Wal-Mart Stores, Inc. and American Home Assurance Corp. Aig v. Larry Plummer ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0417
Filed January 28, 2015
WAL-MART STORES, INC. and AMERICAN
HOME ASSURANCE CORP. AIG,
Plaintiffs-Appellants,
vs.
LARRY PLUMMER,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
An employer appeals the district court’s affirmance of the final decision of
the worker’s compensation commissioner. AFFIRMED.
Mark Bosscher of Peddicord, Wharton, Spencer, Hook, Barron
& Wegman, West Des Moines, for appellants.
Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
2
VAITHESWARAN, P.J.
Wal-Mart seeks judicial review of a workers’ compensation decision in
favor of employee Larry Plummer.1 Wal-Mart contends (I) “[t]his Court should
reinstate the ruling by the Deputy that the alleged January 21, 2010 injury did not
arise out of and in the course of employment,” (II) “[t]his Court should reverse the
part of the Commissioner’s Appeal Decision that awarded the ‘not credible’
Claimant benefits for the alleged July 17, 2010 injury,” and (III) “[t]his Court
should reverse the award of sanctions against [Wal-Mart and its counsel]
because [Plummer] failed to preserve this issue for appeal and because the
Commissioner’s ruling violates Iowa law and Agency precedent.”
I. January 21, 2010 Injury
Personal injuries must “arise out of and in the course of employment” to
be compensable. Iowa Code § 85.3(1) (2013). “Arising out of” refers to the
“cause and origin of the injury.” See Miedema v. Dial Corp., 551 N.W.2d 309,
311 (Iowa 1996). “In the course of” refers to the “time, place and circumstances
of the injury.” Id.; See also Iowa Code § 85.61(7) (“‘[P]ersonal injury arising out
of and in the course of the employment’ shall include injuries to employees
whose services are being performed on, in, or about the premises which are
occupied, used, or controlled by the employer.”).
Larry Plummer worked the third shift at Wal-Mart, which ended at 6 a.m.
On January 21, 2010, Plummer completed his shift, clocked out, and spent
approximately thirty minutes shopping. On his way out, he and a coworker
1
Laura Ostrander of the Ostrander Law Firm moved to withdraw from representation of
the appellants. The motion is granted.
3
assisted a customer. While providing the assistance, Plummer slipped and fell.
He completed an incident report designated for customers rather than
employees.
Plummer sought workers’ compensation benefits for an injury to his back.
A deputy workers’ compensation commissioner concluded the injury did not arise
out of and in the course of employment because, at the time he fell, he was no
longer on the clock. On intra-agency appeal, the commissioner reversed the
decision. The commissioner did not specifically address the deputy’s “off-the-
clock” finding. Instead, the commissioner examined the causal connection
between the fall and subsequent medical treatment. The commissioner found
Plummer’s visit to his physician four days after the fall was “causally related to
the fall” but found no causal connection with back surgery Plummer underwent
about seven weeks later. The commissioner ordered Wal-Mart to cover the
medical expenses associated with the physician’s visit, and nothing more.
Wal-Mart contested the ruling in a filing the commissioner construed as an
application for rehearing. The commissioner denied the application and
reaffirmed his prior ruling. Wal-Mart petitioned for judicial review. The district
court affirmed the agency decision and this appeal followed.
Wal-Mart concedes Plummer was on Wal-Mart premises when he fell but
asserts “he was not performing any ‘services’ on those premises because he had
shopped as a customer off the clock, he was not permitted to stay on the clock
while shopping, and he filled out a customer incident report.” The argument
implicates the “in the course of” rather than the “arising out of” requirement. This
is a mixed question of law and fact. Meyer v. IBP, Inc., 710 N.W.2d 213, 218
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(Iowa 2006). We are bound by the operative facts if they are supported by
substantial evidence. Id.; see Iowa Code § 17A.19(10)(f). We will overturn the
agency’s application of law to fact only if it is “irrational, illogical, or wholly
unjustifiable.” Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa
2010).
The commissioner found Plummer “went shopping in the store for a short
time period” after completing his shift. The commissioner further found “[w]hile
leaving the store approximately 30 minutes later, he slipped on ice and fell on the
small cement ramp in front of the store entrance when assisting a customer.”
These findings are supported by substantial evidence. Indeed, they are
essentially undisputed.
We turn to the agency’s application of law to fact. By ordering the
payment of medical expenses, the commissioner implicitly determined the “in the
course of” requirement was satisfied, notwithstanding the lapse of time between
Plummer’s completion of his shift and the fall. See Acuity Ins. v. Foreman, 684
N.W.2d 212, 220 (Iowa 2004) (addressing implicit finding of agency), abrogated
on other grounds by Kohlhaas v. Hog Slat, Inc. 777 N.W.2d 387, 391–92 (Iowa
2009). This determination was not irrational, illogical, or wholly unjustifiable.
In Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998), the Iowa
Supreme Court stated, “[w]hat constitutes a reasonable amount of time depends
‘not only on the length of time involved but also on the circumstances
occasioning the interval and the nature of the employee’s activity.’” (citing Carter
v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992)). The court held
as a matter of law that the claimant’s presence in the parking lot fifty minutes
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before her shift “was reasonable and thus within the course of employment.” Id.
at 341.
Plummer was technically off the clock for thirty minutes, far less than the
time deemed to be “in the course of employment” in Bailey. Additionally, he
essentially acted as an employee when he stopped to assist a customer. The
commissioner reasonably could have rejected Wal-Mart’s defense under these
circumstances. See The Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789
N.W.2d 417, 432 (Iowa 2010) (“A decision is ‘irrational’ when it is ‘not governed
by or according to reason.’” (citing Webster’s Third New International Dictionary
1195)).
II. July 17, 2010 Injury
On July 17, 2010, Plummer was attempting to remove a broken pad on a
floor-scrubber when he felt a pop in his back and sudden pain in his left and right
legs. The commissioner determined the injury arose out of and in the course of
employment and “resulted in the need for significant medical care, a healing
period, and permanent disability.”
Wal-Mart contends the commissioner failed to consider the deputy
commissioner’s findings that Plummer and his expert witness were not credible.
Those adverse credibility findings, the retailer notes, were bolstered by
surveillance videos of Plummer showing him engaged in heavy manual labor
outside his home, as well as his inconsistent deposition testimony.
In fact, the commissioner acknowledged these credibility issues. He
determined Plummer “exaggerated his symptoms both in his deposition and at
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hearing.” Because of this exaggeration, the commissioner limited Plummer’s
permanent partial disability award to twenty percent of the body as a whole.
Nonetheless, the commissioner rejected the deputy commissioner’s
“overly negative” view of Plummer, finding the surveillance footage and portions
of Plummer’s deposition testimony did less to undermine Plummer’s testimony
than the deputy suggested. The commissioner also adopted the opinion of
Plummer’s expert “irrespective of any credibility problems claimant may have,”
after citing the expert’s cognizance of Plummer’s prior medical history.
The commissioner’s findings concerning the July 17, 2010 injury were
supported by substantial evidence. Accordingly, we affirm them.
III. Sanctions Ruling
Plummer filed two applications for alternate medical care pursuant to Iowa
Code section 85.27(4). He requested authorization to see a particular physician
for care and surgery. Plummer later dismissed the first application. A deputy
commissioner partially denied the second but ordered Wal-Mart to refer Plummer
to a spine expert for “treatment and evaluation.”
On intra-agency review, Plummer challenged Wal-Mart’s compliance with
the alternate care order and requested sanctions. In its final agency decision,
the commissioner concluded Wal-Mart failed to comply with the order for
treatment and evaluation. The commissioner reasoned that the physician to
whom Wal-Mart referred Plummer specialized in pain management rather than
neurosurgery, Wal-Mart’s counsel was aware of this fact, and “the conditional
treatment” was “nothing more than denying prompt care while shopping for
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opinions more agreeable to the defense than those of [other physicians].” The
commissioner imposed sanctions of $242.82.
Preliminarily, Wal-Mart raises an error preservation concern based on
Plummer’s failure to raise the sanctions issue before the deputy commissioner.
We believe the concern is less about error preservation than about the
commissioner’s authority to consider an issue raised for the first time on intra-
agency review.
A department rule vests the commissioner with authority to impose
sanctions. See Iowa Admin. Code r. 876-4.36;2 see also Marovec v. PMX Indus.,
693 N.W.2d 779, 783–84 (Iowa 2005). The commissioner possesses this
authority whether or not a deputy commissioner has previously ruled on the
issue. See Iowa Code § 17A.15(3) (affording agency on intra-agency review “all
the power which it would have in initially making the final decision,” except as it
may decide to limit those issues). Accordingly, we turn to the merits.
“[W]hether or not to impose [a sanction] is a judgment call on the
commissioner’s part” and “we are duty bound by statute to give deference to the
commissioner’s decision on these matters.” Marovec, 693 N.W.2d at 786. Our
review is for an abuse of discretion. Id. at 782.
2
The rule states:
If any party to a contested case or an attorney representing such
party shall fail to comply with these rules or any order of a deputy
commissioner or the workers’ compensation commissioner, the deputy
commissioner or workers’ compensation commissioner may impose
sanctions which may include dismissing the action without prejudice,
excluding or limiting evidence, assessing costs or expenses, and closing
the record in whole or in part to further activity by the party.
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Wal-Mart contends the commissioner read too much into the deputy’s
order to send Plummer to a spine expert for “treatment and evaluation.” In its
view, the order “permitted Wal-Mart to have [Plummer] first evaluated by Dr.
LaMorgese and then treated if the doctor opined his current complaints were still
related to some sort of work injury.” The argument ignores established law
precluding an alternate care application from going forward if liability is an issue.
See R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 196–97 (Iowa 2003)
(citing Iowa Admin. Code r. 876-4.48(7)). Wal-Mart admitted liability for an injury
to Plummer’s back on July 17, 2010.
We recognize there are circumstances in which an employer may admit
liability in the alternative care proceeding and subsequently amend its position on
liability. See generally Bell Bros. Heating & Air Conditioning v. Gwinn, 779
N.W.2d 193, 207–08 (Iowa 2010). However, the theory of judicial estoppel
ordinarily does not permit this course of action. See Winnebago Indus., Inc. v.
Haverly, 727 N.W.2d 567, 575 (Iowa 2006). Judicial estoppel is especially
relevant where the commissioner disposes of the alternate care application in
reliance on the employer’s admission of liability. See Tyson Foods, Inc. v.
Hedlund, 740 N.W.2d 192, 198–99 (Iowa 2007); see also Spencer v. Annett
Holdings, Inc., 905 F. Supp. 2d 953, 985 (S.D. Iowa 2012). That is precisely what
happened here. Accordingly, we are unpersuaded by Wal-Mart’s attempt to
distinguish evaluation from treatment.
We conclude the commissioner did not abuse its discretion in imposing
sanctions on Wal-Mart and its counsel.
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We affirm the district court’s affirmance of the commissioner’s final
decision.
AFFIRMED.