bridgestone/firestone and Old Republic Insurance v. Marlon Jackman ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2007
Filed November 9, 2016
BRIDGESTONE/FIRESTONE and
OLD REPUBLIC INSURANCE,
Petitioners-Appellants,
vs.
MARLON JACKMAN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Rebecca Goodgame
Ebinger, Judge.
An employer appeals the district court’s decision affirming the Iowa
Workers’ Compensation Commissioner’s award of benefits. AFFIRMED.
Timothy W. Wegman and Joseph M. Barron of Peddicord, Wharton,
Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for appellants.
Martin Ozga of Neifert, Byrne & Ozga, P.C., West Des Moines, for
appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
Bridgestone/Firestone and Old Republic Insurance (Firestone) appeal the
district court’s decision affirming the Iowa Workers’ Compensation
Commissioner’s award of benefits to Marlon Jackman. Firestone disputes only
the commissioner’s award of permanent total disability, alleging Jackman
remains employable. We affirm.
I. Background Facts and Proceedings
We adopt the district court’s recitation of the facts as our own:
[Jackman] completed school through 10th grade as a below-
average student and later received his GED while enlisted in the
Marine Corps. In August 1988, Jackman began working for
Firestone as a tire builder. In 2001, Jackman moved to the final
inspection department because of left elbow problems. In the final
inspection department, Jackman prepared tires for shipment, which
involved stacking tires on pallets. In May 2007, Jackman was
compensated for a worker’s compensation claim for a hernia injury.
As part of this claim, Jackman saw Dr. Kuhnlein who assessed
[Jackman] had a 5% whole person impairment and imposed work
restrictions.
In February or March of 2011, Jackman states he began to
experience neck problems, accompanied by low back pain.
Jackman states that around this time Firestone increased the rate
of tire production [significantly]. Jackman visited Dr. Troll on April
8, 2011, who opined Jackman’s upper thoracic pain was not a
work-related problem. Jackman then visited Dr. Rabang, his family
physician, who performed an MRI and referred Jackman to
Dr. Hirschl, a neurosurgeon. Dr. Hirschl determined Jackman had
“a significant amount of degenerative changes in basically his entire
cervical spine,” notably disk bulging and foraminal narrowing of C5-
6 and C6-7. Dr. Hirschl and Jackman discussed surgery but
decided to treat the condition through therapy. Jackman was off
work from June 30, 2011, until October 2011, while he received
neck treatment from Dr. Hirschl and Dr. Rabang along with
treatment from Dr. Pederson, a physiatrist, and Nurse Practitioner
Ann Bartels. In July 14, 2011, Dr. Rabang diagnosed Jackman with
lumbar disk disease and right lower extremity radiculopathy.
Upon return to work in October 2011, Jackman transferred
departments and worked on computers. His work involved setting
and shutting off presses and inputting work orders. Dr. Pederson
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imposed a permanent work restriction of lifting no greater than 15
pounds and no repetitive bending and twisting, affirmed by Dr. Troll.
In December 2011, Firestone shut down Jackman’s department,
and Jackman moved to an inventory position which involved
scanning materials. On April 11, 2012, Jackman performed his last
reported day of work and was thereafter placed on accident and
sickness leave. In November 2012, Jackman applied for early
retirement due to disability, and his request was approved in March
2013.
On February 24, 2012, Jackman filed a Petition in Arbitration
with the Iowa Workers’ Compensation Commission for [] alleged
neck and back injuries suffered on June 30, 2011. As part of the
claim, both parties obtained independent medical evaluations and
vocational reports. Dr. Kuhnlein evaluated Jackman on August 14,
2012, and diagnosed degenerative disc disease of the cervical
spine with chronic neck pain and spondylolisthese of L4-S1 with
chronic low back pain and complaints of lower extremity symptoms
without true radiculopathy. Dr. Neff examined Jackman on
December 12, 2012, at [Firestone’s] request, and stated “the
degenerative changes noted in [Jackman’s] cervical and lumbar
spine are commonly related to simply the normal processes and
progressions of life.” [Firestone’s] vocational report, issued April 3,
2013, indicates several viable employment opportunities exist for
Jackman’s skill and ability. Jackman’s vocational report, issued
April 17, 2013, stated Jackman is “precluded 100% from a gainful,
competitive labor market” due to his injury.
(Sixth alteration in original) (Citations omitted). The deputy commissioner
awarded Jackman permanent total disability benefits on August 30, 2013, which
was affirmed by the commissioner on February 5, 2014. In September 2014, the
matter was remanded by the district court for specification of when Jackman
reached maximum medical improvement as part of the commissioner’s finding of
permanent total disability. In June 2015, the commissioner found Jackman’s
maximum medical improvement date was October 13, 2011. In November 2015,
the district court affirmed the commissioner’s award. Firestone appeals.
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II. Standard and Scope of Review
The issue of industrial disability is a mixed question of law and fact. See
Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 525 (Iowa 2012). We review the
commissioner’s findings of fact for substantial evidence. Id. “Because the
challenge to the agency’s industrial disability determination challenges the
agency’s application of law to facts, we will not disrupt the agency’s decision
unless it is ‘irrational, illogical, or wholly unjustifiable.’” Id. at 526 (citation
omitted).
III. Analysis
On appeal, Firestone disputes the commissioner’s award of permanent
total disability, claiming Jackman remains employable. The deputy
commissioner—whose opinion was adopted in full by the commissioner—
disagreed, finding:
Mr. Jackman is an aging worker with very limited educational
background or skills. He now has a 15-pound work restriction that
will preclude him from returning to work in his prior employment.
He testified that he will not be able to sit or take the bouncing of a
forklift, and that testimony is accepted as reasonable. Mr. Jackman
is realistically precluded from returning to any of the employment
positions he has previously held.
At his age [of sixty-two], it is unrealistic to expect or believe
that he could realistically retrain and obtain useful new skills.
Moreover, his poor academic skills also suggest this is an
unrealistic expectation. Firestone placed claimant on medical lay
off because it had “no job position he can perform with his medical
restrictions.” If a large production facility like Firestone cannot find
employment consistent with the medical restrictions of a 23-year
employee, it is highly unlikely that any other employer is going to be
willing to make accommodations to meet Mr. Jackman’s medical
restrictions. This is even less likely considering Mr. Jackman’s age.
(Citation omitted.) Firestone argues the weight of the medical opinion indicates
Jackman is employable. However, these medical opinions on the extent of
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Jackman’s physical impairments are only a factor to consider in determining
industrial disability. See Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808,
813 (Iowa 1994) (“Industrial disability goes beyond body impairment and
measures the extent to which the injury impairs the employee’s earning
capacity.”); see also West Side Transport, Inc. v. Fishel, No. 07-1015, 2008 WL
238597, at *5 (Iowa Ct. App. Jan. 30, 2008) (“[E]ven if a medical opinion is
uncontroverted, it ‘is not binding on the trier of fact’ and ‘may be accepted in
whole, in part, or not at all.’ Also, bodily impairment is merely one factor to
consider in determining industrial disability.” (citation omitted)). While one factor
is Jackman’s “functional disability,” other factors include his “age, education,
qualifications, experience, and inability to engage in similar employment.” Neal,
814 N.W.2d at 526 (citation omitted). These factors were explicitly considered in
the deputy commissioner’s decision.
The medical opinions established Jackman had permanent work
restrictions, including the inability to lift over fifteen pounds. As a result of
Jackman’s limitations, Firestone found there was no work available for him.
Further, although one vocational expert report stated jobs were available for
Jackman, another found no job position was available. The deputy
commissioner found the latter opinion more credible, reasoning:
In reaching this finding, I recognize that [Firestone] produced
a vocational report. In that report, [Firestone’s] vocational expert
identified several potential job leads for [Jackman]. In reviewing
those job leads, some likely require computer skills not possessed
by [Jackman]. Others appear to require manual labor, such as
unloading dirty garments off trucks. This seems like an unlikely
expectation of someone with a 15-pound lifting restriction. Yet
other positions appear to require customer service skills that have
never been developed or used by [Jackman]. It seems unlikely that
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a 62-year-old worker is going to be hired for a customer service
position with no prior experience in customer service work. In
general, I find the report and predictions offered by [Firestone’s]
vocational experts to be less than concrete or specific and likely
overly optimistic about Mr. Jackman’s realistic opportunities.
Instead, the deputy commissioner found Jackman’s vocational expert
more convincing, who opined that Jackman’s restrictions, including his
“restriction of no sitting or standing for longer than two hours,” “place[d] him more
within a sedentary physical capacity level.” The deputy commissioner stated:
[Jackman’s] vocational expert [] noted, “all of Mr. Jackman’s
prior employment activities as described involved heavy to very
heavy physical capacity and strength per the Department of Labor’s
definition. None of which he could perform now.” I concur with this
statement.
After reviewing [Jackman’s] vocational and educational
histories, his medical restrictions, his age, and other relevant
employments factors, [Jackman’s] vocational expert opine[d],
“Mr. Jackman’s loss of access to the general labor market primarily
based upon his restrictions and other included factors has now
been precluded 100% from a gainful, competitive labor market.”
This opinion is found to be convincing in this record.
(Citations omitted.) We defer to this credibility finding. See Schutjer v. Algona
Manor Care Ctr., 780 N.W.2d 549, 558 (Iowa 2010) (“[W]e give due regard to the
commissioner’s discretion to accept or reject testimony based on his assessment
of witness credibility.”).
Finally, Firestone notes Jackman has failed to seek alternative
employment. This was considered by the deputy commissioner, who found this
fact “[t]he most troubling aspect of this claim.” The deputy commissioner
determined:
Generally, an employee should exhibit motivation to find alternate
employment and should conduct a reasonable and legitimate job
search before claiming to be permanently and totally disabled.
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Mr. Jackman clearly has not exhibited the motivation to conduct a
legitimate job search.
In this instance, however, Mr. Jackman has limited
educational background and abilities. He has very limited
employment skills and training. He is not capable of returning to his
prior employment positions and is of an age in which it is unrealistic
to expect him to retrain or to expect prospective employers to be
willing to hire him to perform in a different form and arena than he
has previously performed. Therefore, having considered all of the
relevant industrial disability factors, I found that [Jackman] proved
he is permanently and totally disabled in spite of his failure to
conduct a reasonable and legitimate job search.
The commissioner—adopting the thorough decision of the deputy
commissioner—found that a review of all of the factors, in conjunction with
Jackman’s bodily impairments, supported a finding of permanent total disability.
We determine the commissioner’s findings of fact are supported by substantial
evidence and the conclusion of permanent total disability is not irrational, illogical,
or wholly unjustifiable. We therefore affirm the district court decision, which
affirmed the commissioner’s ruling.
AFFIRMED.