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IN THE COURT OF APPEALS OF IOWA No. 8-336 / 07-1515 Filed June 11, 2008

THEODORE L. WINTER, Petitioner-Appellant, vs. ROSENBOOM MACHINE & TOOL, INC., and ALLIED INSURANCE COMPANY, a/k/a AMCO INSURANCE COMPANY, Respondents-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.

Theodore Winter appeals from the ruling on judicial review from his workers' compensation claim. AFFIRMED.

Mark Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for appellant. Sarah Kleber of Heidman Law Firm, L.L.P., Sioux City, for appellee.

Heard by Sackett, C.J., and Vogel and Mahan, JJ., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 VOGEL, J. Theodore Winter appeals from the ruling on judicial review from his workers' compensation claim. We affirm Background Facts and Proceedings. In February of 2000, Winter was hired by Rosenboom Machine & Tool, Inc. (RMT), a company that manufactures hydraulic cylinders. He worked as a welder, fabricating material for machines and fixtures. Winter had a long and varied history of respiratory ailments and treatment pre-dating his November 2001 work injury. From January 1994 through November 2001, he was treated for such respiratory problems as bronchitis, acute bronchitis, upper respiratory infections, bacterial infections, tonsilar infections, hay fever, acute pharyngitis, and probable asthma. The record shows a total of some thirty office visits

involving respiratory problems before the work injury. Just six weeks prior to the incident, he was seen at the Mayo Clinic and diagnosed with an upper respiratory infection and ten days prior to the incident he was seen for a persistent sore throat and was diagnosed with bronchitis. Winter also has a long-term and substantial smoking habit. After having had his first cigarette at the age of eight, Winter progressed until he was smoking a carton of cigarettes per week by the age of twenty. At one point, he was smoking two packs a day. This use continued despite repeated warnings from treating physicians to stop smoking. On November 1, 2001, he sustained a work injury as a result of smoke and fume inhalation. Winter was exposed to smoke when a plasma torch was not operating properly and emitted a large volume of "white dry smoke." On

3 November 2, Winter returned to work, but reportedly felt worse than the day before. After seeking treatment from RMT's occupational health clinic, he was released to work with some restrictions. However, Winter did not immediately return to work. On November 8, 2004, Winter filed a petition against RMT and its insurance carrier, Allied Insurance Company, seeking workers' compensation benefits. In an arbitration decision, the deputy workers' compensation

commissioner found no evidence that the November 1, 2001 work injury was a proximate cause of permanent disability and she therefore denied permanent disability benefits. She further denied temporary total disability benefits because Winter took himself off work, rather than having been taken off by a physician. On intra-agency appeal, the deputy (on designation from the commissioner) affirmed. The district court again affirmed on judicial review. Winter appeals from this ruling. Scope and Standard of Review. Iowa Code chapter 17A (2007) governs judicial review of the decisions of the workers' compensation commissioner. In exercising its judicial review power, the district court acts in an appellate capacity. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). In reviewing the district court's decision, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. Id. If they are the same, we affirm; otherwise we reverse. Id. In this case, the issues involve the agency's factual determinations and its application of law to the facts. The agency's factual determinations "are clearly

4 vested by a provision of law in the discretion of the agency." Iowa Code

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