State News : Iowa

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.

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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

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.

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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 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. 

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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.

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. 

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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

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. 

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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 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.

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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

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.

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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 Attorneys Nicholas Cooling & Alison Stewart and Law Clerk Jordan Gehlhaar

Recently, Deputy Workers’ Compensation Commissioner William Grell issued anarbitration decision defining what constitutes the “shoulder” under Iowa law. One of the main issues was whether the claimant’s work injury should be compensated with permanent disability benefits as a scheduled member injury to the left shoulder, as a bilateral shoulder injury, or as an unscheduled injury. Ultimately, the Iowa statute was construed liberally, for the benefit of the injured worker.

While completing maintenance work as an employee of McDonald’s on April 18, 2018, Claimant Smidt tripped over a box and struck his left side on a steel beam. His injuries included tears of the supraspinatus and infraspinatus tendons, or rotator cuff.

Prior to amendments to the Iowa Workers’ Compensation laws in July of 2017, the shoulder was considered proximal to the arm, and was compensated as industrial disability, an unscheduled injury. Through the 2017 amendments, the Iowa legislature specified that injuries to the “shoulder” should be compensated as scheduled member injuries on a 400-week schedule. However, the deputy concluded, the legislature’s language was ambiguous as to what constitutes the “shoulder.”

Claimant argued that the injuries were proximal to the glenohumeral (shoulder) joint, and should be an unscheduled injury compensated with industrial disability pursuant to Iowa Code Section 85.34(2)(v) (2017). The defendants argued the injury was limited to the left shoulder and should therefore be compensated as a scheduled member injury pursuant to Iowa Code Section 85.34(2)(n) (2017).

The Deputy Commissioner determined that the legislature made a conscious decision to add the “shoulder” as a scheduled member injury, resulting in significantly less compensation to an injured worker. Additionally, it was determined that the legislature likely knew, based on prior decisions, that an injury to the rotator cuff would be proximal to the “shoulder” joint, and therefore compensable to the body as a whole. The deputy reasoned that there is a difference between the “shoulder” and the surrounding anatomic parts (tendons and muscles) that operate the shoulder, which is consistent with Dr. Kuhnlein’s opinion in the case, as well as prior Commissioner’s findings inNazarenus v. Oscar Mayer & Co. in 2008.

Mr. Smidt was involuntarily terminated at the change of management and later found employment as a part-time truck driver. Considering the traditional industrial disability factors, the deputy made an award of 40% industrial disability.

Overall, these findings are consistent with those in Chavez v. MS Technology, LLC, File No. 5066270 (Feb. 5, 2020) andDeng v. Farmland Foods, Inc., File No. 5061883 (Feb. 28, 2020) – two similar decisions since the 2017 amendment. In effect, this decision indicates the agency’s progression since the 2017 amendments, toward body as a whole classification when injury of the shoulder is involved. Under the current case law, any time the injury extends into the proximal portion of the shoulder joint, we can expect the agency to find a body as a whole injury, where industrial disability analysis may be appropriate. However, as this decision suggests, additional guidance in the form of statutory language and parameters of what constitutes “shoulder,” is necessary and Peddicord Wharton will continue to monitor the case law as this issue continues to develop.

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.

On Friday, May 1, 2020, the Supreme Court of Iowa issued its decision in Anita Gumm v. Easter Seals, in which the Supreme Court agreed with the arguments that had been extensively briefed and then argued by attorneysLee Hook andTyler Smith on behalf of Easter Seals. The issue before the Court was:

        Whether a workers’ compensation claimant who receives disability benefits for a traumatic injury can later recover disability benefits on a separate cumulative injury claim if the cumulative injury is based solely on aggravation of the earlier traumatic injury.

FACTUAL BACKGROUND

The Claimant, Anita Gumm, sustained a serious left ankle fracture on October 28, 2008, while she was working, and subsequently underwent an ORIF procedure. Ms. Gumm received weekly benefits, and she received the last weekly benefit check on May 21, 2010. Ms. Gumm sought medical treatment for her ankle in the weeks, months, and years following the date of the injury, but also following the date of her last benefit check. Pursuant to Iowa Code §85.26(2), Ms. Gumm had until May 21, 2013, to file a Review Re-opening Petition. Ms. Gumm filed multiple petitions on February 24, 2014, alleging cumulative injuries (with various manifestation dates) to her left ankle with sequela complaints to her back including an altered gait. The case went to hearing on March 12, 2015. The Deputy found that Ms. Gumm failed to prove by a preponderance of the evidence that she sustained a “distinct and discrete” new cumulative injury, pursuant toEllingson, and awarded Ms. Gumm no additional benefits as her claim for any additional disability based on a worsening of her ankle (and sequela symptoms) for which she had previously received weekly benefits was time-barred by the three-year statute of limitations. Ms. Gumm argued at Hearing that the “distinct and discrete” requirement as set forth inEllingson was not applicable but rather Floyd should control, which Ms. Gumm argued would allow her to recover benefits for the amount of the “increase in disability” to her ankle and sequela symptoms that could be attributed to her cumulative work duties.

LEGAL ISSUES AND ARGUMENTS

In reaching its decision, the Supreme Court addressed two prior Supreme Court of Iowa cases on point:Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999) and Floyd v. Quaker Oats, 646 N.W.2d 105 (Iowa 2002). At each stage of the case, Easter Seals arguedEllingson was dispositive, and Claimant argued Floyd was dispositive. In the end,the Supreme Court, affirmed Ellingson and re-stated the acute-then-cumulative-injury claim (for same body part) standard: that the cumulative injury must be a “distinct and discrete” disability, not disability as a result of an aggravation of a previous traumatic injury. The Court framed the issue in Gumm as “whether the claimant has suffered an aggravation of her previous compensable injury or a distinct and discrete cumulative injury.”

The Court found that the Commissioner’s application of the distinct and discrete standard inEllingson was appropriate and therefore the Commissioner’s finding that Ms. Gumm failed to meet her burden of proof for a cumulative injury claim was based on substantial evidence and thus should not be disturbed because, as the Court inGumm noted: “whether a claimant has suffered an aggravation of a previous traumatic injury or a distinct and discrete cumulative injury is a fact issue to be determined by the commissioner.”

Overall, Gumm further supports and establishes the “distinct and discrete” standard for cases that involved traumatic-then-cumulative-injury claims initially put forth inEllingson and also accepted in Excel Corp. v. Smithart. 654 N.W.2d 891, 898 (Iowa 2002) (“The separate and discrete requirement prevents a worker from transforming a chronic condition into multiple injuries, and obtaining the multiple separate recoveries feared by [employers]. Thus, employers are protected against paying for the prior disability over and over by the separate and discrete requirement.”). The Supreme Court ultimately held:

        We therefore believe that the distinction drawn in Ellingson andSmithhart between cumulative aggravation of an existing compensable injury through the daily grind of working and a new, discrete injury remains valid in Iowa. In the former case, review-reopening is the recognized remedy if the claimant desires additional disability benefits. A claimant cannot avoid legislatively imposed restrictions by reclassifying an injury as a new injury unless the facts support that classification.

Regarding Floyd, the Court also articulated that Floyd is an exception toEllingson: “[W]here the claimant was precluded from recovering payments for the original trauma, the claimant would be permitted to recover payments on a cumulative-injury basis for subsequent aggravation of the trauma.” The Court further noted thatFloyd recognizes “that a claimant who is suffering the mounting, cumulative effects of a workplace trauma does not have to prove a distinct and discrete injury when the claimant never received an award for that trauma.”

CONCLUSION

In sum, this case is a win for employers and workers’ compensation carriers in Iowa as it affirmed theEllingson standard that a claimant must prove a – distinct and discrete – new cumulative injury was sustained, not an aggravation or increase in previous disability, when a claimant is alleging a cumulative injury to a body part that was previously injured as part of an acute or traumatic work injury.