Sterling Commercial Roofing, Inc. and Zurich North America v. Joseph Berzle ( 2015 )


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  •                   IN THE COURT OF APPEALS OF IOWA
    No. 15-0351
    Filed December 23, 2015
    STERLING COMMERCIAL ROOFING, INC. and ZURICH NORTH AMERICA,
    Plaintiffs-Appellants,
    vs.
    JOSEPH BERZLE,
    Defendant-Appellee.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Dustria A. Relph,
    Judge.
    The employer appeals from the district court’s ruling on judicial review
    affirming the workers’ compensation commissioner’s findings of permanent
    impairment. AFFIRMED.
    Sasha L. Monthei of Scheldrup Blades, Cedar Rapids, for appellants.
    Matthew J. Petrzelka of Petrzelka & Breitbach, P.L.C., Cedar Rapids, for
    appellee.
    Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
    2
    POTTERFIELD, Judge.
    Employer Sterling Commercial Roofing and its insurer Zurich North
    America (employer) appeal from the district court’s ruling on judicial review
    upholding the workers’ compensation commissioner’s findings that Joseph Berzle
    sustained a work-related injury to his left shoulder, which resulted in his
    permanent total disability.
    The employer appeals, contending there is not substantial evidence
    supporting the finding that Berzle proved a permanent left shoulder injury arising
    from work activities. We review the fact-findings of the agency for the existence
    of substantial supporting evidence. See Iowa Code § 17A.19(10)(f) (2015). This
    standard does not allow us to “engage in a scrutinizing analysis.” Neal v. Annett
    Holdings, Inc., 
    814 N.W.2d 512
    , 525 (Iowa 2012).
    The commissioner adopted the findings of the deputy conducting the
    arbitration hearing.
    Dr. Neiman found claimant’s current left shoulder condition
    was caused by both his July 20, 2012, traumatic work injury in
    lifting the heavy boards, as well as a repetitive motion overuse of
    the left shoulder while compensating for his previous right shoulder
    injury. Dr. Neiman conducted a detailed examination. His opinion
    that claimant’s current left shoulder condition is causally related to
    his work and the work injury is more in keeping with the rest of the
    evidence, including claimant’s credible testimony, whereas the
    conclusions of Dr. Gorsche and Dr. Garrels are inconsistent with
    the rest of the evidence. Greater weight will be given to the
    conclusions of Dr. Neiman. It is concluded claimant’s current left
    shoulder condition is causally related to his work, and has resulted
    in permanent disability.
    These findings are supported by the record evidence. See 
    id. at 527
    (“[F]actual
    findings are not insubstantial merely because evidence supports a different
    conclusion or because we may have reached a different conclusion.”).
    3
    The employer next argues that even if substantial evidence supports the
    finding of a permanent work-related injury, the conclusion that Berzle is
    permanently and totally disabled is illogical, irrational, or wholly unjustifiable.
    “Industrial disability is determined by an evaluation of the employee’s earning
    capacity.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 
    807 N.W.2d 839
    , 852 (Iowa
    2011). The issue raises a mixed question of law and fact. 
    Neal, 814 N.W.2d at 525
    .    The commissioner’s industrial disability determination involves the
    application of law to fact, which we will not overturn unless it is “irrational,
    illogical, or wholly unjustifiable.”   
    Id. at 526;
    accord Larson Mfg. Co., Inc. v.
    Thorson, 
    763 N.W.2d 842
    , 856–57 (Iowa 2009).
    The commissioner noted Berzle is fifty-six years old and has worked most
    of his adult life as a roofer. He dropped out of high school due to poor grades
    and “has no special skills other than his roofing experience.” Berzle has “severe”
    work restrictions, including “a prohibition against lifting more than two pounds,
    which basically prohibits [Berzle] from working at most physical labor jobs.” The
    commissioner concluded Berzle’s injury “has resulted in a drastic, complete loss
    of earnings.”
    Claimant has shown that, due to his injury, he is no longer able to
    return to any job he has done in the past, and specifically cannot
    return to roofing work, which he has done for 32 years. He cannot
    do any physical work involving lifting over two pounds. His limited
    education and lack of skills, combined with his severe work
    restrictions and his age of 56, which would work against him when
    competing with other, non-disabled workers for jobs, compels the
    conclusion there are no jobs claimant could reasonably be
    expected to perform.
    It is concluded claimant, as a result of his work injury of July
    20, 2012, is permanently and totally disabled.
    4
    The conclusion that Berzle had a complete loss of earning capacity is not
    irrational, illogical or wholly unjustifiable. See 
    Neal, 814 N.W.2d at 527
    (“[I]n
    considering findings of industrial disability, we recognize that the commissioner is
    routinely called upon to make such assessments and has a special expertise in
    the area that is entitled to respect by a reviewing court.”). We affirm.
    AFFIRMED.
    

Document Info

Docket Number: 15-0351

Filed Date: 12/23/2015

Precedential Status: Precedential

Modified Date: 12/23/2015