State News : Iowa

Legal Update by Attorney Alison Stewart and Law Clerk Morgan Todd Borron

When a worker falls at work, and the fall cannot be attributed to an acute event caused by the work (e.g., tripping over an object, slipping on ice or water, losing balance while carrying an object, etc.), the fall will likely fall into one of two categories: idiopathic or unexplained. These types of falls require additional analysis into compensability. An idiopathic fall is one that originates from a purely personal condition to the claimant. See Koehler Elec. v. Wills, 608 N.W.2d 1, 4 (Iowa 2000) (citing Arthur Larson, Workmen’s Compensation Law, sec. 12.11, at 3-356 (1994)); Bluml v. Dee Jay’s, Inc., 920 N.W.2d 82, 84 (Iowa 2018). An unexplained fall is where a claimant trips, slips, or falls for no specifically identifiable reason. Bartle v. Sidney Care, Inc., 672 N.W.2d 333, 2003 WL 22346956 at *2. (Iowa Ct. App. Oct. 15, 2003).

There are different standards that apply to these different types of falls. In Bluml, the worker sustained an idiopathic fall. The Iowa Supreme Court determined that “the claimant should have both the burden and the opportunity to meet the increased-risk test[,]” and “may recover if he or she proves that ‘a condition of his [or her] employment increased the risk of injury.’” Bluml, 920 N.W.2d at 91 (quoting Koehler Elec., 608 N.W.2d at 5). The Court noted that for unexplained falls, the actual-risk rule is the appropriate standard. Bluml, 920 N.W.2d at fn.1.

Under the actual-risk doctrine, an injury is compensable “as long as the employment subjected [the] claimant to the actual risk that caused the injury.” Lakeside Casino v. Blue, 743 N.W.2d 169, 176 (Iowa 2007) (quoting Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, sec. 3.04, at 3-5 (2007)). “[U]nder the actual-risk doctrine, the injury must result from a condition, risk, or hazard of employment.” Murray as Conservator of Meyers v. Lazer Spot, Inc., No. 21004833.01, 2022 WL 16826433 at *11 (Iowa Workers’ Comp. Comm’n Arb. Dec. July 28, 2022) (citing Lakeside Casino, 743 N.W.2d at 178; Hanson v. Reichelt, 452 N.W.2d 164, 168 (Iowa 1990)).

In Lakeside Casino, the worker was injured after she stumbled while walking down stairs at work. The Iowa Supreme Court stated, “it is a matter of common knowledge that stairs pose an actual risk of stumbling or falling when traversing them, similar to the risk posed by going up and down ladders. Although Blue did not stumble due to any particular defect in or condition of the stairs, it is not necessary under Iowa case law that that the stairs in Blue’s workplace be more dangerous than a typical set of steps. In addition, it matters not that she stumbled through her own inattention. Blue’s misstep was causally related to the fact that she was walking on stairs, and therefore, the Commissioner rationally concluded her injury arose out of her employment.” 743 N.W.2d at 177. The Court found that “Blue stumbled on the stairs, the Commissioner finding that ‘the injury occurred from the hazard of traversing stairs.’ It is this causal relationship between a condition of Blue’s employment—the stairs—and her injury that distinguishes the present case from those in which we have determined the employee’s injury was not compensable” (referring to earlier discussion distinguishing McIlravy, where EE injured knee walking across level floor; Gilbert, where EE arguably injured neck straightening up from signing a document; Miedema, where EE injured back turning to flush toilet; and Musselman, where EE injured back leaning against wall for balance). Lakeside Casino, 743 N.W.2d at 177-178.

In Lapcheske v. Polk Cty., No. 5055505, 2019 WL 7559785 (Iowa Workers’ Comp. Comm’n App. Dec. Nov. 6, 2019), the worker suffered an unexplained fall on a hard floor (described as concrete, marble, or terrazzo throughout the record) resulting in an arm injury. The treating physician opined that claimant’s landing on a hard surface resulted in a “higher-energy fracture than if she would have fallen on carpet” and “elevated the severity” of the fracture; Dr. Bansal opined similarly. Lapcheske, at *3. The Commissioner stated, “Simply put, claimant’s arm was not fractured until it struck defendant’s floor. This factor distinguishes the injury from one that coincidentally occurs at work.” Id. at *4. The Commissioner held that “the hard floor in this case did present an actual risk of injury; in fact, the hard floor even went so far as to increase the risk of injury. Thus, applying the actual-risk doctrine to this case, I find the hard floor was a condition and ultimately a hazard of claimant’s employment.” Id.

In McClain v. Lennox, No. 1664566.01, 2021 WL 2624684 (Iowa Workers’ Comp. Arb. Dec. Apr. 22, 2021), affirmed 2021 WL 4447174 (Iowa Workers’ Comp. App. Dec. Sept. 22, 2021), the worker tripped and fell landing on his right side. He thought he caught his toe on an uneven portion of the cement floor or a corner of a pallet but was not sure. Defendants argued that claimant’s fall was idiopathic or unexplained. The evidence presented at hearing showed that claimant had caught his toe on some kind of crack or obstruction, causing the fall and subsequent injury. McClain, 2021 WL 2624684 at *6. This was affirmed on appeal, with the Commissioner noting “I therefore affirm the deputy commissioner’s finding that claimant’s fall was explained, meaning the resulting injury arose out of and in the course of claimant’s employment.” McClain, 2021 WL 4447174 at *1.

In 2019, there was amendment to Iowa Code section 85.61, adding that “Personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of or in the course of employment and are not compensable under this chapter.” Iowa Code 85.61(7)(c). In light of the subsequent case law, however, we think application of this amendment is limited to cases where the worker does not hit another object (like a wall, or a desk or shelf) on the way to the ground.

Peddicord Wharton will continue to monitor this evolving area of the law and provide relevant updates.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2023 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Morgan Borron

Compensability Standard for Mental-Mental Claims of Emergency Responders

In Tripp v. Scott County Emergency Communication Center, 977 N.W.2d 459 (Iowa 2022), the Iowa Supreme Court addressed whether Iowa law holds emergency workers to a separate, higher standard to be eligible to receive workers’ compensation benefits for trauma-induced mental injuries, than other workers who sustain identical injuries, but work in other roles. In this case, Claimant was diagnosed with PTSD after receiving a disturbing call from a mother who was screaming about the death of an infant. Claimant had worked in that role for approximately 16 years prior, but testified the screams in this call were “beyond ‘normal’ sounds: ‘guttural, awful.’” In the days that followed, Claimant became withdrawn, unable to process emotions, wanting to sleep, and tearful. The employer approved Claimant’s treatment with a licensed mental health counselor and psychologist, both of whom diagnosed Claimant as having suffered from PTSD as the result of the September 30, 2018 call.

Claimant’s treating psychologist testified her PTSD constituted a chronic episodic condition that resulted in a permanent disability. The Deputy Commissioner denied Plaintiff’s petition for workers’ compensation benefits because 911 dispatchers “’routinely’ take calls involving death and traumatic injuries” and that Plaintiff had failed to establish that the call was “unusual” or “unexpected” as required under the court’s prior mental injury cases. The Commissioner affirmed the Deputy’s Arbitration Decision, as did the District Court. Claimant appealed, which was retained by the Iowa Supreme Court.

Psychological injuries meet the definition of personal injuries for purposes of determining workers’ compensation benefit entitlement in Iowa, but employees claiming mental injuries must prove both medical and legal causation. See Brown v. Quik Trip Corp., 641 N.W.2d 725, 727-29 (Iowa 2002). The legal causation requirement could be satisfied where an “unusual strain” led to the mental injury. The Court held that based on the evidence, Plaintiff Tripp’s PTSD arose directly from her handling of the September 30, 2018, 911 call in the course of her work as an emergency dispatcher. The Court held that focusing on an employee’s job to determine an “unexpected strain” placed emergency workers in a disfavored position when compared to other workers. It held there should be no “heightened evidentiary hurdle” for these types of employees. Rather, because Claimant was able to prove her purely mental injury (PTSD) was traceable to a readily identifiable work event (the September 30, 2018, phone call) she had proven legal causation. The likely impact of this case is that this expands the compensability of mental injuries in Iowa.

Industrial Disability Awarded in Two Cases Involving a Shoulder Injury

The Commissioner awarded industrial disability in two cases involving the shoulder.

• In Carmer v. Nordstrom, Inc., File No. 1656062.01 (Iowa Workers’ Comm’r App. Dec. December 29, 2021), the worker sustained a right shoulder injury and then developed a left shoulder sequela injury due to overuse. The agency concluded that the two shoulder injuries cannot be compensated separately under 85.34(2)(n), as that section refers only to a singular shoulder. Further, because the legislature did not add the shoulder to the list of scheduled members to be compensated on a 500-week basis when two are injured in a single accident, the two shoulder injuries could not be compensated under 85.34(2)(t). The Commissioner therefore held that the two shoulder injuries together should be compensated industrially under “catch all” provision of 85.34(2)(v).
  
  
• In Bridgestone Americas, Inc. v. Charles Anderson, Case No. CVCV063124, Ruling on Petition for Judicial Review (Polk Co. Dist. Ct. Aug. 3, 2022), the district court affirmed the Commissioner’s award of industrial disability under 85.34(2)(v) where the worker sustained an injury to the shoulder and separate injury to the arm arising out of the same incident. The Anderson decision stands for the principle that where an employee sustains injuries to the shoulder and any other scheduled member, the injuries will be compensated industrially.

Both Carmer and Anderson are on appeal; however, they are the current law of the Agency and should be considered when evaluating shoulder cases.

Shoulder Injuries and Second Injury Fund Benefits

In Martinez-Rivera v. Signet Builders, Inc., File No.: 5064517.01 (Arb. Dec. Sept. 16, 2021), the deputy commissioner held that the Claimant did not qualify for Second Injury Fund benefits because section 85.64(1) does not list the shoulder as an enumerated body part which may trigger Fund liability.

Impact of Termination of Employment and Industrial Disability Entitlement

The question of whether a claimant was entitled to industrial disability pursuant to 85.34(2)(v) due to her voluntary choice to transfer to a lower-paying position with Defendant/Employer was addressed in Kish v. University of Dubuque, File No.: 5066482 (Arb. Dec. July 29, 2021), affirmed on appeal, (App. Dec. Nov. 30, 2021). In Kish, claimant injured her back on May 30, 2018, while working as a lead custodian for the University (making $1.00 more per hour than regular custodians). She was released to return to work without restrictions and placed at MMI on June 19, 2019 and returned to work that same day as a lead custodian, at the same rate of pay and working the same number of hours. Claimant did not think she would be able to handle the lead custodian position when students returned to campus, and so she bid into a regular custodial position in August 2019, which reduced her pay by $1.00/hour.

The deputy held that Claimant made a voluntary choice to transfer, that the University did not request/require Claimant to change positions, and no physician had imposed permanent restrictions that would prevent her from continuing to work as a lead custodian. In light of the above, the Deputy found that the employer had offered Claimant ongoing work in a position that paid the same or more than she earned on the date of injury, limiting her recovery to the functional impairment pursuant to 85.34(2)(v). Kish is currently being appealed.

COVID-19 Death Ruled Non-Compensable

The agency addressed employer responsibility for an alleged work related COVID-19 death in Bolton v. Marcus Lumber, File No. 20015335.01, 2022 WL 1787479 (Arb. Dec. Mar. 24, 2022). To establish a compensable injury in Iowa, an employee must establish that the injury has a causal connection to the employment. The question of medical causation is “essentially within the domain of expert testimony.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839. 844-45 (Iowa 2011). Here, both parties presented expert witnesses to opine when Bolton may have contracted COVID-19, which ultimately led to his death. The employer provided evidence they followed all CDC guidelines and precautions for their employees, including requiring masks, social distancing, temperature checks, and negative COVID tests for employees before return to work after exhibiting symptoms. In this case, multiple employees had tested positive for COVID in the weeks leading up to Bolton’s diagnosis, however, the employer was not found liable. The Claimant did not meet the burden of proof where evidence was introduced indicating Claimant was not following the CDC guidelines in his personal life where he was gathering with family outside of his household, going out to lunch, and working for the fire department all while not wearing a mask.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorneys Alison Stewart and Jordan Gehlhaar

The Iowa Division of Workers’ Compensation recently released a decision assessing how settlement with the Second Injury Fund (SIF) affects an injured employee’s claim against their employer and its insurance carrier in Milbrandt v. R.R. Donnelly.

The SIF compensates injured employees who have proven a previous qualifying injury, a second compensable work injury, and permanent disability resulting from each. In effect, the current employer is responsible only for the portion of disability attributable to the injury occurring during their employ; SIF assumes responsibility for the remainder of total disability.

Claimant Nancy Milbrandt filed a petition alleging a work related cumulative injury to her left and right arms and hands as of November 26, 2019. In addition to the employer and insurance carrier, the petition stated a claim against the Second Injury Fund of Iowa. Prior to the arbitration hearing, the claimant entered into a compromise settlement agreement with SIF, which was approved by the Workers’ Compensation Commissioner.

The subject of the settlement included the November 26, 2019 injury occurring with the defendant employer. As such, the employer argued that once the settlement was approved, the Commissioner lacked jurisdiction over the case. Claimant argued that the settlement was a contract binding only the parties—her and the SIF—and the case against her employer should still proceed to hearing.

The Deputy Commissioner focused on the language of Iowa Code Section 85.35(9): “an approved compromise settlement shall constitute a final bar to any further rights arising under this chapter . . . regarding the subject matter of the compromise . . . .” The Iowa Supreme Court had previously interpreted this language broadly. Accordingly, a previous decision by the Commissioner found that as a matter of law, a settlement with the SIF operated to deprive the agency of jurisdiction, meaning a claimant cannot re-litigate the same injury against the employer that was the subject of the settlement. This is true even when the parties include language attempting to preserve further claims against other defendants.

Since the date of injury against the employer was part of the subject matter of the approved settlement with the SIF, Claimant Milbrandt had no further rights under the workers’ compensation code. Employers and their insurance carriers should be aware their liability may be affected if the SIF is a co-defendant. However, this holding may affect claimants’ willingness to enter into settlement negotiations.

Peddicord Wharton will continue to monitor case law on this issue.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Attorney Alison Stewart has been appointed to serve a second term on the Workers’ Compensation Section Council of the Iowa State Bar Association (ISBA) for 2022-2023. The ISBA is a vibrant organization due in large part to its volunteers. This will be Alison’s second term of service on the Council.

The purpose of this ISBA Section is to provide an organization in which members who have an interest in workers' compensation can meet for discussion and exchange of ideas; to provide an opportunity for discussion and exchange of ideas leading to improvement of the abilities of its members to practice in this field; and to assist the Worker's Compensation Commissioner in establishing rules and procedures for the more certain and expeditious disposition of matters coming before the Commissioner.

Legal Update by Attorney Alison Stewart and Law Clerk Tori Biggerstaff

Governor Reynolds signed a bill relating to injured workers’ entitlement to prosthetic device needs as a result of work-related injuries. (H.F.2411). An Act Relating to Replacements of Permanent Prosthetic Devices for Injured Workers, was signed into law on June 15, 2022. This bill changes the prosthetic allotment for workers injured on the job. Prior to this bill, injured workers were allowed one permanent prosthetic over their lifetime. When a worker is injured in a compensable injury while employed, the employer is now responsible for replacement prosthetics. Now, injured workers are eligible for a replacement permanent prosthetic if theirs is damaged or made unusable by circumstance arising out of and in the course of employment. They are eligible for this replacement whether or not the artificial member was previously provided by the employer. The replacement of the prosthetic device is now included in an employer’s obligation to provide reasonable medical care for employees injured at work as required by Iowa Code section 85.27.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorneys Alison Stewart and Tyler Smith, and Law Clerk Jordan Gehlhaar

Significant debate has stemmed from the legislature’s addition of the “shoulder” to Iowa Code Section 85.34(2). The Iowa Supreme Court settled this debate, in part, in their recent decisions, Chavez v. M.S. Technology and Deng v. Farmland Foods.

Prior to the 2017 amendment, shoulder injuries were considered a “whole person” or “body as a whole” injury, which result in industrial disability analysis. In contrast, for scheduled injuries, claimants receive a rating of their functional impairment to the body part; this is multiplied by the number of weeks provided by the legislature (400 weeks for the shoulder) to ascertain the number of weeks in which compensation is due. However, since the amendments, claimants have consistently argued industrial disability analysis is still appropriate for shoulder injuries despite the legislative change—focusing on the anatomy of the shoulder. This created an issue of statutory interpretation for the Agency and courts because the legislature did not define what constituted the “shoulder.”

Originally, the Agency determined “shoulder” was limited to the ball and socket joint, and did not include other connected anatomical parts. See Smidt v. JKB Restaurant, LC, File No. 5067766 (May 6, 2020, Arb. Dec.). Slowly, through various opinions, the definition of “shoulder” has expanded to include anatomical parts that are essential to the functioning of the shoulder joint, such as the rotator cuff muscles, labrum, and acromion.

Claimants Chavez and Deng both sustained tears of their rotator cuff muscles. The lower courts determined these were scheduled shoulder injuries, and both claimants appealed. Each claimant argued that the shoulder was limited to the ball and socket joint, whereas the employers and insurers argued a broader interpretation including “the tendons, ligaments, muscles, and articular surfaces connected to the glenohumeral joint.”

The Iowa Supreme Court first determined that “shoulder” is ambiguous, and that statutes should be interpreted reasonably in accordance with the legislature’s intent. Accordingly, the Court held:

These rules of statutory construction guide our conclusion that “shoulder” under section 85.34(2)(n) must be defined in the functional sense to include the glenohumeral joint as well as all of the muscles, tendons, and ligaments that are essential for the shoulder to function. . . Viewing section 85.34(2) in its entirety, it is apparent that the legislature did not intend to limit the definition of “shoulder” solely to the glenohumeral joint.

Under this functional analysis, the Court determined rotator cuff injuries are injuries to the shoulder because those muscles are essential for the shoulder to remain stable and work properly. The Court also looked to the language contained in medical records, the AMA Guides, and the treating physicians’ interpretation of the injury.

The Court recognized that more litigation “may be needed in the short term to develop the exact parameters of a scheduled shoulder injury.” Although these opinions provide some clarity, we can expect some additional litigation regarding specific parts in the shoulder area. Ultimately, absent legislative change, this determination will likely be based upon medical opinions regarding what is essential to the functioning of the shoulder.

Peddicord Wharton will continue to monitor this issue and provide updates.

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NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Marshall Tuttle and Law Clerk Jordan Gehlhaar

Iowa Uniform Jury Instruction 200.34 is titled “Previous Infirm Condition” and reads: 

If plaintiff had [a] condition making [them] more susceptible to injury than a person in normal health, then the defendant is responsible for all injuries and damages which are experienced by plaintiff that are caused by defendant's actions, even though the injuries claimed produce a greater injury than those which might have been experienced by a normal person under the same circumstances.

This is known as the “Eggshell Plaintiff Rule.” It originates from the idea that some victims have an “eggshell-thin” skull which results in abnormally excessive damage. The rule requires the person causing the injury to be liable for all damage, even though most people would not experience the same effects or require the same treatment. It applies in personal injury cases where the victim is more susceptible to injury because of their pre-existing condition. For example, if you’re involved in a minor car accident and the other driver has osteoporosis or heart disease, you are still liable for their substantial medical care even if a “healthier” person would not have required care. Therefore, this rule can make damages—such past and future medical expenses—much higher.

The Iowa Supreme Court recently discussed this instruction in Mengwasser v. Comito and Capital Fruit Company. The plaintiff in that case was rear-ended by a vehicle traveling approximately five miles per hour; the airbags did not deploy. She requested an eggshell plaintiff instruction under the theory that degenerative disk disease in her neck made her more susceptible to injury. The trial court denied this instruction and she appealed. The appellate court affirmed, finding the plaintiff had only proven she aggravated a previous injury, which is not the same as proof of a greater susceptibility to injury.

For this instruction to apply, the plaintiff must request it prior to trial. Additionally, there must be evidence showing that prior to the injury, a condition made them more vulnerable or prone to injury than a person of average health. This can be determined through medical records, discovery responses, and correspondence with opposing counsel.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

The Iowa Court of Appeals and the Workers’ Compensation Commissioner recently ruled on several important workers’ compensation topics:

Compensation when Shoulder Injury is Combined with another Scheduled Member Injury

Commissioner Joseph Cortese affirmed a finding that a shoulder injury combined with an injury to another scheduled member is to be compensated industrially under “catch all” provision 85.34(2)(v). In his analysis, the Commissioner provided: “while the legislature made the shoulder a scheduled member, it did not add the shoulder to the list of scheduled members that can be compensated on a 500-week basis when two are injured in a single accident.” Additionally, this conclusion was found to be consistent with prior agency determinations and avoidance absurd results. See Carmer v. Nordstrom, Inc., File No. 1656062.01 (Appeal Dec. Dec. 21, 2021).

Sufficiency of Employee Notice

The main issue in Taylor v. Iowa State University Extension was whether the employee gave sufficient 90 day notice as required by Iowa Code 85.23. The claimant was injured in a vehicle accident on the way back to the office from a work presentation. The following day, when the supervisor inquired about her whereabouts, the claimant replied via email that she had a “vehicle problem” and was out seeking medical attention. The Iowa Court of Appeals affirmed denial of benefits, finding the email insufficient notice, as it did not notify the employer that the accident was work-related.

Reasonable Delay in Obtaining Impairment Rating

The Iowa Court of Appeals held that when a claimant challenges the authorized physicians’ opinion that the claimant has reached maximum medical improvement (MMI), this affords the employer a reasonable basis to defer seeking an impairment rating. The employer was reasonable to assume that if the employee was challenging the MMI determination, they were also challenging the entitlement to permanent partial disability benefits. Under this reasoning, the employer has a basis to defer seeking an impairment rating without facing penalty benefits. See Cochran v. Quest Liner, Inc., 2022 WL 122358 (Iowa Ct. App. Jan. 12, 2022).

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2022 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

Happy Holidays from Peddicord Wharton!

We have a few recent updates concerning workers’ compensation matters:

• Commissioner Cortese filed the most recent supervisory order concerning COVID-19 impact on November 29, 2021. All in-person hearings are now suspended through April 29, 2022. Hearings are to be held in an online format, unless the parties are in agreeance and the Deputy, in their discretion, grants a timely joint motion for an in-person hearing.
  
  
• The Iowa Supreme Court recently interpreted their COVID-related supervisory orders in the context of a workers’ compensation case in Askvig v. Snap-On Logistics Company. The order provided that due to the pandemic, the statute of limitations “or similar deadline for commencing an action in district court” was tolled—in essence, parties could add an additional 76 days to their filing deadline. A Deputy Commissioner ruled Claimant Askvig did not sustain a shoulder injury, and the Commissioner did not act on her application for rehearing. As such, she had thirty days to file a petition for judicial review. See Iowa Code §§ 17A.19; 86.29. When Claimant’s counsel missed the deadline, he argued that the supervisory order applied, extending the deadline to file such applications for judicial review of Agency action. The Iowa Supreme Court rejected this argument on appeal. The Court reasoned that these are intended to be short appellate deadlines, so they are a continuation of an existing action, not “commencing an action.” Additionally, these deadlines are different because workers’ compensation is an administrative process entrusted to the executive branch, unlike litigation between private parties. Therefore, the Court’s extension did not “deny finality to the actions of [the Agency].”
  
  
• In Foster v. East Penn Manufacturing Company, the Iowa Court of Appeals ruled on penalty benefits for delay. The employer accepted Foster’s injury and paid for initial treatment and benefits. However, when the first surgery did not resolve the condition, the employer refused to authorize a second surgery or pay for temporary total disability (TTD) benefits. A Deputy Commissioner imposed penalty benefits and the district court affirmed. The employer appealed, arguing: (1) the delay was necessary to investigate; (2) there was a reasonable basis to delay; and (3) there was a good faith basis to dispute entitlement. The Court of Appeals likewise affirmed the penalty, finding that even if entitlement was “fairly debatable,” the employer “missed a step.” In addition to a reasonable basis for denial or delay, the statue requires an employer to “contemporaneously convey” the basis for the same. See Iowa Code § 86.13(4). The employer had sent an email to Claimant’s counsel requesting they hold off on filing a petition for alternate medical care, but did not notify the Claimant of their reasoning until months later. Further, there was no evidence in the record showing that the employer did in fact conduct a timely investigation during their delay.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

NOTICE TO THE PUBLIC

The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. This disclosure is required by rule of the Supreme Court of Iowa.

Peddicord Wharton Legal Updates are intended to provide information on current developments in legislation impacting our clients. Readers should not rely solely upon this information as legal advice. Peddicord Wharton attorneys would be pleased to answer any questions you may have about this update. ©2021 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorneys Alison Stewart and Chris Spencer, and Law Clerk Jordan Gehlhaar

Use of medicinal cannabis is legal in narrow cases in Iowa. The Medical Cannabidiol Act was first passed in 2014 and has historically been very restrictive and slow to expand. Today’s Act provides that individuals determined by a health care practitioner to have a qualifying “debilitating medical condition” may legally obtain cannabis from a licensed dispensary. Qualifying conditions include cancer (producing certain symptoms), multiple sclerosis, seizures, AIDS, PTSD, chronic pain, or any terminal illness (producing certain symptoms). The Cannabidiol Act provides that it does not give rise to any employment law claims, which is consistent with Iowa law allowing employers to set conditions of employment. A separate provision states that workers’ compensation carriers are not required by the Act to reimburse for costs associated with medicinal marijuana use. See Iowa Code § 124E (2020).

Due to its medical relation, workers’ compensation claimants or providers may seek authorization for use of cannabis as a treatment option. This is likely to come as a petition for alternate medical care by the claimant. In the most recent Iowa case, an Iowa treating provider recommended referral to a provider who could prescribe medicinal cannabis, due to the claimant’s history of intolerance to oral medication. The employer and insurance carrier refused to authorize the referral and the claimant filed an alternate care petition under Iowa Code 85.27. The Deputy Commissioner found the refusal to be reasonable and therefore denied the alternate care.

The Deputy reasoned that:

(1) the Iowa Board of Pharmacy considered marijuana a schedule I drug with "no medicinal use,” and
(2) since marijuana and cannabis are illegal under federal law, the Defendants would put themselves at risk by paying for the treatment.

It was determined inappropriate for the Agency to recognize medicinal value prior to the Iowa Board of Pharmacy or Congress. See Presson v. Freiburger Concrete & Topsoil, Inc., File No. 5049542 (2018). This reasoning still applies today, meaning employers and insurance carriers have a reasonable basis and case law support for denying such care.

Currently, marijuana is a controlled substance in Iowa, and the possession of any amount is a misdemeanor offense in the state. Under Iowa Code Section 85.16, compensation is not allowed for work injuries caused by intoxication, if the intoxication was a substantial factor in causing the injury. This is known as the “intoxication defense” claimed by employers. It is presumed that the employee was intoxicated at the time of injury, and that the intoxication was a substantial factor in causing the injury if the employer shows a positive drug test at the time of or immediately following the injury. Therefore, if marijuana or cannabis is shown to be present in an employee’s system at or immediately after a work injury, the employee is not entitled to workers’ compensation benefits unless they overcome the presumption, a heavy burden. The closer a test is to the time of the injury, the more likely it is to be admissible. Additionally, toxicologists or similar expert witnesses are often required in these types of cases.

These sources lead to several conclusions:

(1) employers are free to adopt their own drug policies, even against legal use of medicinal cannabis;
(2) compensation may be denied for injuries caused substantially by intoxication; and
(3) Iowa law does not require workers’ compensation coverage of medicinal marijuana or cannabis.

Peddicord Wharton will continue to monitor statutory and case law on this topic.

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