Court of Appeals Decides Review-Reopening Claim Involving Weight Loss Surgery and Commencement Date for Benefits
In Verizon Business Network Serv., Inc. v. McKenzie, No. 11-1845 (Iowa App. Oct. 17, 2012), the court grappled with issues involving review reopening and the commencement date of such benefits, and also concluded that weight loss surgery was not related to the work injury.
The case had previously been remanded by the court in November of 2010, to be reconsidered under the review-reopening standard set forth in Kohlhaas. Claimant had initially been found to have a 25% industrial loss as a result of her back injury, and the commissioner had concluded on the initial review reopening that she was permanently and totally disabled. The court also indicated that the commissioner should reconsider payment for the bypass surgery under Bell Bros. v. Gwinn. Finally, the agency was to redetermine the correct date for commencement of benefits.
On remand, the commissioner found that claimant was unable to work due to her spine injury. The commencement date for benefits was said to be the date of the original injury, with the employer due a credit for weekly compensation that had been paid. Finally, the commissioner found that the gastric bypass surgery was the responsibility of the employer in that the care provided a much more favorable outcome than the lack of care provided by the employer.
At the district court, the commissioner's decision was reversed to the extent that the commissioner was found not to have properly applied Kohlhaas. The court found that there was no evidence of a change in the work injury or earning capacity of the claimant. The court concluded that it defied logic to take the commencement date back to the date of the original injury, when the initial arbitration decision only awarded a 25% industrial benefit. The court found that the date the petition was filed was the appropriate date. The court found that Bell Bros. was properly applied to award payment for the gastric bypass surgery.
The court interpreted Kohlhaas as setting forth five ways in which a review-reopening claim could be satisfied: 1) worsening of physical condition; 2) reduction of earning capacity; 3) temporary disability developing into a permanent disability; 4) a critical fact existed but was unknown or could not have been discovered; and 5) a scheduled member claim later causes an industrial disability. The claimant argued that the fourth way of proving entitlement was appropriate. She asserted that the fact that the weight loss surgery and years of treatment did not improve her condition with respect to her back was the change in condition necessary to trigger review-reopening. The court rejected this argument, finding that, unlike Gosek, in which the review reopening argument was based on a new fact not previously recognized, in this case, claimant knew all along that she was morbidly obese (of course, she did not know that treatment for the obesity would not change the condition of her back, as her doctors had told her that it would). The court indicates that claimant was simply asserting that the commissioner erred in originally finding that her industrial disability was 25%.
The court also rejected a claim under Meyers v. Holiday Inn, 272 N.W.2d 24, 26 (Iowa App. 1978), in which the court had granted review reopening upon a doctor's opinion that he had erred in his original assessment of disability. The court found that Kohlhaas prevented such a result, because under that case, the commissioner should not be evaluating whether the initial decision anticipated that the claimant's condition would improve or deteriorate. Kohlhaas, according to the court, "specifically rejected a review-reopening proceeding based solely on a 'difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury.'" The court found that the commissioner's conclusion that absent the consideration of claimant's weight, it could clearly determine the impact of the back injury was "precisely what Kohlhaas warned against." The court remanded to the agency simply to determine whether there is a change in claimant's work related condition or earning capacity. Based on this result, it would not be surprising if further review was requested of the Supreme Court.
On the commencement date issue, the commissioner found that the date of the original injury was the correct commencement date. The district court concluded, based on Dickenson v. John Deere Products Engineering, 395 N.W.2d 644, 649 (Iowa App. 1986), that the appropriate date was the date the review reopening petition was filed. The court in Dickenson had indicated that interest payments should not begin until the review reopening was filed. The court found it implicit in Dickenson that weekly benefits for review reopening are not due until the review reopening is filed (this appears to ignore the holdings in cases such as Robbenolt v. Snap-On Tools, 555 N.W.2d 229, 235 (Iowa 1996) which indicates that the commencement of benefits occurs at the end of the healing period).
Finally, on the issue of beneficial care, the court addressed the question of whether the gastric by pass surgery provided a more favorable outcome than would have been achieved by the care authorized by the employer. The court concluded that despite claimant's testimony that her pain was less following the bypass surgery, there was evidence that she was taking more narcotic pain medication, and concern among the doctors that the surgery had not helped as anticipated. The court finds that because there was not a more favorable outcome for the work injury, "we disagree with the district court and the commissioner that the gastric bypass surgery was beneficial to McKenzie." There is no real discussion of substantial evidence in this aspect of the case, and the court appears to simply weigh the evidence.
Judge Danilson dissents in part, finding that claimant had met her burden to reopen her claim. He concluded that "clearly the commissioner concluded that McKenzie had a diminution of earning capacity from 25% to 100% and that the loss in earning capacity was proximately caused by the injury." The judge found that it was well settled in other jurisdictions and in Kohlhaas that increased incapacity of the employee, due to the original injury subsequent to the initial award entitled the employee to additional compensation. Judge Danilson would have affirmed the commissioner's permanent total disability award.
McKenzie may represent the next case in which the Supreme Court considers review reopening and beneficial care issues. As of October 30, no request for further review had been filed in the case, so it is unknown whether further review will be sought.
The case had previously been remanded by the court in November of 2010, to be reconsidered under the review-reopening standard set forth in Kohlhaas. Claimant had initially been found to have a 25% industrial loss as a result of her back injury, and the commissioner had concluded on the initial review reopening that she was permanently and totally disabled. The court also indicated that the commissioner should reconsider payment for the bypass surgery under Bell Bros. v. Gwinn. Finally, the agency was to redetermine the correct date for commencement of benefits.
On remand, the commissioner found that claimant was unable to work due to her spine injury. The commencement date for benefits was said to be the date of the original injury, with the employer due a credit for weekly compensation that had been paid. Finally, the commissioner found that the gastric bypass surgery was the responsibility of the employer in that the care provided a much more favorable outcome than the lack of care provided by the employer.
At the district court, the commissioner's decision was reversed to the extent that the commissioner was found not to have properly applied Kohlhaas. The court found that there was no evidence of a change in the work injury or earning capacity of the claimant. The court concluded that it defied logic to take the commencement date back to the date of the original injury, when the initial arbitration decision only awarded a 25% industrial benefit. The court found that the date the petition was filed was the appropriate date. The court found that Bell Bros. was properly applied to award payment for the gastric bypass surgery.
The court interpreted Kohlhaas as setting forth five ways in which a review-reopening claim could be satisfied: 1) worsening of physical condition; 2) reduction of earning capacity; 3) temporary disability developing into a permanent disability; 4) a critical fact existed but was unknown or could not have been discovered; and 5) a scheduled member claim later causes an industrial disability. The claimant argued that the fourth way of proving entitlement was appropriate. She asserted that the fact that the weight loss surgery and years of treatment did not improve her condition with respect to her back was the change in condition necessary to trigger review-reopening. The court rejected this argument, finding that, unlike Gosek, in which the review reopening argument was based on a new fact not previously recognized, in this case, claimant knew all along that she was morbidly obese (of course, she did not know that treatment for the obesity would not change the condition of her back, as her doctors had told her that it would). The court indicates that claimant was simply asserting that the commissioner erred in originally finding that her industrial disability was 25%.
The court also rejected a claim under Meyers v. Holiday Inn, 272 N.W.2d 24, 26 (Iowa App. 1978), in which the court had granted review reopening upon a doctor's opinion that he had erred in his original assessment of disability. The court found that Kohlhaas prevented such a result, because under that case, the commissioner should not be evaluating whether the initial decision anticipated that the claimant's condition would improve or deteriorate. Kohlhaas, according to the court, "specifically rejected a review-reopening proceeding based solely on a 'difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury.'" The court found that the commissioner's conclusion that absent the consideration of claimant's weight, it could clearly determine the impact of the back injury was "precisely what Kohlhaas warned against." The court remanded to the agency simply to determine whether there is a change in claimant's work related condition or earning capacity. Based on this result, it would not be surprising if further review was requested of the Supreme Court.
On the commencement date issue, the commissioner found that the date of the original injury was the correct commencement date. The district court concluded, based on Dickenson v. John Deere Products Engineering, 395 N.W.2d 644, 649 (Iowa App. 1986), that the appropriate date was the date the review reopening petition was filed. The court in Dickenson had indicated that interest payments should not begin until the review reopening was filed. The court found it implicit in Dickenson that weekly benefits for review reopening are not due until the review reopening is filed (this appears to ignore the holdings in cases such as Robbenolt v. Snap-On Tools, 555 N.W.2d 229, 235 (Iowa 1996) which indicates that the commencement of benefits occurs at the end of the healing period).
Finally, on the issue of beneficial care, the court addressed the question of whether the gastric by pass surgery provided a more favorable outcome than would have been achieved by the care authorized by the employer. The court concluded that despite claimant's testimony that her pain was less following the bypass surgery, there was evidence that she was taking more narcotic pain medication, and concern among the doctors that the surgery had not helped as anticipated. The court finds that because there was not a more favorable outcome for the work injury, "we disagree with the district court and the commissioner that the gastric bypass surgery was beneficial to McKenzie." There is no real discussion of substantial evidence in this aspect of the case, and the court appears to simply weigh the evidence.
Judge Danilson dissents in part, finding that claimant had met her burden to reopen her claim. He concluded that "clearly the commissioner concluded that McKenzie had a diminution of earning capacity from 25% to 100% and that the loss in earning capacity was proximately caused by the injury." The judge found that it was well settled in other jurisdictions and in Kohlhaas that increased incapacity of the employee, due to the original injury subsequent to the initial award entitled the employee to additional compensation. Judge Danilson would have affirmed the commissioner's permanent total disability award.
McKenzie may represent the next case in which the Supreme Court considers review reopening and beneficial care issues. As of October 30, no request for further review had been filed in the case, so it is unknown whether further review will be sought.
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