West Side Transport, Inc. v. Fishel
| Decision Date | 10 July 2003 |
| Docket Number | No. 2-817 / 02-0092.,2-817 / 02-0092. |
| Parties | WEST SIDE TRANSPORT, INC., and CONNECTICUT SPECIALTY INSURANCE COMPANY, Petitioners-Appellants, v. REX FISHEL, Respondent-Appellee. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Linn County, David S. Good, Judge.
An employer and its workers' compensation insurer appeal a district court judicial review ruling affirming an award of workers' compensation benefits. AFFIRMED.
Chris J. Scheldrup of Scheldrup Law Firm, P.C., Cedar Rapids, for appellants.
Thomas M. Wertz of Wertz Law Firm, P.C., Cedar Rapids, for appellee.
Heard by Sackett, C.J., and Miller and Eisenhauer, JJ.
Petitioners, West Side Transport, Inc., and its workers' compensation insurer Connecticut Specialty Insurance Co. ("West Side" collectively), appeal a district court judicial review ruling affirming an award of workers' compensation benefits to the respondent Rex Fishel. We affirm.
Rex Fishel began working for West Side Transport as a mechanic in June 1994. He was injured on September 28, 1994 when the axle of the truck he was working under fell on him, injuring his right shoulder, ribs, and chest. Fishel finished his shift and sought medical treatment that evening at St. Luke's Hospital. X-rays were taken of his right shoulder and were determined to be "negative" and "unremarkable." He was released and told to see his family doctor the next day. Fishel was examined by Dr. Koch the next day and was diagnosed as having a "crush injury, upper thorax." A bone scan a few days later confirmed "multiple rib injuries" and "possibly acromial clavicular joint injury." Fishel was off work and continued treatment with Koch until December 12, 1994. Fishel testified before the agency that during this time he was experiencing right shoulder pain and continued to do so after he ended treatment with Dr. Koch and returned to work in December 1994.
When Fishel ended treatment with Dr. Koch, Koch told Fishel he would continue to have some "mild arm impairment" and said he would like to see him again in four to five months. Fishel never returned to Dr. Koch. A few weeks after his return to work Fishel was transferred to the wash bay where he washed the outside of trucks and trailers and cleaned the inside of the trucks.
Fishel continued to work at West Side washing trucks for the next fourteen months. During this time he did not complain to his employer about any shoulder problems. He testified he experienced continual shoulder pain during this time but he did not report it or seek additional treatment because he feared he would lose his job. There is considerable dispute in the record as to how strenuous the job was that Fishel was performing in the wash bay, with his supervisor in the wash bay testifying it was the most strenuous job at West Side with a lot of heavy labor, while one of his co-workers testified the work was not particularly hard to perform.
On January 27, 1996, fourteen months after the work-related injury, Fishel slipped and fell on some ice while helping his girlfriend's mother move. The fall caused a rotator cuff tear to Fishel's left shoulder. There is also evidence that Fishel reported a fall at West Side in 1996, in which he landed "more on the right side," several days after the fall on the ice. Dr. Ahn, West Side's company doctor, treated Fishel after both of these falls and referred him to Dr. Bickel. Fishel had surgery on his left shoulder to repair this tear. At the time of this treatment Dr. Bickel noted an "old probably [sic] cuff injury on the right side which seems to have healed with reasonably good function," however Bickel focused on Fishel's left shoulder because Fishel's problems at the time had to do with his left shoulder.
Fishel subsequently had four surgeries on his right rotator cuff as well, in order to repair a cuff tear and later re-tears. These surgeries occurred in May and October of 1996 and June and December of 1997. The first two of these right shoulder surgeries were performed by Dr. Bickel and the last two were performed by Dr. Nepola, after Bickle's death. Dr. Nepola continues to treat Fishel today and opines he has not yet reached maximum medical benefit from treatment.
Fishel has not returned to work at West Side in any capacity since the January 1996 falls and was terminated from West Side after his last surgery in December 1997. The fighting issue in this case is the cause of Fishel's right rotator cuff problems and four resulting surgeries. Based on the expert medical opinions of Drs. Bickel, Koch and Miller, West Side denies that the right rotator cuff problems are work-related, and claims Fishel should not receive workers' compensation benefits for those problems. Fishel relates the injury to the initial September 1994 injury, relying on Dr. Nepola's opinion that there is a causal connection. Fishel did not again begin to receive treatment on his right shoulder until after he fell on the ice in January of 1996 and began receiving treatment for the resulting tear in his left shoulder.
Fishel filed a claim seeking workers' compensation benefits relating to his right shoulder on June 7, 1996. A hearing took place on July 27, 1998 before Deputy Commissioner Walshire. In his arbitration decision filed August 29, 1998, Deputy Walshire found that the work injury in September of 1994 was a cause of Fishel's right rotator cuff problems. The deputy found Dr. Nepola's opinion, that Fishel's 1994 work injury was the cause of the right shoulder cuff tear condition he had treated, to be more convincing and credible than those of Drs. Bickel, Koch and Miller, who opined the right shoulder problems were not causally connected to the 1994 injury. The deputy based this finding on Nepola's professional status as a full professor of orthopedic surgery, his special expertise in should problems, his opinion being more consistent with Fishel's credible testimony as to continuous symptoms since the 1994 work injury, and the fact he was one of only two physicians who had actually viewed the right shoulder tear damage, the other, Dr. Bickel, being deceased. The deputy's decision was summarily affirmed by the Commissioner in October 1999. West Side filed a petition for judicial review on November 5, 1999 claiming the agency's decision was not supported by substantial evidence, was affected by errors of law, and was arbitrary and capricious.
At that time West Side also sought a remand to the agency to present additional evidence, alleging Deputy Walshire misconstrued a document on which he based his finding that its witness, Glen Rathje, was not credible. Rathje is the vice-president of maintenance at West Side and was Fishel's supervisor at the time of his first work injury. Rathje testified before the deputy that Fishel was transferred to the wash bay because of poor performance as a mechanic and not due to his previous work injury and workers' compensation claim. The deputy found this testimony was inconsistent with Rathje's good performance evaluation of Fishel dated January 21, 1995 and thus found Rathje was not credible. West Side claimed the actual date on the evaluation was June 21, 1995 and that Rathje would so testify.
The district court remanded the case to the agency for the purpose of taking additional testimony from Rathje and reconsideration of the appropriate date on the performance evaluation. West Side filed a motion with the agency for enlargement of the remand order seeking to have the remand hearing before a different deputy or the commissioner to ensure the findings were not tainted by Deputy Walshire's alleged bias against Rathje based on his earlier misreading of the evaluation date and resultant credibility determination. The agency ruled that West Side gave no persuasive reason why Walshire could not preside. However, in the meantime Deputy Walshire had recused himself from the case "for reasons other than those asserted by" West Side. Accordingly, the remand hearing was held before a different deputy.
West Side contends that on the way to the remand hearing Rathje told counsel for West Side he had known Deputy Walshire for at least three years prior to the initial hearing. Rathje stated his wife was best friends with Walshire's sister, that he and his wife had been at various social events together at Walshire's sister's house, and they had once stayed with Walshire and his girlfriend in his motor home while attending Oktoberfest in Wisconsin. Rathje stated he did not know what Walshire thought of him, but felt uncomfortable in his presence. The only matter on which evidence was presented at the remand hearing, and the only issued raised at that hearing, was the correct date of Fishel's performance evaluation.
The agency's "Remand Decision" specifically stated that the sole issue presented concerned taking testimony for reconsideration of the "appropriate date of the records." The agency determined that the correct date of Fishel's evaluation was June 21, 1995. The district court remanded the case to the agency a second time, finding the commissioner had misunderstood the full extent of the first remand order. The court stated its intent was not only to have the agency consider the date issue but also to modify its findings and decision in the case, if necessary, based on the new testimony from Rathje. The commissioner ruled after the second remand that the agency had complied with the previous remand order and no additional modifications to its decision were necessary. The final decision of the agency was filed on May 21, 2001 and stated that the additional evidence taken on remand did not change the outcome of the agency's original decision in the case.
West Side filed a second petition for judicial review on June 7, 2001 based on this ruling. In its second petition West Side asserted all of the errors by the agency that it had asserted in its initial...
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