IN THE COURT OF APPEALS OF IOWA

No. 18-1152

Filed April 7, 2019

RONALD N. McDONALD,

Petitioner-Appellant,

vs.

EZ PAYROLL & STAFFING SOLUTIONS, LLC and ZURICH AMERICAN 

INSURANCE COMPANY,

Respondents-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Lars G. Anderson, 

Judge.

Ronald N. McDonald appeals from the district court’s judicial review ruling 

upholding the workers’ compensation commissioner’s denial of permanent 

disability benefits. AFFIRMED.

Eric D. Tindal of Keegan Tindal & Mason, Iowa City, for appellant.

Charles A. Blades of Smith Mills Schrock Blades Monthei, P.C., Cedar 

Rapids, for appellees.

Considered by Mullins, P.J., Bower, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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DANILSON, Senior Judge.

Ronald N. McDonald appeals from the district court’s judicial review ruling 

upholding the workers’ compensation commissioner’s denial of permanent 

disability benefits. Because we find no abuse of discretion in the commissioner’s 

evidentiary ruling and there is substantial evidence to support the commissioner’s 

determination that McDonald had not proved causation, we affirm the district court 

in upholding the commissioner’s findings.

I. Background Facts and Proceedings.

On August 17, 2012, McDonald was hired by EZ Payroll1 who assigned him 

to ALPLA, a plastic fabrication company. McDonald began working for ALPLA on

August 20 where he was to clean molds used in the production of plastic bottles. 

This process used water to clean the molds and assure they were properly sealed

together after they were cleaned. As part of this process McDonald also used 

pressurized air to blow debris and water out of the molds, leading McDonald to get

misted water droplets in his face. During the same period, McDonald was also 

working at Proctor & Gamble, where he swept the floors, cleaned public areas,

and mopped floors.

On August 27, McDonald was injured at ALPLA while attempting to catch a 

large cutting blade that had fallen from its sheath. He need surgery, which was

scheduled for August 31. However, on August 31, McDonald had a fever when he 

reported for surgery and surgery was rescheduled. 

 

1 We will refer to EZ Payroll & Staffing Solutions, LLC and its insurer, Zurich American

Insurance Company collectively as the employer. 
3

On Monday, September 3, a neighbor looked in on McDonald and noticed 

he was ill and confused. McDonald was taken by ambulance to the emergency 

room at Mercy Hospital in Iowa City with a profoundly abnormal neurologic status. 

He was transferred to the intensive care unit where he underwent testing. 

McDonald was diagnosed with Legionnaires’ disease, pneumonia, respiratory 

failure, and a brain lesion that was thought to be secondary to Legionella. He also 

learned he was HIV positive. HIV did not make McDonald more susceptible to 

Legionnaires’ disease but did increase the risk that if acquired the symptoms of 

the disease would be more severe. Dr. Jack Stapleton was McDonald’s treating 

physician at UIHC. 

McDonald sought workers’ compensation benefits, asserting his 

Legionnaire’s disease arose out of and in the course of his employment with 

ALPLA. An arbitration hearing was originally set for March 12, 2015. However,

McDonald filed an amendment to his claim on the day before the hearing, asserting 

an odd-lot claim. The deputy commissioner allowed the amendment and granted 

the employer’s motion to continue hearing, which was rescheduled for June 16.

McDonald submitted the opinion of Dr. Stapleton in support of his claim for 

workers’ compensation: “It is my opinion that Mr. McDonald was exposed to the 

Legionella bacterium and contracted Legionella pneumonia during his work at 

ALPLA while spraying molds during the latter part of August 2012.” In his 

deposition, Dr. Stapleton stated,

Based on the history and the epidemiology and given the 

exposure to mists—sprays and mists of water, water mist at his 

employment the week prior to his first fever and the Monday prior to 

his first fever on Friday before Labor Day, and then diagnosis on—
4

ten days later, the epidemiology strongly supports that the most likely 

source is from the spray at work.

The employer submitted the affidavit of Richard Aiken, the Environmental 

Health, and Safety Manager for ALPLA, provided an affidavit in which he outlined 

his responsibilities, one of which is “mitigate risks to prevent contaminants from 

entering our facility or interfere with our manufacturing process.” He averred the 

water within the facility “contains several additives to control microbes and 

bacteria” and ALPLA utilizes a highly-controlled, closed-circuit water system 

chemically treated to control any biological issues. Aiken also stated McDonald 

worked alongside others and his duties were performed by others on other shifts, 

and after learning of McDonald’s claims about Legionella exposure, Aiken 

“conducted an investigation and reviewed our records dating back to 2010.” Aiken 

stated, “It is my sworn testimony that ALPLA’s water supply has never been 

compromised with Legionella bacteria at any time to my knowledge.” He also 

noted, “ALPLA has no reported cases of Legionella, pneumonia, any respiratory 

conditions, infections, or exceptional health issues from any team member before, 

during or after Mr. McDonald’s brief period of employment at ALPLA.” 

Dr. David S. McKinsey, an infectious disease specialist, reviewed Aiken’s 

affidavit, McDonald’s medical records, and the depositions of McDonald and Dr. 

Stapleton and opined the Legionnaires’ disease could not be attributed to exposure 

to water at ALPLA. 

Following the hearing, the deputy commissioner ruled in McDonald’s favor, 

finding, “Dr. Stapleton’s conclusions concerning causation of the Legionnaires’ 

disease was due to his workplace exposure the most convincing.” 
5

The employer appealed to the workers’ compensation commissioner. After 

a de novo review,2the commissioner reversed the arbitration ruling and concluded 

McDonald failed to prove causation for contracting Legionnaires’ disease:

Both Dr. Stapleton and Dr. [Sunil] Bansal [an occupational 

health physician] appear to be entirely unaware of the procedures 

followed by ALPLA to prevent contamination of its water supply.

Nowhere in the record of this case does it appear either doctor was 

ever provided with this information. The procedures followed by 

ALPLA at all times, including the short time period during which 

claimant worked at ALPLA, include using water supplied by the City

of Iowa City, which contains several additives to control microbes 

and bacteria, using a highly-controlled closed-circuit water system 

inside the facility and treating the water used within that closed-circuit 

system with a product called ChemAqua “to control any biological 

issues to comply with food grade manufacturing processes” and 

using cold water below 68 degrees Fahrenheit. Nothing in the record 

indicates Dr. Stapleton and Dr. Bansal were ever made aware of this 

information. This is crucial information which goes to the very heart 

of the issue of causation in this matter. . . . I therefore find the

opinions of Dr. Stapleton and Dr. Bansal to be unconvincing, as 

those opinions pertain to the causation of claimant’s Legionnaires’

disease, because it appears Dr. Stapleton and Dr. Bansal relied upon 

incomplete information in formulating those opinions. 

On the other hand, while Dr. McKinsey did not actually 

evaluate claimant, I find Dr. McKinsey’s causation opinion to be 

persuasive because Dr. McKinsey makes it clear in his report he was 

aware of the crucial information which was not provided to Dr.

Stapleton and Dr. Bansal.

McDonald filed a petition for judicial review in the district court, which upheld 

the commissioner’s findings and conclusions. McDonald now appeals.

 

2 See IBP, Inc. v. Burress, 779 N.W.2d 210, 220 (Iowa 2010):

It is within the commissioner’s authority to re-consider and modify 

issues on inter-agency appeal. Under Iowa Code section 86.24, the 

commissioner reviews the deputy commissioner’s determination de novo 

and “may affirm, modify or reverse . . . or the commissioner may remand 

the decision.” See Giere v. Aase Haugen Homes, Inc., 146 N.W.2d 911, 

914 (Iowa 1966).
6

II. Scope and Standard of Review. 

Iowa Code chapter 17A governs our review of the 

commissioner’s decision. See Iowa Code § 86.26 (2009); Watson v. 

Iowa Dep’t of Transp., 829 N.W.2d 566, 568 (Iowa 2013). The district 

court acts in an appellate capacity when reviewing the 

commissioner’s decisions to correct errors of law. See Watson, 829 

N.W.2d at 568; Ludtke v. Iowa Dep’t of Transp., 646 N.W.2d 62, 64 

(Iowa 2002). “On appeal, we apply the standards of chapter 17A to 

determine whether we reach the same conclusions as the district 

court. If we reach the same conclusions, we affirm; otherwise we 

may reverse.” Watson, 829 N.W.2d at 568 (citation omitted).

Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888–89 (Iowa 2014)

III. Discussion.

McDonald’s appeal is essentially a two-pronged challenge to the employer’s 

experts’ opinions. McDonald argues the commissioner placed undue emphasis 

on the affidavit of Aiken and the written report of Dr. McKinsey while ignoring or 

not giving enough emphasis to his expert’s opinions. McDonald also asserts the 

opinions were introduced in an untimely manner and therefore should not have 

been available for the commissioner to consider. As is often repeated: “Our 

decision is controlled in large part by the deference we afford to decisions of 

administrative agencies.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 

839, 845 (Iowa 2011).

A claimant seeking workers’ compensation benefits has the burden to prove 

by a preponderance of the evidence the existence of an injury “arising out of or in 

the course of employment.” See Iowa Code § 85.3; Quaker Oats Co. v. Ciha, 552 

N.W.2d 143, 150 (Iowa 1996). “Medical causation presents a question of fact that 

is vested in the discretion of the workers’ compensation commissioner.” Pease, 

807 N.W.2d at 845. Thus, we only disturb the commissioner’s finding if it is 
7

unsupported by substantial evidence. Id. (citing Iowa Code § 17A.19(10)(f) 

(2017)).

McDonald notes both Dr. Stapleton and Dr. McKinsey agree his period of 

exposure to Legionella occurred between August 19 and August 27, 2012, “which 

align nearly identically with McDonald’s employment with EZ Payroll at ALPLA.” 

He asserts his evidence therefore reflected the most likely source of his exposure 

to Legionella was his work at ALPLA, but the commissioner “effectively” required 

him to prove he could not have inhaled Legionella bacterium from any other 

source. The question of causation is for the commissioner in the first instance; our 

role is limited to whether the commissioner’s ruling is supported by substantial 

evidence.

Substantial evidence is “the quantity and quality of evidence that would be 

deemed sufficient by a neutral, detached, and reasonable person to establish the 

fact at issue when the consequences resulting from the establishment of that fact 

are understood to be serious and of great importance.” Iowa Code 

§ 17A.19(10)(f)(1). “When reviewing a finding of fact for substantial evidence, we 

judge the finding ‘in light of all the relevant evidence in the record cited by any party 

that detracts from that finding as well as all of the relevant evidence in the record 

cited by any party that supports it.’” Pease, 807 N.W.2d at 845 (quoting Iowa Code 

§ 17A.19(10)(f)(3)).

We do not determine whether the evidence supports a different finding. 

Instead, “our task is to determine whether substantial evidence, viewing the record 

as a whole, supports the findings actually made.” Id. “Because the commissioner 

is charged with weighing the evidence, we liberally and broadly construe the 
8

findings to uphold [the commissioner’s] decision.” Schutjer v. Algona Manor Care 

Ctr., 780 N.W.2d 549, 558 (Iowa 2010). “In addition, we give due regard to the 

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

of witness credibility.” Id.

Although a close issue, we conclude there is substantial evidence to support 

the commissioner’s finding that McDonald failed to prove his Legionnaires’ disease

arose out of his employment at ALPLA. Aiken’s affidavit and Dr. McKinsey’s report 

both reference the efforts made to mitigate risks of contaminants in the water at 

ALPLA not known by McDonald’s experts. The commissioner determined this was 

crucial information and therefore concluded Dr. McKinsey’s opinion was more 

persuasive than McDonald’s experts. “[T]he determination of whether to accept or 

reject an expert opinion is within the ‘peculiar province’ of the commissioner.” 

Pease, 807 N.W.2d at 845 (citation omitted). We do not reassess the evidence or 

make or our own determination of the weight it is to be given. See Burns v. Bd. of 

Nursing, 495 N.W.2d 698, 699 (Iowa 1993). We are troubled by the 

commissioner’s reliance on two exhibits—an affidavit and a physician’s report—

neither of which was the subject of cross-examination. This reliance is a concern 

here because there is no evidence that Legionella bacteria was one of the 

contaminants ALPHA was attempting to mitigate in its water. Yet we acknowledge 

there was evidence of steps taken to reduce or mitigate contaminants in the water 

that apparently were not known to McDonald’s experts and may cast doubt on the 

reliability of their opinions.

McDonald also attempts to evade a determination of substantial evidence 

by attacking the admissibility of Aiken’s affidavit and Dr. McKinsey’s report. But
9

we review the commissioner’s evidentiary rulings for an abuse of discretion. See 

IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 630-31 (Iowa 2000). Here, we adopt the 

district court’s reasoning: 

There had been initial hearing deadlines that were extended 

following a continuance and [McDonald’s] amendment to add his 

odd-lot claim. In reviewing the record, the court finds that Deputy 

Elliott specifically stated . . . she did not limit the parties’ discovery 

efforts when she granted [McDonald’s] motion to amend, and all

parties could continue to develop their cases following the 

continuance in proceedings. The record does not reflect that 

[McDonald] sought to have a narrower continuance order, in light of

filing his amendment to pursue the odd-lot claim, or that [McDonald] 

specifically sought to limit discovery following the continuance.

Additionally, [McDonald] had access to the Aiken Affidavit and Dr. 

McKinsey’s report more than thirty days before the agency hearing. 

It does not appear that [McDonald] conducted additional discovery 

or investigation after receipt of these materials, but prior to the 

agency hearing date. While [McDonald] has argued that Aiken was 

an undisclosed expert, the court agrees with [the employer] that 

Aiken provided only fact testimony regarding water within ALPLA’s 

facility. Nothing about Deputy Elliott’s decision to continue the case 

precluded [the employer] from engaging in additional investigation of 

their claims during the continuance period, and this includes 

evidence regarding the water within ALPLA’s facility. It does not 

appear that [McDonald] made any attempt to question or contact 

Aiken prior the agency hearing date. To the extent that [McDonald]

claims Aiken’s testimony is hearsay, the court notes that hearsay 

generally is admissible in administrative proceedings. . . . To the 

extent that [McDonald] claims Aiken’s testimony lacks credibility, the 

court finds that Aiken's affidavit indicates it is based on his personal 

knowledge, and it was appropriate for Commissioner Cortese to find 

the contents of the affidavit to be credible and persuasive.

We find no abuse of discretion in allowing the evidence over McDonald’s objection.

McDonald also argues the Commissioner applied a causation standard 

higher than the proper standard to be applied where a disease constitutes an 

"injury" under our worker's compensation laws. We disagree with McDonald that 

the Commissioner imposed a requirement that he must prove there was no other 

potential sources. The Commissioner’s ruling on application for rehearing 
10

specifically addressed the causation issue and the proof relied upon. We find no 

improper application of the causation standard as may have been suggested in 

IBP, 779 N.W.2d at 218.

Finding no abuse of discretion in admitting the evidence and determining 

the affidavit and report provide substantial evidence for the commissioner’s 

findings and conclusions, we affirm.

AFFIRMED.