IN THE COURT OF APPEALS OF IOWA

No. 14-0565

Filed January 14, 2015

JBS SWIFT & COMPANY and 

ZURICH AMERICAN INSURANCE

COMPANY,

Petitioners-Appellants,

vs.

WAYNE HEDBERG,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Randy V. Hefner, 

Judge. 

Appeal from the district court decision on judicial review, affirming the 

agency’s award of permanent total disability benefits. REVERSED AND 

REMANDED.

Jennifer A. Clendenin and Nicholas J. Pellegrin of Ahlers & Cooney, P.C.,

until withdrawal, then Mark A. King of Patterson Law Firm, L.L.P., Des Moines, 

for appellants.

Nathaniel R. Boulton of Hedberg & Boulton, P.C., Des Moines, for 

appellee.

Heard by Mullins, P.J., and Bower and McDonald, JJ.
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McDONALD, J.,

JBS Swift & Company and Zurich American Insurance Company, 

(hereinafter “employer” or “Swift”) appeal from the district court ruling affirming 

the agency’s award of permanent and total disability benefits to workers’ 

compensation claimant Wayne Hedberg. 

I.

Hedberg commenced employment with Swift in 1990. In 2010, Hedberg 

sustained a work-related injury to his right shoulder and filed a claim for workers’ 

compensation benefits. During the agency proceeding, the parties stipulated to 

the following facts:

Hedberg sustained an injury to his right shoulder and arm on May 

7, 2010. After his injury Hedberg continued working in light-duty 

positions within his temporary work restrictions until his surgery on 

December 31, 2010. Hedberg moved to Minnesota on January 3, 

2011. As of March 28, 2011, Swift notified Hedberg there was work 

available to him within his temporary work restrictions, but did not 

provide job descriptions. Swift notified Hedberg there was work 

available for him within his permanent work restrictions. Hedberg 

did not return to work at Swift after his December 31, 2010 surgery 

and did not seek other employment. Hedberg was notified on 

August 8, 2011, that he was deemed a voluntary quit for failing to 

report back to work.

Hedberg moved to Minnesota following his December 31 surgery because 

he was unable to care for himself following the unexpected death of his wife in 

December 2010. Hedberg’s inability to care for himself following his wife’s death 

was unrelated to his work injury. Instead, the record reflects Hedberg suffered a 

variety of conditions for most of his life—including cerebral lupus, mild cerebral 

palsy, and significant hearing impairment—that required him to have the 

assistance of others. Because of these and other conditions, Hedberg’s family 
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decided Hedberg would move to Minnesota to live with his younger brother. 

Hedberg testified if his wife had not died, he would have stayed in Iowa and 

continued to work at Swift.

After Hedberg’s surgery in December 2010, two doctors provided opinions

regarding Hedberg’s work restrictions and impairment rating. Dr. Neff was 

Hedberg’s treating physician/surgeon; Dr. Bansal performed an independent 

medical evaluation. On May 23, 2011, Dr. Neff stated, “I am pleased with his 

progress; but I agree he will never have the same shoulder that he had before, 

and repetitive intensive overhead activity is not going to be possible.” In his 

evaluation on July 20, 2011, with Hedberg having attained maximum medical 

improvement, Dr. Neff opined:

I am not certain how best to proceed determining impairment 

evaluation for the right upper extremity. Active range of motion 

done by the patient upon request shows significant disparity 

between passive motion.

In light of the above, I do not feel comfortable attributing 

impairment based on range of motion loss. The 5th edition of the 

AMA Guides reflects a 10% impairment attributable as a result of 

AC joint resection arthroplasty; and consequently, it is my opinion 

that he has a 10% impairment to the right upper extremity as a 

result of AC joint resection arthroplasty and a 1% impairment to the 

right upper extremity as a result of elbow range of motion loss. 

There is no impairment attributed as a result of cubital tunnel 

syndrome.

Consequently, adding these he has an 11% impairment to 

the right upper extremity as a result of his ongoing circumstance.

Dr. Bansal recommended the following restrictions: “no lifting greater than lifting 

up to 15 pounds along with no lifting over shoulder level or away from her [sic] 

body . . . ; no frequent lifting, pushing, or pulling . . . ; no pushing, pulling greater 

than 20 lbs.” Dr. Bansal gave Hedberg a 10% upper extremity impairment rating 
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for his right shoulder, with a 16% impairment of the whole person, and a 6.7% 

upper extremity rating for his right elbow, with a 4% rating of the whole person. 

Two experts conducted vocational evaluations of Hedberg: Carma 

Mitchell, retained by Hedberg; and Lana Sellner, retained by Swift. In her report, 

Mitchell opined:

Mr. Hedberg has an excellent employment record and has worked 

the past 20 years despite problems with his hearing and speech. 

He has sought treatment in an effort to improve the functioning of 

his right shoulder and upper extremity. The 69% loss of access to 

the labor market is based on the physical restrictions Mr. Hedberg 

has from his work related injury. When looking at Mr. Hedberg as a 

whole with all his limitations his employment options are extremely 

limited. It is my opinion that with the functional limitations and pain 

and numbness Mr. Hedberg describes when trying to use his right 

shoulder and upper extremity along with his limited intellectual 

functioning, hearing loss and speech impediment he would not be 

able to obtain or sustain full-time competitive employment.

Sellner’s report was admitted into evidence as part of Exhibit K. Sellner’s

report includes a labor market survey of suitable employment in Minnesota and 

Iowa as well as a survey of positions at Swift. The report included seven job 

descriptions of permanent positions at Swift. Referring specifically to the seven 

positions described in the report, Sellner opined “these occupations identified are 

viable and within Dr. Neff’s restrictions. If one considers Dr. Bansal’s restrictions, 

the occupations identified continue to be viable with the exception [of two of 

them].” The report also notes the seven identified positions were not the only 

positions available because “other positions maybe [sic] suitable as well.”

Hedberg’s workers’ compensation claim proceeded to hearing. In its 

arbitration decision, the deputy commissioner noted Sellner’s report included jobs 

at Swift. The arbitration decision found that Swift offered Hedberg suitable light 
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duty work beginning March 28, 2011, and concluded that Swift was thus not 

liable for healing period benefits between March 28 and July 20, 2011. The 

deputy commissioner also found that Swift offered Hedberg permanent 

employment within Hedberg’s restrictions, that Hedberg did not accept the 

employment, and that Hedberg was not an odd-lot employee. The arbitration 

decision found Hedberg had an 80% industrial disability but was not permanently

and totally disabled. The parties appealed.

The intra-agency appeal was decided by the commissioner’s designee. 

The appeal decision adopted the arbitration decision with a “modification as to 

the extent of claimant’s permanent disability.” The commissioner’s designee 

found and concluded Hedberg’s injury “permanently disable[d] him from 

performing work within his experience, training, education, and physical 

capacities. Therefore, claimant is entitled to an award of permanent total 

disability benefits.” In support of the award of permanent total disability benefits, 

the commissioner’s designee stated that Swift failed to provide any descriptions 

of the work available to Hedberg and that Sellner failed to conduct a market 

survey of the jobs available at Swift:

No further explanation of the jobs that Swift stood ready to provide 

to the claimant appear in the record. There is a joint stipulation that 

the claimant was notified there was work available for him within his 

permanent restrictions in 2011. Even Lana Sellner, the vocational 

rehabilitation consultant hired by the defendants, did not provide 

any jobs from the defendants in her labor market survey. While Ms. 

Sellner did identify several jobs available to people who would be 

limited to the light to medium duty work activity, she did not indicate 

in her report which jobs claimant could actually perform with his 

hearing and speech impediments.

The appeal decision continued:
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There was no evidence provided herein that actual job openings 

were available to claimant within the very narrow categories 

identified in the vocational report by Ms. Sellner, nor was there any 

credible basis to believe that this worker with his limited education, 

significant work restrictions, and a work history only in menial 

physical labor would be a successful candidate for such positions, 

should they actually exist.

The commissioner’s designee continued:

There was no competitive employment that the claimant could 

believably work following his shoulder injury. Despite the offers 

made by the defendants, none of them had any detail even when 

both Dr. Neff and the counsel for the claimant requested it. The 

lack of response by the defendants suggests the positions were 

make work at best.

Swift petitioned for judicial review, and the district court affirmed the 

agency’s action. The district court summarized Swift’s contentions as follows: (1) 

the deputy commissioner failed to give any weight to the report of Lana Sellner of 

Care Solutions regarding the extent of Hedberg’s industrial disability, and (2) the 

deputy commissioner failed to reconcile the award of permanent and total 

disability benefits with prior appeal decisions refusing such awards after an 

employer offered suitable work. The court conducted substantial evidence 

review and determined the appeal decision “was not illogical, unreasonable, 

arbitrary or capricious, or inconsistent with prior agency action.”

II.

Iowa Code chapter 17A governs our review of the agency’s decision. See

Iowa Code § 86.26 (2013); Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888 

(Iowa 2014). The district court acts in an appellate capacity to correct errors of 

law when reviewing the agency’s decision. See Watson v Iowa Dep’t of Transp., 

829 N.W.2d 566, 568 (Iowa 2013); Ludtke v. Iowa Dep’t of Transp., 646 N.W.2d 
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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.” See 

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

The crux of the parties’ dispute in this appeal is the nature of the question 

presented and the standard of review. Hedberg argues the sole issue on appeal 

is whether the appeal decision is supported by substantial evidence. Under this 

standard, we are bound by the agency’s factual determinations if supported by 

“substantial evidence in the record before the court when that record is viewed as 

a whole.” Iowa Code § 17A.19(10)(f); see Watson, 829 N.W.2d at 568 (setting 

forth standard); Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 845 

(Iowa 2011) (setting forth standard). On substantial evidence reivew, our task “is 

not to determine whether the evidence supports a different finding; rather, our 

task is to determine whether substantial evidence . . . supports the findings 

actually made.” See id. Swift contends this case does not present a routine 

question of substantial evidence review. Instead, Swift argues the agency failed 

to consider a relevant and important matter; took action that was unreasonable, 

arbitrary, capricious, or an abuse of discretion; and reached a decision that is a 

product of illogical reasoning. See Iowa Code § 17A.19(10)(f), (i), (j), (m), & (n). 

Specifically, Swift asserts the agency failed to consider and/or explicitly misstated 

record evidence; failed to consider Hedberg’s refusal of full-time work within his 

permanent work restrictions; and failed to consider Hedberg voluntarily left his 
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employment for reasons unrelated to his work injury. Swift has the better of the 

argument. 

The record reflects the commissioner’s designee simply ignored or 

overlooked record evidence. The appeal decision correctly notes the “arbitration 

decision and the defendants’ arguments that claimant is employable seem[] to 

stem from the job offer made by the defendants for sedentary work which would 

be within claimant’s work restrictions.” The appeal decision then states “[t]here is 

no description in the record what kind of work this entailed” and there is “[n]o 

further explanation of the jobs that Swift stood ready to provide to the claimant 

appear in the record.” The commissioner’s designee goes on to state “[e]ven 

Lana Sellner, the vocational rehabilitation consultant hired by the defendants, did 

not provide any jobs from the defendants in her labor market survey.” All three 

statements regarding the state of the record are demonstrably incorrect. 

Sellner’s report includes job descriptions and other information for seven 

positions in Swift’s ham boning, kill, and cut departments. The appeal decision 

also states Sellner “did not indicate in her report which jobs claimant could 

actually perform with his hearing and speech impediments.” Again, the agency’s 

statement of the record is demonstrably incorrect. Page 4 of Sellner’s report 

concludes: “It should be noted these occupations identified are viable and within 

Dr. Neff’s restrictions. If one considered Dr. Bansal’s restrictions, the 

occupations identified continue to be viable with the exception of [two positions].” 

Page 2 of the report explicitly accounts for Hedberg’s “hearing loss and speech 

impediment.” The overlooked evidence is not immaterial; the heart of the appeal 
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decision is based upon the designee’s conclusion that Swift failed to provide 

evidence of available work and that this purported failure of proof demonstrated 

Swift had only make-work available for Hedberg. 

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. Where the record affirmatively discloses the agency did 

not review and consider the evidence, as is the case here, then substantial 

evidence review is inapplicable. The agency is entitled to reconcile competing 

evidence, not ignore competing evidence. We thus conclude the commissioner’s 

designee’s action is unreasonable, arbitrary, capricious, an abuse of discretion, 

and the product of illogical reasoning. See Iowa Code § 17A.19(10)(i), (j), (m), & 

(n); Meyer v. IBP, Inc., 710 N.W.2d 213, 225 (Iowa 2006) (“We have said that the 

commissioner commits error by failing to weigh and consider all of the 

evidence.”); Armstrong v. State of Iowa Bldgs. and Grounds, 382 N.W.2d 161, 

165 (Iowa 1986) (stating it is reversible error for the commissioner to fail to 

“weigh and consider all the evidence”); Buttrey v. Second Injury Fund, No. 11-

0205, 2011 WL 4578449, at *8 (Iowa Ct. App. Oct. 5, 2011) (stating an agency’s 

“opinion grounded upon inaccurate facts does not warrant the deference

normally accorded”); Beef Prods., Inc. v. Rizvic, No. 10-2083, 2011 WL 3688976, 

at *6 (Iowa Ct. App. Aug. 24, 2011) (holding commissioner’s decision was 

“illogical, irrational, and wholly unjustifiable” where commissioner’s findings relied 

on misstatements of record evidence).
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When the commissioner fails to consider all the evidence, the appropriate 

remedy is “remand for the purpose of allowing the agency to re-evaluate the 

evidence” unless the facts are established as a matter of law. Armstrong, 382 

N.W.2d at 165; see also Meyer, 710 N.W.2d at 225 (stating the remedy for failure 

to consider all evidence “is to remand the case for a decision by the 

commissioner on the existing record”); Rizvic, 2011 WL 3688976, at *6 (affirming 

district court’s remand to agency). Here, we cannot conclude the relevant facts 

are established as a matter of law. Accordingly, this matter shall be remanded 

for the purpose of allowing the agency to make a decision based on the existing 

record.

III.

For the foregoing reasons, we reverse the decision of the district court and 

remand this case to the agency for a decision based on the totality of the existing 

record. 

REVERSED AND REMANDED.