IN THE COURT OF APPEALS OF IOWA

No. 18-0152

Filed February 6, 2019

NAIMA CERWICK,

Plaintiff-Appellant,

vs.

TYSON FRESH MEATS, INC.,

Defendant-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, 

Judge.

Naima Cerwick appeals the denial of her petition for judicial review of the 

Iowa Workers’ Compensation Commissioner’s decision. AFFIRMED.

R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des Moines, 

for appellant.

Jason P. Wiltfang of Scheldrup Blades, Cedar Rapids, and Stephanie L. 

Marett (until withdrawal) of Nyemaster Goode, P.C., Des Moines, for appellee.

Thomas Newkirk of Newkirk Zwagerman P.L.C., Des Moines, amicus 

curiae.

Melissa C. Hasso of Sherinian & Hasso Law Firm, Des Moines, and Lori 

Bullock of Newkirk Zwagerman P.L.C., Des Moines, for amicus curiae National 

Employment Lawyers Association.
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Tyler M. Smith of Smith Law Firm PLC, Altoona, for amicus curiae Iowa 

Defense Counsel Association.

Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, Des Moines, for 

amicus curiae Iowa Association for Justice.

Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.

Naima Cerwick appeals the district court’s ruling on judicial review, which 

affirmed the Iowa Workers’ Compensation Commissioner’s decision. She 

contends the decision was unfairly influenced by implicit bias.

I. Background Facts and Proceedings.

Cerwick was reporting for her work shift at Tyson Fresh Meats, Inc. (Tyson) 

on February 28, 2013, when she slipped on ice and fell in the parking lot. 

According to Cerwick, she fell backward and hit the ground with her hands first. 

Cerwick reported the fall to a supervisor, who directed her to health services. She 

reported no pain at that time and returned to work.

On March 6, 2013, Cerwick returned to Tyson’s health services, reporting 

that she was experiencing back pain and asking to see a doctor. Health services 

referred Cerwick to Concentra, where Dr. Sherry Hutchins examined her and 

assessed her as having a thoracic strain. Dr. Hutchins prescribed medication to 

treat the pain and referred Cerwick to physical therapy. At a follow-up appointment 

with Dr. Hutchins on March 25, 2013, Cerwick reported that she continued to have 

intermittent back pain with limited improvement and some lower back pain at times.

Dr. Hutchins referred Cerwick to an orthopedic surgeon, and thereafter, a 

variety of medical providers examined and treated Cerwick for pain her back and 

shoulders, lower back, and hip. An MRI performed in July 2013 showed an anterior 

superior and superior labral tear to her right hip. The medical providers had 

differing opinions as to whether her injuries were causally related to the fall and 

whether the back injury is permanent.
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In March 2014, Cerwick filed a petition seeking workers’ compensation 

benefits for injuries to her right hip, right shoulder, and back. Tyson stipulated that 

Cerwick had sustained a temporary work-related injury to her back on February 

28, 2013, but denied she sustained any other injuries.

Cerwick, who was born in Morocco and moved to the United States in 2001, 

requested to use a translator at the arbitration hearing.1 As the district court 

described in its judicial review ruling,

[T]here were considerable problems with the interpretation during the 

hearing. [Cerwick] had difficulty identifying words in Arabic at times 

and asked to answer in English. There were other occasions [during] 

which the interpreter indicated that [Cerwick] did not understand the 

Arabic interpretation or did not respond correctly. During the course 

of [Cerwick]’s testimony, her attorney asked the deputy if [Cerwick] 

[c]ould answer in English unless she asked to have the question 

repeated in Arabic. The deputy decided to proceed with the 

interpreter because [Cerwick] had requested one, but allowed her to 

correct the record and answer in English if needed. Later, [Cerwick] 

stated that she was having trouble because she had not spoken 

Arabic for a long time. At that point, the deputy revisited the issue 

whether an interpreter should be used. After allowing [Cerwick] and 

her attorney to discuss the matter, she decided to waive the right to 

use an interpreter. 

The deputy workers’ compensation commissioner filed an arbitration 

decision finding Cerwick failed to show by a preponderance of the evidence that 

she sustained any injury beyond a temporary aggravation of her back as a result 

of the fall. The workers’ compensation commissioner affirmed the arbitration order 

in its entirety and denied Cerwick’s application for rehearing. 

 

1 Cerwick testified that because her husband and children only speak English, she speaks 

English at home. She does not read or write in English but is able to understand “[a] little 

bit” of English. When asked how well she speaks English, Cerwick testified, “Sometimes 

I understand, sometimes I don’t understand.”
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Cerwick petitioned for judicial review, challenging the agency’s fact findings 

and alleged they were impacted by implicit bias. The district court affirmed the 

agency decision after determining it was supported by substantial evidence. 

Cerwick appeals.

II. Standard of Review.

On a petition for judicial review of a commissioner’s decision, the district 

court acts in an appellate capacity to correct errors of law. See Mike Brooks, Inc. 

v. House, 843 N.W.2d 885, 888-89 (Iowa 2014). When the judicial-review ruling 

is appealed, the appellate court applies “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.” Id. at 889. Factual 

determinations, including determinations of medical causation or whether to 

accept or reject an expert opinion, are vested in the discretion of the commissioner, 

and we are bound by those fact-findings “if they are supported by substantial 

evidence in the record before the court when that record is viewed as a whole.” Id. 

(citation omitted). “Evidence is substantial if a reasonable mind would find it 

adequate to reach the same conclusion. An agency’s decision does not lack 

substantial evidence because inconsistent conclusions may be drawn from the 

same evidence.” Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa 

2016).

III. Discussion.

Cerwick contends an unconscious bias influenced the agency’s 

assessment of the evidence. Specifically, she argues the deputy commissioner’s 

implicit bias led the deputy to find that she was not credible and to disregard 
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evidence that supported a finding that a permanent back injury and injuries to her 

hip and shoulder resulted from the February 2013 fall. 

In support of her claim of implicit bias, Cerwick cites to the deputy’s 

discussion of her use of an interpreter at the arbitration hearing. In the arbitration 

decision, the deputy made the following observations about Cerwick’s need for an 

interpreter and ability to effectively communicate in English:

At the hearing, [Cerwick] started her testimony using an interpreter. 

However, during her testimony it became apparent that it was easier 

for [Cerwick] to testify in English than in Arabic. The only time 

[Cerwick] had difficulty finding words was when she was trying to 

think of an Arabic word. [Cerwick] testified that it had been a long 

time since she spoke Arabic. She said, “I’m not really speaking 

Arabic at all every day.” During the hearing it was eventually 

determined that she would testify without the use of the interpreter, 

as an interpreter was not necessary and it was actually more difficult 

for [Cerwick] to speak Arabic than to speak English. At that point, 

[Cerwick] specifically waived her right to an interpreter and confirmed 

that all of her answers to that point had been correctly interpreted. 

Based on my observations at hearing I find that [Cerwick] does not 

have any difficulty speaking English. I also note that when 

[Cerwick]’s counsel sent her for IMEs . . . , there was not an 

interpreter at those appointments. It is troubling to the undersigned 

that an interpreter was requested because [Cerwick] demonstrated 

that her ability to speak English is greater than her ability to speak 

Arabic.

Cerwick complains that the deputy “grossly overstate[d] her communication 

abilities” by finding she “had no difficulty” speaking or understanding English. She 

argues that based on this finding, the deputy discredited her claim because she 

failed to describe her fall or communicate her symptoms sufficiently to her medical 

providers. For instance, one of the reasons the deputy gave in determining that 

Cerwick’s February 2013 fall did not cause the right hip labral tear related to what 

the deputy determined were inconsistencies in the records regarding Cerwick’s fall 

and injury:
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[T]he histories she provided to the medical providers are not 

consistent and become more detailed as time goes by. It is not until 

almost one year after the fall that she first reported that her legs went 

into a hyperabduction-type splits position when she fell. Prior to that 

time she had seen numerous providers and not one of them recorded 

this history. Dr. Wahl’s September 12, 2013 note does state that she 

landed directly on her back with her legs “extended and relatively 

abducted.” However, she did not provide this history to any providers 

who she saw closer in time to the fall . . . . Rather, her description 

was that her fall happened very quickly and she fell backwards and 

braced herself with her hands behind her. During the first several 

months following the fall there is no mention of any type of abduction 

of her legs. Additionally, she reported to Dr. Quam that she landed 

directly on her right buttock; this is a different history than she gave 

to other providers. It is not logical that [Cerwick] would have reported 

that her legs hyperabducted to these numerous providers and that 

all of the providers failed to document the pertinent history.

The workers’ compensation commissioner gave “considerable deference” 

to the deputy’s findings in affirming the arbitration decision on appeal, noting that 

some of the findings were based on the deputy’s assessment of Cerwick’s 

credibility. In denying Cerwick’s application for rehearing, the commissioner again 

deferred to the deputy’s findings based on the deputy’s ability to observe and 

evaluate the demeanor of the witnesses who testified at the hearing. The 

commissioner denied Cerwick’s claim that the deputy commissioner found she 

lacked credibility based on her use of an interpreter at the hearing, stating:

The arbitration decision does note [Cerwick] had no difficulty 

understanding English and it was easier for [Cerwick] to testify in 

English than Arabic. The arbitration decision suggests it was 

troubling counsel requested an interpreter, given [Cerwick]’s ability 

to speak English. The fact [Cerwick] had an interpreter has nothing 

to do with [Cerwick]’s credibility, but merely questions counsel’s 

decision.

A review of the medical records indicates [Cerwick] gave 

inconsistent accounts of the February of 2013 accident to multiple 

providers. I defer to the deputy regarding credibility findings of the 

[Cerwick] at hearing. Given this, [Cerwick]’s application is denied as 

to this ground.
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Because the commissioner found Cerwick gave inconsistent accounts concerning 

her fall to multiple providers, he deferred to the deputy’s credibility findings. 

The district court affirmed the agency on judicial review, finding that Cerwick 

failed to show the deputy had an implicit bias:

The deputy’s explanation of these events shows 

transparency, not bias. She understood this might be an issue on 

appeal, so she explained what happened and why she did what she 

did. She stated her impression, as the presiding officer at hearing, 

that [Cerwick] spoke English well. Her findings are supported by the 

course of the proceedings and the record as a whole. If the deputy 

had been biased, she could have ignored a written discussion of the 

issue altogether. The decision to provide a written explanation 

should not be held against the decision maker.

The agency, as trier of fact, has a duty to weigh the evidence and measure 

the credibility of the witnesses. See Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 

N.W.2d 839, 846 (Iowa 2011). “Our review of such a determination by the 

commissioner is limited to whether the commissioner’s finding is supported by 

substantial evidence in the record made before the agency when that record is 

viewed as a whole.” Dunlavey v. Econ. Fire & Cas. Co., 526 N.W.2d 845, 854 

(Iowa 1995); see also Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 500 

(Iowa 2003) (finding substantial evidence supported the deputy commissioner’s 

credibility finding). Because these determinations remain within the agency’s 

exclusive domain and the “peculiar province” of the commissioner, we cannot 

reassess the weight of the evidence. Pease, 807 N.W.2d at 846; see also

Robbennolt v. Snap–On Tools Corp., 555 N.W.2d 229, 234 (Iowa 1996). In fact, 

“we are obliged to broadly and liberally apply those findings to uphold rather than 

defeat the commissioner’s decision.” Pirelli–Armstrong Tire Co. v. Reynolds, 562 

N.W.2d 433, 436 (Iowa 1997) (citation omitted). Although the severely 
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circumscribed nature of our review of agency action means that nearly all disputes 

are won or lost at the agency level, Burns v. Bd. of Nursing, 495 N.W.2d 698, 699 

(Iowa 1993), we are not at liberty to change it, see Figley v. W.S. Indus., 801 

N.W.2d 602, 608 (Iowa Ct. App. 2011) (“[W]e are not at liberty to overturn 

precedent of our supreme court.”); Caylor v. Emp’rs Mut. Cas. Co., 337 N.W.2d 

890, 894 (Iowa 1983) (acknowledging it is for the legislature to enact changes to 

the law).

We review to determine whether the evidence in this case “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) (2017). “In our fairly intensive review, we view the record as a 

whole, which includes a consideration of evidence supporting the challenged 

finding as well as evidence detracting from it.” Neal v. Annett Holdings, Inc., 814 

N.W.2d 512, 525 (Iowa 2012).

Upon our “fairly intensive review” of the record, we conclude substantial 

evidence supports the finding that Cerwick provided an inconsistent history of the 

fall and resulting injury. Although a trier of fact might conclude the evolution of 

Cerwick’s explanation of her fall and injuries was a result of communication 

difficulties, our task on appeal is not to determine whether the evidence supports 

a different finding; our task is to determine whether substantial evidence supports 

the finding actually made. See Pease, 807 N.W.2d at 845; Dodd v. Fleetguard, 

Inc., 759 N.W.2d 133, 137 (Iowa Ct. App. 2008) (“The fact that two inconsistent 

conclusions may be drawn from the same evidence does not prevent the agency’s 
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findings from being supported by substantial evidence.”). In doing so, this court 

abstains from making “a determination as to whether evidence ‘trumps’ other 

evidence or whether one piece of evidence is ‘qualitatively weaker’ than another 

piece of evidence.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394 (Iowa 2007). 

The deputy’s finding concerning the explanation Cerwick gave her medical 

providers concerning her fall and injuries is only one of several considerations the 

deputy made in determining the injuries were not related to the February 2013 fall. 

However, Cerwick argues the agency failed to weigh and consider material 

evidence in determining she failed to prove causation. On this basis, she argues 

reversal and remand is required.

“The deference afforded the agency on substantial evidence review is 

predicated on the assumption the agency reviewed and considered the evidence 

in reaching its decision.” JBS Swift & Co. v. Hedberg, 873 N.W.2d 276, 281 (Iowa 

Ct. App. 2015). If the record shows the agency ignored evidence, then its decision 

is unreasonable, arbitrary, capricious, an abuse of discretion, and the product of 

illogical reasoning. See id. In the event the agency fails to consider all of the 

evidence, we must remand to allow the agency to re-evaluate the evidence unless 

the facts are established as a matter of law. See id.

Chapter 17A requires that an agency issuing a decision must state “why the 

relevant evidence in the record supports each material finding of fact” and provide 

citation to authority or a reason for each of its conclusions of law. Iowa Code 

§ 17A.16(1). With regard to this requirement, our supreme court has

long held that the commissioner must state the evidence relied upon 

and detail reasons for his conclusions. Moreover, the 

commissioner’s decision must be sufficiently detailed to show the 
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path he has taken through conflicting evidence. We have refrained, 

however, from reading unnecessary and burdensome requirements 

into the statute. Thus we have held the commissioner need not 

discuss every evidentiary fact and the basis for its acceptance or 

rejection so long as the commissioner’s analytical process can be 

followed on appeal. So also have we held the commissioner’s duty 

to furnish a reasoned opinion satisfied if it is possible to work 

backward and to deduce what must have been the agency’s legal 

conclusions and its findings of fact. 

Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997) (cleaned up).

The arbitration decision sets forth a detailed recitation of the evidence and 

the weight the deputy afforded it. Cerwick’s claim that the deputy ignored evidence 

is unsupported; rather, the weight the deputy afforded the evidence and the 

conclusions the deputy drew conflicts with Cerwick’s view of the evidence. The 

decision complies with the requirements of section 17A.16(1), and it satisfies our 

“substantial evidence” review. Accordingly, we affirm the district court’s denial of 

Cerwick’s petition for judicial review.

AFFIRMED.