State News : Iowa

Legal Update by Attorneys Alison Stewart & Steve Durick

1.      Is a positive COVID-19 diagnosis a compensable work injury?

In Iowa there is not a black and white answer about compensability relating to the coronavirus. These claims must be evaluated on a case by case basis.

Iowa is a combination between positional risk (were they at work when it happened?) and increased risk (did work increase the odds of the injury?). Thus, it would be possible for the worker to establish a causal relationship if the worker could prove they were exposed to COVID-19 at work. In parts of the state where there is community spread, however, it would be more difficult for a worker to establish the work caused the infection when the worker could have caught it elsewhere in the community. Healthcare workers would be an exception to this analysis, most likely. It would likely be easier for a healthcare worker to establish a causal link, depending on their field. In many ways this virus, because of its ubiquitous nature, is not unlike the common cold or flu in the context of compensability.  As the virus continues to spread, it will become more and more difficult to determine its source.  Again, these cases should be analyzed on a case by case basis. Peddicord Wharton attorneys are happy to discuss these cases with you at any time.  

More simply, the employee will have to provide a positive test result and a clear link between work and their exposure.

2.      What is the interplay between COVID-19 and the Occupational Disease Statute?

Chapter 85A, the occupational disease chapter, is applied infrequently in Iowa.  Claimants typically bring actions under Chapter 85 whenever possible. 

We typically see these claims generate from a long-standing exposure to something over time. Historically, there was a list of qualifying diseases, but that list no longer exists. To qualify as an occupational disease, according to Iowa Code section 85A.8, the following requirements must be present:

·         Arise out of and in the course of employment.

·         Direct causal connection with the employment.

·         Followed as a natural incident from an injurious exposure occasioned by the nature of the work.

·         Incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment.

·         Appear to have its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence.

Note, a disease which follows from a hazard to which an employee has or would have been equally exposed outside of said occupation isnot compensable as an occupational disease. The compensability analysis for an alleged occupational disease is really no different than the traditional compensability analysis described above in the COVID-19 context.

According to the Iowa Practice Series on Workers’ Compensation, the use of the term “date of injury” is not appropriate in the context of occupational disease because there is no “injury” suffered.  15 Lawyer & Lawyer,Iowa Practice Series: Workers Compensation, 18:4 (2019-2020). Disablement is the term used.Id. Iowa Code section 85A.4, explains that the “event or condition where an employee becomes actually incapacitated from performing the employee’s work or from earning equal wages in other suitable employment because of an occupational disease.”

In short, we do not expect Claimants to pursue work related COVID-19 claims as an occupational disease.  More likely the claim would be brought under chapter 85 with Claimant needing to prove causation as they would with any work injury in Iowa regardless of whether the claim is brought under Chapter 85 or 85A. 

3.      What about a claim for psychiatric injury where the worker has either contracted COVID-19 as a result of a work exposure, or is merely fearful of contracting the virus?

In Iowa, if an injured employee sustains a compensable physical injury and subsequently develops a psychological injury (i.e. anxiety, depression, etc.), such a psychological injury is deemed a compensable injury as well as long as it is causally related to the physical injury.   These types of injuries in Iowa are classified as “physical-mental” injuries.  The psychological injury can be a new injury (no prior psychological history) or be an aggravation of a pre-existing/underlying mental condition/injury.  In the current situation involving COVID-19, if an injured worker is determined to have contracted COVID-19 at the work place and subsequently develops a psychological injury as a result (or experiences an aggravation of an underlying mental condition), the psychological injury will be deemed to be a compensable injury.

Iowa also recognizes “non-traumatic” mental injuries as being compensable – although the burden of proof is quite difficult. See Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845 (Iowa 1995).  These injuries in Iowa are classified as “mental-mental” injuries.  In “mental-mental” injuries, the mental injury is not preceded by a “physical” injury.  To prove a “mental-mental” injury, the injured employee must establish both medical and legal causation.  Legal causation requires the injured employee prove that the mental injury was proximately caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs, regardless of their employer.  In other words, the injured employee must establish that his or her stress is not common to other employees in similar work (from an objective standpoint).  This is a very difficult burden of proof to carry for the injured worker.  Additionally, the injured worker must also establish medical causation which will require expert medical testimony.  In the current situation involving COVID-19 – and specifically where an injured worker has developed a psychological injury due to fear of contracting COVID-19 – the injured worker will be required to prove that his or her mental injury was “caused by workplace stress of greater magnitude than day-to-day mental stress experienced by other workers employed in the same or similar jobs. . .”  The injured worker will be required to prove that his or her stress in that regard is not common to other employees in similar work – which will be very difficult, if not impossible to do, under this current COVID-19 situation.

4.      What is the appropriate benefit commencement date for compensable COVID-19 claims?

If the employee is taken off work by a medical professional for a presumed case of COVID-19 before having a positive test result, the appropriate commencement date would be the fourth date of disability (after the waiting period). If lost time continues beyond the 14^th day, the compensation during the third week must be increased to include the three-day waiting period. Iowa Code § 85.32 (2019). It is appropriate to wait to commence benefits until a positive test result is ascertained, but the worker should then be brought current on benefit entitlement at that time.

5.       How do COVID-19 related shutdowns or layoffs impact temporary benefit entitlement for non-COVID-19 related claims?

If an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.

Support for this can be found here:

Iowa Code section 85.33(3) states that the employer shall pay to an employee for an injury producing TTD, weekly compensation benefits until:

·         the employee has returned to work or

·         is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.

Likewise, Iowa Code section 85.34 states that healing period is owed until:

·         the employee has returned to work,

·         is put at MMI,

·         or it’s medically indicated that the employee can return to substantially similar employment.

Relating to TPD benefits, Iowa Code 85.33(2) says TPD are owed when an employee is not capable of returning to substantially similar employment but is able to perform other work consistent with the employee’s disability.

The only exception to these entitlements is where suitable work is offered and refused. Iowa Code section 85.33(3)(a) instructs that if an employer offers an employee suitable work and that worker refuses, then temporary benefits are not owed.

6.      Do we expect to see longer periods of temporary benefit entitlement for non-COVID-19 claims because of the impact of COVID-19?

It’s possible because some providers have been suspended non-essential medical treatment. In addition, other companies have either had to shut down because of a positive case or have been subjected to a government shutdown. As discussed above, if an injured worker is off work or on restrictions and a suitable offer of employment cannot be made (which is the case if the employer is closed or shut down), then temporary benefits are owed.

7.      Will there be any permanent benefit entitlement as a result of a compensable COVID-19 claim?

We do not know the answer to this question yet, but similar to other injuries in Iowa, Claimant would have to have sustained permanent damage as a result of the illness.

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 Nick Cooling & Alison Stewart

Iowa Workers’ Compensation Commissioner Responds to Coronavirus

On Friday, March 13, 2020, Iowa Workers’ Compensation Commissioner Cortese filed anOrder responding to Coronavirus concerns. In-person hearings will be suspended beginning March 18, 2020 and continuing through June 16, 2020. During this time period scheduled hearings will be held using CourtCall, the agency’s video hearing technology. Fees for the service will be covered by this agency.

For any compensability questions relating to contraction of Coronavirus by Iowa employees, please contact any of the Peddicord Workers’ Compensation Attorneys to discuss further. Analyzing these situations on a case-by-case basis is appropriate.

Shoulder Definition Clarified

The agency filed two arbitration decisions clarifying how the agency defines the shoulder. Recall that the shoulder was added to the schedule in July 2017 and has been compensated based upon 400 weeks since that time. A scheduled member injury has been limited to the impairment rating of an expert.

The decisions are Chavez v. MS Technology, LLC,File No. 5066270 (Feb. 5, 2020) and Deng v. Farmland Foods, Inc.,File No. 5061883 (Feb. 28, 2020). We expect the decisions to be appealed. In light of these decisions, however, the current agency law is that where the injury to the shoulder extends into the proximal portion of the shoulder joint (the portion nearer to the center of the body), it is a body as a whole injury and an industrial disability analysis may be appropriate. The agency cited pre-legislative change cases where the shoulder was defined as the ball and socket between the arm (humerus) and the trunk (scapula), which is medically called the glenohumeral joint. The agency then reasoned that the legislature was aware of this definition when they drafted the 2017 amendment and found that injuries extending into the body side of the glenohumeral joint are body as a whole injuries. Consider the below diagram for additional context relating to the anatomy of the shoulder:

 Importantly, any time the injury extends into the proximal portion of the shoulder joint, including where the surgery performed involves a distal clavicle resection (which is where the surgeon shaves the tip of the clavicle), we can expect the agency to find a body as a whole injury since the clavicle is proximal to the glenohumeral joint. The cases cited in theChavez decision in arriving at the shoulder definition now being applied by the agency specifically identify the distal clavicle as part of the body as a whole. The agency will likely then apply an industrial disability analysis where the Claimant has not returned to work, with the same hours and earnings. If there is a return to work, we would expect the agency to apply a body as a whole rating to 500 weeks like they would for a typical body as a whole injury with a return to work.

Additionally, in the Deng case, penalty benefits were awarded where Defendants did not pay permanency following an IME report from Claimant’s expert containing a permanency rating, despite the authorized treating physician not yet placing the claimant at MMI or assigning impairment. The deputy found that since the authorized treater provided permanent restrictions after a valid FCE, this was the equivalent to MMI, even though the treating doctor didn’t come out and say that in his report. Penalty was awarded from the date that permanent restrictions were provided, not the MMI date in Claimant’s IME report.

These decisions may be appealed, but we will not know the outcome of any appeal(s) for more than a year.

Iowa Supreme Court Reduces Punitive Damages Award in Bad Faith Case

Thornton v. American Interstate Insurance Company, arising out of a compensable work injury where the carrier delayed benefits owed, the Iowa Supreme Court of Iowa recently took up the issue of the level of conduct necessary to justify an award of punitive damages in a bad faith case. Ultimately the punitive damages were reduced, however, the decision did not provide a definitive ratio between punitive and compensatory damages. However, it is instructive as to the level of conduct that will justify certain awards for punitive damages.

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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.

Happy New Year from Peddicord Wharton! Here is what’s new in Iowa:

• The Iowa Court of Appeals recently affirmed a favorable agency decision in Harrod v. Advance Services, Inc. and Ace American Insurance Company. The case was defended by Peddicord Wharton attorneys Tim Wegman and Alison Stewart. Claimant Leslie Harrod appealed a district court decision affirming a final Iowa Workers’ Compensation Commissioner decision to reduce Claimant’s industrial disability award from 40% to 25% industrial disability on the basis that it was supported by Substantial evidence. In addition, the Court of Appeals held that Claimant failed to prove entitlement to alternate medical care and penalty benefits. Deputy McElderry awarded 40% and Deputy Commissioner Fitch (upon delegation from Commissioner Cortese) reduced the award to 25%. The Court of Appeals reasoned the Commissioner decision was appropriate because consideration was given to the several industrial disability factors. Specifically, Claimant’s inability to complete a certified nursing assistant program she attended following high school caused the reviewing deputy to question the likelihood of her success in further training, despite Claimant’s statement during the hearing that she was interested in pursuing further education. The reviewing deputy also found that while Claimant could pass the pre-employment physical examination for working as an egg packager for Rembrandt, it was unclear whether she would have been physically capable of maintaining this position long-term. For these reasons, the Court of Appeals affirmed the decisions of the agency and district court.
  
  
• Attorneys Steve Spencer and Chris Spencer were successful in defending another case recently decided by the Iowa Court of Appeals. In Lewis v. Windsor Windows & Doors and Twin City Fire Insurance Company, the Court affirmed an agency decision appealed by the Claimant, in which it was determined the injury alleged did not arise out of and in the course of employment. The issue was Claimant’s credibility and the Commissioner specifically indicated that he gave considerable deference to the findings of fact which were impacted by the credibility findings. The Court was satisfied by the agency’s detailed analysis of the conflicting evidence and explanation of how its decision was reached. As a result, the Court indicated that the record as a whole contained substantial evidence to support the Commissioner’s findings.
  
  
• There are two new Workers’ Compensation Deputy Commissioners. Jessica Cleereman will start January 24, 2020. Deputy Cleereman is from Sioux Falls, South Dakota originally and has practiced at various insurance defense firms in the Des Moines area since graduating from Valparaiso University School of Law in 2005. Andrew Phillips will start March 6, 2020. Deputy Phillips will replace Deputy Michele McGovern, who will retire early this year. Deputy Phillips has worked in the insurance industry in the Des Moines area since graduating from Drake Law School in 2010.
  
  
• The mailing address for the Iowa Division of Workers’ Compensation (DWC) has changed. The new mailing address is 150 Des Moines Street, Des Moines, Iowa 50309. Carriers should update their forms requiring communication with injured workers accordingly. One example is the Auxier notice. If you have questions about this, please reach out to any of the workers’ compensation attorneys at Peddicord Wharton.
  
  
• The DWC recently provided additional information relating to vocational training and education available to employees who sustain a work injury to the shoulder (after July 1, 2017) and are unable to return to gainful employment due to the resulting permanent partial disability. If these qualifications are satisfied, Iowa Workforce Development (IWD), upon written application, will evaluate the employee and determine whether that employee would benefit from a vocational education and training program at a qualifying community college. If the employee qualifies, they must enroll in the community college program within six months of the IWD referral to the program. The employee is eligible for up to $15,000 support toward tuition, fees, and purchase of supplies required to participate in the program. More information about the process and qualifying fields can be found here.
  
  
• SF2003 was recently introduced in the legislature. The proposed change relates to Iowa Code section 85.27 as it specifically pertains to the furnishing of prosthetic devices. Currently, Iowa Code section 85.27(1) states that “the employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.” The proposed change states “a person shall be entitled to replacement of a prosthetic device, including subsequent replacements, by the employer if the prosthetic device is needed as a result of a compensable injury, and the replacement of the prosthetic device would otherwise be considered reasonable medical care under this chapter.” If the proposal passes, an injured worker will be entitled to replacement of a prosthetic device so long as the device would otherwise be considered reasonable medical care. We will monitor this proposed change and provide updates accordingly.

Legal Update by Attorney Alison Stewart, an attorney with Peddicord Wharton. Peddicord Wharton is a member of the National Workers’ Compensation Defense Network. If you have any questions about this submission or Iowa workers’ compensation in general, please contact Alison by e-mailing her at alison@peddicord.law or by calling her directly at 515-243-2100.

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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.

On September 24-25, 2019, the National Workers' Compensation Defense Network (NWCDN) held its annual conference in Chicago, IL at the Intercontinental Hotel with an impressive mix of over 200 workers' compensation professionals from the U.S. and Canada. Attorneys attending from Peddicord Wharton were: Lee Hook, Steve Durick, Adam Bates, Nick Cooling, and Alison Stewart.

The program was filled with cutting-edge presentations and included topics such as “The Ethical Challenges of Anti-Engagement” addressing how interactions with the injured workers can promote improved outcomes. Also discussed was “Advocacy-Based Claims Management,” presented by a Senior Fellow at Sedgwick Institute, considered a champion of workers' compensation reform. Bob Wilson of workerscompensation.com was a keynote speaker and contributor on these topics.

A panel of 22 lawyers discussed state and local trends in workers' compensation. Another topic was an in-depth analysis of an SO-state survey on the status of marijuana in worker's compensation. There were several networking breaks throughout the event, ending with a presentation from Dr. Danzhu Guo of the Ovation Hand Institute on the medical advancements in the treatment of carpal tunnel syndrome.

About the National Workers' Compensation Defense Network

NWCDN is an organization comprised of workers' compensation attorneys from 45 states and Canada. Through its online network, member attorneys can be contacted individually or through a coordinated group response to address the latest trends in workers' compensation law. Through its comprehensive network, NWCDN takes a local approach to workers' compensation law and combines it into a national perspective. Annually, NWCDN sponsors an invitation-only national conference for business, risk and insurance professionals. In October 2020, NWCDN will hold its next national conference in Philadelphia, PA.

www.nwcdn.com

Legal Update by Attorneys Alison Stewart andNick Cooling

A new electronic filing system has been implemented beginning July 22, 2019. The new system is known as Workers’ Compensation Electronic System, or WCES (pronounced “wick-ess”). The system will provide for electronic filing of all pleadings and documents with the Division and is intended to provide for more efficient scheduling of hearings, comprehensive case management, and greatly improved EDI transactions. New Administrative Rules have been passed and provide instructions for parties about how to appropriately navigate the new system. Those rules can be found at Iowa Administrative Code 876-2.5

Most of the changes will affect the practitioners, but Iowa Workers’ Compensation Insurance Carriers should be aware of the following:

• The electronic filing system is mandatory for all cases currently on file, beginning on July 22, 2019.
  

• The employer and insurance carrier who is required to file medical data must file the medical data in WCES. The employer or insurance carrier must register in WCES to file the medical data. The filer will receive a status update for the information the filer submits based on the status the filer selects and is approved for in WCES. A login account can be requested on the Iowa Workforce Development website, or by clickinghere.
  

• For changes to FROI and SROI reports must be filed within 45 days of being made aware of the change (e.g. social security number, date of injury, employer name, employee name, weekly rate, marital status, number of exemptions, etc.) Note, if a final agency decision changes any of the previously submitted information, the attorney for the employer and insurance carrier shall notify the reporter. The reporter shall file a change within 45 days of the final decision.
  

• New forms have become available and carriers should be aware of whether changes to any of their regularly used forms have been made. Those forms can be foundhere.
  

• One Deputy One Case: For hearings in the Des Moines venue, the hearing deputy will be assigned at the outset of the case and remain the same for the duration of the case, even if the Claimant dismisses and later refiles.
  

• There are new e-filing deadlines for cases proceeding to hearing on, or after, September 1, 2019. Those rules are as follows:
  • At least 14 days prior to hearing, counsel must file the joint proposed hearing report, as well as the proposed exhibits. Historically, the parties have been able to exchange the hearing report and exhibits just days prior to the hearing.
  • The parties must file objections to any proposed exhibits within 7 days.
    

     

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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 Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Tyler Smith

Gumm v. Easter Seal Society of Iowa, File No. 18-1051 (Iowa, May 15, 2019)

The issue in this case involved whether a claimant, after sustaining a traumatic, acute injury, is allowed to bring a cumulative injury claim with regard to symptoms/injuries to that same body part. The Court of Appeals addressed the two Supreme Court of Iowa cases that have addressed acute-then-cumulative injury claims: Ellingson v. Fleetguard (requiring claimant to show a “distinct and discreet” disability/injury as a result of cumulative work duties) andFloyd v. Quaker Oats (allowing a cumulative injury claim in the certain circumstance where the claimant had not been compensated via an award, volunteered benefits, etc. and doing so was unavailable due to the statute of limitations). In this case, the Court of Appeals reversed and remanded the Commissioner’s finding that the claimant failed to establish a distinct and discreet disability/injury underEllingson. The Court of Appeals extended/expanded the Floyd case in holding that if a claim relating to the first injury is barred by the statute of limitations (regardless of whether benefits had been paid with regard to the initial acute injury), a cumulative injury claim can be made for the increase in disability brought on by subsequent work duties. Appellees have filed Applications for Further Review.

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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 Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Two recent Iowa Supreme Court decisions have addressed liability of workers’ compensation carriers and third-party administrators. In both cases, the Court declined to extend liability.

Clark, et al v. Ins. Co. of the State of Penn., File No. 17-2068 (Iowa, May 3, 2019)

Recently, the Iowa Supreme Court addressed whether Iowa Code section 517.5, which mandates that no inspection of any place of employment made by insurance inspectors shall be the basis for imposition of civil liability upon the inspector or insurance carrier, is constitutional. In Clark, the plaintiffs alleged employees of the insured were exposed to hazardous chemicals while manufacturing wind blades and that the workers’ compensation carrier’s failure to inspect the employer was the cause of plaintiffs’ injuries. These claims were brought in district court. The Iowa Supreme Court disagreed and outlined a detailed history of the policy behind the exclusive remedy doctrine which requires injury claims brought by employees against their employer must be brought before the workers’ compensation commissioner. This means that immunity remains for carriers who either fail to inspect or negligently inspect the premises of an insured.

De Bois v. Broadspire, File No. 18-1227 (Iowa, May 10, 2019)

The Iowa Supreme Court ruled an injured worker cannot sue a workers’ compensation third party administrator for civil bad faith. In Iowa, an injured worker can establish damages beyond those entitlements provided pursuant to the workers’ compensation chapter where benefits are denied without a reasonable basis and that the carrier knew or should have known its refusal or delay was without such a basis. The Court reasoned that the duties imposed upon a workers’ compensation insurer are non-delegable, and thus, the acts of a third-party administrator, are the acts of the insurer. The liability of third party administrators remains limited to the contractual obligation they have to their insurers.

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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 Legislative 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. ©2018 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Governor Reynolds has signed a bill relating to workplace idiopathic falls (SF 507). This bill has become law in response to the 2018 Iowa Supreme Court decision,Bluml v. Long John Silvers, where the Court said there was no blanket rule rendering certain categories of workplace idiopathic falls non-compensable, so long as the employee proved that a condition of the employment increased the risk of injury (e.g. a hard floor). In Bluml, an employee had a seizure while working and fell straight backward onto a ceramic tile floor, striking the back of his head. More information about this decision can be found in an earlier post on this blog, dated November 28, 2018. The Court had held each case like this should be considered on a case by case basis opening the door for an employee to establish an injury resulting from an idiopathic fall onto a hard surface could be found compensable. With this new bill now on the books, however, “personal injuries due to idiopathic or unexplained falls from a level surface onto the same level surface do not arise out of and in the course of employment and are not compensable under this chapter.”

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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 Legislative 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. ©2019 Peddicord Wharton. All Rights Reserved.

Legal Update by Attorney Alison Stewart

Recently, the Iowa Court of Appeals handed down some decisions relating to workers’ compensation.    

Timely Filing of a Review-Reopening Petition
Pella Corp. v. Winn,File No. 17-1545, 2019 WL 156579 (Iowa Ct. App. Jan. 9, 2019)

The Iowa Court of Appeals recently addressed the timely filing of a review-reopening petition and simultaneous payment of PPD and PTD benefits. InPella Corporation v. Winn, the Claimant applied for review-reopening of a prior award where only entitlement to medical benefits were addressed. The Court of Appeals held that it had no authority to disrupt the opinion of the Iowa Supreme Court inBeier Glass Company v. Brundige, wherein the Court held that where no weekly benefits have been paid, review-reopening is timely filed so long as it is within three years from the date of the award or memorandum of agreement. 329 N.W.2d 2d 280 (Iowa 1983). The Court of Appeals did indicate it sympathized with the employer’s position that the plain language of the statute compels a finding that an “award” eligible for review-reopening cannot include an award of only medical benefits, but that it had no authority to disrupt the authority of the Supreme Court. The Claimant was then allowed to have her entitlement to all benefits (weekly indemnity benefits included) reviewed.

Simultaneous Payment of PPD and PTD Benefits
This decision also addresses a Claimant’s ability to collect permanency benefits for one injury and permanent total disability injuries for another injury at the same time. This is something that has been addressed by the recently passed legislation in July of 2017, but the Court of Appeals confirmed here that it is possible for Claimants to receive such benefits at the same time for injuries occurring before the legislative changes.

Bad Faith Action Permitted Without Underlying Award of Penalty Benefits
Dunlap v. AIG, Inc., Commerce and Industry Insurance Company,File No. 17-1503, 2019 WL 141012 (Iowa Ct. App. Jan. 9, 2019)

In a bad faith case, the Iowa Court of Appeals faced whether it was reasonable for an employer to rely upon a medical opinion indicating medical causation did not exist where three other medical opinions indicated medical causation did exist. The Court of Appeals found that the district court erred when it dismissed the suit on Motion for Summary Judgment because a reasonable fact finder could find the defendant’s reliance was simply not reasonable since they were aware their other experts had opined causation existed and the expert opinion defendants relied upon clarified his opinion with a condition that could change his opinion from possible causation to probable causation. We do not have the ultimate outcome of this issue because the case was remanded, but it is significant because penalty benefits were not awarded at the agency level since a medical opinion supporting the causation denial was contained in the record; however, the bad faith survived Motion for Summary Judgment.

Employee’s Failure to Preserve Error Resulted in Reversal
Lynch Livestock, Inc. and Nationwide Agribusiness Ins. Co.,v. Kenneth Bursell, File No. 17-1629 (Iowa Ct. App. Mar. 6, 2019)

The Court of Appeals confirmed Claimant failed to preserve the issue of whether substantial evidence supported the agency finding that Claimant’s unauthorized treatment was reasonable and beneficial. As such, the district court had erred in concluding the employer owed the medical.  

On January 18, 2019, the Iowa Supreme Court, in Evenson v. Winnebago Industries, Inc., No. 17-1419 (Jan. 18, 2019), issued a finding that the Court was without subject matter jurisdiction to hear an appeal due to the claimant’s late filing of the notice of appeal with the district court.

This appeal concerned a dispute over workers’ compensation penalty benefits. The Court noted the following timeline of relevant events:

• On August 25, 2017, the district court filed its ruling on judicial review.
• On September 5, 2017, Evenson’s counsel served a notice of appeal on opposing counsel and filed the notice with the Clerk of the Supreme Court on September 6. Counsel captioned the notice of appeal for Winnebago County but never filed the notice with the Winnebago County Clerk of Court.
• On September 7, 2017, Evenson served a second notice of appeal on opposing counsel and filed the appeal with the Supreme Court clerk on the same day. He captioned the second notice for Polk County but never filed the second notice with the Polk County Clerk of Court.
• On January 29, 2018, Evenson filed a corrected notice of appeal with the Polk County Clerk of Court. On the same day, he also filed the corrected notice with the Clerk of the Supreme Court and served it on opposing counsel.

On behalf of Winnebago Industries, Peddicord attorneys, Steve Durick, Joe Barron and Kathryn Johnson, filed a motion to dismiss the appeal on the grounds that Appellant failed to timely file his notice of appeal with the district court.

The Iowa Rules of Appellate Procedure provide in relevant part that “[a] notice of appeal must be filed within 30 days after the filing of the final order or judgment.” Iowa R. App. P. 6.101(1)(b). The rules provide that the filing deadline for a notice of appeal is tolled by timely service. Id. r. 6.101(4). The rule states, “The time for filing a notice of appeal is tolled when the notice is served, provided the notice is filed with the district court clerk within a reasonable time.” The Court defined a “reasonable time” as “such time as is necessary, under the circumstances, for a reasonably prudent and diligent man to do conveniently what the contract or duty requires . . . for the rights, and possibly the loss if any to the other party affected.” The Court also noted that the Iowa Rules of Electronic Procedure do not affect court deadlines contained in the Appellate Rules.

The Supreme Court agreed with Appellees, that a 144-day delay between service and filing of the notice of appeal was unreasonable. The Court dismissed the appeal, holding that Appellant failed to file a timely notice of appeal, which left the Court without subject matter jurisdiction to hear the appeal.