Zachary Tew v. Sparboe Farms, Inc. and Nationwide Agribusiness Insurance Co.

IN THE COURT OF APPEALS OF IOWA
No. 20-1202
Filed October 6, 2021
ZACHARY TEW,
Plaintiff-Appellant,
vs.
SPARBOE FARMS, INC. and
NATIONWIDE AGRIBUSINESS INSURANCE CO.,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Zachary Tew appeals the district court’s ruling on judicial review upholding
the denial of worker’s compensation benefits. AFFIRMED.
Gregory M. Taylor of Cutler Law Firm, P.C., West Des Moines, for appellant.
Deborah M. Stein of Law Office of Deborah M. Stein, Des Moines, for
appellees.
Considered by Bower, C.J., and Tabor and Ahlers, JJ.
2
BOWER, Chief Judge.
Zachary Tew appeals the denial of his claim for workers’ compensation
benefits from Sparboe Farms, Inc. and Nationwide Agribusiness Insurance Co.
Finding no legal error and concluding substantial evidence supports the
commissioner’s final decision, we affirm.
I. Background Facts & Proceedings.
In 2008, Tew was in a car accident, injuring his lower back. A back surgery
resolved most of Tew’s pain, and he resumed his normal activities, including
basketball and cage boxing. Since the accident, every few months Tew would
have flare-ups of sciatic and back pain he treated with muscle relaxers and opiate
medications.
Tew worked as an egg stacker for Sparboe Farms from February 25 through
May 26, 2016.1 The job entailed repetitive lifting, twisting, and carrying packed
egg cases to stack on a pallet. On May 10, Tew was at the doctor for a separate
medical problem and reported back pain. He and the doctor discussed his history
of pain and treatment.
On Wednesday, May 25, 2016, Tew’s time card shows he left work after
less than an hour. At the arbitration hearing, Tew reported he left that day for
personal reasons not related to his back or pain but also testified he had noticed
“sharper leg pains” that worsened through the day and night. However, in his
deposition and interrogatories, Tew had reported working a full day, with pain
increasing over the course of Wednesday and Thursday.
1This ninety-day employment at Sparboe Farms was Tew’s longest period of
employment.
3
At the end of the workday on Thursday, May 26, Tew had a positive three-
month evaluation and was to get a raise.2 Tew states he was experiencing
significant back pain at that time but told his supervisor Derek Holmes he had slept
wrong; he did not report a work injury or otherwise link his pain to his work. The
office administrator for the facility, Morgan Shafer, noted on Tew’s time card, “5-
26, 2016, [Tew] called in stating he fell while mowing his lawn and injured his back.
Says he will bring a doctor’s note.”
Tew visited urgent care on May 27 for his back pain, but did not indicate a
recent injury or trauma to his back, instead reporting the pain was the typical way
his flare-ups would start. At a June 2 follow-up, he again denied “any known
injury.” By the end of June, the doctor noted Tew’s gait was “almost back to
normal” despite Tew’s reported pain. An MRI revealed a herniation consistent with
his 2008 back injury.
Tew initially provided a doctor’s note to Sparboe Farms excusing him from
work from May 27 through June 12.3 Tew asked Shafer about medical leave, again
telling her he “fell in a hole while he was mowing the lawn.”4 Tew failed to provide
another doctor’s note after the first expired and failed to return to work. Sparboe
2 Tew had been written up at the end of April for excessive absence and tardiness.
Tew was warned then that leaving early within thirty days would result in
termination.
3 Tew was not eligible for protected leave under the Family and Medical Leave Act
(FMLA) due to his short period of employment.
4 On July 26, Shafer emailed the senior human resources manager Nita Nurmi
summarizing this meeting: “[Tew] told [Holmes] and I that he fell in his yard while
mowing the lawn, and that it was NOT work related injury that’s why he wanted to
know about FMLA because he couldn’t file workmans comp.”
4
Farms terminated his employment on June 21. The termination entry stated,
“Involuntary, unable to return to work, personal.”
At the end of July, Tew reported to his doctor he was “seeing workmen’s
comp. for evaluation of th[e] issue.” Each doctor visit after that referenced a work
injury.5 On July 25, Tew’s attorney notified Sparboe Farms for the first time, Tew
was claiming he injured himself at work on May 25 while stacking pallets.
Tew filed a petition for workers’ compensation benefits on March 2, 2017,
alleging back and body-as-a-whole injuries from repetitive work activities. An
arbitration hearing on Tew’s claim was held March 28, 2018. Tew and his mother
testified, as did Sparboe Farms’s human resources manager. Depositions of Tew,
Shafer, and Holmes were submitted as evidence. The deputy commissioner
found,
Based on the inconsistencies in Tew’s testimony, and all of the
evidence, including his medical records, I do not find Tew to be a
credible witness. Tew had a preexisting lumbar spine condition. Tew
has not met his burden of proof he sustained an injury arising out of
and in the course of his employment with Sparboe.
Tew appealed to the workers’ compensation commissioner. The
commissioner also found Tew was not credible and determined Shafer, Holmes,
and Nurmi were all credible. The commissioner found three potential injury
scenarios existed, and Tew “needed to provide convincing and credible testimony
to explain the differences and convince the undersigned of the actual cause or
5 At his initial visit with orthopedic surgeon Dr. David Hatfield—who had performed
Tew’s 2008 back surgery—Tew initially marked that it was not a worker’s
compensation injury, the problem began at home, and checked “no” about
believing the pain related to a work injury with a lawsuit pending. He then corrected
the form to indicate a work injury. He also described the problem as beginning
“[s]uddenly (hours)” and having a start date of May 24, 2016.
5
mechanism of injury.” Because of Tew’s credibility issues and inability to
convincingly refute the testimony from Shafer, Holmes, and Nurmi, the
commissioner affirmed the arbitration decision.
Tew then sought judicial review. The district court found the commissioner’s
decision was supported by substantial evidence, relying on the commissioner’s
careful analysis of the medical records, the inconsistencies in Tew’s testimony,
and other credible evidence. The district court found, “the commissioner’s decision
was not irrational, illogical, or wholly unjustifiable,” and noted that while the
cumulative-injury doctrine could apply, Tew did not carry his burden to convince
the commissioner it did apply. Because the commissioner’s application of law was
not shown to be erroneous and substantial evidence supported the decision, the
court affirmed the commissioner’s decision.
Tew appeals.
II. Standard of Review.
“Judicial review of workers’ compensation cases is governed by Iowa Code
chapter 17A [(2020)].” Warren Props. v. Stewart, 864 N.W.2d 307, 311 (Iowa
2015). “On our review, we determine whether we arrive at the same conclusion
as the district court.” Id.Our assessment of the evidence focuses not on whether the
evidence would support a different finding than the finding made by
the commissioner, but whether the evidence supports the findings
actually made. “Because the commissioner is charged with
weighing the evidence, we liberally and broadly construe the
findings to uphold his decision.” In addition, we give due regard to
the commissioner’s discretion to accept or reject testimony based
on his assessment of witness credibility.
6
Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549, 557–58 (Iowa 2010)
(citations omitted). “We will reverse the commissioner’s application of the law to
the facts only if the commissioner’s application is irrational, illogical, or wholly
unjustifiable.” Id. at 558 (edited for readability) (citation omitted).
III. Analysis.
Tew claims the commissioner misapplied the law to the facts of this case
and asserts the commissioner’s finding he did not sustain a cumulative work injury
is not supported by substantial evidence.
Cumulative-injury doctrine. A personal injury compensable under the
workers’ compensation statute meets four requirements: “(1) the claimant suffered
a ‘personal injury,’ (2) the claimant and the respondent had an employer-employee
relationship, (3) the injury arose out of the employment, and (4) the injury arose in
the course of the employment.” Meyer v. IBP, Inc., 710 N.W.2d 213, 220 (Iowa
2006). “The failure of any one requirement results in a denial of a claim for
benefits.” Id.The commissioner found Tew failed to establish either that his injury “arose
out of” or “in the course of” his employment.
An injury “arises out of” the employment if a causal connection exists
between the employment and the injury. The injury arises “in the
course of” employment when the injury and the employment coincide
as to time, place, and circumstances. Both tests must be satisfied
for an injury to be deemed compensable.
Id. at 222 (citations omitted). If the type of injury is “a rational consequence” of the
hazard of the work performed, it may be enough to meet the “arising out of”
7
element—the causal connection to employment need not be a proximate-cause of
the injury. Id. at 224.6
Tew asserts his back condition is a cumulative-injury arising out of his
employment, stating it is a rational consequence of his work as an egg stacker.
The commissioner found Tew’s back injury could be the result of or aggravation
from his work activities, but that Tew failed to prove by a preponderance of the
evidence the injury arose out of his employment. The commissioner’s application
of law is not irrational, illogical, or wholly unjustifiable.
Substantial evidence. Tew challenges the commissioner’s determination
substantial evidence does not support a work injury. He disputes the
commissioner’s finding he reported a fall—disputing the credibility of Shafer’s
deposition testimony—and asserts the medical experts agree his injury was
caused by his employment.
Tew had a preexisting back condition with several flare-ups each year. At
the time his disability manifested,7 Tew specifically mentioned non-employment-
related causes to his supervisor (i.e., slept on his back wrong) and the complex
office administrator (i.e., fell while mowing the lawn). He did not tell anyone in
6 Unlike this case, in Meyer, the only explanation for Meyer’s injury was the type of
work he was doing—the pain started during his training period at IBP while
employed by a staffing agency, and worsened once a full employee at IBP. See
710 N.W.2d at 215–16. Meyer also reported the pain to his employer multiple
times. Id.
7 “We use the ‘cumulative-injury rule’ to establish the date of injury in repetitive-
trauma cases. Meyer, 710 N.W.2d at 221. “The date of the repetitive-trauma injury
under the cumulative-injury rule ‘is the date on which disability manifests itself. Id.(citation omitted). That date is the date when the injury and its causal relationship
to employment “would become plainly apparent to a reasonable person.” Id.(citation omitted).
8
management the work was aggravating his injury. He asked about disability leave
because he did not qualify for workers’ compensation. And Tew failed to mention
a work-related injury to his treating physicians or Sparboe Farms until filing his
workers’ compensation petition in late July.
Tew asserts his medical evidence is “uncontroverted” and describes the
many discrepancies in his testimony as “minor.” The commissioner discounted the
medical professionals’ causation determinations, noting several doctors had
incomplete records of the injury time frame and did not address the possibility of a
non-work-related injury. “When an expert’s opinion is based upon an incomplete
history, the opinion is not necessarily binding upon the commissioner.” Dunlavey
v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 853 (Iowa 1995). “The commissioner
as trier of fact has the duty to determine the credibility of the witnesses and to
weigh the evidence, together with the other disclosed facts and circumstances,
and then to accept or reject the opinion.” Id.The commissioner found three plausible explanations for Tew’s injury: a
work injury or aggravation on May 25, as Tew claimed, a pre-existing degenerative
condition, or an injury from personal activities including a fall while mowing. Tew
specifically challenges the portion of Shafer’s testimony about Tew attributing his
injury to a fall while mowing.8
“[W]hen there are two competing accounts of a single event, the
commissioner has the responsibility to weigh the evidence and consider the
8 We note he does not dispute another critical piece of testimony about causation—
Tew “wondered if he could file for . . . medical leave or FMLA or something like
that because he couldn’t file a workmen’s comp claim.”
9
credibility of the witnesses.” Schutjer, 780 N.W.2d at 559. We defer to the
commissioner’s factual determinations when based on substantial evidence. Id.
at 557. The commissioner specifically found Shafer’s testimony credible. In
contrast, the commissioner found Tew’s testimony inconsistent, contradictory, and
generally not credible: “While no single inconsistency is dispositive in this case,
the number of inconsistencies, when viewed as a whole, significantly diminishes
[Tew]’s credibility. For the above reasons, I find claimant is not credible.”
It was Tew’s burden to prove he sustained a work-related injury on or
around May 25, 2016. The commissioner’s finding of fact that he “failed to present
sufficiently credible testimony to establish his injury occurred as a result of his work
activities” is supported by substantial evidence in the record. We affirm the
commissioner’s findings and the district court ruling upholding the commissioner’s
decision.
AFFIRMED.