Iowa Workers' Compensation

The Iowa Court of Appeals, in Des Moines Public Schools v. Ault,  No. 0-753 (Iowa App. Nov. 24, 2010), concluded that claimant was permanently and totally disabled.  The claim was handled by Jason Neifert of the NBO law firm. The issues in Ault included whether the agency's decision finding permanent total disability was supported by substantial evidence and whether claimant's alleged misconduct was sufficient to deny her a permanent total disability award.  Claimant injured her back at work and ultimately had surgery for that injury.  In the wake of this surgery, she suffered from infection and continuing pain.  She developed a major depressive disorder secondary to the physical problems she was having. Defendants raised issues unrelated to the work injury, including fights in which claimant was involved, drug possession and failure to fully cooperate with treatment. Despite these claims, the commissioner determined that claimant was permanently and totally disabled due to

The Court of Appeals addressed the issue of injuries at a company sponsored event in Gazette Communications v. Powell , No. 0-633 (Oct. 6, 2010).  http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20101006/0-633.pdf.  Claimant injured himself while at a bowling event organized by an employee activity committee.  This injury occurred on June 11, 2005.  Claimant also alleged an injury on June 20, 2005.  The commissioner concluded that the employer derived a substantial direct benefit from the participation of the claimant and thus the injury arose out of and in the course of employment.  A 50% industrial disability award was made. The district court reversed, citing Briar Cliff College v. Campolo , 360 N.W.2d 91, 94 (Iowa 1984).  The case was remanded to determine the effect of the June 20 injury.  The Court of Appeals affirmed the decision of the district court, and focused on the issue of participation in the company event, and the so-called "business related benefit te

In Andover Volunteer Fire Department & Travelers Ins. Co. v. Grinnell Mutual Reinsurance Co. , 2010 WL 3186153 (Iowa, No. 08-1628 Aug. 13, 2010), the Supreme Court allocated risk between two insurance companies.  The claimant in the underlying case, Justin Faur, was an employee of Johnson Valley Beef as well as a volunteer firefighter for the Andover VFD.  On the date of the injury, Justin was attempting to rescue a co-employee who had been overcome by methane fumes at Johnson Valley Beef.  At about the same time as Justin was attempting to rescue the co-worker, he was paged by the VFD to the scene of the accident.  Both the co-worker and Justin died as a result of the accident. Grinnell Mutual, which was the insurance carrier for Johnson Valley Beef, paid the claim and sought contribution or indemnity from Travelers, the carrier for the Andover VFD.  Grinnell claimed that Justin had been "summoned to duty as a volunteer firefighter" under 85.61(7)(a) of the Code.  The

The appellate courts have had a surfeit of rate cases before them recently, and in Hilltop Care Center v. Burton, 2010 WL 2598373 (No. 0-323 June 30, 2010), the court decided another such case.  The rate dispute was premised on a unique factual situation.  Ms. Burton was supposed to receive a raise, which amounted to $1,000 per year, but was instead paid an additional $1,000 per month, thus raising her income by $12,000 on a yearly basis.  She was allegedly overpaid for the last 15 months she worked for the employer.  Apparently, the error was not discovered until Ms. Burton filed unemployment papers following her discharge by the employer. The deputy concluded that claimant should have been paid on the basis of her actual earnings, not on the basis of what her wages should have been.  The commissioner affirmed.  On judicial review, the district court reversed, finding that "an accounting error is not tantamount to an entitlement to an elevated wage."  The district court al

In Swiss Colony v. Deutmeyer , 789 NW2d 129 (Iowa 2010), Kent Deutmeyer worked 30 hours a week at Swiss Colony at the time of his workers' compensation injury.  That injury ultimately required an amputation to the knee, and complaints of phantom pain after the amputation.  During the time he worked at Swiss Colony, claimant also worked 40-45 hours per week at Webber Metals.  The questions presented to the court involved the correct rate for claimant, as well as the extent of industrial disability (claimant left work following his injury, again working in two jobs, but for considerably less money). Also involved was the question of whether the employer could obtain credit for alleged overpayments, which involved section 85.34(5) of the statute. In determining the standard of review, the court noted that it had previously found that interpretation of Chapter 85 had not been delegated to the Commissioner.   Mycogen Seeds v. Sands , 686 N.W.2d 457, 464 (Iowa 2004).  The court noted t

Solland v. Second Injury Fund of Iowa , 786 NW2d 248 (Iowa 2010) provided the court with an opportunity to decide an issue of costs.  The court of appeals had assessed costs equally to the claimant and the Fund, despite the fact that claimant had prevailed in all respects before the court of appeals.   Solland  began as a case in which claimant pursued his case against the Fund for two bilateral injuries. At the court of appeals level, the court found in favor of claimant, citing Gregory v. Second Injury Fund of Iowa , 777 N.W.2d 395 (Iowa 2010) and Second Injury Fund of Iowa v. Kratzer , 778 N.W.2d 42 (Iowa 2010).  On the costs  issue, the court of appeals reversed the decision of the district court approving the assessment of costs by the commissioner and taxed costs of appeals to both parties equally. The Supreme Court found that Solland was the successful party on appeal, "prevailing on all substantive issues." The court found it clearly erroneous, given the success of

Horseplay is not an area that is addressed frequently by the Supreme Court, so the decision in Xenia Rural Water District v. Vegors ,  786 NW2d 250  (July 2010) was an interesting departure from most workers' compensation cases before the court.    The facts of the case are somewhat unusual.  Claimant and a co-worker were in the habit of acknowledging each other by activities such as waving the boom of a back hoe at the other.  On the date of injury, claimant had his hands full and acknowledged the other employee by "wiggling his butt" at him.  The co-employee the attempted to bump claimant with the mirror of his truck, but ended up hitting him with the truck bed. The commissioner found claimant entitled to benefits, holding that the burden of proving horseplay was on the employer.  The commissioner also rejected a defense that the injury was caused by a willful act of a third party.  The district court reversed and denied benefits to claimant. As an initial matter,

In February of 2009, Snap-On Tools filed a petition for declaratory order with the Iowa Workers' Compensation Commissioner.  Initially, the commissioner did not answer the petition, and a petition for judicial review was filed in district court.  The parties agreed that the commissioner would issue a ruling, and on June 14, 2010, the commissioner did so. All of the questions posed in the declaratory ruling related to section 85.39 of the Code.  Those questions were as follows: Must the employer use specific language in an 85.39 request? Can the employee veto or control the identity of the 85.39 physician? What amount of time before the examination is fair notice? Must mileage and meal expenses be paid in advance? What is a reasonable expense for meals? Under what circumstances must lodging be paid for in association with an 85.39 exam? Must the employee actually incur a lodging expense to be entitled to payment? Does 85.39 authorize an employer to request a medical exam

The Iowa Court of Appeals rejected defendants' argument that the opinion of claimant's expert had to be evaluated under Daubert v. Merrell Dow Pharmaceuticals. Frank v. FITS Mfg., No. 09-1419 ( Iowa App. May 26, 2010) http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20100526/0-186.pdf. Frank involved a claimant who developed respiratory problems, ostensibly at work. Claimant's expert witness, a pulmonologist from the University of Iowa Hospitals and Clinics, believed that the constrictive bronchiolitis that claimant developed was related to her work. Defendants' experts, an industrial hygienist and an occupational physician, did not believe that the fumes at the workplace caused or contributed to claimant's condition. The defendants' specifically asked the Court of Appeals to adopt the Daubert standard as the law in Iowa. The court rejected this invitation, finding that the Iowa Supreme Court had previously declined to apply Daubert in L

In what the deputy described as what may have been the longest alternate medical care hearing ever before the agency, the employer was found to have "actively interfered" with the care recommendations made by the treating doctor.   Dodge v. Excel Corp./Cargill Meat Solutions , No. 5032411 (AMC April 27, 2010).  The physician had restricted claimant to sitting duty only, with her leg elevated.  As a part of her light duty work, claimant was made to sit in an 8 x 10 foot room with as many as 11 other workers, and she testified that the nurses at Cargill never check her status.  Despite attempts by claimant to have the doctor change her work status and place her off work, the doctor indicated his hands were tied by the employer's indication that it had suitable work for the claimant. Although claimant's arguments were primarily about the treatment she had received at the hands of the employer, she also argued that the employer had interfered with the medical judgments

On April 16, 2010, the Supreme Court issued a decision in Ballalatak v. All Iowa Agriculture Association , 2010 WL 1507635, No. 08-1588 (Iowa April 16, 2010) http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20100416/08-1588.pdf . Ballalatak involved a supervisor who was fired for advocating to two injured workers that they hire an attorney to ensure they received workers' compensation benefits. The district court held that even if the supervisor was fired for attempting to help the injured workers receive workers' compensation benefits, plaintiff failed to state a claim because there was no public policy that protected supervisors or coemployees from termination for aiding injured employees in collecting workers' compensation benefits. In affirming the decision of the district court, the Supreme Court noted that employers may generally fire an at-will employee at any time. In order for the public policy exception to the at-will rule to apply, said the court, the

Following the passage of section 85.34(7), the constitutionality of the bill (HF 2581) of which that provision as a part was challenged in the case of Godfrey v. State of Iowa , 752 N.W.2d 413 (Iowa 2008). http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20080620/05-1691.pdf . In Godfrey , the court found that the claimant lacked standing to challenge the provisions of the bill, and therefore did not rule on the constitutionality of that provision. More recently, the constitutionality of the bill of which the apportionment language was a part was again challenged, in Quaker Oats v. Main , 2010 WL 200420, No. 08-1507 (Iowa App. Jan. 22, 2010). http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20100122/9-896.pdf . In Main , the court found that the claimant's constitutional challenge was not filed in a timely manner, and hence could not be heard by the court. The court indicated that since the challenge had not been filed before HF 2581 was codified in January of

Reflecting the focus on the budget and economic issues, the 2010 General Assembly passed nothing of import relating to workers' compensation. A number of bills had been on the table, including the following: - Choice of Doctor - Use of Assets in Second Injury Fund to Reimburse Commissioner - Allowing consideration of certain scheduled injuries industrially where earning capacity was negatively impacted - Including the full value of overtime in determining WC rates - Allowing for cost of living adjustments for certain claims - Modification of alternate care procedures for medical treatment - Denying coverage for certain willful acts - Excluding injuries incurred in voluntary recreational programs Because the 2010 session was the second year of the session, all of these bills will need to start from ground zero if they are introduced again. Thus, certain bills that have already passed one chamber will have to begin the process again in the newly constituted Senate and Ho

A recent decision addressing §85.34(7) of the Code has been issued.  In Quaker Oats v. Main , No. 08-1507 (Iowa Ct. App. Jan 22, 2010), 2010 WL 200420, the Court of Appeals addressed two issues regarding the apportionment section of the workers’ compensation law.  The court found that §85.34(7) applied to successive injuries with the same employer as long as one of the injuries occurred after September 7, 2004, the effective date of the legislation.  The commissioner had earlier ruled in Main that both injuries had to take place after September 7, 2004 in order for the legislation to apply, but the district court reversed this finding, and this conclusion was affirmed by the Court of Appeals. The Main court also addressed the issue of the constitutionality of the provisions of House File 2581 that resulted in the legislation codified as §85.34(7).  The legislation had been attacked as being violative of the single subject provisions of the Iowa Constitution, Art. III, sec. 29.  The

In Schutjer v. Algona Manor Care Center , 780 NW2d 549 (Iowa 2010), the court was faced with four issues: 1) the correct rate; 2) whether TTD and TPD benefits were owed; 3) entitlement to PPD benefits; and 4) penalty. The commissioner had agreed with the employer on all four of these issues, but the district court determined that the rate had been improperly calculated and that the commissioner had incorrectly refused to provide temporary benefits for certain days between 12/2/02 and 1/4/03. In view of the decision on the rate issue, the district court remanded the penalty issue to the commissioner. The court of appeals agreed with the district court insofar as the above items were concerned ( TTD , rate, penalty), but also concluded that the commissioner had not properly analyzed the question of Schutjer's eligibility for temporary benefits after she left work on 1/5/03, and had failed to provide adequate detail concerning the decision that there was no permanent disabil

The decision in Second Injury Fund of Iowa v. Kratzer , 778 N.W.2d 42 (Iowa 2010) followed close on the heals of the decision in Gregory v. Fund , which addressed similar issues. In Kratzer , claimant suffered an injury to both legs and lower back in 1994, which ultimately resulted in a decision by the commissioner, affirmed on appeal, of a 20% industrial disability. In 2002, claimant had another injury to her left leg, which was settled with the employer just before hearing. The arbitration decision found a first and second injury, and awarded 40% industrial disability. On appeal before the commissioner, the finding of first and second injuries was maintained, but the award was increased to permanent total disability under the odd-lot doctrine. On judicial review, the district court concluded that although claimant's first injury to the right leg was a qualifying injury, the injury to the left leg in 2002 was not because the same member was injured in the 1994 accident (a bi

In Gregory v. Second Injury Fund , 775 N.W.2d 395 (Iowa 2010), the court addressed a number of issues that arise repeatedly in Fund cases which had not been addressed previously by the appellate courts. In Gregory , claimant suffered a first injury to both arms (bilateral carpal tunnel). At the same time she had bilateral injuries to her shoulders resulting in subacromial decompressions and distal clavicle excisions in both shoulders. She later fractured her right foot, and filed an action against the Fund. The workers' compensation commissioner concluded that an action against the Fund was not appropriate because Ms. Gregory's injuries extended beyond her extremities and into the body. The commissioner found that since this was a body as a whole injury, Fund benefits were not appropriate. The court noted that the Fund was conceived to encourage the employment of disabled persons by making the current employer responsible only for the disability the current employer c

The Burress case involved a claimant with brucellosis, which was contracted by exposure to hog blood. The Supreme Court concluded that brucellosis, despite being specifically mentioned in Chapter 85A, was an injury under Chapter 85 in Mr. Burress' case. IBP, Inc. v. Burress , 779 NW2d 210 (Iowa 2010). According to the court, an injury has its origin in a specific identifiable trauma or series of such occurrences. A disease, which is compensable under Chapter 85A, originates from a source that is neither traumatic nor physical. The court engaged in an extensive discussion of the types of diseases that are occupational diseases and not injuries. They noted that in other states, the contraction of brucellosis had been found to be "an accidental injury rather than an occupational disease. The court relied on the findings of the hearing deputy that Mr. Burress' exposures were most likely due to a cut on his hands and exposure to blood that was "sudden, traumatic

On March 5, 2010, the Supreme Court issued a decision in Bell Brothers Heating and Air Conditioning v. Gwinn , 779 NW2d 193 (Iowa 2010). The case involved the proof required by the employee to establish a claim for benefits and expenses on account of medical care obtained by the employee, but not authorized by the employer or the commissioner. Mr. Gwinn had obtained non-authorized care (surgery) a week before the arbitration hearing. The court noted that the employer generally had the right to control care (the so-called authorization defense), but that the statute allowed the employee to choose care in certain emergency situations, when the employer and employee agreed to alternate medical care, and when the commissioner approved alternate medical care. The court concluded, however, that the employer's right to select the medical care did not prevent the employee from choosing medical care at his or her own expense under two circumstances. The first circumstance is when the