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Court of Appeals Affirms Denial of Permanent Total Disability, Tinnitus Claim

In McCarthy v. Jeld-Wen, Inc. , No. 13-0636 (Iowa App. Dec. 18, 2013), the Court of Appeals affirmed the commissioner's findings that claimant was not permanently and totally disabled due to a respiratory injury and also affirmed the decision that claimant's tinnitus did not arise out of his employment.  Claimant was awarded an 80% industrial disability by the commissioner and was also awarded healing period benefits. The court affirmed in the face of claimant's appeal and defendants' cross-appeal. Claimant was exposed to isocyanates at work, and although defendants admitted this fact, they claimed he was not entitled to healing period or permanency benefits.  Defendants denied claimant's tinnitus.   On the tinnitus question, the court concludes that substantial evidence supported the commissioner's finding without discussion, citing Rule of Court 21.26(1)(a), (b), (d) and (e). On the question of healing period, defendants question whether claimant was

Court of Appeals Addresses Issues Concerning Commencement of Permanent Total Disability Benefits, Interest

In Searle Petroleum, Inc. v. Mlady , No. 12-2008 (Iowa App. December 5, 2013), the Court of Appeals addressed issues concerning substantial evidence and the appropriate commencement date for permanent total disability benefits and interest in a review-reopening proceeding.  The agency had concluded that claimant had demonstrated that he was entitled to additional benefits on review-reopening, and awarded permanent total disability.  The agency had indicated that benefits commenced on the date of the injury. In the initial decision, the commissioner had concluded that claimant had an industrial disability of 80%.  On review reopening, the agency found that given claimant's physical condition, he had been unable to secure employment and also noted that there had been no improvement in the claimant's employability. The commissioner affirmed, finding that there had been a deterioration of claimant's condition.  The agency found that benefits commenced as of the date of the in

Court of Appeals Affirms 40% Industrial Disability Award

Smithway Motor Xpress v. McDermott , No. 12-2296 (Iowa App. Nov. 20, 2013) is another in a line of cases where the Court of Appeals affirms the decision of the agency on substantial evidence grounds.  Claimant suffered a back injury while working for the employer.  He wished to leave his employment as a truck driver and was required to obtain a DOT physical.  He did not mention his back problems to the physician at the DOT physical.  He continued to have back problems and had continued treatment for those problems.  Dr. Neiman provided causal connection for the injury, but the hearing deputy found that a causal connection had not been established.  The commissioner reversed on appeal and provided a 40% industrial disability award. The court finds that the question of causation presents a mixed question of law an fact, adjudicated by the abuse of discretion standard.  The court must consider whether the law was applied in an unjustifiable, irrational or illogical manner.  The court no

Supreme Court Concludes That Undocumented Workers Are Entitled to Workers' Compensation Benefits

In Staff Management v. Jiminez , 839 NW2d 640 (Iowa 2013), the Iowa Supreme Court addressed an issue that they had elliptically addressed in the past - the right of undocumented workers to receive workers' compensation benefits.  The court concluded that Iowa's statute did not exclude undocumented workers from coverage and also found that the Immigration Reform and Control Act of 1986 (IRCA) did not act to preempt state laws governing workers' compensation.  Three amicus curiae  briefs were filed in Jimenez  by the Workers' Injury Law and Advocacy Group, the Iowa Association of Justice's Workers' Compensation Core Group and the National Employment Law Project.  Jamie Byrne of Neifert, Byrne and Ozga wrote the amicus brief for the Core Group. The factual situation in Jimenez  involved a worker who was documented at the time she began employment, but who became undocumented during the time that she worked for the employer.  She was injured at work, and found to

Court Of Appeal Affirms Award of Impairment Rating in Scheduled Member Case In Face of Argument That Commissioner Did Not Adequately Explain Its Impairment Determination

In Horn v. Cummins Filtration-Lake Mills , No. 1300351 (Iowa App. Nov. 6, 2013), the Court of Appeals affirmed a decision awarding claimant the 6% impairment rating found by Dr. Kuhnlein, for an injury to the arm.  Three impairment ratings were presented at hearing, a 10% rating from Dr. Formanek, a 12% rating from Dr. Adams and a 6% rating from Dr. Kuhnlein.  The deputy awarded the 6% rating.  Claimant filed a rehearing application contesting that the deputy had used the wrong legal standard and noting that numerous aspects of the AMA Guides  were "faulty and unscientific."  The rehearing petition was not answered and was deemed denied.  The ruling was affirmed on appeal. On rehearing at the commissioner level, claimant argued that the determination of functional disability was not merely related to the impairment ratings.  The rehearing application was denied, and indicated that the arguments of counsel had been considered prior to the rendering of the Appeal Decision.  O

Court Affirms Dismissal of Alternate Medical Care Proceeding Without Hearing

Cooksey v. Cargill, Inc., No. 12-1729 (Iowa App. Oct. 2, 2013), is a case in which claimant filed three alternate medical care proceedings against the employer.  In the first two proceedings, the employer agreed to provide the care sought by claimant and that care was provided.  In the first proceeding, a hearing was held, but the parties came to an agreement that claimant could see Dr. Abernathey and claimant would voluntarily dismiss his claim for alternate medical care.  In the second proceeding, claimant voluntarily dismissed before hearing because defendants agreed to provide the care requested.  In the third proceeding, the employer denied liability for the claim, after getting reports from two doctors questioning causation, and the alternate medical care hearing was dismissed under 876 IAC 4/48(7). Claimant, after having the AMC petition dismissed, filed a request for a ruling on the petition, based on due process grounds and judicial estoppel.  The deputy issued the final dec

Court of Appeals Affirms Award Providing 60% Industrial Disability, Finding Claimant Credible and Awarding Costs

In JBS Swift & Co. v. Rodriguez Contreras , No. 13-0172 (Iowa App. Oct. 2, 2013), a case handled by Jamie Byrne of Neifert, Byrne &Ozga, the court of appeals affirms the findings of the commissioner concluding that claimant was credible, increasing the industrial disability award from 20 to 60% and imposing costs against the employer. At the arbitration level, the deputy had indicated that the claimant was mostly credible.  The employer argued that because the deputy had found that claimant was "credible for the most part," the entire appeal decision was subverted.  The court of appeals noted that the finding that claimant was mostly credible was made because the deputy indicated that many of the questions posed were leading questions.  The court found that "read in context, any doubt expressed by the deputy involves the form of questioning rather than the resulting answers provided by Contreras," and concludes that the credibility finding was supported by

Court of Appeals Affirms Denial of PTD Benefits, Award of HP benefits on Substantial Evidence Grounds

Claimant was exposed to chemicals while working with his employer, Jeld-Win, Inc.  He developed a sensitivity to those chemicals, missed work because of this, and ultimately had to leave his employment with the company because of his injury.  The agency concluded that claimant had suffered a 25% industrial loss rather than the permanent total disability urged by claimant.  The agency also concluded that claimant was entitled to healing period benefits.  In Deckert v. Jeld-Wen , No. 13-0288 (Iowa App. Sept. 18, 2013), the court of appeals affirmed the decision of the commissioner. The court found that the agency had provided a detailed explanation for the determination that claimant had suffered only a 25% industrial loss.  The agency had noted that the only restriction on claimant was not being exposed to isocyanate or diisocyanates in the environment.  Claimant had rejected an offer by the company to move to one of their other plants where he would not be exposed.  According to the

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

Zaglauer v. Mercy Medical Center , No. 13-0160 (Iowa App. Sept. 18, 2013), represents another in a long line of cases where the court of appeals affirms the decision of the agency on substantial evidence grounds.  Claimant had tripped at work, causing a torn rotator cuff as well as CRPS, according to some doctors.  At arbitration hearing, claimant was provided with a 15% industrial award for the shoulder injury, but was denied benefits for depression and CRPS, because she had not shown these conditions arose out of her employment.  This finding was affirmed by the commissioner and the district court.  The agency found that claimant was not credible. The court finds that substantial evidence supported the conclusion that claimant's depression and CRPS had not arisen out of her employment.  The court noted that the doctors who opined her depression and CRPS were causally related to her injury admitted to not having her full history.  The court noted that the commissioner was respon

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

In Sharp v. University of Northern Iowa , No. 12-2326 (Iowa App. Sept. 18, 2013), the agency had concluded that claimant had failed to prove medical or legal causation and failed to give notice of her injuries.  The court, without elaboration, affirmed the decision of the agency under Iowa R. App. P. 6.1203.

Court of Appeals Reverses PTD Decision, Finding That Substantial Evidence Did Not Support Decision of Agency

In a case which runs counter to most of the cases that appear in these synopses, the Iowa Court of Appeals in Mike Brooks, Inc.   v. House , No. 13-0303 (Iowa App. Aug. 21, 2013), held that the decision of the agency was not supported by substantial evidence.  This despite the fact that there was no medical evidence supporting the contention of defendants.  Judge Vaitheswaran dissented and would have affirmed the case on substantial evidence grounds. Claimant had suffered an admitted injury in March of 2007.  Claimant returned to work, but testified that he continued to experience significant back problems while working.  In January of 2008, he reported to the company doctor that he had pushed a door at work and had felt increased pain as a result of that incident.  He was seen by a surgeon, Dr. Hatfield, who ultimately performed three surgeries.  Claimant returned to work briefly following the first surgery but was unable to continue working as a truck driver. Dr. Hatfield provide

Court of Appeals Affirms Case on Substantial Evidence Grounds

In Quaker Oats v. Farar , No. 13-0195 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the commissioner's award of healing period, PPD and medical benefits, finding that the decision of the agency was supported by substantial evidence.  Defendants had argued that claimant's knee problems were due to arthritis rather than his work, and that the injury did not arise out of and in the course of employment.  The court noted that although the weight of the medical evidence was to the contrary, the agency held that claimant's injury had arisen out of and in the course of employment, and noted that the opinion of Dr. Manshadi was sufficient to support a finding of causation.  The court also found that substantial evidence supported the fact that claimant's DVT had arisen as a result of the knee injury and knee replacement, although again there was conflicting evidence.  The employer had also asked for the case to be remanded to the agency to make a more complete record

Court of Appeals Affirms Agency Decision on Substantial Evidence Grounds

In Cardinal IG Company v. Crozier , No. 13-0149 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the decision of the district court without opinion pursuant to Iowa R. App. P. 6.1203.  The court found that action of the agency was supported by substantial evidence.

Court of Appeals Affirms Decision Without Comment

In Hy-Vee v. Schmit , No. 12-2294 (Iowa App. Aug. 7, 2013), the court of appeals concluded that the decision of the agency was supported by substantial evidence and affirms the action of the agency and district court without opinion.  Iowa R. App. P. 6.1203(a), (c), (d).

Court of Appeals Affirms Decision of District Court Without Opinion

Wal-Mart Stores, Inc. v. Hancock , No. 13-0197 (July 24, 2013) was a case in which defendants argued that motions to compel and motions in limine should not have been denied and also argued the claimant should not have been awarded temporary or permanency benefits.  The court concluded that the district court's ruling should be affirmed without opinion, based upon the thorough and well-reasoned opinion of the district court.  IRAP 6.1203.

Court of Appeals Affirms Permanent Total Disability Award, But Caps Deposition Fee at $150.00

Whirlpool Corp. v. Davis , No. 12-1962 (Iowa App. July 24, 2013) involved a finding by the commissioner that claimant was permanently and totally disabled.  The court affirmed this aspect of the case on substantial evidence grounds, and also concluded that reimbursement for a deposition was statutorily limited to $150.00. Claimant suffered a back injury, resulting in a 7% impairment rating from defendants' doctor, Dr. Mark Taylor.  An IME from Dr. John Kuhnlein indicated that he could not say, within a reasonable degree of medical certainty, that the current back problems were related to the original work injury, although the back problems were related to one of the incidents that had occurred at Whirlpool.  He provided a 5% impairment rating.  Claimant ultimately left his job and was found eligible for social security disability benefits. The deputy found that claimant was credible, and credited the findings of Dr. Taylor, Dr. Kuhnlein and Dr. Buresh.  He rejected the findings

Court of Appeals Addresses Issues Involving Requests for Admission

In Lynn v. Pella Corp. , No. 12-1506 (Iowa App. July 24, 2013), the court addressed issues involving IRCP 1.510, which governs requests for admissions.   The court concluded that when a party objected to a request for admission, the objecting party was only required to state their objection, and not to admit or deny the request. Claimant filed a workers' compensation claim, and on February 16, 2010, filed a request for admissions.  Hearing had been set for April 7, 2010.  Defendants objected, stating that the admissions requests were untimely under the hearing assignment order.  Hearing was held on April 7, and the decision concluded that the objections were sufficient and were not deemed admitted.  The deputy also concluded that claimant failed to establish an injury arising out of and in the course of employment, which, not coincidentally, was the subject of the request for admissions.  The commissioner affirmed, citing IRAP 1.510, which requires that a party must move to deter

Iowa Court of Appeals Affirms Award of Benefits Where Causation Finding Based on Lay Evidence

Martinez Construction v. Ceballos , No. 12-1514 (Iowa App. June 12, 2013), involved a situation in which the evidence used to support a finding of causation was primarily lay testimony.  The court found that in the circumstances in the case, medical testimony was not required to establish causation. The accident that led to the injury occurred when claimant lost his footing on a roof, attempted to jump into a forklift basket, and hit his face and right shoulder and twisted his left knee.  Claimant was knocked unconscious as a result of the injury.  Hospital records demonstrated that claimant had four broken ribs and a perforated lung.  X-rays showed that there was a dislocation of the shoulder and fluid on the knee. Claimant was deported shortly after this and did not attend a followup appointment. At hearing, claimant appeared by telephone, to which defendants objected.  The deputy allowed claimant to testify by telephone.   Claimant testified he had continuing problems with his s

Denial of Benefits Affirmed Without Opinion

In Fridley v. Blackhawk Automatic Sprinkler Systems, Inc. , No. 12-1954 (Iowa App. May 30, 2013), the court affirmed the denial of benefits without issuing an opinion under Iowa R. App. P. 6.1203(a) (c), (d).

Court of Appeals Addresses Tinnitus and Statute of Limitations Issues

In PMX Industries v. Reich , No. 12-1824 (Iowa App. May 30, 2013), the court addressed issues of tinnitus and hearing loss in a workers' compensation setting, and addressed the issue of when notice had to be provided for a tinnitus claim.  Claimant was a long time worker for PMX, which was an admittedly noisy facility.  Claimant testified that although he wore hearing protection, he would often have to remove the hearing protection in order to hear people talking within the plant. In 2008 he was diagnosed with a hearing loss and resigned from his employment. The doctor who addressed the hearing loss issues for the employer, Dr. Taylor, found that claimant had a 2.2% bilateral hearing loss.  Claimant was referred to Dr. Marlan Hansen at the University of Iowa, who agreed that claimant had noise-induced hearing loss.  Claimant was then referred to Dr. Plakke, who noted hearing loss, but indicated that because of the continued loss of hearing after he left PMX, this was not noise re

Supreme Court Decides Subrogation Case Involving Choice of Law Issues

Moad v. Dakota Truck Underwriters , 831 NW2d 111 (Iowa 2013), involved the question of what law to apply (the law of Iowa or South Dakota) to determine whether a South Dakota WC carrier was entitled to subrogation for payments made to its insured by underinsured and uninsured carriers arising out of a settlement from third-party litigation. Claimant died when the truck he was driving for his employer was struck by another vehicle near Iowa City.   WC benefits were paid under South Dakota law.  Claimant's wife filed a third party action in Iowa District Court.  Claimant's wife and children were South Dakota residents.  The WC carrier notified the parties that it was entitled to subrogation of any proceeds received by plaintiff as a result of the third party action. A settlement agreement was reached with Northland agreeing to pay $300,000, plus $100,000 to cover the workers' compensation carrier's subrogation lien.  Plaintiff agreed to file a motion to strike or exti

Supreme Court Decides Review-Reopening Case Involving Statute of Limitations Issues

In Coffey v. Mid Seven Transportation Co. , No. 11-1106 (Iowa May 10, 2013), claimant filed a review-reopening petition, which was found to be untimely by the commissioner and district court.  The employee also requested reimbursement of certain post-arbitration medical expenses, which were also denied. Claimant originally had an injury to his left leg in 1994, and was unable to return to work following the injury.  After working part time, claimant was ultimately found eligible for social security disability benefits. Prior to filing his workers' compensation claim, the employee had entered into a settlement with a third party for $275,000, of which he received $134,784.95 after payment of attorney's fees and medical costs.  Claimant alleged in his workers' compensation claim that he had injured not only his leg, but his back.  He also claimed that his post polio syndrome was aggravated by his injury.  He was paid workers' compensation payments totaling $70,783.19

Court of Appeals Finds There Was No Substantial Evidence to Support Denial of Benefits

Numerous cases on this blog have discussed situations in which the decision of the agency was affirmed on substantial evidence grounds.  In Estate of Herman v. Overhead Door Co. of Des Moines, No. 12-0892 (Iowa App. May 15, 2013), the court concludes that because there was no substantial evidence to support the agency's decision that claimant's injury did not arise out of and in the course of employment, claimant (or claimant's estate, since claimant died before this decision) was entitled to benefits.  The court concluded that: "because we find the commissioner’s outright rejection of uncontroverted medical opinions is not supported by substantial evidence when the record is viewed as a whole, and we find Herman’s injury arose out of and in the course of his employment as a matter of law, we reverse and remand." Claimant worked in an unheated warehouse, and there was really little dispute that claimant worked in subfreezing temperatures in the winter of 2009,

Court of Appeals Decides "Arising Out Of" Case Favorably to Employee

In AARP v. Whitacre , No. 12-1519 (Iowa App. May 15, 2013), claimant was a 79 year old part time janitor for AARP.  While on a coffee break one day, claimant began to choke, stood up to get a drink of water, stumbled and fell, causing injuries to his head and face.  The deputy and commissioner found that this injury arose out of his employment and awarded benefits.  On judicial review, the district court reversed. In addressing the question, the court noted that the earlier decision in Lakeside Casino v. Blue , 743 N.W.2d 169 (Iowa 2007) had indicated that the arising out of test involved proof that a causal connection existed between the conditions of the employment and the injury. The COA also noted that earlier decisions of the Supreme Court were to the effect that risks that were personal to the employee were not compensable, but further noted that Lakeside Casino  and other cases had indicated that the work risk need be no greater than risks outside the workplace. The parties

Court of Appeals Affirms Review-Reopening Denial on Substantial Evidence Grounds

Hernandez v. Osceola Foods , No. 12-1658 (Iowa App. April 24, 2013) involved a review-reopening claim following an earlier settlement.  At the time of the settlement, claimant had 30 pound restrictions and was working for Osceola Foods.  She remained there for two years after the settlement, but was fired for falsely filling out an employment application for her husband.  She sought other work, and began to work for another company, Farley's and Sanders Candy.  In her application for Farley's, which was through a temporary agency, she did not reveal that she had restrictions, and indicated she was able to perform all duties, which included lifting up to 50 pounds.  A few months later, when the new employer found out about the restrictions, Ms. Hernandez was fired. Claimant sought review-reopening and was denied at the agency level, with the agency finding that claimant's loss of earnings was due to her dishonest conduct rather than to her work injury.  The court of appeal

Court of Appeals Decides Alternate Medical Care Claim

Millenkamp v. Millenkamp , No. 11-2068 (Iowa App. April 10, 2013) is a case that has been bouncing back and forth between the agency and the appellate courts since claimant's initial injury in 2001, when claimant suffered a traumatic brain injury while working in his cattle business.  The current dispute concerns a situation where claimant had been treating with a physician who retired from the practice.  That physician recommended that claimant see another physician, Dr. Neiman, who provided treatment to claimant.  Prior to seeing Dr. Neiman, it does not appear as if the employer knew that the authorized treating physician had retired. According to the court, when the employer learned that the authorized treater had retired, it sought to provide care for claimant, first with Dr. Young, who refused to see claimant, and then with Dr. Cullen, who claimant refused to see because he had been hired by the defendants.  Claimant argued that because his treating physician had recommended

Court Affirms Denial of Review-Reopening Claim

In Kramer v. Terex , No. 12-1370 (Iowa App. March 13, 2013), the court of appeals affirmed a decision of the commissioner denying further benefits on a review-reopening claim.  The original decision had awarded benefits of 40%, and on review-reopening the commissioner concluded that claimant had not met his burden of proof of demonstrating changed economic circumstances.  On appeal, the court cited the district court's "well-reasoned" decision and affirmed without comment.  IRAP 6.1203.  

Court of Appeals Affirms 60% Award on Substantial Evidence Grounds

In Gallo v. Penford Products Co. , No. 12-1472 (Iowa App. March 13, 2013), the court affirmed a 60% industrial disability award, and denied claimant's contention this his mental disorder arose out of and in the course of his work.  Claimant had suffered an accepted back injury while working, and continued to work after surgery.  Claimant was subsequently fired from his employment when it was found out that he had been found to be impersonating a physician for the purpose of obtaining narcotics.  Despite these facts, and the finding by the deputy, affirmed on appeal, that claimant was not a credible witness, claimant argued that he was permanently and totally disabled.  The evidence on this score was conflicting, with vocational experts reaching opposite conclusions about claimant's motivation to work, and ability to work in light of his back injury.  Particularly telling was the fact that claimant continued to work for two years following the injury, before he was fired for imp

Supreme Court Denies Further Review in Case Involving English Language Skills and Motivation

On February 22, 2013, the Supreme Court denied further review in Merivic v. Gutierrez , No. 12-0240, a case that had earlier been heard by the Iowa Court of Appeals.   See Merivic v. Gutierrez , No. 12-0240 (Iowa App. Nov. 15, 2012).  In Merivic , the court of appeals concluded that the decision of the commissioner in Lovic v.   Construction Products, Inc.,  No. 5015390 (App. Dec. 27, 2007), was appropriate.  The  Lovic  decision had concluded that a lack of English language skills was a factor to be determined in considering the extent of industrial disability, and also concluded that the failure of a claimant to learn English was not to be considered in determining the client's motivation to work.  In Merivic , the employer had directly attacked Lovic  as being wrongly decided, and urged the court to find that Lovic  was not controlling.  The decision of the court of appeals found that the employer's position was an impermissible collateral attack on the Lovic  case, and reje

Court of Appeals Decides Successive Disability Case

In Hansen v. Snap-On Tools Manufacturing Company , No. 12-1038 (Iowa App. Feb. 27, 2013), among the issues addressed by the court was the questions of successive disabilities under section 85.34(7)(b) of the Code.  The court seems to conclude that section 85.34(7)(b) does not apply to unscheduled injuries, which would, if affirmed, have a serious impact on the current law concerning that section of the act. Hansen  also addresses issues concerning costs, extent of impairment, healing period and temporary partial benefits. Claimant sustained two injuries at work, a left shoulder injury in 2005 and an injury to her right hand and arm in 2007 which was traumatic.  The shoulder injury was cumulative, although there was medical evidence that there was a later acute injury to the shoulder superimposed on the cumulative process.  The commissioner concluded that claimant was entitled to 15% industrial disability, did not specifically accept or reject claimant's computation of healing pe

Yet Another Substantial Evidence Affirmance by the Court of Appeals

The case of Big Tomato Pizza v Cloud , No. 12-1291 (Iowa App. Feb. 27, 2013), involves substantial evidence, and as is common, an affirmance of the decision of the commissioner.  Mr. Cloud was a pizza delivery driver for Big Tomato, and when he was getting out of his car, a customer who was being chased out of the restaurant struck him, there was a scuffle and claimant suffered injuries, including a collapsed lung. The claim was denied, and claimant had no treatment following the hospitalization.  He began having nightmares about the incident. At hearing, defendants presented testimony that indicated that Mr. Cloud was actively pursuing the customer far from the premises of Big Tomato.  The deputy rejected this testimony, finding that claimant as the victim of an assault.  The commissioner affirmed and found that the injury arose out of an in the course of employment.  The commissioner concluded that section 85.16(1), which denies compensation for an employee's willful intent to

Court of Appeals Affirms Award of Workers' Compensation Benefits and Alternate Medical Care

In yet another decision demonstrating that if the question presented is one of substantial evidence, the party seeking to overturn the agency's decision is not going to prevail at the appellate level, the court in  Talton v. Fleur Delis Motors Inns, Inc. , No. 12-0999 (Iowa App. Feb. 27, 2013) affirmed the decision of the commissioner finding that claimant's injuries did not arise out of and in the course of employment, denying healing period benefits, and denying alternate medical care. Claimant suffered a stipulated work injury when a can of tomatoes fell on her foot.  She developed arthritis, which the treating doctor did not believe was work related, but which Dr. Mandracchia opined was work related.  Dr. Simon indicated that claimant developed an antalgic gait as a result of the foot injury.  The deputy found the injuries had arisen out of claimant's employment, but concluded that claimant had not reached maximum medial improvement and still in an healing period.  Th

Court of Appeals Addresses Review-Reopening Petition and Employer's Subrogation Rights

In Sanchez v. Celadon Trucking Services , No. 12-0895 (Iowa App. Feb. 13, 2013), the Court of Appeals addressed a review-reopening question which was combined with questions concerning the proceeds of a third party action, and the employer's subrogation rights from that proceeding.  Claimant had originally been awarded a 25% industrial disability, and later filed for review reopening, and also sought an adjudication of the extent of the employer's remaining lien from the third-party settlement. The deputy found that claimant was not entitled to additional benefits, finding that claimant lacked credibility. The deputy also found that the employer's calculation of the lien was correct and ordered that the lien be honored by claimant.  The commissioner summarily affirmed the decision on both points.  The district court affirmed the commissioner's decision. The court notes that on the review-reopening questions, its task was limited to determining whether substantial ev

Court of Appeals Concludes That Injury Did Not Arise Out of or In the Scope of Employment

In Cooper v. Kirkwood Community College , No. 11-1755 (Iowa App. Feb. 13, 2013), the court affirmed the decision of the commissioner that claimant's injury did not arise out of or in the course of employment.  The case had been before the Court of Appeals previously, at which time the court concluded that claimant was required to wait until the agency had made a determination on rehearing before filing a petition for judicial review.  When a subsequent petition was filed, the district court concluded that the petition had been timely filed, but found that claimant's conditions did not arise out of her employment. Defendants first argued that because the second petition for judicial review was filed until after the dismissal of the first petition, it had been untimely filed.  The court disagreed, and indicated that because of the earlier interlocutory appeal, the 20 day "deemed denied" period for the rehearing was tolled pending the decision of the district court and

Court Affirms Award of Benefits on Substantial Evidence Grounds

In Pella Corp. v. Winn , No. 12-0592 (Iowa App. February 13, 2013), the Court of Appeals summarily affirmed the decision of the commissioner and district court concluding that claimant had suffered a compensable shoulder injury.  The court finds that although claimant's story of how the injury occurred might have seemed improbable, it was not so outrageous as to be unbelievable.  Since the conclusion was supported by substantial evidence, the award of benefits was affirmed.

Court Affirms 80% Industrial Disability Finding, Denies Permanent Total Disability

Ottumwa Manufacturing, d/b/a Cadbury Schweppes Holding, Inc. v. Boyd , No. 12-0889 (Iowa App.  Jan. 24, 2013) addressed an extent of disability issue for a claimant with a serious right hip injury, which followed a crush injury to his feet.  The evidence was conflicting on the question of whether the hip injury was a sequella to the foot injury, but the agency found, and the court affirmed, that there was ample evidence, in the form of reports by Dr. Pollack (later walked back by the doctor) and Dr. Stoken, to conclude that the hip injury was a sequella. On the issue of the extent of impairment, the court concluded that, although only Dr. Stoken imposed restrictions on claimant, this medical report, combined with an analysis of the other factors of industrial disability, was sufficient substantial to support affirmation of the agency.  The court concluded that the agency's decision denying permanent total status was supported by substantial evidence because claimant's treatin

Court of Appeals Issues Decision on Partial Commutation

In Pilgrim's Pride v. Eakins , No. 12-0901 (Iowa App Jan. 24, 2013), the court of appeals addressed the issue of partial commutation, an issue that does not come before the appellate courts frequently.  Two issues were presented - whether claimant was entitled to the partial commutation (i.e. whether the commutation was in claimant's best interests) and whether the amount of the commutation should be based on the amounts due at the time of filing (including the discount amount) or at some later date. On the issue of commutation, the court concluded that the issue was largely one of substantial interest.  The court noted that the "best interests" test of Dameron v. Newmann Bros. , 339 N.W.2d 160, 164 (Iowa 1983) was the governing standard.  Under this test, the agency is to consider the workers' age, education, mental and physical condition, life expectancy, family circumstances and living arrangements, and the reasonableness of the investment plan in determining

Court of Appeals Rejects Penalty Case Under Amended Statute

The Court of Appeals addressed the issue of penalty under the 2009 revisions to the penalty statute in Podgorniak v. Asplundh Tree Service , No. 12-0644 (Iowa App. Jan. 24, 2013).  Claimant had been awarded a running healing period, and after defendants' physicians opined that claimant had reached maximum medical improvement, healing period benefits were terminated.  The arbitration decision found that penalty benefits were appropriate, and this action was reversed by the commissioner.  The commissioner's decision found that the action of the employer was "fairly debatable."  The district court affirmed the denial of penalty. The court first found that an issue concerning the specific amounts and dates of healing period benefits that were due had not been preserved by claimant and did not address this issue. The court discusses the 2009 amendments to the statute, and first considered an argument that since the words "fairly debatable" were not included i

Court of Appeals Affirms Permanent Total Disability Award, But Denies Bariatric Surgery

In Mercy Hospital Iowa City v. Goodner , No. 12-0186 (Iowa App. Jan. 9, 2013), the Court of Appeals affirmed the finding of the commissioner that claimant was permanently totally disabled.  The court also concluded that defendants were judicially estopped from contesting liability for the claim, and that defendants were responsible for paying for one half of the cost of family therapy sessions for claimant.  The court reversed the finding of the agency that payment for bariatric surgery for claimant should be paid by the defendants. Claimant, a doctor was exposed to mononucleosis as a result of her work.  She later developed depression and chronic fatigue syndrome.  Defendants' doctors indicated that she may not have had mononucleosis, but did have fatigue and memory loss.  Claimant's doctors indicated that she had developed mononucleosis and this was one of a multitude of triggers for chronic fatigue syndrome.  Following these developments, claimant began gaining weight and