FILED 


February 20, 2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DNISION THREE 


SMAJO MESAN, ) 

) No. 31103-I-III 

Appellant, ) 

) 

v. ) 

) 

TYSON FOODS INC., ) UNPUBLISHED OPINION 

) 

Respondent. ) 

SIDOOWAY,1. - Smajo Mesan appeals the superior court's order affirming a 

decision ofthe Board ofIndustrial Insurance Appeals. The board-rejecting the 

proposed decision ofthe industrial appeals judge (IAJ}-found that Mr. Mesan was 

entitled to an award for partial permanent disability for an occupational injury to his 

shoulder but that he was nonetheless capable ofsubstantial, gainful employment. It 

directed that he be compensated for the partial disability but otherwise, affirmed the 

closing ofhis two industrial insurance claims by the Department ofLabor and Industries 

without further time loss or other compensation. In affirming the decision of the board, 

the superior court adopted its findings and conclusions. 

We fmd it impossible to perform our proper role on appeal because neither forum 
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No. 31103-1-III 

Mesan v. Tyson Foods Inc. 

below identified how it resolved disputed material facts bearing on whether Mr. Mesan's 

occupational diseases incapacitated him from performing any work at a gainful 

occupation. The IAJ did not reach the disputes, given its conclusion that Mr. Mesan's 

injury was not fixed and stable and that his claims should be remanded.! The relevant 

factual findings of the board, adopted by the superior court, are conclusory. 

Because the record is inadequate for our review, we reverse and remand the case 

to the superior court for more thorough findings and articulation ofthe basis for its 

decision. 

FACTS AND PROCEDURAL BACKGROUND 

Mr. Mesan was born in Bosnia-Herzegovina in 1954. There, he graduated from 

high school and earned a two-year degree in mechanical engineering. He worked as a 

machinist for 15 years before fleeing to Germany when war broke out in his native 

country. While interned in a refugee camp in Germany, he was not allowed to work. 

In August 2000, he and his family immigrated to the United States. Despite not 

speaking or reading English, he worked as a machinist in Kent, Washington for a short 

I In a section of its proposed decision entitled "Issues Not Directly Addressed," 

the IAJ acknowledged that "[ d]ue to my decisions on the below issues, ... I only have 

peripherally addressed the following issues: geographic relevant labor market; 'odd-lot' 

jobs within the meaning ofAllen v. Department 0/Labor & Indus., 16 Wn. App. 692[, 

559 P.2d 572] (1977) and Wendt v. Department o/Labor & Indus., 18 Wn. App. 674[, 

571 P.2d 229] (1977); temporary total disability within the meaning ofRCW 51.32.090; 

[and] permanent total disability within the meaning ofRCW 51.08.160," among others. 

Clerk's Papers at 38. 

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time but was laid off; then worked in a warehouse for a time until the work proved too 

heavy; and finally, in September 2002, began working as a meat cutter for a predecessor 

to Tyson Foods Inc. at the company's plant in Wallula, Washington. 

After working for Tyson for about seven months, Mr. Mesan developed pain and 

other difficulties in his right shoulder and both hands. Dr. Thomas Burgdorff diagnosed 

him with trigger finger and eventually recommended surgery, but Mr. Mesan had been 

diagnosed with diabetes in 2001 and was concerned about slow healing and the risk of 

complications with healing in light of his diabetes. Dr. Burgdorffplaced Mr. Mesan on 

light duty with permanent restrictions on his left hand. 

Mr. Mesan later developed further pain in his right shoulder and in both hands. In 

January 2005 he filed the first industrial insurance claim involved in this appeal, 

complaining of a right upper arm and shoulder condition arising from his employment. 

He filed a second claim in February 2006, alleging a left upper extremity condition which 

manifested itself between June 19, 2003 and January 31, 2006. He was transferred to 

light duty jobs. Despite continuing complaints ofdifficulty with his shoulder, arms, and 

wrists, he was able to continue working for Tyson in the job position "pick bone sparse 

lean" until October 2006, when his entire shift was laid off. Tyson has not reinstated the 

second shift and Mr. Mesan has not obtained work since that time. 

The department closed Mr. Mesan's right shoulder claim in November 2008 for 

time loss compensation that had been paid up to that time. It awarded nothing further for 

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permanent partial disability. In May 2009, it closed his left upper extremity claim, which 

had ultimately resulted in a diagnosis of bilateral carpal tunnel syndrome, having 

determined that his condition was stable. It closed the claim without award for time loss 

compensation or permanent partial disability. At the time of these decisions, Mr. Mesan 

was 54 and 55 years old. Mr. Mesan appealed both closures to the Board of Industrial 

Insurance Appeals and they were consolidated for appeal. 

The IAJ who heard the claims was persuaded that the proper and necessary 

treatment for Mr. Mesan's occupational diseases was the surgeries recommended by Mr. 

Mesan's attending physician, Owen Higgs. Dr. Thomas Gritzka, Mr. Mesan's expert, 

also agreed, in part, with Dr. Higgs's recommendation of surgery. Yet Mr. Mesan had 

consistently and adamantly opposed surgery. The IAJ observed that the department had 

not addressed whether Mr. Mesan had "'good cause'" for refusing the surgeries "within 

the meaning ofthe proviso ofRCW 51.32.110(2)."2 Clerk's Papers (CP) at 49. 

2 That section provides, in relevant part: "Ifthe worker ... shall refuse to submit 

to such medical or surgical treatment as is reasonably essential to his or her recovery ... , 

the department or the self-insurer upon approval by the department, with notice to the 

worker may suspend any further action on any claim of such worker so long as such 

refusal, obstruction, noncooperation, or practice continues and reduce, suspend, or deny 

any compensation for such period: PROVIDED, That the department or the self-insurer 

shall not suspend any further action on any claim of a worker or reduce, suspend, or deny 

any compensation if a worker has good cause for refusing to submit to or to obstruct any 

examination, evaluation, treatment or practice requested by the department or required 

under this section." RCW 51.32.110(2). 

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In its August 2010 proposed order and decision, the IAJ found that both of Mr. 

Mesan's conditions were in need of further proper necessary treatment, that he had been 

offered surgeries to treat the conditions, that he refused the surgeries, and that his refusal 

"deleteriously affected his employability." CP at 56. It reversed the department's 

decision and remanded with directions to the department to accept the conditions as 

occupational disease conditions, determine that the offered surgeries "constitute proper 

and necessary treatment within the meaning ofRCW 51.04.030 and 51.36.010," and ask 

Mr. Mesan, again, ifhe would submit to the surgeries. CP at 57. 

Both parties petitioned the board to review the IAJ's decision. The board accepted 

review and found the IAJ's disposition improper, stating that "[a]lthough we can 

appreciate our industrial appeal judge's concerns about Mr. Mesan refusing proper and 

necessary treatment, we believe that the case law supports fully resolving the issues 

raised by Mr. Mesan." CP at 10. It observed that the suspension of benefits statute that 

concerned the IAJ applies only to suspension of benefits during periods of recuperation 

from an injury, not after the worker's condition is fixed. It held that a review of relevant 

case law, "leads to the conclusion that Mr. Mesan's refusal of surgery, whether 

reasonable or not and whether medically necessary and proper or not, gives the 

Department authority to close his claims." CP at 14. 

Having concluded that it could resolve the issues, the board reviewed the medical 

testimony and found that a preponderance of the evidence supported a conclusion that 

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Mesan v. Tyson Foods Inc. 


repetitive work at Tyson had aggravated Mr. Mesan's right shoulder condition and made 

it symptomatic. Relying on the testimony ofDr. Gritzka, it found an eight percent 

permanent impairment of the right upper arm and directed the department to require 

Tyson to pay Mr. Mesan an award equal to eight percent of the amputation value of the 

arm. 

It also determined that a preponderance of the evidence supported a conclusion 

that Mr. Mesan was capable of substantial gainful employment. While there was 

conflicting evidence on the extent ofMr. Mesan's occupational diseases, the limitations 

on work he could perform, the number and type ofjobs for which he was qualified, and 

whether they were available in the relevant labor market, the only factual findings ofthe 

board that provided support for its conclusion that Mr. Mesan was not temporarily or 

permanently totally disabled were 

8. 	 During the period November 4,2008, through May 6, 2009, the 

claimant was not prevented from performing reasonably continuous 

gainful employment[, and] 

9. 	 As ofMay 7, 2009, Mr. Mesan has not been permanently totally 

disabled. 

CP at 16. 

Mr. Mesan appealed the board's decision to the Benton County Superior Court. 

Following a bench trial, the superior court affirmed the board, adopting its findings of 

fact, conclusions of law, decision, and order. Mr. Mesan appeals. 

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Mesan v. Tyson Foods Inc. j 

ANALYSIS 

Mr. Mesan assigns error to the board's finding of fact that he "was not prevented 

from performing reasonably continuous gainful employment" during the period covered 

by his claims and its conclusion oflaw that "[a]s of May 7, 2009, Mr. Mesan was not 

permanently totally disabled." CP at 16-17 (Finding of Fact 8; Conclusion of Law 7). 

He argues that viewed in the light most favorable to Tyson, substantial evidence exists 

that "Mr. Mesan's occupational diseases, in combination with his pre-existing medical 

conditions, his age, his lack of transferable skills and most importantly his lack of English 

language skills prevented him from performing or obtaining continuous gainful 

employment." Br. of Appellant at 20. 

"[T]he measure of total disability is not the extent ofphysical impairment, 

essentially a medical question, but rather the effect of the injury on the worker's 'wage 

earning capacity'." Leeper v. Dep't o/Labor & Indus., 123 Wn.2d 803,812,872 P.2d 

507 (1994). "To determine a worker's wage earning capacity, the Department must look 

both at the medical evidence of impairment and the empirical evidence of the claimant's 

ability to obtain a job." Id. The evidence bearing on total disability '''necessarily 

requires a study of the whole man as an individual-his weakness and strengths, his age, 

education, training and experience, his reaction to his injury, his loss of function and 

other relevant factors that build toward the ultimate conclusion of whether he is, as a 

result of his injury, disqualified from employment generally available in the labor 

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market. '" Id. at 813 (quoting Fochtman v. Dep 't 0/Labor & Indus., 7 Wn. App. 286, 

295,499 P.2d 255 (1972)). 

Nonetheless, Washington cases "require a claimant to show the workplace injury, 

not fluctuations in the labor market alone, caused the inability to obtain work." Id. at 

815. In closing Mr. Mesan's claims without an award oftime loss or other compensation 

despite his unemployment, the department implicitly found, and Tyson argues on appeal, 

that Mr. Mesan's lack of employment is a result of fluctuations in the labor market or a 

lack of qualifications that is unrelated to his occupational diseases. 

On appeal, we review the superior court's decision, not that ofthe agency. Dep't 

o/Labor & Indus. v. Slaugh, 177 Wn. App. 439, 444, 312 P.3d 676 (2013),petition/or 

review filed, No. 89667-4 (Wash. Dec. 17,2013); RCW 51.52.110. Our review is limited 

. to whether substantial evidence supports the trial court's factual findings and then we 

review, de novo, whether the court's conclusions oflaw flow from the findings. Young v. 

Dep't o/Labor & Indus., 81 Wn. App. 123, 128,913 P.2d 402 (1996). 

Findings of fact must be entered in all cases tried without a jury. CR 52. 


Generally, where findings are required, 


they must be sufficiently specific to permit meaningful review. While the 


degree of particularity required in findings of fact depends on the 


circumstances ofthe particular case, they should at least be sufficient to 


indicate the factual bases for the ultimate conclusions. The purpose ofthe 


requirement of findings and conclusions is to insure the trial judge '''has 


dealt fully and properly with all the issues in the case before he decides it 


and so that the parties involved and this court on appeal may be fully 


8 

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informed as to the bases of his decision when it is made.'" However, a trial 

court is not required to make findings of fact on all matters about which 

there is evidence in the record; only those which establish the existence or 

nonexistence of determinative factual matters need be made. 

In re Det. ofLaBelle, 107 Wn.2d 196,218, 728 P.2d 138 (1986) (citations omitted) 

(quoting State v. Agee, 89 Wn.2d 416,421,573 P.2d 355 (1977) (quoting Roberts v. 

Ross, 344 F.2d 747, 751 (3d Cir. 1965»). 

Mr. Mesan submits that the board's finding 9, although labeled a finding, is really 

a conclusion oflaw. In his view, the board failed to enter any real findings of fact on the 

issue ofpermanent total disability. Br. ofAppellant at 21. He suggests that because the 

board entered only legal conclusions, the facts bearing on permanent total disability 

"must be reviewed de novo." Id. 

If a determination concerns whether evidence shows that something occurred or 

existed, it is properly labeled a finding of fact, but ifthe determination is made by a 

process of legal reasoning from facts in evidence, it is a conclusion of law. State v. 

Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986). Stated differently, a finding 

offact is "an 'assertion that a phenomenon has happened or is or will be happening 

independent of or anterior to any assertion as to its legal effect.'" Moulden & Sons, Inc. 

v. Osaka Landscaping & Nursery, Inc., 21 Wn. App. 194, 197,584 P.2d 968 (1978) 

(internal quotation marks omitted) (quoting Leschi Improvement Council v. Wash. State 

Highway Comm'n, 84 Wn.2d 271,283,525 P.2d 774,804 P.2d 1 (1974». 

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We agree with Mr. Mesan that the board's finding 9, that as of May 7, 2009 "Mr. 

Mesan has not been permanently totally disabled," is a determination of the legal effect 

ofMr. Mesan's medical/vocational situation and is a conclusion of law. The board's 

finding 8, that during the period November 4,2008 through May 6, 2009, "the claimant 

was not prevented from performing reasonably continuous gainful employment," is a 

finding of ultimate fact but is not much more helpful than finding 9 in indicating how the 

board or the superior court resolved the several key factual disputes bearing on Mr. 

Mesan's ability to perform or obtain reasonably continuous gainful employment. 

Finding 8, standing alone, is not sufficiently specific to permit meaningful review. 

RCW 51.52.104 provides that an IAJ's proposed decision and order "shall contain 

findings and conclusions as to each contested issue offact and law." (Emphasis added.) 

Where review is granted by the board, RCW 51.52.106 similarly provides that the 

board's final decision and order shall contain findings and conclusions as to each 

contested issue of fact and law, as well as the board's order based thereon. Ultimately, a 

trial court's findings must inform us '''what questions were decided by the trial court, and 

the manner in which they were decided.'" Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 

707, 592 P .2d 63 1 (1979) (internal quotation marks omitted) (quoting Bowman v. 

Webster, 42 Wn.2d 129, 134,253 P.2d 934 (1953)). 

We disagree with Mr. Mesan's suggestion that-faced with no indication how the 

board or the superior court resolved the key factual disputes-we should decide them de 

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novo. On review, it is improper for an appellate court to search out a material or ultimate 

finding offact from the evidence in the record because it would place the court in the 

initial decision-making process rather than maintaining its function of review. Wold v. 

Wold, 7 Wn. App. 872, 876, 503 P.2d 118 (1972). When further findings of fact and 

conclusions oflaw are necessary for appellate review, remand for their entry is 

appropriate. Little v. King, 160 Wn.2d 696, 707, 161 P .3d 345 (2007). 

While this court's role is limited to reviewing the decision-making process, not 

resolving disputed issues, the superior court conducts a de novo review ofthe board's 

record. The board's decision may be modified by the superior court ifthe court 

concludes, by a preponderance ofthe evidence, that its findings and conclusions are 

incorrect. Ruse v. Dep't o/Labor & Indus., 138 Wn.2d 1,5,977 P.2d 570 (1999), We 

therefore remand this matter to the superior court, as a trier of fact, for the entry of 

additional findings regarding the contested issues relating to whether Mr. Mesan was 

temporarily totally disabled between November 4, 2008 and May 6, 2009 and 

permanently totally disabled as ofMay 7, 2009. What is needed are findings indicating 

how the court resolved the several material disputes within the medical and vocational 

testimony. We recognize that further proceedings could conceivably include remand by 

the trial court to the board. Cj Boeing Co. v. Gelman, 102 Wn. App. 862, 870-71 & n.20, 

10 P.3d 475 (2000) (holding that a court is empowered to order an agency to comply with 

the law by providing needed findings of fact). 

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Mr. Mesan requests attorney fees under RAP 18.1, RCW 51.52.130, and Brand v. 

Department ofLabor & Industries, 139 Wn.2d 659,989 P.2d 1111 (1999). Under RCW 

51.52.130 workers who successfully obtain a reversal or modification of a department 

decision may be awarded attorney fees. Oien v. Dep't ofLabor & Indus., 74 Wn. App. 

566,571, 874 P.2d 876 (1994). In Sacred Heart Medical Center v. Knapp, this court held 

that a decision remanding an industrial insurance matter for further fact finding cannot be 

construed as affording additional relief. 172 Wn. App. 26, 29, 288 PJd 675 (2012), 

review denied, 177 Wn.2d 1021 (2013). As in Knapp, Mr. Mesan has not yet succeeded 

on appeal and is not yet entitled to fees under RCW 51.52.130. 

Reversed and remanded for further proceedings consistent with this opinion. 

A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Korsmo, cJ. 

Kulik,lP.T. 

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APPENDIX 

The following summary of evidence illustrates the several material factual 

disputes that bear on the ultimate issues of Mr. Mesan's alleged total temporary and 

permanent disability. It is not intended to bind anyone but is provided for the 

convenience ofthe court and the parties. 

Medical Testimony 

Dr. Owen Higgs (Attending Physician) 

Dr. Owen Higgs was Mr. Mesan's treating orthopedist for Mr. Mesan's industrial 

injury claims. He first saw Mr. Mesan in October 2005 for conditions including a trigger 

finger on his left hand. He testified that Mr. Mesan suffered from moderate bilateral 

carpal tunnel syndrome in both hands. Dr. Higgs also testified that Mr. Mesan suffered 

from a right shoulder impingement. He prescribed braces and anti-inflammatory 

medication and offered surgery for which he felt the prognosis was "very good" but Mr. 

Mesan did not want the shoulder or wrist surgery. CP at 187-90. 

Dr. Higgs found it appropriate to place some permanent restrictions on Mr. Mesan 

based on his injuries. He stated that he should only occasionally lift 15 pounds from 

shoulder to overhead, 20 pounds from floor to waist, and 20 pounds from waist to 

shoulder height. Dr. Higgs added that Mr. Mesan would be able to lift 14 pounds from 

floor to waist frequently and that he could carry 25 pounds occasionally and 15 pounds 

frequently. He concluded stating that Mr. Mesan could occasionally push 40 pounds, 

frequently push 20 pounds, and occasionally pull 35 pounds and frequently pull 15 

pounds. Such limitations were permanent in nature unless corrected. CP at 197-200. 

Dr. Higgs worked with vocational counselor Maurilio Garza on Mr. Mesan's 

vocational issues. When Mr. Garza presented Dr. Higgs with whether Mr. Mesan could 

perform the job ofinjury, pick bone sparse lean, Dr. Higgs stated that he could perform 

the job without restrictions on a permanent basis. The other four jobs were not presented 

to Dr. Higgs because in doing vocational assessments the job ofinjury is assessed first. 

CP at 206, 533-35. 

Mr. Kirk Holle (Physical Therapist) 

During the course oftreatment, Dr. Higgs recommended that Mr. Mesan go 

through a physical capacities evaluation (PCE) by Mr. Kirk Holle. The PCE was 

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conducted on April 20, 2007. Mr. Holle concluded that Mr. Mesan could work an eighthour day in light physical demand jobs with no frequent overhead and waist to shoulder 

lifting. Specifically the PCE provided that Mr. Mesan could work in an occupation that 

only requires occasional reaching above the shoulder with weights of 15 pounds and that 

he can perform occasional fine manipulation. He can lift 20 pounds occasionally from 4 

inch height to 36 inch height to 56 inch height, and lift 15 pounds occasionally from 56 

inch height to 78 inch height. He can frequently lift between 14 pounds from 4 inch 

height to 36 inch height, and then did not provide weight for frequently lifting about 36 

inches. Mr. Holle disapproved of all ofthe job analyses provided by Mr. Garza. His 

concern was with the repetitive constant to occasional frequent handling and reaching. 

CP at 238,418-19,563-64,582,595. 

Drs. Walter Fife and Eugene Wong 

On May 6, 2008, Mr. Mesan was examined by Drs. Walter Fife and Eugene Wong 

at the request of Tyson Foods. Drs. Fife and Wong concluded in their report that Mr. 

Mesan was limited to sedentary work and could not work for extended periods oftime 

holding his arms up. Dr. Fife testified that Mr. Mesan had limited range of motion in his 

neck and that his right shoulder had only about half of the normal rotation it should have. 

He also noted that Mr. Mesan has restrictions in both of his wrists. In their report the 

doctors restricted Mr. Mesan to work that he could complete sitting down with his elbows 

at his side. When testifying however, Dr. Fife opined that Mr. Mesan was fully capable 

of performing all production jobs. Dr. Fife and Dr. Wong disapproved of the job 

analyses for warehouse worker and forklift operator in part due to Mr. Mesan's neck and 

back arthritis. CP at 240, 397-99,401,407-09, 569-70, 587. 

Dr. William Bozarth (Independent Medical Examination (IME) Panel) 

In May 2007, Dr. William Bozarth a neurologist, Dr. Stephen Sears, and Dr. Peter 

Zografos conducted a panel IME. Dr. Bozarth diagnosed Mr. Mesan with right shoulder 

pain, most likely due to impingement. Dr. Bozarth opined that this injury was not work 

related, but rather something Mr. Mesan was born with. They also diagnosed Mr. Mesan 

with multiple and diffuse pain complaints, including both hands and both wrists, pain in 

the neck and lower back, and buzzing in the right ear. Dr. Bozarth did not diagnose Mr. 

Mesan with carpal tunnel syndrome. The panel concluded that there was no permanent 

partial impairment or disability and based on the examination the panel determined that 

no restrictions were necessary. The panel determined that Mr. Mesan could perform the 

jobs forklift, pick from mixed lean belt, pick bone sparse lean, peel cap, and warehouse 

worker on a reasonably continuous gainful basis. The panel concluded that Mr. Mesan 

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had no evidence of a permanent partial impairment and/or disability. CP at 237, 503-05, 

512. 

Dr. Thomas Gritzka 

Dr. Thomas Gritzka, a certified orthopedic doctor, examined Mr. Mesan on May 

6,2009 at Mr. Mesan's attorney's request. Dr. Gritzka found a positive impingement 

sign in Mr. Mesan's right shoulder. He also found upper extremity sensory impairment 

consistent with diabetic peripheral neuropathy. Dr. Gritzka agreed with Dr. Higgs that 

Mr. Mesan would be a good candidate for arthroscopic surgery. In addition to the 

bilateral carpal tunnel syndrome and shoulder impingement, Dr. Gritzka diagnosed 

chronic cervical and lubosacral sprains, but noted the examination was basically normal. 

He recommended no treatment for the carpal tunnel syndrome. CP at 224,253,258,264­

65. 

Dr. Gritzka stated that if Mr. Mesan is put in a position where he has to keep his 

head and neck bent forward or has to lean over a conveyor belt for an extended period of 

time that this back pain is likely to recur and cause problems. Dr. Gritzka opined that Mr. 

Mesan is best suited for sedentary work and that he needs to be in a work environment 

where he can be self-paced and allowed to change positions as needed. Dr. Gritzka stated 

he should avoid working a desk, or at a job where he would have to sit and look at a 

computer screen, or any job that requires repetitive hand activities, pulling things on and 

off a production line or continual keyboarding. He testified that Mr. Mesan could 

perform sedentary to light sedentary work. Therefore none ofthe recommended jobs 

would really be appropriate for Mr. Mesan. Dr. Gritzka ultimately rated Mr. Mesan at 

eight percent impairment for the right upper extremity. CP at 266-68,270-71,277,570­

71,583. 

In summary, the expert medical testimony varied from doctors suggesting that Mr. 

Mesan could not perform any job at Tyson (Dr. Gritzka) to the suggestion that Mr. Mesan 

needed no restrictions and could perform any job at Tyson (Dr. Bozarth). There appeared 

to be no clear consensus amongst the medical experts regarding Mr. Mesan's physical 

ability. 

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Vocational Testimony 

Maurilio Garza 

Mr. Maurilio Garza, a certified vocational expert, met with Mr. Mesan once on 

October 20, 2006. Mr. Garza determined there were five jobs Mr. Mesan could perform. 

The first two were chosen because of his past work history: (1) warehouse worker and 

(2) forklift driver. Additionally, he identified three jobs unique to the Tyson plant for 

which he was qualified: (3) pick bone sparse lean; (4) bone picker; and (5) meat trimmer. 

The first three jobs offered were not part ofthe general labor market, but were unique to 

Tyson. Mr. Garza asserted that Mr. Mesan could complete the job ofpick bone sparse 

lean, pick special trim, or pick mixed lean while adhering to the limitations articulated by 

Mr. Holle and Dr. Higgs. Mr. Garza agreed that Mr. Mesan is incapable of physically 

performing the warehouse worker and forklift operator positions. Mr. Garza did not 

conduct a labor market study. Nonetheless, Mr. Garza concluded that Mr. Mesan was 

employable on a reasonably continuous basis at Tyson with no accommodation at the 

position ofpick bone sparse lean. CP at 543-44,552,576-77,582. 

Mr. Garza also testified that Mr. Mesan is an educated individual. He has a high 

school diploma, a college degree, and could learn a foreign language. Mr. Garza testified 

that five jobs would be appropriate for Mr. Mesan, mixed lean belt, peel cap, pick bone 

sparse lean, warehouse worker, and forklift operator. Mr. Garza ultimately opined that 

based on his analysis Mr. Mesan could be gainfully employed on a reasonably continuous 

basis. He testified that no opinion indicated that Mr. Mesan was permanently totally 

disabled. CP at 530, 552, 554. 

Jill Falk 

Mr. Mesan called vocational rehabilitation counselor, Jill Falk. Ms. Falk met with 

Mr. Mesan twice at the request of counsel. Ms. Falk did a thorough record review 

regarding Mr. Mesan's background. She completed a full intake ofMr. Mesan's 

background, work history, and reviewed his medical records and PCE. She offered 

testimony in stark contrast to that ofMr. Garza. CP at 295,307-10. 

She testified that Mr. Mesan was unable to work because none ofthe jobs 

suggested were considered sedentary. But agreed that all medical experts had indicated 

that they felt Mr. Mesan was capable of work in some capacity. Ms. Falk testified that 

Mr. Mesan was permanently and totally disabled when taking into account his injuries, 

age, lack ofEnglish skills, and singular work history. Ms. Falk felt that due to the 

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physical restrictions, his transferable skills, work history, education, and language ability, 

that Mr. Mesan is permanently and totally disabled. Ms. Falk did not conduct a labor 

market study because it was unnecessary to reach that question, when Mr. Mesan was 

unable to perform any of the positions suggested for his employment. CP at 334,340-47, 

351-52. 

Lay Testimony 

Mr. Mesan testified that he does not understand English and requires the use of 

interpreters when he goes to see a doctor or his attorney. He also testified that prior to 

working at Tyson he had no injuries that limited him from working. Since working at 

Tyson he has problems with his hands, right shoulder, and his neck and back. Several 

doctors offered or recommended surgery to help correct his ailments, however, he 

declined such suggestions because ofthe risk ofsurgery and the fact that nobody 

guaranteed he would be better off. CP at 16, 145, 151-53. 

17