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Deputy commissioner’s decision not tainted by ‘implicit bias’: Court

An appeals court dismissed an employee’s argument that a deputy commissioner’s “implicit bias” led her to reject her workers compensation claims in Cerwick v. Tyson Fresh Meats Inc.

The Iowa Court of Appeals in Des Moines affirmed a district court’s ruling Wednesday that upheld a commissioner’s finding that an employee of Dakota Dunes, South Dakota-based Tyson Fresh Meats Inc. could not trace her injuries to a parking lot fall.

On Feb. 28, 2013, the employee, Naima Cerwick, slipped on ice and fell in the parking lot at her workplace on her way to report for her shift. She sought medical attention at the company’s health services center, but she said she wasn’t in pain and returned to work. The following week, she told health services she was experiencing back pain, and an outside physician diagnosed her as having a thoracic strain. Ms. Cerwick was prescribed medication and referred to physical therapy. On March 25, 2013, Ms. Cerwick reported to the physician that she continued to have intermittent back pain with little improvement.

She was then referred to an orthopedic surgeon, and a variety of medical providers examined and treated Ms. Cerwick for pain to her back and shoulders, lower back and hip. The medical providers had differing opinions as to whether her injuries were causally related to the fall and whether the back injury was permanent.

In March 2014, Ms. Cerwick sought workers compensation benefits for her right hip, right shoulder and back. Tyson acknowledged that she had sustained a temporary work-related injury to her back from the parking lot fall, but denied that she had sustained other injuries.

Ms. Cerwick, who was born in Morocco, requested the use of a translator at the arbitration hearing, but a district court noted that there were occasions where the employee “had difficulty identifying words in Arabic at times and asked to answer in English,” which she said was because she hadn’t spoken Arabic in a long time.

The deputy workers compensation commissioner found that the employee failed to show that she had sustained an injury beyond a temporary aggravation of her back as a result of the fall. A workers comp commissioner affirmed the arbitration order and denied Ms. Cerwick’s application for rehearing.

She petitioned for judicial review, alleging that the deputy commissioner was impacted by “implicit bias” and “grossly” overstated her communication abilities, thereby discrediting her claim for failing to describe her fall or communicate her symptoms sufficiently to medical providers. 

The appeals court, however, said that after a “fairly intensive review” of the record, it found substantial evidence that Ms. Cerwick provided inconsistent history of the fall and resulting injury. The court held that the employee’s claim that the deputy commissioner ignored evidence was unsupported and upheld the district court’s determination that she failed to show the deputy had an implicit bias.

Tyson Fresh Meats could not be reached for comment.