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IN THE COURT OF APPEALS OF IOWA No. 6-434 / 05-1726 Filed July 12, 2006

RANDY LUKE AMLAND, Plaintiff-Appellee, vs. C & L DEVELOPMENT and UNITED FIRE & CASUALTY CO., Defendant-Appellants. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Thomas M. Horan, Judge.

C & L Development and United Fire & Casualty Co. appeal the district court's ruling on a petition for judicial review. REVERSED.

Charles Blades of Scheldrup Law Firm, P.C., Cedar Rapids, for appellants.

Paul McAndrew, Coralville, for appellee.

Considered by Sackett, C.J., and Huitink and Miller, JJ.

2 HUITINK, J. C & L Development and United Fire & Casualty Co. (hereinafter collectively referred to as "C & L") appeal from a district court ruling that reversed a decision by the workers' compensation commissioner denying Randy Amland workers' compensation benefits. C & L challenges the district court's

determination that Amland suffered an injury arising out of and in the course of his employment with C & L on September 30, 2002. We reverse the district court and reinstate the commissioner's decision denying benefits. I. Background Facts and Proceedings Amland filed two petitions seeking workers' compensation benefits from C & L, alleging work-related back injuries on August 15, 2002, and

September 30, 2002. C & L stipulated that Amland sustained an injury arising out of and in the course of employment on August 15, 2002, but denied the incident was the cause of any disability. C & L denied any work injury occurred on September 30, 2002. The matters were consolidated for hearing. The deputy workers' compensation commissioner, in a written decision filed June 28, 2004, concluded (1) Amland suffered no permanent injury on August 15, 2002, and (2) Amland failed to prove he suffered an injury arising out of and in the course of employment on September 30, 2002. The workers' compensation commissioner filed a written appeal decision affirming the deputy's decision on April 27, 2005. Amland filed a petition for judicial review in the district court. The district court reversed and remanded to the agency, concluding "a full examination of

3 Dr. Mendoza's 1 testimony provides substantial evidence that [Amland] suffered a work-related back injury on September 30, 2002, and the injury arose out of and in the course of [Amland's] employment." ruling. Amland, who was forty years old at the time of the workers' compensation hearing, has worked as a laborer in construction for most of his adult life. He began experiencing back pain as early as 1994. In October 1998 Amland C & L appeals the district court's

suffered a right shoulder injury while employed as a general laborer for All-Rite Sites. He claimed a lower back injury occurred at the same time. He underwent back surgery in December 1998. A workers' compensation claim for the low back injury was later denied by the workers' compensation commissioner. The commissioner concluded Amland failed to establish the low back condition was related to the October 1998 incident. The commissioner's findings of fact noted that "claimant's testimony at the time of hearing was extraordinarily evasive during cross-examination," and thus "detract[ed] from the weight given claimant's testimony." From May 2002 to September 2002, Amland was employed by C & L, 2 a small construction company owned and operated by Amland's brother-in-law, Ed Cole. He operated machinery and worked as a general laborer in laying sewer and water main. On August 15, 2002, Amland experienced pain in his back while trying to fit two pieces of pipe together in a trench. He immediately reported the injury to
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Dr. Sergio Mendoza performed surgery on Amland in December 2002. C & L is no longer in business.

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4 Ed Cole. He continued to work that day and in the following days, and did not seek medical treatment until August 22. At the hearing before the deputy

commissioner, Amland's wife described the injury as relatively minor. The events surrounding the alleged September 30 injury were the subject of much controversy and contradiction at the hearing before the deputy. Amland testified he was injured two times on September 30, when working with Howard Lewis and others to hook pipe fittings together. 3 According to Amland, Howard Lewis was operating the machinery used at the time of the alleged incidents. After the second incident, Amland told Shane Lewis and Fred Fehrman, coworkers at the site, he was hurt and going home. Amland went home and called Ed Cole to report the injury. When Ed Cole did not answer his phone, Amland left five or six messages. Amland's wife reported the injury to Ed Cole in person a few days after the incident. Howard Lewis, Amland's wife's uncle, denied operating machinery at the job site on September 30, and denied knowing of anything unusual happening to Amland that day. Howard Cole, Amland's brother-in-law and a supervisor at the job site, testified he did not know of Amland's alleged injury until four or five days after September 30. When he asked coworkers about Amland after noticing his absence at some point that day, no one said anything about an injury. Ed Cole denied receiving phone messages from Amland on September 30. Ed Cole

testified he first heard of the alleged injury when Amland's wife reported it to him a week later.

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During previous deposition testimony, Amland described only one incident on September 30.

5 Shane Lewis, who considers Amland like a father, observed Amland, Fred Fehrman, and Howard Lewis maneuvering a valve into a skid loader on September 30. He came to assist when he saw Amland straighten up, holding his back. Shane Lewis testified Amland did not do much at the work site that day after the incident, but that he was surprised to hear two weeks later that Amland was having back problems. Fred Fehrman described Amland as a "whiner" and indicated it was "quite possible" Amland was using the September 30 incident as an excuse to get out of the rain and get home that day, although he stated, "I can't say he wasn't hurt." Fehrman was surprised when he found out a week or two later that Amland was claiming a work injury. Jerry Strawn, the office manager for C & L, described Amland as a "complainer." He testified he first heard of the September 30 injury on October 8, 2002, when he received a phone call from Amland's attorney. Medical records from Amland's visits to the University of Iowa Hospitals and Clinics on October 2, 2002, and October 4, 2002, indicate Amland did not report an injury as the cause of his symptoms. Dr. Jerry Jochims, an

independent medical examiner (IME) hired by Amland, initially opined that the September 30, 2002 incident "resulted in a permanent aggravation of the preexisting condition resulting in an additional level of impairment . . . ." However, Dr. Jochims later opined "the actual injury occurred on August 15, 2002." Dr. Thomas Hughes, a second IME hired by Amland, opined the most likely date of injury would be August 15, 2002. Other physicians presented similar conflicting opinions.

6 After reviewing the evidence, the deputy commissioner concluded: The claimant was not credible and his witnesses were selfinterested. The only witness who was not self-interested [Jerry Strawn] provided a consistent version of events that does not support the claimant. The claimant at hearing provided a new version of what was to have happened on September 30, 2002. This new version was required when Howard Lewis, his wife's uncle, would not support the version of events the claimant had been telling. The claimant has not met his burden of establishing that he sustained an injury arising out of and in the course of employment on September 30, 2002. As such all other issues are moot. The commissioner, in affirming the deputy commissioner's decision, concluded: The deputy properly characterized claimant's testimony as evasive. Claimant's evasiveness is evident from simply reading the hearing transcript without the opportunity to consider claimant's demeanor . . . . I independently find that the only testimony that can be given significant probative value is that from Mr. Strawn, the former office manager for the employer, because he has the least personal connect[ion] to the claimant or the claim. II. Standard of Review Our review of workers' compensation cases is governed by Iowa Code chapter 17A, the Iowa Administrative Procedure Act. Iowa Code

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