State News : Iowa

NWCDN is a network of law firms dedicated to protecting employers in workers’ compensation claims.

NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  

Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.

Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.




 On March 30, 2017, new legislation signed into law by Governor Branstad made significant changes to the Iowa Workers’ Compensation laws. On December 20, 2017, new administrative rules were adopted. These changes will be applied to injuries occurring after July 1, 2017.  This update addresses the most significant changes.

    Industrial Disability Determinations: Perhaps the most significant legislative change pertains to an employee with unscheduled injuries to the trunk or head (now excluding shoulders) who is able to return to work for the employer, or is offered to return to work by the employer, in a position making the same or greater earnings compared to the time of the injury after a permanent restriction determination has been made. The employee is now only entitled to compensation based on the functional impairment rating assigned by a doctor(s). IOWA CODE § 85.34(2)(u) (2017). An industrial disability (loss of earning capacity) analysis will not be conducted if such a return to work occurs. The new administrative rules contain no specific guidance on how to implement the offer for return to work in the context of this particular code section, however, we are recommending that employers should make any such offers of return to work in writing.

Also of note, when an industrial disability analysis is appropriate, the number of years the employee is reasonably anticipated to work into the future will now be taken into account. IOWA CODE § 85.34(2)(u) (2017).

    Shoulder Injuries: Shoulder injuries are now considered scheduled member injuries, meaning an industrial disability analysis no longer applies. IOWA CODE § 85.34(2)(n) (2017). Employees sustaining a permanent work-related shoulder injury will now be entitled to a percentage of 400 weeks.

    Vocational Training: If an employee sustains a shoulder injury and cannot return to gainful employment as a result of that injury, they may be eligible for financial support from the employer for vocational retraining in an amount not to exceed $15,000. IOWA CODE § 85.70(2). The new administrative rules provide guidance on how this will be implemented. IOWA ADMIN. CODE. r. 876-4.5(5) (2018). First, the employee will be required to complete a form requesting an evaluation and determination by Iowa Workforce Development. Then, Workforce Development assesses whether the employee would benefit from a vocational training and education program offered through an area community college. Once this determination has been made, the employee, employer, or insurance carrier may contest the results of the Workforce Development determination by applying for a hearing before the Division of Workers’ Compensation. The Commissioner’s office will notice a hearing. A telephonic hearing can be requested. Decisions must be issued within 30 working days and can be appealed.

    Functional Disability Determinations: Prior to the changes, hearing arbitrators were allowed discretion in determining the amount of permanency entitlement for a particular scheduled member injury based on lay testimony or agency expertise. The legislative changes made it so that only The 5th Edition AMA Guidelines can be used to determine the extent of permanent impairment for body parts that are scheduled members (not a part of the trunk or head of the body), which now include the shoulders. IOWA CODE § 85.34(2) (2017). The previous version of the applicable administrative rule indicated that The Guides were to be used only “as a guide,” and that language has now been removed. IOWA ADMIN. CODE r. 876-2.4 (2018). This change should make scheduled member award ranges easier to predict.

    Commencement Date: Permanent partial disability benefits now begin when a worker reaches maximum medical improvement (MMI). IOWA CODE § 85.34(2). The previous rule stated that permanency benefits should begin at MMI, return to substantially similar employment, or indication that significant improvement was not likely – whichever occurred first. Under the amendment, permanency benefits are not owed until MMI is reached, even if an employee returns to work prior to reaching MMI.

    Interest: The interest rate accruing on past due benefits has been changed from 10% to the one-year treasury constant maturity plus 2%. This is governed by Iowa Code section 535.3(1) and can be foundhere. Peddicord Wharton’s website calculator (found under Resources) has been updated  to reflect this change.

    Commutation of Awards: Previously, injured workers who received an award of permanency benefits accruing into the future were permitted to commute their award to a present value lump sum payment by making an application to the Division of Iowa Workers’ Compensation. Historically, these requests were freely granted. After the legislative changes, such requests can only be granted if all parties agree. IOWA CODE § 85.45 (2018). The relevant administrative rule has been amended to reflect this change. IOWA ADMIN. CODE r. 876-6.2 (2018). Note, this change applies to all applications for commutation filed after July 1, 2017 (not just injuries occurring after July 1, 2017).

    Offers and Refusals of Suitable Work: Employers and employees are now required to communicate in writing relating to offers and refusals of light duty work. IOWA CODE § 85.33(2) (2018). The new administrative rules provide additional details about this new requirement. IOWA ADMIN. CODE r. 876-8.11 (2018). All offers pertaining to return to temporary work must be in writing and must inform the employee of the details of the offer, including lodging, meals, and transportation. With each offer, if the employee refuses the offer of work, the employee must communicate the refusal in writing, including the reason(s) for the refusal. During the period of refusal, the employee will not be compensated with temporary benefits unless the work refused is not suitable. A failure to communicate the reason for the refusal to the employer in writing precludes the employee from later asserting the work was not suitable until such time as that reason is communicated.

    Permanent Total Disability Benefits: There are a few changes impacting entitlement to permanent total disability benefits. (1) An employee can no longer receive permanent total and permanent partial disability benefits concurrently. IOWA CODE §§ 85.34(2)(x), 85.34(3)(a) (2017); (2) An employee can no longer receive permanent total disability benefits if they are receiving 50% or more of the statewide average weekly wages in gross earnings from another employer or source. IOWA CODE § 85.34(3)(c) (2017); and (3) An employee cannot receive permanent total disability benefits if the employee is also receiving unemployment benefits.  IOWA CODE § 85.34(3)(d) (2017).

    Intoxication Defense: A positive post-injury drug screen (without an appropriate prescription) creates a presumption that the employee was intoxicated at the time of the injury and that this intoxication was a substantial factor in causing the injury, barring benefit entitlement. IOWA CODE § 85.16(2) (2017).

    Credit for Overpayment of Weekly Benefits: An employer who overpays temporary benefits (in good faith) is entitled to a credit against any future weekly benefits due for that injury. IOWA CODE § 85.34(4)-(5) (2017). The credit applies to a current injury, not just a subsequent injury as in the past.

    Independent Medical Examinations: An employee forfeits entitlement to weekly benefits for refusing to attend an IME arranged by the employer/insurance carrier. In the past, benefits were only suspended during the time of refusal. The new law explicitly states that an employer is only obligated to pay these exams for compensable injuries. The reasonableness standard for fees charged by these examining physicians is based on the fee charged by a medical provider for performing an impairment rating.   IOWA CODE § 85.39 (2017).

With only six months since the legislative changes have become effective, we are still unable to predict how the Commissioner will address some issues, but the recently adopted administrative rules do offer some additional indication and guidance.

Major legislative changes occurred in Iowa effective for all injuries that occur on or after July 1, 2017. Under prior law injured workers were awarded permanency benefits based on loss of earning capacity for non-extremity type injuries including the neck, shoulders, back and hips (“body as a whole” injuries). Under the new law shoulders are no longer injuries to the body as a whole, but are rather considered scheduled member-type injuries. Workers with shoulder injuries are now entitled to receive permanency benefits only to the extent of his/her functional impairment, and are not entitled to receive benefits for loss of earning capacity.

 Further, after July 1, 2017, if the injured worker sustains an injury to his/her body as a whole and returns to work or is offered work for which he/she receives or would receive the same or greater salary, wages, or earnings, than the injured worker received at the time of the injury, the injured worker is compensated based only upon his/her functional impairment resulting from the injury.

Legislative changes also stiffened the employer’s intoxication defense adding a presumption that an employee was intoxicated at the time of his or her injury if the employee had a positive test result reflecting the presence of alcohol, narcotic, depressant, stimulant, hallucinogenic or hypnotic drug not prescribed by a medical practitioner or not used in accordance with prescribed use. The new law made changes with respect to independent medical evaluations, pre-existing conditions, vocational rehabilitation, and commencement date for the payment of permanency benefits.

Legislative changes will most certainly result in a very significant decrease in the value of claims.

Call Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!








Carl A. Nelson & Company and Zurich North American Ins. Co., v. Byran Sloan, Court of Appeals of Iowa, No. 15-0325

At the agency level, the parties stipulated Claimant, Byran Sloan, sustained an injury to his back in the course and scope of his employment on August 15, 2011, while lifting concrete forms out of a trench. Claimant was treated for what was described as a back strain, and he was returned to full-duty work with no restrictions on August 24, 2011. The dispute in this case centered on what effect an incident that occurred on October 30, 2011, had on that stipulated work injury.

On October 30, 2011, Claimant was assisting a friend move some go-kart frames into a trailer. When Claimant tried to slide a frame that had been placed on the trailer by a bobcat, he felt a sudden onset of pain and numbness in his back and legs. Claimant described the pain as being similar to what he experienced when the initial injury occurred. When conservative treatment for this injury failed, Claimant underwent back surgery and was subsequently released at maximum medical improvement on January 14, 2013. 

The workers’ compensation case was tried before a deputy commissioner on April 9, 2013. The deputy denied Claimant’s claim after determining the go-kart incident was an intervening and superseding cause of Claimant’s injury. The deputy further concluded, “There were no competent medical opinions tying [Claimant’s] original work injury to his ongoing back problems.”

 Claimant appealed to the commissioner, who reversed the deputy’s conclusion, finding “the greater weight of evidence supports the finding that claimant’s work injury was a proximate and natural cause of the disability he suffered from at the time of the arbitration hearing.” While the commissioner noted the evidence was “quite compelling” that the go-kart incident substantially worsened or aggravated Claimant’s condition, it did not amount to an intervening or superseding cause because Claimant “was simply engaged in an ordinary activity of daily living, namely helping a friend transport items on a trailer he owned” and not engaged in conduct that was “contrary to any express or implied duty owed to his employer following his work injury.” The commissioner also held the Employer is responsible for the medical treatment Claimant received following the go-kart incident. The bills that were paid by Claimant’s private health insurance “shall be reimbursed directly to [Claimant] as the Iowa Supreme Court has mandated in Ruud.” SeeMidwest Ambulance Serv. v. Ruud, 754 N.W.2d 860, 867–68 (Iowa 2008).

 The Employer filed for judicial review with the district court, who affirmed the agency’s causation opinion, finding, “the commissioner’s determination is clearly supported by substantial evidence in the record.” The court likewise affirmed the agency’s analysis of the intervening and superseding cause, concluding “there is really no point in the court reiterating that discussion when the court has no disagreement either with the commissioner’s judgment regarding the law or his application of the law to the facts.” However, the court modified the agency’s decision with respect to the payment of medical bills that had been covered by Claimant’s private health insurer. The court determined the agency misinterpreted the Supreme Court’s holding in Ruud as mandating direct reimbursement to Claimant. Instead, the district court held the Employer is to either (1) directly reimburse Claimant for the expenses approved by the commissioner as part of Claimant’s claim that were paid by the health insurer; or (2) reimburse the insurer for such amounts and pay any remaining amounts of any such expenses not paid by the health insurer directly to the provider.

 From this ruling the Employer appealed the causation ruling, and Claimant cross-appealed the ruling on the reimbursement of medical expenses paid by his private health insurer.

 The Court of Appeals agrees with the district court that substantial evidence supports the agency’s causation finding. The Court noted that the commissioner reviewed the medical opinions on the issue of causation and determined, of the three experts who offered opinions on causation, the opinion of Kenneth Bussey, M.D., was most persuasive. The commissioner credited Claimant’s testimony and concluded there was “simply no reasonable basis to disbelieve claimant’s uncontroverted, sworn testimony that he was still suffering from back and leg pain (radiculopathy) when he was released” back to work.

 The Court also agreed with the district court that the agency did not misinterpret the law with respect to intervening and superseding cause. The commissioner held the go-kart incident was a direct and natural result of the August 15, 2011 work injury based on the opinion of Dr. Bussey. The action of Claimant was not considered “negligent” so as to break the chain of causation because Claimant’s actions were not rashly undertaken with knowledge of the risk created by the weakened member. The commissioner also noted the action taken by Claimant was not “an intentional violation of an express or implied prohibition” by Claimant’s treating physician. The Court of Appeals therefore affirms the district court’s judicial review decision with respect to the Employer’s appeal.

 With respect to the cross-appeal, the Court of Appeals concluded the district court erred in its interpretation of the controlling case law. The Employer is responsible to make direct payment to Claimant for “past medical expenses paid through insurance coverage”  under Midwest Ambulance Serv. v. Ruud, 754 N.W.2d 860, 867–68 (Iowa 2008). Therefore, The Court affirmed in part and reversed in part the district court’s judicial review decision.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!


Tyson Foods, Inc., v. Yawa Tameklo, Court of Appeals of Iowa, No. 15-0222

 Claimant, Yawa Tameklo, sustained a work-related injury to her right shoulder while trimming dirty meat off cow carcasses as they proceeded down an assembly line at Tyson Foods, Inc. After conservative treatment failed to alleviate her pain, Claimant underwent surgery, known as “subacromial decompressive acromioplasty with bursectomy.” Claimant returned to full-duty work eight weeks after the surgery. The pain in Claimant’s right shoulder did not abate. Eventually, a physician diagnosed her with “avascular necrosis,” described in part as a narrowing of the joint space with particulate debris.

 Claimant petitioned for workers’ compensation benefits. Tyson countered that the necrosis was not work-related. Following an arbitration hearing, a deputy workers’ compensation commissioner found “that the avascular necrosis condition [was] related to [Claimant’s] work injury.” The deputy awarded Claimant healing period benefits. On intra-agency appeal, the commissioner upheld the award, as well as the deputy’s findings, applications of law to fact, and conclusions of law. A subsequent application for rehearing was denied. Tyson sought judicial review. The district court reversed the agency decision, finding insubstantial evidence to support the commissioner’s determination of a causal connection between the injury and Claimant’s employment. Claimant appealed. 

On appeal, the Court notes that the commissioner cited three pieces of evidence in finding a causal connection between Claimant’s injury and employment: (1) an opinion from the physician who performed the prior surgery, (2) an opinion from a second physician, and (3) medical literature proffered by a physician who conducted an independent medical examination. Tyson argues the first two physicians did not conclusively find a causal connection and the findings in the article presented by the third physician were based on a different surgery than Claimant underwent, involving patients with different underlying medical issues. The Court of Appeals agrees with Tyson’s contentions, but notes their agreement does not mandate reversal.

 Neither of the first two physicians conclusively ruled out a causal connection with Claimant’s employment. Further, the independent medical evaluation was based on more than the journal article alone. After reviewing and summarizing the pertinent medical records, that expert found a cumulative aggravation of Claimant’s original work-related shoulder injury when she returned to full-duty work. Setting aside the journal article, these statements amount to substantial evidence in support of the agency’s finding of a causal connection.

 The Court of Appeals concludes the agency’s finding of a causal connection between Claimant’s avascular necrosis and her employment was supported by substantial evidence. To the extent the determination involves application of law to fact, the Court concludes it is not irrational, illogical, or wholly unjustifiable.


Eaton Corporation and Old Republic Insurance Co., v. Don Archer, Court of Appeals of Iowa, No. 15-0255

 Claimant, Don Archer, filed a workers’ compensation petition alleging he sustained a work-related injury while employed at Eaton, where he engaged in repetitive work as a machine operator on a factory assembly line building transmissions. On the day of his alleged injury, March 22, 2012, Claimant began to experience pain in his hands, and as a result, Claimant reported to Eaton that he was unable to work. He also missed his next two work shifts due to his symptoms. Claimant was terminated from his employment on April 2, 2012, due to excessive absenteeism and has been unable to obtain new employment. Dr. Donald Bumgarner, Claimant’s physician, determined Claimant had “[p]robable carpal tunnel syndrome left side and possible carpal tunnel syndrome right side.” An EMG further indicated he had carpal tunnel syndrome on his left side. Dr. Michael Morrison also diagnosed him with mild bilateral carpal tunnel syndrome and recommended surgery.

 Each party requested an independent medical examination (IME). Claimant’s IME was conducted by Dr. Caliste Hsu. Dr. Hsu diagnosed Claimant with bilateral carpal tunnel syndrome caused by working at Eaton. Dr. Hsu further determined Claimant was not capable of performing the work he had been doing at the time of the injury. Eaton obtained an IME from Dr. D.M. Gammel, who also diagnosed Claimant with bilateral carpal tunnel syndrome but disagreed with Dr. Hsu’s opinion on causation.

 Claimant filed a petition for workers’ compensation benefits. Following an arbitration hearing, a deputy workers’ compensation commissioner found Claimant sustained a work-related injury on March 22, 2012, and was entitled to a running award of healing period benefits beginning April 3, 2012. The workers’ compensation commissioner affirmed and adopted the deputy’s decision on appeal. Eaton sought judicial review of the causation finding and award of healing period benefits, which the district court affirmed. On appeal, Eaton only challenges the award of a running healing period benefit, claiming substantial evidence does not support the agency’s finding.

 The Court of Appeals holds substantial evidence supports the finding Claimant is unable to return to similar employment. The Court notes that Claimant testified his injury caused pain so intense he was unable to work, leading to his eventual termination. After his termination, Claimant’s symptoms failed to improve. Dr. Hsu recommended Claimant be surgically treated to improve “his symptoms of pain, tingling, and numbness in his hand,” but Claimant has been unable to pursue this treatment after losing health insurance following his termination. Most significantly, Dr. Hsu opined, “I do not believe [Claimant] is medically and physically capable of performing the work that he was doing at the time of his injury.” The Court notes that, although Eaton cites evidence that may support a finding that Claimant was capable of returning to substantially similar employment, the Court’s task is not to determine whether substantial evidence supports different findings but rather the findings actually made. 

The Court of Appeals also holds that substantial evidence supports the finding the healing period began when Claimant was terminated from his employment with Eaton. In determining the date of injury, the Court uses the date on which the disability manifests, or in other words, “‘the date on which both the fact of the injury and the causal relationship of the injury to the claimant’s employment would have become plainly apparent to a reasonable person.’” Here, Claimant had only been told he had “probable” carpal tunnel syndrome on his left side and “possible” carpal tunnel syndrome on his right side before he was terminated. Although Dr. Bumgarner suggested Claimant try wearing a neutral wrist splint to reduce his pain, he did not receive any work restrictions. It was a short period of time after Claimant’s symptoms began that he was terminated, and it was not until after Claimant was terminated that he was given an EMG and diagnosed by three doctors as having carpal tunnel syndrome. The first opinion on causation was given in August 2012, months after Claimant’s termination. Therefore, Claimant would not have been aware of the connection between his injury and his work, or the adverse impact his injury would have on his employment, until after he was terminated.

 Because the Court of Appeals agrees with the district court that the evidence here supports an award of healing period benefits beginning on April 2, 2015, it affirms.


 Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!


Peter v. Paylor, v. Dee Zee Incorporated And Travelers Indemnity Company Of Ct., Court of Appeals of Iowa, No. 14-1570

On November 10, 2010, Claimant, Peter Paylor, suffered a work related injury to his lower back for which he sought medical care on November 12, 2010. Claimant’s employer, Dee Zee Incorporated, stipulated the injury caused temporary disability. Claimant underwent back surgery in April 2011. He claimed the surgery was causally related to the work injury and filed a claim for permanent disability benefits. The employer denied causation and denied Claimant sustained a permanent disability related to his work injury. The deputy commissioner found Claimant did not prove the April 2011 surgery and subsequent treatment were related to his work injury. The commissioner affirmed the decision. The district court affirmed the agency’s action.

On appeal, Claimant contends the agency’s finding that his surgery and subsequent treatment were unrelated to his work injury is not supported by substantial evidence. He contends, for the same reason, the agency’s decision is irrational, illogical, and wholly unjustifiable. 

The Court of Appeals concludes the agency’s decision is supported by substantial evidence and is not irrational, illogical, or wholly unjustifiable. The Court notes that the agency carefully assessed the medical evidence as reflected in Claimant’s medical records and the opinions of different physicians. The agency credited some of the medical professionals’ opinions over others based on their respective training, experience, and area of practice and based on whether the opinions jibed with Claimant’s symptoms. The agency further took into account the quality of the opinion based on the medical history, or lack thereof, Claimant provided to the respective medical professional. 

Medical causation presents a question of fact that is vested in the discretion of the workers’ compensation commission. While there may be evidence in the record contrary to the agency’s findings and conclusions, “[e]vidence is not insubstantial merely because it would have supported contrary inferences.” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 499 (Iowa 2003). The question is not whether the evidence would support a different finding, the question is whether the evidence supports the finding actually made. Accordingly, the Court of Appeals affirms the district court’s decision on judicial review.


Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue! 

Candace H. Seaman, Deceased, By Paul J. Seaman, Her Husband, Individually and as Administrator of the Estate of Candace H. Seaman, v. Burgess Health Center and Farm Bureau Mutual Insurance Company, Court of Appeals of Iowa, No. 14-1385

Claimant, Candace Seaman, was employed by Burgess Health Center as a mental health therapist/social worker. On January 25, 2010, Claimant was injured in a multiple vehicle car accident during the drive from her home in Sioux City to her workplace in Onawa. She died as a result of injuries sustained during the accident. Her spouse, individually and on behalf of her estate, sought workers’ compensation burial expense and death benefits. The agency found Claimant’s death did not arise out of and in the course of her employment and denied the claim. The district court affirmed the agency’s decision.

Under the going-and-coming rule, “absent special circumstances, injuries occurring off the employer’s premises while the employee is on the way to or from work are not compensable.”Quaker Oats Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996).  There are several exceptions to the going-and-coming rule that Claimant contends apply here. The claimant first contends Claimant was performing a special errand for Burgess at the time of her car accident. The claimant also contends the dual purpose exception applies to Claimant’s accident. The claimant argues the special errand or dual purpose of Claimant’s travel to work on the morning of her accident was the need to deliver her completed patient reports to Burgess. In support of the contention, the claimant argues the reports were time-sensitive and Claimant would be subject to discipline if she failed to deliver the reports. 

The Court of Appeals rejects this contention, noting there is no evidence in the record to support it. The agency found “there [was] no factual basis in this record to find that claimant was on a special errand at the time of her accident and death on Interstate 29 while driving from her home to her place of employment.” The agency found there was not a dual purpose for Claimant’s travel. The agency found the reports were not due that day. The evidence showed Claimant would not have suffered any adverse consequences if she failed to deliver the reports to her employer that day. The claimant admits the employer did not require Claimant to report to work that day. The Court of Appeals thus finds the agency’s findings are supported by substantial evidence and its conclusions are not irrational, illogical, or wholly unjustifiable. 

The claimant also contends a third exception to the going and coming rule is applicable here: the second business situs exception. The exception recognizes that some travel to and from an employee’s home to the workplace may arise in the course of employment where the employee’s home serves a secondary office.

The Court of Appeals rejects this contention as well. Claimant did some work at home in the evenings to complete her reports. Her employer did have a telephonic dictation system, which would allow Claimant to dictate her notes from anywhere, including her office at Burgess or at her home. The record is clear, however, that Claimant’s home was not a dedicated office space or secondary office space. Claimant never saw clients at her home. Further, Burgess never specifically directed her to work from home. The employer did not expect her to work from home and did not provide compensation for her work at home. The employer did not pay mileage or other expenses associated with Claimant’s commute. Burgess did not provide her with any equipment for her home. The agency concluded: “Catching up on occasional work at home or completing tasks at home that could be completed at the employer’s premises is an insufficient basis to find that claimant had dual employment premises.” The Court of appeals thus finds the agency’s findings are supported by substantial evidence and its conclusions are not irrational, illogical, or wholly unjustifiable. The District Court judgement is affirmed.

Charles C. Mullen and Julie L. Mullen, Administrators of the Brandon Mullen Estate, v. Steven Grettenberg, Court of Appeals of Iowa, No. 14-1699

Claimant, Brandon Mullen, was an employee of Steven Grettenberg, the sole proprietor of Grettenberg Farms, Ltd. Claimant was emptying a grain bin when he became trapped inside and suffocated. Grettenberg was working in the vicinity of the accident.

Charles and Julie Mullen, administrators of Claimant’s estate, sued Grettenberg for damages, alleging he engaged in grossly negligent conduct under Iowa Code section 85.20(2) as Claimant’s “supervisor” and “co-employee.” Grettenberg moved for summary judgment. He argued he was Claimant’s employer rather than his co-employee and, accordingly, the estate’s exclusive means of redress was under the workers’ compensation statute. The district court agreed with Grettenberg. The court stated:

"In this case, the Defendant is a sole proprietor who also worked alongside his employees. As yet, there is no Iowa authority which states that a sole proprietor who works alongside his employees should be deemed a co-employee for purposes of Iowa Code section 85.20."

The court also rejected an equal protection argument raised by the estate.

On appeal, the estate reiterates that Grettenberg should have been deemed a co-employee under section 85.20(2) and again raises an equal protection challenge to the court’s interpretation of the statute.

The Court of Appeals first points out that if a court “finds that a defendant is the plaintiff’s employer, then the court has no subject matter jurisdiction over a section 85.20 gross negligence suit against that defendant.”Henrich v. Lorenz, 448 N.W.2d 327, 331 (Iowa 1989). The estate admitted Grettenberg was Claimant’s employer. Accordingly, the district court lacked subject matter jurisdiction. Further, the Court of Appeals notes that case precedent forecloses the possibility of Grettenberg being “deemed” an employee. See Horsman v. Wahl, 551 N.W.2d 619, 621 (Iowa 1996);Crees v. Chiles, 437 N.W.2d 249, 252 (Iowa Ct. App. 1988); Carlson v. Carlson, 346 N.W.2d 525 (Iowa 1984).

The estate also makes an equal protection claim, arguing the differential treatment of employees of sole proprietors and employees of other business entities bears “no reasonable relation to the purposes of the act.” However, the Court of Appeals recognizes that the act itself makes no distinction between these types of employees. As Grettenberg points out, the act differentiates between employers and employees, not between employees. Most employers pay for qualifying compensable injuries through the statutory workers’ compensation system, whereas employees who injure co-employees through gross negligence, pay through common law negligence actions. Claimant was foreclosed from suing Grettenberg if Grettenberg was Claimant’s employer, whatever statutory form the employer assumed. Accordingly, the equal protection clauses were not implicated.

The Court of Appeals thus affirms the District Court’s dismissal of the estate’s petition for lack of subject matter jurisdiction. 

Premium Transportation Staffing, Inc. and Dallas National Insurance Co., v. Alan Bowers, Court of Appeals of Iowa, File No: 15-0378.

In an arbitration decision, the deputy commissioner found Claimant, Alan Bowers, carried his burden of proving he sustained a permanent injury to his low back as a result of a work injury in 2011 and that he was permanently and totally disabled. In its decision, the deputy specifically gave greater weight to the opinions of Dr. Sedlacek, a treating physician, and Dr. Mathew, an examining physician. The deputy concluded “the greater weight of the medical evidence indicates claimant’s work injury of October 17, 2011, caused claimant’s current low back and coccyx pain, and resulted in permanent impairment.” Again, giving greater weight to the opinions of Drs. Sedlacek and Mathew, the deputy concluded the “[c]laimant’s credible testimony also clearly demonstrates ongoing permanent disability.”

The deputy noted that Claimant’s testimony “that he spent only $12.00 per day for food and expenses and kept the remainder of the $52.00 per diem as compensation is uncontroverted in the record.” The deputy concluded Claimant showed by a preponderance of the evidence that only a portion of his per diem was reimbursement for expenses, and that the appellants did not carry their burden of proof to show otherwise. Finding that $12.00 of Claimant’s per diem payment was an expense allowance under Iowa Code section 85.61(3), the deputy commissioner included the remaining $40.00 of the per diem payment in calculating the weekly rate. On intra-agency appeal, the commissioner adopted and affirmed the arbitration decision without additional comment.

The appellants filed a petition for judicial review. They asserted the commissioner’s findings with respect to whether or not Claimant sustained a permanent injury to his low back, whether Claimant was permanently and totally disabled, and whether the per diem payment should have been included in Claimant’s weekly benefit rate were not supported by substantial evidence in the record and involved an application of law to fact that was irrational, illogical, or wholly unjustifiable. The district court affirmed the commissioner’s decision.

Appellants now appeal. On appeal, they raise the same arguments to the Court of Appeals as proffered to the district court.

The Court of Appeals first notes that its review of final agency action is “severely circumscribed,” and it is obliged to accept the factual determinations made by the agency. The Court thus affirms the decision of the Iowa Workers’ Compensation Commissioner, stating:

"We have carefully reviewed the record, the briefs of the parties, and the district court’s thorough and well-reasoned ruling. The district court’s ruling identifies and considers all the issues presented. In applying the above standard-of-review precepts, and in giving the due deference we are statutorily obligated to afford the commissioner’s findings of fact, we approve of the reasons and conclusions in the district court’s ruling. Further discussion of the issues would be of no value. See Iowa Ct. R. 21.26(1)(b), (d), and (e)."

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!


Key City Transport, Inc. and Great West Casualty Co. v. James Delire, Court of Appeals of Iowa, No. 14-1755

 Claimant, James Delire, was hired by Key City Transport as an over-the-road driver and commenced work on May 23, 2008. During his third week, Claimant was injured while unloading large windows.

 Dr. Setter diagnosed Claimant with a severe right shoulder sprain and cervical and thoracic sprains. Dr. Mendel then diagnosed Claimant with a possible slap lesion with a labral injury or impingement. Dr. Mendel proposed arthroscopic surgery. Surgery was performed in February 2009. Following additional treatment and therapy, Dr. Mendel recommended a second shoulder surgery, which he performed in February 2010. Dr. Mendel also performed a right carpal tunnel release, a right cubital tunnel release, a right arthroscopic glenohumeral joint and labral debridement and synovectomy, a right shoulder bio-tenodesis, and another subacromial decompression. Claimant met with Dr. Mendel in August 2010. Dr. Mendel opined Claimant had reached MMI and released him without any work restrictions.

Claimant began to experience pain in his left shoulder from overcompensation. In June of 2011, Claimant was told by Key City to make a ten-hour trip to Michigan. Claimant became upset and emotional. Bitter told Claimant to obtain a letter from a mental health professional opining he was able to drive. Claimant attempted to obtain mental health treatment, but the workers’ compensation carrier did not approve the sought-after treatment. Claimant never performed any work for Key City after this time.

 On June 26, 2011, Claimant filed his arbitration petition for the injury occurring in 2008. On February 12, 2012, Claimant filed a petition for alternate care and requested another appointment with Dr. Mendel. Dr. Mendel recommended another MRI, which revealed a small full-thickness tear of the rotator cuff. Great West denied the claim as not being work related. Claimant followed up with Dr. Mendel, who did not recommend surgery at that time. Dr. Mendel noted Claimant seemed depressed, and Dr. Mendel recommended a psychiatric evaluation. Key City scheduled a psychiatric IME with Dr. Jennisch. Dr. Jennisch concluded Claimant had an adjustment reaction with a combination of depressive and anxious features. Claimant requested Great West authorize mental health treatment, but it was not authorized.

The deputy commissioner issued an arbitration decision in September 2013. The deputy found Claimant’s left shoulder injury was “a sequela from compensating for the right shoulder injury.” The deputy concluded it was not possible to evaluate Claimant’s industrial disability because it was “highly doubtful claimant has actually reached maximum medical improvement.” The deputy awarded running healing period benefits “until such time as the requirements for termination of healing period benefits are met.”

Key City appealed. The appeal decision adopted the arbitration decision except the commissioner recalculated Claimant’s weekly compensation rate. The commissioner explained the record did not contain evidence of any weeks of work representative of Claimant’s earnings, but Claimant had been told that similarly-situated drivers earned $70,000 to $75,000. Thus, the commissioner concluded that claimant’s weekly compensation rate should be based on an annual income of $70,000.

 Key City petitioned for judicial review, challenging the weekly benefit rate, medical causation, and the award of healing period benefits. Claimant filed a crosspetition, challenging the commissioner’s determination of the weekly benefit rate. The district court affirmed the agency’s findings regarding medical causation and the award of healing period benefits. The district court reversed the agency’s calculation of the weekly benefit rate, explaining the process used could not be upheld “as either rational, logical, or justifiable.” The court remanded to the agency “to undertake the proper analysis of the facts contained within the record already made in coming to a proper rate calculation.” Claimant timely appealed, and Key City cross-appealed.

 Key City contends the district court erred in affirming the deputy commissioner’s findings of fact and conclusions of law regarding medical causation and in affirming the deputy’s award of running healing period benefits.  The Court of Appeals emphasizes that the relevant question is not whether the evidence would support a different finding, the relevant question is whether substantial evidence supports the finding actually made. The Court concludes that it does. It notes that Dr. Robin Epp, who conducted an IME, found that Claimant’s cervical and thoracic spine injuries were causally related to his work injury and also that Claimant’s shoulder injuries were linked to the work injury. Also, the agency relied on Dr. Jennisch’s determination that Claimant’s work injury was a substantial factor in causing Claimant’s mental health condition.

 As to the healing period benefits, the Court of Appeals notes that the agency awarded Claimant healing period benefits for several periods, including running healing period benefits from and after June 15, 2011. The agency made the award based on several considerations. First, Claimant did not successfully return to work. His routes were limited in distance. He did not perform loading and unloading. His employer precluded him from driving without a release from a mental health professional. Second, the agency found that Claimant had not in fact reached MMI. The agency found Claimant had physical and mental health conditions untreated and relevant to an industrial disability determination. As such, the Court concludes the agency’s findings on the issue of healing period benefits are supported by substantial evidence and its application of the facts to the law was not irrational, illogical, or wholly unjustifiable. 

Claimant contends the district court erred when it overturned the commissioner’s weekly rate calculation. The Court of Appeals agrees with the district court in finding that the commissioner’s use of hypothetical annual earnings to obtain weekly earnings cannot be upheld as rational, logical, or justifiable when the acceptable methods of determining Claimant’s weekly earnings are set forth by statute. The record does not contain any evidence of the earnings of “other employees in a similar occupation.” Nor does it contain evidence of any representative week “had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee’s employer for the work or employment for which the employee was employed.” 

The Court of Appeals therefore affirms the judgment of the district court.

 Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!


Menard, Inc. and Zurich Ins. Co. v. Kenneth Fenton, Court of Appeals of Iowa, No. 14-1924

Claimant, Kenneth Fenton, sustained a back injury in November 2010 while working as an operator on an assembly line at Menard, Inc. A deputy commissioner determined Fenton experienced “a 50 percent loss of earning capacity or industrial disability.” The deputy awarded him permanent partial disability benefits. The commissioner affirmed the arbitration decision and adopted it in full.

Menard, Inc. and its insurance carrier, Zurich American Insurance Company (“Menard”), sought judicial review of the agency decision. The district court affirmed. On appeal, Menard contends the fifty percent industrial disability determination is not supported by substantial evidence and is an irrational, illogical, and wholly unjustifiable application of law to fact. Menard specifically asserts “[t]he commissioner failed to compare the condition of the Claimant’s low back before the work injury with the condition of his low back after having undergone surgery” or his earning capacity before and after the injury.  

The Court of Appeals affirms the commissioner’s workers’ compensation decision in favor of Fenton. Having found substantial evidentiary support for the commissioner’s key determinations, the Court concludes the commissioner’s application of law to fact was not irrational, illogical, or wholly unjustifiable.

Specifically, the Court noted that the deputy commissioner summarized Fenton’s medical history, including his back problems, and found “no evidence [Fenton] had any permanent impairment prior to this 2010 injury.” The deputy also enumerated Fenton’s earnings in the year of his injury and in ensuing years. The deputy found Fenton had been moved to a “floater” job, which “was not a permanent position at the time of the hearing.” These findings are supported by substantial evidence.

Menard, Inc. and Praetorian Insurance Company v. Dale Simmer, Court of Appeals of Iowa, No. 14-2078

Claimant, Dale Simmer, had been employed by Menards since 2003. In his positions at Menards, Simmer was often required to carry goods throughout the store and to customers’ cars in the parking lot. These loads sometimes reached up to three hundred pounds.

In late 2008 and early 2009, Simmer began to experience pain in his feet that spread up into his thighs while working. He was seen by Dr. Riesen to manage the pain through various treatments. He continued to work without restrictions. By April 2010, Simmer’s pain had spread to his lower back, and Dr. Riesen referred Simmer to Dr. Mehbod at the Minnesota Back Institute. He learned for the first time that he had scoliosis. Simmer again returned to his position at Menards without restrictions.

By early 2012, Simmer’s pain had returned and intensified. On February 9, 2012, Dr. Mehbod explained that Simmer’s employment may have had a causal connection to Simmer’s worsening condition. Dr. Mehbod advised Simmer to undergo surgery, which was performed on March 7, 2012.

Simmer went to work on June 4 without restrictions, but after one hour he experienced intense pain and was unable to continue working. June 4 was Simmer’s last day working at Menards. He filed a petition for workers’ compensation benefits on June 27, 2012.

A hearing on the petition took place on May 15, 2013. The parties presented as evidence several doctors’ opinions as to the cause of Simmer’s injuries and whether the injury was work-related. Dr. Mehbod wrote, “[W]orking 12 or more hours per day in the paint department at Menards standing and walking on concrete with heavy lifting aggravated, accelerated or [sped] up the degenerative process in [Simmer’s] back.” Dr. Mendoza wrote, “Mr. Simmer’s condition of degenerative scoliosis is an osteoarthritic condition caused by wear and tear and occurs regardless of the type of occupation.” Simmer’s counsel retained Dr. Miller, who wrote, “[Simmer’s] work was a significant aggravating factor for the pre-existing condition of lumbar scoliosis with degenerative change making the back pain progressive symptomatic.” Menards’s counsel retained Dr. Boarini, who wrote, “There is no indication that work was a specific aggravating factor for the progress of his degenerative disease.” Dr. Mooney wrote, “there is no direct evidence that his work . . . at Menards has been a direct contributor or a material aggravator of this idiopathic medical condition.”

The deputy commissioner who heard the case determined Simmer had provided Menards with the requisite notice within ninety days of reasonably recognizing the serious and compensable character of his injury. The deputy further found Simmer’s injury was a “cumulative injury arising out of and in the course of his employment,” which entitled Simmer to benefits. Menards appealed to the workers’ compensation commissioner, who affirmed the deputy’s order. Menards then filed for judicial review, and the district court affirmed the commissioner. Menards now appeals.

First, Menards asserts there is not substantial evidence to support the commissioner’s finding that Simmer provided timely notice of the injury to his employer. The Court of Appeals holds that the record contains substantial evidence that supports the agency’s determination: Simmer, acting as a reasonable person and including all knowledge that could imputed to him, discovered the seriousness of his injury on June 4, 2012. He therefore gave timely notice of the injury to his employer, and his claim is not barred by Iowa Code section 85.23. The Court noted that the medical advice Simmer received from Dr. Mehbod indicated Simmer would have a lengthy recovery period but did not foreclose him from eventually returning to his job in a comparable capacity. A reasonable person in receipt of such advice from a medical specialist would believe he could make a substantial recovery from his injury and surgery.

Second, Menards claims there is not substantial evidence to support the commissioner’s finding that Simmer’s injury arose out of and in the course of his employment. The Court of Appeals finds that Dr. Mehbod’s and Dr. Miller’s expert opinions constitute substantial evidence supporting the agency’s causation determination. It noted that it did not need to consider whether the expert opinions of the other doctors contradict those of Dr. Mehbod and Dr. Miller or offer alternative theoretical causes.

Therefore, the Court of Appeals affirms the district court opinion and finds that substantial evidence in the record supports the agency’s findings. 

Monte M. Thompson v. ATI Products, Inc., Court of Appeals of Iowa, No. 14-1765

Claimant, Monte Thompson, was employed by Aventure Staffing and Professional Services, LLC. Aventure is a labor broker that assigns its employees to perform work on a temporary basis for its customers. On July 29, 2010, Thompson was seriously injured on his first day of work at A & I Products, the corporate predecessor of ATI Products. Thompson had been placed at ATI’s facility by Aventure.

Thompson filed a claim for and received workers’ compensation benefits through Aventure. He filed this suit against ATI for negligence arising out of the workplace injury. ATI moved for summary judgment on the grounds it was Thompson’s “special employer” as a matter of law and Thompson’s negligence claim was thus barred by the exclusive remedy provision in the workers’ compensation code. The district court granted ATI’s motion for summary judgment. Thompson timely filed this appeal.

The limited issue before the court is whether the district court erred in concluding the summary judgment record established ATI and Thompson had an employer-employee relationship as a matter of law.

Iowa’s workers’ compensation scheme provides “the exclusive and only rights and remedies of the employee” arising out of a work-related injury “against the employee’s employer.” Iowa Code § 85.20. An employee is precluded from maintaining “any other action other than workers’ compensation against the employer . . . for injury arising while the employee is acting in the course of his employment.”Jones v. Sheller-Globe Corp., 487 N.W.2d 88, 90 (Iowa Ct. App. 1992).

“[T]he threshold determination in deciding whether a worker falls into the workers’ compensation scheme is whether the worker entered into a contract of hire, express or implied.”Parson v. Procter & Gamble Mfg. Co., 514 N.W.2d 891, 893 (Iowa 1994). “The question of whether a contract of hire exists is ordinarily one of fact,” and “in cases involving the question of whether an employee of a general employer became the employee of a special employer, the presumption is that the general employer continues as the sole employer.”Id. at 893-94.

Based on the controlling Parson decision, the Court of Appeals concludes that a reasonable juror could find Thompson was the exclusive employee of Aventure and not a special employee of ATI, and therefore, the district court erred in granting the defendant’s motion for summary judgment.

The Court looked at the legal relationship between the labor broker and its customer. The language in the contract between Aventure and ATI supports an inference that Thompson remained exclusively an Aventure employee even while performing work at ATI’s facility. The division of responsibility between Aventure and ATI with respect to the employee’s compensation and benefits also supports an inference that Thompson was exclusively an employee of Aventure. The Court also considered the documents between the employee and the labor broker, which would bear on the employee’s intent. Thompson signed a release of workers’ compensation claims with Aventure. When viewed in the light most favorable to Thompson, the documents defining the relationship between Aventure, ATI, and Thompson all support an inference that Thompson was exclusively an employee of Aventure and not ATI.

Additionally, the Court considered Thompson’s testimony and his understanding of his relationship with Aventure and ATI. When Thompson was assigned to work at ATI, he “considered [himself] to be employed by Aventure not [ATI], where [he] was merely a temporary worker.”

ATI argues the “overwhelming majority of jurisdictions have determined customers of labor brokers/temporary employers are protected by the state’s workers’ compensation act from common law tort liability” and cites more than thirty decisions from jurisdictions around the country as support for that argument. However, the Court of Appeals notes that this weight of persuasive authority does not allow it to disregard controlling authority. TheParson decision provides that the question presented typically is one of fact. On the summary judgment record in this case, in light ofParson, the Court concludes reasonable minds could differ on the question whether Thompson and ATI both had the intent to enter into an employment relationship.

Accordingly, the Court of Appeals reverses the district court’s grant of summary judgment and remands this case for further proceedings.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Taylor Industries, Inc., a/k/a Hussmann Corp, and Indemnity Insurance Co. of North America v. Brent Lepley, Court of Appeals of Iowa, No. 15-0243

Claimant, Brent Lepley, sustained an injury on July 31, 2012, while working for the employer. The initial treatment was to Lepley’s left shoulder; however, several weeks later, Lepley began complaining of pain in his right shoulder as well. The employer denied liability for the right shoulder injury, and the matter proceeded to a workers’ compensation hearing. The deputy commissioner determined Lepley’s right shoulder condition was not work related. On intraagency appeal, another deputy commissioner, hearing the appeal by designation of the commissioner, reversed this decision, concluding Lepley carried his burden to prove his right shoulder injury was causally related to the work injury. Because Lepley was not at maximum medical improvement for either shoulder injury, the employer was ordered to pay for past and future treatment for both shoulders.

The employer filed a petition for judicial review with the district court, challenging the evidence supporting the finding of causation for the right shoulder injury. The district court upheld the agency’s decision under a substantial evidence review pursuant to Iowa Code section 17A.19(10)(f) (2011). The employer appealed.

The Court of Appeals affirms the district court’s judicial review decision finding that substantial evidence supports the agency’s finding of causation with respect to the right shoulder injury. The Court noted that the district court correctly analyzed both the applicable law on judicial review and the facts of this case.

Helen L. Lampman v. Chrystal Inc. and First Comp Insurance Co., Court of Appeals of Iowa, No. 14-1983

Claimant, Helen Lampman, began working for Regency Care Center in July 2008 as a certified medication aide and certified nursing assistant. On May 9, 2009, Claimant was lifting a resident into bed when the resident pulled Claimant down by her ponytail. Claimant went to the hospital the next day with complaints of pain in her lower back and going down her legs. Regency fired Claimant on May 11, 2009.

Claimant received extensive medical treatment following her injury from a number of doctors. On May 14, 2009, Dr. Prevo diagnosed Claimant with low back pain. Dr. Miller believed Claimant reached MMI on August 14, and opined that Claimant had “a permanent partial impairment of 1% to 2% of the lumbar back.” Dr. Jones performed an independent medical examination (IME) on October 16, 2009, which rated Claimant’s permanent impairment at five percent, and stated “this problem will continue into the indefinite future.”

In January 2010, Dr. McGuire, an orthopedic surgeon, examined the Claimant’s MRI, and noted the beginning of degenerative spondylolisthesis. Dr. McGuire prescribed Claimant a cane and a walker and agreed she had sustained a five percent permanent impairment. Dr. McGuire stated further that Claimant’s lifting incident on May 9, 2009, was a substantial and primary cause of her back pain. Dr. McGuire also noted he had “access to absolutely none of her treatment records.”

Dr. Ransdell treated Claimant for pain from July to December of 2010. Dr. Ransdell stated in his deposition that he did not believe a single traumatic event in 2009 could cause Claimant the level of continuing pain she complained of, but indicated lifting events could exacerbate an underlying condition. Dr. Ransdell did not have access to Claimant’s medical records other than those received from Dr. McGuire. Dr. Boarini examined Claimant on June 16, 2010 for an IME, and stated she “exhibits some obvious exaggerated pain behavior.” On November 9, 2011, Claimant underwent a functional capacity evaluation by Dr. Mark Blankespoor who found that she should be placed in the sedentary category of physical demand characteristics.

Claimant filed a petition alleging a cumulative injury to her back and legs with an injury date of May 9, 2009. On May 3, 2012, a deputy commissioner held an arbitration hearing. The deputy commissioner awarded Claimant permanent partial disability benefits based on a five percent industrial disability. Claimant filed an appeal to the commissioner who adopted as the final agency decision the portions of the arbitration decision challenged on appeal. The commissioner found Claimant’s testimony was not credible in regard to her level of pain.

Claimant sought judicial review on July 2, 2013. Claimant argued she sustained a permanent total disability, or at least seventy percent industrial disability due to the May 9, 2009 injury. The district court decided substantial evidence supported the agency’s award of five percent industrial disability. Claimant appealed.

Claimant first contends the agency’s decision to award five percent industrial disability is factually flawed and not supported by substantial evidence. The Court of Appeals notes that it is not in a position to second-guess the commissioner’s credibility findings or to reweigh the expert evidence received by the agency. The commissioner decided any permanent restrictions on Claimant’s work activity were not due to her May 2009 back injury. In reaching that decision, the commissioner rejected the opinions of those doctors who believed the work injury resulted in permanent restrictions because Claimant provided them with an “incorrect history” of her back pain. Because the record contains substantial evidence to support the commissioner’s factual findings, the Court will not disturb the determination of five percent industrial disability.

Claimant next argues the agency decision is the product of reasoning so illogical as to require reversal under section 17A.19(10)(i). The Court of Appeals, like the district court, concludes the commissioner’s determination was not illogical or irrational. The commissioner explained why he determined Claimant’s industrial disability was only five percent. Specifically, the commissioner reasoned Claimant was not credible regarding her back pain related to the work injury and to the extent that she provided inaccurate information to her doctors, the commissioner discounted their opinions that she suffered permanent restrictions caused by the back injury at Regency.

Claimant also claims the commissioner’s finding of only five percent industrial disability was an abuse of discretion requiring reversal under section 17A.19(10)(n). The Court of Appeals reaches the same decision as the district court: the commissioner exercised the agency’s considerable discretion within tenable grounds and to a reasonable extent.

The Court of Appeals thus affirms the decision of the district court.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self-Insurers’ Association, Property Casualty Insurers Association Of America, National Association Of Mutual Insurance Companies, And Iowa Association Of Business And Industry, v. Core Group Of The Iowa Association For Justice; Christopher J. Godfrey, Workers’ Compensation Commissioner, Division Of Workers’ Compensation; And The Iowa Department Of Workforce Development, Supreme Court of Iowa, No. 13-1627

On April 20, 2012, the Workers’ Compensation Core Group of the Iowa Association for Justice (Core Group) filed a petition for declaratory order with the commissioner. The petition sought a determination whether Iowa Code section 85.27(2) mandates that employers or insurance carriers defending workers’ compensation claims must immediately provide copies of surveillance videos, photographs, and reports concerning the claimant’s physical or mental condition upon receiving a properly phrased discovery request. Four professional and trade associations, including the Iowa Insurance Institute, intervened.

On June 26, the commissioner held a hearing on the petition for declaratory order. At the hearing, Core Group asserted section 85.27(2) applies to surveillance materials because surveillance footage, photographs, and reports are “information . . . concerning the employee’s physical or mental condition relative to the claim.” Iowa Code § 85.27(2). The Institute, on the other hand, asserted that if the commissioner ruled on the petition, he should conclude section 85.27(2) does not mandate that employers disclose surveillance materials before deposing a claimant.

On October 23, the commissioner ruled on the petition for declaratory order. The commissioner concluded section 85.27(2) applies to surveillance materials and waives the work product privilege except to the extent that requested materials contain “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” He further concluded employers or insurers must produce surveillance materials upon request from a claimant and may not withhold the materials until after deposing the claimant.

The Institute sought judicial review in the district court. The district court affirmed the commissioner’s ruling in its entirety. The Institute appealed. The court of appeals likewise affirmed the commissioner’s declaratory order. The Institute sought, and the Supreme Court of Iowa granted, further review.

The Supreme Court concludes the commissioner erroneously interpreted Iowa Code section 85.27(2) as requiring the production of postclaim surveillance to the employee before the employee’s deposition.

In its decision, the Supreme Court first concludes that surveillance constitutes work product under the Iowa Rules of Civil Procedure because surveillance materials are documents or tangible things, prepared in anticipation of litigation, by or for another party or that party’s representative. Iowa R. Civ. P. 1.503(3). The Court therefore agrees with the prevailing view that surveillance materials are protected work product that is only “discoverable upon a showing of substantial need and undue hardship.” The Court also notes that the consensus seems to be that surveillance loses the status of protected work product once a determination is made that the surveillance will be used at trial.

In interpreting section 85.27(2), the Court’s analysis centers on the phrase “all information . . . concerning the employee’s physical or mental condition relative to the claim.” Iowa Code § 85.27(2). In the view of Core Group, it applies to any information that may bear upon the employee’s physical or mental condition, including otherwise protected work product. According to the Institute, it applies only to information that addresses the employee’s physical or mental condition directly, as a health care provider record would, rather than inferentially.

The court used the tools of statutory construction to interpret the ambiguous phrase. The court first focuses on the wording of section 85.27(2) itself. It notes that Core Group justifiably attaches significance to the words “all information.” Iowa Code § 85.27(2). However, courts have long recognized that statutes should not be interpreted in a manner that leads to absurd results. Applying this principle in the case at hand reveals a problem with Core Group’s reading of the statute. If “all information” means all information and not merely, in context, all health care provider information, Core Group’s interpretation would eliminate all privileges and protections—e.g., work product, attorney work product, attorney– client, priest–penitent—to the extent the item refers to the employee’s physical condition. The Court believes that is an absurd result that could not have been intended by the legislature.

The Court also notes that most jurisdictions to have considered this issue allow the responding employer to withhold production of surveillance until after the employee’s deposition—while requiring the surveillance to be produced before the hearing. The Court concludes that allowing an employer or an employer’s attorney to withhold surveillance until after the employee’s deposition does not undermine the policies behind workers’ compensation including the high value placed on getting benefits in the hands of injured workers.

The Court concludes that reasonable arguments can be made for and against the commissioner’s interpretation of Iowa Code section 85.27(2). In the end, however, the Court is persuaded that the section is directed at health care provider records and not at any information that might have any bearing on an employee’s physical or mental condition, including work product surveillance. The Court specifically notes that Section 85.27(2) does not refer to attorneys, does not mention discovery barriers other than “privileges” (which the work product immunity is not), and falls within a code provision that is otherwise limited to health care services. Most importantly, the commissioner’s interpretation has no limiting principle. If all means all, then even an attorney–client privileged email from a claimant to her attorney discussing her impairment would have to be produced—an outcome that even the commissioner is unwilling to countenance. Hence, the Court finds the declaratory order erroneously determined that Iowa Code section 85.27(2) applies to surveillance.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!