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Ruiz v. Revstone Casting Industries, L.L.C.

Court of Appeals of Iowa

December 6, 2017

FRANCISCO MANCILLA RUIZ, Plaintiff-Appellant/Cross-Appellee,
REVSTONE CASTING INDUSTRIES, L.L.C. and TRAVELERS INDEMNITY CO. OF CT, Respondents-Appellees/Cross-Appellants, and SECOND INJURY FUND OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, David N. May, Judge.

         A claimant appeals the denial of two claims, and his former employer and its insurer appeal from a district court remand to the commissioner of one claim.

          Jeremy J. Flaming of Hoefer Law Firm, P.L.L.C., Iowa City, for appellant.

          James W. Bryan of Andersen & Associates, West Des Moines, for appellees Revstone Casting Industries, L.L.C. and Travelers Indemnity Co. of CT.

          Thomas J. Miller, Attorney General, and Jonathan D. Bergman, Assistant Attorney General, for appellee Second Injury Fund of Iowa.

          Heard by Danison, C.J., and Doyle and Mullins, JJ.

          MULLINS, Judge.

         Francisco Mancilla Ruiz appeals from the Workers' Compensation decisions that he (1) did not give proper notice to his employer about a cumulative injury alleged to have arisen in the course of employment and (2) did not meet his burden to prove a hearing-loss injury arose out of or in the course of his employment. The former employer, Revstone Casting Industries, L.L.C., and its insurer (collectively, Revstone) cross-appeal contending the district court erred in remanding claimant's back-injury claim to the commissioner.

         I. Background Facts and Proceedings

         Ruiz was born September 17, 1955. He is married to Laura Esquivel, but they have no children together. Ruiz was educated through the fifth grade in Mexico and received no further schooling. An interpreter was provided to Ruiz for his hearing before the deputy commissioner, and Ruiz stated he is unable to read English.[1] The record details jobs Ruiz performed before working for Revstone. These include cement work, making wooden pallets, and picking fruit.[2]

         Ruiz began working at Revstone in 1988. At Revstone, Ruiz was a grinder for about twenty-five years.[3] Ruiz testified he worked ten to twelve hour shifts seven days a week. As a grinder, Ruiz would hold small parts in his fingers or with a clamp and grind them on a machine. The average part weighed about two pounds. Ruiz would twist to pick the part up from a box on the right side of the workstation, grind the part, and twist to place the finished part in a box on his left.

         Ruiz testified he knew he was required to report injuries related to work to his foreman at Revstone. The Mill Room New Hire/Transfer Safety List form signed by Ruiz indicates Ruiz reviewed and understood several topics, including "Reporting of incidents." The deputy commissioner found that between 1996 and 2003, Ruiz "reported several work-related injuries to [Revstone]." On an OSHA questionnaire Ruiz completed on February 21, 2010, he marked that he had no hearing or hand problems, or back injuries. Ruiz testified for the hand injuries he "told them [he] was feeling bad, [made] an appointment with the doctor . . . and [asked] for that time off." Ruiz testified that Revstone workers injured in the course of employment were sent to the Fairfield Clinic. Ruiz testified he never specifically told a foreman his hands and back hurt or that he thought the hand pain was work-related. Mike Cline and Josh Baker, were supervisor and leadman to Ruiz at the time of his retirement. Both signed statements saying Ruiz did not report any injuries.

         Ruiz testified he began to feel he had a right to "something" from his injuries after he was prescribed his hearing aids. He testified he had run out of money, was deaf, and was losing function of his foot, hand, and back, and thought he "[had] the right to something."

         Ruiz began to have problems with his hands sometime between 2005 and 2007. Ruiz saw Drs. Larson and Hunter at the Fairfield Clinic, and was referred to another doctor who told Ruiz he was suffering from carpal tunnel syndrome.

         At times, doctors recommended splints, injections, and surgery for Ruiz's hand and wrist pain, which he refused. Ruiz testified no doctor said his work at Revstone was causing the problems with his hands. He also testified he told his supervisors his hands hurt and asked for permission to leave, but he made his doctor appointments on his own. Ruiz cannot open jars at times and must request help from his wife.

         Ruiz also stated the entire Revstone plant was loud, with noise from multiple areas accumulating into a general noise. Ruiz stated he always wore earplugs at the plant, but that he received no written instructions on their use. Ruiz testified he never noticed his hearing getting worse, but his hearing was tested annually. Ruiz also stated he had no memory of getting anything in writing saying that his hearing was getting worse, although nothing was provided to him in Spanish. Ruiz stated he realized he may have work-related hearing loss following his fall from a ladder in July 2012. Ruiz stated the examining doctor indicated his deafness was from years of noise exposure at work. Ruiz was prescribed hearing aids on his referral to a hearing specialist in Ottumwa. The specialist stated it was likely that Ruiz "had been deaf for a long time."

         Ruiz testified his back pain began around 2005. He saw Drs. Larson and Hunter at the Fairfield Clinic and was again referred to specialists in Ottumwa. An injection was recommended for the back pain, but Ruiz refused. An MRI showed what Ruiz called "rheumatism." Ruiz testified no doctor said his work at Revstone was causing the problems with his back. He also testified he has trouble holding anything weighing more than a gallon of milk and must sleep sitting up because of the back pain.

         Ruiz testified that he retired from Revstone because of the pain in his foot, hands, and back. He has not and does not plan to look for work in the future. Ruiz testified that upon his retirement in 2011 he told Revstone he "couldn't take [his] foot anymore and that [he] was going to Texas." Immediately following his retirement, Ruiz and his wife moved to Texas to care for property in that state but came back to the Fairfield area in 2012.

         Ruiz saw Dr. Hunter at the Fairfield Clinic with pain in his right hand on December 11, 2008. At a follow-up on January 9, 2009, records show Ruiz said the pain is worse when he goes to work, and that he would try to be careful at work. On February 3, 2009, Ruiz reported his hand was feeling much better. Ruiz saw Dr. Larson at the Fairfield Clinic for hand pain on February 17, 2010. Dr. Larson suspected carpal tunnel would be the diagnosis but acknowledged that the previously diagnosed peripheral neuropathy could be affecting the hands. In a questionnaire dated December 10, 2013, Dr. Larson stated Ruiz's work at Revstone was a contributing factor to his back injuries and carpal tunnel syndrome.

         An MRI of the spine was completed by Dr. Michael Pogel on February 22, 2010. The MRI showed a number of disc bulges. Dr. Pogel also performed an EMG and nerve conduction velocity test on April 20, 2010. The results showed results for mild carpal tunnel in both hands, with significant weakness in the hands. Dr. Pogel also suspects some arthritis in the hands. Ruiz was recommended to wear wrist splints and do exercises.

         Ruiz saw Dr. Suren Ravuri following his return to Iowa from Texas in 2012. In the records provided, Ruiz reported nothing related to carpal tunnel, hearing loss, or back pain. Ruiz did report some hip pain on June 18, 2012, but nothing appears in these records to tie that to back pain. It appears that he generally saw Dr. Ravuri for diabetes issues.

         While at home in July 2012, Ruiz fell from a ladder and broke his elbow and right knee, fractured his jaw and other facial bones, and lost some teeth.[4]Ruiz's testimony changed over time regarding why he was on the ladder. In depositions he stated he was clearing a window where birds entered the home, but he also testified to both scraping and painting his home and garage. The emergency room report shows no mention of a history of carpal tunnel, hearing loss, or back injury. While in the hospital, a social worker helped Esquivel's son fill out a "Disability Report-Adult" for Ruiz. Ruiz could not remember whether or not he was asked about any other illnesses or injuries besides those resulting from his fall. In the report, Ruiz alleged he was unable to work as of September 10, 2011, and that Ruiz quit his job due to leg pain.

         Ruiz underwent hearing tests on August 2, 2012. Audiologist Lisa Still stated Ruiz had hearing loss for years and noted his work in a foundry with excessive noise. Ruiz also saw Dr. Graham at University of Iowa Hospitals and Clinics that same day, with Dr. Graham relaying reports of a loud work environment and years of hearing loss conveyed by Ruiz and his wife. Ruiz saw Dr. Hussain Banu on October 12, 2012, and reported pain, tingling, and weakness in his hands. ...

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