Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at www.nbolawfirm.com or www.iowa-workers-comp.com.

Monday, December 28, 2015

Court of Appeals Affirms Permanent Total Disability Award

Claimant in Sterling Commercial Roofing, Inc. v. Berzle, No. 15-0351 (Iowa App. Dec. 23, 2015), sustained a shoulder injury at work.  On substantial evidence grounds, the Court of Appeals concluded that the commissioner's decision finding a permanent disability that arose out of claimant's work activities was supported by substantial evidence, as the commissioner had considered the competing evidence on this issue.

The employer also argued that the determination claimant was permanently and totally disabled was illogical, irrational and wholly unjustifiable.  The Court noted that claimant was a 56 year old roofer with restrictions of lifting no more than 2 pounds, with difficulties in school and no skills other than in roofing.  This was not an irrational finding by the commissioner, according to the court, and the decision was affirmed.

Court of Appeals Affirms Grant of Summary Judgment in Favor of Defendants on Wrongful Discharge Claim

Plaintiff in Wusk v Evangelical Retirement Homes, No. 15-0166 (Iowa App. Dec. 23, 2015) asserted that she was wrongfully terminated from employment as a result of pursuing a workers' compensation claim.  The district court ruled in the employer's favor on summary judgment and the Court of Appeals affirmed.

Plaintiff suffered a work related injury to her arm and pursued a workers' compensation claim.  On November 5, 2012, claimant was released from all restrictions and was cleared for regular duty work. Claimant called and left a message for her supervisor about this, and her supervisor called back within a day and left a message for claimant.  After this, claimant did not speak to anyone with the employer.  Her workers' compensation claim was settled on July 9, 2013.

 Claimant was terminated in August of 2013, because she had not scheduled any hours and had not followed the terms of the pool agreement.  Claimant indicated she contacted the nursing home after this to find out why her employment was terminated, but was unable to obtain any information.  Claimant filed a claim in district court for retaliatory discharge.

Defendants moved for summary judgment and the district court concluded that plaintiff had failed to establish a causal connection between the filing of her workers' compensation action and later termination.  The Court of Appeals noted that to establish a prima facie case of retaliatory discharge, plaintiff must show 1) engagement in a protected activity; 2) adverse employment action and 3) a casual connection between the two.  For the purposes of this case, only #3 was in issue.

The court noted that the causal connection standard in a wrongful discharge claim was high.  Plaintiff must demonstrate that the filing of the workers' compensation claim "was the determining factor in the adverse employment action."  Because plaintiff had not made any attempt to contact the employer in the six months after November 5, 2012, the court concluded that claimant had failed to establish causation.  The court also concluded that it was "inadmissible hearsay" that it was "common knowledge" that the filing of a workers' compensation claim would lead to discharge.  The retaliatory discharge claim failed as a matter of law.

Court of Appeals Holds That Commissioner Erred In Denying Penalty Benefits; Remands for Determination of Healing Period

In Pettengill v. American Blue Ribbon Holdings, LLC, No. 14-1511 (Iowa App. Dec. 23, 2015), the court dealt with a situation where the commissioner had concluded that penalty benefits were not owed despite the fact that the employer had not contemporaneously conveyed the reasons for the denial of benefits to claimant.  The district court reversed and remanded and the Court of Appeals affirmed the decision of the district court.

Claimant suffered a back injury, the extent of which was in serious dispute.  Dr. Runde provided initial treatment for the back pain, including physical therapy.  He also provided permanent restrictions for claimant. An MRI demonstrated a disk extrusion at L5-S1.  Dr. Broghammer indicated this was not due to the work injury, Dr. Neiman disagreed and though surgery was necessary.  Dr. Abernathey did not believe surgery was necessary and thought that the injury should have resolved within six weeks.

The commissioner concluded that from February of 2011 until late fall of 2011, defendants did not engage in any investigation of claimant's ongoing back back. Defendants only paid healing period benefits through March 19, 2011 and did not notify claimant of the reasons for terminating benefits. The commissioner concluded, however, that because claimant was ultimately (in April of 2012) found to have reached MMI on January 15, 2011, there had been no delay in benefits, and thus penalty was not appropriate.

The court found that section 86.13 creates a two-part test for the determination of penalty benefits.  First, the employee must demonstrate a denial, delay or termination of benefits.  Second the employer must demonstrate reasonable or probable cause or excuse for the denial of benefits.  The court concluded that claimant had demonstrated a delay, but that since the employer had not conduct a reasonable investigation, and had not contemporaneously conveyed the reasons for the denial, under section 86.13(c), penalty was due. The court noted that section 86.13 created a mandatory timeline for determining whether the employer had a reasonable or probably excuse for the denial of payment of benefits.  The court stated:  "An employer cannot unilaterally decide to terminate an employee's benefits without adhering to Iowa Code section 86.13, to allow otherwise would contradict the language of that section."  The court also found that healing period benefits had been terminated without appropriate notice under section 86.13, and remanded for determination based on the medical information available at the time the benefits were delayed or terminated.

Pettengill represents one of the first appellate decisions on the scope of the penalty language in section 86.13 of the Iowa Code.  Because of the importance of this issue, it would not be surprising if further review of the decision was sought by the employer.

Friday, December 18, 2015

Supreme Court Holds that Discovery Rule Applies to Traumatic Injuries

In Baker v. Bridgestone/Firestone, No. 14-2062 (Iowa Dec. 18, 2015), the Court confirmed that the discovery rule applied to traumatic injury cases as well as cumulative injury cases.  The commissioner had ruled, in a series of cases beginning with Clark v. City of Spencer, No. 5017329 (App. Sept. 11, 2007), that the discovery rule did not apply to cases involving traumatic injuries.  On judicial review, the district court reversed the decision of the agency and the Supreme Court affirmed the decision of the district court.

The Court first discussed the purpose and character of the Iowa's workers' compensation system, noting that the costs of a work injury should be borne by the industry itself and not dependent on individual fault or negligence.  The "grand bargain" providing immunity to employers from potentially large tort lawsuits in exchange for a claimant not have to demonstrate negligence was discussed at length, as was the assurance of prompt payments in the workers' compensation system. The court concluded that:

     The unique relationship between employers and their injured employees under the grand bargain        of workers' compensation also animates a rule of statutory interpretation deeply embedded                  throughout our caselaw.  We liberally construe workers' compensation statutes in claimants' favor      to effectuate the statute's humanitarian and beneficent purpose.

With this guidance the court noted that originally the discovery rule did not apply to workers' compensation cases.  In 1980, however the court considered the issue following an amendment to the the statute of limitations provisions of the statute and concluded, in Orr v. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 1980) that the discovery rule was applicable in workers' compensation cases.  Since 1980, the court noted that it had applied that rule in a number of cases involving cumulative injuries, including Herrera v. IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001).

The court noted that Mr. Baker's case, which involved a traumatic injury to his back when he stepped on a lanyard, straightened up and felt pain in his back, was a traumatic injury.  The court noted that it had applied the discovery rule in "single event cases" such as Dillinger v. City of Sioux City.  The court noted that in Larson Mfg. v. Thorson, it had reaffirmed that the three elements of the discovery rule were the nature, seriousness of probably compensable character of the injury.  The court distinguished the decision in Swartenzdruber v. Schimmel, 613 N.W.2d 646 (Iowa 2000), which defendant had claimed barred application of the discovery rule to traumatic injuries.  The court noted that it had applied the discovery rule in Swartzendruber, based on the date claimant was diagnosed with a loose prosthetic hip and sent to the specialist.  The court noted that the determination of what constitutes the seriousness of the injury was a "fact specific inquiry."

In the context of Mr. Baker's case, where he had a specific injury, but had not been taken off work, had not been given specific restriction, had not had a definitive diagnosis and had not been sent for any testing, summary resolution of the limitations issue was not possible.  the agency, according to the court, "must apply the discovery rule when it is properly raised and substantial evidence supports it."  The statute is tolled until the claimant has knowledge of the nature, seriousness and probable compensable character of the injury. The court then went on to discuss cases in other jurisdictions where the discovery rule was applied to traumatic injuries.  The case was remanded for application of the discovery rule to claimant's situation.

The Baker case is significant in that it expressly holds that until a reasonable claimant appreciates the nature, seriousness and probable compensable character of his injury, whether it be traumatic or cumulative, the statute of limitations is tolled.  This could have consequences for workers who sustain a traumatic injury which does not initially affect their work, but which is later realized as serious.

Baker was handled by Martin Ozga of Neifert, Byrne & Ozga.

Friday, December 11, 2015

Pro Publica Publishes Article on the Impact of Tyson Foods on Workers' Compensation in Iowa

Pro Publica, which has been investigating workers' compensation systems throughout the country, has today issued a report on the impact of Tyson Foods on workers' compensation throughout the country and specifically in Iowa.  https://www.propublica.org/article/tyson-foods-secret-recipe-for-carving-up-workers-comp.  The article discusses the impact of the food giant on changing workers' compensation systems throughout the country and specifically addresses Tyson's role in seeking to have former Commissioner Chris Godfrey terminated by the Governor.

The article details the efforts of the Association of Business and Industry and Tyson to have Commissioner Godfrey fired, including the preparation of a lengthy list of cases that allegedly demonstrated the bias of the commissioner toward claimants.  Ultimately, because the Governor could not fire the Commissioner under Iowa law, he reduced his salary by over $30,000.

Pro Publica's piece demonstrates how corporate interests which have the ear of the governor can attempt to pervert the purposes of the workers' compensation system, which is supposed to provide for medical care, temporary benefits and permanency benefits to those who are injured at work.  The article is worth reading, both for the implications in Iowa and across the country.

Wednesday, November 25, 2015

Court of Appeals Affirms Commissioner on Case Involving Intervening Cause, Reverses District Court on Medical Bill Issue

Carl A. Nelson & Co. v. Sloan, No. 15-0323 (Iowa App. Nov. 25, 2015), involves issues concerning causation and intervening cause as well as the payment of medical bills.  The district court upheld the commissioner's decision concerning causation, but did not allow payment of medical bills directly to claimant.

Claimant suffered an injury to his back on August 15, 2011 and was returned to full duty work on August 24.  On October 30, 2011, claimant and a friend were moving go-kart frames into a trailer.  Claimant had a sudden onset of pain and numbness in the back and legs while doing this.  He subsequently had surgery and was found to be at MMI on January 14, 2013.

At the arbitration level, the deputy concluded that the go-kart incident was an intervening and superseding cause for claimant's back problems and denied benefits.  On appeal, the commissioner reversed, finding that the greater weight of the evidence supported the finding that claimant's work injury was a proximate and natural cause of the disability he suffered at the time of the hearing.  The commissioner stated that chain of causation is broken only when claimant's conduct amounts to an intentional violation of an express or implied prohibition and medically supersedes the claimant's original condition.  The commissioner concluded that claimant was simply engaged in a normal activity of living and that claimant's conduct was not contrary to any duty he owed his employer.

The commissioner also awarded the costs for medical care, with the bulk of these costs to be paid to the medical provider, but costs paid by claimant's private health insurance reimbursed directly to claimant.  In support, claimant cited to Midwest Ambulance Service v. Ruud, 754 N.W.2d 860, 867-868 (Iowa 2008).

On appeal, the court concludes that substantial evidence supported the claim that claimant's injuries were related to his original work injury.  Dr. Bussey had opined that claimant continued to suffer from back pain and radiculopathy even after he was returned to full duty work.  The commissioner noted that claimant returned to full duty work not because his condition had abated but because he couldn't afford to be off work.  Giving deference to the commissioner's fact finding, the court concludes that substantial evidence supported the decision.

With respect to the intervening cause question, the court noted that the commissioner's conclusion was taken from Larson's treatise on workers' compensation.  The court noted that the basic rule is that a subsequent injury, whether a new injury or aggravation, "is compensable if it is the direct and natural result of a compensable primary injury."  Citing Larson's and Oldham v. Scofield & Welch, 266 N.W.480, 482 (Iowa 1936) ("employer is liable for all consequences that naturally and proximately flow from the accident").  The court noted that the commissioner's conclusion that claimant's back had been rendered more vulnerable by the initial injury was supported by substantial evidence.  The activities in which claimant was engaged while off duty were no more strenuous than those in which he engaged at work.  The court concluded that the commissioner's interpretation was not illogical, irrational or wholly unjustifiable.

On the medical expense issue, the Court of Appeals, citing Ruud, reversed the decision of the district court, noting that an employee who pays group health premiums has in effect paid for the medical expenses covered by the group plan and the claimant is therefore entitled to be paid directly for past medical expenses.  The court found Ruud "definitive" and reinstated the decision of the agency.  The court reversed the commissioner to the extent that he used the phrase "bills which have been paid" rather than the phrase "past medical expenses paid," which had been used in Ruud.

The Sloan case is a potentially important case in all situations involving intervening causes for injury.  The Court of Appeals concludes that Larson's analytical approach to this issue is sound and adopts the "direct and natural consequences" rule from Larson's.  Although Oldham had long ago adopted similar verbiage, this is the first recent appellate court decision adopting that language.  Because of the potential significance of the case, it would not be surprising if further review is sought.

Saturday, November 14, 2015

Court of Appeals Affirms Running Healing Period Award

In Eaton Corp. v. Archer, No. 15-0255 (Iowa App. Nov. 12, 2015), the commissioner addressed a claim where claimant developed carpal tunnel syndrome.  There was a dispute concerning causation and a dispute over whether claimant was able to return to substantially similar work.  The commissioner concluded that claimant's injury was related to his work activities, and concluded that claimant could not return to former work, given the continuing pain in his hands.

Following the injury, claimant missed work because of the pain in his hands and was discharged by the employer.  On appeal, the primary issue was the healing period issue.  The employer claimed that claimant could return to his former work, and cited their IME physician, Dr. Hsu, in support.  Claimant countered with the IME of Dr. Gammel.  The agency concluded, based on the opinion of Dr. Gammel and claimant's testimony that he could not return to substantially similar work.

The district court affirmed and on appeal the Court of Appeals affirmed as well.  In affirming, the court noted that carpal tunnel syndrome was noted as a repetitive trauma or cumulative injury.  The court concluded that substantial evidence supported the agency's decision.

Court of Appeals Affirms Small Disability Award on Substantial Evidence Grounds

In Harrison v. Greenfield Manor, No. 15-0223 (Iowa App. Nov. 12, 2015), the commissioner awarded claimant a 5% industrial disability award, based on the fact that the doctors who had examined claimant and found that his injury was minor and did not lead to restrictions.  The district court and court of appeals affirmed on substantial evidence grounds.

Court of Appeals Affirms Commissioner's Award, Reverses District Court in Avascular Necrosis Case

In Tameklo v. Tyson Foods, Inc., No. 15-0222 (Iowa App. Nov. 12, 2015), the commissioner addressed a situation where claimant suffered a shoulder injury and later developed avascular necrosis.  The commissioner concluded that the avascular necrosis was related to work and awarded healing period benefits.

Tyson challenged the finding that claimant's avascular necrosis arose out of employment. The first two physicians that saw claimant did not conclusively indicate one way or another whether the injury was related to employment.  Claimant's IME physician, Dr. Bansal, concluded that the avascular necrosis was related to employment, noting that claimant did not have avascular necrosis prior to the surgery, and that the shoulder that was injured was the only location where claimant had avascular necrosis.  The district court reversed the decision of the commissioner, but on appeal, the Court of Appeals reinstated the decision of the commissioner,finding that the commissioner's decision was supported by substantial evidence.

Wednesday, October 28, 2015

Court of Appeals Affirms Finding of No Causation for Claimant's Back Injury

Paylor v. Dee Zee Inc., No. 14-1570 (Iowa App. Oct. 28, 2015)  involved a claim that was dismissed by the commissioner, who found that claimant's back injury and surgery were not related to his work injury.  The court notes that its scope of review was severely circumscribed and noted that judgment calls were left to the agency.

The court affirmed the decision on substantial evidence grounds, noting that the agency carefully assessed the medical evidence, crediting certain medical providers over others and assessing the quality of the opinions, based on the medical history or lack thereof.  Because medical causation presented a question of fact vested in the discretion of the commission, and there was no abuse of this discretion, the decision of the agency was affirmed.

Friday, October 23, 2015

Synopsis of Workers' Compensation Appeal Decisions

The list below is a compendium of appeal decisions decided by the Iowa Workers' Compensation Commissioner or his designee.   The list does not provide a detailed analysis of each case, but simply a synopsis of the results of the case, with brief discussions of interesting issues in various cases:

September  2017

Fenton v. Menard, Inc., No. 5034943 (App. Sept. 18, 2017) - The deputy concluded that defendants had not met their burden of providing an economic or physical change of condition in this review-reopening action (McElderry).   Claimant had been awarded a 50% industrial award in a decision ultimately upheld by the Court of Appeals.   Defendants appeal.  Without additional comment, the commissioner affirms.  16 months from arbitration to appeal decision. 

Toriello v. Mercy Medical Center, No. 5029653 (App. Sept. 14, 2017) - In this review-reopening action, the deputy concluded that claimant carried his burden of demonstrating a change in physical and financial condition (Fitch).  An additional 30% industrial was awarded over and above the 45% awarded initially.  A penalty of approximately $22,000 was assessed.  Claimant appeals, arguing that he was PTD.  Defendants cross-appeal.  Without additional analysis, the commissioner affirms.  20 months from arbitration to appeal decision.

Terrell v. City of Des Moines, No. 5049261 (App. Sept. 14, 2017) - Claimant was awarded a 30% industrial disability for a shoulder injury (Walsh).  Defendant appeals and argues on appeal that claimant should only have been awarded a 5% industrial disability.  Without additional comment, the commissioner affirms. 17 months from arbitration to appeal decision.


Elswick v. City of Des Moines, Nos. 5047436, 5047437, 5047438, 5047847 (App. Sept. 13, 2017) - Claimant had numerous injuries.  He was found to have failed to establish a permanent impairment to his left knee, a 7% impairment to the left leg which did not extend to the body, and later injuries to the left and right legs, resulting in a 2% rating to the left leg and 9% to the right leg (Fitch)  Without further comment, the commissioner affirms.  18 months from arbitration to appeal decision.

Lorenzen v. Second Injury Fund, No. 5024990 (App. Sept. 11, 2017) - Claimant was denied further benefits against the Fund on review reopening.  The deputy (Walshire) concluded that claimant was PTD against the employer under 85.34(2)(s), although the claim had been commuted for less than a permanent total award.  On appeal, the commissioner affirms without further comment. 19 months from arbitration to appeal decision.

Rodriguez v. Titan Tire Corporation, No. 5052006 (App. Sept. 6, 2017) - The deputy found that claimant suffered a 20% industrial disability as a result of a hernia and right ankle injury that occurred simultaneously (Christenson).  Benefits for a back and left lower extremity injury were denied.   Claimant was found eligible for 13 weeks of vocational rehabilitation benefits.Without additional comments, the commissioner affirms.  18 months from arbitration to appeal decision.

Awan v. JBS USA, No. 5047800 (App. Sept. 6, 2017) - At hearing, the deputy found that claimant only sustained a temporary injury as a result of a stipulated injury (Pals).   Claimant appealed, claiming odd lot and PTD.   On appeal, the commissioner affirms without additional comment.  18 months from arbitration to appeal decision.

Millanes Ortiz v. Loyd Rolin Construction, No. 5041675 (App. Sept. 1, 2017) - as of the date of this writing, this case shows up as an appeal decision, but the decision is not reported.  

Barrett v. Ameristar Casino, No. 5046572 (App. Sept. 1, 2017) - Claimant was found not to have met her burden of demonstrating a permanent aggravation of an underlying condition at hearing (Gerrish-Lampe).  On appeal, the commissioner affirmed without additional comment.  18 months from arbitration to appeal decision.

August 2017

Christians v. Mercy Hospital Iowa City, No. 5034688 (App. Aug. 30, 2017) - Claimant was found eligible for a 50% industrial disability for a stipulated injury to the low back (Walshire).  Both parties appeal, with defendants contending the award was too high and claimant asserting PTD.  Defendants also argue that the deputy erred in awarding certain healing period benefits and in computing the rate.  On appeal, the commissioner affirms, without additional comment. 19 months from arbitration to appeal decision.

Alcantara v. Iowa Select Farms, LLP, No. 5051321, 5051322 (App. Aug. 29, 2017) - Claimant was found not to have met her burden on demonstrating a low back injury on 7/3/13, but was also found to have established a low back injury with an injury date of 11/18/13 (Christenson).  30% industrial disability award.  Payment for medical costs and IME awarded, but payment for FCE denied.  Claimant appeals and defendants cross-appeal.  The commissioner affirms without additional comment.  Note that the deputy indicated that under 876 IAC 4.33, "an FCE does not appear to be a recoverable cost" despite the fact that 4.33(6) indicates that the "reasonable costs of obtaining no more than two doctors' or practitioners' reports" may be awarded.  The commissioner does not comment on this.   18 months from arbitration decision to appeal decision.

Johnson v. Irwin, Inc., No. 5052122 (App. Aug. 25, 2017) - At the arbitration level, the deputy found that claimant failed to carry his burden of proving a work injury (Walshire).   On appeal, the case was delegated to Deputy McGovern.  Claimant was found less than credible at hearing and on appeal this lack of credibility was affirmed.  Claimant takes nothing.  19 months from arbitration to appeal decision.

Bissell v. Hy-Vee, Inc., No. 5048967 (App. Aug. 25, 2017) - Claimant was awarded a 50% industrial disability, with 90 weeks of credit for benefits paid (McElderry).  The commissioner notes that although claimant's two treating orthopaedic surgeons released him without restrictions, the serious nature of the injury itself and the two surgeries claimant had, as well as the 18% impairment rating demonstrated that claimant's testimony concerning the effects of his injury was credible.  The 50% award was affirmed.  18 months from arbitration to appeal decision.

Huskins v. Par Electrical Contractors, No. 5048504 (App. Aug. 25, 2017) - The claim was heard before Deputy Pohlman and decided by Deputy Christenson.  Claimant was found not to be a credible witness, and was awarded a 30% industrial disability.  Claimant, who had argued PTD , files this appeal.  After setting forth the issues in the case, the commissioner affirms the decision of the deputy without additional comment.  21 months from arbitration to appeal decision.

Zesch v. Fisher Controls International, No. 5047984 (App. Aug. 24, 2017) - Claimant was awarded a 30% industrial disability for a right shoulder injury for a 2010 injury (Pals).   In 2013, claimant injured his left shoulder and argued that he was odd lot.  The deputy found that claimant sustained a 40% industrial disability from the combined effects of the injuries and claimant was awarded 10% additional benefits following application of 85.34(7)(b).  Claimant appeals and without further comment, the commissioner affirms.  19 months from arbitration to appeal decision.

Karnes v. General Contstruction, Inc., No. 5013150 (App. Aug. 24, 2017) - Claimant was awarded a partial commutation following hearing.(Elliott).   Defendants appeal.  Without additional analysis, the commissioner affirms.  19 months from arbitration to appeal decision.

Jensen v. Cedar Rapids Community School District, No. 5051383 (App. Aug. 16, 2017) - Claimant was found to be permanently and totally disabled by the deputy (Heitland).  On appeal, the commissioner affirms the decision without additional comment.  20 months from arbitration to appeal decision.

Groutte v. Gilbain Bldg. Co., No. 5044473 (App. Aug. 14, 2017) - The deputy concluded that claimant had met his burden of demonstrating temporary and permanent disability and awarded PTD benefits (Heitland).  On appeal, the commissioner reverses, finding that claimant had not met his burden of proof.  Claimant suffered a fall and claimed injuries to his neck, back, shoulders and hips, among other things. Following the injury, claimant was told to use his own medical insurance.  Claimant's conditions were non-surgical and an FCE indicated that claimant could lift 50 pounds.  Dr. Mooney concluded that claimant had no impairment ratings.  Dr. Hines concluded that claimant had a 21% impairment for injuries to his hips, neck and back.  He indicated that there was a ten pound lifting restriction and that claimant needed to change positions every half hour.  Dr. Martin also found no permanent restrictions or impairment from the work injury.  Dr. Nasstrom and Dr. Sneller also indicated that claimant's impairments were work related.  The commissioner credited Mooney and Martin and found that claimant had not established a permanent impairment.  20 months from arbitration to appeal decision.

McBurney v. Agri Star Meat and Poultry,  No. 5049533 (App. Aug. 10, 2017) - In this case, the deputy found that claimant was a credible witness, concluded that claimant had demonstrated causation and awarded 45% industrial disability (Heitland).  The deputy concluded that claimant was a credible witness.  On appeal, the commissioner goes into great detail discussing how the claimant was not credible as to his past medical history regarding previous back problems, but despite this concludes that the decision of the deputy was correct and affirms in all respects. 19 months from arbitration to appeal decision.

Arnold v. Second Injury Fund of Iowa, No. 5047123 (App. Aug. 7, 2017) - The arbitration decision found that claimant sustained a first injury to his bilateral eyes and a second injury to the bilateral knees.  A 45% industrial disability was found, with the Fund being entitled to 80 weeks of credit.  The deputy ordered the Fund to pay claimant's medical expenses, both past and future (Heitland). The fund challenges the industrial award and also argues that claimant did not request past and future medical expenses and that the award of these benefits was a mistake.  On appeal, the commissioner affirms the industrial award without comment and holds that the award of medical benefits was a scriverner's error and therefore reverses the award of medical benefits.  19 months from arbitration to appeal decision.
 
Heitman v. Seaton Corp., No. 5060002 (App. Aug. 4, 2017) - At hearing, the deputy awarded a running healing period, after concluding that claimant's right shoulder and right brachial plexus injury was work related (Grell).  The question of penalty was bifurcated.  Defendants appeal.  On appeal, the commissioner affirms without additional comment. 18 months from arbitration decision to appeal decision.

Dubinovic v. Des Moines Public Schools, Nos. 5042677, 50477783 (Rehearing Aug. 3, 2017) - In this rehearing decision addressing an earlier  (May 25) appeal decision,  the commissioner rejects claimant's contention that claimant's mental/mental claim should be considered under Brown v. Quik Trip, 641 N.W.2d 725 (Iowa 2002).  In Brown, the court held that where there was a manifest happening of a sudden traumatic nature from an unexpected cause or unusual strain, the legal causation test is met irrespective of the absence of similar stress on other employees.  The commissioner finds that in claimant's case, his three meetings with supervisors concerning his job performance which ultimately resulted in a "nervous breakdown" were not analogous to the situation in Brown nor in other cases applying Brown. The commissioner also rejected a penalty claim for late payment of healing period and permanency benefits.

Nolting v. Exide Technologies, No. 5052052 (App. August 1, 2017) - The deputy concluded that claimant had a 5% industrial disability (Christenson).  Claimant appeals.  Without further analysis, the commissioner affirms the award.  18 months from arbitration decision to appeal decision.

Bennett v. Second Injury Fund, No. 5051118 (App. Aug. 1, 2017) -  The deputy found a first injury as a result of claimant's blindness in her left eye and a second injury to the right arm (McElderry) Claimant was awarded permanent total disability.  The deputy provided 195 weeks of credit and found that benefits commenced 195 weeks after June 13, 2012, the date of the second injury.  Of note, claimant was 76 years old as of the time benefits commenced.   The commissioner affirms the award without further analysis.  18 months from arbitration decision to appeal decision.

July 2017

Folsom-Ruggles v. Senior Housing Health Care, Inc., No. 5048981 (App. July 28, 2017) - Claimant was awarded a 20% industrial disability award for a right shoulder injury (McGovern).   Defendants claim that there was no permanency.  Without additional comment, the commissioner affirms.  18 months from arbitration decision to appeal decision.

McDonald v. EZ Payroll & Staffing Solutions, LLC, Nos. 5043916, 5048386 (App. July 27, 2017) - In the first file, claimant was awarded benefits for a hand injury.  In the second file, claimant was found to have contracted Legionnaire's disease and was found to be permanently and totally disabled (Elliott).   On appeal, defendants contend the Legionnaire's disease did not arise out of and in the course of employment.  The commissioner reverses the decision of the deputy and concludes that claimant had not established that the Legionnaire's disease arose out of and in the course of employment.

Claimants was a packaging operator in the mold department.  He was responsible for cleaning molds used in the manufacturing of plastic food and beverage bottles.  He also worked a second job as a janitor.  Claimant sustained a laceration to the left hand on August 27, 2012 and by August 31 had developed flu-like symptoms. On September 3, he was found positive for Legionella pneumonia.  The initial reports did not provide a source for the Legionnaire's disease.  Claimant returned to work in November of 2012, but developed a new onset of headache, imbalance and memory loss.  Dr. Stapleton, an infectious disease specialist at UIHC found that claimant had been exposed to Legionnaire's on his job.  Dr. Bansal also concluded that the Legionnaire's was because of work.  The environmental manager for the employer indicated that the water system used by the employer was highly controlled to control biological issues.  He indicated that the system had not been compromised with Legionella bacteria.  Dr. McKinsey from Kansas City concluded that the concentrations of Legionalla bacteria were extremely low and concluded it was not possible to determine the avenue of transmission of the disease.

The commissioner concludes that because claimant's doctors were not aware of the procedures followed by the employer that claimant's expert testimony was based on incomplete information and that claimant had not demonstrated that the Legionnaire's disease was related to the work exposures.  Claimant thus takes nothing.  18 months from date of arbitration decision.

Burgin v. Second Injury Fund, No. 5047452 (App. July 27, 2017) - Claimant was found entitled to a 40% industrial disability award from the fund minus 36.9 weeks of credits for a first injury to the leg and a second injury to the arm (McElderry).  On appeal, the commissioner affirms, with additional analysis.  The commissioner finds that the first injury is established by two earlier ratings of impairment to the leg.  He also found that because of the effects of the injuries, claimant was only able to perform one of his earlier jobs, and had been unable to find a job in the open labor market, but was offered a job by one of his friends.  The 40% award was affirmed.  20 months from date of arbitration decision.

Botello-DeSilva v. IAC Iowa City LLC, No. 5047339 (App. July 27, 2017) - Claimant was found to have sustained an injury to his leg and was awarded benefits for the value of the impairment rating plus penalty for the unreasonable delay in payment of benefits ($2500) (Pals)..  Claimant appealed, alleging that she had established that she had an industrial injury.  Without additional discussion, the commissioner affirms.  19 months from date of arbitration decision.

Bluml v. Dee Jays Inc., No. 5047125 (App. July 20, 2017) - Claimant had a fall which was caused by his seizure disorder which was seriously aggravated by his alcoholism.  At the time of the fall, claimant was on a level floor.  The deputy found that the fall was idiopathic and denied benefits (Christenson).   The commissioner affirms the decision, with a lengthy analysis of idiopathic falls and the question of whether the surface on which a claimant lands (in this case a ceramic floor) can increase the risk of injury such that the claim is compensable.

The commissioner acknowledges that an idiopathic fall which causes a worker to hit his or her head on an object or structure is compensable, but states that a fall on a level floor is generally not compensable.  The commissioner indicates that there is "no real dispute" that the fall onto the ceramic floor did not make claimant's injuries more serious.  Claimant argued that idiopathic falls on a level floor were compensable when the hardness of the floor affects the seriousness of the injury, which is the rule in a minority of jurisdictions.  The commissioner, however, adopts the majority rule, which is that the surface of the floor does not render the claim compensable.  The decision cites numerous decisions of falls onto concrete floors where the courts of other states have concluded that such a fall was not compensable.  The decision of the deputy was affirmed.  18 months from date of arbitration decision.

Young v. Alcoa, No. 5049315 (App. July 17, 2017) - The deputy concluded that claimant had failed to meet his burden of demonstrating that she had a left shoulder injury that arose out of and in the course of employment.  The deputy also denied payment for an IME.  Without further elaboration, the arbitration decision is affirmed.

Graham v. Second Injury Fund of Iowa, No. 5044585 (App. July 14, 2017) - Claimant was denied benefits against the SIF because he was found not to establish a first injury in 1981 (Christenson).  Without additional comment, the commissioner affirms the decision of the deputy.  17 months from date of arbitration decision.

Billick v. Roberts Dairy, Nos. 5018189, 5021247, 5021248, 5022146 (App. July 14, 2017) - In this action, which has previously been the subject of a Supreme Court decision, the arbitration decision addressed only the questions of medical expenses.  The arbitration decision found that claimant was entitled to reimbursement of medical expenses as well as payment of future medical expenses (Heitland).  The deputy concluded that claimant was not responsible for a missed appointment with Dr. Chen.  The commissioner affirms the decision without additional comment.  18 months from date of arbitration decision.

Leggett v. University of Iowa Hospitals and Clinics, No. 5049231 (App. July 13, 2017) - Claimant was found to have suffered a 50% industrial loss as a result of a left shoulder injury (Walshire).  An earlier payment of 40 weeks of benefits for a right shoulder injury was credited against the left shoulder injury under section 85.34(7) of the Code. On appeal, defendants assert that the arbitration decision should be modified to reflect a reduced finding of combined industrial disability due to the left and right shoulder injuries.  Without additional comment, the commissioner affirms. 20 months from date of arbitration decision.

Johnson fka Nosa v. Steak N Shake, No. 5048919 (App. July 11, 2017) - Claimant was found to have a 25% industrial disability for her back, hip and right foot problems (Heitland).  Claimant was also provided payment for an IME.    On appeal, the commissioner affirms. The commissioner finds, contrary to defendants' assertions,  that defendants' doctor provided a rating for the hip prior to the IME and the costs of the IME are awarded to claimant.  19 months from date of arbitration decision.

Bronner v. Square D, No. 5051089 (App. July 7, 2017) - The deputy found that claimant was not entitled to healing period benefits and awarded 150 weeks of permanency benefits (Walshire).  Five weeks of penalty benefits were also awarded.  The parties cross-appeal and without further discussion, the commissioner affirms.  19 months from date of arbitration decision.

Winters v. Curries Mfg., No. 5050592 (App. July 7, 2017) - At hearing, claimant was found not to have met his burden of demonstrating an injury that arose out of and in the course of his employment.(Grell).  Without further discussion, the commissioner affirms. 18 months from date of arbitration decision.

Kampas v. Centurion Industries, Inc., No. 5042730 (App. July 6, 2017) - This appeal involves two separate arbitration decisions.  In the first, which was issued on 9/30/14, the deputy awarded healing period benefits and ruled on a rate issue (Pals).  In the second, dated 7/19/16, additional healing period benefits were awarded and claimant  was awarded an 80% industrial disability (Christenson).  The first appeal was affirmed in its entirety.  On the second claim, the commissioner affirms the 80% industrial disability award and awards additional healing period benefits.  The commissioner concludes that the parties had stipulated to a running healing period in the first hearing.  The commissioner concludes that the applicable time to challenge this finding was at the first hearing, not the second.  12 months from the date of the second arbitration decision.  

June 2017

Halverson v. Dyersville Food Bank, Inc., No. 5048905 (App. June 29, 2017) - The arbitration decision found that claimant's work injury had aggravated a preexisting condition and had also aggravated claimant's depression (Gerrish-Lampe).   Claimant was awarded PTD benefits.  On appeal, the decision of the deputy was affirmed with the exception that PTD benefits were to be paid from the date rather than healing period benefits followed by PTD (a distinction without a difference in this case).  19 months from date of arbitration decision.

Sarceno v. Tyson Fresh Meats, No. 5046324 (App. June 26, 2017) - Claimant was awarded 30% industrial for aggravation of a pre-existing back condition (Walsh).   Defendants appeal, saying that the aggravation was temporary.  Without additional comment, the commissioner affirms.  19 months from date of arbitration decision.

Love v. Agri Zone, No. 5048328 (App. June 14, 2017) - At hearing, claimant was awarded a 50% industrial disability for a stipulated work injury.  The deputy found that claimant was entitled to a credit of $13,477 because of an overpayment of TTD benefits, citing Code section 85.34(4).  Penalty benefits were denied (Fitch) Claimant appeals, asserting PTD.  Defendants assert that the permanency award is too high.  Without additional comment, the commissioner affirms. 17 months from date of arbitration decision.

Miles v. City of Des Moines, Nos 5048896-5048899 (App. June 14, 2017) -  Four claims were consolidated for hearing. On one claim, the deputy awarded 22 weeks of benefits for a left leg injury.  Another claim resulted in payment of 8.8 weeks of benefits for functional loss of each leg.  On a third claim involving the low back and right hip 45% industrial disability was awarded.  In the final claim the deputy concluded that claimant failed to demonstrate a cumulative injury to the back.  Penalty benefits were denied (McElderry).

On appeal, the commissioner finds that the two leg injuries were bilateral simultaneous injuries.  The commissioner concludes that claimant, who was still working but precluded from overtime, had not suffered a permanent total disability as a result of the injuries and they were considered functionally.  Claimant was awarded 60 weeks of benefits, which was slightly more than the 39.6 weeks that had been awarded for the leg injuries in the arbitration decision.  Claimant was found to have a 5% functional loss for the back injury, and reduces the industrial disability from 45 to 35%.  The commissioner opines that a loss of earning capacity due to voluntary choice or lack of motivation is not compensable.  He then goes on to indicate that a release to work without restrictions does not necessarily mean that a claimant has no loss of earning capacity.  The commissioner states:

"This agency has seen countless examples where physicians have returned a worker to full duty, even when the evidence is clear that the worker continues to have physical or mental symptoms that limit work activity, e.g. the worker in a particular job will not be engaging in a type of activity that would cause additional problems, or risk further injury; the physician may be reluctant to endanger the workers' future livelihood, especially if the worker strongly desires a return to work and where the risk of re-injury is low; or, a physician, who has been retained by the employer, has succumbed to pressure by the employer to return an injured worker to work.  Consequently, the impact of a release to full duty must be determined by the facts of each case."

Overall, although the industrial award was reduced by 10%, good language for those cases where the treating physician has returned a worker to work with no restrictions.  16 months from date of arbitration decision.

Sloan v. Sloan Family Dentistry, No. 5065386 (Ruling on Motion to Dismiss Petition for Partial Commutation June 12, 2017) - This is not an appeal decision, but rather a ruling from the commissioner on the issue of whether a partial commutation petition could be filed while the underlying action was still pending before the commissioner.  Claimant acknowledges that a stay of the partial commutation ruling may be proper, but argues that because of the July 1, 2017 changes in the commutation rules, dismissal of the commutation petition would be prejudicial.  Although this would normally be a matter for a deputy to decide, the commissioner notes that because this issue may arise repeatedly, it is appropriate for him to retain jurisdiction.  The commissioner concludes that the period during which compensation is payable "cannot be definitely determined" and dismisses the petition for partial commutation.  The commissioner cites two earlier rulings, Thornton v. Clayton County Recycling, No. 5039943 (Ruling January 2013) and Johnson v. West Ridge Care Center, No. 5019237 (Ruling on Motion to Dismiss March 2009) in which the deputies had concluded that a petition for partial commutation could not be filed until benefits could be definitely determine through an agreement for settlement or arbitration decision.  The commissioner's determination does not address the issue of whether a stay could be granted pending an arbitration decision.

Defendants sought sanctions against claimant for filing the action and this action is rejected.  Costs are split between the parties.

The action is styled as a final agency action and is precedential for the agency.

Huffey v. Mail Contractors of America and Second Injury Fund, No. 5042767, 5042768 (App. June 12, 2017) - The arbitration decision concluded that claimant was permanently and totally disabled (Pohlman).   The decision awarded 15.4 weeks of benefits for a 2011 injury to the left knee and 110 weeks for an left knee injury approximately a year later.  A right leg injury was the first injury for fund purposes.  On appeal, the commissioner's designee (Christenson) reverses the award against the Fund and claimant goes from a permanent total to taking nothing.  The deputy concludes that the 2012 left knee injury, which resulted from jumping down from a tire, did not result in a permanent impairment.  Dr. Sassman had concluded that claimant's need for a total knee replacement on the left was accelerated by the second left knee injury, but this conclusion was rejected because Dr. Sassman allegedly admitted that there was no medical evidence that this injury resulted in a permanent injury. Dr. Sassman's report clearly stated, however, that the 2012 injury had accelerated claimant's need for the left TKA.  Dr. Miller had concluded that there was no acceleration or aggravation.  Dr. Mahoney, who performed the TKA, apparently indicated that it was not work related, although he did not seem to provide a specific opinion on this subject.   With respect to the first alleged left knee injury (pled as one of the second injuries for Fund purposes), the deputy finds that a sequella injury did not qualify for Fund benefits.  The decision also indicates that there was no analysis of the question of whether an earlier right upper extremity injury was a first qualifying injury, and finds that despite the fact that this injury was rated by Dr. Sassman, there was no qualifying first injury.  23 months from date of arbitration decision.

McEachron v. The Home Depot, USA, Inc., No. 5041339 (App. June 8, 2017) - At hearing, claimant was awarded a 40% industrial disablity award and $2000 in penalty benefits (Elliott).  Defendants filed a request for rehearing seeking to adjudicate their credit for TPD benefits.  Because this had not been identified as an issue on the hearing report, the motion for rehearing was denied. Defendants rehearing request on the penalty issue was denied.  Defendants appealed.  On appeal, the commissioner's designee (McGovern) affirms the arbitration decision without further comment.   20 months from date of original arbitration decision.

Nieland v. Neal Station Environmental Partners, No. 5043877 (App. June 7, 2017) - Claimant was awarded 70% industrial disability, medical expenses and costs at the arbitration level (Heitland).   Defendants appeal.  Without additional comment, the commissioner affirms. 17 months from arb. decision to appeal decision.

O'Brien v. Aldi, Inc., No. 5049132 (App. June 1, 2017) - Claimant was found to have a 50% industrial disability at the arbitration hearing and defendants were ordered to pay Dr. Taylor's IME costs (McElderry). Defendants appeal.  Without additional comment, the commissioner affirms.  17 months from arb. decision to appeal decision.  

May 2017

Johnson v. Heartland Specialty Foods, No. 5048608 (App. May 31, 2017) - Claimant was awarded payment of medical expenses following an arbitration decision (Elliott).   On appeal, the commissioner finds that the opinions of claimant's authorized treating psychiatrist (Lee) was more convincing than the opinion of a psychiatrist hired by the defendants (Jennisch).  The commissioner notes that the pre-existing mental health issues of claimant were well known when she was found permanently and totally disabled in 2005.

Gurwell v. Anderson Erickson Dairy, No. 5051907 (App. May 25, 2017) -  Claimant was found to have a 20% functional impairment to the right leg following hearing (Gerrish-Lampe).   The hearing deputy reduced Dr. Stoken's IME charge from $2600 to $1800, finding that the higher charge was unreasonable.  Both parties appeal.  Without additional comment, the decision of the deputy is affirmed.

Dubinovic v. Des Moines Public Schools, Nos. 5042677, 5047783 (App. May 25, 2017)  - The hearing deputy (Heitland) found that claimant failed to establish that he suffered a mental mental injury arising out of and in the course of employment.  The deputy also found that for a separate injury date, claimant had an 8% impairment of the right upper extremity.  Claimant was awarded a 10% industrial disability against the Fund based on the arm injury and an earlier injury to the leg.  Penalty benefits were denied.  Claimant appeals.  The commissioner affirms the arbitration decision without further comment.

Cerwick v. Tyson Fresh Meats, No. 5047247 (App. May 23, 2017) - Claimant appeals from a "take nothing" decision at the arbitration hearing.. (Pals).   The commissioner affirms without further analysis.

Walker v. C.W. Suter Services, No. 5047939 (App. May 18, 2017) - Claimant was awarded a 21% functional impairment of the right lower extremity (McGovern).   Defendants argue on appeal that claimant should not have been awarded more than the 2% rating paid prior to hearing.  Without additional comment, the arbitration decision is affirmed.

Gutieerez v. Merivic, Inc., No. 5030102 (App. May 17, 2017) - In this partial commutation action, the deputy (Heitland) awarded claimant's request for partial commutation.  The commissioner affirms on appeal without additional comment.

Pierce v. Fansteel/Williams Dynamics, No. 5029067 (App. May 11, 2017) - In this review-reopening action, claimant was found not to have demonstrated a physical or economic change of condition (Gerrish-Lampe).   Therefore, review-reopening was denied.  On appeal, the commissioner affirms the decision without further discussion.

Borg v. Rhoden Auto Service Center, No. 5046635 (App. May 10, 2017) - Claimant was found to have demonstrated permanent total disability as a result of a back injury (Elliott).  The deputy concluded that claimant's 2013 back surgery was related to his original 1997 injury and rejected a statute of limitations defense.  The commissioner affirms on all issues with the exception of the PTD finding.  The commissioner reduces the PTD finding to a 90% industrial disability.  At the time of the arbitration hearing, claimant was continuing to work as the Fixed Operations Director for the employer, a position he had held since 1989 and continued to hold after his 1997 accident.  Claimant was working with accommodations and claimant is not to perform "any work which might be difficult."  He had assistants to help with any physical activities.  He continues to have numerous medical appointments which take him away from work.  Claimant believed that if the business were sold or closed his position would be eliminated, but another employee indicated claimant's job would be refilled.  The deputy's finding that claimant was paid wages in lieu of compensation from June 18 to November 20 was affirmed.  Ultimately, the commissioner finds that because claimant continued to perform valuable work for the employer, he was not permanently and totally disabled.  Although claimant presented vocational evidence that claimant was not competitively employable, the testimony that claimant was performing valuable work for the employer was found to be probative regarding claimant's employability.

Metric v. Tyson Fresh Meats, Inc., Nos. 5043968, 5048334 (App. May 9, 2017) - The deputy found that claimant had failed to carry her burden of proving a cumulative injury to her shoulders (Grell).  In the second file, the deputy concluded there was no permanency associated with the stipulated injury.  Without further comment, the commissioner affirms the decision of the deputy.

Bohlman v. Hy-Vee, Inc., No. 5047584 (App. May 4, 2017) - Claimant was awarded nothing following the arbitration hearing (McElderry).  On appeal, the commissioner affirms without further discussion, noting that considerable deference was given to findings of fact which were impacted by credibility findings.

Smothers v. Elite Pork Partnership LLP, No. 5050672 (App. May 3, 2017) - Claimant was found to have suffered a 50% industrial loss as a result of his work injury and was also awarded temporary benefits (Gerrish-Lampe).  On appeal, the commissioner affirms without further discussion, noting that considerable deference was given to findings of fact which were impacted by credibility findings.

Boots v. Menard, Inc., No. 5047709 (App. May 2, 2017) - At hearing, claimant was found to have sustained a permanent aggravation of a pre-existing right shoulder condition and was awarded a 70% industrial disability (Christenson).  The deputy also concluded that apportionment was not appropriate.  Defendants appeal and claimant cross-appeals, claiming permanent total disability.  The commissioner affirms without additional analysis.

Esquivel v. Golden Crisp Premium Foods, No. 5047320 (App. May 1, 2017) -  At hearing, claimant was found not to have met her burden of proof (Pohlman).   The arbitration decision had accepted the opinions of the treating physician, Dr. Sherman, over that of Dr. Sassman.  On appeal, the commissioner designee (Gerrish-Lampe) does the same and claimant takes nothing.  The deputy relies in large part on an FCE that was found to be invalid.  

April 2017

Muhumed v. ABM Services, No. 5046434 (App. April 28, 2017) - At hearing, claimant was found to have demonstrated eligibility for TTD benefits but not permanency for a back injury (Walsh).  On appeal, the decision of the deputy is affirmed by the commissioner's designee (McGovern).  The only point of contention discussed on appeal is whether claimant's counsel sent claimant to Dr. Chen.  Regardless of whether this was the case, the deputy finds that claimant was very poor historian and Chen's opinion was the most convincing.  The deputy's decision is affirmed.

Roland v. Annett Holdings, No. 5050174 (App. April 21, 2017) - This case involves a rate dispute in which defendants challenge the rate found by the deputy following hearing.  The deputy found that claimant's average weekly wage was $1094.53 and excluded three weeks under $700 from the computations.  The commissioner affirmed the exclusion of these three weeks, finding that claimant was ill one week, was having his truck serviced another and not counting the third because it was during Thanksgiving.  The commissioner reversed the finding that sign-on bonuses were to be included, finding that these were irregular bonuses.  The commissioner found that because they were one time payments.  Because the sign on bonus occurs only once according to the commissioner, including it in the weekly wage would not fairly reflect probable future loss of earnings.  Because of this change, the week in which the bonus was paid was also not included, resulting in a slight adjustment of the average weekly wage to $1091.17.

Serrato v. Farmland Foods, Inc., Nos. 5046691, 5046692 (App. April 20, 2017) - At the arbitration hearing, the deputy (McElderry) found a scheduled member injury to the arm and awarded a 9% impairment.  Based on a later injury to her head, back, neck and right elbow, for which she was found permanently and totally disabled.  Claimant based her allegations of permanent total disability on injuries to her right shoulder, low back and CRPS.  The commissioner affirms the PTD find as well as the permanent impairment finding for the first injury.

On the PTD award, the commissioner rejected the conclusions of Dr. Bansal that claimant had frozen shoulder or CRPS, relying on the opinions of the treating physicians.  He agreed with the treating physician that claimant had demonstrated a permanent impairment to the back and found Dr. Bansal's opinion as to the causation of this injury to be convincing.  Claimant was placed back to work, but the work was outside of her restrictions because of repetitive motion.  Claimant had applied to approximately 40 places for work and had three interviews.  She could not use her right arm and was not eligible for sedentary work given the inability to use both arms.  The commissioner concludes that despite the fact that claimant is only 29 years old, she is permanently and totally disabled.

Rens v. Village Northwest Unlimited, No. 5033410 (App. April 17, 2017) - In this case claimant was found to be permanently and totally disabled (McElderry).  Claimant died while the appeal was pending.  The commissioner's delegee (Christianson) affirmed the PTD finding.   Despite the fact that claimant had died, a lengthy decision was issued explaining the reasons for making the PTD finding. Briefly, claimant, who was 73, was found to have a back injury and was given a 20% rating and significant restrictions (15 lbs lifting).  Claimant was also found to have shoulder problems and headaches from her fall.   Claimant lost her job following the injury.  Claimant had alleged neuropsychological problems, but these problems were found not to have arisen out of and in the course of employment.  Claimant had a work search in which she sought over 80 jobs with no success.  Claimant was 73 years old at the time of hearing and had done primarily physical work over her lifetime.

The decision finds that claimant was disabled under an odd lot theory and under an industrial disability analysis.  The decision finds that claimant's mental health issues were not established and reverses the decision to have defendants pay for care for these problems or for medical expenses for claimant's falls at home.  The decision denies claimant payment for the report of a VE because the VE does not specify what part of the billing was for completing the report.  No payment for the VE report is allowed under rule 4.33(6).  The cost for Dr. Kuhnlein's IME was reduced from $5020 to $2510 because Dr. Kuhnlein was given 1862 pages of records to review and there was no showing by claimant "why it was required by Dr. Kuhnlein to abstract nearly 2000 pages of medical records."

Segura v. Kraft Foods Group, Inc., No. 5046348 (App. April 13, 2017) - Claimant was found permanently and totally disabled in this cumulative injury action (Elliott).  On appeal, the commissioner affirms the fact that claimant suffered a compensable cumulative injury, but reverses the PTD finding. The permanency award is reduced to 75%.  The decision reflects a constrained view of what constitutes a permanent total disability.  Claimant had been limited to occasional lifting of ten pounds by one treater, with the need to alternate sitting and standing.  Another treater limited her to 5 pounds floor to waist on a rare basis and 10 pounds on a rare basis from knee to waist.  The employer was unable to accommodate her restrictions.  She had been found disabled by Social Security.  A vocational assessment had identified three jobs that claimant could perform, two of which were part-time and the third of which she tried unsuccessfully.  The arbitration decision noted that the vocational assessment was based on claimant's ability to do sedentary to light work, which was outside of claimant's restrictions.  The decision concludes that because no doctor had indicated that claimant was unable to work and because the vocational assessment had identified sedentary jobs claimant could perform, she could not demonstrate PTD.  The commissioner also found that claimant's work search had been nonexistent.

Daoud v. Quaker Oats Company, No. 5026754 (App. April 12, 2017) -  In a review-reopening decision, claimant was found to have developed laryngeal squamous cell carcinoma of the left vocal fold as a result of his work injury (McGovern).  Defendants were also ordered to pay claimant's medical costs.  On appeal, the commissioner affirms the arbitration decision.  Claimant had an inhalation (burn) injury and his doctor's noted that a small percentage of skin burns were known to develop into squamous cell carcinoma over time.  Dr. Manshadi agreed.  Dr. Friemel performed a records review for defendants and concluded that the manufacturer's prescribing information for albuterol sulfate did not warn of cancer.   She concluded that the medications used to treat claimant's conditions were not a cause of the cancer.  The commissioner noted that claimant did not argue that the medications used for treatment had caused the cancer.  He adopted the opinions of the treater and Dr. Manshadi and affirmed the finding that claimant's cancer had arisen out of and in the course of employment.

Wesley v. Tyson Fresh Meats, No. 5050508, 5049297 (App. April 10, 2017) - Claimant was found to have a compensable back injury for an April 2, 2013 injury (Elliott).  A hip injury from the same date was denied.  Claimant was also found to have a compensable injury to her left shoulder and her cervical spine and was awarded a running healing period.  Defendant was ordered to pay costs.  On appeal, the commissioner affirms the finding that claimant suffered compensable injuries to her back, left shoulder and cervical spine.  He also affirms the award of running healing period for the cervical injury.  He also affirms the denial of benefits for the hip injury.

The only reversal comes with respect to the issue of costs.  Claimant had received two IME's with each of the IME's addressing both injury dates.  The IME's were performed within weeks of one another and were said to be duplicative.  The arbitration decision had awarded payment for both IME's because defendant had retained a physician for each injury.  On appeal, payment for the second IME was denied.

Uthoff v. General Mills, No. 5039569 (App. April 10, 2017) - Claimant was denied benefits  for a knee injury, hip injury, and hearing loss (Grell).  On appeal, the commissioner's designee (Palmer) affirms the decision of the deputy in its entirety without additional analysis.

Vesey v. John Deere Davenport Works, Nos. 5046996, 5046997, 5046998 (App. April 5, 2017) - Claimant appeals this decision in which she was found not to have carried her burden of proving injuries to her bilateral wrists (Grell).   The commissioner affirms.  Defendant had Dr. Kelty testify at hearing and claimant claims prejudice from this because the doctor had not offered a causation opinion before hearing  The appeal decision finds that there was no prejudice from allowing the doctor to testify.

Menadue v. Flynn Company, No. 5048837 (App. April 3, 2017) - Claimant was found to have sustained a 70% disability at hearing (McGovern).  Penalty benefits were awarded.  Both parties appeal, with claimant asserting that he was permanently and totally disabled and defendants arguing that claimant did not sustain a significant permanent impairment and that penalty benefits were wrongfully awarded.  On appeal, the commissioner's designee (Pals) affirms the arbitration decision without additional comment.  

March 2017

Kandah v. American Bldg. Maintenance, No. 5042650 (App. March 31, 2017) - Claimant was found eligible for three days of healing period benefits following hearing, but was denied permanency (Elliott).   Alternate care was denied and defendants were ordered to pay the balance of the IME and costs.  The commissioner affirms the decision in its entirety.  There is some discussion of the deputy's finding that Dr. Troll's opinion was most convincing, but little additional analysis.

Naylor v. Fagen, Inc., No. 5049149 (App. March 28, 2017) - In this matter, the deputy (Walshire) decided a rate dispute and the deputy also found that pursuant to IRS regulations, defendants correctly withheld 28% of a charge for an IME performed by Dr. Bansal (this related to a difference in Tax ID numbers).  Claimant was denied penalty benefits.  The rate dispute essentially involved the question of whether claimant's per diem would count toward rate and this issue was decided in favor of defendant.  On appeal, defendants argue for a lower rate, claimant for a higher rate.  The other issues are not challenged.  The commissioner affirms the decision of the deputy without additional comment.

Snodgrass v. First Student, Inc., No. 5049340 (App. March 27, 2017) -  Claimant suffered an aggravation of a preexisting back injury and was found to be entitled to a 50% industrial disability award (Gerrish-Lampe).  Both parties appeal, with claimant arguing for a permanent total disability. Without additional discussion, the decision of the deputy is affirmed.

Brinck v. Siouxland Mental Health Center, No. 5038759 (App. March 16, 2017) - On review-reopening, the deputy (Pohlman)  concluded that claimant was not eligible for additional benefits following an agreement for settlement.  The deputy concluded that claimant's mental health problems were fully known at the time of the original hearing, and that res judicata barred further litigation of the claim.

The commissioner affirms, again stating that the mental health conditions were known to claimant at the time of the settlement.  The commissioner also finds that the deputy's decision complied with section 17A.16(1) as well as with Burton and McSpadden.  The commissioner also gives deference to the deputy credibility determinations.

Reynolds v. Algona Manor Care Center, No. 5041042 (Remand March 16, 2017) - This case was originally heard by Deputy Grell, who awarded interest on ten weekly payments that were late.  The commissioner affirmed and the case was remanded with respect to the interest due and whether certain travel expenses were due.

Claimant had argued that she could not transport herself to medical appointments and so her husband drove her to those appointments.  Claimant sought reimbursement for her husband's time at a rate of $13.38 per hour.  On remand, the commissioner finds that since there was no reasonable means of transportation between Algona and Mason City, and defendants did not show a more reasonable and economical means of transportation, claimant was entitled to transportation costs based on the hours of work missed by her husband.

With respect to interest, the commissioner finds that no interest was due because defendants had paid benefits at a higher rate ($642.61) rather than the lower rate ($633.30) ordered by the district court.  There is not a great deal of discussion of this issue, simply the indication that because defendants paid at the higher rate, no interest was due.

Young v. Irish Clean, Inc., Nos. 5046966, 5046967 (App. March 13, 2017) - The deputy (Pals) concluded that claimant failed to prove an injury arising out of employment in No. 5046966, and also failed to give appropriate notice.  This claim was dismissed.  In No. 5046967, the deputy concluded that claimant had established an injury, but not eligibility for temporary or permanency benefits. Claimant appeals both claims.  Without additional analysis, the commissioner affirms the decision of the deputy.

Piceno v. Emco Enterprises, No. 5046687 (App. March 9, 2017) - In this case, the deputy (Pohlman) concluded that claimant suffered a 60% industrial disability as a result of an injury to the right shoulder, left shoulder and chronic pain syndrome.  Claimant had also alleged CRPS, but the medical reports were in conflict over whether claimant had CRPS.

The commissioner reverses the 60% award and concludes that claimant did not suffer from CRPS.  The commissioner notes with respect to chronic pain syndrome, "the courts have not adopted the concept that chronic pain alone from a nervous system disorder takes a scheduled member into the body as a whole."  The decision rejects claimant's  allegation of a right shoulder injury, which would make this an industrial case regardless of whether CRPS was established, crediting Dr. Kirkland's opinion over that of Dr. Bansal.  The commissioner finds that  4% upper extremity rating for loss of range of motion is all that is owed and reverses the industrial disability award.

The commissioner also concludes that section 85.39 limits an injured worker to one IME, citing Larson Mfg. v. Thorson, 763 N.W.2d 842 (Iowa 2009), but ignoring contrary language in DART v. Young.

February 2017

Christianson v. Snap-On Tools, No. 5038898 (App. Feb. 28, 2017) - Claimant was awarded PTD benefits following a review-reopening claim (Pohlman).  On appeal, The commissioner notes that defendants argued that claimant lacked motivation to return to the workforce (claimant was on social security disability).  Claimant's treating physician indicated that for his respiratory conditions, he should attempt to work and see whether that created problems for him.  Dr. Hartley, who claimant saw at the request of defendants, indicated he could return to work as long as he was not in an environment with exposure to fumes, smoke, dust or irritant chemicals.  The commissioner reduces the industrial award to 75%, largely because no doctors indicated that claimant could not work and because of his lack of motivation.

Defendant also argued that since the claim was brought under section 85A of the Code, benefits must be apportioned under 85A.7(4).  The commissioner disagrees and finds that none of the doctors found that claimant's respiratory condition was due to anything other than work exposures.  Therefore, the apportionment argument was rejected.

Claimant had also requested that a forced air furnace and central air conditioning system be installed by defendants.  Dr. Perathur, the treating physician, had prescribed a hospital grade air conditioner.  The commissioner finds that installing the air conditioner amounted to beneficial care and ordered payment for the air conditioner.  The commissioner specially indicated that this system offered a more favorable outcome than the "nothing" proposed by defendants.

Devic v. Tyson Fresh Meats, Inc., No. 5047228 (App. Feb. 24, 2017) -  Claimant was awarded a 75% industrial disability following hearing (McGovern).   The defendant appeals the decision.  On appeal, the commissioner affirms the decision of the deputy, finding that there was sufficient analysis of the issues.  The commissioner addresses the issue of whether the deputy erred in failing to separately state findings of fact and conclusions of law under section 17A.16(1) of the IAPA.  The deputy's decision conflated the findings of fact and conclusions of law.  Because the decision was sufficiently detailed to show the part taken by the deputy, the commissioner found that separate findings of fact and conclusions of law were made.  The deputy's process was found sufficient under Catalfo and Terwilliger.  The commissioner nonetheless reviews the record in detail and reaches the same conclusions as the deputy.

Mitchell v. Labor World of Iowa, No. 5048278 (App. Feb. 15, 2017) - Claimant was found to be eligible for a 40% industrial disability at hearing (Pals).  Claimant appealed, arguing that he was permanently and totally disabled.  On appeal, the arbitration decision was affirmed without any further comment and deferring to the deputy's credibility determination.

Malget v. John Deere Dubuque Works, No. 5048441 (App. Feb. 14, 2017) - Claimant was found to be entitled to 250 weeks of benefits, alternate medical care, medical expenses and costs (McElderry).  Following the hearing, defendant filed a motion to enlarge reasoning and conclusions of law.  No response was made to the motion. Defendant appealed and claimant cross-appealed, claiming permanent total disability.

Claimant suffered an L4 fracture after falling off a stepladder.  Claimant did not undergo surgery after the injury and defendant's doctors (Abernathey and Broghammer) indicated that claimant did well after the injury.  Broghammer provided a 21% impairment rating.  A nurse practitioner indicated that he should not walk more than 5-10 minutes at a time.  Dr. Afzal, a pain doctor, later indicated that claimant's ongoing pain was secondary to walking and neurogenic claudication, which he did not relate to eh fracture.  Claimant's IME with Dr. Miller found that claimant had a 23% impairment and limited the time for claimant to be on his feet and limited lifting to 30 pounds knee to waist.  Claimant had been accommodated in his job as an electrician and worked for a few years after the accident, but ultimately left the job.  He received disability benefits from John Deere thereafter and indicated to the John Deere nurse's station that this was not due to the post-work fall.  Claimant was later found eligible for social security disability.  Claimant had another IME with Dr. Hines, who gave a 25% rating and noted that claimant had "complete exhaustion from pain."  Kent Jayne found that claimant could not work.  Defendant's safety manager indicated that claimant would still have been employed by Deere had he not left.

 Ultimately, after considering all of the evidence, the commissioner affirms the 50% industrial disability finding.  He finds that because claimant was still capable of performing work for Deere, he had not lost all earning capacity and was not an odd lot employee, as claimant had argued.

The decision on alternate medical care was reversed because claimant did not notify defendant of his dissatisfaction with the care provided.  The commissioner does not discuss whether the care provided claimant was beneficial to claimant and applicable under the beneficial care rule.  The commissioner finds that Kent Jayne's fee was a compensable cost, as was the costs of the deposition transcript.

Karajic v. Tyson Fresh Meats, No. 5048565 (App. Feb. 14, 2017) - The arbitration decision (Walshire) concluded that although claimant had demonstrated an injury that arose out of employment, there was no permanency associated with the the injury.  On appeal, the deputy's decision is affirmed, without additional comment.  The commissioner gives deference to the deputy's credibility findings.

Painter v. Archer Daniels Midland, No. 5050097 (App. Feb. 10, 2017) - Claimant was awarded PTD benefits following hearing (Pals) and also ordered defendant to pay for medical care and the costs of the arbitration proceeding.  On appeal, the commissioner affirms the PTD award without further comment.

Bahic v. Mercy Medical Center, No. 5047101 (App. Feb. 10, 2017) - Claimant was awarded permanent total disability benefits (Heitland), crediting the opinions of Drs. Woolley, Harris and Bansal over those of Drs. Mendoza and Boarini.  On appeal, the decision of the deputy is reversed in its entirety.

The appeal decision provides a lengthy analysis of the facts and law of the case.  He concludes that greater weight should be given to the opinions of Dr. Mendoza, who was claimant's surgeon, and the opinions of Dr. Boarini, which buttressed those views.  He found that Dr. Mendoza had the unique opportunity to examine claimant on multiple occasions.  This was further supported by the fact that the parties jointly agreed to send claimant to Dr. Mendoza for further evaluation and treatment.   The deputy had rejected Dr. Mendoza's opinions as a legal conclusion, but the commissioner finds that he testified at deposition that claimant's injury was relatively minor and did not give rise to ongoing complaints and the need for surgery. The commissioner finds the opinions of other doctors, who were not surgeons, to be entitled to lesser weight.  He concludes that although Dr. Bansal's opinion is thorough and logical, it is "simply not entitled to as much deference as the opinions offered by the opining surgeons."  Because Mendoza and Boarini concluded that the work injury was not the cause of any permanent impairment, claimant's PTD award was reversed.

Harper v. Lensing dba Lensing Funeral Home, No. 5048496 (App. Feb. 9, 2017) - The deputy (Christenson) concluded that claimant's stipulated injury had not resulted in any additional permanent disability over and above what had previously been paid.  The deputy also denied penalty benefits and certain medical expenses.  On appeal, the commissioner affirms on all of the above issues.  The deputy had provided healing period benefits from September 9, 2013 through October 6, 2013.  On this issue, the commissioner reverses, finding that Dr. Broghammer's opinion that claimant's post injury fall at home was not caused by the work injury.  Dr. Broghammer had concluded that claimant's balance issues were idiopathic and the commissioner adopted this conclusion and reversed the award of temporary benefits.

Spence v. Tyson Fresh Meats, Inc., No. 5046863 (App. Feb. 7, 2017) - At the arbitration hearing, the deputy (Grell) concluded that claimant's injury did not extend beyond the left hand.  22.8 weeks of benefits were awarded and penalty benefits were denied.  Defendant was ordered to pay IME costs.  Without additional comment, the commissioner affirms the decision of the deputy.

Evenson v. Winnebago Industries, No. 5038367 (App. Feb. 3, 2017) - This is a remand decision following a decision by the Supreme Court in Evenson v. Winnebago Industries, 881 N.W.2d 360 (Iowa 2016).   The court remanded the case to the agency for a determination of when healing period commenced and ended, when PPD commenced and for a recalculation of penalty and interest.   The commissioner finds that claimant was due healing period from September 3 - September 19, 2010 and from April 14 through June 14, 2011 following surgery.  PPD benefits commenced on September 20, 2010, then interrupted by the healing period, and beginning again after the second healing period ended.  A 25% penalty was awarded on non-payment of TPD and TTD benefits.  No penalty was imposed on PPD benefits as none had been awarded in the original decision and the Supreme Court did not remand on this issue.

Linares v. Tyson Fresh Meats, No. 5031412 (App. Feb. 3, 2017) - On review-reopening, the deputy (Fitch) finds that claimant failed to demonstrate an economic loss, despite the fact that claimant was working for the employer at the time of the original decision and was let go following that decision because the line on which he had been working was shut down and there was no other job he could do with his restrictions.  On appeal, the commissioner affirms without additional comment.

Fisher v. Ozark Automotive Distributors, No. 5047012, 5047013 (App. Feb. 1, 2017) - At hearing, the deputy (McGovern) concluded that claimant had suffered a left knee injury and awarded 4.4 weeks of benefits.  Claimant was also found to have suffered another injury, this time to the right knee, and was awarded 4.4 weeks of benefits.  IME costs were awarded.  On appeal, the commissioner reverses the decision of the deputy in its entirety.

Claimant suffered from preexisting knee problems but was required to be on her feet throughout the day.  Dr. Vasquez, who first treated claimant, believed that the new problems were work related.  Dr. Jacobson, who treated her later, did not.  Dr. Bansal stated that the injury was work related because of claimants 14 years of work for defendant.  Dr. Clark indicated that there was at most a temporary aggravation of claimant's condition.  Based on Dr. Jacobson and Dr. Clark, the commissioner reverses the decision, largely on the basis that Dr. Clark was a highly experienced orthopaedic surgeon who has treated hundreds of patients with conditions similar to that of claimant.

On the right knee, the analysis is similar, although on this knee Dr. Jacobson had concluded that there was a temporary aggravation, Dr. Fish said it was not and Dr. Clark gave much the same opinion as he had on the left knee.

Because neither Dr. Jacobson nor Dr. Fish were physicians retained by defendants, IME costs were not awarded to claimant.  As with other recent decisions, there is no discussion of whether the report could be paid under 4.33(6).  The commissioner indicates that DART v. Young held that 85.39 must be strictly applied.

Keeran v. Quaker Oats and SIF, No. 5048135 (App. Feb. 1, 2017) - Claimant appeals from a decision (Elliott) in which it was found that claimant failed to carry her burden of proof that she suffered an injury arising out of and in the course of employment.  Without additional comment, the commissioner affirms the decision of the deputy.

January 2017

Coffland v. Walgreens, No. 5040072 (App. Jan. 27, 2017) - Claimant was originally awarded a 60% industrial disability and filed a review reopening action.  In that actions, the deputy awarded claimant an additional 10% industrial disability.  Defendants appeal - claimant does not cross-appeal but urges affirmance of the award.  The commissioner affirms without further analysis.

Trevino v. Tyson Fresh Meats, Inc., Nos. 5046972, 5046973 (App. Jan. 26, 2017) - Claimant was found to have sustained an injury to her left foot and was provided a running healing period.  She was also found to have a knee injury, resulting in a 7% impairment.  Defendants were ordered to pay 60% of Dr. Bansal's IME costs.  The bill had been reduced because it included other conditions not related to this litigation.   The commissioner concludes that the deputy had provided sufficient analysis of the issues and affirms the decision of the deputy.

Ballard v. Bridgestone-Firestone, No. 5044580 (App. Jan. 24, 2017) - Claimant took nothing on this case involving a stipulated injury, as the deputy found that claimant failed to prove a permanent injury.  Claimant's IME was awarded at hearing.  On appeal, the commissioner affirms, without further comment.

Gonzalez v. Berry Plastics Corporation, No. 5042719 (App. Jan. 23, 2017) - At hearing, the deputy concluded that claimant had demonstrated nothing more than a temporary injury to the right upper extremity.  The deputy also found that because defendants had paid for one IME (with Sassman) they did not have to pay for IME with Dan Rogers, Ph.D., for claimant's mental condition.  The commissioner affirms the arbitration hearing without additional comment.

Tobin v. Regional Transit Authority, No. 5046811 (App. Jan. 19, 2017) - Claimant received nothing following her hearing, where she alleged a cumulative trauma injury to the right shoulder.  IME costs were awarded.  Claimant was ordered to pay the costs of the arbitration proceeding.  On appeal, the commissioner affirms, without further comment.  

McLaughlin v. John Deere Des Moines Works, No. 5048714 (App. Jan. 19, 2017) - Claimant was awarded nothing for his alleged shoulder injury following hearing.  Claimant was ordered to pay the costs of the arbitration proceeding  The commissioner affirms in all respects.  As with the Carlile case decided on January 18, the commissioner concludes that IME costs were not appropriate since defendant never obtained an evaluation of permanent impairment.  


Carlile v. Polaris Industries, No. 5047177 (App. Jan. 18, 2017) - At hearing, the deputy concluded that claimant failed to carry her burden of proof and she was awarded nothing.  Claimant was not awarded payment for her IME and was ordered to pay the costs of the arbitration proceeding.  On appeal, the commissioner affirmed.  He did not provide additional analysis of the merits of the case, but noted that the IME costs were properly rejected because defendants had not obtained an evaluation of claimant's permanent impairment.  The award of costs against claimant was also affirmed.


Palacios v. HNI Corporation, No. 5041696, 5046904 (App. Jan. 17, 2017) - In the arbitration decision, the deputy (who the designee (McGovern)  notes was former Deputy Pohlman) concluded that claimant has sustained a new injury to his right shoulder in 2014, following an earlier injury to the left shoulder in 2012. The deputy concluded that this was a new injury despite the fact that he found that claimant's right shoulder work was the result of compensating for her left shoulder restrictions.  Claimant argued that this was not a sequela because the right shoulder injury "was the result of work and thus a separate injury as opposed to a situation where an injury was sustained in the course of employment and then subsequent problems flowed from that, which may have occurred off the job."  The deputy agreed.  Despite this, the rate for the the 2014 injury was found to be the same as the rate for the 2012 injury.  The deputy ordered payment of medical expenses and costs, including Dr. Sassman's IME.  

The appeal deputy notes that the claimant was familiar to her because she had been the deputy in the 2012 left shoulder case.  She notes that claimant's evaluators Dr. Sassman and Dr. Kreiter  ("a well-known medical expert in the field of workers' compensation") had concluded that as a result of the restrictions in the left shoulder, she developed increasing pain in the right shoulder.  She found that this was a sequela injury, finding that the "right shoulder condition flowed from the left shoulder injury."  She dismisses the stand alone right shoulder claim.  She finds that defendants are responsible for care for the right shoulder.

The deputy denies payment for Dr. Sassman's IME, as defendants had not obtained a rating for the right shoulder prior to that IME.  She does not tax the IME as costs under 4.33(6).   As a practical matter, at least from the body of the decision, the fact that this was a sequela as opposed to a new injury does not appear to make any difference.  

Peyton v. Pepsi Beverages Co., No. 5018230 (App. Jan. 12, 2017) - Claimant was initially awarded 25% industrial disability.  Claimant later filed a review reopening petition.  The deputy concluded that claimant suffered a physical change in condition and awarded an additional 20% industrial disability.  On appeal, the commissioner affirms the conclusion that claimant had suffered a change in physical condition and also affirmed the additional 20% award.

Rakanovic v. Tyson Fresh Meats, Inc., No. 5046583 (App. Jan. 6, 2017) - Claimant was awarded healing period and a 30% industrial disability following the arbitration decision.  Claimant was also awarded payment for two IME's.  On appeal, the award is affirmed with the exception of payment for the second IME.  The commissioner indicates that section 85.39 only allows payment for one IME by a provider of claimant's choice. In this case, defendant apparently only provided a single evaluation and claimant obtained two IME's approximately 7 weeks apart.  The commissioner does not discuss 4.33(6), only 85.39 in denying payment for the second IME and a supplement to that IME.  

Ratliff v. Quaker Oats Co., No. 5046704 (App. Jan. 5, 2017) - Claimant had an accepted shoulder injury and was awarded a 50% industrial disability plus penalties for delay in paying permanency and payment of an incorrect rate.  Defendants argue on appeal that the deputy erred in finding that claimant had reached MMI and in awarding industrial disability.  They also challenge the assessment of rate and imposition of penalties.  The commissioner affirms the decision with the exceptions of the calculation of gross weekly wage and penalties on this issue.

 Although the commissioner affirms on most issues, the decision goes into the merits of the case.  With respect to the issue of MMI, defendants assert, based on an opinion of a treating doctor (a signature to a two-page letter), that claimant had not reached MMI.  The commissioner finds that "the major flaw in that position is they have not restarted healing period benefits and claimant has not worked in any capacity since February 13, 2015, due to restrictions caused by the work injury."  Because claimant had rejected another surgery and because claimant had restrictions and was not working, the commissioner concluded that MMI had been achieved.

On gross weekly rate, defendants argued that the deputy improperly included weeks containing holiday pay, wellness pay and both quarterly and annual bonuses.  The commissioner disagreed with the exclusion of a week where claimant did not have overtime pay (claimant customarily worked OT).  He finds that any week of 40 hours or more to be a representative week, regardless of how many other weeks are worked with overtime.  ("if a 40-hour week with no overtime is not a representative week, then it could also be argued that the occasional or solitary week with far more overtime than usual also is not representative and also should be excluded from a rate calculation, which is another argument I specifically reject.").  The commissioner agreed with the exclusion of vacation weeks, but disagreed with the inclusion of holiday and wellness pay.  He agreed with the inclusion of bonuses "despite the lack of any testimony that the bonuses were regular."  This was based on an earlier decision against Quaker, which had specifically included the bonuses.  Gross weekly wage was found to be $1536.10, lower than claimant's assertion of $1616.81, but higher than defendant's calculation of $1493.37.

The commissioner kept a 50% penalty, but reduced the time during which penalty was payable to reflect that penalty was due after claimant lost his job and no benefits were paid.  Penalty was not awarded for payment at the wrong rate, although the discussion in the decision indicates that defendants' rate was clearly incorrect (defendants paid at $580 per week and the commissioner's rate was $872.66).  Penalty was reduced to $3739.79 from $10,693.99.  

December 2016

Nelsen v. City of Ames, No. 5048541 (App. Dec. 30, 2016) - Claimant was awarded a 30% industrial disability for his stipulated shoulder injury.  Penalty of $7000 was awarded for defendants' failure to pay more than the authorized treating physician's functional impairment rating.  The costs of the IME was also awarded.  On appeal, defendants challenge the industrial award and penalty.  Without further comment, the arbitration decision is affirmed.

Lobenstein v. MCI Communications Services, Inc., No. 5043363 (App. Dec. 29, 2016) - Claimant was awarded a 35% industrial disability for an admitted shoulder injury.  Claimant's rate included a $1500 bonus, which was deemed to be a regular bonus by the deputy.  Defendants were ordered to pay the costs of an FCE obtained by claimant.  Defendants appeal.  Without additional analysis, the commissioner affirms the arbitration decision.

Mullins v. Dohrn Transfer Co., No. 5043008 (App. Dec. 29, 2016) - At hearing, claimant was awarded benefits for a 20% injury to the right lower extremity.  The deputy concluded that claimant failed to demonstrate he had suffered injuries to his left knee, low back and hips.  Claimant appeals.  On appeal, the commissioner affirms the decision of the deputy without further comment.

Morrow v. CRST, Inc., No. 5048458, 5048459, 5048460 (App. Dec. 28, 2016) - Claimant was awarded a 10% industrial disability for an injury to her tailbone, as well as a 10% left upper extremity impairment.  Claimant asserted injury to her low back, but this claim was rejected.  Defendant appeals, claimant does not.  The commissioner's delegee (Gerrish-Lampe) affirms the arbitration decision in its entirety.  Defendants argued that claimant's disability was made up or exaggerated for the purposes of the WC case, but the deputy expressly found claimant credible.  The decision also noted that defendant provided light duty work only for workers who came to Iowa and that physical therapy was provided in a hotel room and "her roommates were other women of questionable nature." In light of this, claimant's desire not to receive care in Iowa was seen as understandable and did not impair her credibility.  The deputy noted that this type of light duty work and treatment had been expressly disapproved by the agency and Court of Appeals in Annett Holdings v. Roland, 881 N.W.2d 470 (Iowa Ct. App. 2016).

Egan v. Schebler Company, No. 5047245 (App. Dec. 22, 2016) - Claimant was awarded a 50% industrial disability following hearing.  The employer appeals.  Without additional comment, the commissioner affirms the award.

Minor v. Deere and Co., No. 5048569 (App. Dec. 21, 2016) -  Claimant suffered an injury to his shoulder and was awarded a 60% industrial disability.  Healing period benefits were awarded from August 16, 2012 through September 17, 2014.  On appeal, the industrial disability award was affirmed, as were awards of medical expenses and costs.  On the issue of healing period, the commissioner concludes that claimant reached MMI on February 12, 2014, and that healing period benefits only extended through that date, with permanency commencing on February 13.  The commissioner's decision was based on the treater's determination on February 12 that there was "nothing further to do at this point."  Other than this change, the remainder of the decision was affirmed.

May v. Menards, Inc., No. 5041559 (App. Dec. 20, 2016) - Claimant was awarded a running healing period of benefits following hearing.  The claim was delegated to Deputy Pals and on appeal, the arbitration decision was affirmed.

Engel v. Sunopta Ingredients, Inc., No. 5036000 (App. Dec. 19, 2016) - In 2012, claimant was found to have an injury to his left hand, but not a mental injury.  The arbitration decision was appealed and the commissioner remanded for additional findings regarding the mental injury.  On remand, claimant was found to have a mental injury, but had not reached MMI.  When the case was reheard, claimant was found to have a 30% impairment.  Claimant was also found to be entitled to penalty benefits.  The arbitration decision also found that defendants could not take credit for the left hand injury against the mental health injury.  The decision was affirmed in its entirety by the commissioner.

Grahovic v. Urbandale Community School District, Nos 5034457, 5042871, 5042872, 5042873, 5042874, 5047154 (App. Dec. 13, 2016) -  The deputy concluded that claimant failed to demonstrate injuries for four of the dates in the petition and this is affirmed on appeal.  The deputy also found claimant was not entitled to additional temporary benefits or permanent benefits on two other alleged injuries.  The commissioner also affirms this finding.  The deputy and commissioner also denied payment for a second IME and denied claimant's request that defendants pay costs.  The commissioner affirms on all counts.

Brownfield v. Cargill, Inc., No. 5040483 (App. Dec. 8, 2016) - Claimant was awarded a 60% industrial disability for a low back injury following the arbitration hearing. Defendants appeal and claimant argues the decision should be affirmed.  On appeal, the commissioner affirms the decision without additional comment.

Streit v. Streit Construction, No. 5043612 (App. Dec. 7, 2016) - Claimant was found eligible for healing period, a 60% industrial award, payment for Dr. Kuhnlein's IME and costs following the arbitration hearing.  Defendants challenge the award based on causation and further challenge the awards of temporary and permanent benefits.  On appeal, the commissioner reverses the finding that claimant carried his burden of proof and claimant is awarded nothing.

On the date of the alleged injury (October 12), claimant was picking up cement forms weighing between 40 and 80 pounds.  He did not recall any specific job task that injured his back.  The next morning, he went to the ER with back pain. He was also seen by his chiropractor on October 16 and this note indicate that claimant's symptoms had been present since October 10.   On October 19, claimant was found to have septicemia, associated with MRSA. Claimant reported picking up sores and lesions from abrasions at work.  Dr. Boarini treated claimant for discitis in his spine caused by MRSA and was discharged from the hospital on October 26.  The infectious disease doctor was unable to say that MRSA was caused by work activities.  Dr. Comstock, a physician at the hospital, indicated that it was very unlikely that there was any other cause of transmission of MRSA other than the cuts at work and said "the overwhelming possibility is that his illness arose out of his working conditions.  Boarini found that this was not related to work as did Dr. Hatfield.

Dr. Kuhnlein, who was hired by claimant, found that claimant had open cuts and sores, but did not show that he had actual exposure to MRSA and thus did not find a causal connection.  Most of Dr. Kuhnlein's causal connection discussion is printed in the appeal decision.

The commissioner finds that Drs. Kumar, Boarini, Cunningham and Kuhnlein are to be given greater weight and specifically rejects Dr. Comstock's opinion.  Dr. Kuhnlein was said to have thoroughly addressed the issue of causal connection and found that claimant's condition was not related to workplace exposures.  Since causation was denied, the remainder of the award vanished.  Dr. Kuhnlein's IME costs were not reimbursed since defendants never hired a doctor to comment on permanent disability.  The commissioner rejected the contention that the other doctors had provided impairment ratings simply by finding no causation.

Beecher v. Wal-Mart, No. 5042997 (App. Dec. 2, 2016) - Claimant was awarded PTD by the deputy and defendant appeals.  Claimant argues that he should have been found PTD at an earlier date.  On appeal, the commissioner affirms the PTD award, which was based on a mental injury.  The commissioner found that the treating psychiatrist, who was relied on by the deputy, was to be credited. Claimant's other treaters were also credited.

Defendant argued that the decision of a social security ALJ finding that claimant was not disabled.  The commissioner indicated that although social security decisions are not binding, at times the opinions can be "useful."  The commissioner concluded in this case that "I do not believe there is a job within the State of Iowa which allows a person to remain mostly alone at a work station performing a simple, non-repetitive unchanging task, unrelated to team effort with little supervision, or a 30-40 hour work week."  He concluded that claimant was unemployable.  

Claimant's attempt to change the date on which benefits should begin was rejected as that parties stipulated the commencement date was the date found by the deputy.

November 2016

Moore v. Titan Tire Corp., No. 5044892 (App. Nov. 30, 2016) -  At the arbitration hearing, claimant took nothing, but was awarded $1500 under section 85.39 for reimbursement of a portion of Dr. Bansal's IME fee.  Without additional comment, the arbitration decision was affirmed.

Willform v. Newton Correctional Facility, No. 5031107 (App. Nov. 18, 2016) - Claimant was awarded a 50% industrial disability for a shoulder injury.  Defendant appealed, arguing that claimant's industrial disability.  Claimant, acting pro se, filed a brief which the commissioner interpreted as asking for permanent total disability and payment of the maximum workers' compensation rate, although claimant had not filed a cross appeal.  The commissioner affirmed the 50% award and the rate calculation ($180.04) without additional comment.  

Vargas v. Tyson Foods, No. 5041117, 5041115 (App. Nov. 17, 2016) - Claimant was found to have sustained permanent injuries to his right chest wall and right shoulder, as well as a permanent aggravation of his depression.  A 30% industrial award was made for these injuries.  Claimant was found not to have met his burden of proof with respect to injuries to the left wrist, left shoulder, low back, hearing loss or tinnitus.  Defendants appealed and claimant cross appeals.  With little additional analysis, the commissioner affirms, finding that the deputy did not err in making a 30% industrial award and did not err in finding that claimant was not an odd lot employee.

Jorgensen v. Dr. Pepper Snapple Group, Inc., No. 5038649 (App. Nov. 8, 2016) - This is a remand from the Iowa Court of Appeals.  The court had remanded for purposes of recalculating the figure for "other mileage" reimbursement.  On remand, the agency affirms an award of mileage expenses approximately $450 higher than originally awarded, primarily based on recomputation at correct mileage rates.

Van Sant v. EC Siding & Roofing, No. 5049129 (App. Nov. 7, 2016) - Claimant suffered an injury to his right hand, which was denied by the employer.  Defendant did not answer the petition and default was entered.  The employer was assessed a $1000 fine for not filing a first report.  The employer indicated that the company was not insured for workers' compensation purposes.  Claimant was awarded temporary and permanency benefits following a hearing by affidavit.  

On appeal, defendant asserts that the deputy erred in not holding an evidentiary hearing on the question of damages. The commissioner affirms and rejects the contention that defendant has the right to notice of hearing after a default has been entered.  The commissioner notes that if the defendant had made any attempt to appear prior to default the answer may have been different, but in light of defendant's "egregious conduct," the right to a hearing was waived.

October 2016

Omerhodzic v. Pitney Bowes, No. 5043219 (App. Oct. 28, 2016) - The arbitration decision concluded that claimant had only proved an injury to his right hand and found that claimant failed to prove mental injuries or injuries to his shoulder and neck.  Without additional analysis, the decision of the deputy was affirmed.

Juarez v. Sivyer Steel Corporation, No. 5042685 (App. Oct. 28, 2016) - Following hearing, the deputy ordered payment of 375 weeks of benefits.  On appeal, the case was assigned to Deputy McGovern, following defendants' appeal.  Claimant cross-appealed, arguing that he was permanently and totally disabled.    Without further comment, the arbitration decision was affirmed.

Winn v. Pella Corp., No. 5027519 (App. Oct. 19, 2016) - Claimant was awarded PTD benefits on review reopening at the arbitration decision.  Penalty benefits were awarded as well as costs.  On appeal the commissioner affirms the arbitration decision on review reopening.  The commissioner gives deference to the credibility findings of the deputy.  The commissioner concluded that claimant had not reached MMI at the time of the original hearing, but had reached MMI by the time of the review reopening hearing and likely did not need any treatment other than pain management treatment.  The commissioner also finds that claimant made a reasonable, if unsuccessful, attempt to reenter the workforce.  The commissioner affirmed penalty benefits because claimant had not been notified of the reasons for denial of benefits, which was based on defendant's disagreement with the Supreme Court's Beier Glass decision.  The commissioner notes that although the employer can argue that a case is wrongfully decided, they cannot justifiably withhold benefits while doing so. 

Reis v. Tyson Foods, Inc., No. 5037890 (App. Oct. 19, 2016) - Claimant was awarded nothing following hearing.  Without additional comment, the commissioner affirms the denial of benefits.

Camara v. Manpower Temporary Services, No. 5046676 (App. Oct. 18, 2016) - Claimant was awarded a running healing period at hearing and awarded medical benefits. Defendants argued that the care received by claimant was not authorized and that a running healing period was not appropriate.  Without additional comment, the commissioner affirms the decision.  


Swanson v. A.V. Transportation, Inc., No. 5046934 (App. Oct. 18, 2016) - At hearing, the deputy found that claimant failed to carry his burden of proof and he received nothing.  On appeal, the decision is affirmed without comment.

Schmitz v. Tyson Fresh Meats, Inc., No. 5043359, 5043360 (App. Oct. 17, 2016) - Claimant was awarded nothing at hearing, with the deputy concluding that claimant had not sustained injuries arising out of and in the course of employment.  Without further analysis, the arbitration decision is affirmed.

Levasseur v. New Start Financial, d/b/a Big Deal Auto, No. 5048702 (App. Oct. 13, 2016) - Claimant was found not to have met his burden of proof at the arbitration hearing, but defendants were found liable for the IME performed by Dr. Bansal.  Defendants appealed the award for the costs of the IME but claimant did not cross appeal or contest the dismissal of the case.  Without additional comment, the commissioner affirmed the arbitration decision.  


Sindelar v. University of Iowa, No. 5046829 (App. Oct. 12, 2016) - Claimant was awarded permanent total disability benefits at hearing.  Defendants were denied credit for claimant's TIAA-CREF retirement account, as this was not a disability account.  Fees for a second IME were denied to claimant.  The decision of the deputy was affirmed without additional comment.

Foster v. Nash Finch Co., No. 5045206 (App. Oct. 10, 2016) - Defendants appeal from an award of permanent total disability benefits.  At hearing, claimant was also awarded care for his psychiatric condition and was awarded penalty benefits of $5000.  On appeal, the commissioner affirms the decision of the deputy without discussion.

Raymie v. Schott Family Farms, Nos. 5041943, 5046167, 5046169 (App. Oct. 7, 2016) -  Claimant had two injuries with two different employers.  In this appeal, the employer urges that claimant's healing period ended in August of 2012 because he returned to work and was fired for personal reasons.  Claimant argues that he was not returned to work by Dr. Abernathey until after his termination.  The commissoiner notes that section 85.33(3) applies only if the employer offers suitable work to the employee.  The employer must establish that work was offered to the claimant, that the work was suitable and that claimant intentionally refused the work that was offered.  Here, because claimant was not released to work, suitable work could not feasibly be offered.  The commissioner finds that healing period extended through the date of MMI.  The commissioner also affirms the award of medical benefits against the second of two carriers under section 85.21 of the Code.  The appeal decision also finds that the first carrier overpaid benefits slightly and should be reimbursed by the second carrier, with the second carrier taking credit against permanency.  An award of 15% industrial disability on the first injury and 30% on the second injury is affirmed.  

Ginther v. Second Injury Fund, No. 5045328 (App. Oct. 7, 2016) - The arbitration decision concluded that claimant had failed to prove a first injury for SIF purposes and no award was made against the Fund.   Without discussion, the arbitration decision is affirmed.

Schuster v. Annett Holdings, Inc., No. 5046350 (App. Oct. 6, 2016) - Claimant was awarded a 75% industrial disability at a rate of $530.00 per week following hearing. On appeal, defendant challenged the industrial award and rate.  Without additional analysis, the commissioner affirmed the arbitration decision.

Dunlap v. Action Warehouse, No. 5026306 (App. Oct. 5, 2006) - Claimant was originally awarded a running healing period, sought rehearing claiming that permanency was ripe for determination and was awarded PTD benefits on rehearing.  The deputy also found that claimant's bilateral upper extremity complaints were causally related to the work injury and ordered treatment for these complaints.  Defendants appeal.

On appeal, the commissioner finds that claimant is permanently and totally disabled, affirming the decision of the deputy. Defendants had also argued that the failure to accept vocational services (from Susan McBroom) demonstrated that claimant was not motivated to work.  The commissioner concludes that despite this refusal, "the evidence of claimant's inability to re-enter the work force as demonstrated in the records is substantial and persuasive."  The commissoiner found that the evidence was substantial that claimant is not capable of obtaining and/or maintaining substantial gainful employment as a result of the work injuries.  The commissioner also concluded that claimant's bilateral upper extremity complaints were related to the original work injury.  The decision of the deputy was affirmed in its entirety.

Hodzic v. Tyson Fresh Meats, No. 5028889 (App. Oct. 5, 2016) - Claimant was awarded a partial commutation at hearing. On appeal, the commissioner reverses the award of a partial commutation.  The reasons for the reversal were inaccuracies in the evidence supporting the partial commutation, discrepancies in the report of claimant's expert (regarding taxation and costs of an annuity), the fact that claimant was a poor money manager and the finding of defendants' expert that a partial commutation would be detrimental to claimant.  The appeal decision finds that claimant failed to carry her burden and reverses the award of a partial commutation.

September 2016

Mitchell v. Perkins & Marie Callender's, LLC, No. 5041461 (App. Sept. 29, 2016) - At hearing, claimant was found to have filed her claim within the statute of limitations under the discovery rule.  She was also found to have provided notice under section 85.23.  Claimant was found to be in a running healing period.  On appeal, Deputy Lampe, as the commissioner's designee, affirmed the findings that claimant's injury arose in the course of her employment, found that claimant filed within the statute of limitations period and gave appropriate notice, and was in a running healing period.  The appeal decision concluded that claimant's work as a waitress aggravated her underlying neck, shoulder and carpal tunnel conditions. The decision relied on Dr. Segal's common-sense notion that a waitress is engaged in lifting and carrying in excess of what a normal person would do in a day and rejected Dr. Tearse's views to the contrary.  The decision was affirmed in its entirety.

Kreisel v. Curly's, No. 5044230 (App. Sept. 23, 2016) - Claimant had three injuries.  At hearing, he was provided a 20% industrial award for an 8/22/11 injury and a 60% combined award for a 12/29/12 injury.  The deputy found that claimant's 12/22/12 and 9/12/14 neck injury arose out of his work, but concluded that he had not reached MMI for the neck.  The deputy also denied temporary benefits because claimant refused suitable work.  On appeal, the commissioner affirms the findings of the deputy on all these points.  The only change in the appeal decision is that defendants were provided credit for the 56 weeks of benefits paid for the 8/22/11 injury and 39 weeks of benefits for the 12/29/12 injury.  For some reason, the deputy had not provided credit for the weeks paid for the 12/29/12 injury.  Applying the principles of section 85.34(7), credit was provided to defendants for benefits that had been previously paid.

Strait v. M.C. Lint, Inc., No. 5041734 (App. Sept. 19, 2016) - On appeal, the commissioner concludes that claimant failed to carry his burden of proving that he suffered a work-related injury, affirming the decision of the deputy.  The commissioner finds, however, that claimant IME and vocational costs were payable.  Defendants had obtained an evaluation of permanent impairment by a doctor they retained and thus Dr. Bansal's IME was payable.  The commissioner also finds that a report by a vocational rehabilitation expert constituted a practitioner's report (citing Stallman v. Rockwell Collins, No. 5027023 (Arb. Dec. 16, 2009) and therefore claimant was eligible for reimbursement for this expense.  

Evans v. Dept. of Transportation, No. 5046657 (App. Sept. 16, 2016) - At hearing, claimant was awarded an 18% impairment rating to the right leg.  The commissioner's designee (Pals)  finds Dr. Bansal's opinions to be persuasive, adopting the position of the deputy.  The decision was affirmed in full.  

Peterson v. Employment Plus, No. 5041079 (App. Sept. 15, 2016) - At hearing, the deputy concluded that claimant had failed to establish that he had suffered a permanent physical injury or a temporary or permanent mental injury.  Claimant's medical expenses for the physical injury were awarded, as were the costs of the IME.  Without further analysis, the commissioner affirms the arbitration decision.

Engren v. Cummins Filtration, No. 5046650 (App. Sept. 14, 2016) - This case involved three cases that were consolidated.  The hearing deputy rejected the contention that the employer did not have notice of the injury (a cumulative injury to multiple body parts) and awarded 300 weeks of benefits. On appeal, the commissioner's designee (McGovern) affirms the award of 300 weeks of benefits.  On the notice question, the hearing deputy had found that the manifestation date was July 12, 2013.  On appeal, Deputy McGovern concluded that this was the appropriate manifestation date, but found that notice was not given within 90 days of that date.  This deficiency was cured, however, by the fact that the employer had actual notice of the injury. Accordingly, the arbitration decision was affirmed.

Pahl v. J.C. Builders, Inc., No. 5046608 (App. Sept. 14, 2016) - The deputy concluded that claimant had established a scheduled member impairment to the hand in the amount of 36% of the hand. Ongoing care for the hand was also awarded.  The commissioner reduces the award from 36% to 30%,   The reason for the change was that the rating doctor found that claimant had a 27% upper extremity rating, which converts to a 30% rating of the hand rather than to the 36% rating found by the deputy.  

Villasana v. Team Staffing Solutions, No. 5046335 (App. Sept. 8, 2016) - Claimant was awarded a 60% industrial disability following hearing.  The commissioner's designee (Grell) affirms the 60% award, relying largely on the hearing deputy's "advantageous position to evaluate claimant's testimony in person."   With respect to healing period benefits, the appeal finds that claimant, at one point, returned to work, which ended the healing period.  The commissioner finds that any benefits paid during this time would be credited as permanency benefits under Evenson v. Winnebago Industries, 881 N.W.2d 360 (Iowa 2016).  Claimant was later found to have reentered a healing period, and was entitled to healing period benefits during this period of time (February 25, 2013 - May 13, 2014).  

Ruden v. Wells Enterprises, No. 5046180 (App. Sept. 7, 2016) - This claim involved penalty only and claimant was denied penalty benefits following a hearing.  The merits of the penalty claim are not discussed in the appeal decision and the denial of penalty is affirmed.

Schnetter v. Rolfe Care Center, No. 5039675 (App Sept. 6, 2016) - Claimant was found to have sustained an 80% industrial disability.  On appeal, defendants' claim industrial disability of 20% and claimant alleges PTD.  The case was delegated to Deputy Christenson for decision.  On appeal, the award of 80% was affirmed.  Claimant had surgery and facet injections.  An FCE found claimant gave inconsistent effort and the treating physician went along with light-medium restrictions as found in the FCE.  The treater, Dr. Shumaker and Dr. Igram both provided 20% impairment ratings.  Bansal provided 22% rating, with 10 pound restrictions and no sitting for more than 30 minutes or standing and walking for more than 15 minutes.  Claimant was found eligible for SS.  Vocational testimony identified jobs claimant could perform (Oppedal).  Claimant had not looked for work.  The deputy finds that claimant cannot return to her past work as a CNA and that some of the jobs identified by the vocational expert are unrealistic.  Based on these factors, claimant's age (51) and the restrictions in the FCE, the deputy finds the 80% industrial disability is appropriate.

Finnestad v. Lowe's Home Centers, No. 5045273 (App. Sept. 1, 2016) - Claimant was awarded a 30% industrial disability and penalty of $2750 was awarded.  Claimant appeals, arguing that the award undervalued her claim.  Defendants urged affirmance of the appeal.  Without further analysis, the 30% award is affirmed.

August 2016

Pritchett v. Humility of Mary Shelter, Inc., No. 5046962 (App. Aug. 31, 2016) - This was another case where claimant was found not to have met her burden of proving an injury arising out of and in the course of employment.  Defendants were ordered to reimburse claimant for the IME.  The arbitration decision was affirmed without comment.

Stull v. Kinze Mfg., No. 5046819 (App. Aug. 30, 2016) - At hearing, claimant was found not to have carried his burden of proof that he sustained a permanent injury.  Medical expenses were awarded through November 28, 2011, but not thereafter.  Without further analysis, the deputy's decision was affirmed.

Guerra v. Whirlpool, No. 5042235 (App. Aug. 30, 2016) - Claimant was found not to have demonstrated a permanent impairment following hearing.  Without further elaboration, the commissioner affirms the denial of benefits and also affirms the award of payment for an IME.

Mosley v. Rathbun Regional Water Assn and SIF, No. 5043216 (App. Aug. 30, 2016) -  At hearing, claimant was found to have an injury to his knee, with a sequela injury to his hip.  Because the injury extended into the hip, the Fund was dismissed from the claim.  Claimant was awarded a running healing period.  On appeal, the commissioner affirms the finding that claimant suffered a sequela hip injury, and running healing period, but finds that it was premature to dismiss the Fund because this claim was not ripe for adjudication.

With respect to the sequela injury, Dr. Meyer and Dr. Sunderman concluded that claimant's hip injury was not causally related to the work injury.  Dr. Kuhnlein, who noted that the gait changes related to the knee injury lit up the right hip symptoms, was found to be more persuasive than the treating physicians.  Both Dr. Meyer and his PA had found that claimant had a gait change following his knee injury and the commissioner found this significant in concluding that the knee injury lit up claimant's underlying problems with his hip.  Because the permanency issue was not ripe for adjudication, it was premature to dismiss the Fund.   The commissioner finds that because claimant needed a total knee replacement, claimant had not reached MMI, so a running healing period was appropriate.  Penalty benefits were denied because defendants had a reasonable basis for denying benefits based on the opinions of Dr. Meyer and Dr. Sunderman.

Mills v. Houghton Mifflin Harcourt, No. 5038673 (App. Aug. 29, 2016) - At the arbitration hearing, claimant was found not to have met his burden of proving that he suffered a temporary or permanent impairment.  Penalty benefits were also denied.  On appeal, without additional comment, the arbitration decision was affirmed.

Carr v. New York and Co., No. 5045323 (App. Aug. 26, 2016) - Claimant was awarded a 50% industrial disability at hearing, and defendants' going and coming rule was rejected.  Penalty benefits were denied.  On appeal, the commissioner affirms all issues, but awards a penalty of $22,500 (approximately a 25% penalty).

The penalty award centered around the fact that claimant had been told by her manager to work in the Davenport store on the day of the injury (claimant was based in West Des Moines).  She did so, and while leaving the parking lot where the the Davenport store was located, she was involved in a motor vehicle accident.  Noting the "special errand" exception to the going and coming rule as discussed in Quaker Oats v. Ciha, the commissioner found that there was no reasonable basis for the denial of benefits.  The commissioner noted that there was no evidence that claimant had deviated from the special errand at the time of the accident.  According to the commissioner, "a cursory review of the legal authority that applies to the undisputed facts of this case would have indicated this is a compensable claim."  

In determining the amount of the penalty, the commissioner noted that claimant had been substantially injured as a result of the denial of benefits, which caused claimant "undue hardship."  Because the insurer was not shown to have engaged in "a regular pattern of improperly denying claims or withholding weekly benefits," the penalty was limited to approximately 25%.  


Borkovec v. Dish Network Corp., No. 5042514 (App. Aug. 24, 2016) - Claimant was awarded PTD, medical expenses and an IME following hearing. The decision on appeal was delegated to Deputy Pals.  The deputy modified the decision to find that claimant was entitled to a running healing period rather than a PTD award because claimant had not reached maximum medical improvement. The appeal decision affirmed the deputy on issues of casual connection, payment of medical expenses and calculation of the correct rate.  The deputy on appeal concluded that claimant's opioid dependency had not reached maximum medical improvement and awarded a running healing period.


Orris v. College Community School District, No. 5025576 (App. Aug. 24, 2016) - Claimant was initially awarded a 30% industrial award for right elbow, right shoulder and neck injuries, which led to chronic pain.  On review reopening, claimant alleged that her fibromyalgia (which was found related in the initial proceeding) had worsened.  The deputy on review reopening found worsening but concluded this was not related to the original injury and denied additional benefits.  Without additional analysis, the commissioner affirms the decision of the deputy.  


Starr v. Bee Line Company, No. 5046190 (App. Aug. 22, 2016) -  Claimant was awarded a 40% industrial disability, as well as payment of medical expenses, the IME fee and costs.  On appeal, the arbitration decision is affirmed without additional analysis.

Emmerth v. Linweld, No. 5034410 (App. Aug. 22, 2016) - Claimant was originally awarded a 30% industrial disability and filed a review reopening petition.  On review-reopening, the deputy found permanent total disability.  Claimant had been fired by his employer two weeks after the arbitration decision was filed.  Following the initial decision, claimant produced documents showing additional restrictions, was found to be disabled by Social Security and produced a vocational report showing that he was not employable.  On appeal, the commissioner finds that there had been no worsening of claimant's physical condition.  The commissioner, however, finds that claimant's loss of employment constituted a significant economic change.  He did not find the vocational expert's report to be convincing of permanent total disability given the fact that claimant's restrictions were in the 20 pound range, not the less than sedentary range assumed by the VE.  Claimant was found to have a 60% industrial disability, without a great deal of discussion.

Tahirovic v. Metokote Corp., No. 5039492 (App. Aug. 16, 2016) - Following hearing, claimant was awarded healing period and a 60% industrial disability.  Appeals were filed by both parties, with defendants arguing that claimant had not demonstrated that the injury arose out of and in the course of employment and claimant arguing that he was permanently and totally disabled.  The arbitration decision is affirmed on appeal, without additional discussion.   

Brownrigg v. Gits Mfg. Co., No. 5042388 (App. Aug. 11, 2016) - Claimant alleged that she had sustained a work injury caused by long-term exposure to chemicals at Gits.  The deputy concluded that claimant had not met her burden of proof and awarded no permanency or temporary benefits.  On appeal, the commissioner reverses the decision of the deputy, awards healing period and a 75% industrial disability.

Claimant was exposed to hexavalent chromium as a part of her worked at Gits and developed lung cancer.  There was no question about claimant's exposures only about causation for the cancer.  Defendants argued that claimant's smoking was the cause of cancer.  Dr. Bansal found that the cumulative exposure history was a substantial contributing factor to the development of claimant's cancer.  He cited studies demonstrating that exposures to hexavalent chromium had been demonstrated to cause squamous cell carcinoma.  Dr. Kline from UIHC attributed the lung cancer to the chromium exposures as well.  Dr. Fuortes at UIHC also found that the exposures were a significant contributing factor.  

Although the commissioner agrees that Drs. Kline and Bansal understated claimant's smoking history, he found their testimony to be insightful and credible.  Claimant's treating doctors, who did not link the work exposures to cancer, "appear[ed] not to have had a good grasp on claimant's work duties or the chemical exposures at Gits.  Dr. Thieman indicated he had no knowledge of any exposure claimant had and Dr. Behrens discussed radon and asbestos exposure, which were not at issue in the case.  

Although claimant's vocational expert opined that claimant had lost all access to competitive full time employment, the decision finds that claimant is not permanently and totally disabled because she is capable of performing some forms of sedentary work and had made no attempt to find other work.  A 75% industrial award was found appropriate.  The commissioner also finds that claimant's last date of employment was the appropriate injury date.  Since she was not diagnosed with lung cancer until November 21, and reported the injury in December, notice was timely.  Moreover, Gits was found to be knowledgeable about the existence and dangers of hexavalent chromium.  

The commissioner also awards penalty benefits since defendants did not investigate or convey the reason for denial of benefits for nine months after the injury was reported.  A 25% penalty was awarded.


Collins v. Interstate Brands, No. 5038550 (App. Aug. 10, 2016) - This case was delegated to Deputy McGovern for a decision on appeal.  At hearing, claimant had been awarded healing period, 81.4 weeks of permanency benefits, medical bills and costs, but not the expenses associated with Dr. Bansal's IME.  The arbitration decision is affirmed in its entirety without a great deal of analysis.  

Guevara v. Tyson Foods, Inc., No. 5045221 (App.  Aug. 5, 2016) - Following the hearing, claimant was found to have carried her burden of proof that she had an injury to her left wrist and her left shoulder.  Permanency was awarded for the wrist, but not the shoulder because claimant had not reached MMI.  On appeal, the commissioner finds that claimant's left shoulder injury was temporary and that there was no permanent impairment.  Defendants' doctor (Dr. Lee) found that claimant had 0% permanency in the shoulder.  Another doctor, Dr. Clem, found that claimant had no work restrictions due to the shoulder injury.  Claimant saw Dr. Kreiter for an IME and he found a significant left shoulder pathology.   He recommended further treatment.  The commissioner concluded that claimant had not noted pain in her shoulder when she saw the orthopaedist.  Relying on Dr. Lee, the commissioner found that claimant had not proved permanency with respect to the shoulder.  

Bursell v. Lynch Livestock, Inc., No. 5032265 (App. Aug. 2, 2016) - This is a remand decision delegated to Deputy Christenson.  The Court of Appeals remanded the case to the agency for determination of whether claimant met his burden of proof in an alternate medical care proceeding. The commissioner had originally found that the treatment requested by the claimant was reasonable and awarded alternate medical care.  The Court of Appeals found that claimant had the burden of demonstrating that the care provided/offered by the employer was "unreasonable" and remanded to the commissioner for a decision based on the correct standard.  On remand the deputy noted that although the authorized provider had recommended a lumbar sympathectomy, another authorized treater, Dr. Kelly (who was to perform the surgery) recommended that a full course of treatment through another doctor's office should be provided prior to the sympathectomy, which was a last course of action.  The deputy noted that although the agency would usually grant a request for alternate medical care when the defendant was interfering with the course of treatment, this case was an anomaly because another authorized treater, Dr. Kelly, had recommended further conservative treatment before the sympathectomy was to be performed.  Accordingly, the petition for alternate medical care was denied.

Brandenburg v. Broadlawns Medical Center, No. 5042783 (App. Aug. 1, 2016) - At the arbitration hearing, the deputy found that claimant's two shoulder injuries did not give rise to permanent disability.  Temporary benefits and costs were awarded.  Alternate medical care was denied.  On appeal, the commissioner affirms the findings of the deputy on the issue of permanency, concludes that claimant is not entitled to additional healing period benefits beyond those awarded by the deputy and affirms the denial of alternate medical care.  Dr. Schulte concluded that claimant's massive rotator cuff tear was not due to claimant's work injury but to non-work related causes, which he attributed to prior trauma or impingement.  Dr. Stoken (without reviewing any films according to the decision) found that there was permanency from the shoulder injuries.  The commissioner finds Dr. Schulte more convincing that Dr. Stoken.  On alternate medical care, the commissioner finds that because there were only temporary aggravations, future care would not be related to a work injury.

July 2016

Thompson v. Lehigh Portland Cement Co., No. 5046383 (App. July 28, 2016) - The arbitration decision found that claimant failed to demonstrate an industrial disability.  On appeal, Deputy Lampe, as designee, affirms.  Because claimant's IME physician, Dr. Kuhnlein, based  his opinion on claimant's explanations of how his back pain came about and claimant was ultimately found not credible, Dr. Kuhnlein's report was not credited.  The appeal decision also rejected claimant's argument that payment by the employer for care for an industrial disability (in this case the back) gave rise to a presumption that the injury was work related.  

Clemens v. GKN Armstrong Wheels, No. 5040151, 5040152 (App. July 26, 2016) - Claimant was found to have sustained a permanent impairment to his right upper extremity at hearing.  A left hand and thumb injury was denied.  The deputy awarded claimant a 100% impairment of the right arm.  Penalty benefits were denied.  The commissioner affirms the award without additional analysis.

Wiese v. Griffin Pipe, No. 5017102 (App. July 21, 2016) - Claimant was denied additional benefits on review-reopening.  On appeal, the commissioner reverses and awards an additional 25% industrial disability. Following a 25% agreement for settlement, claimant continued to need additional care for his back injury.  Dr. Bansal found that claimant's impairment rating had increased by 5% since the time of the AGFS.  The commissioner concludes that there had been a significant change in circumstances and awards an additional 50% industrial disability.  However, because claimant had an earlier compensable shoulder injury for which he had been paid 25%, the award was reduced by this amount.

Rodriguez v. Iowa Select Farms, No. 5045077 (App. July 19, 2016) - In this claim, the claimant alleged that he had suffered a cumulative back claim and the deputy affirmed the decision.  On appeal, the commissioner affirmed the deputy's dismissal of the claim without comment.

Myers v. R.R. Donnelley & Sons, No. 5043505 (App. July 18, 2016) - Claimant was denied benefits because he should have known the nature, seriousness and probable compensable consequences of his back injury on March 3, 2011, but did not file his petition until April of 2013.  On appeal, the commissioner finds that the manifestation date was in February of 2011, which meant that claimant's claim was outside the statute of limitations.  Claimant left his work in 2012, and this was the date used by claimant as his date of injury.  

The commissioner finds that claimant knew that his work activities were aggravating his condition in 2009.  Claimant had work restrictions because of his back injury in 2009.  The commissioner found that claimant knew that his back condition was related to work and would affect his work in February of 2011.   The decision does not appear to address the fact that claimant continued to work for R.R.Donnelley and thus his last injurious exposure was in 2012.  Claimant's claim was dismissed.

Allen v. Tyson Fresh Meats, No. 5049025 (App. July 5, 2016) - Claimant was awarded a 10% industrial award for a back and right knee injury.  Penalty benefits were denied.  The decision is affirmed on appeal without additional analysis.

June 2016


Hubbartt v. John Deere Ottumwa Works, Nos. 5048226, 5048227 (App. June 28, 2016) - In this appeal, the commissioner affirms a 40% disability award and a penalty award of 20 weeks of benefits without additional analysis.  The commissioner partially reverses an award of costs, where the deputy had awarded the unpaid balance of the IME costs.  The commissioner finds that under DART v. Young, there must first be an evaluation of permanent disability by a physician retained by the employer for an IME to be paid.  Because defendant had not had claimant evaluated, IME costs were not appropriate.  It is not clear whether costs were also asserted under 876 IAC 4.33(6).  

http://decisions.iowaworkforce.org/workerscomp/2016/June/Hubbartt,Richard-5048226a.pdf

Keosakoun v. Maryann's Specialty Foods, No. 5048377 (App. June 27, 2016) -  This case was delegated to Deputy McGovern by the commissioner.  On appeal the deputy affirms the denial of permanency benefits, finding that there was no record in the evidence that pallets had fallen on claimant other than the report of the IME physician, Dr. Bansal.  Benefits were denied.  

http://decisions.iowaworkforce.org/workerscomp/2016/June/Keosakoun,Som-5048377a.pdf

Merrick v. Crestridge, Inc., No. 5041869 (App. June 23, 2016) - The commissioner affirms a finding that claimant had not demonstrated permanent disability from her work injury without additional analysis.

Shryock v. M.H. Eby, No. 5046715 (App. June 22, 2016) - Claimant was awarded 60% industrial disability as well as penalty benefits of $5,897.75.  Without additional analysis, the commissioner affirms the hearing decision.  

Nelson v. City of Sioux City, No. 5041068 (App. June 15, 2016) - Claimant was found to have a 60% industrial disability following hearing and the deputy concluded that claimant had not violated a safety rule, as defendant had alleged.  Defendants appeal and claimant cross-appeals, urging permanent total disability.  The arbitration decision is affirmed in its entirety, with no additional analysis.

Branch v. MJ Leasing of Hortonville, LLC, No. 5040959 (App. June 10, 2016) - In this appeal, the commissioner reduces claimant's industrial disability award from 55 to 40% despite the fact that claimant had a 56% loss of earnings as a result of his work injury.  Claimant also demonstrated learning disabilities that operated as a hindrance to future employment.  The reduction in industrial disability was justified on the basis that claimant was still (through a functional capacity evaluation) found to be able to lift 87 pounds and demonstrated the ability to lift and carry 75 pounds in his pre-employment physical for his post-injury job.  In weighing the industrial disability factors, the commissioner decided that a 40% industrial disability was appropriate.  The commissioner deferred to the deputy on the issue of claimant's continuing right arm symptoms and found that continuing care for the right arm was justified.

http://decisions.iowaworkforce.org/workerscomp/2016/June/Branch,Travis-5040959a.pdf

Lanuza v. Tyson Foods, No. 5043100, 5043101 (App.  June 3, 2016) - Claimant was awarded 20% industrial disability, but denied payment for an emergency room evaluation, as this was not related to employment.  Claimant appeals, urging that the 20% award was too low and that the emergency room visit should have been covered.  The arbitration award is affirmed in its entirety on appeal.

http://decisions.iowaworkforce.org/workerscomp/2016/June/Lanuza,Lizbeth-5043100a.pdf

Conell v. Nestle USA, No. 5036585 (App. June 2, 2016) - The commissioner affirms the arbitration award finding that claimant was permanently and totally disabled, providing a $1500 penalty, past medical expenses and alternate medical care for claimant's neck injury.  The commissioner overturned the award of a passive prosthetic hand (claimant had been provided with a mechanical prosthetic hand).  The commissioner interpreted section 85.27(1) to indicate that "one set" of prosthetic devices was to be provided.  The commissioner found that the statutory words would be meaningless if claimant could obtain more than one prosthetic device for his left hand.  The commissioner also found that PTD benefits (as opposed to healing period benefits) were to be awarded from the time that claimant last worked.  

http://decisions.iowaworkforce.org/workerscomp/2016/June/Conell,Allen-5036585a.pdf.

Shukers v. Quaker Oats Company, No. 5046483 (App. June 2, 2016) -   On appeal, the commissioner affirms the decision of the deputy finding that claimant was entitled to running healing period for her knee injury and authorizes Dr. Lange to provide treatment.  

http://decisions.iowaworkforce.org/workerscomp/2016/June/Shukers,William-5046483a.pdf.

May 2016


McCaune v. City of Des Moines. No. 5046466 (App. May 27, 2016) - The commissioner affirms an award of permanent total disability in this action.  The appeal decision provides deference to the deputy on the issue of the amount of time claimant drove his car or city vehicles on the time.  The commissioner concludes that while claimant may still be able to perform the intellectural and office work aspects of his job, he cannot perform the physical aspects of the job.  The commissioner finds that although medical opinions drafted by counsel and affirmed by the doctor do not have as much weight as an oral opinion or written opinion drafted by the doctor, they still have weight, particularly when there is no contradictory medical evidence.  Citing Baker v. Bridgestone Firestone, 872 N.W.2d 672 (Iowa 2015), the commissioner notes that for both traumatic and cumulative work injuries, the discovery rule applies.  The permanent total disability is affirmed, based on the opinions of the treating physician and the absence of contrary medical evidence.

http://decisions.iowaworkforce.org/workerscomp/2016/May/McCaune,Mark-5046466a.pdf


Bass v. Vieth Construction Corp., No. 5044438 (App. May 27, 2016) - In this appeal, the commissioner affirmed a 50% industrial disability award.  The commissioner also found that the deputy erred in failing to award healing period and medical expenses, in awarding the claimant the cost of a second IME and in awarding the full costs of Dr. Abernathey's deposition testimony.  On the issue of temporary benefits, the commissioner found that since claimant never returned to work after a layoff, he was entitled to temporary benefits until he was found to be at MMI.  Medical expenses related to the work injury were awarded.  Costs of a second IME were not awarded, premised on DART v. Young.  The costs of Dr. Abernathey's deposition were limited to $150, as prescribed in 876 IAC 4.33(5).  

http://decisions.iowaworkforce.org/workerscomp/2016/May/Bass,Rick-5044438a.pdf

Siefkin v. U.S. Securities Associates, No. 5046351 (App. May 27, 2016) - In this appeal, the 30% industrial award at hearing level was reduced to 15%.  The case involved chemical exposures.  Dr. Hartley had found that despite claimant's smoking, without absence of a pre-existing lung disease, her reversible airflow obstruction was attributable to her work-related exposure to chemicals.  Treating physicians found that claimant had exercise induced asthma.  Claimant resigned her employment to take different employment where there would be no possibility of further chemical exposures.  The industrial award is reduced, primarily because claimant continues to be able to smoke a pack of cigarettes a day, indicating that her asthma is not as significant as claimed.  She has taken classes and there appear to be no limitation on her abilities to attain her career goal as a result of the injury.

http://decisions.iowaworkforce.org/workerscomp/2016/May/Siefkin,Angel-5046351a.pdf


Perla v. Tyson Fresh Foods, No. 5046388 (App. May 23, 2016) - At hearing, claimant was awarded a running healing period for aggravation of a pre-existing rheumatoid arthritis condition and an injury to the shoulder.  The deputy also allowed the submission of a late report by a treating physician.  On appeal, the decision of the deputy is affirmed without additional analysis.

http://decisions.iowaworkforce.org/workerscomp/2016/May/Perla,Yolanda-5046388a.pdf

Blasdell v. Linnhaven, No. 5044236 (App. May 20, 2016) - This appeal was delegated to Deputy McGovern.  At hearing, claimant was awarded permanent total disability benefits, medical expenses and a small penalty ($1547).  On appeal, the PTD award, which was based on what appears to be a physical/mental claim, was affirmed. Although claimant argued for a larger penalty, the penalty award of the deputy was also affirmed.

http://decisions.iowaworkforce.org/workerscomp/2016/May/Blasdell,Heather-5044236a.pdf

Lisk v. Cemen Tech, Inc., No. 5044888 (App. May 17, 2016) -  Claimant was awarded a 15% industrial disability following hearing.  On appeal, defendants challenge whether the injury arose out of employment, the extent of disability and the rate.  Without additional analysis, the arbitration decision is affirmed.  

http://decisions.iowaworkforce.org/workerscomp/2016/May/Lisk,Mathew-5044888a.pdf

Burns v. PCA Paperboard Packaging, No. 5045187 (App. May 16, 2016) - Claimant was found to have carried his burden of proving that his injury arose out of and in the course of employment and was awarded a 30% industrial disability.  These findings were affirmed on appeal.  Defendants argued that because of the onset of dementia, claimant's testimony should not be given credence.  The commissioner concludes that claimant's memory difficulties, while significant, are rooted in a medical condition and do not represent a credibility issue.  The 30% industrial award was affirmed based on the report of the only expert testimony in the record.

http://decisions.iowaworkforce.org/workerscomp/2016/May/Burns,William-5045187a.pdf.

Hall v. Apple Creek Kennel, No. 5044786 (App. May 12, 2016) - The arbitration decision awarded permanent total disability benefits, medical expenses and ongoing medical treatment.  In addition, payment for the remainder of Dr. Bansal's IME was awarded.  On appeal, the commissioner affirms the decision with additional analysis.  Defendants asserted that claimant had no work-related functional impairment due to the lack of objective evidence of pain based on Dr. McMain's views. The commissioner concluded, based on the opinion of Dr. Tearse, that "pain without evidence of a structural problems can be as disabling as pain with evidence of structural problems."  Dr. Tearse had testified, in his deposition, that a person can experience pain without an objective basis for that pain and so long as that person is credible, the complaints of pain are to be believed.  The commissioner affirmed the deputy's conclusion that claimant was credible.

The commissioner stated the following concerning objective evidence:  

"Defendants suggest that subjective pain without objective evidence of the cause is not compensable, but cite no authority for that proposition.  Iowa's case law is otherwise.  Pain, or other subjective complaints, even without objective findings, can establish permanent impairment or permanent disability [citations omitted]  When an injury causes severe pain requiring medical treatment and there is sufficient evidence to find that the pain is disabling, the disabling pain is compensable and treated as an unscheduled injury and this includes phantom pain from loss of a limb."

The commissioner reviewed the bills in detail and concluded that some bills were related to the injury and others were not.  The commissioner awards the full costs of Dr. Bansal's IME.  He finds that the $2495.00 fee was reasonable because the agency had many times in the past approved similar fee amounts from Dr. Bansal.  He cautions, however, that "it would be wise for counsel to obtain more detailed statements from Dr. Bansal in the future showing his customary hourly fee and the amount of time spent to perform the examination and the amount of time preparing his report."

Dicus v. Windows America, No. 5042736 (App. May 6, 2016) - In this appeal, the commissioner's designee (Gerrish-Lampe) affirmed the arbitration decision concluding that claimant was an employee, adopting claimant's rate and awarding a running healing period.  The appeal decision cited Nelson v. Cities Service Oil Co., 146 N.W.2d 261, 265 (Iowa 1967) and concluded that since claimant was provided with the windows to install by defendants and had taxes taken out of his check, among other things, he was an employee.  Defendant apparently produced no evidence to rebut claimant's medical witnesses concerning his shoulder injury, and thus the running healing period was affirmed.

http://decisions.iowaworkforce.org/workerscomp/2016/May/Dicus,David-5042736a.pdf

April 2016

Lopez v. Ameristar Exteriors, No. 5043104 (App. April 28, 2016) - Claimant was found to be an employer following the arbitration hearing and was awarded a running healing period from August 29, 2011.  Claimant's gross weekly wage was found to be $760 and his rate to be $262.49.  On appeal, the only change made by the commissioner was to change the rate to $505.58, since this appeared to be a scrivener's error.  

Donahe v. Heartland Communications, No. 5042580 (App. April 20, 2016) - The deputy awarded claimant a 45% industrial disability award based on injuries to the shoulders and neck.  On appeal, the commissioner concludes that the shoulder injuries did not arise out of work, finding that Dr. Bansal did not have a correct appreciation of claimant's actual work activities.  He affirms Bansal's conclusion that the neck injury arose out of work because there was no countervailing evidence.  He also affirms the 45% industrial disability award. 

http://decisions.iowaworkforce.org/workerscomp/2016/April/Donahe,Jody-5042580a.pdf.

McGuire v. Norwood Promotional Products, No. 5035776 (App. April 20, 2016) - The deputy ruled on review-reopening that claimant was permanently and totally disabled.  Claimant had earlier settled her claim for a 25% industrial disability.  Following the settlement, claimant developed additional problems in her shoulder, began to have depressive conditions and her restrictions were changed from 50 pounds lifting to 3 pounds lifting.  Susan McBroom performed a vocational evaluation and concluded that claimant was capable of performing various light and sedentary jobs.  Claimant applied for the jobs mentioned by Ms. McBroom, but was not offered a job.  On appeal, the commissioner's designee (Christensen)  rejects the opinions of McBroom and affirms the permanent total disability award.

http://decisions.iowaworkforce.org/workerscomp/2016/April/McGuire,Darcy-5035776a.pdf.

Crouch v. Swine Graphics Enterprises, No. 5038270 (App. April 19, 2016) - Delegation to Deputy Pals, who finds that 80% industrial award and penalty award were appropriate, without discussion.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Crouch,Carl-5038270a.pdf.

McDowell v. Villa Del Sol, No. 5046009 (App. April 15, 2016) - The deputy found a 60% industrial disability at a rate of $317.95.  On appeal, the defendants challenged the industrial disability award and rate.  Without discussion, the commissioner affirms.

http://decisions.iowaworkforce.org/workerscomp/2016/April/McDowell,David-5046009a.pdf.

Ahmetovic v. Tyson Fresh Meats, No. 5045319, 5045320 (App. April 14, 2016) -  Claimant was awarded a 25% industrial disability, but concluded claimant was not entitled to payment of requested medical expenses, but was entitled to future medical expenses.  Without discussion, the decision of the deputy was affirmed.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Ahmetovic,Mehmed-5045319a.pdf.

Baker v. Bridgestone/Firestone, Nos. 5040732, 5040733 (Remand April 13, 2016) - This case is a remand decision from the Supreme Court decision in Baker v. Bridgestone/Firestone, 872 N.W.2d 672 (Iowa 2015), which held that the discovery rule applied to cases involving a "singular event," i.e. a traumatic injury.  On remand, the commissioner concluded that the discovery rule applied in this case and that claimant did not appreciate the effect of the injury on his employment until a date later than the date of the traumatic injury, thereby making the petition timely.  An additional 10% in industrial benefits was awarded.  The commissioner also noted that when an employer's physician returns a claimant to work without restriction, this does not mean that there is no industrial loss.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Baker,Bruce-5040732k.pdf

Green v. North Central Iowa Regional Solid Waste Agency, No. 5042527 (App. April 11, 2016) - The Arbitration decision found that claimant failed to carry her burden of proving that she had sustained a permanent disability as a result of her stipulated work injury and denied further temporary and penalty benefits.  The commissioner affirms the case in its entirety. Claimant was struck by a large door and had a momentary loss of consciousness.  Dr. Piper conducted an initial evaluation but did not recommend further treatment. Shortly thereafter, claimant was seen by Dr. Rondinelli and Dr. Mooney.  She was referred to Dr. Kitchell for a neurology evaluation and thence to Andrikopoulos for a neuropscyhologica evaluation.  This resulted in the usual diagnosis of malingering.  Dr. Mooney returned claimant to work as did Dr. Kitchell and indicated she had no permanent impairment

Dr. Sassman rated claimant for head trauma, cervicalgia, shoulder pain and headaches with  a total body as a whole rating of 20%.  She limited claimant to lifting, pushing, pulling and carrying to no more than 20 pounds.  Dr. Rogers issued a neuropsychological report finding that claimant sustained a significant brain injury, but Dr. Kitchell concluded she did not.  Claimant's vocational evidence was that there was no stable labor market for her services (Kent Jayne).

The commissioner affirms, finding that Drs. Rondinelli, Thoreson, Mooney, Kitchell and Andrikopoulos had all noted symptom magnification.  Dr. Kitchell was found to have 35 years of treating closed head injuries and was given the most credibility.  The report of claimant's family physician was given no weight.  Dr. Sassman's report on the non-brain injury aspects of the case was rejected because claimant was found to have magnified her symptoms.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Green,Alevia-5042527a.pdf

Hemminger v. Lennox Industries, Inc., No. 5040913 (App. April 7, 2016) - This claim was delegated to Deputy McGovern. On appeal, Deputy McGovern concurred with the finding that claimant had not demonstrated a compensable injury that arose out of and in the course of his employment. The deputy credited Drs. Mooney and Sneller over Dr. Kirkland.  Additionally, the finding that claimant did not provide timely notification under section 85.23 of the Code was affirmed.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Hemminger,Daniel-5040913a.pdf

Gann v. Fassino Enterprises, No. 5044499 (App. April 7, 2016) - The appeal decision in this case was delegated to Deputy McGovern.  The deputy concluded that claimant's injury arose out of her employment.  Defendants argued on appeal that claimant's tripping over a can or jug used to prop open a door was an idiopathic injury.  Citing Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007), the appeal decision affirmed the deputy's decision.  The hearing deputy awarded a 35% industrial disability for claimant's hip injury and this was affirmed on appeal.  The appeal decision supplies additional explanation for how the determination was reached, as the "arbitration decision provided little information regarding how the finding of industrial disability was reached." The appeal decision also awarded all medical expenses to claimant.  Claimant's spouse had insurance and there had been a settlement of this amount for approximately $27,000, although the total bills were $59,000.  Because defendants had not contributed to the insurance plan, they were not entitled to credit under Midwest Ambulance v. Ruud, 754 N.W.2d 860, 867 (Iowa 2008).   The deputy reversed the award for Dr. Bansal's IME because the IME was conducted prior to a rating from defendants' doctor.  Citing DART v. Young, 867 N.W.2d 839 (Iowa 2015).  The arbitration decision was affirmed with respect to denial of penalty because there was a good faith dispute as to the idiopathic fall defense.

http://decisions.iowaworkforce.org/workerscomp/2016/April/Gann,Connie-5044499a.pdf


Bonorden v. Ziegler, Inc., No. 5045352 (App. April 4, 2016) - Claimant had an admitted right knee injury and a disputed left knee injury alleged to be a sequela of the original injury.  The deputy concluded that the injury was a sequela and rejected defendants' notice argument.  Without a great deal of additional comment, the commissioner affirmed the decision of the deputy, noting that the opinion of Dr. Wolfe concerning the left knee was unrebutted.
http://decisions.iowaworkforce.org/workerscomp/2016/April/Bonorden,Bruce-5045352a.pdf

March 2016


Kincaid v. Iowa DOT, No. 5044860 (App.  March 30, 2016) - On appeal, the commissioner affirms a 25% award, a $5000 penalty award and payment for the entirety of Dr. Bansal's IME, despite the fact that there had been no rating of claimant's shoulder at the time of the IME.  Because defendant's did not demonstrate how the IME costs should be divided, payment of the entire IME was appropriate.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Kincaid,Kenneth-5044860a.pdf

Schmitt v. Flynn Ready Mix Concrete, No. 5039932 (App. March 30, 2016) - This case was delegated to Deputy Pals.  On appeal, the deputy affirms a permanent total disability award.  Defendants challenged claimant's credibility but on appeal the deputy defers to the findings of the hearing deputy.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Schmitt,%20Steven-5039932a.pdf

Pettengill v. American Blue Ribbon Holdings, No. 5038352 (Remand March 29, 2016) - The Court of Appeals directed the agency to award penalty benefits against defendants for terminating TTD benefits without reasonable cause or excuse.  The agency was also directed to determine whether additional TTD benefits were owed.  Claimant was receiving TTD benefits, which were stopped without an Auxier/86.13 notice.  Benefits were terminated on April 19, 2011 and an investigation was not initiated until November 29, 2011.  A causation opinion from Dr. Broghammer was not received until February 15, 2012,  Claimant did not know of the report until February 25, and a 30 day notice should have been initiated at that time.  Therefore, TTD benefits should have been extended until March 25, 2012.  A penalty of 25% was imposed on the TTD benefits.  The commissioner indicated that there was no showing that either of the defendants had previously been subject to penalty.  He also stated that the "inability to use a subsequent investigation to justify a prior denial of benefits 'is a new concept to the Iowa Workers' compensation system.'"  Because of these considerations, the commissioner concluded that a 50% penalty was not justified.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Pettengill,Brandee-5038352k.pdf

Aalbers v. Pioneer Hi-Bred International, No. 5042600 (App. March 24, 2016) - The Arbitration Decision awarded permanent total disability under 85.34(2)(s). On appeal, the commissioner affirms the award of permanent total disability, but clarifies that under (2)(s) the injuries do not have to occur simultaneously, but simply arise of a single accident.  In claimant's case, an injury to the right arm caused claimant to have to use her left arm more vigorously, thereby causing injury to the left arm.  This sequela injury was sufficient to provide liability under (2)(s).  

The commissioner also refuses to allow the submission of a doctor's report provided to defendants 25 days prior to hearing, finding that the "narrow exception to [the rule requiring service 30 days or more] involves the untimely service of a treating physician's report under Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595 (Iowa 1997).  Compare this ruling to Bos v. Climate Engineers, below.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Aalbers.Kimberley-5042600a.pdf

Calhoun v. Wells Manufacturing, LP, No. 5049004 (App. March 23, 2016) - Claimant was found not to have met her burden of demonstrating an injury that arose out of and in the course of her employment.  Reimbursement for the IME was also denied.  Without additional analysis, the decision of the deputy was affirmed.  The commissioner did note that the deputy based some of his findings on claimant's lack of credibility and the commissioner provided deference to those findings.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Calhoun,Vivian-5049004a.pdf.

Bos v. Climate Engineers, Inc., No. 5044761 (App. March 22, 2016) - Claimant was awarded a 40% industrial award following hearing and both parties appealed.  The decision is affirmed on appeal in its entirety.  Claimant argued on appeal that he was permanently and totally disabled as a result of his shoulder injury and submitted the vocational report of Kent Jayne, who concluded claimant was precluded from the competitive labor market.  Defendants submitted a late vocational report from James Carroll, who indicated that since claimant was limited to medium work, there was work that would be within his restrictions.  

Defendants had responded to a request for admissions that claimant's work injury should be compensated pursuant to section 85.34(3) of the Code.  The deputy ignored this stipulation.  Defendants argue on appeal that they were not agreeing to PTD, but only that claimant sustained an injury to the body as a whole.  The commissioner finds that in a civil case, defendants' admission would be binding, but concludes that because the hearing report indicated that PTD was disputed, the admission was not binding in this case.  The commissioner notes that claimant did not raise the admissions issue until his post-hearing brief and cites a number of cases concerning the use of the hearing report to determine the issues presented.

Defendants did not identify their vocational expert in their answers to interrogatories or witness list.   In addition, the report was not offered until the time of hearing.  The deputy found that there was no prejudice from the late-admitted report.  The commissioner concludes that claimant had not established prejudice and affirms the ruling of the deputy.  The commissioner concludes that claimant's VE was entitled to little weight because the report did not mention some of claimant's past relevant work.  He credited defendants' VE, despite its late submission, because it did mention claimant's work. Because claimant was young (33) and limited to medium work, the commissioner found a 40% industrial finding appropriate.

The commissioner found that claimant had not established entitlement to benefits under the odd lot doctrine and had never made a prima facie case.  A penalty award of $1250 was affirmed.  

Salomen Nunez v. CLM Pallet Recycling, No. 5043946 (App. March 18, 2016) - This case was delegated by the commissioner to Deputy Pals for an appeal decision.  On appeal, the deputy affirms a 40% industrial disability award, but reverses a six week healing period because there was no evidence a doctor took claimant off work during that period of time.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Nunez,Jesus-5043946a.pdf

Libic v. Tyson Fresh Meats, Inc., No. 5048097 (App.  March 17, 2016) - Claimant was found not to have met her burden to demonstrate that her injury arose out of and in the course of employment.  On appeal, the commissioner affirms the decision, without comment.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Libic,Senada-5048097a.pdf

Ament v. Quaker Oats Co., No. 5044299, 5044298 (App. March 17, 2016) - The award at the arbitration hearing was a 6% impairment to the arm and industrial disability benefits of 275 weeks due to claimant's tinnitus/hearing loss.  The commissioner affirms the award to the arm, but reduces the tinnitus award to 75 weeks of benefits.  Claimant had noted at hearing that had planned to retire in approximately March of 2017 and "did not indicate at the time of the hearing that he was altering or speeding up his retirement plans due to carpal tunnel or tinnitus."  On the carpal tunnel injury, the commissioner credits the opinion of Dr. Manshadi over that of Dr. Gorsche.  With respect to tinnitus, the commissioner concludes that the manifestation date for tinnitus was appropriately set as the day Dr. Tyler issued his opinion finding that the tinnitus was related to his work.  Both Dr. Tyler and Dr. Hansen related tinnitus to claimant's work, but assigned different values, with Tyler being 17% and Hansen 1%.  The commissioner reads the Guides as allowing a maximum of 5% to the hearing loss claim, as opposed to 5% body as a whole.  The commissioner criticizes Dr. Tyler's use of his own system, which has not been validated.  Although Tyler's conclusions are not of "no value," the commissioner finds Dr. Hansen's opinions are more logical and persuasive.  He reduces the value of the hearing loss/tinnitus claim to 15%.  Interestingly, the commissioner addresses the hearing loss issue despite the fact that claimant continued to work for the employer in the same department.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Ament,Steven-5044299a.pdf

Smith v. Monsanto Co., No. 5041252 (App. March 14, 2016) - Claimant was awarded 250 weeks of benefits in the arbitration hearing.  Both claimant and defendants appealed, although claimant subsequently withdrew his appeal.  The commissioner's delegee (Gerrish-Lampe) affirms.  Claimant had been returned to work without restrictions following a work-related shoulder injury and later left his employment because of a back injury.  The commissioner finds that Dr. Cooper, the treating physician, "encouraged the claimant to work up to full activity but did not find at the time of claimant's discharge that he could work at full capacity" and concludes that claimant had a 50% industrial disability.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Smith,%20Kenneth-5041252A.pdf.

Hassan v. Residential Alternatives, No. 5040067 (App. March 8, 2016) -  In the original arbitration decision in this case, the deputy concluded that claimant had not proven that his injury arose out of and in the course of employment.  The commissioner remanded to the deputy for further consideration.  On remand the deputy found that although claimant had established an injury, there were no temporary or permanent disability as a result of the injury. An 85.39 exam was denied and costs were taxed to defendants.  On appeal, the commissioner affirms the decision of the deputy, without any additional analysis.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Hassan,Amal-5040067a.pdf.

Herman v. Johnson Sanitary Products, No. 5042825 (App.  March 3, 2016) - At hearing, the deputy had awarded a running healing period, alternate medical care and penalty benefits.  Both parties indicate that the deputy should have addressed the issue of permanency, with defendants saying there was no permanency and claimant indicating he was permanently and totally disabled.  Claimant had suffered a left shoulder injury and his treating physician, Dr. Potthoff, indicated that permanent restrictions were needed for the injury.  He adopted the restrictions contained in an FCE.  Dr. Bansal found that claimant was not at MMI because Dr. Potthoff indicated that a shoulder replacement surgery would be needed in the future, although Dr. Potthoff did not relate this to the work injury.  Dr. Bansal prescribed 10 pound lifting restrictions and no lifting overhead and these restrictions were adopted by the commissioner.  

The commissioner concludes that claimant had reached MMI, as Dr. Potthoff had asserted.  He also found that the shoulder replacement surgery was related to the work injury.  On permanency, the commissioner noted that claimant had been discharged by the employer and had been unable to find work.  He was found eligible for social security disability benefits.  There was no report from a vocational expert stating claimant was unemployable, and this is used to conclude that claimant had a 75% loss of earning capacity.  On future medical benefits, defendants were directed to provide another evaluation of the shoulder with another physician, such as Dr. Nepola.  The penalty award of $500.00 was affirmed.  http://decisions.iowaworkforce.org/workerscomp/2016/March/Herman,Roger-5042825a.pdf

February 2016


Muniz v. Tyson Fresh Meats, No. 5043492 (App. Feb. 25, 2016) - Without comment, the commissioner affirms a 40% industrial award.  

Merritt v. Menards, No. 5043790 (App. Feb. 22, 2016) -   Claimant was awarded 45% industrial disability following hearing.  Defendants challenge causation, extent, rate and medical mileage.  Without discussion, the arbitration decision is affirmed. 

Burkle v. The Weitz Company, No. 5042468 (App. Feb. 18, 2016) - The deputy awarded a running healing period for a shoulder injury, finding that claimant's injury arose out of and in the course of employment.  Without discussion, this finding is affirmed.

Alvarez v. Iowa Bridge and Culvert, Nos. 5040527, 5044156 (App. Feb. 18, 2016) - The deputy awarded claimant a running healing period and $4725 in penalty benefits.  The commissioner credited Dr. Manshadi's opinions as to causation and affirmed the award of running healing period.  He rejects the argument that because claimant was able to do part time work, he could do work similar to the heavy work he had been doing at the time of his injury.  He also rejects a contention that claimant's undocumented status provides a legal impediment to work that supersedes the medical inability to return to work, and cites Staff Management v. Jiminez, 839 N.W.2d 640 (Iowa 2013).  Penalty benefits were affirmed as defendants did not contemporaneously convey a reason for denial of benefits to claimant.  Medical care was also awarded.

Mlady v. Searle Petroleum, Inc., No. 5024091 (App. Feb. 17, 2016) - This is a case that has been up and down through the agency and courts, and a recapitulation of these decisions takes up the first 13 pages of the decision.  The primary issue at this point  regards defendants petition for review reopening.  There were major issues regarding claimant's credibility and his doctor-prescribed use (and addiction to) narcotic medications.  The deputy was affirmed with respect to the ruling that although claimant's condition changed, he was not employable and was thus PTD.  The deputy was also affirmed on the award of medical expenses.  

The commissioner finds that FCE's cannot be taxed as costs under rule 4.33(6), which is contrary to agency precedent on this issue, as physical therapists have been found to be practitioners.  He taxes the cost of a vocational evaluation.  

Lopez v. Cargill Meat Solutions Corp., No. 5055004, 5055005 (App. Feb. 12, 2016) - At hearing, claimant was provided with no recovery for his second injury (to the back) and was awarded 45 weeks of benefits for his bilateral upper extremity injury under section 85.34(2)(s).  On appeal, the commissioner affirms the denial of benefits for the first injury and reduces claimant's weeks of benefits from 45 to 35 weeks on the (2)(s) claim.  The commissioner rejects the employer's argument that claimant's (2)(s) claim was barred under section 85.16.  There was evidence presented that claimant and another individual had engaged in a fight at work, and both parties were terminated from employment following that fight.  The commissioner finds that Dr. Paulson, the treater, is to be preferred to the IME physician, Dr. Bergman and reduces the award because claimant had an earlier 2% injury to the hand, which was incorporated in Dr. Paulson's rating.  On the back condition, Dr. Stoken's opinion was rejected because she did not have a full and complete medical history, particularly the MRI results.  With respect to the back injury the commissioner rejected defendant's arguments that claimant willfully intended to injure himself or another, was intoxicated, but concluded that claimant had engaged in horseplay and thus was not eligible for benefits for the injuries arising out of that horseplay.

Claimant also made an allegation that he was denied due process in the hearing, but the commissioner concludes that he failed to make any showing of prejudice or provided a legal analysis as to why his due process right had been violated.

Griffin v. Double S Truck Line, Inc., No. 5044225 (App. Feb. 5, 2016) - Claimant had been awarded industrial disability of 25% following the arbitration hearing.  On appeal, the commissioner reverses and awards claimant nothing.  Claimant suffered a slip and fall and the question on appeal was whether this was a cause of a loss of vision acuity. For the commissioner, the claim ultimately turned on claimant's credibility and he concluded that "ultimately, my findings of fact and conclusions are not based in any significant degree upon the testimony of claimant because I find claimant's testimony is not credible."  The commissioner disagreed with the decision of the deputy that claimant had demonstrated a loss of visual acuity and awards claimant nothing.

Clark v. GC Woodworking, No. 5042245 (App. Feb. 3, 2016) - This appeal was delegated to Deputy McGovern because of a conflict.  Claimant was award a 30% industrial disability and claims that the industrial disability should have been at least 60%.  The deputy, after considering vocational testimony and functional capacity evaluations, affirms the 30% award.

Gascon v. Stellar Management Group, Inc., No. 5028124 (App. Feb. 2, 2006) - Mr. Gascon had entered into a partial commutation in which defendants agreed to be responsible for all causally related medical expenses for life (claimant had a below the elbow amputation).  Claimant later needed a new prosthetic limb also requested mental health care.  The deputy ordered such treatment.  On appeal, defendants urge that the mental health care was not related to the work injury.  Claimant had been diagnosed with PTSD and depression following his original injury.  The commissioner affirms, finding the treating provider, a psychiatrist, was to be preferred to the opinions of a physical medicine doctor on this issue.

January 2016

Eaton v. Hussmann Corporation, No. 5049027 (App. Jan. 26, 2016) - The deputy found claimant's neck injury was related to work and awarded a running healing period benefits and medical expenses. Penalty benefits were denied.  Claimant was found to have waived this argument because no cross-appeal was filed, although the commissioner addressed the argument and would have affirmed.   Giving considerable deference to the deputy's credibility findings, the commissioner affirms the running healing period award.

Heefner v. Second Injury Fund, No. 5048258 (App. Jan. 22, 2016) - In this case, the commissioner affirmed a ruling on summary judgment dismissing a claim against the Second Injury Fund.  The commissioner concluded that a March 2012 agreement for settlement precluded claimant from using the payments from the settlement to extend the statute of limitations for a new claim against the employer for a 2005 work injury, and by analogy against the Fund.  Because there was not a great deal of discussion of the underlying facts, it is difficult to determine the nature of claimant's claim against the Fund.  


Fountain v. Bridgestone-Firestone, No. 5045402, 5045403 (App. Jan. 20, 2016) - The deputy concluded that claimant had a back injury attributable to his work and awarded 15% industrial disability.   Without comment, the commissioner affirms the award.  

Giddens v. Donaldson Co., No. 5044622 (App. Jan. 20, 2016) - In this case, the arbitration decision concluded that claimant had suffered a 60% industrial disability, concluded that claimant was entitled to payment of medical expenses and ordered alternate medical care with Dr. Tearse.  Although the case is framed as a question of whether the award of a 60% ID was correct, the commissioner concludes that it was premature to award industrial disability because claimant had not reached MMI.   Claimant's IME physician (Neiman) had recommended followup treatment for a shoulder injury.   The commissioner noted that no doctor had concluded that claimant had reached MMI.  The ID award was reversed, with permanent disability to be established when claimant reached MMI.

Stewart v. Warren Properties, No. 5031204 (Remand Dec. Jan. 20, 2016) - This is a remand decision from the decision of the Supreme Court in Warren Properties v. Stewart, 864 N.W.2d 307 (Iowa 2015).  The remand was to determine the apportionment of benefits for a claimant who was found by the Supreme Court not to have reentered the marketplace following an initial injury.  In the decision of the Court, the Court suggested a formula for determining such claims, and the commissioner's designee (Christenson) follows this formula.  The formula takes the earning capacity the claimant had at the time of the second injury (in this case 60% because of an agreement for settlement for 40% ID) and divides that number into the difference between the the ID after the first injury (40%) and the second injury (50%), which was 10% in Ms. Stewart's case, to reach the ID amount.  In this case, 10%/60% = 16.67%.  16.67% of 500 weeks equals 83.3 weeks of benefits and this was the award provided.  

Luetger v. Menard's, No. 5045116 (App. Jan. 15, 2016) -  At the arbitration level, claimant was awarded permanent total disability and a regular bonus was found includable in claimant's rate.  Defendants asserted the claim was a scheduled member claim rather than unscheduled and also argued that the bonus should not be included.  Claimant was found to have CRPS of the lower leg and provided a 39% impairment rating by the surgeon who implanted his spinal cord stimulator, Dr. Reddy.  Dr. Boulden found a 20% rating and also found CRPS.  An FCE indicated that claimant could lift 50 pounds occasionally.  Dr. Reddy provided a 30 pound weight restriction.  At the time of hearing, claimant was still working in a job where he primarily sat at a desk and sold products to clients.

Defendants argued that CRPS was a scheduled member injury and this finding was rejected by the commissioner.  The commissioner concludes the claimant had a whole body injury, "based on the diagnosis of CRPS and the permanently placed spinal cord stimulatory in his back with leads placed in his thoracic spine."  The commissioner rejects claimant's vocational expert, finding that claimant was not limited to sedentary work as she found in her report.  The commissioner finds that claimant is in the light to medium work category.  The commissioner finds that claimant was accommodated in his work environment, but the accommodations were not substantial and did not case light on claimant's ability to earn a living in the competitive marketplace.  Industrial disability was reduced from permanent total to 80%.  On the rate issue, the commissioner found the bonus was paid for 12 years in a row and was a regular bonus.  Claimant's rate calculation was adopted.  


Cruickshank v. Prime Nursing & Rehabilitation, No. 5042829, 5042830 (App. Jan. 15, 2016) - The deputy concluded that claimant was entitled to TPD and PPD payments and awarded 20% ID.  On appeal, commissioner's designee (Christenson) concluded that TPD was not appropriate since supervisor testified that claimant had been offered 40 hours a week, but wished to take less to attend some non-work related events for her daughter.  Claimant did not rebut this testimony.  On the ID award, although the doctors found that claimant had a loss of range of motion and an 8% impairment rating to the shoulder, a surveillance video showing claimant playing softball suggested that there was no loss of range of motion or loss of strength.  On the basis of this evidence, the ID award was reduced to 5%.

Smajlovic v. Catholic Health Initiatives, No. 5043476 (App. Jan. 8, 2016) - Claimant was awarded nothing at hearing, with the deputy concluding that claimant had failed to sustain her burden that she suffered permanent injury arising out of and in the course of employment.  The commissioner adopts the decision of the deputy in its entirety and claimant takes nothing.

Welander v. Mauer-Johnson-Earnest Funeral Home, Inc., No. 5043235 (App. Jan. 8, 2016) - The deputy concluded that claimant had sustained a 50% industrial loss and claimant contends on appeal that claimant was permanently and totally disabled.  The commissioner affirms on appeal.  The commissioner noted that although the arbitration decision was only four pages long, it had considered the applicable factors under McSpadden.   The commissioner credits defendants' vocational expert (Wolford) over claimant's expert (Newman) and found that claimant had skills to transfer to other work, as evidenced by her prior college degree.

Hedberg v. JBS Swift & Co., No. 5036162 (Remand Jan. 8, 2016) - In this decision, which reached the commissioner following remand from the Court of Appeals,  The court had remanded for redetermination of claimant's industrial loss in light of the full evidentiary record.  The commissioner concluded that claimant had not established that his mental health injury was caused by his work injury.  He credits Lana Sellner's vocational report over that of Carma Mitchell and concludes there was work at Swift that claimant could perform.  Dr. Neff's opinion on restrictions is credited over that of Dr. Bansal.  Although the commissioner indicates that claimant suffered a significant industrial loss as a result of his shoulder injury, he did not find permanent total disability, as the original agency decision had found.    An 80% industrial loss was found by the commissioner.  

Garcia v. Farmland Foods, No. 5045244 (App. Jan. 7, 2016) - The arbitration decision concluded that claimant had suffered a permanent total disability under section 85.34(2)(s) based on a bilateral injury to the arms she had suffered while working for Farmland.  The commissioner affirms the decision of the deputy, finding that although the record was confusing on the issue of claimant's restrictions, an orthopaedist who claimant saw on referral from her family doctor had the most credible restrictions (5 lbs.).  Based on these restrictions and the fact that claimant was an uneducated, largely illiterate,  unskilled worker she was permanently and totally disabled.  The commissioner also rejected defendants' argument that claimant's hip and back problems (non work-related) were the real cause for her disabilty.

Roling v. Four Oaks Family & Children Services, No. 5043498 (App. Jan. 6, 2016) - Claimant was found to have a 30% industrial loss by the deputy.  Both parties appealed the extent of the award and defendant appealed a rate issue.  Based on the fact that no doctor provided restrictions that would limit claimant's work in retail (her former job), the commissioner's designee (Christenson) reduced the industrial disability award to 20%.  On the rate issue, an irregular bonus was excluded from the rate calculation and the rate was slightly decreased.  NOTE:  The case was designated because defense counsel was a member of the commissioner's old firm.

Brewer-Strong v. HNI Corporation, No. 5040652 (App. Jan. 6, 2016) - In this case, the deputy bifurcated permanency issues and ruled that defendants' had the right to control care and also that claimant had failed to meet his burden to prove beneficial care under Bell Brothers v. Gwinn.  The deputy also denied healing period benefits.  Without additional analysis, the commissioner affirmed the decision of the deputy.

Gott v. Quaker Oats Co., No. 5042516 (App. Jan. 5, 2016) -  Claimant was awarded a 50% industrial disability by the deputy.  On appeal, the commissioner affirmed without comment.




December 2015

Sappington v. Renaissance Realty Group, Inc., No. 5041279 (App. Dec. 31, 2015) - The deputy awarded permanent total disability, ordered care for claimant's anxiety and depression as well as massage therapy for claimant's shoulder injury.  The commissioner affirms without additional analysis.  

Block v. Clarinda Treatment Complex, No. 5046672 (App. Dec. 29, 2015) - The arbitration decisoin found that claimant was entitled to ten weeks of benefits for a bilateral upper extremity injury, awarded TTD benefits, medical expenses and Dr. Bansal's IME costs.  The commissioner affirms all but the costs issue without comment.  Because defendant never obtained a rating, Dr. Bansal's report was inappropriate as IME evaluation under section 85.39.  Because there is no breakdown of Dr. Bansal's report between the costs of the report and examination, no costs were awardable, according to the commissioner, under rule 4.33(6) and DART v. Young.

Cedeno v. Gomaco International, Inc., No. 5042014 (App. Dec. 28, 2015) - The commissioner, without comment, affirms the deputy's decision which concluded that claimant failed to prove that his injury arose out of and in the course of employment and also concluded that appropriate notice had not been provided the employer.

Cortez v. Tyson Fresh Meats, No. 5044716 (App. Dec. 22, 2015) - The arbitration decision awarded industrial disability of 35% and ordered payment of Dr. Stoken's IME under 4.33(6).  The 35% industrial award is affirmed, with the commissioner finding that considerable deference is to be given to the deputy on credibility determinations.  Claimant's IME was obtained prior to defendant's determination of impairment, so it was not payable under 85.39.  Under DART v. Young, only the report is payable, not the examination, so costs are limited to $800 of the $2500 fee.

Bostwick v. American Security, LLC, No. 5040419 (App. Dec. 18, 2015) - The deputy awarded permanent total disability against the employer.  On review, the commissioner reduced the award to 75%.   Claimant had previously worked in the insurance and legal industries, but at the time of his injury, he was a security guard at Grandview College.  As a result of the injuries, claimant was restricted to sedentary work.  He was also said to be short-tempered and quick to anger after the injury.  In reducing the award, the commissioner noted that claimant had access to the job market beyond that of an ordinary laborer and that Dr. Christiansen, who had performed an evaluation of claimant's mental health status, did not say that there were no jobs claimant could perform, only fewer jobs.  The permanent total disability award was reduced to 75%.

Pitlik v. Second Injury Fund of Iowa, No. 5046163 (App. Dec. 17, 2015) - In this case, the commissioner affirms a PTD award against the Fund.  The commissioner notes that the Fund did not rebut claimant's vocational report, nor did they rebut the IME of Dr. Sassman.

Norton v. Hy-Vee, Inc., No. 5041551 (App. Dec. 16, 2015) - Deputy awarded 70% industrial award for stipulated work injury, a $50 penalty for one week of late TTD benefits and $1,274.50 in court costs.  Defendants argue that claimant's mental condition was not related to the work injury and indicates the industrial award is too high.  Claimant argues PTD and also urges additional penalty because only 10% paid prior to hearing. Commissioner affirms mental health causation, relying on claimant's treating providers and rejecting one time opinions of Dr. Sunderman and Amy Mooney. Commissioner affirms the 70% award, denies penalty because the doctor's opinion gave the employer a reasonable basis for denial and reverses the $50 penalty because this was only one week late and delay was a one-time aberration (although defendant had no reason for the delay).

White v. Gelita USA, Inc., No. 5039944 (App. Dec. 9, 2015) - Claimant was awarded PTD benefits at the arbitration hearing, half the amount of the IME costs and a penalty of $2500.  On appeal, defendants argue that claimant's depression is not related to the work injury and her claim should be limited to a scheduled member claim.  On appeal, the commissioner finds that the opinions of vocational expert Rick Ostrander support the PTD claim, and awards costs for his report.  The balance of the decision is affirmed.

Burdock v. City of Des Moines, No. 5042711 (App. Dec. 8, 2015) - The arbitration decision found that claimant had a 75% industrial disability.  On appeal, claimant argued that he was permanently and totally disabled.  Without comment, the arbitration decision was affirmed.

Olson v. Pella Corp., No. 5048311 (App. Dec. 4, 2015) - At the arbitration level, the deputy concluded that claimant had established that he received regular bonuses.  Costs were awarded for Dr. Bergman's report, plus Dr. Bansal's IME.  Permanency benefits were also awarded.  The appeal decision notes that claimant did not file an appellate brief.  On appeal, the commissioner affirms in all respects.  On the bonus issue, the commissioner notes that although bonuses are to be included, since claimant apparently asked for payment at a lower rate ($476.70 rather than $539.09) than would have been justified by the gross weekly wage, only the lower rate would be paid.  The decision was affirmed without comment on all other aspects of the claim.

Ruiz v. Revstone Casting Industries and SIF, Nos. 5041967, 5050063, 5050064 (App. Dec. 2, 2015) - The deputy concluded that claimant failed to sustain his burden of proof that he had a hearing loss and back injury.  The deputy also concluded that claimant had established bilateral carpal tunnel syndrome, but found that notice had not been given within 90 days.  Without additional analysis, the arbitration decision is affirmed.

November 2015

Chilton v. Hormel Foods Corp., No. 5042244 (App. Nov. 30, 2015) - Deputy awarded 15% industrial disability and found that claimant was entitled to payment of certain medical expenses, as well as alternate medical care.  On appeal, claimant asserts industrial disability of 50%.  Without discussion, arbitration decision affirmed.

Carrera v. Annett Holdings, No. 5042836 (App. Nov. 20, 2015) - In this case, the deputy had concluded that claimant had established the existence of a permanent injury to the back and awarded a 50% industrial disability.  On appeal, the commissioner reversed the award, finding that although claimant had established a work injury, she had not established permanency.  The commissioner reduced the weight given to claimant's primary care provider because he had not seen a surveillance video showing claimant performing exercises that the provider had recommended.  This provider's weight was also lessened because he was not a specialist, despite the fact that defendants' primary DME doctor (Mooney) was also not a specialist.  The decision also rejected the opinion of Dr. Bansal, at least in part because of the conclusion that the decision finds that Table 15-3 of the Guides requires a traumatic injury.  Ultimately, the decision of the commissioner rested on the doctors who were given credibility (Boarini and Mooney) versus the doctors who were not (Angel and Bansal).

Delire v. Key City Transport, No. 5038022 (Remand Dec. Nov. 18, 2015) - This case was remanded by the Court of Appeals to allow the commissioner to determine the correct rate.  The question was whether certain drop fees for a trucker were to be included in the rate.  The earlier commissioner's decision had not included the drop fees.  On remand, the commissioner found a rate that was lower than both the deputy and the earlier commissioner had found, concluding that, since there were no wages of comparable employees in the record, the actual hours worked by the claimant were to be used in computing the wage, rather than the wages that could likely have been earned by claimant.

Ross v. American Ordinance, No. 5043735 (App. Nov. 4, 2015) - Deputy dismissed case for failing to provide notice within 90 days of injury.  Claimant urges that she provided notice in a timely fashion and that the discovery rule extended the time for providing notice.  Dismissal affirmed on appeal.  The commissioner found that there was a considerable difference in claimant's testimony between her deposition and hearing.  Claimant found not credible.  Although claimant told her supervisor of the injury in a timely fashion, she did not inform the employer it was work-related at that time.  Commissioner also concludes that as a reasonable person, claimant should have understood the nature, seriousness and probable compensable character as of the day the incident occurred.  

Smith v. Eaton Corp., No. 5043381, 5043382, 5043383 (App. Nov. 4, 2015) - Deputy found that claimant sustained the loss of both arms in a single accident and suffered a total loss of earning capacity as a result.   Claimant was initially diagnosed with bilateral elbow pain.  The commissioner concludes that the agency has "long held that repetitive injury symptoms which occur a few months apart but are subsequently treated as a bilateral problem constitutes a single injury."  The commissioner goes on, however, to find that claimant was not permanently and totally disabled and therefore awards scheduled benefits equivalent to 60 weeks of benefits.

October 2015

Miller nka Plett v. Heinz USA, No. 5029491 (App. Oct. 29, 2015) - Commissioner's designee (Lampe) affirms finding that claimant not entitled to additional benefits on review reopening.  Finds that any additional loss of earning capacity is due to claimant's failure to apply for bid job openings.

Doty v. Polaris Industries, No. 5044352 (App. Oct. 29, 2015) - Arbitration decisoin order healing period, penalty of 25% for failing to pay HP for four months, reimbursement of medical expenses and IME expenses.  No permanency awarded because claimant was not at MMI.  Commissioner affirms healing period award and medical expenses.  With respect to penalty award, the commissioner finds the report of Dr. Blow that claimant was at MMI before the healing period makes this fairly debatable ("while I disagree entirely with Dr. Blow's opinions, I find that those opinions are a reasonable and rational basis that made the issue of medical causation fairly debatable").  But since this was not conveyed to claimant on a timely basis, penalty award affirmed.  Agrees that it is premature to assess permanency.

Gonzalez v. Sunrise Retirement Community, No. 5044345 (App. Oct. 29, 2015) - Arbitration decision awarded 15% industrial disability, healing period benefits and costs.  On appeal, the commissioner's designee (McGovern) affirmed the decision of the deputy on causation, industrial disability and all other issues.

Betz v. Iowa Western Products, No. 5022859 (App. Oct. 21, 2015) - Partial commutation granted and affirmed on appeal.

Stowe v. SIF, No. 5046393 (App. Oct. 20, 2015) - Previously settled case settled as a right thumb injury does not give rise to a first injury for SIF purposes because not an injury to the hand.  Discussion of effect of preclusive effect of earlier settlement.  Affirmed on appeal.

Bickal v. Foodliner, Inc., No. 5040582 (App. Oct. 20, 1015) - Causation finding affirmed by commissioner's designee (Lampe) on appeal.

Blackford v. Hy-Vee, Inc., No. 5042138 (App. Oct. 16, 2015) - 65% ID award at arbitration level, with deputy crediting Sassman over Nelson.  On appeal, Nelson credited over Sassman, but 65% award affirmed.

Hunter v. Quaker Mfg., No. 5044483 (App. Oct. 14, 2015) - 35% ID award affirmed on appeal.

Ladehoff v. Menard, Inc., No. 5043851 (App. Oct. 14, 2015) - 20% industrial disability award reduced to 10% on appeal based on no loss of income and minimal industrial loss.

Begic v. Tyson Fresh Meats, No. 5044085 (App. Oct. 9, 2015) - Commissioner affirms causation denial for shoulder injury.

Ahn v. Key City Transport, No. 5042640 (App. Oct. 8, 2015) - Affirms denial of benefits for failure to file in a timely manner.  Discovery rule found not to extend SOL in the circumstances.  

Garves-Thompson v. Richard Ricky Hawkes, No. 5042442 (App. Oct. 6, 2015) - Affirms dismissal of petition on intoxication grounds.

Karr v. Harter Truck & Trailer, No. 5040837 (App. Oct. 1, 2015) - Claim dismissed at arbitration hearing, affirmed on appeal.  Finding of no causation affirmed.  Claimant's doctor (Sassman) had inaccurate history.

September 2015

Sanders v. Annett Holdings, No. 5043868 (App. Sept. 28, 2015) - Denial of benefits based on conclusion that injury did not arise out of work affirmed on appeal.

Reed v. Polaris Industries, No. 5041353 (App.  Sept. 28, 2015) - 10% industrial disability increased on appeal to 20%.

Peterson v. Parker Hannifin Corp., No. 5043257 (App. Sept. 24, 2015) - Appeal affirms that situs of injury was the back.  Affirms 15% industrial disability award.

Beganovic v. PJ Food Service, No. 5034136 (App. Sept. 23, 2015) - Partial commutation granted by deputy.  Claimant was under a guardianship and claimant's wife provided care.  Partial commutation affirmed on appeal.

Clay v. Dee Zee, Inc., No. 5044016 (App. Sept. 23, 2015) - Denial of benefits affirmed on causation grounds.  Commissioner defers to deputy on credibility, finds claimant not credible.

Terry v. Parker Hannifin Corp., No. 5037453 (App. Sept. 21, 2015) - This is an interesting case involving multiple industrial injuries and the question of credit.  Arbitration decision had initially provided a 50% award with 10% credit, and had denied credit for a 2003 injury.  On appeal, the commissioner concludes that the evidence supported a 15% credit for the 2003 injury.  The decision found industrial disability of 13% for the 2003 and 2009 injuries, 23% for 2010 injury and 53% for 2011 injury, with 23% credit.  New money of 30%.

Small v. CRINC, No. 5041307 (App. Sept. 18, 2015) - Claim initially denied on arising out of and notice grounds.  Denial affirmed on both grounds.

Goodman v. Rupp Tire Shop, No. 5045203 (App. Sept. 18, 2015) - Summary judgment awarded on statute of limitations issue.  On appeal, claimant argues that SOL argument was waived because not raised in answer or motion to dismiss.  Commissioner's designee (Lampe) agrees, finds that defendants waived SOL defense and remands for further proceedings.

Block v. SIF, No. 5044550 (App. Sept. 16, 2015) - Arbitration decision found first qualifying injury for SIF purposes and awarded PTD benefits.  On appeal, award reduced to 65%.  There is a discussion in the case as to how the first loss for SIF purposes does not need to be an industrial loss.

Sims v. SIF, No. 5041651 (App. Sept. 15, 2015) - Arbitration decision found a 10% ID, but 52.5 weeks in credits to the fund.  Affirmed on appeal, finding that there was no evidence claimant had suffered the 40% loss alleged.

Deardorff v. GITS Mfg, No. 5042390 (App. Sept. 10, 2015) - Claimant awarded PTD for back injury.  Also had inhalation injury, but no specific award for this.  On appeal, case affirmed with the exception of costs.  Reverses order that had allowed Bansal's IME costs to be paid under 4.33(6) because conditions for 85.39 were not met.  Allows vocational report and another medical report as costs under 4.33(6).

Olson v. Brooks Park Resorts, No. 5043574 (App. Sept. 9, 2015) - Deputy found scheduled member, refused to find ID based on gait impairment.  Decision affirmed on appeal.

August 2015

Veenendaal v. ABF Freight System, No. 5027224 (App. Aug. 26, 2015) - Review reopening decision found that claimant was entitled to an additional 10% ID, plus alternate medical care.  On appeal, the additional award was reversed, with the commissioner's designee (Christiansen) concluding that there was no evidence of an increase in permanent impairment, restrictions, loss of wages or earning capacity.  Claimant had testified that he had taken another shift (a night shift) because that shift was less taxing on his back.  Nonetheless, additional benefits were denied on appeal.  The alternate care portion of the decision was affirmed, with the commissioner's designee finding that defendants had ignored requests for care.  Care with a qualified back surgeon was awarded.

Odobasic v. Kinseth Hotel Corp., No. 5011318 (App. Aug. 25, 2015) - Review reopening decision increased award from 75% to PTD.  The commissioner declines to issue a decision, finding that the worsening of claimant's back condition may have implicated a different insurance carrier.  The claim was remanded to the deputy for consolidation with claim against the new carrier.

Williams v. Menards, No. 5043831 (App. Aug. 25, 2015) - Arbitration decision denied benefits for hernia.  On appeal, case affirmed, with commissioner agreeing with opinions of Grossmann and Mooney over Sassman, finding that most of claimant's complaints were related to non-work problems and further concluding that the hernia did not cause any permanent restrictions.

Benitez v. Allsteel, No. 5042714, 5042715 (App. Aug. 25, 2015) - 15% ID award at hearing.  Award affirmed, as claimant had worked without restrictions for over a year.  Additional issue of costs presented.  Report of Dr. Kreiter as a cost found to be impermissible by commissioner's designee (Lampe) under DART v. Young.

Mohamoud v. REM Iowa, No. 5037984 (App. Aug. 24, 2015) - Deputy found claimant was entitled to TTD and TPD benefits, but not PPD.  Affirmed on appeal, finding that deputy's credibility finding was entitled to deference.

Banuelos v. Custom Precast Co., No. 5044388 (App. Aug. 24, 2015) - Arbitration decision awarded 15% ID for shoulder injury but found that neck injury did not arise out of employment.  Commissioner affirms, finding that Dr. Tearse performed surgery and continued to follow claimant and his opinions were supported by the record as a whole.    On the neck claim, commissioner affirms, finding that credibility was an issue and deferring to deputy on this issue.

Neunaber v. Home Town Restyling, Inc., No. 5043591 (App. Aug. 24, 2015) - Claimant awarded PTD benefits by deputy.  On appeal, PTD award reduced to 75%.  Opinion of treating physician who had more clinical experience with claimant than IME physician, was credited.  Claimant has not made any effort to find other work (claimant was on social security disability at the time of the hearing),

Delgado v. Monsanto, No. 5042707 (App. Aug. 6, 2015) - Arbitration hearing found running award based on neck, shoulder and left upper extremity injuries.  Notes that agency uses a prejudice standard for late-submitted evidence under Schoenfeld v. FDL Foods and notes that evidence is generally only excluded when prejudice would result.  Here, defendants were allowed 60 days to depose claimant's chiropractor for late admitted evidence.  Finds there was no prejudice in allowing chiropractic records into evidence.  On credibility issues, defendants challenge credibility, deputy found claimant credible and deference provided to deputy.  Running award affirmed.

Dominy v. Eagle Window & Door, No. 5044095, 5044333 (App. Aug. 5, 2015) - 50% ID finding at hearing.  On appeal, finds that FCE, which limits claimant to 25 pounds, would make finding replacement employment difficult.  Considerable deference given to deputy, award affirmed.

July 2015

Schoenfeld v. Nestle USA, No. 5043761 (App. July 28, 2015) - Arbitration decision found that claimant had only demonstrated a temporary and minor injury to his shoulder.  On appeal, commissioner finds that rotator cuff tear was attributable to work injury.  Notes that defendants sent claimant to Dr. Jameson for an evaluation, but then did not introduce a clinical note or report.  The commissioner infers that the evidence would have been unfavorable.  Finds that claimant is entitled to recommended medical care and concludes that it is premature to determine permanency pending that care.  

Grisso v. Menard, Inc., No. 5042804 (App. July 17, 2015) - 65% industrial disability finding reduced to 45% on appeal.  The reasons for the reduction were the medical records, work restrictions imposed as a part of the FCE and inconsistent statements of claimant. The appeal also finds that a bonus paid each year so long as the company was profitable was a regular bonus to be included within the rate, citing Burton v. Hilltop Care Center, 813 N.W.2d 250, 258 (Iowa 2012).

Stone v. Par Electrical Contractors, No. 5043729 (App. July 13, 2015) - 40% ID award and $6000 penalty following arbitration hearing.  Affirmed without comment by commissioner's designee (Pals).

Seymour v. Sherwin Williams, No. 5043307 (App. July 9, 2015) - Claimant awarded permanent total disability and a 50% penalty of unpaid and accrued weekly benefits.  On appeal, PTD award affirmed and penalty award set at 50% of weekly benefits awarded that were accrued at hearing.  Notes that defendants are under a continuing duty to evaluate their actions at all stages of the claim proceedings after receiving additional information and must show they reevaluated the case promptly.

Richards v. Menard's Distribution, No. 5041336 (App. July 6, 2015) - Running award ordered following hearing.  Defendants argue that claimant's IME doctor was not identified and report not submitted in a timely fashion.  Award affirmed on appeal.  Notes that "ideally, cases are decided on the merits of the case, rather than on procedural grounds."  Notes that Supreme Court has emphasized this policy and reversed agency in Schoenfeld, Trade Professionals and Larson Mfg. v. Thorson.  Even if late, report was not prejudicial to defendants because opinions of personal physician were most convincing.  

Alcorta v. Broadlawns Medical Center, No. 5042157 (App. July 1, 2015) - Arbitration decision found shoulder injury and 15% industrial disability plus a penalty of $8250.  On appeal, commissioner finds that although claimant did not specifically plead a cumulative injury, defendants had sufficient notice of this injury.  Affirms penalty of $8250 (25% of award) finding that defendants did provide notice as to why they were denying the claim nor convey this to claimant. Awards only the costs of preparing Dr. Stoken's report under Dart v. Young.

LaGrange v. Nash Finch Co., No. 5043316 (App. July 1, 2015) - Permanent total disability award affirmed on appeal.  On costs, decision notes that under DART v. Young only costs incurred at the hearing may be recovered.  Costs of the FCE and vocational expert were not itemized and 1/3 of total costs are awarded to claimant.  

Ayala v. Tyson Foods, Inc., No. 5026613 (App. July 1, 2015) - Review reopening decision awarded claimant no new benefits.  Decision adopted without comment.

June 2015

Etten v. Iowa Gold Distributing, No. 5028217 (App. June 25, 2015) - Review reopening proceeding increased benefits from 45% to PTD.  On appeal, defendants contend that claimant raised an issue of depression that was not a part of claimant's testimony.  The commissioner concludes that defendants did not raise this issue at hearing or in their post hearing brief, and accordingly was waived.  Even if not waived, lack of notice issue lacks merit.  Appeal decision concludes that claimant's increased pain and accompanying dependence on opioid medications, plus depression was a change in condition and affirms PTD award.

Gonzales v. Dexter Foundry, Inc., No. 5028992 (App. June 25, 2015) - Remand decision from district court finding that the statute of limitations had not expired.  At arbitration level, deputy finds that left shoulder and left knee injuries did not arise out of employment.  IME costs awarded.  Commissioner's designee (Grell) finds that claimant was not credible (agreeing with earlier decisions) and affirms decision as to lack of compensable injury and payment of IME.

Callahan v. Horseshoe Casino, No. 5042457 (App. June 25, 2015) - At arbitration level, employer found to have actual notice and awarded PPD benefits.  Appeal decision discusses notice and discovery rule issues, and finds that statute of limitations does not bar the claim.  With respect to notice, appeal decision finds that employer did not have actual notice of the injury within 90 days and thus claim is barred.  Arbitration decision reversed.

Babic v. Tyson Fresh Meats, No. 5039150 (App. June 10, 2015) - This is a case where one deputy (Fitch) heard the case, went on leave of absence, following which another deputy (Walleser) issued the decision on the case, finding no compensable injury  Claimant filed a rehearing indicating order of delegation was not received and objecting to the delegation.  Deputy Fitch denied this request.  On appeal, commissioner rejects allegation that delegation was improper and finds that claimant failed to establish a compensable injury.

Bonnes v. Northern Ag Service, No. 5042928 (App. June 9, 2015) - Commissioner's designee (McGovern) affirms an 18% ID award.

Coffey v. Mid-Seven Transportation, No. 1074160 (App. June 9, 2015) - This is a case that has bounced around through the appellate court levels, with the Supreme Court issuing a decision on 5/10/13, remanding to district court.  The issues concerned interest, credit due, last date of weekly benefits.  Ultimately, claimant's review reopening action was found to be barred by 3 year SOL.  Much of the decision on appeal involves the appropriate credits from the third party action.   Relying on Ewing v. Allied Constr. Services, 592 N.W.2d 689, 691 (Iowa 1999), the commissioner concludes that the gross amount of the settlement is to be used in calculating the credit allowed, with this amount reduced by attorney's fees and costs.  

Jackman v. Bridgestone-Firestone, No. 5040145 (Remand June 5, 2015) - This matter was remanded to the commissioner to determine the date when claimant reached MMI, as the district court found the date of MMI was not supported by substantial evidence.  The commissioner assigns a new MMI date.  

May 2015

Squires v. Promark Utility Locators, No. 5041542 (App. May 22, 2015) - Claimant's petition was dismissed on arising out of grounds at the arbitration level.  Affirmed on appeal without comment.

Saracevic v. Tyson Foods, Inc., No. 5037282 (App. May 12, 2015) - Claimant's petition dismissed on causation grounds at arbitration level.  Affirmed on appeal without comment.

Saengchanpheng v. Tyson Fresh Meats, Nos. 5043784, 5043785, 5043786 (App. May 8, 2015) - Arbitration decision found that claimant failed to carry her burden of proof on causation issues. Affirmed on appeal, finding that there was troubling and potentially contradictory information in Dr. Bansal's report (concerning pre-existing back issues).  Because of this, less credibility provided to that report.  Bansal's rebuttal report was not admitted because it was not requested until a few days before the hearing and it would have been prejudicial to defendants.  IME payment denied because Bansal's report came before that of Archer.

Paulsen fka Timm v. City of Davenport, No. 5033124 (App. May 7, 2015) - 20% ID at arbitration level.  Defendants argued that claimant was a police officer and not entitled to benefits under chapter 85.  Claimant was attending the Iowa Law Enforcement Academy at the time of her injury.  Claimant was denied benefits under Chapters 410 and 411, because she was not a "member in service" at the time of the injury.  Although the commissioner indicates there is "ambiguity" in this situation, he finds that benefits under chapter 85 are available because no decision on the merits of her claim was made under Chapters 410 and 411.    The arbitration award was affirmed.

Hamilton v. USF Holland Motor Express, No. 5045215 (App. May 5, 2015) - Claimant appeals the denial of penalty and defendants appeal on the issues of rate, commencement date, medical bills and claimant's filing of a late appeal brief.  Commissioner's designee (Christenson) finds that defendants were not informed of the grounds for the penalty claim and affirms the denial of penalty.  The appeal decision affirms on the rate issue (exclusion of non-representative week affirmed).  Finds that bills for medical bills for diabetes were not related to work injury.

Henry v. Van Osdel Plastering & Drywall, Inc. and SIF, No. 5017090 (App. May 1, 2015) - Claimant was awarded a 50% PPD to the right leg, but denied SIF benefits.  On appeal, commissioner's designee (Grell) affirms 50% PPD award to the leg.  Reverses arbitration decision against the Fund, finding that claimant had proved a first injury and that the combined effect of the left and right knee injuries results in a relatively significant loss of earning capacity (50%).  Fund ordered to pay 135.6 weeks of benefits.

April 2015

Meester v. Central Iowa Power Cooperative, No. 5043346 (App. April 27, 2015) - 30% industrial disability award affirmed without comment.

Yaw v. Westside Auto Body of Des Moines, No. 5043051, 5043052 (App. April 27, 2015) - 60% industrial disability award plus award of medical benefits for carpal tunnel syndrome at arbitration level.  Claimant developed a hernia at work, had surgery and later developed a damaged nerve from the surgery.  Claimant, however, returned to full duty work, although he requested more assistance after the injury.  On appeal, industrial disability reduced to 30%.  

Jeffrey v. Weitz Industrial, LLC, No. 5044177 (App. April 22, 2015) - Appeal affirms running award of healing period benefits without comment.

DeVries v. Wal-Mart Stores, Inc., No. 5040128 (App. April 17, 2015) - Permanent total disability awarded on original decision, which was appealed and remanded to the deputy for further findings.  On remand, PTD again awarded and this case is an appeal of that decision.  Affirmed without comment.

Jorgensen v. Dr. Pepper Snapple Group, Inc., No. 5038649 (App. April 16, 2015) - Claimant found PTD due to a back injury following arbitration hearing.  Appeal affirms without comment by commissioner's designee (Lampe).

Muslic v. Tyson Fresh Meats, Inc., No. 5037761 (App. April 7, 2015) - Arbitration decision awarding 45% industrial disability, TTD benefits and medical expenses affirmed without comment.

Lawson v. Lehigh Cement Co., No. 5043655 (App. April 7, 2015) - 20% industrial disability awarded at arbitration level.  On appeal, commissioner's designee (Lampe) awards penalty of 10% for late payment of benefits that were voluntarily paid.  Penalty denied on claim that rating of claimant's treating doctor should have been paid, since claimant returned to his former work.  Industrial award affirmed.

Allen v. Prairie Meadows Race Track & Casino, No. 5044185 (App. April 3, 2015) - Arbitration decision awarded TTD and PPD benefits.  On appeal, commissioner finds that although claimant did not believe he could work during the TTD period, he was medically capable of doing so. Thus, TTD benefit award was overturned.  On PPD, 3% functional loss to the leg affirmed.

Vasquez v. John Morrell & Co., No. 5039388 (App. April 2, 2015) - Award at original hearing remanded to deputy for more specific findings.  On remand, 30% industrial disability finding made for shoulder injury.   On appeal, claimant argues permanent total disability and defendants argue claimant is not entitled to benefits.   Commissioner's designee (Christensen) awards healing period benefits from April 10, 2010 through February 21, 2012.  Finds that claimant is odd lot, as claimant presented vocational testimony supporting lack of ability to work.  Claimant had searched for over 200 jobs without success.  Even if not odd lot, claimant found to be permanently and totally disabled.

Gegerich v. Downtown Eagle, Inc., No. 5040559 (App. April 2, 2015) - Commissioner's designee (Lampe) affirms permanent total disability finding without comment.

Teah v. Tyson Foods, Inc., No. 5039408 (App. April 1, 2015) - Running healing period and award of medical benefits affirmed on appeal without discussion.

March 2015

Ramer v. Kryger Glass, No. 5039788 (App. March 31, 2015) - Commissioner affirms a 70% industrial award and penalty award, without additional comments.

Hougland v. First Resources Corp., No. 5028766 (App. March 31, 2015) - Commissioner's designee (Pals) affirms denial of penalty benefits without additional comments.

Mitchell v. United Technologies, No. 1058177 (App. March 20, 2015) - Commissioner affirms denial of medical care, finding that there was no causal connection between injury in 1994 and claimed medical expenses.  

Maria Murguia v. Hon Oak Steel, No. 5025867 (App. March 19, 2015) - On review-reopening, benefits increased from 30% ID to 60% ID.  Although commissioner concludes that claimant had a change in her physical condition, resulting in a 4th surgery, the ID award is reduced from 60% to 45%, based primarily on fact that claimant continued to perform her job without accommodation and without loss of income.

Lisk v. United Healthcare Services, No. 5043572 (App. March 18, 2015) - Commissioner's designee (Lampe) affirms decision that claimant failed to prove injury was causally related to or materially aggravated by work activities.

Sankey v. Rembrandt Enterprises, No. 5041824, 5041823 (App. March 13, 2015) - Commissioner's designee (Grell) affirms award of running healing period benefits.  

Spencer v. Annett Holdings, No. 5023311 (App. March 13, 2015) - Claimant had a prior knee injury which was settled on an agreement for settlement basis.  Claimant developed further problems with the knee, sought review reopening and successfully filed a motion for summary judgment to preclude defendants from relitigating the issue of whether claimant had sustained a work related injury in 2007.  Defendant had filed a federal court action against claimant seeking to overturn the settlement on the grounds it was obtained by fraud.  In that lawsuit, Judge Pratt concluded that judicial estoppel was appropriate.  On appeal, that rationale is adopted.  

Defendant also argued that claimant did not establish that claimant's current condition was related to the original injury. The appeal decision affirms the arbitration decision finding that claimant demonstrated that claimant's condition was attributable to the original work injury.  

Ostermyer v. Ken Less and Mitchell Less, No. 5025837 (App. March 13, 2015) - The primary issue in this case was determining claimant's employer.  The parties agreed that claimant was an employee of some entity by all defedants disclaimed responsibility.  On appeal, commissioner's designee (Lampe) applies five factor test of Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503 (Iowa 1981).  Concludes that Plymouth Feeds and Ken Less are jointly liable for the injury because both had control over claimant's activities.  Also finds that penalty is appropriate since claimant was denied benefits and defendants did not use the procedure under section 85.21.  

Arreola v. Bodeans Baking Groups Holding, LLC, No. 5040956, 5040974 (App. March 12, 2015) -  Commissioner's designee (Lampe) affirms award of permanent total disability.  

Ruba v. Wells Dairy, No. 5041691 (App. March 11, 2015) - Commissioner's designee (Christenson) affirms 40% industrial award.  FCE given little weight because claimant had worked and done more physical activities than allowed by FCE.  Also finds vocational report of Kent Jayne not credible, in large part because he routinely opines claimants are completely disabled.  

Richards v. Pepsi Beverages Co., No. 5045018 (App. March 11, 2015) -  Commissioner's designee (Pals) affirms 60% industrial award.

Guevera v. Tyson Foods, Inc., No. 5040727 (App. March 10, 2015) - Commissioner affirms 30% industrial award without comment.

Wulf v. Krajicek, No. 5041729 (App. March 9, 2015) - Commissioner's designee (McGovern) affirms running healing period and penalty award without comment.  

McCormick v. Polaris Industries, No. 5037185 (App. March 6, 2015) - 20% industrial disability award affirmed by commissioner without comment.

February 2015

Weir v. Shade Tree Service Co., No. 5039427 (App. Feb. 25, 2015) - Commissioner affirms 30% industrial disability award without comment.

Quastad v. Polaris Industries, No. 5043011, 5045045, 5045046 (App. Feb. 25, 2015) - Claimant awarded 25% industrial following hearing.  Commissioner increases this award to 35% on appeal.  Because claimant did not itemize costs, only costs awarded are filing fees for the above cases.

White v. Donaldson Co., No. 5041853 (App. Feb. 24, 2015) - Commissioner's designee (McGovern) affirms award of penalty as defendants had no basis for denial of the claim, but reduces the penalty, finding that the credit for non-occupational benefits should have been applied to determine the amount of the penalty.

Boucher v. Polk County Sheriff's Office, No. 5040772 (App. Feb. 18, 2015) - 40 weeks of permanency awarded at hearing, affirmed by commissioner without comment.

Riley v. Eaton Corp., No. 5041392, 5041393, 5041394 (Remand Dec. Feb. 13, 2015) - Commissioner's designee rules on remand that 12 weeks of PPD benefits are due, in addition to four days of TTD.

Westling v. Hormel Foods Corp., No. 5019701, 5019702 (Remand Dec. Feb. 11, 2015) - This remand involves a request for alternate medical care. The district court remanded for findings of whether claimant's treatment was prompt, reasonably suited for treatment and without undue inconvenience for claimant.  On remand, acting commissioner McGovern finds that treatment offered to claimant was reasonable care.  Also indicates that since claimant resides in Florida for five months out of the year, defendants must provide authorized care during that time period.

McBride v. Casey's Marketing Co., No. 5037617 (Remand Dec. Feb. 9, 2015) - This remand decision involves credits for payment of healing period benefits.  Acting commissioner finds that defendants can take credit against PPD benefits for healing period benefits paid under section 85.34(4) of the Code.