O'Donnell v. IBP, Inc., No. 6-032/05-1097 (IA 3/1/2006), 6-032/05-1097

CourtUnited States State Supreme Court of Iowa
Writing for the CourtMahan
PartiesTHOMAS O'DONNELL, Petitioner-Appellee, v. IBP, INC., Respondent-Appellant.
Docket NumberNo. 6-032/05-1097,6-032/05-1097
Decision Date01 March 2006

Page 1

THOMAS O'DONNELL, Petitioner-Appellee,
IBP, INC., Respondent-Appellant.
No. 6-032/05-1097
Court of Appeals of Iowa.
Filed March 1, 2006

Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

IBP, Inc. appeals the district court's ruling on petition for judicial review of the worker's compensation commissioner's appeal decision. AFFIRMED.

James Drury, IBP, Inc., Dakota City, Nebraska, for appellant.

Dennis McElwain, Smith & McElwain Law Office, Sioux City, for appellee.

Heard by Sackett, C.J., and Mahan and Eisenhauer, JJ.


IBP, Inc. appeals the district court's ruling on petition for judicial review of the worker's compensation commissioner's appeal decision. IBP argues the district court erred when it found the commissioner's decision was not supported by substantial evidence. It argues the district court was also in error when it (1) reversed the commissioner's decision that Thomas O'Donnell sustained a fifty-percent industrial disability and (2) found O'Donnell is permanently and totally disabled under the odd-lot worker doctrine. We affirm.

I. Background Facts and Proceedings

Thomas O'Donnell was born on May 2, 1944. He graduated from high school and both worked in construction and drove an armored truck. In 1970 he suffered a non-occupational low back injury. The injury required a lumbar discectomy; however, he had no permanent work restrictions or limitations as a result.

He began working at IBP in March 1974. During his twenty-eight years with the meat packing plant, he worked a variety of jobs on the slaughter side of the plant. He also sustained multiple work-related injuries. In 1988 while working "pulling paunches," he injured his lower back. The injury required a two-level lumbar fusion. It resulted in a twenty-five-percent partial impairment of the body as a whole and a permanent lifting restriction not to exceed forty pounds. Also in 1988, O'Donnell injured his left knee. That injury required several surgeries from 1989 through 1994. O'Donnell's physicians imposed work restrictions including lifting no more than forty pounds, using a cane when needed, and walking and standing as tolerated.

In 1992 the IBP medical case manager assisted O'Donnell in finding sedentary or light work due to his limitations. He moved to a "honeycomb" position, where he separated a corner of the stomach. He was required to stand, but could lean against a railing adjacent to his work station. In 1998 O'Donnell began working in the frego unit. The job required him to ensure carcasses on the line were properly spaced. If, for example, two carcasses were bunched together, O'Donnell was required to separate them by reaching overhead with a steel rod. There he was permitted to sit in a chair about half the time. In 1999 and 2003 he injured his right knee. That injury also required surgery. Physicians began suggesting total knee replacement in 2000. O'Donnell reported severe difficulty both navigating the plant floor and ascending and descending stairs.

In February 2001 O'Donnell suffered a severe injury to his left shoulder. Surgery was required to repair a labral tear, a parital tear of the biceps tendon, and a near full-thickness tear of the supraspinatus. A subacromial decompression was also performed. O'Donnell's surgeon found him to be a maximum medical improvement in December 2001. O'Donnell returned to work with a partial impairment rating of five percent of the body as a whole, but without restrictions.

O'Donnell continued working in the frego unit despite pain in his shoulder. In September 2002 his job duties were expanded to include stamping carcasses. As a result, O'Donnell could no longer use a chair. In October he reported pain in his right hand. Physicians determined the repetitive stamping motions resulted in a four-percent partial impairment of the right hand.

On October 30, 2002, O'Donnell was laid off because no light duty was available and IBP could not accommodate his working restrictions. In addition to the other restrictions noted above, O'Donnell's restrictions also included no bending, twisting, squatting, kneeling, or crawling, and sitting or standing as needed. He was terminated on October 27, 2003, because his leave of absence had expired.

O'Donnell filed a petition with the worker's compensation commissioner in February 2002. He alleges that as a result of his numerous injuries, he is permanently and totally disabled and an odd-lot worker. At his hearing, O'Donnell testified he is no longer able to perform any job other than the one he was performing in the frego unit. Further, he was only able to perform that job with the chair accommodation. Carmen Hacht, a union ergonomic specialist, testified that the chair provided O'Donnell was an accommodation not normally associated with any job in the plant.

A report from Dr. James Rochelle, a physician who conducted an independent examination of O'Donnell was also in evidence. According to Dr. Rochelle,

Range of motion is internal rotation 80°; external rotation 80°; abduction 154°; adduction 45°; flexion 110°; extension 50°. His strength is rather deficient, especially on resisted abduction. He certainly doesn't have good strength for lifting activity straight up overhead. His pain diagram shows significant pain in both the front and posterior aspect of the shoulder. His pain level ranges between two and six, requiring that he take Aleve two or three times a day.

Dr. Rochelle also noted O'Donnell is able to perform work overhead only occasionally. He also imposed restrictions limiting O'Donnell from lifting more than ten pounds and prohibiting frequent shoulder activity and repetitive shoulder movement more than one-third of the workday.

Michael Newman, a vocational rehabilitation expert, provided a report, stating,

Physically, Mr. O'Donnell is limited to sedentary employment. His work experience limits him to unskilled work. Review of the labor market data coupled with Mr. O'Donnell's educational training and work experience would indicate there are no reasonably attainable jobs for this worker in my opinion. It is further my opinion that Mr. O'Donnell meets the definition of an "odd-lot" worker, which in effect states there is no reasonable probability that he can expect to sell his services in a competitive labor market undistorted by such factors as business booms, sympathy of a particular employer, or friends, good luck, or superhuman efforts to rise above his vocational handicaps.

Also introduced into evidence was a job hazard analysis of O'Donnell's frego job conducted in 2001 by Roger Svec, P.T. After visiting on-site, talking with O'Donnell, and viewing a videotape of the job being performed, Svec concluded the frego job did not involve any significant shoulder, forearm, or wrist stressors.

After reviewing the relevant law concerning the odd-lot doctrine and apportionment rules, the deputy commissioner determined O'Donnell had not proven he was permanently and totally disabled. He noted all of O'Donnell's injuries, but determined he was no longer working at IBP due to the injury to his right hand. He also noted the vocational rehabilitation study showed there were no jobs available to O'Donnell, but stated O'Donnell had not looked for alternative employment within his restrictions. The deputy concluded:

The claimant has not shown that he is permanently and totally disabled, either under the odd-lot doctrine or under standard total disability analysis. He has work restrictions, but they are not severe. He has a rating of impairment, but it is not high. He has a multitude of prior conditions that must also be considered under the full responsibility rule, however. His motivation to apply for other jobs has not been good, but if he were to do so, an employer would see those multiple conditions and he would not be a very attractive candidate for any type of the factory, packing house, or assembly line type of work that makes up most of his work experience in the past.

His age of 59 works against him. His education is limited to a high school diploma.

Based on these and all other appropriate factors of industrial disability, it is found that as a result of his work injury, the claimant has an industrial disability of 50 percent.

The commissioner affirmed the deputy's decision on appeal.

On petition for judicial review, however, the district court reversed. According to the district court, the commissioner's decision was not supported by substantial evidence under Iowa Code section 17A.19(10)(f) (2001); was based on an irrational, illogical, or wholly unjustifiable application of law to fact under section 17A.19(10)(m); and was otherwise unreasonable, arbitrary, capricious, or an abuse of discretion under section 17A.19(10)(n). IBP appeals.

II. Standard of Review

We review the district court's ruling by applying the standards of section 17A.19 to the agency's action to determine whether our conclusions are the same as those reached by the district court. Univ. of Iowa Hosp. and Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). If they are, we affirm; if not, we reverse. Hill v. Fleetguard, Inc., 705 N.W.2d 665, 669 (Iowa 2005). We may affirm, remand, reverse, modify, or grant other appropriate relief if the agency action is in violation of any of the fourteen grounds listed in section 17A.19(10). IBP specifically claims that the district court erred in determining the commissioner's decision lacked substantial evidence under section 17A.19(10)(f). Additionally, the district court determined the commissioner's application of the law to the facts was "irrational, illogical, or wholly unjustifiable" under section 17A.19(10)(m), and his decision was "unreasonable, arbitrary, capricious, or an abuse of discretion" under section 17A.19(10)(n).

First, we are bound by the agency's findings if they are "supported by substantial evidence when the record is viewed as a...

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