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IN THE COURT OF APPEALS OF IOWA No. 1-832 / 11-0783 Filed December 7, 2011 CATHERINE ESTNESS, Petitioner-Appellant/Cross-Appellee, vs. PRAIRIE MEADOWS RACETRACK AND CASINO and EMC RISK SERVICES, LLC, Respondents-Appellees/Cross-Appellants. _______________________________________________________________ Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.

Petitioner appeals the district court decision affirming the workers' compensation commissioner's denial of benefits; respondents cross-appeal claiming a deputy commissioner became an advocate for the petitioner. AFFIRMED.

Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellant. Jane V. Lorentzen and Bryan T. Israel of Hopkins & Huebner, P.C., Des Moines, for appellees.

Considered by Vaitheswaran, P.J., Potterfield, J., and Miller, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

2 MILLER, S.J. I. Background Facts & Proceedings

Catherine Estness is employed by Prairie Meadows Racetrack and Casino as a casino floor attendant. She stated that one of her primary jobs is to greet people. About twenty times per shift she paid out jackpots, and it took about fifteen minutes each time due to the paper work. She stated that about thirty or forty percent of her job was spent doing minor repairs of machines. Estness also testified she spent the majority of her shift pushing in chairs, and that she pushed in on average between 700 to 1000 chairs per shift. She stated that most of the time she tried to use her foot to push in the chairs. In November 2006, Estness began to seek treatment for her left shoulder from a chiropractor. On December 14, 2007, she told a registered nurse

practitioner, Brandi Booth, that she had had difficulty with her left shoulder for the past two years. Estness had a MRI on December 21, 2007, which showed a suspected rotator cuff tear. On December 26, 2007, she either fell or was jarred in a non-work-related incident when a metal plate on a sidewalk dropped down as she walked across and this also caused her left shoulder pain. Dr. Ian Lin examined Estness on January 16, 2008, and gave a diagnosis of left shoulder adhesive capsulitis. He did not believe she had a work-related condition. Estness saw Dr. Joshua Kimelman on January 22, 2008. He gave a diagnosis of adhesive capsulitis with impingement syndrome of the left shoulder. He treated her with a shot of cortisone to the shoulder, and she had physical

3 therapy. Dr. Kimelman did not give an opinion as to whether her condition was caused by her work. On February 15, 2008, Estness filed a claim for workers' compensation benefits, claiming she had a cumulative left shoulder injury. She had an

independent medical evaluation with Dr. Robert Jones on April 22, 2009, at her attorney's office. Dr. Jones gave the opinion, "I believe this problem was caused by repetitious work at Prairie Meadows casino." An administrative hearing was held on August 12, 2009. The deputy

workers' compensation commissioner asked some questions of both Estness and Gina Vitiritto-Robinson, the human resources manager for Prairie Meadows. The deputy concluded Estness suffered a cumulative injury arising out of and in the course of her employment. The deputy determined she had an industrial disability of ten percent and was entitled to workers' compensation benefits. The employer and its insurance carrier appealed the deputy's decision. The commissioner found, "the record evidence in its entirety does not support a finding that claimant performs any work for Prairie Meadows repetitively. 1 Her duties are widely varied and do not involve sustained shoulder use. " The

commissioner concluded, "claimant has not demonstrated that her left shoulder condition is a rational consequence of her work activities for the employer. " The commissioner determined Estness had not established a cumulative injury to her

The workers' compensation commissioner appointed a different deputy workers' compensation commissioner to decide the appeal. This deputy had the authority to issue the final agency decision for the commissioner. We will refer to this deputy, who acted in the place of the commissioner, as the commissioner for purposes of this appeal.
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4 left shoulder that arose out of the course of her employment, and she was not entitled to benefits. Estness filed a petition for judicial review. The district court concluded the commissioner did not abuse her discretion by ignoring the opinion of Dr. Jones, or by misconstruing his opinion. The court also found there was substantial evidence in the record to support the commissioner's finding that "Estness's work was not a cause of or substantial contributor toward her shoulder pain. " Finally, the court found the deputy did not violate the due process rights of the employer or its insurance carrier by questioning the witnesses. Estness appeals and

Prairie Meadows cross-appeals the decision of the district court. II. Standard of Review

Our review of decisions of the workers' compensation commissioner is governed by Iowa Code chapter 17A (2009). Broadlawns Med. Ctr. v. Sanders, 792 N.W.2d 302, 306 (Iowa 2010). We review the commissioner's decision for the correction of errors at law, not de novo. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001). We review the district court's decision by applying the standards of section 17A.19 to the commissioner's decision to determine if our conclusions are the same as those reached by the district court. Univ. of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). III. Relevant Evidence

Estness claims the district court erred in finding that the commissioner had not abused her discretion by failing to consider relevant evidence on the issue of causation. When a claim of error lies with the ultimate conclusion of an agency,

5 "then the challenge is to the agency's application of the law to the facts, and the question on review is whether the agency abused its discretion by, for example, employing wholly irrational reasoning or ignoring important and relevant evidence." Meyer v. IPB, Inc., 710 N.W.2d 213, 219 (Iowa 2006) (citing Iowa Code

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