Naima Cerwick v. Tyson Fresh Meats, Inc. ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0152
Filed February 6, 2019
NAIMA CERWICK,
Plaintiff-Appellant,
vs.
TYSON FRESH MEATS, INC.,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Naima Cerwick appeals the denial of her petition for judicial review of the
Iowa Workers’ Compensation Commissioner’s decision. AFFIRMED.
R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des Moines,
for appellant.
Jason P. Wiltfang of Scheldrup Blades, Cedar Rapids, and Stephanie L.
Marett (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.
Thomas Newkirk of Newkirk Zwagerman P.L.C., Des Moines, amicus
curiae.
Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and Lori
Bullock of Newkirk Zwagerman P.L.C., Des Moines, for amicus curiae National
Employment Lawyers Association.
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Tyl. M. Smith of Smith Law Firm PLC, Altoona, for amicus curiae Iowa
Defense Counsel Association.
Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines, for
amicus curiae Iowa Association for Justice.
Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.
Naima Cerwick appeals the district court’s ruling on judicial review, which
affirmed the Iowa Workers’ Compensation Commissioner’s decision. She
contends the decision was unfairly influenced by implicit bias.
I. Background Facts and Proceedings.
Cerwick was reporting for her work shift at Tyson Fresh Meats, Inc. (Tyson)
on February 28, 2013, when she slipped on ice and fell in the parking lot.
According to Cerwick, she fell backward and hit the ground with her hands first.
Cerwick reported the fall to a supervisor, who directed her to health services. She
reported no pain at that time and returned to work.
On March 6, 2013, Cerwick returned to Tyson’s health services, reporting
that she was experiencing back pain and asking to see a doctor. Health services
referred Cerwick to Concentra, where Dr. Sherry Hutchins examined her and
assessed her as having a thoracic strain. Dr. Hutchins prescribed medication to
treat the pain and referred Cerwick to physical therapy. At a follow-up appointment
with Dr. Hutchins on March 25, 2013, Cerwick reported that she continued to have
intermittent back pain with limited improvement and some lower back pain at times.
Dr. Hutchins referred Cerwick to an orthopedic surgeon, and thereafter, a
variety of medical providers examined and treated Cerwick for pain her back and
shoulders, lower back, and hip. An MRI performed in July 2013 showed an anterior
superior and superior labral tear to her right hip. The medical providers had
differing opinions as to whether her injuries were causally related to the fall and
whether the back injury is permanent.
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In March 2014, Cerwick filed a petition seeking workers’ compensation
benefits for injuries to her right hip, right shoulder, and back. Tyson stipulated that
Cerwick had sustained a temporary work-related injury to her back on February
28, 2013, but denied she sustained any other injuries.
Cerwick, who was born in Morocco and moved to the United States in 2001,
requested to use a translator at the arbitration hearing.1 As the district court
described in its judicial review ruling,
[T]here were considerable problems with the interpretation during the
hearing. [Cerwick] had difficulty identifying words in Arabic at times
and asked to answer in English. There were other occasions [during]
which the interpreter indicated that [Cerwick] did not understand the
Arabic interpretation or did not respond correctly. During the course
of [Cerwick]’s testimony, her attorney asked the deputy if [Cerwick]
[c]ould answer in English unless she asked to have the question
repeated in Arabic. The deputy decided to proceed with the
interpreter because [Cerwick] had requested one, but allowed her to
correct the record and answer in English if needed. Later, [Cerwick]
stated that she was having trouble because she had not spoken
Arabic for a long time. At that point, the deputy revisited the issue
whether an interpreter should be used. After allowing [Cerwick] and
her attorney to discuss the matter, she decided to waive the right to
use an interpreter.
The deputy workers’ compensation commissioner filed an arbitration
decision finding Cerwick failed to show by a preponderance of the evidence that
she sustained any injury beyond a temporary aggravation of her back as a result
of the fall. The workers’ compensation commissioner affirmed the arbitration order
in its entirety and denied Cerwick’s application for rehearing.
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Cerwick testified that because her husband and children only speak English, she speaks
English at home. She does not read or write in English but is able to understand “[a] little
bit” of English. When asked how well she speaks English, Cerwick testified, “Sometimes
I understand, sometimes I don’t understand.”
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Cerwick petitioned for judicial review, challenging the agency’s fact findings
and alleged they were impacted by implicit bias. The district court affirmed the
agency decision after determining it was supported by substantial evidence.
Cerwick appeals.
II. Standard of Review.
On a petition for judicial review of a commissioner’s decision, the district
court acts in an appellate capacity to correct errors of law. See Mike Brooks, Inc.
v. House, 843 N.W.2d 885, 888-89 (Iowa 2014). When the judicial-review ruling
is appealed, the appellate court applies “the standards of chapter 17A to determine
whether we reach the same conclusions as the district court. If we reach the same
conclusions, we affirm; otherwise we may reverse.” Id. at 889. Factual
determinations, including determinations of medical causation or whether to
accept or reject an expert opinion, are vested in the discretion of the commissioner,
and we are bound by those fact-findings “if they are supported by substantial
evidence in the record before the court when that record is viewed as a whole.” Id.
(citation omitted). “Evidence is substantial if a reasonable mind would find it
adequate to reach the same conclusion. An agency’s decision does not lack
substantial evidence because inconsistent conclusions may be drawn from the
same evidence.” Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa
2016).
III. Discussion.
Cerwick contends an unconscious bias influenced the agency’s
assessment of the evidence. Specifically, she argues the deputy commissioner’s
implicit bias led the deputy to find that she was not credible and to disregard
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evidence that supported a finding that a permanent back injury and injuries to her
hip and shoulder resulted from the February 2013 fall.
In support of her claim of implicit bias, Cerwick cites to the deputy’s
discussion of her use of an interpreter at the arbitration hearing. In the arbitration
decision, the deputy made the following observations about Cerwick’s need for an
interpreter and ability to effectively communicate in English:
At the hearing, [Cerwick] started her testimony using an interpreter.
However, during her testimony it became apparent that it was easier
for [Cerwick] to testify in English than in Arabic. The only time
[Cerwick] had difficulty finding words was when she was trying to
think of an Arabic word. [Cerwick] testified that it had been a long
time since she spoke Arabic. She said, “I’m not really speaking
Arabic at all every day.” During the hearing it was eventually
determined that she would testify without the use of the interpreter,
as an interpreter was not necessary and it was actually more difficult
for [Cerwick] to speak Arabic than to speak English. At that point,
[Cerwick] specifically waived her right to an interpreter and confirmed
that all of her answers to that point had been correctly interpreted.
Based on my observations at hearing I find that [Cerwick] does not
have any difficulty speaking English. I also note that when
[Cerwick]’s counsel sent her for IMEs . . . , there was not an
interpreter at those appointments. It is troubling to the undersigned
that an interpreter was requested because [Cerwick] demonstrated
that her ability to speak English is greater than her ability to speak
Arabic.
Cerwick complains that the deputy “grossly overstate[d] her communication
abilities” by finding she “had no difficulty” speaking or understanding English. She
argues that based on this finding, the deputy discredited her claim because she
failed to describe her fall or communicate her symptoms sufficiently to her medical
providers. For instance, one of the reasons the deputy gave in determining that
Cerwick’s February 2013 fall did not cause the right hip labral tear related to what
the deputy determined were inconsistencies in the records regarding Cerwick’s fall
and injury:
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[T]he histories she provided to the medical providers are not
consistent and become more detailed as time goes by. It is not until
almost one year after the fall that she first reported that her legs went
into a hyperabduction-type splits position when she fell. Prior to that
time she had seen numerous providers and not one of them recorded
this history. Dr. Wahl’s September 12, 2013 note does state that she
landed directly on her back with her legs “extended and relatively
abducted.” However, she did not provide this history to any providers
who she saw closer in time to the fall . . . . Rather, her description
was that her fall happened very quickly and she fell backwards and
braced herself with her hands behind her. During the first several
months following the fall there is no mention of any type of abduction
of her legs. Additionally, she reported to Dr. Quam that she landed
directly on her right buttock; this is a different history than she gave
to other providers. It is not logical that [Cerwick] would have reported
that her legs hyperabducted to these numerous providers and that
all of the providers failed to document the pertinent history.
The workers’ compensation commissioner gave “considerable deference”
to the deputy’s findings in affirming the arbitration decision on appeal, noting that
some of the findings were based on the deputy’s assessment of Cerwick’s
credibility. In denying Cerwick’s application for rehearing, the commissioner again
deferred to the deputy’s findings based on the deputy’s ability to observe and
evaluate the demeanor of the witnesses who testified at the hearing. The
commissioner denied Cerwick’s claim that the deputy commissioner found she
lacked credibility based on her use of an interpreter at the hearing, stating:
The arbitration decision does note [Cerwick] had no difficulty
understanding English and it was easier for [Cerwick] to testify in
English than Arabic. The arbitration decision suggests it was
troubling counsel requested an interpreter, given [Cerwick]’s ability
to speak English. The fact [Cerwick] had an interpreter has nothing
to do with [Cerwick]’s credibility, but merely questions counsel’s
decision.
A review of the medical records indicates [Cerwick] gave
inconsistent accounts of the February of 2013 accident to multiple
providers. I defer to the deputy regarding credibility findings of the
[Cerwick] at hearing. Given this, [Cerwick]’s application is denied as
to this ground.
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Because the commissioner found Cerwick gave inconsistent accounts concerning
her fall to multiple providers, he deferred to the deputy’s credibility findings.
The district court affirmed the agency on judicial review, finding that Cerwick
failed to show the deputy had an implicit bias:
The deputy’s explanation of these events shows
transparency, not bias. She understood this might be an issue on
appeal, so she explained what happened and why she did what she
did. She stated her impression, as the presiding officer at hearing,
that [Cerwick] spoke English well. Her findings are supported by the
course of the proceedings and the record as a whole. If the deputy
had been biased, she could have ignored a written discussion of the
issue altogether. The decision to provide a written explanation
should not be held against the decision maker.
The agency, as trier of fact, has a duty to weigh the evidence and measure
the credibility of the witnesses. See Cedar Rapids Cmty. Sch. Dist. v. Pease, 807
N.W.2d 839, 846 (Iowa 2011). “Our review of such a determination by the
commissioner is limited to whether the commissioner’s finding is supported by
substantial evidence in the record made before the agency when that record is
viewed as a whole.” Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 854
(Iowa 1995); see also Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 500
(Iowa 2003) (finding substantial evidence supported the deputy commissioner’s
credibility finding). Because these determinations remain within the agency’s
exclusive domain and the “peculiar province” of the commissioner, we cannot
reassess the weight of the evidence. Pease, 807 N.W.2d at 846; see also
Robbennolt v. Snap–On Tools Corp., 555 N.W.2d 229, 234 (Iowa 1996). In fact,
“we are obliged to broadly and liberally apply those findings to uphold rather than
defeat the commissioner’s decision.” Pirelli–Armstrong Tire Co. v. Reynolds, 562
N.W.2d 433, 436 (Iowa 1997) (citation omitted). Although the severely
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circumscribed nature of our review of agency action means that nearly all disputes
are won or lost at the agency level, Burns v. Bd. of Nursing, 495 N.W.2d 698, 699
(Iowa 1993), we are not at liberty to change it, see Figley v. W.S. Indus., 801
N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are not at liberty to overturn
precedent of our supreme court.”); Caylor v. Emp’rs Mut. Cas. Co., 337 N.W.2d
890, 894 (Iowa 1983) (acknowledging it is for the legislature to enact changes to
the law).
We review to determine whether the evidence in this case “would be
deemed sufficient by a neutral, detached, and reasonable person, to establish the
fact at issue when the consequences resulting from the establishment of that fact
are understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(1) (2017). “In our fairly intensive review, we view the record as a
whole, which includes a consideration of evidence supporting the challenged
finding as well as evidence detracting from it.” Neal v. Annett Holdings, Inc., 814
N.W.2d 512, 525 (Iowa 2012).
Upon our “fairly intensive review” of the record, we conclude substantial
evidence supports the finding that Cerwick provided an inconsistent history of the
fall and resulting injury. Although a trier of fact might conclude the evolution of
Cerwick’s explanation of her fall and injuries was a result of communication
difficulties, our task on appeal is not to determine whether the evidence supports
a different finding; our task is to determine whether substantial evidence supports
the finding actually made. See Pease, 807 N.W.2d at 845; Dodd v. Fleetguard,
Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 2008) (“The fact that two inconsistent
conclusions may be drawn from the same evidence does not prevent the agency’s
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findings from being supported by substantial evidence.”). In doing so, this court
abstains from making “a determination as to whether evidence ‘trumps’ other
evidence or whether one piece of evidence is ‘qualitatively weaker’ than another
piece of evidence.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394 (Iowa 2007).
The deputy’s finding concerning the explanation Cerwick gave her medical
providers concerning her fall and injuries is only one of several considerations the
deputy made in determining the injuries were not related to the February 2013 fall.
However, Cerwick argues the agency failed to weigh and consider material
evidence in determining she failed to prove causation. On this basis, she argues
reversal and remand is required.
“The deference afforded the agency on substantial evidence review is
predicated on the assumption the agency reviewed and considered the evidence
in reaching its decision.” JBS Swift & Co. v. Hedberg, 873 N.W.2d 276, 281 (Iowa
Ct. App. 2015). If the record shows the agency ignored evidence, then its decision
is unreasonable, arbitrary, capricious, an abuse of discretion, and the product of
illogical reasoning. See id. In the event the agency fails to consider all of the
evidence, we must remand to allow the agency to re-evaluate the evidence unless
the facts are established as a matter of law. See id.
Chapter 17A requires that an agency issuing a decision must state “why the
relevant evidence in the record supports each material finding of fact” and provide
citation to authority or a reason for each of its conclusions of law. Iowa Code
§ 17A.16(1). With regard to this requirement, our supreme court has
long held that the commissioner must state the evidence relied upon
and detail reasons for his conclusions. Moreover, the
commissioner’s decision must be sufficiently detailed to show the
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path he has taken through conflicting evidence. We have refrained,
however, from reading unnecessary and burdensome requirements
into the statute. Thus we have held the commissioner need not
discuss every evidentiary fact and the basis for its acceptance or
rejection so long as the commissioner’s analytical process can be
followed on appeal. So also have we held the commissioner’s duty
to furnish a reasoned opinion satisfied if it is possible to work
backward and to deduce what must have been the agency’s legal
conclusions and its findings of fact.
Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997) (cleaned up).
The arbitration decision sets forth a detailed recitation of the evidence and
the weight the deputy afforded it. Cerwick’s claim that the deputy ignored evidence
is unsupported; rather, the weight the deputy afforded the evidence and the
conclusions the deputy drew conflicts with Cerwick’s view of the evidence. The
decision complies with the requirements of section 17A.16(1), and it satisfies our
“substantial evidence” review. Accordingly, we affirm the district court’s denial of
Cerwick’s petition for judicial review.
AFFIRMED.