Second Injury Fund Case Involving Injuries to Same Extremity Decided Favorably to Claimant

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 injuries extended into the body as a whole and stated that under Collins v. Dept. of Human Services, 529 N.W.2d 627 (Iowa App. 1995), that this was not a scheduled member.  The Court of Appeals found that Collins was factually distinguishable because claimant here did not suffer from any systemic condition extending beyond his left lower leg.  The court found that this finding was supported by substantial evidence and thus there was a claim against the Fund.  A finding of permanent and total disability was also affirmed on substantial evidence grounds.  The court rejected the Fund's argument that because the FCE also discussed other body parts, the Gregory decision precluded an award of permanent total disability.  The court, however, found Gregory distinguishable because in that case compensation for BAW injuries had been made by the employer.  Here, no such payments had been made.

As noted above, Armstrong would seem to be inconsistent with the Anderson decision.  In Anderson, the court stated:  "We do not believe the language of the statute . . . the loss of or loss of use of another such member or organ . . . means separate parts of the same arm or leg."  262 N.W.2d at 792.  Armstrong did not discuss Anderson, which would seem to lead to the conclusion that Anderson was not argued.  Nonetheless, the fact that the Court of Appeals provided Fund benefits in such a situation may broaden the range of cases in which benefits against the Fund are possible.

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