NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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:
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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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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.
By Attorneys AlisonStewart and Nick Cooling, and Law Clerk Jordan Gehlhaar
Recent arbitration decision, Rife v. P.M.Lattner Manufacturing Company, reviewed apportionment of disability and an employer’s right to a credit. The issue in this case was whether the employer was entitled to a credit for 29.6 percent industrial disability it paid as settlement of a prior shoulder injury.
Claimant Rife worked as a welder at P.M. Manufacturing for most of his career. In 2009 he experienced a work-related right shoulder injury resulting in surgery and permanent functional impairment. Rife and P.M. entered into a full commutation settlement in 2010, which stipulated to a permanent disability of 29.6 percent to the body as a whole. At this time, the shoulder was not a scheduled member, so all shoulder injuries were to the body as a whole. Three different doctors provided impairment ratings, but it was not clear which rating was the basis of the settlement. Rife returned to work for P.M. after this injury.
Claimant Rife had no issues with his right shoulder until experiencing another work-related injury in 2018. He underwent another surgery and was diagnosed with adhesive capsulitis, partial thickness tears of the rotator cuff and labrum, and impingement. The claimant obtained an independent medical examination (IME) that assessed a 19 percent right upper extremity impairment, or 11 percent of the whole person. Importantly, the doctor did not distinguish between the 2009 and 2018 injuries when assessing the claimant’s impairment.
The employer sought apportionment of disability under Iowa Code 85.34(7) for successive disabilities, which provides, in part:
“An employer is not liable for compensating an employee’s preexisting disability that arose out of and in the course of employment from a prior injury with the employer, to the extent that the employee’s preexisting disability has already been compensated under [workers’ compensation law].”
The Deputy found the employer was not entitled to a credit for the loss assigned to the first injury “under the version of Iowa Code section 85.34(7) that is now in effect.” Previous versions of this statute explained how an offset was to be calculated. But in this version, the legislature provided no mechanism for apportioning the loss between a present injury and prior injury.
Additionally, it was reasoned: (1) the settlement agreement for the first injury did not specify what impairment rating the parties adopted, (2) the employer did not obtain an impairment rating for the second injury or an expert opinion apportioning the two injuries, and (3) a claimant with a prior unscheduled shoulder injury and a subsequent scheduled shoulder injury would likely not receive any additional compensation.
The opinion suggests that an employer is more likely to receive a credit where it is clear what impairment rating was used for both the first and second injuries, the second rating doctor differentiates the percentages for each injury, and the employer provides an expert on the issue. However, based on the Agency’s interpretation of the statute, apportionment credit is not likely absent legislative amendment.
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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.
By Attorneys Alison Stewart and Nick Cooling and Law Clerk Jordan Gehlhaar
The issue in Masterbrand Cabinets, Inc. v. Simons was whether a tear of the claimant’s right quadriceps tendon was a scheduled injury of the leg or a whole body injury. The employer argued this was scheduled under 85.34 (2)(p) because it only involved the knee and thigh, and the claimant never reported hip pain to his surgeon. The claimant argued the injury was to the body as a whole due to loss of hip flexion, range of motion, and strength. The Court of Appeals affirmed the lower court’s industrial award, finding that although this was a scheduled injury to the leg, the effects or disability extended beyond that member, resulting in impairment to the body as a whole.
If a timely appeal has not been filed, any party in interest may file a decision of the Commissioner with the district court for entry of judgment. This statutory provision was at issue in Reinsbach v. Great Lakes Cooperative. In 2013, after a review-reopening hearing, the Commissioner ordered the employer to pay over $250,000 for medical expenses and transportation; the order also provided defendants were to provide future care and treatment of the back condition as recommended by claimant’s doctor. The employer paid all past expenses. In 2019, the claimant filed with the district court a request for entry of judgment under Iowa Code 86.42 to enforce the 2013 Commissioner ruling. The proposed judgment stated the employer and insurance carrier shall provide “all future care and treatment modalities for his back condition recommended by [his doctor].” The employer challenged entry of judgment based on the monetary portion being satisfied, and alternatively proposed the following language: “provide all causally related, reasonable, and necessary care for Petitioner’s 04/15/2005 work-related back condition.” Judgment was entered resembling the employer’s proposed language and the employee appealed. The Court of Appeals upheld the judgment, finding that removal of “reasonable and necessary” would modify the Commissioner’s ruling – which is beyond the power of the court.
Substantial evidence must support a work injury for compensability. The claimant in Tew v. Sparboe Farms, Inc. challenged the Commissioner’s finding that there was not substantial evidence to support a cumulative work injury. Evidence revealed that Claimant Tew had occasional flare ups from a preexisting back condition, had reported several non-employment related causes of pain to his supervisor, asked about disability leave stating he did not qualify for workers’ compensation, and did not mention a work-related injury to treating physicians until after he filed his petition. When there are contradicting accounts of an event, the Commissioner’s decision is based upon weight of the evidence and credibility of witnesses. The supervisor was found more credible than the claimant, who failed to meet his burden of proving a work-related injury. Therefore, denial of benefits was affirmed.
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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, Nick Cooling, and Law Clerk Jordan Gehlhaar
In August of 2018, Claimant Carmer sustained an injury to her right shoulder while working for Nordstrom, Inc. The employer accepted liability for the right shoulder injury. Carmer underwent a right shoulder surgery and reached maximum medical improvement (MMI) on May 8, 2019 at which time she was released without restriction. Subsequently, her right shoulder condition worsened and she reportedly used her left upper extremity more due to “favoring” of her right. At this time she was no longer working due to unrelated mental conditions.
Carmer reported her worsening symptoms to her previous employer and requested medical care. The employer sent Carmer for an independent medical examination (IME) with Dr. Milani. He found her left shoulder pain to have an unknown etiology, but likely from an underlying degenerative change or rheumatologic disorder. She subsequently underwent a second IME with Dr. Segal. He diagnosed the Claimant with left shoulder arthropathy “caused in part by overuse and compensation due to the right shoulder injury.” He recommended further evaluation and treatment of both shoulders.
Nordstrom denied that Carmer sustained a compensable injury to the left shoulder, contending any symptoms were related to underlying arthritis or joint problems. In the arbitration decision, the Deputy found Dr. Segal’s causation opinion more persuasive than Dr. Milani’s. As such, it was found that the claimant sustained both a right shoulder injury and a sequela to the left shoulder. This presented a novel issue: What statute governs compensation for a bilateral shoulder injury?
The employer asserted the injury was to be compensated under the schedule and therefore functional disability analysis; the claimant argued the injuries should be compensated industrially under the “catch all” provision. This was a matter of statutory interpretation. The legislature has set compensation for the “loss of a shoulder” and for the loss of multiple arms, hands, feet, legs, or eyes. See Iowa Code §§ 85.34 (2)(n), (t) (2017). However, it neglected to specifically address compensation for the loss of both shoulders. Therefore, the Deputy concluded that the bilateral shoulder injury had to be compensated industrially under 85.34 (2)(v) because it was a case other than those described in subsections a through t.
A similar issue was addressed in Anderson v. Bridgestone Americas Inc. The Claimant was found to have a right arm injury and a right shoulder injury. The issue again was what subsection of 85.34, and therefore what disability analysis, dictates compensation. The Deputy considered several possibilities:
See Iowa Code §§ 85.34 (m)–(n), (t), (v) (2017).
The Deputy found that the first three sections only apply in cases where the employee sustains a loss of the specific scheduled body part or parts described. Since the claimant had suffered a loss of both the right arm and the right shoulder—a combination of injuries not detailed in the statute—the compensation then lands in the “catch all” provision calling for industrial disability analysis.
Absent statutory amendment, an injury to both shoulders, a shoulder and another body part, or two body parts not specifically defined together will likely result in industrial disability analysis rather than functional.
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. ©2021 Peddicord Wharton. All Rights Reserved.
Legal Update by Attorney Nick Cooling, Alison Stewart, and Law Clerk Jordan Gehlhaar
Iowa Code section 85.39 provides, in part, that: (1) an injured employee shall submit for a medical examination at no cost to them when directed by their employer, and (2) if a permanent disability determination is made by the employer’s physician and the employee believes it is too low, the employee may seek reimbursement of a second examination with a physician of their choice by application to the Commissioner. Iowa Code § 85.39 (2016). The Iowa Court of Appeals recently interpreted the second part of this statute in Kern v. Fenchel, Doster & Buck, P.L.C.
Claimant Kern reported a diagnosis of bilateral carpal tunnel, left thumb trigger finger, and left carpometacarpal joint arthritis to her employer. The employer sent her to orthopedic surgeon Dr. Benjamin Paulson, who determined the injuries were not work related. Based on Dr. Paulson’s opinion, the employer denied workers’ compensation liability. Subsequently, Claimant Kern chose to undergo a separate independent medical examination (IME) with occupational specialist Dr. Sunil Bansal. Doctor Bansal did find the injuries to be work related, and calculated an eight percent whole person permanent impairment.
Claimant Kern requested reimbursement of the IME fee from Dr. Bansal under section 85.39. The Deputy found she did not establish the statutory pre-requisites to entitle her to a second IME at the employer’s expense because Dr. Bansal’s IME “was not responsive to a disputed impairment rating and was outside the scope of section 85.39.” The Commissioner and district court affirmed. This appeal followed.
The Court of Appeals considered an issue of first impression in Iowa: Is denial of causation equivalent to a zero percent impairment rating? Similarly, would a no-causation opinion from an employer’s physician allow reimbursement of a second IME secured by a claimant? The court answered yes to both, and instructed the Commissioner to reconsider the claimant’s application for reimbursement of IME fees. In the court’s view, no specific language was required and Dr. Paulson’s no-causation determination was in effect a finding of no compensable permanent disability. When Claimant Kern disagreed and thought this was too low, she followed the proper statutory procedure of securing her own IME, applying to the Commissioner for reimbursement, and notifying the employer.
Penalties were sought on the basis that the employer maliciously and intentionally chose Dr. Paulson with the awareness of his opinion that carpal tunnel is not a work-related condition. However, the court found it was reasonable for the employer and insurance carrier to rely on Dr. Paulson’s opinion in denying the claim. An employer or insurance carrier may choose which physician will evaluate the claimant; however, even if the physician finds no causation, the employer or insurance carrier may be required to pay for a second evaluation if the claimant disputes the first and follows proper procedure.
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. ©2021 Peddicord Wharton. All Rights Reserved.
By Attorneys Alison Stewart, Nick Cooling and Law Clerk Jordan Gehlhaar
The Iowa Court of Appeals recently ruled on several workers’ compensation matters.
In Pesicka v. Snap-On Logistics Company, the Claimant and Employer reached a settlement agreement following a foot injury. The parties agreed there was a thirteen percent permanent partial disability (PPD) to the right leg. After settlement, the Claimant underwent eight additional surgeries related to the work injury, including amputation of all toes on his right foot. Claimant Pesicka filed a petition for review-reopening, seeking a benefit increase and asserting the condition of his right leg had worsened. The Claimant also asserted that compensation should be based on loss of each scheduled toe (forty weeks for loss of the great toe, plus fifteen weeks for each additional toe), rather than the leg. See Iowa Code § 85.34(2) (2017). However, the court held the Claimant was bound by his prior agreement within the settlement and hearing report that the injury was to the leg. He was precluded from a separate award based upon the toes, because it would prejudice the employer who did not have adequate notice to dispute the newly asserted impairment. Additionally, injuries to the toe, foot, and knee can be considered or included in the assessment of permanency to the leg. In a review-reopening proceeding, the “situs” or location of the injury will be that which was the subject of the underlying action or defined in the approved settlement.
The Court of Appeals interpreted Iowa Code section 85.21 concerning liability disputes between multiple carriers or employers inAmerican Home Assurance v. Liberty Mutual Fire Insurance Company. The issue in this case was whether there is an indefinite time for which an insurer can claim reimbursement for benefits paid. The Commissioner had determined a consent order must be obtained prior to the arbitration hearing, whereas the district court found the plain language and purpose of the statute provided no time constraint. The Court of Appeals found the Commissioner’s interpretation was not erroneous and contested cases against another insurance carrier or employer must be commenced within three years from the last benefit payment. In this case, more than five years had passed before the insurance company realized it did not provide coverage on the date of injury. The reimbursement action would have been precluded had the Claimant not filed a review-reopening petition. It is best to review dates of coverage and determine liability for each date of injury or loss as soon as possible, so all parties have early notice of reimbursement claims and an opportunity to address liability.
Peddicord Wharton attorneys Tim Wegman and Joe Barron won on appeal in Smith v. TPI Iowa, LLC. The Claimant asserted a cumulative injury to the rotator cuff, which the employer denied. The Defendant employer produced opinions from two credible doctors that the shoulder injury was not caused by employment. The Claimant did not meet her burden of establishing the injury arose out of employment (causation). One opinion was produced by the Claimant, which opined that impairment resulted from a shoulder injury, but not that a shoulder injury arose from employment. “The critical component that [was] missed [was] an opinion that the Claimant’s alleged repetitive activities caused the shoulder injury.”
The court affirmed denial of alternate medical care in Dotts v. City of Des Moines. The employer had the authority to choose the medical care, given the injury was accepted as compensable. In considering the petition for alternate care, the Agency considered the Claimant’s testimony, communications between counsel, medical records, and statements made at the hearing. The Claimant did not meet the burden of proving the authorized care was unreasonable and alternate care was necessary. A back injury was found non-compensable inCufurovic v. Tyson Foods, Inc. Although differing expert opinions were provided regarding the work-related nature of the injury, the opinions that the back injury was personal were found to be more credible because they were factually accurate as to work history and duties. Commissioners’ and credibility determinations are given considerable weight on appeal.
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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.