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Estate of John A. Herman v. Overhead Door Company of Des Moines

May 15, 2013

ESTATE OF JOHN A. HERMAN, PLAINTIFF-APPELLANT,
v.
OVERHEAD DOOR COMPANY OF DES MOINES, INC., AND COLUMBIA INSURANCE GROUP, DEFENDANTS-APPELLEES.



Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The opinion of the court was delivered by: Danilson, J.

The Estate appeals a district court decision upholding the workers' compensation commissioner's denial of benefits for Herman's right foot injury. REVERSED AND REMANDED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

After John Herman's death, the Estate of John Herman was substituted as the appellant in the instant action. The Estate appeals a district court decision upholding the workers' compensation commissioner's denial of benefits for Herman's right foot injury. Because we find the commissioner's outright rejection of uncontroverted medical opinions is not supported by substantial evidence when the record is viewed as a whole, and we find Herman's injury arose out of and in the course of his employment as a matter of law, we reverse and remand.

I. Background Facts and Proceedings.

John Herman worked primarily as a manual laborer during his lifetime. He worked for Overhead Door Company of Des Moines from August 1994 until his alleged work injury in January 2009. The Overhead Door facility had a heated front office for customers, a shop area, a warehouse area, and a Morton building connected to the warehouse. The warehouse and Morton buildings were unheated.

Herman spent the majority of his time in the shop area, though his work activities varied by the day. Herman testified that the shop was unheated at the time of his injury, and that the heaters had been broken for a couple of years. He further testified that he told his bosses that the heaters were not working and that it was very cold. Due to the temperature in the shop and warehouse, he wore long underwear, jeans, a hooded sweatshirt, work coat, thermal socks, boots, and gloves. General Manager Jeff Barnett testified that the company had ongoing issues with heaters, and that one of the heaters in the warehouse was not working. Overhead Door's owner, Jim McNabb, confirmed that there was a broken heater in the warehouse area during the time of Herman's injury. Herman testified that McNabb told him "you guys are going to freeze your asses off this winter," in reference to the broken heaters in the shop.

Herman's duties included throwing away scrap material and emptying trash cans, which required him to walk outside to the dumpster multiple times per day. The dumpster was approximately ten to twenty feet from the warehouse. The warehouse door opened for trucks picking up or making deliveries, which could happen multiple times per day. However, McNabb testified no deliveries were made that day.

During the day he first noticed his injury, January 21, 2009, Herman estimated the temperature in the warehouse was in the teens. The National Oceanic and Atmospheric Administration (NOAA) reports the local low temperature was sixteen degrees and the high temperature thirty-three degrees, on that day. There was no new snow, but the ground was covered with five inches of previous accumulation. McNabb testified that the snow had been cleared in the area where Herman was required to walk, and it was not Herman's job to clear the snow. Yet, Herman noticed blisters on his right foot and toes after work on January 21, 2009. The following day, while at work, Herman noticed that his foot was wet, and he discovered that the blisters had broken open. The low temperature was twenty degrees and the high temperature was forty-seven degrees on January 22. Herman testified that outside of work he did not participate in any outdoor activities during January 21 through the 23.

Upon arrival at work on January 23, Herman showed his foot to his supervisor, Jeff Barnett, who sent Herman to the emergency room. Herman was admitted to the hospital the next day. Doctors determined that he had frostbite and a secondary infection on his right foot.

Dr. Lester Yen treated Herman during and after his hospital stay. Yen attempted to repair the damage on Herman's foot with a skin graft on March 6, 2009. A second attempt to re-graft the skin was made in May 2009. After his right great toe became infected, Herman was referred to a bone specialist. Ultimately, Herman was referred to Dr. Colin Pehde, who treated Herman from June 2009 through filing of appellate briefs. Dr. Pehde performed a partial amputation of Herman's right great toe on July 22, 2009. As a result of the amputation, Herman developed ulcerations on his second and third toes. Dr. Pehde performed a tenotomy to address persistent pain. On January 11, 2010 Dr. Pehde noticed infection in the area where the tenotomy was performed. Herman was hospitalized until February 2, 2010.

Herman sought compensation for his right foot injury. Both of his treating physicians offered expert opinions supporting causation. Dr. Yen opined that it was "more likely than not" that Herman's injury was caused or aggravated by work. Dr. Pehde opined that, to a reasonable degree of medical certainty, Herman's surgery and further treatment were causally related to his work injury on January 21, 2009.

Overhead Door denied benefits claiming his injury was not work related. The arbitration decision held that Herman did not meet his burden of proof to demonstrate that the injury was causally related to work. The commissioner affirmed the deputy. Herman filed a petition for judicial review. The district court affirmed the agency, finding substantial evidence supported the decision that the work environment at Overhead Door did not cause Herman's frostbite injury. Herman's Estate appeals, challenging the ...


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