SKRGIC v. IBP, INC., 796 N.W.2d 455 (Iowa App. 2003)

HUSEIN SKRGIC, Petitioner-Appellant, v. IBP, INC., Respondent-Appellee.

No. 3-619 / 02-1687.Court of Appeals of Iowa.
Filed December 10, 2003.

Appeal from the Iowa District Court for Black Hawk County, Bruce Zager, Judge.

Workers’ compensation claimant appeals from denial of disability benefits. AFFIRMED.

Robert Andres of Fulton, Martin Andres, P.C., Waterloo, for appellant.

Todd Beresford, Dakota City, Nebraska, for appellee.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

ZIMMER, J.

Husein Skrgic injured his back a little more than two months after he started work at IBP, Inc. (IBP). He filed a claim for workers’ compensation benefits. The deputy workers’ compensation commissioner determined that the back injury resulted in permanent impairment and work restrictions, and that Skrgic was permanently and totally disabled. He nevertheless refused to award Skrgic any further disability benefits.[1] The deputy concluded Skrgic had been permanently and totally disabled as a result of a heart condition that predated his employment at IBP, and therefore suffered no loss of earning capacity as a result of the work injury and subsequent added impairment. The deputy’s decision was upheld upon agency appeal and judicial review. Skrgic appeals. Upon our review for the correction of errors at law, Aluminum Co. of America v. Musal, 622 N.W.2d 476, 478 (Iowa 2001), we affirm.

Skrgic bears the burden of demonstrating the invalidity of the agency’s action and resulting prejudice. Iowa Code § 17A.19(8)(a) (2001). The agency decision will be upheld if it is unaffected by legal or other error, and is supported by substantial evidence in the record when the record is viewed as a whole. Id. § 17A.19(10). Substantial evidence is that sufficient to allow a reasonable, neutral, and detached person to reach the same conclusion as the agency. Id.
§ 17A.19(10)(f)(1).

As an initial matter, Skrgic argues the agency acted in abrogation of the parties’ pretrial stipulation that “the alleged [back] injury is a cause of permanent disability.” We need not decide the issue, as we conclude Skrgic failed to preserve error on this claim. We have reviewed the entirety of the record, including the various briefs of the parties. Although Skrgic noted the stipulation, and asserted that legal error occurred in both the arbitration and final agency decision, he never asserted that the stipulation served as a basis of this error.[2] His failure to raise this issue to either the agency or the district court waives error on appeal See Tussing v. George A. Hormel Co., 417 N.W.2d 457, 458 (Iowa 1988). We therefore consider the agency’s decision that Skrgic was permanently and totally disabled prior to starting work at IBP.

Skrgic, a Bosnian immigrant, moved to Iowa in January 1997. He was hired by IBP a little more than two months later, at the age of sixty. The record reveals that Skrgic had two heart attacks in the 1980s, while still living in Bosnia. Following his second heart attack, he was placed on retirement status and awarded a disability pension. He was forced to retire because his physicians imposed numerous permanent physical restrictions upon him. Although Skrgic performed some part-time work in Bosnia after his second heart attack, he remained on disability and his restrictions were never lifted.[3]

Skrgic reported his heart attacks to IBP before commencing employment; however, the evidence indicates he failed to inform IBP of some or all of his physical restrictions. Shortly after starting his employment at IBP, Skrgic began experiencing “increased frequencies of chest pain since he has been physically active at his job,” as well as “short[ness] of breath with exertion and pain.” When Skrgic informed his doctor, she recommended light-duty work. Even though Skrgic was given light-duty jobs, he continued to experience angina attacks on a daily basis. Skrgic injured his back on April 17, 1997, a few days after he was seen by his doctor due to chest pain.

We conclude the foregoing evidence substantially supports the agency’s determination that Skrgic was permanently and totally disabled prior to taking employment with IBP. In addition, we perceive no legal or other error in the agency decision. Skrgic was unable to demonstrate that his back injury had negatively impacted his earning capacity. The agency was therefore correct in declining to award additional disability benefits. We affirm the judgment of the district court.

AFFIRMED.

[1] Prior to the arbitration hearing IBP paid fifteen weeks of permanent disability benefits for the back injury, based upon its assessment that Skrgic had sustained a permanent disability of at least three percent.

[2] Upon intra-agency appeal Skrgic argued that the agency ignored case law to the effect that employers hire employees subject to preexisting health impairments, that the evidence did not establish Skrgic was disabled by his heart condition prior to employment with IBP, and that IBP was estopped from arguing Skrgic was previously disabled because it knew of his heart attacks. Upon judicial review Skrgic’s argument appeared to be limited to an allegation that the agency’s decision was not supported by substantial evidence.

[3] Claimant performed some part-time work at a Bosnian post-office after he was placed on retirement. However, he worked a total of only twenty days in this position over a four-year period, and indicated that on each of these days he worked an average of only two to three hours. Skrgic also testified he was in the Bosnian Army reserves for about three months in 1994 and 1995, but did not perform any manual labor during this time.