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Iowa

PEDDICORD WHARTON

  515-243-2132

Legal Update by Attorney Nick Cooling and Law Clerk Jordan Gehlhaar

Numerous decisions have interpreted the definition of “shoulder” since the Iowa legislature added it as a scheduled member under Iowa Code 85.34(n) in 2017. The most recent decision came on June 17, 2021 by Deputy Commissioner James Christenson in Bolinger v. Trillium Healthcare Group, LLC. Thus far, decisions have developed the definition of shoulder to include the rotator cuff muscles (Deng), labrum, and acromion (Chavez). Deputy Christenson distinguished this case from others, and concluded this permanent partial disability resulted from an injury to the body as a whole.

Claimant Bolinger had a pre-existing injury to her left shoulder resulting in bursitis with capsulitis. While employed by the Defendant, the Claimant fell on her left side and dislocated her shoulder. She underwent a shoulder reduction procedure, but continued to have pain and a limited range of motion. An MRI revealed subluxation of the glenohumeral joint, full thickness tears of the supraspinatus and subscapularis tendons, a partial tear of the infraspinatus tendon, and a torn biceps tendon.

Her treating physician did not believe the shoulder was fixable, and recommended a reverse shoulder replacement. This procedure is unique in that a prosthetic ball is pinned into the scapula (shoulder blade) and connects with a prosthetic joint that is placed into the arm bone. In effect, the ball and socket are reversed from the natural shoulder, and the surrounding muscles are utilized differently. Following surgery, the Claimant had an independent medical evaluation (IME) with Dr. Stoken, who found a 24 percent permanent impairment to the upper extremity, which converts to a 14 percent permanent impairment to the body as a whole.

Dr. Stoken opined that a reverse total shoulder arthroplasty extends proximally beyond the shoulder joint due to involvement of periscapular muscles and tendons, such as the rhomboids and trapezius. This procedure and post-operative physical therapy do not include the rotator cuff muscles, but rather the muscles of the upper back, which are proximal to the shoulder joint. For this reason, the Claimant’s shoulder injury was found to extend into the body as a whole.

Generally, compensation for unscheduled, body as a whole injuries is “paid during the number of weeks in relation to five hundred weeks as the reduction of the employee’s earning capacity.” Iowa Code § 85.34(2)(v). However, if an employee returns to work or is offered work for the same or greater earnings as the time of injury, then the employee will be compensated based on their functional impairment rather than their reduction in earning capacity. Claimant Bolinger returned to work with the Defendant at a higher wage. Therefore, she was statutorily limited to functional impairment of her injury, or 96 weeks of permanent partial disability benefits (400 weeks x 24 percent).

When an employee sustains an injury involving the shoulder region, medical records should be thoroughly reviewed to determine whether the injury involves bones, muscles, and tendons that are on the proximal side or distal side of the glenohumeral (shoulder) joint. Shoulder injuries are more likely to be scheduled when they are on the distal side of the joint, or involve the muscles of the rotator cuff rather than the muscles of the back.

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 Attorneys Nick Cooling, Alison Stewart, and Law Clerk Jordan Gehlhaar

On April 29, 2021, an Iowa District Court affirmed a final decision of the Iowa Workers’ Compensation Commission relating to interpretation of the shoulder under amended section 85.34. You can view our briefing of the Agency appeal decisionhere. The court affirmed that “shoulder” as a scheduled member includes the “complex and intertwined structure of the shoulder and not just the joint.”

Following an injury to her shoulder, Claimant Chavez was diagnosed with a full thickness rotator cuff tear, severe AC arthrosis, and tendonitis and tearing of the biceps tendon. She underwent a right shoulder arthroscopy with repair of the rotator cuff tendon (including supraspinatus, infraspinatus, and subscapularis tendons), debridement of the labrum, biceps tendon, and subacromial space, a biceps tenotomy, and subacromial decompression.

The primary dispute in the case was whether Claimant Chavez’s injury resulted in an unscheduled industrial disability or a scheduled member injury to her shoulder, in light of the Iowa Legislature’s 2017 addition of “shoulder” as a scheduled member under Iowa Code section 85.34(2)(n). The Iowa Workers’ Compensation Commissioner concluded this was a shoulder injury and therefore limited recovery based on her 10% upper extremity impairment rating. The Commissioner incorporated analysis from theDeng v. Farmland Foods ruling on the intricacies of the shoulder and legislative intent.

Claimant Chavez sought judicial review, asserting the injury should be unscheduled, or alternatively a combination of two injuries resulting in a body as a whole injury. On review, the district court agreed that “shoulder” was ambiguous in that it could mean just the shoulder joint, or it could include the tendons and muscles connected to the joint. Utilizing dictionary definitions and legislative history, the court concluded the ordinary interpretation of shoulder is the “complex structure that includes the joint, tendons, and muscles.” Therefore, it was not error for the Commissioner to find Chavez’s injury to her rotator cuff, labrum, and other tendons and muscles established a scheduled member injury under section 85.34(2)(n). Additionally, the court affirmed denial of industrial disability based on injury to two scheduled members: the shoulder and the arm. Claimant failed to meet her burden to establish an arm injury.

Consistent with prior decisions on this issue, the court noted that the exact parameters of a scheduled shoulder injury under section 85.34(2)(n) will need further exploration and development. 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.

Attorney Adam Bates obtained a complete defense verdict for his client in front of the Iowa Workers’ Compensation Commission. Claimant had alleged an injury to his low back and claimed entitlement to significant industrial disability as a result. The injury was denied by Mr. Bates’ client as non-work related and a failure to timely report the injury. Mr. Bates successfully argued to the Commission that Claimant’s injury was not work-related based upon medical evidence, witness testimony, and Claimant’s failure to timely report his injury as work-related.

The Deputy Workers’ Compensation Commissioner agreed with Attorney Bates’ arguments, dismissing Claimant’s case in its entirety. A copy of the decision can be found here.


If you'd like to sign up for our e-newsletter, please click here.

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

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

The Iowa Court of Appeals recently addressed workers’ compensation benefits, causation, and penalties inRegional Care Hospital Partners Inc. v. Marrs. Claimant Marrs injured her back and neck while working as a nurse and was diagnosed with thoracic and high-lumbar sprains. Four months following the accident she was released to return to light duty work. The employer did not offer light duty work and stopped payment of medical expenses and temporary benefits. The Claimant continued to have pain, which was attributed to a degenerative disc condition of the cervical spine. A cervical fusion procedure was recommended.

Three doctors provided opinions on the work relatedness of Claimant Marrs’s condition. Doctor Abernathey concluded she reached MMI ( Maximum Medical Improvement) six months following the accident and the surgery was not work related. Doctor Kaspar, who had treated Claimant through her private insurance, determined the work incident either caused the injury or materially aggravated her pre-exiting degenerative condition. Doctor Harbach, who completed an IME (Independent Medical Examination), opined Claimant had not reached MMI and would have a permanent impairment as a result of the work injury.

Following a hearing, a deputy commissioner awarded healing period benefits and ordered the employer to reimburse medical expenses and pay a penalty of $50,000. On appeal, the commissioner affirmed healing period benefits but reduced the penalty to $39,000. The district court affirmed. Regional challenged causation, the weekly benefit rate, and the assessment of penalty benefits.

The Court of Appeals held that causation was properly attributed to the work injury. The commissioner properly concluded that Dr. Abernathy’s opinion was unpersuasive because it provided “no explanation whatsoever.” Further, the commissioner properly excluded a two-week outlier payment period from the benefit calculation in which the Claimant worked 54.75 hours as opposed to the usual 62.5. Under Iowa Code § 85.36(6) this was the “closest previous week with earnings that fairly represent[ed] the employee’s customary earnings.”

Penalty benefits were also affirmed on appeal. Under Iowa Code § 86.134(a), the commissioner may award benefits up to 50 percent of the amount denied, delayed, or terminated without reason, probable cause, or excuse. Regional care ceased payment when claimant was released for light duty work, relying on Dr. Abernathey’s opinion and claiming she did not return to work for unrelated reasons. However, the opinion was rendered months after benefits ceased and there was no evidence Regional communicated its denial to Marrs. The court found $39,000 to be an appropriate penalty, given roughly $80,000 in benefits were unpaid at the time of the hearing.

If you'd like to sign up for our e-newsletter, please click here.

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

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 StewartNick Cooling, and Law Clerk Jordan Gehlhaar


In Deng v. Farmland Foods, it was determined that “shoulder” under § 85.34(2)(n) is not limited to the glenohumeral joint, and at least includes the muscles that make up the rotator cuff. Ourbriefing of Deng suggested there would be increased litigation surrounding this issue to further define what constitutes the shoulder. One of the first appeal decisions following the shoulder expansion came inRosa Chavez v. MS Technology, LLC.

Claimant Chavez sustained tears of several rotator cuff muscles (supraspinatus, infraspinatus, and subscapularis), as well as tears to her biceps tendon and labrum. She had a surgical repair of the rotator cuff including extensive debridement, tenotomy, and decompression. Claimant argued her biceps injury should be compensated as an arm injury under § 85.34(2)(m), rather than a whole body injury under § 85.34(2)(v).

Claimant’s expert, Sunil Bansal, M.D., opined the rotator cuff tendons were proximal to the glenohumeral joint, and did not address the labrum. The Commissioner found the rotator cuff and the labrum are both close in proximity to the glenohumeral joint and crucial to its proper functioning. Therefore, a labral tear should be compensated as a shoulder under section 85.34(n).

The claimant also argued the subacromial decompression should be compensated as an unscheduled injury because it involved “changes to the body as a whole.” Based on the record’s description of the procedure, and common definitions of acromion, the Commissioner also found the acromion to be closely connected with the glenohumeral joint in location and function – it forms part of the socket and protects the glenoid cavity. 

Alternatively, claimant argued her biceps injury was an injury to the arm, and the combination of an arm and shoulder injury should allow compensation under the “catch all” provision of 85.34(2)(v). The Commissioner declined to address this argument, finding claimant failed to prove an injury to the arm since the impairment ratings were based solely on range of motion deficits in the shoulder.

All permanent disability was found compensable as a shoulder under § 85.34(n). Dr. Bansal’s impairment rating was found to be more convincing and accurate than Dr. Peterson’s rating. Claimant Chavez was compensated PPD benefits according to the ten percent upper extremity rating based on 400 weeks.

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


If you'd like to sign up for our e-newsletter, please click here.

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

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. ©2020 Peddicord Wharton. All Rights Reserved.

By Attorneys Alison Stewart, Nick Cooling, and Law Clerk Jordan Gehlhaar

The Iowa Supreme Court recently released an opinion in Terry v. Dorothy, ruling on a gross negligence claim against a co-employee. In October of 2015, Brian Terry, an employee of Lutheran Services in Iowa, sustained serious injuries after he was attacked by a client. Brian filed a workers’ compensation claim, which was resolved by a final compromise settlement pursuant to Iowa Code section 85.35(3). The settlement documents consisted of a “Compromise Settlement,” and “Additional Terms of Settlement.”

The Compromise Settlement contained release language in which Claimant Terry discharged the employer and insurance carrier from all liability pertaining to the accident under workers’ compensation law. The Additional Terms provided the settlement was a “final discharge of all claims and demands that may exist against [LSI and their insurance carrier] and any of theiremployees by reason of . . . employment.” (emphasis added).

In October of 2017, Brian Terry and his wife brought claims in the district court against Meghan Dorothy, Brian’s supervisor at the time of the injury. The petition alleged gross negligence when the supervisor put Terry in a one-on-one situation with a likelihood of assault. Additionally, Terry’s wife brought a loss of consortium claim. Dorothy moved for summary judgment relying in part on the release language in the settlement between Terry and LSI. The district court granted the supervisor’s motion for summary judgment reasoning that Terry lost further rights to pursue damages under Iowa Code section 85.20 (rights exclusive) and 85.35(9) (settlement as a final bar).

The Terry’s appealed and the majority in the Court of Appeals reversed. It was found that the statutory settlement before the Workers’ Compensation Commissioner only released statutory claims, not common law claims such as gross negligence. The majority also found that contractual theories were not properly before the court.

The Iowa Supreme Court vacated the Court of Appeals and affirmed the district court’s grant of summary judgment. The Supreme Court agreed that gross negligence was a common law claim and not within the scope of workers’ compensation. Statutory immunity for claims under workers’ compensation previously applied only to employers, not co-employees. In 1974, the statute was amended extinguishing common law claims against co-employees - except those founded in gross negligence.

Summary judgment was granted on contract grounds. Since a release is a contract, basic principles of contract law apply. The Compromise Settlement is limited to release of workers’ compensation claims and was therefore not enough to provide a basis for summary judgment of the common law claims. However, the “Additional Terms of Settlement,” containing broad language releasing all employees from any and all liability, was sufficient to distinguish the gross negligence claim.

Absent legislative amendment, gross negligence claims must be specifically bargained for and enumerated in a settlement release to bar further action against co-employees arising from a work injury.

Peddicord Wharton will continue to monitor this issue. 


If you'd like to sign up for our e-newsletter, please click here.

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

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. ©2020 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

A recent Commissioner Appeal Decision in Deng v. Farmland Foods, Inc., Workers’ Compensation Commissioner Joseph Cortese II determined that the Iowa Legislature intended “shoulder” in section 85.34(2)(n) to encompass more than just the glenohumeral joint. It was found that the rotator cuff should be classified as a scheduled member injury of the shoulder.

Claimant Deng sustained injuries to her infraspinatus muscle and labrum. The parties agreed that the glenohumeral joint – or the “ball and socket” – falls within the parameters of the “shoulder” under 85.34(2)(n). The labrum would be compensated under this provision since it is located in the joint space. The issue, then, was whether the infraspinatus, one of four muscles of the rotator cuff, should be classified as an injury to the shoulder or body as a whole.

In interpreting legislative intent, the Commissioner looked to debates in the House and Senate files as well as the study bills preceding the files. Originally, the proposal was to make the shoulder joint and everything on the “arm side” of the joint compensable as an arm under § 85.34(2)(m). However, the changes to subsection ‘m’ were stricken and the legislature instead created an additional subsection adding “shoulder” to the list of scheduled members. The Commissioner found this reflective of the legislature’s intent for 85.34(2)(m) to encompass more than just the glenohumeral joint.

The Commissioner also considered that the legislature was aware of the courts’ prior holdings and the adopted rule that the proximal point of a joint was used to classify an injury. For example, the wrist is considered an arm injury, not a hand injury. Unlike the cases in which this rule was applied, the shoulder was specifically classified as a scheduled member.

In the former cases, it may have seemed simple that a leg clearly did not include a hip or an arm clearly did not include a shoulder as they were clearly distinct. However, in this case, the Commissioner emphasized how the shoulder is unique in that “the glenohumeral joint and its surrounding muscles, tendons, bones and surfaces are extremely intricate and intertwined.” Therefore, it could not be assumed that the legislature intended or expected the “proximal” rule to apply to section 85.34(2)(n).

The muscles surrounding the shoulder joint stabilize the socket and work as an “engine” to move the shoulder joint itself. It was reasoned that since the rotator cuff is essential to the function of the glenohumeral joint, it would seem arbitrary to exclude it from the definition of “shoulder.”

Claimant’s injuries were both considered shoulder injuries under 85.34(2)(n). The statute is silent on whether the upper extremity or whole person rating should be applied to the 400 week schedule. Ultimately, because the rating doctor relied on the “upper extremity” chapter of the AMA Guides, and the agency historically had not relied on whole person rating for scheduled member injuries, the upper extremity rating was applied. Her eight percent rating was used to determine she was entitled to 32 weeks of PPD benefits. 

In sum, this decision expanded the definition of “shoulder” beyond just the glenohumeral joint – but it is far from clearly defined. As the opinion asserted, this expansion will result in “temporary uncertainty,” and increased litigation as additional connected components are considered. Note, the impact of a distal clavicle resection was not discussed.

View our previous posting to see how the “proximal” rule was formerly applied to the shoulder.

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. ©2020 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart and Law Clerk Jordan Gehlhaar

The Court of Appeals Rules on Commutation of Workers’ Compensation Benefits

In VanGetson v. Aero Concrete, LTD & Westco Ins. Co., Claimants filed arbitration petitions with the workers’ compensation commissioner in early March of 2017. At the time of filing their petitions, the commutation of future payments of compensation to a lump sum payment was allowed when “the period during which compensation is payable can be definitely determined” and the Commissioner was satisfied that commutation was for the best interest of the recipient of benefits. See Iowa Code § 85.45(1) (2016).

Amendments to Iowa’s workers’ compensation laws were passed later that March, with an effective date of July 1, 2017. One of the amendments required commutation be allowed “only upon application of a party to the commissioner and upon written consent of all parties to the proposed commutation” and that amendment was to take effect for all dates of injury, including those that predated the legislative change. Iowa Code § 85.45 (2017).

In late June of 2017, Claimants filed petitions for partial commutation. A deputy commissioner dismissed the petitions, concluding the record was inadequate to determine the period during which compensation was payable could be definitely determined, and an award or settlement was a condition precedent to a request for commutation. Subsequently, the Commissioner and District Court both ruled that the petitions for commutation were premature, since the claimants did not file commutation petitions after the effective date of the amendments to section 85.45.

On appeal, claimants argued the agency’s interpretation of section 85.45 was erroneous. The Court of Appeals found that both versions of the statute require “the period during which compensation is payable can be definitely determined.” The Iowa Supreme Court had interpreted this language to mean that applications for commutation cannot be heard “without a hearing on the merits or an agreement between the parties as to the duration of the disability and the amount of the award.”Diamond v. Parsons Co., 129 N.W.2d 608, 615 (1964).

Based on this precedent, the dismissal and ruling was affirmed. An arbitration award or settlement is a jurisdictional prerequisite necessary for the decision maker to consider a commutation petition. The claimants in this case are a few of many who faced this jurisdictional issue following the 2017 amendments. The Court determined the proper procedure to obtain standing is to proceed under the new statute and, if aggrieved, challenge its retroactive application to workers who were injured before the new statute’s effective date.


COVID-19 Impact on In Person Hearings

The Agency (Iowa Division of Workers' Compensation) recently extended the suspension of in person hearings through November 20, 2020, due to the impact of COVID-19. We will monitor the situation for further updates. Additional information can be foundhere. 

 

If you'd like to sign up for our e-newsletter, please click here.

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

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. ©2020 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorneys Nicholas Cooling & Alison Stewart and Law Clerk Jordan Gehlhaar

On July 30, 2020, Workers’ Compensation Commissioner Joseph Cortese II issued an appeal decision in Martinez v. Palvich, Inc. & National Interstate Insurance.

Joseph Martinez was injured on April 16, 2018 while hauling freight when his semi-truck was turned over and collided with another vehicle. He alleged that he sustained injuries to his bilateral lower extremities, right wrist, head and back. He returned to work with Pavlich approximately three months after the injury. Claimant performed light-duty work for one month before returning to his full-duty position. In September of 2018, he voluntarily left Defendant Pavlich to enroll in an apprenticeship program in the construction industry.

The deputy commissioner determined at the arbitration level that Claimant did not sustain a permanent injury to the head or back. The IME provider, Dr. Stoken’s, ratings were found most persuasive as they utilized the preferred AMA guides, Fifth Edition. Dr. Stoken’s rating was chosen as opposed to the rating assigned by Defendants authorized treater, who used the AMA Guides to Permanent Impairment, Sixth Edition, which is not applicable in Iowa. As such, Claimant was entitled to receive 100 weeks of permanency benefits for combined scheduled member disability pursuant to Iowa Code § 85.34(2)(s) (2016).

It was to be determined on appeal whether the deputy commissioner correctly calculated Claimant’s entitlement to permanent partial disability benefits under section 85.34(2). Commissioner Cortese determined that since the accident occurred in 2018, reliance on the 2016 version of the Iowa Code was in error. The language from former section 85.34(2)(s) was not modified, but it was renumbered to section 85.34(2)(t). It provides:

The loss of both arms, or both hands, or both feet, or both legs, or both eyes, or any two thereof, caused by a single accident, shall equal five hundred weeks and be compensated as such.
Iowa Code § 85.34(2)(t) (2019).

The main issue in dispute was whether claimant’s permanent injuries to three (3) scheduled members removed him from the provisions of section 85.34(2)(t) and placed him instead under the provisions of section 85.34(2)(v) “catch all” provision, calling for compensation based on reduction in earning capacity.

Claimant asserted the determination would not affect the outcome as he had returned to work with the same or greater salary which entitled him to compensation based upon his functional capacity only, and not his industrial disability.See Iowa Code § 85.34(2)(v) (2019). The Defendants argued that since Claimant voluntarily resigned to work for a different employer, his benefits should be calculated by his reduction in earning capacity under the industrial disability method. Defendants appear to have made this argument because they believed that Claimant’s industrial disability was less than his functional disability rating at the time. This issue of termination whether voluntary or involuntary had not been considered by the agency since the 2017 amendments.

The commissioner called the statutory change to these code sections “ambiguous.” He further determined that when read together, it appears the legislature only intended to address a scenario in which a claimant returned to work for the defendant-employer or was offered work by the defendant-employer for the same or greater earnings, but was later terminated. The commissioner recognized that the plain language of the statutes support claimant’s interpretation, but reasoned that such interpretation would result in “unreasonable outcomes.” He reasoned that in effect, it would be almost impossible for defendants to know when to volunteer benefits using the industrial disability method. Additionally, a claimant entitled to benefits under section 85.34(2)(v) may be better off not seeking employment after being terminated by a defendant-employer, which could not have been the legislature’s intention according to Commissioner Cortese.

It was determined that despite the fact that he was earning greater wages at the time of the Arbitration hearing than at the time of the injury, Claimant’s voluntary separation from Pavlich removed him from functional impairment analysis and triggered his entitlement to benefits using the industrial disability analysis.

Ultimately, even though his loss of earnings and ability to engage in suitable employment were minimal, the commissioner found Martinez sustained a 20% industrial disability based on permanent injuries to three different body parts. His entitlement to receive 100 weeks of permanent partial disability benefits was affirmed.

This opinion is a novel interpretation of the “catch all” provision § 85.34(2)(v) (2019) which calls for compensation based on a Claimant’s industrial disability, or reduction in earning capacity. This applies where a claimant has suffered an injury to more than two scheduled members, or has sustained a body as a whole injury. If a claimant returns to work or is offered work with the same or greater earnings, their compensation will be based on functional impairment. If later terminated, there may be reopening proceedings for determination of a reduction in earning capacity. However, if the claimant voluntarily resigns with the defendant-employer, the interpretation would not “reset.”

Peddicord Wharton will continue to monitor the case law on this interpretation.

 

If you'd like to sign up for our e-newsletter, please click here.

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

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. ©2020 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

The Commissioner has extended the suspension of in-person hearings in regular procedure contested cases proceedings through at least September 14, 2020. More information can be foundhere.

The following information and resources will be in effect from July 1, 2020 through June 30, 2021:

o   Ratebook

o   The mileage rate will be $0.575 per mile

o   The Maximum Weekly Benefit amount for Temporary Total Disability (TTD), Healing Period (HP), Permanent Total Disability (PTD), and death benefits is $1,864.

o   The Maximum Weekly Benefit amount for Permanent Partial Disability (PPD) is $1,715.

o   The Minimum Weekly Benefit amount for PPD, PTD, and death is $326. This is the figure that serves as the average weekly wage when the average weekly wage calculated is below this amount. It is then necessary to take this figure and apply appropriate exemptions to determine the minimum weekly rate. A minimum rate does not apply for temporary benefits.

o   The Questions and Answers Brochure has been updated.

Peddicord Wharton will continue to monitor the ongoing circumstances and update as necessary.

If you'd like to sign up for our e-newsletter, please click here.

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

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. ©2020 Peddicord Wharton. All Rights Reserved.