Dr. Pepper Snapple Group, Inc., and New Hampshire Ins. Co. v. Raymond Jorgensen

IN THE COURT OF APPEALS OF IOWA
No. 15-1767
Filed September 14, 2016
DR. PEPPER SNAPPLE GROUP, INC., and NEW HAMPSHIRE INS. CO.,
Plaintiffs-Appellants,
vs.
RAYMOND JORGENSEN,
Defendant-Appellee.
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Appeal from the Iowa District Court for Polk County, Peter A. Keller,
Judge.
Dr. Pepper Snapple Group appeals the commissioner’s finding of
permanent and total disability and the award of medical mileage. AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.
Steven T. Durick and Joseph M. Barron of Peddicord, Wharton, Spencer,
Hook, Barron & Wegman, L.L.P., West Des Moines, for appellants.
Richard J. Meyer of Fillenwarth & Fillenwarth, Estherville, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
Raymond Jorgensen began working for Dr. Pepper Snapple Group in
2003. While employed as maintenance manager his duties included “run[ning] a
route”; replacing, fixing, repairing, and filling vending machines; doing “anything
that needed to be done for maintenance”; and bending and engaging in heavy
lifting. Seven years into his job, he lifted a dolly to repair it and experienced “an
immediate shooting pain.” He was diagnosed with a “[l]arge disc rupture L4-5 left
side as a result of work-related activity.” Neither conservative treatments nor two
surgeries alleviated his lower back pain.
Jorgensen filed a claim for workers’ compensation benefits. The deputy
commissioner concluded Jorgensen was “permanently and totally disabled” and
was entitled to reimbursement of “$4122.58 in medical mileage pursuant to Iowa
Code section 85.27 [(2013)].” The commissioner’s designee affirmed this opinion
as did the district court. On appeal, the employer challenges (I) the
commissioner’s finding of permanent and total disability and (II) the award of
mileage as not supported by substantial evidence. See Iowa Code §
17A.19(10)(f)(1).
I. Permanent and Total Disability
The parties stipulated that Jorgensen “sustained an injury . . . which arose
out of and in the course of employment,” “[t]he alleged injury [was] a cause of
temporary disability during [the] period of recovery” and was “a cause of
permanent disability,” and “the disability [was] an industrial disability.” See
Westling v. Hormel Foods Corp., 810 N.W.2d 247, 253 (Iowa 2012) (defining
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industrial disability as “the reduction in earning capacity”). The only disputed
issue was the extent of his industrial disability.
As noted, the commissioner found Jorgensen permanently and totally
disabled. Permanent total disability “occurs when the injury wholly disables the
employee from performing work that the employee’s experience, training,
intelligence, and physical capacities would otherwise permit the employee to
perform.” IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000). In assessing
the extent of industrial disability, relevant factors include “the injured worker’s
‘age, education, qualifications, experience and his inability, because of the injury,
to engage in employment for which he is fitted.’” Westling, 810 N.W.2d at 253
(citation omitted).
The deputy commissioner—whose opinion was adopted in full by the
commissioner—found Jorgensen “was 46 years old” at the time of the hearing,
had an 11th grade education, and had a work history of “physically demanding”
labor involving “truck driving [and] delivery.” The deputy further found Jorgensen
had not driven a vehicle since his back surgery, could not “sit in a chair,” and was
placed on restrictions that included “no lifting, no bending, and no squatting.”
The deputy found Jorgensen “severely limited in his ability to function as a result
of his work injury” based on his “diagnosis of failed back syndrome” and “chronic
pain.”
Substantial evidence supports the agency’s findings and its determination
of permanent and total disability. Snapple points to various pieces of evidence
that might support contrary findings, but it is not our role to weigh the evidence.
See Arndt v. City of Le Claire, 728 N.W.2d 389, 394-95 (Iowa 2007) (“It is the
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commissioner’s duty as the trier of fact to determine the credibility of the
witnesses, weigh the evidence, and decide the facts in issue.”). That is
particularly true here, where the deputy commissioner made detailed findings
addressing the disputed evidence.
For example, Snapple suggests Jorgensen’s pain was not as debilitating
as he represented because he stopped taking certain medication years earlier,
but the deputy cited a professional’s concern that long-term use of pain
medication was contraindicated, given Jorgensen’s liver impairment. The deputy
also found Snapple failed to provide physician-recommended pain management
treatment. And, Jorgensen testified certain medication made him sick.
As for a vocational expert’s report that Jorgensen was employable, the
deputy pointed out Jorgensen’s limited ability to obtain additional schooling or
retraining. Additionally, the very expert who found employment potential in
Jorgensen also reported a 96% reduction in the number of post-injury
occupations in which he could engage. In the same vein, the deputy addressed
Snapple’s argument that Jorgensen had no restrictions on his commercial
driver’s license by pointing out that Jorgensen’s severe limitations prevented him
from driving or returning “for his [commercial driver’s license] physical.”
We affirm the commissioner’s findings and determination that Jorgensen
sustained a permanent and total disability.
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II. Medical Mileage Expenses1
“The employer, for all injuries compensable under this chapter . . . shall
furnish reasonable . . . medical . . . services and supplies therefor and shall allow
reasonably necessary transportation expenses incurred for such services.” Iowa
Code § 85.27(1). The deputy commissioner ordered Snapple to “reimburse
[Jorgensen] $4122.58 in medical mileage pursuant to Iowa Code section 85.27.”
This included $2078 for mileage expenses incurred by a friend and $2044.58 in
other mileage. The deputy found the transportation provided by the friend “was
reasonable and necessary for [Jorgensen’s] medical treatment” and the “mileage
calculations found in exhibit 31” were accurate.
Substantial evidence supports the deputy’s finding that transportation by
the friend was reasonable and necessary. Jorgensen testified he was six feet
four inches tall and weighed approximately 310 pounds. Although Snapple had
arranged for transport, its vehicle “was a small, compact-type car” and “the seats
did not recline far enough back for [Jorgensen] to be comfortable.” Given
Jorgensen’s impairments, the deputy reasonably authorized compensation for
alternate transportation. The amount of compensation—$2078—is also
supported by substantial evidence.
We turn to the deputy’s order of compensation for “other mileage.” While
Jorgensen introduced substantial evidence to support an award for other mileage
1
Jorgensen moved to dismiss this argument on the ground that Snapple paid the
mileage expenses. However, the opinion on which he relies, Bates v. Nichols, 274 N.W.
32, 35 (Iowa 1937), was overruled in Peoples Tr. & Sav. Bank v. Sec. Sav. Bank, 815
N.W.2d 744, 754 (Iowa 2012) (“[P]ayment of a judgment during the pendency of appeal
is to be encouraged, not condemned. . . . [W]e hold that the payments made . . . do not
cut off the right to appeal.”). Accordingly, we deny the motion to dismiss.
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expenses, the deputy’s calculation of the amount—$2044.58—appears to
contain an error. Exhibit 31, on which the deputy relied, listed “other” miles
traveled. Our multiplication of the traveled miles by the agreed-upon
reimbursement rate does not add up to the compensation figure found by the
commissioner:
Exhibit 31-22 870.5 miles at .50 = $435.25
2698.6 miles at .555 = $1497.72
Exhibit 31-5 (August 2010): 614 miles at .50 = $307.00
Exhibit 31-6 (September 2010): 306 miles at .50 = $153.00
Exhibit 31-7 (October 2010): 204 miles at .50 = $102.00
In addition, the record reflects company payments for other mileage in the
amounts of $591.35, $188.00, and $528.00. Although the parties rely on the
same exhibit, together with others reflecting payments by the company, their
calculations on appeal do not coincide with the figures cited above, with each
other’s figures, or with the commissioner’s figures. Given the discrepancies, we
remand to the district court for an order remanding the “other mileage” calculation
to the commissioner for recalculation based on the evidence introduced at the
arbitration hearing.
We affirm the commissioner’s finding of permanent total disability and
affirm the findings that Jorgensen was entitled to reimbursement for medical
mileage. We reverse the reimbursement figure for “other mileage” and remand
with directions to remand to the commissioner for recalculation of the “other
2
In Exhibit 31-2, Jorgensen used a rate of .555 for mileage, but his brief indicates the
first two entries should be reduced to a rate of .50 per mile.
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mileage” reimbursement figure using exhibits introduced at the arbitration
hearing.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS.