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JBS Swift & Company v. Contreras

Court of Appeal of Iowa

October 2, 2013

JBS SWIFT & COMPANY and ZURICH AMERICAN INSURANCE CO. Petitioners-Appellants,
v.
MARIA DEL CARMEN RODRIGUEZ CONTRERAS, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Christopher McDonald, Judge.

An employer appeals the district court's decision affirming the Workers' Compensation Commissioner's award of benefits.

Jennifer A. Clendenin and Nicholas J. Pellegrin of Ahlers & Cooney, P.C., Des Moines, for appellants.

James C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines, for appellee.

Heard by Vogel, P.J., and Danilson and Tabor, JJ.

DANILSON, J.

JBS Swift & Company and Zurich American Insurance Company ("Swift") appeal the district court's ruling affirming the Workers' Compensation Commissioner's award of benefits to Maria Del Carmen Rodriguez. Swift contends that the commissioner's finding of a sixty percent loss of earning capacity prejudices its substantial rights. Swift asks that we reverse the commissioner's findings and instead reinstate the deputy commissioner's award of twenty percent industrial disability. Because we find the commissioner's award is the result of a decision-process in which the important and relevant matters were considered, and because we find it is supported by substantial evidence in the record when the record is viewed as a whole, we affirm.

I. Background Facts and Proceedings.

Contreras was born and raised in Mexico. She obtained only a sixth grade education before quitting school for economic reasons. In Mexico she worked cutting fish fillet and was a babysitter.

In 1999 Contreras moved to Texas. While there, she was employed in a few unskilled positions. She worked as a babysitter, was employed by Burger King to prepare food, and worked in a factory inspecting the seal on bags of potato chips.

Contreras moved to Iowa in 2007. She began working for Swift as a laborer in the meatpacking plant on March 12, 2007. She worked on a line, removing bone and fat from meat. This job required her to twist her body in order to dispose of the waste and place the meat in the proper containers.

On August 16, 2008, Contreras fell while at work after slipping on a greasy area. She immediately reported the injury and was sent to the plant's nurse. She complained of pain in her lower back and right hip region. At that time, she was given pills and ice but was not sent immediately to a physician. The plant nurse told Contreras to wait a week before seeking medical care. After three days, Contreras sought treatment from her personal primary physician, Dr. Wille. Dr. Wille documented that most of Contreras' pain was in her low back. He advised her to see the doctor authorized to treat injured workers at Swift.

Contreras was first examined by Dr. Mooney, the plant physician, on August 25, 2008. He found that she was tender over the thoracic and lumbar spinal area. He also found that the diagnosis was consistent with a work-related condition. He proscribed medications for inflammation and pain and restricted Contreras from lifting more than ten pounds and bending repetitively. Because of the physical restrictions placed on Contreras, Swift gave her a new "light-duty" position in the factory.

Contreras was seen by Dr. Mooney again on September 4, 2008. Dr. Mooney noted little progress regarding her back pain. He recommended an MRI and continued physical restrictions. Contreras brought her friend, Monique Avalos, to act as a translator because she does not speak or understand English. Both women testified that during the visit Dr. Mooney pulled back Contreras' elastic pants and allowed them to audibly slap against her back. This caused Contreras to cry. Dr. Mooney did not respond.

Contreras underwent an MRI of her lumbar and thoracic spine on September 15, 2008. It showed "a small central subligamentous nuclear herniation at L5-S1, detailed above. No critical spinal stenosis or lumbar nerve root impingement is identified."

Dr. Mooney continued to treat Contreras for more than a year. After a visit in October, 2008, Dr. Mooney noted that Contreras had ongoing pain in her low back, which sometimes radiated toward her right hip and thigh. He reaffirmed the physical restrictions and recommended an epidural steroid injection (ESI). Contreras did receive an ESI at a later appointment, but she reported that it did not provide relief.

During his treatment of Contreras, Dr. Mooney recommended four specialists for her to consult with: Dr. Nelson, an orthopaedic spine specialist; Dr. Acosta, a neurologist; Dr. Ledet, a pain specialist; and Dr. Fritz, a chiropractor.

Contreras was evaluated by Dr. Nelson on January 9, 2009. Dr. Nelson diagnosed Contreras with low back pain and a small disk protrusion on L5-S1. Dr. Nelson did not believe surgery was a viable remedy and opined that Contreras would not have lasting problems. Although Dr. Nelson concurred with the restrictions imposed by Dr. Mooney, no other restrictions were advised.

Contreras met with Dr. Fritz several times in February 2009. Dr. Fritz performed spinal manipulation approximately seven times on Contreras. He diagnosed her with lumbar subluxation, lumbar disc, and sciatica. Dr. Fritz contacted Dr. Mooney's office and reported his observation of swelling in the patient's back. Dr. Mooney then prescribed Prednisone for Contreras.

Contreras had another appointment with Dr. Mooney in March 2009. Contreras and Avalos both testified about another issue that Contreras had with her treatment. Avalos was not allowed to act as an interpreter during the appointment and was not allowed into the examination room with Contreras. No other interpreter was provided by Swift or the doctor. Dr. Mooney then gave Contreras an ESI. He could be heard repeatedly yelling at her in English, through the door, "Yes or no?" Contreras did not respond as she could not understand his question.

In April 2009, Swift placed Contreras on medical leave, noting that "extended assignments to all restricted duty job in the plant will be eliminated." The notice also stated that if no positions had opened up after twelve months, her employment with the company would end.

Contreras was evaluated by Dr. Acosta three times between May 2009 and July 2009. Dr. Acosta conducted an EMG test and nerve conduction values. Both studies were normal. In his report he found, "Normal strength, reflexes, and sensation to the lower extremities." He also stated, "I think that Mrs. Contreras continues to have this chronic lower back pain of unclear etiology, probably with neuropathic features. . . . [I] think that there is not much more that we can do from the intervention point of view, except for control of her pain with medication and exercises."

In July 2009, Dr. Mooney again evaluated Contreras. He diagnosed symptoms of persistent low back pain with pseudoradiculopathy and evidence of S1 joint dysfunction. He modified her physical restrictions to lifting no more than twenty pounds and noted that she should continue with her medication. He also noted that she was approaching her maximum medical improvement.

In September 2009, Contreras returned to the plant from medical leave and was employed in a light-duty position. The position complied with the medical restrictions provided by Dr. Mooney. She continued in the employment through the hearing with the workers' compensation deputy commissioner.

Contreras was evaluated by Dr. Ledet. Dr. Ledet deferred to Dr. Mooney with respect to any permanent impairment. He performed a lumbar facet medium branch block on October 1, 2009. Contreras reported about a ...


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