Court of Appeals Affirms 25% Industrial Award in Traumatic/Cumulative Injury Case
In West Des Moines Community School District v. Fry, No. 13-1391 (Oct. 19, 2014), the court of appeals affirmed the commissioner's order finding that claimant had suffered an injury that had both traumatic and cumulative aspects. Claimant had suffered two traumatic injuries at work, one in 2007 causing injury to his left hip, collarbone and left shoulder and the second incident in 2008 causing injury to the left hip and SI joint. Claimant initially filed claims relating to both injuries, but subsequently dismissed the 2007 claim. With respect to the 2008 claim, claimant alleged that the injury was both acute and cumulative.
The arbitration decision rejected the findings of Dr. Stoken because she had lumped together the two injuries from 2007 and 2008. On appeal, the commissioner reversed, relying on the opinions of claimant's family physician, Dr. Honsey, as well as Dr. Stoken's IME. The commissioner noted that Dr. Honsey had concluded that claimant's pain in her SI joint had worsened following the October 2008 injury. The commissioner also found that this injury was the cause of permanent impairment and activity restrictions by Dr. Stoken.
The court first addressed a question of error preservation. The employer had alleged only a substantial evidence question on judicial review, but on appeal also alleged abuse of discretion. The employer argued that although the argument was phrased differently at the appellate level, the argument was essentially the same. The court concluded the the employer's objection of the "combining" of Dr. Honsey's opinion with that of Dr. Stoken was not properly before the court, but recognized that the "distortion" of the expert opinions underlies the employer's substantial evidence argument.
The employer argued that there was no evidence that claimant had suffered a cumulative injury to the SI joint and that the only injury to that joint was attributable to the 2007 traumatic injury. Claimant responded that there was a traumatic aspect to the SI injury from the 2008 events and that the case law allowed the traumatic injury to "represent the manifestation of a cumulative injury." The court found this argument persuasive. The court noted that the acceptance of a gradual injury as the mechanism of harm "did not exclude the idea that acute injuries can contribute to the employee's compensable disability under the cumulative injury doctrine." The court noted that in between the 2007 and 2008 acute events, claimant had performed rigorous and repetitive work for the school district. Citing Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), the court concluded that claimant could recover by way of a cumulative injury claim for any functional disability resulting from his day to day activities at the school, subsequent to his fall in January 2007. The court rejected the employer's argument that the commissioner's action was irrational, illogical or wholly unjustifiable.
The court went on to note that substantial evidence supported the commissioner's action in crediting the reports of Dr. Stoken and Dr. Honsey. The court citing the Gits v. Frank case issued in October of 2014 by the Supreme Court, noted that "the commissioner does have authority to pick and choose which aspects of an expert opinion deserve weight."
The court also affirmed the award of healing period benefits, medical expenses and alternate medical care, without substantial discussion. An application for further review was filed and denied by the Supreme Court on January 21, 2015.
The arbitration decision rejected the findings of Dr. Stoken because she had lumped together the two injuries from 2007 and 2008. On appeal, the commissioner reversed, relying on the opinions of claimant's family physician, Dr. Honsey, as well as Dr. Stoken's IME. The commissioner noted that Dr. Honsey had concluded that claimant's pain in her SI joint had worsened following the October 2008 injury. The commissioner also found that this injury was the cause of permanent impairment and activity restrictions by Dr. Stoken.
The court first addressed a question of error preservation. The employer had alleged only a substantial evidence question on judicial review, but on appeal also alleged abuse of discretion. The employer argued that although the argument was phrased differently at the appellate level, the argument was essentially the same. The court concluded the the employer's objection of the "combining" of Dr. Honsey's opinion with that of Dr. Stoken was not properly before the court, but recognized that the "distortion" of the expert opinions underlies the employer's substantial evidence argument.
The employer argued that there was no evidence that claimant had suffered a cumulative injury to the SI joint and that the only injury to that joint was attributable to the 2007 traumatic injury. Claimant responded that there was a traumatic aspect to the SI injury from the 2008 events and that the case law allowed the traumatic injury to "represent the manifestation of a cumulative injury." The court found this argument persuasive. The court noted that the acceptance of a gradual injury as the mechanism of harm "did not exclude the idea that acute injuries can contribute to the employee's compensable disability under the cumulative injury doctrine." The court noted that in between the 2007 and 2008 acute events, claimant had performed rigorous and repetitive work for the school district. Citing Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), the court concluded that claimant could recover by way of a cumulative injury claim for any functional disability resulting from his day to day activities at the school, subsequent to his fall in January 2007. The court rejected the employer's argument that the commissioner's action was irrational, illogical or wholly unjustifiable.
The court went on to note that substantial evidence supported the commissioner's action in crediting the reports of Dr. Stoken and Dr. Honsey. The court citing the Gits v. Frank case issued in October of 2014 by the Supreme Court, noted that "the commissioner does have authority to pick and choose which aspects of an expert opinion deserve weight."
The court also affirmed the award of healing period benefits, medical expenses and alternate medical care, without substantial discussion. An application for further review was filed and denied by the Supreme Court on January 21, 2015.
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