Iowa Workers' Compensation

In Estness v. Prairie Meadows Racetrack & Casino, No. 1-832 (Iowa App. Dec. 7, 2011), the court agreed with the assessment of the commissioner (per Deputy Walleser) that claimant's shoulder injury was not related.  The deputy (Heitland) had initially concluded that the injury was related to repetitious work pushing chairs at Prairie Meadows, and provided a 10% industrial disability finding,  but this conclusion was reversed by the commissioner, who found that claimant did not perform any repetitive work for the employer.  On review, the commissioner's decision was affirmed by the court of appeals. The district court affirmed, and addressed a question raised by the employer of whether the deputy's questioning of the claimant and an employer representative violated due process because the deputy allegedly acted as an advocate for the claimant.  The court found that the employer's due process rights had not been violated.  The Court of Appeals affirmed the decision o

In Leliefeld v. Liberty Mutual Ins. , No. 1-636 (Iowa App. Nov. 9, 2011), the Court of Appeals affirmed the district court ruling which had declined to stay a bad faith action pending resolution of the underlying workers' compensation case.  The district court had held that although it was reasonable to delay a trial in the bad faith claim until the workers' compensation claim had been resolved, there was no reason to stay discovery in the bad faith action.  The court noted that Reedy v. White Consolidated Industries , 503 N.W.2d 601 (Iowa 1993) had addressed a similar question, and had concluded that a stay was not always necessary and that the court should follow a discretionary abstention policy that would delay the consideration of the issues by the court.  This did not mean, however, that actions that were preliminary to a determination by the court should necessarily be stayed, and the Court of Appeals noted that Reedy had not mandated that a stay be granted or that all

In another example of how difficult it is to successfully pursue a gross negligence claim, the Court of Appeals affirmed the dismissal of such a claim in Whitacre v. Brown , No. 1-509 (Iowa App. Oct. 19, 2011).  Plaintiff had been taught to clean the rollers on a machine in a certain manner, and this same technique for cleaning the machine had been used in the past without incident.  A Manual that was in proximity to the machine advised workers not to put their hands by the revolving rolls and not to wipe the rollers while they were turning.  The Manual's instructions were contrary to the method in which plaintiff was instructed, in which the rollers were cleaned while they were turning.  Mr. Whitacre was injured using the cleaning procedures he had been taught. Whitacre filed against defendants based on gross negligence, and his claim was dismissed on summary judgment by the district court because he had not demonstrated any of the elements of gross negligence.  On appeal, the c

In Buttrey v. Second Injury Fund of Iowa , No. 1-678 (Iowa App. Oct. 5, 2011), the court of appeals affirmed the action of the district court, which had reversed the decision of the commissioner and found that claimant had established a second qualifying injury for second injury fund purposes.  The district court had concluded that the commissioner's election to give more weight to one of two competing expert opinions was based on facts that were incorrect and not supported by the record.  The district court had specifically found that additional reasons would need to be given for choosing Dr. Reagen's opinion over that of Dr. Koenig.  The court of appeals discusses the facts in the case in some detail, and recites the district court's decision finding that Dr. Koenig had clearly indicated that the second injury was work related, while Dr. Reagen had only found that there was no causation based on a description of claimant's symptoms from defendants' attorney.  Th

In Western Provisions v. Betz , No. 1-533 (Iowa App. Sept. 21, 2011), the court of appeals affirmed the decision of the agency that claimant was permanently totally disabled, and that permanent total disability benefits were appropriate under the odd lot doctrine.  Claimant was a truck driver who was injured when another vehicle crashed into him. Claimant had neck and back surgery as a result of the work injury.  Following these surgeries, an FCE placed him in the "modified medium" work category.  Claimant was provided with a 25% impairment rating to the neck and a 21% impairment rating to the back.  The restrictions imposed by the treating physician (40 pounds) precluded claimant from performing his former job. Vocational specialists were hired by both parties.  Defendants' expert (Michelle Holtz) did not meet with claimant, and found that he retained the skills and capabilities for jobs paying from $8.00 to $14.50.  Claimant's expert (Rick Ostrander) found that cl

The Iowa Supreme Court declined to create a public policy exception to the general rule of at will employment in Berry v. Liberty Holdings , No. 10-0094 (Iowa Sept. 9, 2011).  Berry involved an employee who was injured when a concrete pumper truck struck and injured him while he was on his way home from work.  Plaintiff worked for Liberty Holdings and the truck which struck him was owned by Premier.  Berry filed suit against Premier and settled the case within the policy limits.  Nine months after the settlement, he was fired by Liberty. Plaintiff alleged that in filing his claim against Premier, he was engaged in a protected activity, and he brought a wrongful termination suit against Liberty.  Liberty filed a motion to dismiss, indicating there was no clearly defined public policy right that was violated by the termination.  The district court granted the motion to dismiss, but this action was reversed by the court of appeals, and the claim was remanded to the district court. The

Bensley v. Dee Zee , No. 1-638 (Iowa App. Sept. 8, 2011) is a case in which benefits were initially denied to claimant's at the arbitration level, a conclusion that was affirmed on appeal.   Claimant alleged elbow and shoulder problems, and in the arbitration decision, the finding was made that claimant had not established how her shoulder injury had occurred, and dismissed that claim.  The district court (Judge Rosenberg) reversed, finding that the evidence was "overwhelmingly" in favor of causation. On appeal to the court of appeals, the decision of the agency is reversed, and the decision of the district court adopted.  The employer argued that claimant's injury was preexisting and not caused by claimant's work activities.  The court concludes that the issue of causation is largely a determination based on the medical evidence.  The court finds it "clear" that the evidence did not support the conclusions made by the commissioner.  The court notes th

In Quaker Oats v. Dobbe , No. 1-536 (Iowa App. Sept. 8, 2011), the court affirms a permanent total disability award.  Defendants made three arguments in the case: 1) whether the commissioner applied an erroneous causation standard to the facts; 2) whether the causation findings are supported by substantial evidence; and 3) whether the commissioner's permanent total disability award was supported by substantial evidence.  The court finds in favor of the claimant on all of these points.  The court specifically finds that the commissioner set forth the correct causation standards and applied those standards appropriately. Permanent total disability benefits were affirmed.

In Hutton & Co. v. White , No. 1-538 (Iowa App. Aug. 10, 2011), the court, in a one paragraph decision, affirms the award of permanent total disability to claimant.

The court in Wal-Mart v. Henle , No. 1-554 (Iowa App. Aug. 10, 2011) addressed a situation which occurs with some frequency in workers' compensation claims.  In Henle , claimant had voluntarily dismissed and then refiled her claim.  The case was set for hearing, but by the time of the date set for hearing, permanency had not been determined and claimant requested a continuance.  Rather than grant a continuance, the agency dismissed the case, specifically indicating that this dismissal was without prejudice.  Defendant argued that under the Iowa Rules of Civil Procedure, the dismissal was with prejudice, and claimant could not refile her claim (which she had done by the time of the decision in the case).  The court found that rules 1.943 and 1.946 were applicable to workers' compensation proceedings, as the parties had not argued otherwise. The court noted that claimant did not file the second motion for dismissal, but that the case had been dismissed by the agency.  Recall th

In Arrowood v. Maytag , No. 1-445 (Iowa App. Aug. 10, 2011), the court affirmed the denial of benefits to claimant in the face of claimant's argument that the agency erred in not considering claimant's testimony.  Claimant argued that his injury was work-related, in the face of records from Dr. Boarini and Dr. Thurston that the claim was not related to Mr. Arrowood's work activities.  The agency accepted the opinions of Dr. Boarini and Dr. Thurston over that of claimant's doctors and his own testimony.  On substantial evidence grounds, the court affirms.

In Beef Products, Inc. v. Rizvic , No. 1-442 (Iowa App. Aug. 24, 2011), the court addressed a situation where the hearing deputy (Seeck) had concluded that claimant had no permanent disability, and the deputy assigned to write the appeal decision (Walshire) had reversed the arbitration decision and provided a 60% industrial award.  Claimant alleged a shoulder injury, and Dr. McMains indicated that there was no causation and no permanency, based in part on the alleged inconsistency of pain drawings completed by claimant at the time of the injury and one year later.  Dr. Manshadi found causation and a 10% rating.  Although this would seem to bring the case before the court on a substantial evidence standard, the district court concluded that the appeal decision should be reversed because it was "irrational, illogical and wholly unjustifiable."  The district court found that the commissioner embellished the significance of a handful of events and ignored relevant evidence in t

In Yanouskiy v. O'Holloran Int'l, Inc. , No. 1-436 (Iowa App. July 13, 2011), the court concluded that the decision of the commissioner ruling that claimant was entitled to no further benefits was supported by substantial evidence.  Claimant alleged arm and back and neck injuries, and was paid temporary and permanent benefits, with the permanency amounting to approximately 15%.  At hearing, the deputy found claimant not credible, and indicated that claimant had distorted his restrictions in talking with the doctors.  The deputy found, and the commissioner upheld, that claimant was not entitled to further benefits, and that his back and neck injuries were not related to his work.  The court of appeals affirmed the decision of the commissioner on substantial evidence grounds.

In Mercy Medical Center v. Healy , No. 1-338 (Iowa App. June 29, 2011), the court decided a rate issue concerning the use of paid sick and vacation time.  Claimant was hired to work 35 hours a week for Mercy Medical Center in Dubuque, but seldom worked this many hours, due to illnesses and vacations.  Under the terms of her employment, she was paid for the vacation and sick time, and the commissioner found that because she was hired to work 35 hours a week, these were her customary hours.  The rate was accordingly based on a 35 hour weeks at claimant's rate of pay. The district court reversed on the rate issue, finding that since claimant never (or seldom) actually worked 35 hours per week, a rate based on these hours of work was not customary.  The district court found that the hours "actually worked" were the touchstone for the rate calculation rather than the wages received by the employee.  The court found that the language of section 85.36 (specifically the langu

In MC&R Pools v. Shea , No. 1-279 (Iowa App. June 15, 2011), the court of appeals affirmed a decision of the commissioner finding that the employer was liable for penalty benefits as well as healing period.  Shea involved a claimant who had preexisting conditions, including a 25 pound lifting limit on his activities.  He slipped on ice while at work, involving a neck injury and eventual cervical fusion.  The treater found that the injury caused an aggravation of Shea's underlying condition, and an medical reviewer concluded that this aggravation was temporary and that Shea had returned to baseline prior to the cervical fusion.  The commissioner awarded 40% industrial disability and imposed a penalty on the employer for failure to pay benefits. On the penalty issue, which involved the failure of the employer to pay any benefits (this issue was based on the penalty law as it existed prior to changes in the law in July of 2009), the court noted that the employer had a continuin

In Bethany Lutheran Home v. Boner , No. 1-217 (Iowa App. June 15, 2011) and Swine Graphics Enterprises v. Peterson , No. 1-223 (Iowa App. June 15, 2011), the court of appeals affirmed two agency decisions finding that claimants were permanently and totally disabled.  As might be expected, the decisions were premised on the fact that the commissioner's decisions were supported by substantial evidence.  Both decisions were summary affirmances, saying little other than that the commissioner's decisions were supported by substantial evidence.

In an action that has been roundly criticized by workers and workers' compensation practitioners, Governor Branstad on July 11 reduced the salary of Chris Godfrey, the workers' compensation commissioner, by over $30,000.  This action followed the governor's request that Commissioner Godfrey resign from his office, a request that the commissioner refused. Unlike department heads  in state government, the workers' compensation commissioner does not serve at the pleasure of the governor.  In fact, the workers' compensation commissioner was specifically protected from partisan pressure by being provided a six year term of office, independent of that of the governor.  The governor's attempt to attempt to force the commissioner to resign by drastically reducing his salary violates both the letter and spirit of the law, and represents a blatant abuse of power. In the wake of the salary reduction, the governor attempted to argue that Commissioner Godfrey had perform

In John Deere Dubuque Works v. Caven , No. 1-286 (Iowa App. 2011), the Court of Appeals interpreted the commissioner's rule on costs, 876 IAC 4.33(6), for the first time.  In the underlying decision in Caven , the commissioner concluded that the rule, which allows the hearing deputy, in his or her discretion, to award the "reasonable costs of obtaining no more the two doctors' or practitioners' reports," was not limited to payment of $150.00 for a doctors' or practiioners' report.  Prior to the Caven decision, the commissioner's office had interpreted 4.33(6) as being limited to $150.00, similar to 876 IAC 4.33(5), despite the fact that the language of the rule contained no such limitation. The argument made before the court on appeal was that the commissioner exceeded his authority in allowing payment for the entire cost of obtaining two reports.  The Court of Appeals disagreed, finding that section 86.40 of the Code indicates that all costs before

In The Cincinnati Insurance Companies v. Kirk , No. 0-950 (Iowa App. May 25, 2011), the Court of Appeals concluded that the district court had jurisdiction to hear claims made against the claimant for unjust enrichment and fraud after claimant allegedly fraudulently received medical and indemnity benefits from the workers' compensation carrier.  The facts of the case are unusual, and the decision of the Court of Appeals should be seen in that light. Claimant suffered an injury to his left arm, and was provided with medical treatment and indemnity benefits.  The insurance carrier decided to conduct surveillance when the healing process did not go as smoothly as expected.  That surveillance allegedly revealed that claimant, prior to an appointment with his workers' compensation physician, was seen striking his injured left arm repeatedly while sitting in his car.  Following this surveillance, the carrier filed claims for fraudulent representation, unjust enrichment, money had a

The case of Second Injury Fund of Iowa v. Armstrong , No. 1-280 (Iowa App. May 25, 2011), although discussing primarily the question of whether claimant's injury extended into the body as a whole, potentially broadens the scope of Fund claims to include claims involving the same extremity, such as a right hand and right arm or left foot and left leg.  These types of injuries, under Anderson v. Second Injury Fund of Iowa, 262 N.W.2d 789 (Iowa 1978), had previously been found not compensable by the Supreme Court. In Armstrong, claimant's first injury was to the left foot.  In 2005, his left leg was crushed, resulting in further injury.  The treating doctor also found that there was a skin injury, but this doctor later opined that this injury was confined to the lower extremity.  There had also been a finding that claimant had a neuropathy, but again the treating doctor and IME doctor found that this did not extend into the body as a whole. The Fund argued that claimant's

The case of Bluff Harbor Marina v. Wunnenberg , No. 1-095 (Iowa App. May 25, 2011), presented an issue that is not common, but can have major consequences for claimants.  This involved the competing jurisdiction for a work injury under the Longshore and Harbor Workers' Compensation Act (LHWCA) and Iowa's Workers' Compensation statute. Claimant suffered a tragic accident that led to his death.  He was the manager of a marina along the Mississippi, and decided to remove a torn canopy using the bucket and boom of a mini-excavator.  He positioned the excavator by driving it along ramps, which slipped, spilled the excavator into the water, and killed the claimant.  Claimant filed an action under Iowa's workers' compensation laws. Defendants argued that jurisdiction was appropriate under the LHWCA, and urged that the claim be dismissed.  The commissioner rejected this argument and found in favor of the claimant on the death claim.  In addressing this issue, the court

In ABCM Corp. v. Manning , No. 1-225 (Iowa App.  May 25, 2011), the court addressed the issue of cumulative injuries, and the further question of when those injuries became manifest.  Claimant suffered injuries to her knees and low back, which ultimately led to knee replacement surgery.  The commissioner found that claimant was not aware of the compensable nature of her injuries until after she had left employment, and rejected defendants' arguments that they had improper notice and that the statute of limitations had run. The court noted that the questions of the nature, seriousness and possible compensable character of the injury under Herrera  was a question of fact under Midwest Ambulance v. Ruud .  Here, the commissioner had a substantial degree of latitude in determining when the claimant should have known, as a reasonable person, when her injuries were compensable.  There was no error of law in finding that claimant did not know about compensability earlier, as claimant ha

In Love's Enterprises, Inc. v. Love and Second Injury Fund of Iowa , No. 10-1131 (Iowa App. April 27, 2011), the court affirmed a finding of permanent total disability, declining the employer's request to the court to reweigh the evidence and reverse the finding of permanent total disability. Claimant was the owner and operator of Love's Enterprises.  Claimant had a traumatic injury to his ankle, and cumulative injuries to his back, neck, knee and  bilateral wrists.  Claimant's treater, Dr. Delbridge, found that the ankle, knee, neck and wrist injuries were related to claimant's work.  He opined that there was a 20% body as a whole injury.  A vocational expert (Roger Marquardt) stated that because claimant lacked the capability of performing even sedentary work, he was eliminated from consistently working and earning money in the competitive labor market.  Following his injuries, claimant performed no more construction work, and eventually turned over the business t

In Swift Pork Co. v. Garcia-Diaz, No. 10-1805 (Iowa App. April 27, 2011), the court of appeals, in a single paragraph, affirmed the decision of the agency that claimant had demonstrated that claimant's injury was to the body as a whole.  In the underlying decision before the agency, Dr. Stoken had indicated that claimant had Complex Regional Pain Syndrome (CRPS) despite meeting only five of the eight criteria in the AMA Guides.  Dr. Pollack had found that there was no CRPS. The court of appeals, based on this factual dispute, and the credibility finding by the agency, affirms the agency's permanent total disability finding.

In Kone, Inc. v. Harrison , No. 08-891 (Iowa App. Feb. 23, 2011), the Iowa Court of Appeals addressed a situation where the deputy found the claimant not to be credible, and concluded that claimant had failed to establish a permanent impairment.  The commissioner reversed the decision on compensability, finding that the medical evidence supported the contention that there was a permanent impairment.  Also presented were issued of whether claimant retired because of his injuries or because of a planned retirement, and whether penalty was appropriate.  The commissioner concluded, contrary to the hearing deputy, that claimant was entitled to both healing period and penalty benefits.  The district court reversed the agency's decision on all three issues. The court noted the in determining whether substantial evidence supported the agency's decision, it was the agency's decision that was being reviewed, not the decision of the hearing deputy.  Although the district court was r

The Westling  case, decided on February 9, 2009, addressed the issue of whether claimant's work injury resulted in a permanent partial disability.  Claimant suffered an injury to his right shoulder while working for the employer, and had a debridement and acromionectomy.  He was returned to work without restrictions, worked for a few months, and retired from Hormel, where he had worked for thirty years. The deputy found that claimant had failed to establish a causal connection between his shoulder injury and permanent disability.  This decision was upheld by the commissioner, and Westling filed a rehearing request, asking the commissioner to decide whether the definition of permanent impairment in the AMA Guides  was synonymous with the judicial definition of functional disability.  The commissioner denied the request for rehearing, finding that the agency had relied on undisputed medical evidence that the claimant's work was not a cause of a permanent shoulder condition.  Th

This Court of Appeals case, decided on February 9, 2011, addresses an issue of permanent total disability.  Although the commissioner found that claimant had sustained permanent total disability based on an odd lot theory, the district court reversed, finding that the claimant had failed to demonstrate that his injury was work related and also failed to prove he was an odd lot employee.  The Court of Appeals reverses, concluding that the district court improperly weighed the evidence in overruling the finding that claimant had not established a work related injury.  The court also affirmed the odd lot finding of the commissioner. The evidence demonstrated that claimant reached for pieces of a door while at work, and caught his right leg on a torn fatigue mat, feeling a stinging sensation in his hip. Claimant did not immediately report the incident, and worked the next day.  On the second day after his accident, he saw a PA, but the records do not note a work accident.  By three days

In Wal-Mart Stores v. Johnson , No. 10-0358 (Iowa App. Jan. 20, 2011), the Court of Appeals affirmed the award of permanency benefits awarded by the commissioner.  Claimant's treating physician, Dr. Hlavin, had concluded that claimant's neck, shoulder and arm problems were due to her work activities.  The employer denied benefits, and sought to have claimant attend a defense medical examination with Dr. Boulden.  Claimant refused to attend, arguing that there was no right to an 85.39 examination in a denied claim.  The employer filed a motion to compel  attendance, and in the meantime, Dr. Boulden denied causation in a records review evaluation. The deputy denied defendants' request for an 85.39 exam, and a motion to reconsider on the same subject was denied.  At hearing, the deputy made an oral ruling that the employer was not entitled to the 85.39 exam.  The deputy found a 40% industrial loss.  In the written decision, the 85.39 issue was not addressed.  The employer ap

In Hennigar v. Second Injury Fund , No 09-0343 (Iowa App. Jan. 20, 2011), the court concluded that claimant had failed to establish a first injury, and had also failed to demonstrate a second injury, leading to a denial of Second Injury Fund benefits.  The commissioner had earlier denied Fund benefits. Claimant had an eye condition which she alleged as a first injury.  Three doctors had concluded that there was no permanent impairment as a result of the eye injury, and a fourth doctor, who had originally concluded that there was a 1% impairment, recanted this opinion when deposed.  Claimant presented the testimony of herself and her daughter, both of whom testified that claimant had watering in her eye, and her vision had deteriorated.  Testimony was also presented that claimant had difficulty driving. The commissioner concluded that claimant's eye condition did not result in a permanent disability and loss of use to either eye.  Because there was no loss of use, there was no q

In Broadlawns Medical Center v. Sanders , 792 NW2d 302 (Iowa 2010), Justice Marsha Ternus entered her last workers' compensation decision, reversing the Court of Appeals and concluding that the decision of the commissioner awarding permanent partial disability benefits was supported by substantial evidence.  Claimant worked at a group home for the mentally ill, where she was required to clean a room in which a client had committed suicide.  As a result of this experience, she began having nightmares, flashbacks and hallucinations, resulting in a diagnosis of PTSD. One of the physicians permanently restricted claimant from working at the group home where she had formerly worked.  She was assigned to work at a different group home, which she was able to do.  She earned less in terms of overtime after the reassignment.  Because of the work restrictions, the employer indicated it intended to terminate the employment of the claimant.  The doctor who had provided the restrictions reluc

In Waldinger Corporation v. Mettler , No. 0-647 (Iowa App. Nov. 24, 2010), the court addressed issues of apportionment in scheduled member cases, healing period issues, and issues involving the Second Injury Fund.  Of particular interest is the court's approach to healing period, which appears to deny the possibility of intermittent healing periods. Claimant was in the military and suffered a number of injuries prior to returning to his work as a plumber at Waldinger.  Before starting that employment, claimant was provided a 20% impairment rating from VA for leg injuries, and 10% for right knee injuries.  Considering impairments to his spine, as well as tinnitus, claimant was found to have a 70% total impairment, which entitled him to $1100 per month from the VA. Claimant was able to perform his work with Waldinger when he began working.  Over time, he developed more problems with his right ankle, for which he had four surgeries.  This injury forced him out of a job as a plumbe

In Verizon Business Network Services, Inc. v. McKenzie , No. 0-685 (Iowa App. Nov. 24, 2010), the Iowa Court of Appeals wrestled with issues involving review-reopening proceedings that had been addressed in Kohlhaas v. Hog Slat , 777 N.W.2d 387 (Iowa 2009).  The question raised in the case was whether the commissioner had used the correct standard in determining whether the claimant was entitled to an increase in benefits. Claimant suffered a back injury, and was awarded 25% industrial disability benefits at the initial arbitration hearing.  Following the hearing, claimant continued to have difficulties with her back, although she had gastric bypass surgery to reduce her weight in the interim.  She filed a review-reopening petition, and at the arbitration and appeal levels was found to be permanently and totally disabled.  There was a great deal of emphasis in these decisions on whether claimant's continuing problems had been anticipated at the time of the original decision.  The