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.


Iowa

PEDDICORD WHARTON

  515-243-2132

John Walter Podgorniak v. Asplundh Tree Expert Company and Lumbermen’s Mutual Insurance Company,Court of Appeals of Iowa,No. 2-943 / 12-0644

 

The claimant injured his left shoulder, neck and head while working for the employer. He filed a workers’ compensation proceeding which ultimately awarded him alternate medical care and running healing period benefits. The Claimant was referred to a treating physician who opined the claimant was at maximum medical improvement; based upon this, the employer terminated the claimant’s healing period benefits.

 

The Claimant subsequently filed a review reopening petition which raised several issues including a request for penalty benefits based upon the termination of healing period benefits. The deputy awarded a penalty of 50% of all healing period benefits that the claimant asserted were not timely paid based upon the determination that the employer unreasonably delayed the payment of weekly benefits to the claimant. On appeal to the commissioner, the designated deputy reversed the decision reasoning that the decision to terminate healing period benefits was fairly debatable. The decision was affirmed by the district court.

 

The decision was appealed to the Court of Appeals which took up review of the issue based upon the substantial evidence standard of review. The claimant asserted that the appeal deputy erred by applying a non-statutory ‘fairly debatable’ standard as a per se defense to a penalty claim. The Court however stated that established case law supported the ‘fairly debatable’ language and that there was no material difference between the judicially created standard of ‘fairly debatable’ and the statutory standard set forth in the Iowa Code requiring a reasonable or probable excuse for delay in payment of benefits. The Court then stated that the deputy did not ignore the requirements of the Iowa Code by relying upon the judicial opinions which discussed those requirements.

 

The Court then discussed the issue as to whether substantial evidence supported the finding made by the commissioner. The Court found substantial evidence in the opinions of three doctors that the claimant was at maximum medical improvement. The claimant attempted to claim that these opinions carried no weight as they were rendered before the claimant completed his alternate care, but the Court found no case law to support this proposition. The Court then affirmed the finding of the commissioner based upon substantial evidence.

 

Pilgrim’s Pride Corporation and Zurich North American v. Johnie M. Eakins,Court of Appeals of Iowa,No 2-1016 / 12-0901

 

The employer appealed the district court’s ruling which affirmed the commutation decision of the workers’ compensation commissioner. The deputy had granted the claimant’s request for a partial commutation, giving him a lump amount rather than weekly benefit payments.

 

The Court first discussed that partial commutations may be awarded when it is found to be in the worker’s best interests based upon a number of factors, which include: age, education, mental and physical condition, life expectancy, family circumstances, living arrangements, responsibilities for dependents, financial condition, debt, living expenses, and reasonableness of plan for investing lump sum proceeds and ability to manage the invested funds.

 

The employer contended that the agency failed to consider the claimant’s lack of financial sophistication, the tax consequences of the commutation decision and the claimant’s lifelong interest instead of just his current financial situation. The Court stated that the agency’s decision did in fact clearly consider these issues. The Court then noted that the agency was particularly concerned with the claimant’s ability to find adequate housing should he not receive a commutation. The agency also considered the fact that the claimant would only draw down interest and principal of the lump sum until his wife completed nursing school and obtained employment. The claimant also intended to conserve the principal to provide an estate for his wife should she survive him. Based upon these factors the agency determined that the commutation was in the claimant’s best interest long term and the Court could find no error in the agency’s application of law to these facts.

 

The employer also attempted to argue that substantial evidence did not support the awarding of the commutation as the claimant had a lack of income to pay day to day expenses and his desire to spend the benefits on other family members. The employer also indicated that the claimant’s history of spending money indicated that he would spend the money rather than invest it, which would leave him destitute. The Court acknowledged that there was evidence to support the conclusion that the commutation was not in the claimant’s best interests, but stated that it was not the job of the appellate court to determine whether the evidence supports a different finding but rather whether the finding made was supported by substantial evidence. The Court ultimately found substantial evidence supported the award of the commutation. The evidence relied upon was the claimant’s desire to obtain adequate housing and his indication that he would employ the services of a financial advisor.

 

The next issue taken up by the court was what was the correct date to commute the award from. The Court found that the correct date to be used to calculate the interest rate for the purposes of the commutation was the date the agency decision became final. This was based upon Iowa Code Section 85.48, which sets the rate to be paid based upon the interest at the time judgment is entered. The Court held that a workers’ compensation decision becomes a final judgment when there is a final decision without further proceeding, unless there is an appeal to the agency. As there was an appeal to the commissioner in this case, a final judgment was not entered until the decision of the commissioner. The Court then ordered that the commutation be revised to reflect the value of the commuted weeks and that any weekly payments made after the date of the commissioner’s decision while the case was on appeal should be credited to that value.

 

Ottumwa Manufacturing d/b/a Cadbury Schweppes Holding, Inc., v. Carl Boyd Sr.,Court of Appeals of Iowa,No. 2-813 / 12-0889

 

The claimant sustained an injury to his feet on August 22, 2008 when they were run over by a forklift while at work. This caused crush injuries to both of his feet. The claimant began to treat with podiatrist, Dr. Scott King. An MRI revealed a bony contusion of the metatarsal joints. The claimant claimed to have reported hip pain since he was injured, but Dr. King did not note any right sided hip pain until March of 2009. Dr. King associated this pain with the claimant’s work injury and assigned restrictions. Later, he signed a letter deferring to the claimant’s other physicians in regards to work restrictions and the cause of his hip injury.

 

The claimant was also seen by Dr. Kenneth Pollack, a pain management specialist. The claimant complained of pain in his low back and right hip, which Dr. Pollack theorized was likely caused by altered body mechanics stemming from his crush injury. In March of 2009, Dr. Pollack opined that the claimant’s left knee and right hip pain were a direct result of his work related injury. This was based on the claimant having no symptoms prior to his injury. However, in January 2010, Dr. Pollack signed a letter which stated he was unable to state that the claimant’s right hip complaints were a result of the claimant’s 2008 work injury.

 

The Claimant was seen by Dr. Nettrour, a hip specialist, in November of 2009. He opined that the claimant had a right hip injury with unclear etiology. He subsequently signed a letter which stated the claimant suffered no identifiable hip injury and any hip pain could not be related to his work injury. The Claimant was also seen by Dr. Friedgood, a neurologist, who opined the claimant did not need permanent restrictions based upon his right hip injury.

 

The Claimant was seen by Dr. Stoken for an independent medical exam in November of 2009. Dr. Stoken related the claimant’s complaints of pain in his feet, right hip and low back to his work injury. He was placed at maximum medical improvement as of September 21, 2009 and given an impairment rating of 28% to the whole body. He was given permanent work restrictions to avoid prolonged standing and walking and to avoid repetitive bending, twisting and lifting.

 

 

The Claimant was next seen by Dr. Eric Barp. Dr. Barp believed the claimant to likely be at maximum medical improvement. His work was restricted to sit down work only. Late Dr. Barp indicated the document assigned this restriction was in error and that the claimant could return to work without restrictions from a foot and ankle standpoint. The claimant was then given a permanent impairment rating of 4% to the body as a whole.

 

At hearing, the deputy found the claimant’s injury extended beyond his lower extremities into his right hip. The deputy then found the claimant to have suffered an 80% industrial disability. On intra-agency appeal, the claimant argued he should have been given an award of total permanent disability. The decision of the deputy was affirmed by the commissioner; which was subsequently affirmed by the district court.

 

Both parties appealed to the court of appeals. The employer argued that the commissioner erred in determining the claimant sustained a whole body injury rather than an injury to the bilateral lower extremities as there was insubstantial evidence to support the finding. Ultimately the Court found substantial evidence supported the finding made by the commissioner. The Court focused on the fact that the commissioner gave greater weight to the opinions of Dr. Stoken as well as the opinions of Dr. Pollack indicating the hip pain was related to claimant’s work injury. The Court indicated it was not their duty to re-weigh the evidence or to question the weight given to expert opinion, as such the court found substantial evidence supported the finding made by the agency.

 

The Court then turned its attention to the assignment of 80% industrial disability awarded by the agency. The employer contended that substantial evidence did not support the award. The claimant on the other hand argued that he should have been awarded permanent total disability. The Court found that substantial evidence supported the award made by the agency. The Court looked to the factors that the agency considered such as claimant’s use of a wheel chair – which while self imposed – the court found necessary, a vocational evaluation showing the claimant could only perform sedentary work, his inability to perform part time employment and the opinion of the claimant’s vocational expert indicating there were no jobs available to the claimant in the current job market. However, the Court noted that the agency did not award permanent total disability as the claimant’s physicians had not imposed work restrictions which would keep him from being able to perform seated work.

 

Based upon the factors above the court found the award of 80% industrial disability was supported by substantial evidence and the decision of the agency was affirmed.

 

Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa

 

The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.

 

The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.

 

At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.

 

The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.

 

The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.

 

Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa

 

This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.

 

Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.

 

The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.

 

This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.

 

The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.

 

The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.

 

The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.

 

After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.

 

The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.

 

The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.

 

Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the 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!

Angel Richards v. Creston Nursing & Rehabilitation Center, Court of Appeals of Iowa, No. 2-1017 / 12-1120

 

The Claimant began working as a CNA with the defendant in October of 2005. Prior to this, the Claimant had a history of back pain starting in 2002. On February 13, 2006, the Claimant alleged a back injury that occurred while she was moving a patient. She sought medical attention that day and returned to light duty four days later. According to the attending physician she was fully recovered on February 27, 2006.

 

The parties stipulated that the Claimant again injured her low back while assisting a resident out of bed on October 10, 2006. She saw Dr. John Hoyt who gave her epidural injections, muscle relaxers and physical therapy. She was then assigned to half days with no lifting but continued to experience some radiating right leg pain.

 

In early December 2006, Dr. Hoyt increased claimant’s restrictions to being able to lift 50 lbs. The Claimant then apparently aggravated her back while cleaning tables in late December at work. She was then seen by Dr. Lynn Nelson, an orthopedic surgeon, in January. An MRI taken at this time revealed that the claimant had very small disc bulges at L4-5 and L5-S1, however she was not experiencing a significant degree of impingement. Dr. Nelson opined that no surgery or injections were necessary; but did limit the claimant to office work and a 15 lb lifting restriction.

 

In January 2007, the Claimant slipped in the defendant’s parking lot and was again seen by Dr. Hoyt. Dr. Hoyt found the claimant’s symptoms to be improving. Then in February of 2007, the claimant was fired for excessive absenteeism. Soon thereafter, the Claimant was discharged from Dr. Hoyt’s care in March of 2007. She was briefly employed as a telemarketer in June, but then left to care for her father in law. Once he was improved, the Claimant began as a CNA at Crest Haven Care Center in January of 2008. At her pre-employment physical the Claimant was reported as being pain free in regards to her back. She worked without restrictions at Crest Haven and ultimately left her employment there due to circumstances unrelated to her back.

 

In April of 2008, the Claimant began working as a cashier at Kum & Go. In August of 2008, the Claimant fell in the Kum and Go parking lot. She saw Dr. Gerdes complaining of severe tail bone and back pain. She was diagnosed with acute lower back spasm and returned to work a week later with lifting restrictions. In September of 2008, the Claimant reported another fall at Kum & Go. An MRI taken revealed mild degenerative disc disease at L4-5 and L5-S1 with annular disc bulges, but no other maladies.

 

Kum & Go denied the claimant’s workers compensation claim stemming from this September fall as there was no significant difference in her MRI results from 2007 as to 2008. The employer also suspected the Claimant may have lied about the fall to obtain time off from work.

 

In November of 2008, the Claimant sought an IME with Dr. Robert Jones. Dr. Jones attributed the claimant’s pain primarily to her October 2006 injury. He opined that her improving symptoms did not mean the injury had completely resolved, but could not apportion a percentage of pain between her CNRC injury and the fall at Kum and Go. He assessed the claimant to have 5% permanent impairment causally related to the two injuries.

 

The Claimant was fired from Kum and Go in October of 2008 for unexcused absenteeism. She has been unable to find work since. The Claimant filed the current workers’ compensation action against CNRC in April of 2009. In connection with the claim, Claimant’s counsel wrote to Dr. Nelson for his opinion as to whether the Claimant’s injury was caused by her incident at CNRC or the fall at Kum & Go. Dr. Nelson ultimately opined that the claimant’s incident in October of 2007 did not result in permanent impairment.

 

At the claimant’s deposition she testified that she had trouble sitting as well as using stairs due to her low back pain. Video surveillance conducted of the claimant showed her ascending and descending stairs with no problem. The deposition and surveillance footage, as well as claimant’s medical records, were provided to Dr. Jones to obtain his opinion on causation. He continued to opine that the claimant’s 2006 nursing home injury was a significant causative factor in the claimant’s current complaints.

 

After the arbitration hearing, the deputy issued a ruling which found the claimant failed to carry her burden of proof that her work injury caused her permanent impairment. The conclusion was based largely on the claimant’s lack of credibility while testifying. The deputy also found Dr. Jones had relied on a very suspect history in rendering his opinions. The opinion of the deputy was adopted by the commissioner which was affirmed on appeal as being supported by substantial evidence.

 

The case was then appeal to the Court of Appeals. The Court first noted that its review would be based upon the substantial evidence standard as the case was based upon factual determinations which were vested in the agency’s discretion. The Claimant challenged the findings of the agency in regards to the Claimant’s credibility and the discounting of the opinion of Dr. Jones. In regards to the Claimant’s credibility, the Court found that even despite possible overstatements by the deputy in regards to the claimant’s tendency to deceive, the determination regarding credibility withstood a substantial evidence challenge. This was based upon numerous inconsistencies in the claimant’s testimony, both in her deposition and at hearing.

 

The Court then turned its attention to the issue of Dr. Jones’ opinion regarding causation. The Court found that the deputy had explained his reasoning for discounting the opinion of Dr. Jones as it was based upon the claimant’s statements which were found to lack credibility, and as such was relying upon a suspect history. The Court opined that it was within the purview of the deputy to weigh expert opinion testimony and the deputy did not abuse his discretion in finding the opinion of Dr. Jones’ unconvincing. As such, the Court affirmed the findings of the deputy.

Mercy Hospital Iowa City and Cambridge Integrated Services v. Susan Goodner, Court of Appeals of Iowa, No. 2-933 / 12-0186

 

 The Claimant was a family practice physician who treated two patients with mono in January of 2000. On January 18th, one of those patients vomited on the claimant’s hands during the examination. The Claimant began experiencing symptoms on February 4th and when they did not subside she performed a mono spot test on February 13 which came back positive.

 

The Claimant sought medical treatment from Dr. Wools-Kaloustian, an infectious disease specialist who diagnosed the claimant with mono. On February 25th, the claimant reported her illness to her employer and remained off work or worked reduced hours due to extreme fatigue.

 

The Claimant was eventually referred to Dr. Minner by the workers’ compensation carrier in July of 2000 to determine if there was a work-related condition and if further treatment was necessary. Dr. Minner found the infectious disease to be causally related to the claimant’s employment and referred further care to Dr. Ovrom. Dr. Minner also opined that the long term prognosis for complete recovery was good.

 

In November of 2000, the Claimant was seen by Dr. Gervich for a second opinion at the request of the claimant’s private disability company. Dr.Gervich expressed doubt that the Claimant ever contracted infectious mononucleosis, though he could not disprove it. This was based upon the incubation period of the claimant’s disease. Dr. Minner subsequently referred the Claimant to Dr. Wesner, a psychiatrist, due to possible depression. Dr. Wesner diagnosed the claimant with depression which was related to the chronic fatigue syndrome following her infection. She was referred to individual and family therapy which he believed were reasonable and necessary treatment for her major depressive disorder and the chronic fatigue syndrome.

 

The Claimant’s symptoms of fatigue waxed and waned over the next few years and she continued to see Drs. Ovrom, Wesner, and Minner. Dr. Ovrom’s initial diagnosis was post viral fatigue, but he revised his diagnosis in April of 2002 because he believed Goodner’s condition met the criteria for chronic fatigue syndrome, and recommended consideration of permanent partial disability. On July 24, 2002, Dr. Minner placed the claimant at MMI. At that time Goodner was able to work twenty hours per week and was “overall at approximately 70% of full-time productivity.” Dr. Minner retired soon thereafter and care was transferred to Dr. Buck.

 

The Claimant first saw Dr. Buck in October of 2002. Dr. Buck concurred with Dr. Minner’s assessment of maximum medical improvement, stating, “Clearly her condition has and will continue to have mild episodic relapse, but the overall pattern has been quite stable now for some time.” He anticipated her needing periodic care with both Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers. At his deposition, Dr. Buck stated that he believed there was a significant possibility that the Claimant had never contracted mono.

 

In November of 2002, the claimant was seen by Dr. Meier for a second opinion. She was diagnosed with chronic fatigue syndrome triggered by infectious mononucleosis. He further opined that he did not believe the claimant had reached MMI as her condition remained in a state of flux. Goodner underwent a series of studies including a sleep study, hormonal study, and immune disorder study at the prompting of the board of medical examiners. These studies came back normal, ruling out other conditions causing the fatigue.

 

The Claimant gained approximately thirty-three pounds during the course of her illness. She attributed this weight gain to her fatigue as she was unable to exercise regularly or plan healthy meals. She also developed type 2 diabetes, high cholesterol, and hypertension. She sought assistance from a weight loss clinic. When her attempts to lose weight were unsuccessful, she underwent bariatric surgery in May of 2007.

 

In October of 2008, the claimant was referred to Dr. Pocinki, an expert on fatigue syndrome. It was Dr. Pocinki’s opinion that the claimant met all the criteria for chronic fatigue syndrome, and he believed the condition was triggered by the mononucleosis infection. He determined she was not yet at maximum medical improvement and anticipated it would be another two to three years before she would achieve this state.

 

The claimant was then seen by Dr. Risk, for an independent medical exam at the request of her attorney in February 2009. Dr. Risk opined the claimant developed post viral fatigue syndrome as a result of her exposure to mononucleosis. Although her obesity predated her symptoms, her subsequent fatigue lead to inactivity and poor diet. This condition resulted in her gaining the additional weight and developing diabetes, hypertension, and high cholesterol. He also believed the fatigue led to depression. He did not believe she was at maximum medical improvement at that time.

 

At the request of Mercy Hospital, a records review was performed by Dr. Katz. He opined that while the claimant may have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he did not believe she contracted mononucleosis at all. He stated the likelihood of contracting mononucleosis in the way the claimant described was essentially zero. He also asserted the incubation period reported in the claimant’s case, seventeen days, was out of the question for this virus, which has a typical incubation period of forty to sixty days. He also stated the claimant’s clinical symptoms did not fit with infectious mononucleosis, which in older patients is typically characterized by a prolonged fever and liver involvement. Finally, it was Dr. Katz’s opinion that there was no specific concrete connection as to the cause of chronic fatigue syndrome; therefore, he doubted the causal link between mononucleosis and chronic fatigue syndrome.

 

Dr. Lutz also performed a records review at the request of Mercy Hospital. Like Dr. Katz, Dr. Lutz opined, in his March 2, 2009 report, there is no medical literature support for the way Goodner claims the mononucleosis virus was transmitted to her. He also found the incubation period in this case was too short for mononucleosis, which typically has an incubation period of one to three months.He asserted the claimant’s case likely was the result of “VIP syndrome” where a physician treats a patient differently when the patient is an important person such as a doctor. Dr. Lutz believed this was why no initial treating doctor tested for mononucleosis, but just accepted her description and self-diagnosis. He states that her treating providers assumed causation in this case rather than establishing it based on her history. He also opined that there was no data to support a viral cause of chronic fatigue syndrome as the cause of chronic fatigue is unknown. Finally, he was concerned with the level of medications the claimant was taking, because many of the medications could be the cause of her fatigue and have a sedating effect.

 

Finally, Mercy Hospital had Dr. Stutts conduct a psychiatric evaluation of the claimant in January 2009. After conducting a review of the medical records and a patient examination, Dr. Stutts recommended that the claimant discontinue many of the medications she was on because he believed the medications were contributing to her chronic fatigue syndrome in a significant fashion and likely perpetuating her problems. Dr. Stutts believed the psychotropic medication had so muddied the water that he could not tell if the claimant had chronic fatigue or if the symptoms were caused by the medication.

 

The Claimant’s employment status during this time was quite up and down. Ultimately the claimant took a full year off from practicing medicine in 2006 on the advice of her treating physicians. The Claimant stated this year off greatly helped her and she returned to practice at a clinic in Kalona, Iowa. However she was forced to resign this position in January of 2008 due to fatigue.She was advised by the medical board to stop seeing patients, and her medical license was placed on inactive status by mutual agreement in January of 2008. For the claimant to once again practice medicine, her treating physicians would need to recommend to the board of medicine that her license be reactivated, she would need to present a plan for how she would see patients without becoming fatigued, and the board would need to approve her plan.

 

The Claimant initially reported her workers’ compensation claim in February of 2000. The claim was accepted, and treatment and benefits were provided with no agency intervention until September of 2006. At that time the claimant filed a petition for alternate medical care asking the workers’ compensation commissioner to order Mercy Hospital to pay for physical therapy for strengthening and conditioning, and massage therapy for muscle aches. At hearing, counsel for Mercy Hospital admitted liability for the claimant’s February 2000 injury. Counsel also admitted that the claimant had a case of chronic fatigue syndrome “that has been accepted as a work injury.” During the hearing, Mercy Hospital agreed to provide the physical therapy requested, but asserted the massage therapy prescribed by Dr. Ovrom was “not causally related to the work injury.” The deputy commissioner authorized the care requested.

 

The claimant filed an arbitration petition with the agency on May 18, 2007, alleging she was permanently and totally disabled as a result of her work injury, which developed on February 4, 2000. On February 18, 2009, after consulting with Drs. Katz and Lutz, Mercy Hospital amended its answer to generally deny the injury. After hearing, the deputy issued a ruling finding Mercy Hospital judicially estopped from contesting liability for the injury due to the position Mercy Hospital took at the alternate care proceeding.

 

The deputy went on to conclude the claimant sustained an injury in the course and scope of her employment and that the chronic fatigue syndrome was causally related to that injury. The deputy commissioner found Mercy Hospital responsible for one-half of the cost of the family counseling ordered by her treating physicians. He also ordered Mercy Hospital pay the full cost of the bariatric surgery after concluding, “there is no evidence in the record that claimant ever had any weight problem before her exposure to [the virus].” The deputy finally concluded that the injury caused the claimant to be permanently and totally disabled as an odd-lot employee because her injury made her unable to perform work “that her experience, training, education, intelligence, and physical capabilities would otherwise permit her [to] perform.”

 

The findings of the deputy were adopted by the commissioner on appeal. The district court then affirmed the agency’s decision did not preserve error on its claim nor did it prove the agency acted irrationally, illogically, or without justification in finding Mercy Hospital should be judicially estopped from contesting liability for the injury after having admitted liability in the alternate care petition. The district court also found substantial evidence supported the findings of the agency. The case was then appealed to the Court of Appeals.

 

The Court first opined that the decision of the agency in regards to judicial estoppel would be reviewed de novo and the Court was free to substitute its interpretation of the law for that of the agency. The issue of whether the medical evidence supported the finding that the claimant contracted mono resulting in chronic fatigue syndrome would then be reviewed according to the substantial evidence standard as question of medical causation is a fact question vested within the purview of the agency. As to whether the claimant was permanently and totally disabled, this would be reviewed based on the irrational, illogical or wholly unjustifiable standard as it involved the agency’s application of law to the facts which is vested within the discretion of the agency.

 

The Court first took up the issue of whether Mercy Hospital was estopped from contesting liability for the claimant’s injury based upon its position at the alternate care hearing. The Court first looked to the established precedent fromWinnebago Industries, Inc. v. Haverly, which stated that an employer cannot change its position regarding liability subsequent to an alternate medical hearing barring a significant change in facts after the admission of liability. The Court stated that it could not overrule the holding inHaverly as it was Iowa Supreme Court precedent. The Court then took up the next argument of Mercy that the holding inHaverly had been limited by subsequent case law.

 

Mercy argued that a case known asTyson Foods, Inc. v. Hedlund, limited the application ofHaverly in this case. In Hedlund, a claimant had mistakenly filed an alternate care petition to which the employer had admitting liability. Once the claimant realized the mistake, the petition was dismissed. The claimant then later filed a second alternate care petition in which the employer denied liability. The Supreme Court held thatHaverly did not have preclusive effect in this instance as the deputy had not decided the first petition based on the admission of liability by the employer and as such it was a nonevent. In the present case, the Court differentiated the facts from those in Hedlund and found thatHedlund did not apply to the current situation as the deputy had accepted the admission of Mercy Hospital in ruling on the alternate care petition.

 

Mercy also tried to argue that Haverly should have no effect on the current situation as the alternate care petition was filed prior to the contested case proceeding (the alternate care petition in Haverly was filed after the contested case proceeding began). The Court found no merit to this argument as the doctrine of judicial estoppelis intended to prevent a party from asserting a position in a subsequent proceeding that is inconsistent with its position in a prior proceeding.

 

Mercy next argued that the exception applied in this case as there had been a significant change in facts based upon Mercy’s receipt of the opinions of Dr. Katz and Dr. Lutz which caused them to change their stance on liability. The Court found that the agency appeared to have rejected the “significant change in facts” exception on the basis that Mercy Hospital could have obtained the medical opinions from Drs. Lutz and Katz earlier. The Court did not further address the issue as to whether the exception applied in this case as the Court found the agency also decided the case on the merits, thus dodging the issue as to whether the exception applied in this case.

 

After its discussion of the issue of judicial estoppel, the Court next turned its attention to whether the medical evidence supported the findings made by the agency. The Court in finding that substantial evidence supported the findings of the agency articulated that it was within the purview of the agency, under Iowa case law, to determine how much weight to give to an expert opinion. It was not for the Court on appeal to reweigh the evidence which was considered by the agency. The Court could only determine whether or not substantial evidence supported the findings made. The Court opined that several of the claimant’s treating physicians testified, based on their knowledge and experience the mechanism of injury, the incubation period, and the causal connection between mononucleosis and chronic fatigue syndrome all supported a finding that the claimant suffered a work-related illness—mononucleosis—and her current condition—chronic fatigue syndrome—was causally related to work; thus substantial evidence supported the findings made.

 

The Court then took up the issue as to whether the claimant was permanently and totally disabled. The Court noted that Mercy Hospital claims the claimant in her deposition admitted that if she exercised and did the right things she would regain the ability to work at least part time as she had from the onset of her illness until quitting her job at the clinic in 2008. Mercy Hospital argued that the agency cannot award total disability to a claimant who admits she can take action to return to work, but refuses to do so. The Court found this argument appealing but noted that the expert testimony supported the finding of permanent and total disability.

 

The Court noted that the finding of permanent disability was based upon claimant’s classification as an odd lot employee. The Court opined that an odd-lot employee is totally disabled if “the only services the worker can perform are ‘so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.’” The Court then stated that even assuming the claimant was able to obtain her license to practice medicine again and could practice medicine part time if she “exercised and did the right things” as Mercy Hospital contends she should do, this does not foreclose the agency’s determination she is an odd-lot employee entitled to an award of permanent total disability. The Court noted that the agency gave greater weight to the claimant’s vocational expert than Mercy’s and the Court would not disturb that on appeal.

 

The final issue addressed by the court was whether the agency erred in ordering Mercy to pay for the Claimant’s bariatric surgery and family therapy sessions. The Court first examined the issue of the bariatric surgery and determined that it was unauthorized care for an accepted injury; which meant that for Mercy to be responsible for paying for this care the Claimant had to show that it was both reasonable and beneficial. In reaching this conclusion, the court had to first determine whether the liability position of the employer at the time the treatment was sought controls or if it is when the claim is fully presented to the deputy (as Mercy had changed their position to full deny compensability, this would mean the claimant would only have to establish compensability for the injury and reasonableness of treatment). Ultimately, the Court found that the liability position at the time treatment is sought controls. Therefore, because Mercy Hospital had accepted the injury and maintained control of the medical care at the time the claimant obtained the bariatric surgery, she must prove the treatment was both reasonable and beneficial.

 

In deciding the issue as to whether the care was reasonable and beneficial, the court stated T]he concept of ‘reasonableness’ in this analysis includes the quality of the alternative care and the quality of the employer-provided care.” It includes “the reasonableness of the employer-provided care, and the reasonableness of the decision to abandon the care furnished by the employer in the absence of an order from the commissioner authorizing alternative care.” Id.The medical care is “beneficial if it provided a more favorable medical outcome than would likely have been achieved by the care authorized by the employer.”

 

The Court ultimately found that Based on the record before it, they were unable to conclude substantial evidence supports the determination that the weight-loss surgery was both reasonable and beneficial to the work-related injury. There is no employer-provided care in order to compare the reasonableness of the alternative care sought. This is not a case where an employee abandoned the care provided by the employer to seek alternative care as a result of a disagreement of her diagnosis or treatment. Most importantly, the Claimant had not made a successful return to the labor market following the bariatric surgery and has instead been found to be permanently and totally disabled. The surgery therefore could not be said to have been beneficial. Thus the finding in regards to compensability for the bariatric surgery was reversed.

 

In regards to the family therapy sessions, Mercy argued that the medical care contemplated by section 85.27 is for the worker alone, not the worker’s family. The Court first noted the deputy agreed with Mercy Hospital that it could only order Mercy Hospital to pay for medical care to the claimant, not her family. However it found the family therapy was recommended by the treating physicians to treat the claimant’s depression. Part of the family therapy benefited the claimant and part benefited her family. Because the deputy was unable to dissect out what part of the therapy benefited the claimant alone, it ordered Mercy Hospital to pay for one-half of the cost. The Court found no error in the deputy’s decision. The court held the deputy did not order Mercy Hospital to pay for care given to the family. The deputy reduced the amount payable by half in order to hold Mercy Hospital responsible for a portion of the therapy that benefited the claimant. Thus the issue was affirmed.



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!

Here are the details of a new proposed bill out of the Iowa House that would change the way we handle alternate medical care, among other items:

House File 274


Bill Explanation:
This bill relates to the state's workers' compensation laws by modifying alternate care procedures for medical treatment, creating registries of physicians who treat and evaluate work=related injuries, providing for the retention of a medical director, creating a state workplace injury care providers registry fund, establishing a workers' compensation advisory council, providing for and appropriating fees, and providing effective dates.


MEDICAL AND ALTERNATE CARE. Code section 85.27(4), concerning the provision of medical services, requires an employer to provide written information about the state's workers' compensation laws to an employee upon receiving notification that the employee has suffered a work=related injury.

The employer has the right to predesignate a licensed physician to treat the injury and make necessary referrals and may predesignate a physician listed on the state registry of workplace injury care providers. If the employer does not predesignate a treating physician, the employee may designate a physician of the employee's choosing to provide the treatment. The physician predesignated by the employer or designated by the employee is required to provide ongoing written documentation of the physician's opinions, treatment recommendations, and care plan to the employee along with information about whether the opinions, recommendations, and care plan are in accord with either the official disability guidelines and treatment guidelines in workers' compensation published by the work loss data institute or the American college of occupational and environmental medicine practice guidelines (ACOEM), and if so, citation to the appropriate guidelines. The employee has the right to request and obtain a second opinion from another licensed physician of the employee's choosing at the employer's expense. If the employer or employee is dissatisfied with the care of a treating physician predesignated or designated by the other party or with any referral made by that physician, the employer and employee may mutually agree to alternate care. If they cannot agree on alternate care, either party may notify an insurance claims specialist within the division of workers' compensation, who shall, within five working days, schedule a conference between the parties to review the basis for dissatisfaction and provide an advisory opinion to resolve the dispute. If the parties still cannot agree on alternate care after this conference, the workers' compensation commissioner may, upon application and reasonable proof of the necessity, allow and order alternate care. The employee is responsible to make the application for alternate care and to provide such reasonable proof to the commissioner if the employer provided written information about the state's workers' compensation laws at the time of notification of the employee's injury, and predesignated a treating physician listed on the state registry of workplace injury care providers, and if the treating physician predesignated by the employer provided written documentation to the employee of the physician's opinions, treatment recommendations, and care plan along with citation to the appropriate treatment guidelines. The employer is responsible for making the application for alternate care and providing reasonable proof if the employer and predesignated treating physician did not act as described above or if the employee designated the treating physician to treat the work injury. The commissioner is not bound by the advisory opinion of the claims specialist and must conduct a hearing and issue a decision within 10 days of receipt of an application for alternate care. The employer has the right to request an employee to submit, as often as is reasonable and at a reasonable time and place to an examination by a licensed physician chosen by the employer for any purpose relevant to the employer's duties to provide benefits to the employee under the state's workers' compensation laws and at the employer's expense. If the employer makes the request in writing and pays all expenses, including transportation, the employee shall submit to the examination. Each time that the employer obtains an evaluation of an employee's permanent disability by a physician chosen by the employer, if the employee believes that the evaluation of disability is too low, the employee may obtain a subsequent examination and evaluation by a physician of the employee's choosing at the employer's expense, including transportation expenses to and from the place of the examination.


PROVIDER REGISTRIES ==== FEES ==== MEDICAL DIRECTOR. New Code section 85.73 requires the workers' compensation commissioner to establish and maintain a registry of licensed physicians that offer or provide treatment of work=related injuries. The commissioner shall, by administrative rule, establish requirements for a physician to be listed on the registry and establish a registration fee. The provision shall not be construed to require a physician to be listed on the registry in order to offer or provide treatment of work=related injuries or to prohibit an employer or employee from predesignating or designating a physician to provide treatment who is not listed on the registry.


New Code section 85.74 requires the commissioner to establish and maintain a separate registry of licensed physicians trained to perform independent medical evaluations and to issue impairment ratings of injured employees. The commissioner shall establish, by administrative rule, minimum training requirements for a physician to be listed on the registry and establish a fee. A physician must be listed on the registry in order to perform independent medical evaluations and issue impairment ratings of injured employees in this state. The commissioner may prohibit an employer or employee from using an independent medical evaluation or impairment rating of an injured employee from a physician who is not listed on the registry as evidence at a hearing to determine benefits under the state's workers' compensation laws.


New Code section 85.76 authorizes the commissioner to retain the services of a medical director to assist the division of workers' compensation in advancing the field of occupational health in Iowa and to advise the commissioner on how to successfully apply and administer the state's workers' compensation laws.
STATE WORKPLACE INJURY CARE PROVIDERS REGISTRY FUND. All registration fees collected pursuant to new Code sections 85.73 and 85.74 shall be credited to the state workplace injury care providers registry fund created in new Code section 85.77 and are appropriated to the division of workers' compensation by new Code section 85.75 to carry out the provisions of new Code sections 85.73, 85.74, 85.75, 85.76, and 85.78, including establishing and maintaining the two physician registries, retaining a medical director, and for the expenses of the workers' compensation advisory council created in new Code section 85.78.


WORKERS' COMPENSATION ADVISORY COUNCIL. New Code section 85.78 establishes a workers' compensation advisory council within the division of workers' compensation that is composed of six members, three representing employers and three representing organized labor. The governor appoints two of the members, the president and the minority leader of the senate jointly appoint two members, and the speaker and the minority leader of the house of representatives jointly appoint two members. The members serve six=year staggered terms, except that for the initial terms beginning on January 1, 2014, one member appointed by the governor, one member representing employers, and one member representing organized labor shall be appointed for three=year terms to ensure that members serve staggered terms. The purpose of the council is to assist the workers' compensation commissioner in the successful administration of the division of workers' compensation and to make recommendations to the governor and the general assembly regarding workplace safety and improvements to the state's workers' compensation system.


EFFECTIVE DATES. The sections of the bill creating the provider registry for treatment of work injuries, the provider registry fund, the position of medical director, and the advisory council, and appropriating fees, take effect January 1, 2014. The sections of the bill pertaining to alternate care procedures and required registration of physicians performing independent medical evaluations and impairment ratings take effect July 1, 2014.


If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!


Usoro Nkanta v. Wal-Mart Stores, Inc. and American Home Assurance, No. 2-871 / 12-0475, Court of Appeals of Iowa

 

The Claimant was hired by the employer in 1999. He was employed unloading trucks. On November 15, 2008, the Claimant sustained a low back injury arising out of and in the course of his employment. He went to the doctor the next day and was diagnosed with a back strain. On November 19, the Claimant was seen by Dr. Boyett who diagnosed left lower back pain and spasm and took the Claimant off work. An x-ray on November 24 revealed mild degenerative spondylosis. The Claimant was then returned to work, sit down duties only.

 

The Claimant continued to describe pain in his lower back and weakness in his left leg to Dr. Boyett. Dr. Boyett noted symptom magnification and nonphysiologic findings. He was continued on restricted duty and physical therapy. He was also given a referral to Dr. Nelson, an ortho spine specialist. After an MRI on January 22, 2009, Dr. Nelson opined he could not attribute the Claimant’s complaints to his lumbar spine. He was then referred to physiatrist Dr. William Koenig.

 

After his exam on January 28, 2009, Dr. Koenig found the Claimant to have normal results from an EMG of the left back and left lower extremity. He opined the Claimant was not a surgical candidate and kept him off work until February 10, 2009. Based on the appointment with Dr. Koenig, the employer ceased payment for the Claimant’s medical care and scheduled him for an IME with Dr. McCaughey. Dr. McCaughey spoke with Dr. Koenig prior to his IME of the Claimant. After the IME, Dr. McCaughey opined that he could not contribute the Claimant’s complaints to “organic pathology” as a result of work activities on November 15, 2008 and was unable to identify a compensable injury. He further opined that he further treatment would be under the Claimant’s personal healthcare provider.

 

In May 2009, the Claimant of his own volition was seen by Dr. Chen. Dr. Chen found the Claimant suffered from myofacial pain with no MRI or EMG evidence of nerve root pathology and recommended physical therapy and a home exercise program. The Claimant then underwent a second IME of his choosing with Dr. Jones, who found the Claimant to have a low back strain and some depression. He assigned the Claimant 5% impairment to the body as a whole.

 

After hearing on the matter, the deputy concluded that the Claimant had failed to prove his November 2008 injury was a cause of permanent impairment. The deputy did not accept Dr. Jones’ opinion as convincing as he gave no analysis, nor did he address other experts’ discrepancies with his opinions. In contrast, there were three experts who had opined that there were no organic explanations for the Claimant’s continued pain complaints.

 

In its decision, the deputy also noted that prior to the hearing, the employer had filed a confidential sealed envelope with the commission that included an offer to confess judgment. The deputy determined the agency did not have the authority to accept sealed documents as all documents filed in a contested case are public unless specially made confidential by law. The deputy also stated he did not view the contents of the offer to judgment as it was not material to awarding costs in this case and that there were no procedures under the statutes and rules of the agency for awarding costs under an offer of judgment.

 

On appeal, the commissioner adopted the ruling of the deputy. The commissioner also expressly stated that pursuant to chapter 677 of the Iowa Code, offers to confess judgment are not available in workers’ compensation proceedings. The employer then sought to enlarge the appeal and avoid paying costs on the action as it was the successful party. However, the commissioner denied this request noting that the Claimant was partially successful as he won his claim for reimbursement of an IME fee. These rulings were affirmed on judicial review by the district court.

 

On appeal, the Court of Appeals found that the commissioner’s ruling that the Claimant had no sustained permanent impairment due to a work injury was supported by substantial evidence. Thus this finding was not disturbed on appeal. The Court next took up the issue as to whether chapter 676 or 677 allows for an offer to confess judgment in workers’ compensation proceedings. The Court first noted that the Commissioner’s finding in this regard would be given no deference as he had not been given the authority to interpret this particular statute.

 

Chapter 677 provides that a defendant may make an offer to confess judgment for a specific sum. If a plaintiff rejects the offer and subsequently does not recover a greater amount than that offered, the plaintiff is taxed with the Defendant’s costs following the offer to confess judgment. The Court took up the issue as to whether or not Chapter 677 was applicable to workers’ compensation proceedings. In finding that Chapter 677, and the offer to confess judgment, is inapplicable in workers’ compensation proceedings the court conducted a comprehensive review of the applicable Iowa statutes. More specifically, the Court examined the Iowa Administrative Procedure Act and the Workers’ Compensation Act to determine if Chapter 677 was applicable.

 

The Court held that the language of the Iowa Workers’ Compensation Act provided that no party may settle a controversy without the approval of the Workers’ Compensation Commissioner. The Court stated that settlements, which included the offer to confess judgment, were governed by the specific administrative provisions of the Iowa Workers’ Compensation Act and the Administrative Procedure Act. As these Acts did not provide for the applicability of offers to confess judgment to workers’ compensation proceedings, the Court found that the consequences for failing to adopt an offer of judgment, mainly the taxing of costs, directly conflicted with the discretion given to the Commissioner to approve settlements per the Workers’ Compensation Act. Based upon this interpretation, and the finding that the Commissioner did not abuse his discretion in awarding costs, the ruling that each party was to pay its own costs was affirmed.


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!

Merivic, Inc. and Zurich North America v. Enrique Gutierrez, Court of Appeals of Iowa, No. 2-722 / 12-0240

 

The Claimant was a 48 year old with a ninth grade education and a limited knowledge of English. His past job history included working as a mechanic, manual laborer and a welder.

 

While on the job, the Claimant fell from 10-12 feet and landed on a steel table injuring his left right and left rotator cuff. Both required surgery. He returned to light duty work in between the two surgeries; however following the second surgery the Claimant was only able to work three hours before he was told the work did not fit his restrictions. He never worked for the employer again and was unable to find other employment.

 

At hearing of the Claimant’s workers’ compensation case, the Claimant was found to have sustained a permanent and total loss of earning capacity as a result of his work injury. The deputy partially relied upon a report of a vocational expert who cited the Claimant’s limited fluency in English as an adverse effect upon his employability. The employer had urged the deputy to reduce the Claimant’s benefits due to an alleged lack of motivation to learn English. The deputy stated that the agency no longer penalized Claimants who failed to learn English while working for a U.S. employer.

 

On appeal to the commissioner, the employer urged that prior precedent regarding learning English be set aside; but the commissioner refused to do so. The commissioner affirmed the deputy’s decision and clarified that the disability determination was primarily based on factors other than lack of English fluency. The district court did not address the issue of overruling prior precedent with regard to learning English as they found substantial evidence supported the determination of total disability even without considering the language deficiency.

 

On appeal to the Court of Appeals, the employer again reiterated that prior case law with regard to a claimant’s inability to speak English should be overturned. The Court refused to address the issue as they found the assertion to be an impermissible collateral attack on an unappealed agency decision. The Court then stated that the issue was whether the finding by the commissioner of permanent total disability was supported by substantial evidence.

 

The Court found the finding by the commissioner was supported by substantial evidence. Specifically, the Court highlighted the opinion of the vocational expert retained by the Claimant which highlighted such factors as the Claimant’s advanced age, past work history of physically demanding jobs which his restrictions now prevent him from performing, limited education and his severe physical limitations. The Court noted the Commissioner’s finding of this vocational opinion as more convincing than the opinion of the Defendants’ vocational expert, and the underlying analysis distinguishing between the two based upon the use of a labor market survey.  

The Court then turned its attention to the consideration of the claimant’s limited proficiency with the English language. While noting the Commissioner’s assertion that this factor was not determinative in his decision, the Court confirmed that it had, in fact, been considered. They then went on to formally find that the inclusion of English proficiency in the industrial disability analysis was appropriate.  They also noted that substantial evidence did support the Commissioner’s finding that Claimant was deficient in his capacity to speak English, and his finding as to the impact of the deficiency on Claimant’s ability to find employment. 

 

Ultimately, the Court affirmed the decision of the Commissioner as supported by substantial evidence.

 

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!

New Deputy Commissioner Announced

On Friday, November 9, 2012, Commissioner Christopher Godfrey announced the hiring of William H. Grell, (Bill), as the new Deputy Workers’ Compensation Commissioner. Bill had previously been working primarily as a workers’ compensation defense attorney for Huber, Book, Cortese and Lanz, PLLC .,in West Des Moines, Iowa. Bill will commence his employment with the Division of Workers’ Compensation early in December.  For all of you interested, there is no word on Bill’s schedule for hearing cases yet.





O’Reilly Auto Parts and Gallagher Bassett Services v. Jerry Alexander, No. 2-711 / 11-1864, Court of Appeals of Iowa

 

The Claimant began working with the employer in 1999. On May 8, 2008, the Claimant alleged he sustained hip and back injuries while unloading at tote from a truck and twisting his body to take a step. He encountered his supervisor and told him he could barely walk. He returned to work on May 12, 2008 using a walker and reported the injury to the store manager.

 

An injury report was filled out, however it listed the injury dates as August 8, 2006 and December 2007. This report was signed by both the Claimant and his manager. The claimant testified at hearing that he was upset as he was denied seeing the company doctor and likely signed the document without reading it. He further testified that he did not understand the importance of the form and that he was confused about what the dates represented.

 

The Claimant’s manager testified that the Claimant did report injuring his hip but she was uncertain as to when the report occurred. She apparently was also questionable of the report of injury as the Claimant had previously reported him pain which he had associated with a hip injury he sustained in 2003. Due to the inconsistencies in the Claimant’s statement, the employer maintained that the Claimant had not suffered any injury in May 2008.

 

The Claimant treated with Dr. Ray who ultimately opined that the Claimant’s work with the employer contributed to a worsening of pain from his pre-existing condition of spinal stenosis and assigned 8% whole person impairment. Prior to his deposition and hearing of this matter, the Claimant sustained a stroke. During his deposition and at hearing he frequently explained that he was having difficulties with his memory. After hearing of the matter, the deputy commissioner found that the Claimant had not sustained an injury in the course of his employment. This was reversed on appeal to the Commissioner, who found that the testimony of the Claimant and his wife, along with the medical records in the case provided substantial evidence that the claimant suffered an injury in May of 2008.

 

The decision of the commissioner was upheld on appeal to the district court. At the district court level, the employer argued there was insufficient evidence of the necessary causal connection between the conditions of employment and the injury to support the commissioner’s finding. The district court declined to address this argument as it was not presented at the agency level and not preserved for judicial review. The case was appealed to the Court of Appeals.

 

The Court first addressed that the argument on appeal was one that presented a mixed question of law and fact and thus the commissioner’s decision would only be disturbed if irrational, illogical or wholly unjustifiable. The Court then turned its attention to whether the argument that the injury to the Claimant was not caused by or related to the conditions of his employment as his work presented no particular hazards of such an injury. The Court first recognized that this was not raised in the initial pleadings nor as an issue the parties agreed were in dispute. However, the Court noted that among the issues identified by the deputy was “whether the injury arose out of and in the course of employment.” The Court then stated that while the majority of the focus of the proceedings centered upon whether and injury occurred and if so, if it occurred in the course of employment, the employer had consistently raised the issue of whether the Claimant’s act of lifting and carrying a tote allegedly containing a four ounce filter was sufficient to establish a compensable injury. Therefore, the Court viewed the contention as there being no causal connection between the injury and a condition, risk or hazard of the Claimant’s employment.

 

In the Court’s eyes, this satisfied them that the error was preserved as the “arising out of” requirement was raised, litigated and decided by the agency.

 

The Court next turned its attention to the issue of whether substantial evidence supported the commissioner’s finding that the Claimant sustained an injury arising out of and in the course of his employment. The Court stated that credibility determinations are to be made by the commissioner as a trier of fact and that while some testimony can be disregarded due to its impossibility or absurdity, the Claimant’s testimony did not fit that description. The Court did note that he exhibited confusion in his testimony and that he himself acknowledged that his memory was not as good as it used to be. However, the Court also found that the Claimant’s manager was in no way consistent in his testimony as to when the injury was reported. The Court also noted that while the Claimant did not report an injury to his family doctor in later May of 2008, he did report a fall having occurred a few weeks prior in a June 2, 2008 appointment with another doctor.

 

Ultimately the Court found that there was substantial evidence to support the Commissioner’s finding that the claimant did sustain an injury in May of 2008.

 

The employer also contended that Dr. Ray’s opinion on causation could not be relied on as he was unaware of the weight of the tote the Claimant was carrying at the time of the alleged injury. In finding that the Commissioner could rely on Dr. Ray’s opinion noted that the employer had not offered an expert opinion calling Dr. Ray’s opinion into question; nor had they offered evidence that Dr. Ray’s opinion would have changed if he had known that the tote was light in weight. Ultimately the Court concluded that substantial evidence supported the Commissioner’s reliance upon the testimony of Dr. Ray in finding medical causation was present for the Claimant’s injury.

 

The Court ultimately found that substantial evidence supported the findings of the Commissioner and the determination that the injury sustained by the Claimant was not irrational, illogical or wholly unjustified.

 

The final issue taken up by the Court on appeal was whether the Commissioner’s review of the employer’s proof of coverage information on the agency’s website to verify the appropriate insurer constituted bias or reversible error. The Court first noted that the Iowa Administrative Procedures Act provides that “[A]n individual who participates in the making of any . . . final decision in a contested case shall not have personally investigated . . . or advocated in connection with that case, the specific controversy underlying that case . . . .” The Court however found no evidence that the commissioner investigated the specific controversy underlying the case. Rather the Court found that he simply “consulted records maintained by the agency and corrected an error, which counsel failed to identify and remedy, making the decision he rendered enforceable against the proper insurance carrier.”

 

The Court then examined the commissioner’s decision in adding the correct insurance carrier for errors at law. The Court found that the “commissioner’s action in adding the correct insurance carrier was necessary and within the authority granted to him by the legislature under the power to adjudicate the rights and duties as between injured workers and the responsible insurance carriers and the power to enforce the provisions of the code.” Thus the Court did not find that the Commissioner’s action created an appearance of impropriety or evidence of bias.



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 American Insurance v. James Jones Jr., No. 2-579/12-0027


[(1) Substantial evidence supports Commissioner's decision that a running healing period was appropriate; (2) Merely stating that an employee is working part time hours is not enough to invoke the rate calculation set forth in 85.36(9).  Evidence as to the hours worked by similarly situated full time employees in the same field is required.]

 The Claimant, James Jones Jr., was a recipient of social security benefits who began employment at Menards stocking shelves. He was employed four hours a day for five days and was considered a part time employee. Six weeks after he began his employment the Claimant injured his back.

 

Many years prior, the Claimant had injured his low back with another employer. He underwent surgery for the injury and was ultimately given lifting restrictions. This was not disclosed on his Menards application as he stated he felt better than he had in a decade. After his injury at Menards the Claimant saw an orthopedic surgeon who saw no need for surgery and referred him to a pain specialist. This specialist found the injury to be an exacerbation of his previous injury. Once Menards learned of this they refused to approve further treatment.

 

The Claimant then filed a petition with the Workers’ Compensation Commissioner alleging an injury to his low back. Menards stipulated that the Claimant’s injury arose out of and in the course of his employment but disputed the permanency of the injury and his rate of compensation. At hearing, the deputy found that the Claimant had not yet reached MMI and awarded him healing period benefits. This was affirmed by the Commissioner and eventually appealed to the district court.

 

The district court affirmed the ruling that the Claimant had yet to reach MMI but reversed the agency’s rate calculation under section 85.36(9) finding that there was no evidence to support the application of the provision. Both the employer and the Claimant appealed the ruling of the district court.

 

The Court first examined the issues presented to it, whether the Claimant had reached MMI and whether the rate was correctly calculated, and noted that both fell under the Court’s substantial evidence standard of review; meaning the rulings would be upheld if substantial evidence was found to support them.

 

The Court then began its analysis of the issue of whether the Claimant had reached maximum medical improvement. The Court noted that the finding of the agency rested upon two independent medical examinations which opined the Claimant required further treatment and was not at MMI. Thus the Court found the finding supported by substantial evidence. These opinions had been provided by both an examiner chosen by the Claimant and one chosen by the employer. Thus the finding of that MMI had not been reached was affirmed.   

 

The Court then turned its attention to the issue of the Claimant’s weekly compensation rate. The agency in making its rate determination relied upon section 85.39 of the Iowa Code which provides:

 

If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.

 

The district court had found that substantial evidence did not support the application of this provision. The district court had stated:

 

The provision found in subsection 9 requires a finding that the employee was earning nothing, or less than the usual full-time employee in that field. . . .

. . . [T]here is no evidence in the record of the usual weekly earnings of other workers in [the Claimant’s] field. . . . The Commissioner relies upon the fact that Jones worked four hours per day, as shown by Menards’s own records. The number of hours worked is not determinative of this issue. . . . The true inquiry is into wages earned. No evidence on this subject is discussed by the commissioner or contained in the record.

 

The Court noted that invoking section 85.39 required more than the Claimant’s claims that he was a part time employee. Indeed, the Court noted that recently the Supreme Court of Iowa emphasized that a finding of part time employment is not sufficient to invoke 85.39. The Court noted that the Supreme Court had held that 85.39 distinguished between full and part time employees on the basis of weekly earnings and not the number of hours worked per week. Thus, a factual finding must be made as to whether the employee earns no wages or  earns less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality.

 

The Court went on to state that such a finding had not been made in this case as the agency simply found that the Claimant worked four hours per day and was clearly a part time worker. The Court did not find this to be enough to invoke section 85.39 based on previous Iowa Supreme Court precedent. Thus the finding of the district court was affirmed and the case was remanded to the agency for a recalculation of the Claimant’s healing period benefits under section 85.36.


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!

Benito Villafana v. Blackhawk Foundry and Travelers, No. 2-441 / 11-1781 (Iowa Court of Appeal)

 

The Claimant, Benito Villafana, was born in Mexico and immigrated to the United States in 1976 after completing the sixth grade. Until 1988 he had worked as a farm laborer, but following that he went to work with the employer in the present case. The Claimant worked as a grinder for ten years until he suffered from a carpal tunnel injury related to his repetitive work. To accommodate the Clamiant’s permanent restrictions related to this injury, the employer moved the Claimant to the job of scale operator. This job required him to pick up castings, some of which weighed upwards of 100 lbs. When lifting these heavy castings, the employer instructed the Claimant to get the help of his supervisor or forklift operator.

 

The Claimant then sustained a shoulder injury in 1999. In relation to this injury, the Claimant was awarded a thirty five percent partial disability in 2004. In the present case, the Claimant alleged neck and hand pain beginning in 2006. The Claimant continued his employment until a plant wide lay off in 2009. At hearing, the Claimant admitted to his earlier carpal tunnel injury as well as ongoing neck problems before his alleged injury dates. In 1997, he reported neck pain in conjunction with finger pain. He also received treatment for neck pain in 1998. In 2002, he again complained to a physician that he was experiencing neck pain in conjunction with the pain from his shoulder injury, and in 2003 a neurosurgeon evaluated the Claimant for neck pain and ultimately recommended neck surgery.

 

The Claimant had alleged a first injury date of April 28, 2006 when he went to Dr. Pardubsky regarding his neck pain. Dr. Pardubsky believed the neck pain was related to Claimant’s prior shoulder injury. In a subsequent visit, Dr. Pardubsky told the Claimant there was nothing further he could offer. The Claimant also alleged a second injury date of January 2, 2007 when he was referred by the employer to Dr. Frederick. The Claimant complained of chronic right trapezium and cervical pain, as well as numbness and tingling in his right fourth and fifth fingers. Dr. Frederick noted the right trapezius pain and cervical pain were well documents since 1999. In a follow up visit, Dr. Frederick noted that the Claimant’s EMG was “positive for moderate to severe right carpal tunnel.” She believed the condition was work-related based on the history provided by the Claimant that he was performing “highly repetitive grasping tasks” in his job. Blackhawk did not offer further treatment for the Claimant’s carpal tunnel or other chronic problems related to the prior work injury, nor did the Claimant seek treatment for his ailments, aside from some chiropractic care.

 

At the employer’s request, Dr. Frederick revisited her opinion regarding the Claimant and ultimately concluded that she could not relate his recurrent right carpal tunnel to his job with the employer. She also noted that the Claimant did not suffer a new injury of 2006 and any pain was likely caused by an ongoing spondylosis that has never resolved since 1998.

 

One month before his hearing with the deputy commissioner, the Claimant visited neurosurgeon Robert Milas in June of 2009. Dr. Milas noted the Claimant was a poor historian but stated that the Claimant experienced a significant change in cervical pain as well as loss of strength in his right hand in 2007. He opined the 2007 injury was linked to his recurrent carpal tunnel syndrome and cervical radiculopathy, and that the injuries caused Villafana to be permanently impaired.

 

After hearing, the deputy concluded that the Claimant failed to show he suffered an injury in the course of his employment and denied his claim. The deputy was more persuaded by the opinions of Dr. Frederick as opposed to Dr. Milas. The deputy noted that:

 

While Dr. Milas may have superior qualifications as a specialist in neurosurgery than those of Dr. Frederick, the record does not indicate what prior medical records, if any, were reviewed by Dr. Milas before making his opinion. This is a critical flaw in claimant’s case given Benito’s past medical history involving not only cervical and right extremity pain, but facial numbness dating back four years prior to the claimed neck injury. Also, it is not clear if Dr. Milas had any understanding of what claimant’s job at Blackhawk involved.

 

On appeal, the Commissioner found the deputy’s findings were supported by the preponderance of the evidence. The decision was also affirmed by the district court. The Claimant then appealed to the Court of Appeals.

 

The Court began its review noting that the factual findings of the agency were reviewed for substantial evidence. The Court found that he arbitration decision detailed why the deputy found Dr. Frederick to be more convincing than Dr. Milas. Dr. Milas did not reveal whether he reviewed any medical records, the Claimant’s actual labor requirements for scale operators, or whether his injury was caused by the repetitive nature of his work. Conversely, the Court found Dr. Frederick documented her decision-making process, and although her ultimate conclusion contradicts her initial stance on the Claimant’s injury, the Court found she explained what subsequent information—an on-site job inspection—persuaded her to change her opinion. The deputy also credited Dr. Frederick’s review of the Claimant’s prior medical records, contrasted with Dr. Milas, who found the case factually confusing because the Claimant was a “poor historian.”

 

The Court stated that as the finder of fact, the agency determines the weight to give an expert opinion. Therefore the Court found that they would not give greater weight to the Claimant’s medical expert than what was afforded by the agency.

 

The Court then turned its attention to the finding that the Claimant had not suffered a permanent aggravation of his previous injury to his cervical spine. The Court found that the Claimant had not carried his burden to overturn the agency’s decision. The court state that “evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” The Court found that given the gravity of medical evidence on the issue of causation, and the fact-finder’s ability to accept or reject expert evidence in whole or in part, Dr. Frederick’s conclusion she “do[es] not feel there has been any new injury to his neck [and that] he has an ongoing cervical spondylosis from 1998 that has never resolved” supports the commissioner’s finding.

 

The decision of the district court was affirmed.

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!

College Community School District and EMC Insurance Company v. April Orris, No. 2-280 / 11-1848 (Iowa Court of Appeal)

 

The Claimant, April Orris, was employed as a middle school science teacher who chaperoned a field trip to the local roller skating rink on May 20, 2005. While on the trip, the Claimant fell and landed on her right wrist, arm, shoulder and back. She was treated at Mercy Care South and was placed in a sling and released with restrictions of no use of the right arm. The Claimant continued to treat with Dr. Pape and despite the treatment, she reported her right elbow pain progressively got worse. On April 20, 2006, the Claimant underwent an arthroscopic subacromial decompression with Dr. Pilcher. The Claimant reported the surgery increased her range of motion and decreased her shoulder pain, although her neck symptoms continued.

 

The Claimant resigned from her position with the College Community School District for reasons unrelated to her work injury. In August of 2006 she began a position with the Marion Independent School District. Four days after she began her employment, she began complaining of problems with her neck, shoulder and elbow. In February of 2007, the Claimant was discharged because she had exhausted her leave and failed to return to work. She then became a tutor.

 

The Claimant then began to treat with Dr. Bagheri, who noted she had symptoms consistent with fibromyalgia. The Claimant then saw Dr. Buck, an occupational medicine specialist in February of 2008 who placed the Claimant at maximum medical improvement and released her to light duty for six months and then full duty thereafter. He then assigned her an eight percent permanent impairment rating.

 

The Claimant underwent an independent medical examination in January of 2009 with Dr. Kuhnlein. He assessed the Claimant with an ten percent permanent impairment and stated he did not feel the Claimatn was capable of working full time, but felt she could work full time in the future.

 

At hearing, the deputy determined that the Claimant had sustained injuries and awarded her permanent partial disability benefits of thirty percent. On appeal, the commissioner affirmed the deputy’s decision. In support her motion for rehearing the Claimant argued that the agency had erroneously relied upon the opinion of Dr. Buck that Claimant’s fibromyalgia would be under control within six months. This motion was subsequently denied by the commissioner. On judicial review, the district court found the commissioner committed legal error in relying upon Dr. Buck’s prediction regarding the Claimant’s future condition when determining her industrial disability. The case was sent back to the commissioner for evaluation of the Claimant’s disability without consideration of her future consideration.

 

The Court began its analysis by stating that  in determining a scheduled or unscheduled award of workers’ compensation benefits, the workers’ compensation commissioner finds the facts “as they stand at the time of the hearing and should not speculate about the future course of the claimant’s condition.” The Court further stated that functional impairment and disability resulting from a scheduled loss must be determined at the time of the award and not based on any anticipated deterioration of function that may or may not occur in the future. The Court then noted that any future developments, including the worsening of a physical condition or a reduction in earning capacity, are properly addressed in review-reopening proceedings.

 

The Court then turned its attention to whether the agency improperly relied on the evidence regarding the Claimant’s future employment in its finding that she had suffered a thirty percent partial disability. The Court determined that the agency had not. The Court found that the agency had determined the Claimant was capable of full-time employment “in the sedentary to light categories” and found working as a teacher in a high school setting fit within the sedentary to light categories of labor. In making this determination, the deputy noted “Dr. Buck opined the Claimant was capable of resuming her duties as a teacher after a six month period of light duty to work.”

 

The Court, in their review of the record, found that the agency had not erronesouly relied on the opinion of Dr. Buck and that the agency had actually cited other evidence supporting the conclusion that the Claimant was capable of teaching full time. The additional evidence cited was the opinion of Dr. Kuhnleing that the Claimant was capable of working in light to sedentary categories, that the Claimant’s personal physician noted the Claimant needed a job where she could change positions and finally that Dr. Bagheri had never restricted the Claimant from working. Due to that evidence, the Court could not conclude that the agency relied on Dr. Buck’s opinion in its finding. The decision of the district court was thus reversed.