IN THE COURT OF APPEALS OF IOWA

No. 15-2007

Filed November 9, 2016

BRIDGESTONE/FIRESTONE and 

OLD REPUBLIC INSURANCE,

Petitioners-Appellants,

vs.

MARLON JACKMAN,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rebecca Goodgame 

Ebinger, Judge.

An employer appeals the district court’s decision affirming the Iowa 

Workers’ Compensation Commissioner’s award of benefits. AFFIRMED.

Timothy W. Wegman and Joseph M. Barron of Peddicord, Wharton, 

Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for appellants.

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

appellee.

Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

Bridgestone/Firestone and Old Republic Insurance (Firestone) appeal the 

district court’s decision affirming the Iowa Workers’ Compensation 

Commissioner’s award of benefits to Marlon Jackman. Firestone disputes only 

the commissioner’s award of permanent total disability, alleging Jackman 

remains employable. We affirm.

I. Background Facts and Proceedings

We adopt the district court’s recitation of the facts as our own:

[Jackman] completed school through 10th grade as a belowaverage student and later received his GED while enlisted in the 

Marine Corps. In August 1988, Jackman began working for 

Firestone as a tire builder. In 2001, Jackman moved to the final 

inspection department because of left elbow problems. In the final 

inspection department, Jackman prepared tires for shipment, which 

involved stacking tires on pallets. In May 2007, Jackman was 

compensated for a worker’s compensation claim for a hernia injury. 

As part of this claim, Jackman saw Dr. Kuhnlein who assessed 

[Jackman] had a 5% whole person impairment and imposed work 

restrictions.

In February or March of 2011, Jackman states he began to 

experience neck problems, accompanied by low back pain. 

Jackman states that around this time Firestone increased the rate 

of tire production [significantly]. Jackman visited Dr. Troll on April 

8, 2011, who opined Jackman’s upper thoracic pain was not a 

work-related problem. Jackman then visited Dr. Rabang, his family 

physician, who performed an MRI and referred Jackman to 

Dr. Hirschl, a neurosurgeon. Dr. Hirschl determined Jackman had 

“a significant amount of degenerative changes in basically his entire 

cervical spine,” notably disk bulging and foraminal narrowing of C5-

6 and C6-7. Dr. Hirschl and Jackman discussed surgery but 

decided to treat the condition through therapy. Jackman was off 

work from June 30, 2011, until October 2011, while he received 

neck treatment from Dr. Hirschl and Dr. Rabang along with 

treatment from Dr. Pederson, a physiatrist, and Nurse Practitioner 

Ann Bartels. In July 14, 2011, Dr. Rabang diagnosed Jackman with 

lumbar disk disease and right lower extremity radiculopathy.

Upon return to work in October 2011, Jackman transferred 

departments and worked on computers. His work involved setting 

and shutting off presses and inputting work orders. Dr. Pederson 
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imposed a permanent work restriction of lifting no greater than 15 

pounds and no repetitive bending and twisting, affirmed by Dr. Troll. 

In December 2011, Firestone shut down Jackman’s department, 

and Jackman moved to an inventory position which involved 

scanning materials. On April 11, 2012, Jackman performed his last 

reported day of work and was thereafter placed on accident and 

sickness leave. In November 2012, Jackman applied for early 

retirement due to disability, and his request was approved in March 

2013.

On February 24, 2012, Jackman filed a Petition in Arbitration

with the Iowa Workers’ Compensation Commission for [] alleged 

neck and back injuries suffered on June 30, 2011. As part of the 

claim, both parties obtained independent medical evaluations and 

vocational reports. Dr. Kuhnlein evaluated Jackman on August 14, 

2012, and diagnosed degenerative disc disease of the cervical 

spine with chronic neck pain and spondylolisthese of L4-S1 with 

chronic low back pain and complaints of lower extremity symptoms 

without true radiculopathy. Dr. Neff examined Jackman on 

December 12, 2012, at [Firestone’s] request, and stated “the 

degenerative changes noted in [Jackman’s] cervical and lumbar 

spine are commonly related to simply the normal processes and 

progressions of life.” [Firestone’s] vocational report, issued April 3, 

2013, indicates several viable employment opportunities exist for 

Jackman’s skill and ability. Jackman’s vocational report, issued 

April 17, 2013, stated Jackman is “precluded 100% from a gainful, 

competitive labor market” due to his injury.

(Sixth alteration in original) (Citations omitted). The deputy commissioner

awarded Jackman permanent total disability benefits on August 30, 2013, which 

was affirmed by the commissioner on February 5, 2014. In September 2014, the 

matter was remanded by the district court for specification of when Jackman 

reached maximum medical improvement as part of the commissioner’s finding of 

permanent total disability. In June 2015, the commissioner found Jackman’s 

maximum medical improvement date was October 13, 2011. In November 2015, 

the district court affirmed the commissioner’s award. Firestone appeals.
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II. Standard and Scope of Review

The issue of industrial disability is a mixed question of law and fact. See 

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 525 (Iowa 2012). We review the 

commissioner’s findings of fact for substantial evidence. Id. “Because the 

challenge to the agency’s industrial disability determination challenges the 

agency’s application of law to facts, we will not disrupt the agency’s decision 

unless it is ‘irrational, illogical, or wholly unjustifiable.’” Id. at 526 (citation 

omitted).

III. Analysis

On appeal, Firestone disputes the commissioner’s award of permanent 

total disability, claiming Jackman remains employable. The deputy 

commissioner—whose opinion was adopted in full by the commissioner—

disagreed, finding:

Mr. Jackman is an aging worker with very limited educational

background or skills. He now has a 15-pound work restriction that 

will preclude him from returning to work in his prior employment. 

He testified that he will not be able to sit or take the bouncing of a 

forklift, and that testimony is accepted as reasonable. Mr. Jackman 

is realistically precluded from returning to any of the employment 

positions he has previously held.

At his age [of sixty-two], it is unrealistic to expect or believe 

that he could realistically retrain and obtain useful new skills. 

Moreover, his poor academic skills also suggest this is an 

unrealistic expectation. Firestone placed claimant on medical lay 

off because it had “no job position he can perform with his medical 

restrictions.” If a large production facility like Firestone cannot find 

employment consistent with the medical restrictions of a 23-year 

employee, it is highly unlikely that any other employer is going to be 

willing to make accommodations to meet Mr. Jackman’s medical 

restrictions. This is even less likely considering Mr. Jackman’s age.

(Citation omitted.) Firestone argues the weight of the medical opinion indicates 

Jackman is employable. However, these medical opinions on the extent of 
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Jackman’s physical impairments are only a factor to consider in determining 

industrial disability. See Second Injury Fund of Iowa v. Shank, 516 N.W.2d 808, 

813 (Iowa 1994) (“Industrial disability goes beyond body impairment and 

measures the extent to which the injury impairs the employee’s earning 

capacity.”); see also West Side Transport, Inc. v. Fishel, No. 07-1015, 2008 WL 

238597, at *5 (Iowa Ct. App. Jan. 30, 2008) (“[E]ven if a medical opinion is 

uncontroverted, it ‘is not binding on the trier of fact’ and ‘may be accepted in 

whole, in part, or not at all.’ Also, bodily impairment is merely one factor to 

consider in determining industrial disability.” (citation omitted)). While one factor 

is Jackman’s “functional disability,” other factors include his “age, education, 

qualifications, experience, and inability to engage in similar employment.” Neal, 

814 N.W.2d at 526 (citation omitted). These factors were explicitly considered in 

the deputy commissioner’s decision. 

The medical opinions established Jackman had permanent work 

restrictions, including the inability to lift over fifteen pounds. As a result of 

Jackman’s limitations, Firestone found there was no work available for him. 

Further, although one vocational expert report stated jobs were available for 

Jackman, another found no job position was available. The deputy 

commissioner found the latter opinion more credible, reasoning:

In reaching this finding, I recognize that [Firestone] produced 

a vocational report. In that report, [Firestone’s] vocational expert 

identified several potential job leads for [Jackman]. In reviewing 

those job leads, some likely require computer skills not possessed 

by [Jackman]. Others appear to require manual labor, such as 

unloading dirty garments off trucks. This seems like an unlikely 

expectation of someone with a 15-pound lifting restriction. Yet 

other positions appear to require customer service skills that have 

never been developed or used by [Jackman]. It seems unlikely that 
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a 62-year-old worker is going to be hired for a customer service 

position with no prior experience in customer service work. In 

general, I find the report and predictions offered by [Firestone’s] 

vocational experts to be less than concrete or specific and likely 

overly optimistic about Mr. Jackman’s realistic opportunities.

Instead, the deputy commissioner found Jackman’s vocational expert 

more convincing, who opined that Jackman’s restrictions, including his

“restriction of no sitting or standing for longer than two hours,” “place[d] him more 

within a sedentary physical capacity level.” The deputy commissioner stated:

[Jackman’s] vocational expert [] noted, “all of Mr. Jackman’s 

prior employment activities as described involved heavy to very 

heavy physical capacity and strength per the Department of Labor’s 

definition. None of which he could perform now.” I concur with this 

statement.

After reviewing [Jackman’s] vocational and educational 

histories, his medical restrictions, his age, and other relevant 

employments factors, [Jackman’s] vocational expert opine[d], 

“Mr. Jackman’s loss of access to the general labor market primarily 

based upon his restrictions and other included factors has now 

been precluded 100% from a gainful, competitive labor market.” 

This opinion is found to be convincing in this record.

(Citations omitted.) We defer to this credibility finding. See Schutjer v. Algona 

Manor Care Ctr., 780 N.W.2d 549, 558 (Iowa 2010) (“[W]e give due regard to the 

commissioner’s discretion to accept or reject testimony based on his assessment 

of witness credibility.”).

Finally, Firestone notes Jackman has failed to seek alternative 

employment. This was considered by the deputy commissioner, who found this 

fact “[t]he most troubling aspect of this claim.” The deputy commissioner 

determined:

Generally, an employee should exhibit motivation to find alternate 

employment and should conduct a reasonable and legitimate job 

search before claiming to be permanently and totally disabled. 
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Mr. Jackman clearly has not exhibited the motivation to conduct a 

legitimate job search. 

In this instance, however, Mr. Jackman has limited 

educational background and abilities. He has very limited 

employment skills and training. He is not capable of returning to his 

prior employment positions and is of an age in which it is unrealistic 

to expect him to retrain or to expect prospective employers to be 

willing to hire him to perform in a different form and arena than he 

has previously performed. Therefore, having considered all of the 

relevant industrial disability factors, I found that [Jackman] proved 

he is permanently and totally disabled in spite of his failure to 

conduct a reasonable and legitimate job search.

The commissioner—adopting the thorough decision of the deputy 

commissioner—found that a review of all of the factors, in conjunction with 

Jackman’s bodily impairments, supported a finding of permanent total disability. 

We determine the commissioner’s findings of fact are supported by substantial 

evidence and the conclusion of permanent total disability is not irrational, illogical, 

or wholly unjustifiable. We therefore affirm the district court decision, which 

affirmed the commissioner’s ruling.

AFFIRMED.