Court of Appeals Affirms Award Providing 60% Industrial Disability, Finding Claimant Credible and Awarding Costs
In JBS Swift & Co. v. Rodriguez Contreras, No. 13-0172 (Iowa App. Oct. 2, 2013), a case handled by Jamie Byrne of Neifert, Byrne &Ozga, the court of appeals affirms the findings of the commissioner concluding that claimant was credible, increasing the industrial disability award from 20 to 60% and imposing costs against the employer.
At the arbitration level, the deputy had indicated that the claimant was mostly credible. The employer argued that because the deputy had found that claimant was "credible for the most part," the entire appeal decision was subverted. The court of appeals noted that the finding that claimant was mostly credible was made because the deputy indicated that many of the questions posed were leading questions. The court found that "read in context, any doubt expressed by the deputy involves the form of questioning rather than the resulting answers provided by Contreras," and concludes that the credibility finding was supported by substantial evidence. The court noted that it typically accorded deference to the agency's decision on witness credibility.
The arbitration decision had awarded claimant 20%, which was increased by the commissioner to 60%. The employer argued that the commissioner erred by relying on Dr. Stoken over Drs. Nelson, Ledet and Acosta in reaching its result. The court found that the agency had considered the reports of Drs. Nelson and Ledet and noted that they were found unreliable by the commissioner. They noted that Dr. Acosta had not commented on permanency. Thus, although the commissioner found the employer's doctors less reliable than the opinions of Dr. Stoken, it was untrue that the commissioner had failed to consider them.
Defendants also indicated that Dr. Mooney should have been relied on over Dr. Stoken, but claimant and her friend testified at hearing that during one of his evaluations, he grabbed the elastic of her pants and snapped the elastic against her sore back. They also testified that Dr. Mooney had refused to allow the friend into the room and had yelled at claimant in English while giving an injection. The court found that the commissioner's discounting of Dr. Mooney was appropriate. The employer argued that because claimant had not sought alternate medical care, she could not raise the credibility of Dr. Mooney's treatment. The court rejected this argument, stating: "Simply because the claimant does not write to complain of the care provided, and to seek alternate care, does not equate being fully satisfied with the care provided. We refuse to assume any such consequence was 'implicitly' intended by the legislature. Finally, defendants argued that because they had more doctors supporting their position, Dr. Stoken shouldn't have been credited. The court rejected this argument.
On the increase of the award from 20 to 60%, the court noted that there was substantial evidence to support the findings of the commissioner. The court noted that claimant had limited English-language skills, was precluded from performing many of her pre-injury jobs, and did not have an option for retraining. The court considered the opinions of the vocational experts in the case and found that the commissioner was entitled to rely on the opinions of Barb Laughlin. The court also rejected the argument that the opinion of VE Mailey that claimant lost 45-50% of her earning capacity was a ceiling for industrial disability.
The final issue, and one of importance for practitioners, is that the court affirmed the agency's decision that the entire cost (travel, interview time, research time) of the vocational expert could be assessed as a cost under rule 4.33(6). The employer had argued that only the time spent writing the report was compensable. The court concluded that the commissioner "at his discretion, could determine that all of the fees incurred in obtaining Ms. Laughlin's report were 'reasonable' and tax them to Swift."
The Contreras case is another example of the deference shown to the agency in factual matters, but also delves into issues of costs and credibility in interesting ways.
At the arbitration level, the deputy had indicated that the claimant was mostly credible. The employer argued that because the deputy had found that claimant was "credible for the most part," the entire appeal decision was subverted. The court of appeals noted that the finding that claimant was mostly credible was made because the deputy indicated that many of the questions posed were leading questions. The court found that "read in context, any doubt expressed by the deputy involves the form of questioning rather than the resulting answers provided by Contreras," and concludes that the credibility finding was supported by substantial evidence. The court noted that it typically accorded deference to the agency's decision on witness credibility.
The arbitration decision had awarded claimant 20%, which was increased by the commissioner to 60%. The employer argued that the commissioner erred by relying on Dr. Stoken over Drs. Nelson, Ledet and Acosta in reaching its result. The court found that the agency had considered the reports of Drs. Nelson and Ledet and noted that they were found unreliable by the commissioner. They noted that Dr. Acosta had not commented on permanency. Thus, although the commissioner found the employer's doctors less reliable than the opinions of Dr. Stoken, it was untrue that the commissioner had failed to consider them.
Defendants also indicated that Dr. Mooney should have been relied on over Dr. Stoken, but claimant and her friend testified at hearing that during one of his evaluations, he grabbed the elastic of her pants and snapped the elastic against her sore back. They also testified that Dr. Mooney had refused to allow the friend into the room and had yelled at claimant in English while giving an injection. The court found that the commissioner's discounting of Dr. Mooney was appropriate. The employer argued that because claimant had not sought alternate medical care, she could not raise the credibility of Dr. Mooney's treatment. The court rejected this argument, stating: "Simply because the claimant does not write to complain of the care provided, and to seek alternate care, does not equate being fully satisfied with the care provided. We refuse to assume any such consequence was 'implicitly' intended by the legislature. Finally, defendants argued that because they had more doctors supporting their position, Dr. Stoken shouldn't have been credited. The court rejected this argument.
On the increase of the award from 20 to 60%, the court noted that there was substantial evidence to support the findings of the commissioner. The court noted that claimant had limited English-language skills, was precluded from performing many of her pre-injury jobs, and did not have an option for retraining. The court considered the opinions of the vocational experts in the case and found that the commissioner was entitled to rely on the opinions of Barb Laughlin. The court also rejected the argument that the opinion of VE Mailey that claimant lost 45-50% of her earning capacity was a ceiling for industrial disability.
The final issue, and one of importance for practitioners, is that the court affirmed the agency's decision that the entire cost (travel, interview time, research time) of the vocational expert could be assessed as a cost under rule 4.33(6). The employer had argued that only the time spent writing the report was compensable. The court concluded that the commissioner "at his discretion, could determine that all of the fees incurred in obtaining Ms. Laughlin's report were 'reasonable' and tax them to Swift."
The Contreras case is another example of the deference shown to the agency in factual matters, but also delves into issues of costs and credibility in interesting ways.
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