Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at www.nbolawfirm.com or www.iowa-workers-comp.com.

Wednesday, May 16, 2018

In Borkovec v. Dish Network, No. 17-0743 (Iowa App. May 16, 2018), the Court of Appeals affirmed the decision of the commissioner which had held that a work injury was the cause of claimant's opioid dependency, but concluding that permanency was not ripe because claimant had not reached the end of his healing period.  The records presented at hearing indicated that if claimant had treatment for his addiction, his function might improve. The  hearing deputy had concluded that claimant was permanently and totally disabled and the appeal decision changed that to a running healing period.  Following a petition for judicial review, the district court reversed the commissioner's decision and found that claimant was permanently and totally disabled.  The Court of Appeals reinstates the decision of the commissioner.

Claimant was involved in a serious auto accident and was provided  large impairment ratings by the doctors who opined on the issue.  Dr. Kuhnlein concluded that claimant needed a comprehensive pain management program and also found that claimant had not reached MMI for his opioid addiction.  He recommended that claimant be weaned from opioids.  The hearing deputy concluded that claimant was permanently and totally disabled from his physical injuries, but had not achieved MMI for his mental conditions or his opioid addiction. On appeal, as noted above, the decision was reversed, and claimant found to be in a running healing period.  The district court held that treatment of claimant's opioid addiction would not significantly increase his physical functioning and ability to work and therefore reversed the commissioner's decision.

The Court of Appeals noted that permanency could not be determined until claimant's disability had stabilized., i.e. when it is medically indicated that significant improvement from the injury is not anticipated.  The court concluded that the appeal decision was supported by substantial evidence because doctors, including claimant's IME doctor, had found that many of the restrictions were because of claimant's opioid addiction.  The decision of the district court was reversed.

Judge Danilson concurred with the decision "reluctantly."  The judge found that if claimant made a good faith effort to overcome his opioid addiction, he should be found at maximum medical improvement, but that "Borkovec should not be held hostage endlessly on some slight glimmer of hope he may be employable with very substantial work restrictions in the future."

Court of Appeals Affirms Causation Decision on Substantial Evidence Grounds and Surveillance Video

Claimant alleged that he suffered an injury to his knee while gassing up his truck and argues that the commissioner ignored uncontested expert testimony in concluding that claimant's injury did not arise out of and in the course of employment.  In Swanson v. A.V. Transportation, No. 17-1127 (Iowa App. May 16, 2018), the Court of Appeals affirms the denial of benefits on substantial evidence grounds.

Claimant was an over the road truck driver, who was gassing up his truck on ice covered ground when he slipped, did the splits and felt pain in his right knee.  Claimant did not initially report the injury, but later reported it, indicating this had happened on February 14.  He later amended that to February 15, and finally to February 7.  The claim was initially accepted and an MRI showed a meniscal tear.  The knee was repaired.  An IME, by Dr. Milas found that the knee injury resulted from work related activities, and was based on claimant's account of the injury.

At hearing, claimant and two of the employer's employees testified.  A surveillance video on the day of the alleged incident showed claimant getting into and out of his truck without incident.  Based on the video, the deputy and then the commissioner concluded that claimant's injury had not arisen out of and in the course of employment.  The district court affirmed on substantial evidence grounds.

Before the Court of Appeals, claimant argued that the agency did not give proper weight to claimant's testimony or the medical opinions from his treating physicians.  The court rejected this contention, finding that the medical evidence did not provide a reliable account of the cause, location or date of the accident because it was based on claimant's own account, which was contradicted by the surveillance video.  That video showed no difficulties with claimant getting into and out of the truck and also showed puddles of water, not ice.  The court affirms on substantial evidence grounds.  

Wednesday, March 21, 2018

Court of Appeals Affirms Finding That Claimant's Shoulder Injury Did Not Result in Permanent Disability

Claimant was found to have met her burden of demonstrating that she suffered a work related injury to her shoulder, but the agency concluded that she did not establish permanent total disability.  Merrick v. Crestridge, Inc., No. 17-0745 (Iowa App. March 21, 2018).  On appeal, claimant contends that the agency's decision was not supported by substantial evidence and that the agency misapplied the law to the facts.

Claimant suffered a shoulder injury and the doctors initially believed that the injury had caused capsulitis.  She was placed on light duty work following the injury and was provided with injection therapy, which was helpful.  She was released to regular duty work, but did not return to work for the employer. The treating doctor concluded there was no permanent functional impairment and she was provided a 0% rating.  Dr. Kreiter, who performed an IME, found that claimant had a 13% BAW rating as a result of shoulder instability and a possible labral tear.  He believed that an MRI and permanent physical restrictions were necessary.

An MRI showed no evidence of tears in the shoulder and the treating doctor found no evidence of instability.  He found that claimant's current complaints were not due to her work injury and disagreed with Dr. Kreiter's assessment.  He again found there was no permanent impairment.

The agency relied on the treating doctor over Dr. Kreiter.  Although claimant argues before the court that the agency ignored the evidence of Dr. Kreiter, the court concludes that the agency provided specific reasons why it found Dr. Hussain's opinion to be more credible and Dr. Kreiter's less so.  Because the agency considered this evidence, the court concluded the agency's decision was supported by substantial evidence.  The court also concluded that lay testimony was considered and that the agency's decision on this score was supported by substantial evidence.  The court concluded that the application of the law to the facts was not irrational, illogical or wholly unjustifiable.

Wednesday, February 21, 2018

Court of Appeals Affirms 10% Industrial Award, Denial of Penalty Benefits

Claimant was awarded a 10% industrial disability and was denied penalty benefits.  On appeal, the court in Allen v. Tyson Fresh Meats, Inc., No. 17-0313 (Iowa App. Feb. 21, 2018)  affirms the decision of the agency.  The court notes that claimant did not plead entitlement to penalty benefits and the commissioner noted that under 876 IAC 4.2, the claimant was required to please entitlement to penalty benefits before such benefits may be awarded.  Claimant contends that the mention of this issue in an answer to interrogatories should be sufficient.

The court noted that whether they gave deference to the agency's interpretation of its rules or not, the district court was not in error in affirming the commissioner's interpretation. Thus, even under a less deferential standard of review, the agency's interpretation was not illogical, irrational or wholly unjustifiable.  Section 4.2 specifically provides that entitlement to penalty "shall be pled."  The court finds that this imposes a duty upon the claimant to plead penalty benefits. Since penalty was not pled, the commissioner appropriately refused to consider claimant's penalty claim.

On industrial disability, claimant alleged that this was irrational, illogical and wholly unjustifiable, as the ratings of impairment (12%) were higher than the 10% industrial award.  The court finds that although claimant was of relatively advanced age (61) and had a limited education, the 10% industrial loss finding was not irrational because claimant had no loss of job or earnings following the injury and had not missed any days as a result of the work injury.  The court notes that while this finding does not preclude claimant from an award of industrial disability, it cannot be overlooked in determining how much the injury affected his employability.   The 10% industrial award is affirmed by the court.

Tuesday, February 13, 2018

Court of Appeals Affirms Commissioner Decision Rejecting Expert Opinion

In Orris v. College Community School District, No. 17-0742 (Iowa App. Jan. 10, 2018). the Court of Appeals addressed an issue where claimant alleged that the commissioner erred in rejecting the unrebutted  opinion of claimant's expert.  Claimant had filed a review reopening petition, alleging that her fibromyalgia condition had worsened and that she was entitled to more than the 30% industrial disability she had originally been awarded. 

Although the deputy concluded that claimant's condition had worsened, she found that the worsening of the condition was not causally related to her original work injury.  No increase in benefits was awarded.  The district court affirmed this finding.  At hearing, Dr. Bansal had concluded that claimant's fibromyalgia had followed a logical medical progression, related to her original work injury.  Dr. Bagheri, claimant's original treating physician, noted that fibromyalgia is lifelong, but does not get worse and remains stable or gets better over the long term. 

Although Dr. Bansal had evaluated Ms. Orris twice and more recently than Dr. Bagheri,, the deputy concluded that Dr. Bagheri's position was stronger.  The deputy noted that claimant had a number of other stressors aside fromthe work injury, including her sister's terminal cancer diagnosis, her husband's cancer diagnosis, her nephew's illness and her own diagnosis of psoriatic arthritis. The deputy found the opinion of Dr. Bagheri more convincing. 

Claimant argued that Dr. Bagheri's opinion was a non-opinion and that Dr. Bansal's opinion should prevail.  Ultimately, the court concludes that the decision of the agency was supported by substantial evidence. 

Court of Appeals Issues Decision on Exclusion of Evidentiary Items

In Hyten v. HNI Corporation, No. 16-1454 (Iowa App. Jan. 10, 2018), the Court of Appeals addressed the exclusion of evidence concerning the delay in receipt of workers' compensation benefits, the safety of plaintiff's work assignment and the company's waiver of notice defense.  The court affirms the exclusion of evidence on all accounts.

Plaintiff suffered a carpal tunnel injury.  Partially as a result of that injury, claimant had unexcused absences which ultimately led to her dismissal from employment.  Claimant filed suit against the employer, alleging she had been terminated in violation of public policy for seeking workers' compensation benefits.  After trial, the jury returned a verdict in favor of the employer.

Plaintiff alleged on appeal that the court erred in excluding evidence.  The court notes that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.  A great deal of leeway if provided the trial court in making this judgment call.  The court found that plaintiff failed to demonstrate that her substantial rights were affected by the exclusion of any evidence.  The court goes on to conclude that the evidentiary issues were a "mere subterfuge" and that the defect in the case was the lack of any evidence casting doubt on the employer's legitimate reason for the termination of employment.  The judgment of the district court was affirmed.

Monday, February 12, 2018

Court of Appeals Decides Case on Notice, Hearing Loss

In Ruiz v. Revstone Casting Industries, LLC, No. 16-1728 (Iowa App. Dec. 6, 2017), the court affirmed the decision of the agency that claimant had not provided sufficient notice of his hearing loss, back and hand  claims and affirmed the district court's order remanding claimant's back injury claim to the commissioner.

Claimant worked for the employer as a grinder for 25 years. He began to feel he had a right to "something" from his injuries after he was prescribed hearing aids.  Claimant noted that he had made doctors' appointments on his own for his hands.  Claimant ultimately retired from Revstone in 2011 because of the pain in his foot, hands and back in addition to his hearing loss. 

With respect to the carpal tunnel claim, the commissioner failed to specify a date of injury for the claim.  The court indicates that the carpal tunnel claim was a cumulative injury requiring application of the standard under Oscar Meyer Foods Corp. v. Tasler which indicates that an injury manifests when claimant is aware of the fact of the injury and its causal relationship to claimant's employment.  The court concluded that the injury occurred on September 30, 2011, which was claimant's last date of employment..  Claimant argued that under the discovery rule, claimant did not appreciate the seriousness of the injury until after this date, but the court concludes that claimant appreciated the nature, seriousness and probable compensable character of the injury before September 30, 2011.   Because claimant did not notify the employer about the injury until December of 2012, this injury was found to be untimely under section 85.23. 

The agency found that claimant had not suffered from occupational hearing loss.  The decision indicates that claimant did not implicate the table presented in section 85B.5 of the Code, but argued that he had provided expert testimony to demonstrate causation.  Defendants argued that claimant had not demonstrated that levels of noise at work were sufficient to produce hearing loss.  Ultimately, the court concluded that substantial evidence supported the conclusion that claimant had not demonstrated a work related hearing loss.  Claimant apparently did not use an expert to demonstrate his hearing loss.

Claimant's back claim was remanded to the agency for a failure to consider the opinion of one expert.  Defendants appeal from this ruling  by the district court and the court of appeals affirms, finding that there was nothing in the decision that indicated that the commissioner had considered the opinions of claimant's treating physician with respect to his back claim.  The court finds that although the commissioner may accept or reject evidence, he may not fail to consider it, citing Schutjer v. Algona Manor Care.   The back claim was remanded to the agency. 

Court of Appeals Decides Case on Prosthetic Devices, Permanent Total Disability, Rate

Following a significant accident in which claimant injured his hand, shoulder and neck when a sealing clamp of a machine closed on his hand, Allen Conell sought payment for an active and passive prosthetic device.  The commissioner denied the passive prosthetic hand, but the Court of Appeals, following the decision of the district court, reversed the decision of the agency.  Nestle USA v. Conell, No. 17-0267 (Iowa App. Feb. 7, 2018).

Claimant had originally been awarded a passive prosthetic hand following the injury, but the commissioner reversed this award finding that providing the passive prosthetic hand in addition to an active prosthetic hand violated the language of section 85.27(1), which only requires that "one set of permanent prosthetic devices" be provided. The commissioner held that claimant was only entitled to one prosthetic device per entitlement and that having an active and passive device violated this requirement.  The district court reversed, finding that the passive hand was an extension of Conell's prosthetic, thus rendering this a single device.  The Court of Appeal affirmed, noting that the passive prosthetic hand was merely an extension of the mechanical hand, citing Quaker Oats v. Ciha (home modifications are extension of wheelchair) and Manpower Temp. Servs. v. Sioson (van is extension of wheelchair).   The court found that the mechanical prosthetic hand was a reasonable and necessary device but only for a fraction of the day.  The court affirmed the district court's award of the passive prosthetic. 

The employer raised issues about causation for the neck injury, permanency for mental health issues and claimant's award of permanent total disability benefits.  All of these issues were decided on the basis of substantial evidence.

The final issue before the court was a rate issue.  Claimant had routinely worked more than 40 hours in each week preceding the injury.  Claimant sough to eliminate two 44 hour weeks from the rate calculation.  In rejecting this argument, the court concluded that the commissioner's finding that all of the weeks should be included was not illogical, irrational or whole unjustifiable.  

Monday, January 8, 2018

2018 Workers' Compensation Synopses

2018 Workers' Compensation Appeal Decisions


May 2018

Malget v. John Deere Waterloo Works, No. 5048441 (Remand May 23, 2018) - The claim was remanded from the district court on the issue of "whether the arc flash position created for Malget after sustaining his work injury is available on the competitive labor market."  If not, the agency was ordered to redetermine claimant's industrial loss.  On remand, the commissioner finds that there was little evidence in the record regarding the availability of the arc flash job in the labor market. A Deere employee had testified that this was a normal job for electricians at all Deere facilities.  Although this was not a make work job, since there was little evidence about the availability of the job in the overall labor market, claimant's overall industrial loss was reconsidered.

The decision notes that claimant has not made an application for work or looked for work and indicated that a loss of earning capacity due to voluntary choice or lack of motivation to return to work is not compensable (citing five cases).  Although claimant had been found disabled by social security, this was not controlling.  Kent Jayne is excoriated for finding repeatedly that claimants are precluded from the competitive labor market and is found not credible.  It was noted that claimant was a city council person for the City of Oelwein at the time of the hearing.  Claimant was found to be 60% disabled, which was 10% more than was the case before remand.

Dikutole v. Tyson Foods, Inc. No. 5054404 (App. May 11, 2018) - Claimant was found to have an unscheduled injury and was awarded a 40% industrial benefit (Palmer).  Defendant appeals and argues that claimant's injuries were scheduled injuries.  In this case, there were skin grafts associated with the claim.  The commissioner reverses the arbitration decision and concludes that the injuries were scheduled injuries. Although the skin graft on the left leg was found to have occasioned a 5% whole person impairment, the commissioner concludes that because the graft was taken from claimant's left thigh and utilized on his lower left leg, the injury remained within the leg.  The commissioner does not address the question of whether the skin is a body as a whole injury.  The functional loss to the body parts injured in the accident amounted to 18% of the body.  The commissioner surveys a number of cases and holds that an injury to the skin is not to be treated as a body as a whole injury. 17 months from arbitraton decision to appeal decision.

Trembly v. Hy-Vee, Inc., No. 5053539 (App. May 8, 2018) - Claimant was awarded temporary benefits following hearing, as well as medical expenses (McElderry).  The commissioner affirms the decision of the deputy and provides additional analysis of the issues.  Claimant had suffered an earlier MVA for which a stimulator had been implanted.  While at work, claimant stepped on a bread rack, causing him to fall.  Claimant testified that following the incident, he turned the stimulator from 8-10 because he was having additional pain.  He did not fill out an injury report, but mentioned the injury to someone at the store who he believed was the back room manager. Apparently, the fall caused damage to the stimulator leads and following this, claimant sought further medical treatment.  The spinal cord stimulator was later replaced and claimant was off work after surgery.  The commissoiner concludes that claimant's descriptions of the incident are largely consistent and not contradictory, as defendants had argued. The commissioner affrims the finding that claimant was a credible witness and affirms the decision of the deputy. 16 months from arbitration to appeal decision.

Botello-DeSilva v. IAC Iowa City, No. 5047339 (Remand May 7, 2018) - On judicial review, the district court indicated that the opinion of Dr. Cory Christiansen had not been considered.  The court remanded under Meyer v. IBP, indicating that ignoring relevant and important evidence  was an abuse of discretion.  On remand, the commissioner notes that the opinion of Dr. Christiansen was noted in the arbitration decision.  Although he causally connected claimant's hip pain to the original injury, he did not provide an opinion as to permanency.  The commissioner finds that the opinion is not persuasive as he fails to provide a rational for why he believes there is a causal connection between the hip pain and the original injury.  Three and half months from remand decision by district court to this decision.

Benson v. Rabiner Treatment Center, No. 5054312 (App. May 3, 2018) - Claimant was found to have sustained a 70% industrial disability (Pals).. $4200 in penalty benefits were also awarded.  Defendants appeal and claimant cross-appeals, arguing that claimant was permanent total.  Without further analysis, the commissioner affirms. 16 months from arbitration to appeal decision.

Houston v. Harding Enterprises, No. 5052683 (App. May 3, 2018) - Claimant was awarded permanent total disability and penalty benefits following hearing (McElderry).  Defendants appeal. The commissioner's designee (Pals) affirms with the exception of certain medical expenses. The deputy finds that claimant attempted to return to work following his injury but was unable to work a complete day of  work.  The deputy describes defendants' argument that claimant returned to work without restrictions "disingenuous."  She also finds that a functional rating  (8% in this case) did not directly correlate to the degree of industrial disability. Penalty in the amount of $5000 was also affirmed.  A few medical bills, related to claimant's lipoma removal, were disallowed, as this was not causally related to the work injury. 22 months from arbitration to appeal hearing.

Hildreth v. All Star Group Companies, No. 5027979 (App. May 3, 2018) - Claimant was found to have a 60% functional disability of the right leg (Walshire).  In making this determination, the deputy concluded that the impairment ratings under the Guides did not address claimant's actual loss of use of the right leg (claimant could only stand and walk for 10 minutes).  The deputy described this loss of use as more onerous than a partial amputation and provided a 60% functional loss finding. No BAW injury was found..  Defendants appeal.  On appeal, the commissioner reduces the functional rating from 60% to 18%. The commissioner also reverses a finding that an FCE charge be paid.  Dr. Femino had performed six surgeries on claimant's leg.  An FCE recommended by Dr. Femino, showed that claimant could only perform sedentary work.  A second physical therapist found claimant could perform medium work.  Dr. Chen found that claimant had a 10% impairment of the leg.  Dr. Kirkland believed that claimant had an SI sprain because of the leg injury and provided a 7% whole person impairment rating.  The commissioner affirms the finding that the injury was confined to the leg.  Ultimately, the commissioner agrees with Dr. Kirkland's impairment rating to the leg (18%) and finds that the functional losses demonstrated by the FCE were not to be considered.   Hence, the award was reduced to 18% from 60%.  The commissioner holds to  his view that FCE's cannot be paid for under 4.33(6) unless they are ordered by a physician. 17 months from arbitration to appeal hearing.

Bowers v. Premium Transportation Staffing, No. 5040646 (App. May 1, 2018) - The deputy commissioner found that defendants were responsible for $50,000 in penalty benefits (McElderry).  The employer argues on appeal that they provided the carrier with sufficient funds to pay the claim and should not be found liable for penalty.  The employer had a $1 million deductible.  

In the initial hearing. claimant was found permanently and totally disabled, but penalty benefits were denied.  The insurer filed a bankruptcy petition after the decision.  The receiver in the bankruptcy petition had indicated that workers' compensation payments should continue to  be made. Defendants' counsel indicated they were filing a petition for judicial review and would not make payments.  On judicial review, defendants requested a stay of proceedings pending the bankruptcy proceedings.  The court denied this request. 

The Iowa Insurance Guaranty Association indicated that there was a $1 million deductible on the claim and therefore the Guaranty Association was not a part of the claim.  Claimant prevailed at the district court and court of appeals, with the COA decision issued on October 14, 2015.Defendants did not pay the claim, even at this point.  Claimant obtained a judgment of approximately $100,000 and filed a notice of foreign judgment in Ohio.  The employer issued a check for about $64,000 on February 24, 2016, but didn't pay the remaining benefits, interests or costs.  The employer argued that it was not responsible for the penalty and that the insurer was responsible, citing Section 515B of the Code provides that the term "covered claim" does not include any amount that is a fine, penalty or examplary damages and that consequently they are not responsible for the penalty.

The commissioner finds that there is no coverage afforded under section 515B because the deductible is not a covered claim and thus the Guaranty Fund is not implicated.  With respect to the employer's argument that they were not liable for penalty because they had paid the insurer sufficient funds to pay claimant's claim, the commissioner found this argument had no basis under Iowa law and affirmed the penalty benefits in the amount of $49,830.87.  22 months from arbitration to appeal decision. 

April 2018

Bruning v. Farner Bocken Co., Nos. 5062213, 5062214, 5062215 (App. April 30, 2018) - This case is a part of the numerous partial commutation actions filed in advance of July 1, 2017.  The case had been remanded by the district court following the commissioner's ruling that the cases were interlocutory and thus not a proper subject of appeal.  The district court remanded for a decision for an explanation or ruling consistent with the Sloan  decision.  In Sloan, the commissioner found that if a decision had not been made on the merits of a claim, commutation was inappropriate.  Citing Sloan, the commissioner dismisses the partial commutation appeal.

Wood v. Phillips Healthcare, No. 5049753 (App. April 27, 2018) - Following hearing, claimant was found to have a 60% industrial disability (Christenson).  Travel expenses were awarded, as was the second of two IME's by Dr. Kuhnlein.  On appeal, the commissioner's designee (McGovern) affirms the decision without additional comment.  19 months from arbitration to appeal decision.

Hyten v. The Hon Company, No. 5051067 (App. April 26, 2018) - The only issue involved in this appeal is a penalty finding.  Following hearing, defendants wrere assessed a 50% penalty on the 62.5 weeks of benefits that were not paid in a timely fashion following an IME by Dr. Taylor (Walsh).  Defendants produced no evidence that they have ever produced a written explanation fot the delay. On appeal, Deputy Grell, acting as designee, affirms the decision without further discussion. 17 months from arbitration to appeal decision.

Logan v. ABF Freight System, Inc., No. 5047979 (App. April 25, 2018) - Following hearing, claimant was found to have a 15% industrial loss (Walsh).  Defendants appealed and claimant cross-appealed.  The commissioner's designee on appeal (Grell) discusses the issue involved in the case and affirms the 15% industrial award, the wage rate, the determination of healing period and alternate medical care.  On this issue, the deputy finds that providing no care for the right shoulder injury was inferior to and less extensive than the care requested by the employee.  20 months from arbitration to appeal decision.

Shariff v. Kraft Foods, Inc., No 5037146 (App. April 25, 2018) - Claimant had a hearing in 2013 which was a take nothing opinion. On appeal, the commissioner reversed and ordered a running healing period.  Defendants sought judicial review, lost and filed an appeal, filing a supersedeas bond.  Claimant filed a post-hearing penalty petition.  The COA ultimately affirmed the running healing period. Defendants made payment of the award on March 15, 2016.

In the post-hearing penalty proceeding, the deputy (Gordon) found that claimant was entitled to post-hearing penalty benefits from 4/30/14 to 4/27/15 and from 3/24/16 to 5/4/16.  Penalty of $11,500 was awarded.  On appeal, and without further comment, the commissioner affirms the penalty award.  18 months from arbitration to appeal decision.

Gamble v. AG Leader Technology, No. 5054686 (App. April 24, 2018) - The deputy in this case provided a 60% industrial disability award (Walshire). Defendants appeal.  On appeal, the commissioner affirms the industrial disability award without additional comment.

The commissioner also addresses the issue of interest under the 2017 revisions to the workers' compensation act.  With respect to this issue, the commissioner concludes that under the former version of section 535.3, defendants were under an "obligation or liability to pay interest at the rate of ten percent on accrued temporary partial disability benefits that were payable and not paid when due from September 30, 2013."  From July 1, when the new statute took effect, defendants are obligated to pay interest at the rate settled "pursuant to the H15 report settled as of the date of claiman's injury, plus two percent."  Although the decision indicates that the rate is the rate payable as of the time of the injury, he concludes that claimant is to be paid 4.14% interest after July 1, 2017, which is quite a bit higher than the rate at the time of claimant's injury on May 9, 2013, so this conclusion is a bit confusing.  This would appear to be the commissioner's view on the issue of interest in light of the new statute.  18 months from arbitration to appeal decision.

Johnston v. Mohawk Industries, Inc., No. 5052017 (App. April 20, 2018) - In this case, the deputy found that claimant was entitled to a 35% industrial disability (Elliott).  Defendants appeal and on appeal the commissioner affirms without additional comment.  18 months from arbitration to appeal decision.

Hoefer v. CB Richard Ellis, Inc., No. 5052635 (App. April 18, 2018) - The deputy concluded that claimant had suffered a permanent scheduled member injury and a sequela injury to the body as a whole (Palmer).   A 20% industrial award was provided.  A $1200 penalty was assessed.  Claimant was denied payment for the full charge for Dr. Sassman's IME.  Both parties appeal and without additional comment, the commissioner affirms.  18 months from arbitration to appeal decision.

Ondler v. Quaker Oats Co.,  No. 5052607 (App. April 11, 2018) - The deputy found that claimant failed to carry his burden of proof that he suffered hearing loss and tinnitus arising out of and in the course of employment (Fitch).  This is a Hansen vs. Tyler claim in which Hansen prevails because Tyler allegedly did not consider medical records from procedures during claimant's childhood. Without further comment, the commissioner affirms the decision of the deputy.  17 months from arbitration to appeal decision.

Garcia v. Vander Waal Feedlot, Inc., No. 5034267 (App. April 11, 2018) - In this review-reopening action, the deputy found that claimant had sustained his burden of demonstrating a change in his physical condition due to a sequela injury to his hip and low back (Walsh).  Claimant was awarded15% industrial disability benefits with credit for the scheduled member payments that had been made previously. The commissioner affirms the decision of the deputy without further analysis.  17 months from arbitration to appeal decision.

Bell v. 3E, No. 5034021 (App. April 10, 2018) -  Claimant was found not to have sustained a change in condition in this review-reopening action. The commissioner affirms most of the award without further comment, but finds that claimant is entitled to interest on unpaid healing period benefits for the period from January 12-30, 2012.

Rosario Romero v. Curly's Foods, No. 5049896 (App. April 10, 2018) - In this claim, the deputy (McGovern) found that claimant had not provided notice of her cumulative shoulder condition for 210 days after she should have discovered the injury.  Claimant appeals, arguing that the last injurious exposure to the working conditions that led to shoulder problems was within the notice period.  The commissioner affirms, finding that "this is one of those extremely rare cases where a claim should be barred by a claimant's failure to comply with the 90 day notice requirement . . ."  The commissioner indicates that claimant did not state the she did not understand the nature, seriousness and probable compensable character until March 27, 2014 because she testified she reported the condition to defendants in May of 2013, which defendants denied.  The commissioner indicates that by arguing that she reported the injury in May of 2013, she was conceding the seriousness of her condition as of that date.  Of course, the courts have not equated seriousness to the mere reporting of an injury and seriousness is not the only prong of the discovery rule.  Claimant also argued that her last injurious exposure was in May of 2014, a contention the commissioner does not  address.  18 months from arbitration to appeal decision.

Wood v. A-Tec Recycling, No. 5049820 (App. April 6, 2018) - Claimant was awarded a 10% industrial disability in addition to payment of a copayment of $2575 for treatment for the work injury (Fitch). IME costs were also awarded.  Both parties appeal.  Without further comment, the commissioner affirms the decision of the deputy. 19 months from arbitration to appeal decision.

Tilton v. H.J. Heinz, No. 5053002 (App. April 5, 2018) - In this case, the hearing deputy (McElderry) found that  claimant's petition was filed untimely..  The deputy concluded that claimant had been aware of the nature, seriousness and probable compensability of the injury well before the April 15, 2013 date alleged in the petition.  Since the petition was filed on March 27, 2015, it was untimely.  On appeal, the commissioner's designee (Christenson) also dismissed claimant's claim, but on the basis that she had not provided notice within 90 days.  The deputy found that claimant's manifestation date was September 8, 2010 and she did not notify the employer until May 3, 2013.  Based on this finding, the statute of limitations finding was not addressed.  21 months from arbitration to appeal decision.

Ramirez v. The Weitz Co., No. 5041465 (App. April 5, 2018) - Claimant was found to have a 60% industrial disability following hearing (Pals).  Costs were also awarded against defendants for payment of Dr. Kirkland's IME.  Defendants appeal and the commissioner affirms without further comment. 19 months from arbitration to appeal decision.

Buchanan v. Presbyterian Homes and Services, No. 5054053 (April 2, 2018) - The deputy concluded that claimant had suffered injuries to her left foot and ankle with a permanent sequela injury to her low back and provided a 65% industrial award (Walshire).   Penalty benefits were also imposed in the amount of $5,428.97 for unreasonable delay in paying benefits.  Defendants appeal and claimant cross appeals, but asserts that the decision should be affirmed.  Without further discussion, the commissioner affirms.  20 months from arbitration to appeal decision.  

March 2018

Huff v. Alcoa, Inc., No. 5052230 (App. March 30, 2018) - Claimant was found to have suffered a 25% industrial disability following hearing (Elliott).  Defendants were found to be entitled to a credit and the costs of the IME were denied. Defendants appeal.  With further analysis, the commissioner affirms.  17 months from arbitration to appeal decision.

Baker v. Pyramid Wall Systems, No. 5059101 (Remand March 27, 2018) -  This is a remand order from district court on a partial commutation matter.  The partial commutation petition was dismissed as premature because claimant alleged that he was entitled to "TBD" for purposes of the commutation.  A notice of appeal was dismissed as interlocutory and this action was appealed to the district court, which remanded for an explanation or ruling consistent with Sloan v. Mark D. Sloan, No. 5065386, where the commissioner had earlier ruled that 86.45 provides that a prerequisite for a commutation is that the amount of compensation payable can be definitely determined.  On remand, the commissioner sets forth much of the Sloan  ruling and again dismisses the petition for commutation.  

Hall v. Cargill Meat Solutions, No. 5044361 (App. March 27, 2018) - At hearing, claimant moved to exclude reports by Dr. Ascheman.  The hearing deputy denied this request because it was made two months after hearing and because the exhibit had already been admitted as a part of the Joint Exhibits (Palmer).  On appeal, the commissioner finds that  the appeal of this issue was entirely without merit.

On the merits of the case, the deputy concluded that claimant failed to carry his burden of demonstrating a physical-mental injury. With further discussion, the commissioner affirms the arbitration decision.  17 months from arbitration to appeal decision.

Reh v. Tyson Foods, Inc., No. 5053428 (App. March 26, 2018) - The sole issue in this appeal is whether claimant was entitled to reimbursement for the costs of Dr. Tearse's IME.  The deputy awarded the IME costs (Pals).  On appeal, the commissioner reverses the award for the IME.  Claimant had a work related injury to his right shoulder and treated with Dr. Gorsche, who recommended surgery.  The surgeon, Dr. Gordon, did not believe that claimant's injury was work related.  Dr. Tearse subsequently performed an IME, charging $1600.00, with no breakdown of costs.  Claimant argued that the no causation findings triggered claimant's right to an 85.39 exam.  Claimant argued that proving an injury arose out of and in the course of employment was not a requirement for entitlement to an 85.39 exam.  Defendants argued that because their doctors did not provide ratings, only causation opinions, the prerequisites of section 85.39 were not met. 

The commissioner finds that a finding of no causation, without an evaluation of permanent disability, was insufficient to trigger claimant's right to an 85.39 exam.  Here, according to the commissioner, there was no rating of impairment.  Dr. Tearse's costs were also not taxable as costs because Dr. Tearse did not break down what was charged for the written report and for the examination.  Claimant takes nothing from this proceeding.  17 months from arbitration to appeal decision.

Echols v. Elite Staffing and Jacobson Staffing Co., No. 5047498 (App. March 26, 2018) -  At hearing, claimant was found to have suffered an aggravation of a pre-existing low back condition, which led to permanent and total disability. Claimant was also found eligible for medical care.  The hearing deputy based claimant's rate on a combination of testimony and tax returns.  A mental injury claim was rejected (Walsh).

On appeal, defendants challenge causation and the PTD award, but not the rate.  The claim was delegated to the commissioner's designee, Deputy Gerrish-Lampe, who affirmed the decision of the deputy.  Defendants argued the claimant was not a credible witness.  The hearing deputy had found that claimant was trying to be honest.  On appeal, determinations of credibility are given deference.  Since it was undisputed the claimant slipped and fell down a number of steps, there was clearly an event that could have caused the back problems  Dr. Sassman's report was credited over that of Dr. Miller.  18 months from arbitration to appeal decision.  

McMurray v. Vermeer Mfg., No. 5047980 (App. March 26, 2018) - Claimant was found to have failed to carry his burden of proving that his work injury was the cause of any permanent disability (McElderry). Dr. Bansal's IME was awarded under 85.39.  Costs were assessed to claimant.  On appeal, the commissioner's designess (Gordon) affirms the decision of the hearing deputy.  Claimant had a prior cervical fusion in 2012 and had a work injury in January 2014.  The deputy relied primarily on the opinions of Dr. Boarini, who had performed the fusion surgery, to support the conclusion that there was no additional permanent from the work injury.  Dr. Bansal's opinion was not credited, primarily because he did not address the findings of Dr. Boarini or Dr. Miller.

There is a discussion of the XRTS hand strength assessment which is troubling.  The decision notes that the FCE report includes numerous references to articles "that presumably support the grip strength testing method."  Of course, most of those articles are written by the folks who developed the XRTS method.  Regardless of the FCE, however, the decisoin finds that claimant still failed to carry his burden of proving causal relationship between his limitations and the work injury.  Although Bansal's report is ordered to be paid, the arbitration decision is affirmed in awarding costs against claimant.  24 months from arbitration to appeal decision.

Cockrell-Colton v. Catholic Health Initiatives, No. 5051851, 5055856 (App. March 23, 2018) - Claimant was found to have an 8% right thumb injury on one claim and a 35% industrial disability on the second claim (Grell).  The commissioner affirms without additional comment.  20 months from arbitration to appeal decision.

Dillavou v. John Deere Des Moines Works, No. 5051562 et al. (App. March 22, 2018) - I this case, the deputy found that claimant was entitled to a 40% industrial disability award in addition to temporary benefits.  Dr. Bansal's IME costs were awarded under section 85.39, with the deputy finding that no rating was equivalent to a 0% payment, thus triggering 85.39 (Pals).  Defendants had taken the position that claimant had returned to baseline and suffered no permanent impairment.   On appeal, the commissioner appeals on the merits, but concludes that there was no support for the argument that providing no impairment rating was equivalent to a 0% impairment and finding the this would be inconsistent with Des Moines Area Regional Transit v. Young. 19 months from arbitration to appeal decision.  

Siglin v. United Airlines, Inc., No. 5053170, 5053171 (App. March 19, 2018) - Claimant was found by the hearing deputy to have failed to carry his burden of proof on claims on hearing loss and tinnitus (Grell).  Without further elaboration, the commissioner affirms the arbitration decision.  17 months from arbitration to appeal decision.  

Kramer v. Kraft Foods Group, Inc., No. 5052150 (App. March 16, 2018) - Claimant was found eligible for temporary benefits, a 25% industrial disability and $4,000 in penalties following hearing (Palmer).  Without additional analysis, the commissioner affirms the decision of the deputy.  18 months from arbitration to appeal decision.

Hills v. John Deere Des Moines Works, No. 5052067 (App. March 15, 2018) - Claiamant was found to have sustained bilateral carpal tunnel injuries and was found eligible for a 12% award of benefits under 85.34(2)(s). (Walsh).  On appeal, the commissioner affirms that claimant suffered a work related injury, but reduces the extent of the injury from 12% BAW to 2% BAW.   The commissioner notes that Dr. Cherny's ratings included ratings for the elbows, which claimant had not alleged.  Claimant had no treatment for his elbows.  The commissioner accepts the reports of Dr. Kimelman, which had provided claimant a 2% rating.  16 months from arbitration to appeal decision.

Stevens v. Eastern Star Masonic Home, No. 5049776 (App. March 14, 2018) - Following hearing, claimant was found to have a shoulder injury and CRPS and a 60% industrial disability.  Alternate medical care was also awaarded.  On appeal, the commissioner affirms without additional comment.  19 months from arbitration to appeal decision. 

Bruce v. H.L. Corporation, dba Creston Family Restaurant, No. 5054197 (App. March 9, 2018) - Claimant was found to have sustained a 60% industrial disability following hearing (Walshire). Defendants appeal.  Without additional discussion, the arbitration decision is affirmed.  19 months from arbitration to appeal decision.  


Green v. North Central Iowa Regional Solid Waste Agency, No. 5042527 (Remand March 8, 2018) - At the agency level, the commissioner concluded that any treatment not paid by defendants was not authorized or necessary to treat the work injury.  Claimant filed a petition for judicial review and the district court remanded the case back to the agency for a determination as to whether there was a causal connection between claimant's injury and the claimed medical expenses.  

On remand, defendants are found responsible for medical expenses associated with emergency treatment for a closed head injury.  Care for followup with Dr. Rondinelli is also awarded, as this was authorized by defendants.  Costs of care a Trinity Regional Medical Center for emergency care are also awarded.  Claimant was found not to have established beneficial care for Trimark Family Practice as "there is little evidence in the record that the care was . . . beneficial."  Although claimant received care at Community Health Center, by the time this care was received, claimant had reached MMI and no further care had been recommended so payment is denied.  The remand order is very specific as to the bills that are to be paid, which was apparently not the case in the original decision.  


Luscombe v. Ida County Sheriff's Dept., No. 5047861 (App. March 7, 2018) - Claimant was found to have a 20% industrial disability following hearing, but was denied additional healing period benefits (Walsh).  The deputy concluded that claimant's hand injury was CRPS/RSD and thus treated the claim industrially.   Defendants appeal.  Without additional comment, the commissioner affirms.  17 months from arbitration to appeal decision.


Soliz v. Farmland Foods, No. 5047856 (App. March 7, 2016) - Claimant was awarded permanent total disability benefits following appeal (Elliott).  On appeal, the commissioner affirms the PTD finding without additional comment.  With respect to payment for Dr. Bansal's IME and a pyschological report, the commissioner found that Dr. Bansal's IME was not payable under section 85.39 of the Code because the findings by defendants doctors that claimant had not sustained a work related injury was not equivalent to a finding of 0% impairment.  The commissioner found this was contrary to the opinion in DART v. Young.  The IME was also found not to be a taxable cost.  Dr. Ressler's report costs were limited to $300, as this was the amount attributable to the report aspect of the evaluation.  18 months from arbitration to appeal decision.


Deciga Sanchez v. Tyson Fresh Meats, No. 5052008 (App. March 6, 2018) - In this appeal, the hearing deputy concluded that claimant suffered a permanent total disability as a result of  head, neck and mental injuries (Fitch).   On appeal, the commissioner reverses the permanent total disability award and awards a running healing.period.  The commissioner also reduces the taxation of costs for a psychologists report from $1200 to $300.  

Claimant was pushing a hog carcass which had become stuck on an overhead rail.  The carcass fell on claimant, striking him on the back of his head and neck, striking his face, arm and chest on a metal object as he was falling.  Claimant testified he was scared and in shock following the incident and felt pain throughout his body.  He apparently did not lose consciousness.  Claimant returned to work with defendant on light duty, but had difficulty with the noisy environment, leading  him to feel stress and anxiety.  Claimant was ultimately diagnosed with a mood disorder/adjustment disorder and that claimant was fixated upon and self-conscious about the scar.  Dr. Nguyen recommended treatment.  Claimant was ultimately seen by Amy Mooney and Terrence Augspurger, finding that claimant had unspecified anxiety disorder and PTSD.  They felt that the trauma was not sufficient to qualify for a PTSD diagnosis.  Treatment was with medications provided by Dr. Archer.  Ultimately, Archer indicated that claimant had reached baseline with respect to his psychological condition.  Claimant had an IME with Dr. Bansal, who found claimant had reached MMI and had post-concussive syndrome, PTSD, left ear tinnitus, headaches and concentration impairment, as well as myofascial pain syndrome to the neck.  He gave small impairment ratings and a 40 pound lifting limit.  He also advised caution in returning to work that aggravated his PTSD.  

Claimant also started to treat with a mental health counselor for his PTSD.  Claimant's employment was terminated for missing too much work and accumulating too many points, some of which related to the injury, some to no-call/no shows for non-injury related reasons.  Dr. Ressler performed a psychological IME and also administered an MMPI-2.  Her diagnosis was PTSD with dissociative symptoms. She did not believe that claimant was capable of performing his job  or any other job at the present time.  The appeal decision sets forth Dr. Ressler's conclusions in great detail.  

The commissioner affirmed the finding that claimant's scarring resulted in permanent disability.  Both Dr. Bansal and Dr. Ressler were deposed by defendants.  The commissioner finds that Dr. Bansal's conclusions concerning the permanency and extent of claimant's neck injury was to be given greater weight than that of Dr. Archer.  The commissioner concludes that Dr. Ressler's opinions on diagnosis and causation prevailed and were entitled to the greatest weight as to claimant's mental health condition.  The commissioner found, however, that claimant was entitled to a running healing period rather than a permanent total disability award.  The commissioner concluded that until such time as the treatment recommended by Dr. Ressler was provided, claimant was not at MMI.  Defendant was ordered to select and authorize an appropriate psychologist/psychiatrist to treat claimant.  The costs of Dr. Ressler's report was reduced from $1200 to $300 because the cost of producing the report itself was only $300.  19 months from arbitration to appeal decision.

February 2018


Jimenez v. JBS Swift, No. 5052294 (App. Feb. 26, 2018) - Claimant was found to have sustained a 50% industrial loss, despite the fact that he continued to work for the employer (McElderry). Defendant appeals.  The commissioner affirms without further comment.  17 months from arbtiration to appeal decision.

Jones v. John Deere Waterloo Works, No. 5052098 (App. Feb. 23, 2018) - Claimant was found not to have carried her burden of demonstrating a work related injury. (McGovern).  Without additional comment, the commissioner affirms the denial of benefits.  18 months from arbitration to appeal decision.

Leyva v. JBS USA LLC, No. 5047991 (App. Feb. 23, 2018) - Claimant was found to have suffered injuries to his bilateral hands, wrists, elbows and shoulders as a result of his work injury (Walsh). Claimant was found to be entitled to a running healing period.  Penalty benefits were denied.  On appeal, the decision is affirmed, without additional comment.  19 months from arbitration to appeal decision.

Pressley v. John Deere Harvester Works, No. 5050446 ( App.  Feb. 23, 2018) -  Following hearing, claimant was found to have failed to carry his burden that his knee replacement surgery was related to his work activities (Elliott)   Claimant appeals.  On appeal,, the commissioner affirms without additional comment.  19 months from arbitration to appeal decision.

Jimmerson v. Ultimate Automotive Service Center, Inc., No. 5052541 (App. Feb. 22, 2018) - Claimant was found to have sustained a 30% industrial loss.  Defendants were ordered to pay out of pocket medical expenses and costs, including the cost of an FCE (Elliott).   Defendants appeal. The commissioner affirms on the industrial award, but reverses on the payment of out of pocket costs because this care was without authorization from the employer.  The FCE allowance is also reversed "because the FCE was not requested by a treating or evaluating physician." Not sure where this reason for denial is in the rules, but it seems to be the predominant reason for the denial of FCE costs.  18 months from arbitration to appeal decision.

Vasquez v. Dormark Construction Co., No. 5047236 (App. Feb. 21, 2018) - Claimant was found to have sustained a 25% industrial disability as a result of cervical injuries (Gerrish-Lampe).  Penalty benefits of 50%  on late paid PPD was also awarded.  The commissioner affirms the award with no further discussion. 19 months from arbitration to appeal decision.


McDonald v. Fisher Controls, Nos. 5052226, 5052227 (App. Feb. 21, 2018) - The hearing deputy concluded that claimant failed to carry his burden of proving that he sustained injuries arising out of and in the course of employment (McElderry).   Claimant appeals.  Without further analysis, the commissioner affirms.  19 months from arbitration to appeal decision.


Zalaznik v. John Deere Dubuque Works, Nos. 5049263,5049378 (App.  Feb. 21, 2018) - Claimant was found to has sustained a 10% functional loss for injuries to the bilateral elbows, but was denied benefits for a shoulder injury which was alleged to be a sequela of the injury to the elbows (Christenson).   The shoulder injury was dismissed on statute of limitations grounds.  Claimant appeals on this claim.  On the second claim, the deputy found claimant had sustained an injury to the right shoulder which was not barred by the statute of limitations.  Claimant was found to have a 20% industrial disability. Claimant appeals on this claim as well, indicating that at least 50% industrial disability should have been awarded.  Defendants also appeal.  Without further discussion, the commissioner affirms the decision of the deputy.  20 months from arbitration decision to appeal decision.


Saghir v. Menards, No. 5052229 (App. Feb. 19, 2018) - At hearing, claimant was found to have failed to meet his burden of demonstrating a permanent injury (McElderry).   Claimant appeals.  Claimant had an earlier motor vehicle accident and neuropsychological testing at that time indicated that claimant was exaggerating his eye, ear, cognitive and psychological injuries.  On January 1, 2015, claimant was struck in the head with a board while working for Menard's.  Claimant was found to have developed a cervical strain. An MRI showed a bulging disk at C6-7, but the treating doctor did not believe that claimant's problems made sense from a neurologic standpoint.  The doctor believed that the symptoms were best addressed from a mental health standpoint.  Additional neuropsychological testing was found invalid and exaggerated. Dr. Bansal found that claimant had suffered a traumatic brain injury and had also had an aggravation of C6-7 cervical spondylosis.  Dr. Bansal did not refer to the 2010 accident in his report, despite having access to those records.

The commissioner affirms the denial of benefits based on the fact that neither claimant's eye doctor or Dr. Bansal were aware of the 2010 motor vehicle accident and the lack of credibility of claimant.  The decision goes on at length to criticize Dr. Bansal's failure to take into account the earlier MVA, calling this a "critical omission."  The claimant is also trashed for exaggerating his symptoms, malingering and for having a lack of motivation to work.  The decision of the deputy is affirmed.  It is interesting that this decision, although it could have been a pro forma affirmance of the denial of benefits, goes to great lengths to cast doubt on the veracity of claimant and to attack Dr. Bansal's credibility.  19 months from arbitration to appeal decision.


Aguilar v. Fountain West Health Center, No. 5047732 (App. Feb. 16, 2018) - Claimant was awarded 125 weeks of benefits following hearing (Elliott).  Defendants appeal.  The commissioner's delegee (Palmer) affirms the decision without additional comment. 23  months from arbitration to appeal decision.


Martin v. Midamerican Energy, No. 5055340 (App. Feb. 16, 2018) - In this claim, which involved hearing loss and tinnitus, the deputy found a hearing loss of .0022% and found a 15% industrial disability for the hearing loss and tinnitus (Walshire).  Defendants appeal. On appeal, the commissioner concludes that claimant suffered work related hearing loss and tinnitus, but reduces the industrial disability level to 5%.  Dr. Martin found there was no hearing loss, based on test results that were inconsistent.  Dr. Kenny's audiogram showing a hearing loss of.0022% was accepted as valid.  Claimant indicated he was able to perform his work despite tinnitus and hearing loss.  The only time his tinnitus bothers him is when he works on cars and engages in hobbies where he needs to read a manual because he has difficulty concentrating.  Claimant is retired.  Dr. Tyler found a 25% binaural hearing loss using the Iowa Code and 34% if the 4000Hz frequency is used.  Dr. Tyler provided a 10% loss for tinnitus.  Dr. Plakke disagreed and indicated that the hearing loss and tinnitus were not due to work.

The commissioner finds that Dr. Kenny, an audiologist, is the most convincing and finds hearing loss of.0022%.  He finds that the use of the "suspect" results at Dr. Martin's office was inappropriate.  The commissioner finds Dr. Tyler's tinnitus scale "subjective" and "not credible" and says "it should not be the basis for rating permanent impairment for tinnitus."  Citing Ament v. Quaker Oats Co., No. 5044299, 5044298 (App. March 17, 2016), the commissioner concludes that Dr. Tyler's rating system for tinnitus is "not credible, not only because he uses his unscientific method to come up with it, but his impairment rating is 100 percent higher than the maximum impairment rating assignable under the AMA Guides."  The commissioner awards a 5% industrial disability rating.  If there was any doubt that the commissioner had rejected Dr. Tyler's methodology, this decision put that to rest.  19 months from arbitration decision to appeal decision.

Arreola v. Bodeans Baking Group Holding, LLC, No. 5040956, 5040974 (App. Feb. 15,6, 2018) - Claimant was awarded permanent total disability against the employer due to shoulder injuries.  Two injuries were involved and two insurance companies were involved. The PTD benefits were awarded against the employer and Indiana insurance company (the insurance company on the second claim)  as a part of the consolidated hearings.  The second decision was ultimately appealed and upheld through the district court. Claimant subsequently filed for full commutation against the employer and Indiana Insurance Company.  Farmington, the first insurance cmpany, filed for reimbursement under seciotn 85.21.  The deputy dismissed Farmington's petition, finding that this should have been raised as a part of the initial proceedings.  Claimant settled the full commutation petition with Indiana.  On appeal the case was delegated to Deputy Fitch, The decision of the hearing deputy on the contribution issue was affirmed. Deputy Fitch notes that rule 876 IAC 3.1(11) requires the paying party to file "an application and consent order" form before seeking reimbursement from another carrier, which had not been done.  Because the issue of reimbursement was not raised at the initial hearing, Farminigton had no right to seek reimbursement.  


Salazar v. Kinder Morgan, Inc., No. 5049390 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits following hearing (Pals).  Defendants appeal and on appeal the commissioner's desinee (Palmer) affirms the permanent total award. 22 months from arbitration to appeal decision.


Jones v. Raining Rose, Inc., No. 5048297 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits and penalty benefits following hearing (Heitland).  On appeal, the commissioner's designee (Christenson), reverses and provides a take nothing order for claimant.  The bulk of the order is a discussion of Dr. Hines IME versus Dr. Kuhnlein's DME, in which Kuhnlein comes out ahead.  The deputy calls out Dr. Hines finding that claimant suffered headaches, neck pain and a mental health condition from two days without an ergonomic chair.  He rejects other causation opinions because he finds that these opinions only corroborated that claimant reported symptoms after not having her ergonomic chair for two days.  Although the appeal indicates that considerable deference was given to the credibility findings, that really doesn't appear to be the case, as the appeal decision notes that there were several inconsistencies between the medical records and claimant's testimony at the hearing and at deposition.  Claimant was found not entitled to payment for Dr. Hines' IME since claimant did not prevail.  25 months from arbitration to appeal decision.


Postell v. The Weitz Group, No. 5050086 (App. Feb. 12, 2018) - Following hearing, claimant was found to be eligible for 200 weeks of permanency benefits for an injury to his left shoulder.  The arbitration decision also awarded $12,000 in penalties (Walsh).  The commissioner's designee (MdGovern) affirms the arbitration decision without additional comment.  22 months from arbitration to appeal decision.


Hoover v. Jacobson Transportation, No. 5052323 (App. Feb. 12, 2018) - Claimant was found to have sustained a 30% industrial disaiblity as a result of neck, back and right knee injuries.  A mental injury claim was rejected following hearing.  Defendants appeal.  The commissioner affirms without additional analysis.  

Staub v. Thombert, Inc., Nos. 5049959, 5049960 (App. Feb. 2, 2018) - Claimant was awarded a 60% industrial disability following hearing (Gerrish-Lampe).   Dr. Kuhnlein's IME charges of $886,37 were awarded as costs. The commissioner affirms without additional analysis.  19 months from arbitration to appeal decision.


McDonald v. Sedona Staffing, No. 5041080 (App. Feb. 2, 2018) - Claimant was found to be entitled to an industrial disability benefit of 40%. (Fitch).   Defendants appeal.  On appeal, the commissioner's designee (McGovern) affirms the decision in its entirety, without additional analysis. 22 months from arbitration to appeal decision.  

Beyer v. John Deere Dubuque Works, No. 5051906 (App. Feb. 1, 2018) - Claimant was found entitled to a 25% industrial disability (Gerrish-Lampe).    Both parties appeal.  Without comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

January 2018


Sweeney v. John Deere Davenport Works. No. 5050662 (App. Jan. 31, 2018) - The deputy concluded that claimant had not demonstrated that her injuries to her right wrist resulted in permanent impairment (Fitch).   Defendant was ordered to pay costs.  On appeal, the commissioner affirms the decision finding there was no permanent impairment and reverses the order on costs since claimant failed to prevail on any issues in the arbitration proceeding.  21 months from arbitration to appeal decision.

Freemon v. Annett Holdings, Inc., No. 5047798 (App. Jan. 31, 2018) - Deputy concluded that claimant had established a 20% industrial disability as well as healing period benefits (Fitch).  Defendants appeal.  The commissioner affirms the decision.  The commissioner addressed an issue of light duty work in the decision.  Claimant lived in Mississippi and was asked by the employer to come back to Iowa to perform light duty work.  Claimant refused for personal reasons.  Benefits were suspended.  The commissioner, citing Annett Holdings v. Roland, 881 N.W.2d 470 (Iowa App. 2016), finds that the memorandum of understanding about light duty work violates section 85.18 of the Code.  The commissioner finds that claimant was not offered suitable work and affirms the healing period award.  21 months from arbitration to appeal decision.

Stevens v. Eaton Corp., No. 5049606 (app. Jan. 26, 2018) - Claimant was found to have sustained an injury to his right arm and was awarded healing period and 10% permanency (McElderry).  Defendants were found eligible for credit for short and long term disability paid to claimant. Defendants appeal.  On appeal defendants argue that the credit for LTD should be larger, but the commissioner indicates "it is not possible to understand [defendants'] analysis" he affrims the deputy's award.  The remainder of the decision is affirmed without comment.  21 months from arbitration to appeal decision.

Hecht v. Highline Construction, No. 5052175 (App. Jan. 25, 2018) - In this case, the deputy concluded that claimant had met his burden of demonstrating hearing loss and tinnitus and awarded claimant 30% industrial disability (Walshire).  Penalty benefits were also awarded as were the costs for Dr. Bansal's IME. Following the hearing, defendants submitted an application to submit further evidence.   Although claimant argued this was not timely filed, the additional evidence, which went to claimant's credibility, was allowed (claimant appealed from this ruling).

On appeal, the commissioner allows the newly admitted evidence and finds that this evidence established that claimant was not credible.  The permanency award is reversed, as is the penalty award.  Claimant's injury occurred when an airbrake system exploded approximately six inches from his right ear.  Testing did not reveal damage to claimant's ear structure, but an audiogram showed worsening hearing following the accident. Dr. Hansen at UIHC noted inconsistencies in audiograms. Dr. Hansen found that auditory brainstem responses and otoacoutic emissions were performed and demonstrated normal hearing.  Hansen found no hearing loss and no tinnitus.

Dr. Tyler found a 4% hearing loss and a 22% loss for tinnitus. Dr. McMains, who had provided a 10% rating for hearing loss, changed his opinion and found no hearing loss.  Dr. Bansal found that claimant had a 17% hearing loss and agreed with Tyler on the 22% loss for tinnitus.

The evidence presented after the hearing related to a job claimant had after he left Highline.  The documents indicated that claimant had been fired from that later job.

On appeal, the commissioner finds the opinions of Dr. Hansen and McMains more credible than Tyler and Bansal, finding that they had conducted no testing and that the audiograms they relied on were subjective and not consistent.  The tinnitus question was answered unfavorably to claimant because he was found not to be credible and since tinnitus is subjective and depends on claimant's credibility, there was nothing to support claimant's position.  Accordingly, the industrial disability award was reversed. The penalty award was also reversed, as was the award of costs against defendant. 19 months from arbitration decision to appeal decision.

Anderson v. Nichols Aluminum, No. 5047598 (App. Jan. 23, 2018) - Claimant alleged bilateral simultaneous injuries to the hands and was found to be entitled to 25 weeks of permanency following hearing (McElderry).  Claimant was also found to be entitled to $750 of Dr. Hines' IME fee.   Defendants appealed.  On appeal, the commissioner's designee (Christenson) reversed and found that claimant had not established that his bilateral carpal tunnel syndrome arose of out employment.  He credited the reports of the physical therapist and Dr. Frederick over Dr. Hines.  Claimant was found not entitled to payment for any of Dr. Hines' IME costs.  26 months from arbitration to appeal decision.

Drake v. Cedar Rapids Community School District, No. 5051095 (App. Jan. 18, 2018) - Claimant was found to have sustained a 90% industrial loss at hearing (Gerrish-Lampe).  Both parties appeal.  The commissioner affirms without additional analysis.  He concludes that although claimant could recover the costs of Kent Jayne's vocational report, she was not entitled to the cost of the vocational assessment (which was the bulk of the costs).  21 months from arbitration to appeal decision.

Ortiz v. JBS USA LLC,  No. 5049541 (App. Jan. 12, 2018) - Claimant was found to have suffered a permanent total disability following the arbitration hearing (Palmer).  Payment for claimant's IME was ordered but payment for an FCE was denied.  On appeal, the commissioner affirms, without additional analysis.  19 months from arbitration to appeal decision.

Escher v. Mercy Hospital Iowa City, Inc. and Second Injury Fund, No. 5051740 (App. Jan. 11, 2018) - At the arbitration hearing, the deputy (Christenson) found that claimant demonstrated that her left knee injury arose out of her work and awarded 110 weeks of benefits.  Claimant also had an earlier injury to her other knee.  She was found to have a 60% industrial disability, but the Fund was only required to pay an additional 80 weeks of benefits because of the credits (50% for each leg).  On appeal . . . . .    19 months from arbitration to appeal decision.

Cerda v. PAE, No. 5048854 (App. Jan. 10, 2018) - Claimant was found to have sustained a 10% industrial loss following hearing (Christenson).   Alternate care was denied and payment for an FCE and for the costs of the deposition transcript were also denied.  Without further analysis, the commissioner affirms the decision of the deputy.  21 months from arbitration to appeal decision.


Grandstaff v. Direct TV Home Services, Inc., No. 5051420, 5051421 (App. Jan. 10, 2018) - The underlying arbitration decision found that claimant was credible and entitled to permanency benefits (Christenson).  The commissioner's designee (Pals) gave deference to the underlying factual findings.  The appeal decision finds that defendants are entitled to credit for 35 weeks of permanency on an earlier claim, but the arbitration decision found that only 25 weeks were appropriate.  On appeal, defendants are given credit for the 35 weeks previously paid.  But on the current claim, credits were reduced from 43 to 31 weeks because a later date of the end of healing period was found at hearing. The appeal decision also finds that only the costs of preparing vocational report are taxable, not the costs of the examination, thereby reducing the amount reimbursed to claimant. 22 months from arbitration to appeal decision.

Sullivan v. West Central Cooperative, No. 5050594 (App. Jan. 10, 2018) - The commissioner's designee (Fitch) affirms the underlying decision of the deputy (McGovern), which had awarded 300 weeks of benefits.  There is a question of the credits due and the appeal decision affirms the credits found by the hearing deputy.  24 months from arbitration to appeal decision.

McAlister v. Jacobson Transportation Co., No. 5049509 (App. Jan. 5, 2018) - Claimant alleged a respiratory injury (occupational asthma) from inhalation of second hand smoke from driving trucks that had been used by smokers.  Based on the report of Dr. Gerr from Iowa City, claimant was found not to have suffered a work-related injury (Christenson).  Dr. Gerr had concluded that claimant's exposure was actually to third hand smoke, since claimant was not driving with another smoker, and he found this insufficient to support causation.  On appeal, the commissioner affirms.  19 months from arbitration to appeal decision.

Dautovic v. Concord Hospitality, Nos. 5028332, 5051676 (App. Jan. 4, 2018) - Claimant prevailed on review reopening and was found to be entitled to 450 weeks of benefits (Gerrish-Lampe). The employer had initially been found liable for 100 weeks of benefits.  The arbitration decision also found that claimant did not sustain his burden of demonstrating a new injury to the back and found that this injury was a continuation of the initial 2006 injury.  Without additional comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

Bovy v. Second Injury Fund, No. 5042474 (App. Jan. 2, 2018) - Claimant was found to have sustained a permanent total disability based upon a first injury to the left leg and a second injury to the right arm (Gerrish-Lampe).  Without additional analysis, the commissioner affirms the decision of the deputy.  18 months from arbitration to appeal decision.


Monday, November 27, 2017

Court of Appeals Rejects Finding of Depression from Family Doctor, Finds that Admission of Late Report was not Prejudicial

In Bos v. Climate Engineers, No. 17-0159 (Iowa App. Nov. 22, 2017), the commissioner had concluded that claimant did not have a claim for depression following a shoulder injury and rejected the report of claimant's family physician that the depression was connected to the underlying injury.  The commissioner also allowed the admission of a vocational report from defendants even though the expert had not been named in a timely fashion and had not been produced until 18 days before hearing. 

The district court affirmed the commissioner's action with respect to the doctor's findings, but rejected the admission of the late vocational report and remanded to the agency for further opinion.

Both parties appealed to the Court of Appeals.  On the evidentiary issue, the court found that even though the opinion of the family doctor had been unrebutted, the commissioner was within his rights to reject that evidence.  The commissioner had found that it had been several months from the time of the injury until claimant reported his depression, that claimant was not receiving counseling or treatment for depression with the exception of medications and that the doctor's opinion that most people suffering from a disabling physical injury develop depression was not supported in the record.  The court finds that the determination of how much weight to give an opinion was generally within the peculiar province of the commissioner.  The court stated that even when evidence is uncontroverted, so long as valid reasons for rejecting the evidence are proferred, the rejection of the evidence is supported by substantial evidence. 

The court reversed the district court on the admission of the vocational report, even though that report was late.  The court found that rulings on a report's admissibility were within the discretion of the agency, and would be reversed only if there were an abuse of discretion.  The court also found that claimant was not unfairly surprised by the change in the identity of the expert.  Since the agency had offered claimant time to rebut the report, any prejudice from the late disclosure was eliminated.  Based on these conclusions, the court reversed the district court's decision and affirmed the decision of the agency.

Untimely reports have been a major source of conflict within the agency.  Despite the fact that the rules provide that reports are to be provided 30 or more days in advance of hearing, many reports are allowed despite violating that rule, and the violation of the rules seems to be the norm rather than the exception.  Decisions such as this will