)(m).
A. “In the Course of” Employment
Dexter and its insurance carrier argue Jones’s injury could not have been
“in the course of employment.” Iowa Code § 85.3(1). They do not dispute the
agency findings that Jones sustained an injury or that the manifestation date was
December 27, 2002. Instead, they argue Jones:
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was not at work [on that date], had not been to work, was not on his
employer’s premises, nor those of another on his employer’s behalf
. . . was not under his employer’s supervision nor engaged in any
activity furthering his employer’s business.
There is no question that, for an injury to be “in the course of
employment,” it must occur “within a period of employment, at a place where the
employee reasonably may be, and while the employee is fulfilling work duties or
is engaged in doing something incidental thereto.” Lakeside Casino v. Blue, 743
N.W.2d 169, ___ (Iowa 2007) (citation omitted). However, our highest court has
expressly rejected the notion that an employee alleging repetitive traumas over a
period of time must physically have been at work on the date found to have been
the manifestation date. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824,
829 (Iowa 1992) (affirming manifestation date occurring after employer’s plant
had permanently closed). That date is “the date on which both the fact of the
injury and the causal relationship of the injury to the claimant’s employment
would have become plainly apparent to a reasonable person.” Meyer v. IBP,
Inc., 710 N.W.2d 213, 221 (Iowa 2006).
Jones testified his shoulder began to hurt sometime in December 2002.
His physician’s records confirm a causal relationship between the pain and his
employment as of December 27, 2002. This evidence was sufficient to support
the commissioner’s determination that Jones’s injury was in the course of
employment. Additionally, that determination was entirely rational, logical, and
justifiable.
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B. “Arising Out Of” Employment
Dexter and its insurance carrier next challenge the commissioner’s
determination that Jones’s injury arose out of his employment with Dexter. See
Iowa Code § 85.3(1).
That element requires proof of a causal connection
between the injury and the employment. See Lakeside Casino, 743 N.W.2d at
___.
The defendants concede “the claimant’s work activities after December
27, 2002 aggravated the torn rotator cuff,” but argue “Jones’ work activities after
December 27, 2002 cannot, as a matter of law and common sense, be the cause
of an earlier injury.” Their argument presupposes Jones suffered an acute, onetime injury on December 27, 2002—a presupposition that is not supported by the
record. As the commissioner found, Jones sustained a cumulative injury to his
shoulder. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 373 (Iowa
1985) (defining cumulative injury as “numerous incidents over a period of time”).
Therefore, the injury did not occur on a specific date.
Id.
This finding is
supported by substantial evidence.
As noted, the commissioner found the injury “manifested” on December
27, 2002, a term that incorporates a causation requirement. Meyer, 710 N.W.2d
at 213. This finding is also supported by substantial evidence and essentially
disposes of the argument that the injury did not arise out of Jones’s employment.
Simply put, if there was a causal connection between the injury and employment
as of December 27, 2002, the causal connection did not disappear after that
date.
The commissioner’s determination that Jones’s injury arose out of his
employment was rational, logical and justifiable.
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III. Other Issues
Dexter and its carrier next raise seven issues they characterize as
“important and relevant matters relating to the propriety or desirability of the
action taken.” Three of the arguments have been addressed above: (1) the
commissioner’s selection of an “injury date,” (2) the “in the course of
employment” argument, and (3) the “arising out of employment” argument. Two
of the remaining issues are not supported by argument or authority and,
therefore, are waived. Iowa R. App. P. 6.14(g). A sixth issue was admittedly
resolved by the commissioner in favor of the defendants.
That brings us to the seventh issue, the commissioner’s determination that
Jones sustained permanent partial disability of eighty-two percent.
This is
inherently a fact-based determination. See Acuity Ins. v. Foreman, 684 N.W.2d
212, 219 (Iowa 2004). The deputy commissioner provided a detailed analysis of
the pertinent factors. She determined “claimant has suffered a devastating loss
of earning capacity as a result of this injury.” This determination was affirmed in
pertinent part by the commissioner. 1
The commissioner’s determination is
supported by substantial evidence.
AFFIRMED.
1
The commissioner stated the deputy’s finding that Jones applied for five jobs was not
supported by the record.
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