Iowa Workers' Compensation

In Delire v. Key City Transport , No. 16-0720 (Iowa App. Dec. 21, 2016), the court addressed for the second time a rate issue presented by the parties.  Claimant was a trucker, who was only three weeks into his employment at the time of his injury.  He believed that his yearly earnings were to be $75,000 and his original rate was based on an annual salary of $70,000.  This rate was reversed in the original Court of Appeals decision and the case was remanded for further consideration. In the second appeal, the question was whether claimant's rate should be determined based on his salary in two of the three weeks he worked (the third week was significantly less than the other two weeks) or whether all three weeks should be taken into account.  The commissioner considered all three weeks.  The court indicated that section 85.36(7) addressed the situation more precisely because it applied "in the case of an employee who has been in the employ of the employer less than thirteen c

In Polaris Industries v. Reed , No. 16-0269 (Iowa App. Nov. 9, 2016), claimant was awarded a 10% industrial award following the arbitration decision, an award that was increased to 20% on appeal.   The employer appealed, arguing that the 20% award was "inconsistent with the agency's prior practice and precedent," in violation of section 17A.19(10)(h) of the administrative procedure act. Defendants argued that the agency and courts had previously concluded that an award of industrial disability benefits was improper when a claimant was returned to work with no restrictions.  Citing Mid-American Energy v. Wright , No. 01-0312 (Iowa App. May 15, 2002). The court notes that the determination of industrial disability is a fact specific inquiry in each case, citing Cedar Rapids Cmty. Sch. Dist. v. Pease , 807 N.W.2d 839, 852 (Iowa 2011).  Because the court felt that the facts of this case were distinguishable from Wright , the 20% award was found not to violate section 17A.19

In Bridgestone/Firestone v. Jackman , No. 15-2007 (Iowa App. Nov. 9, 2016), the Iowa Court of Appeals affirmed the award of permanent total disability, finding that substantial evidence supported the decision of the commissioner.  On appeal, only the award was contested, the defendants having conceded that claimant's back and neck injuries arose out of and in the course of employment. The court finds that the factors of industrial disability were explicitly considered in the decision of the deputy, which was affirmed by the commissioner.  The court deferred to the commissioner's finding that claimant's vocational expert was more credible than defendants' expert.  The court also noted that claimant's failure to seek other employment was not, in light of all other factors, enough to defeat the finding of permanent total disability. Claimant was represented by Martin Ozga of Neifert, Byrne & Ozga.

Claimant suffered an injury to her shoulder, which the employer denied.  In Saracevic v. Tyson Fresh Meats, Inc. , No. 16-0104 (Iowa App. Oct. 26, 2016), the Court of Appeals concluded that it was the agency's job to weigh the evidence.  The agency concluded that the shoulder injury was not related to claimant's work, and the Court of Appeals affirmed on substantial evidence grounds. Claimant sought treatment with Dr. Delbridge following the denial of liability.  He performed surgery to remove a calcium deposit from claimant's left shoulder.  He later opined that the shoulder condition had been materially aggravated by claimant's work.  Dr. Gorsche and Dr. Neff opined that the calcific deposit was not related to her job duties. Concluding that the determination of whether to accept or reject an expert's testimony was within the peculiar province of the commissioner, the court affirmed the decision of the agency that claimant's injury had not arisen out of an

Stark Construction v. Lauterwasser , No. 15-1786 (Iowa App. 2016) is a claim that had earlier been decided by the Court of Appeals.  In the earlier decision, the appellate court reversed the district court's opinion that claimant was not an employee and remanded the case to the district court for further proceedings.  On remand, the district court remanded the claim to the commissioner for issuance of a decision on a timely notice issue.  Claimant appealed the remand order, arguing that the employer failed to preserve error at the agency level for judicial review.  The employer argued that claimant's appeal was untimely because claimant filed an improper 1.904(2) order to toll the time for filing notice of appeal. The court first addressed the issue of the timeliness of claimant's appeal.  In this case, the appeal was filed beyond 30 days, but it was filed within 30 days of the district court's ruling on the 1.904(2) motion.  The court finds that a proper motion under

In Janssen v. Merry Lanes , No. 15-1511 (Iowa App. Sept. 14, 2016), the Court of Appeals upheld the determination by the commissioner that claimant's injury was to the leg and not the body as a whole.  Claimant suffered an injury to her hamstring while working as a bartender.  The deputy concluded that claimant's injury extended to the body as a whole and awarded permanent total disability benefits.  The commissioner reversed, concluding that claimant's injury was a scheduled member injury to the leg and awarding 72.6 weeks of benefits. Claimant argued that the essence of prior court decisions was that the nerves and veins were system wide injuries which extended beyond a scheduled member.  In support of this assertion, claimant cited Collins v. IDHS , 529 N.W.2d 627 (Iowa App. 1995) and First Fleet Corp. v. Hannam , No. 14-1254 (Iowa App. July 9, 2015).  The court in Janssen reads Collins  as not reaching the question of whether reflex sympathetic dystrophy was an injury

Defendants in O'Reilly Auto Parts v. Kuder , No. 15-0890 (Iowa App. Sept. 14, 2016), filed an appeal of the commissioner's decision refusing to reopen a permanent total disability award.  Defendants claimed that the commissioner committed legal error when considering whether Kuder's economic circumstances had changed, applied an improper burden of proof and reached his decision without support of substantial evidence. Defendants had filed the review reopening action within one month of the appeal decision finding permanent total disability.  Claimant was working part time at the time of the decision granting PTD benefits, but later lost that job when he moved to a smaller community.  Defendants' vocational expert opined that claimant, who had a shoulder injury, had an industrial loss, but that there were many jobs for which claimant was qualified, even with restrictions.  The deputy found that claimant was just as disabled as he was at the time of the original arbitra

Polaris Industries v. Quastad, No. 15-1572 (Iowa App. Aug. 17, 2016) represents the latest Court of Appeals decision to note that the scope of review on appeal is limited, and that the commissioner's decision can only be reversed if that decision is illogical, irrational or wholly unjustifiable.  The court affirms a 35% industrial disability award and notes that there can be a diminution of earning capacity even when there has not been a diminution in actual earnings, citing ABF Freight Systems, Inc. v. Veenendaal, No. 11-1862, 2012 WL 186033, at *4 (Iowa App. May 23, 2012).

In Newt Marine Service v. Abitz , No. 15-1957 (Iowa App. July 27, 2016), the Court of Appeals affirmed the commissioner's award of alternate medical care.  Claimant had been treated by Dr. Field, who reported that claimant's shoulder injury had abated following surgery and that he had a 75 pound lifting restriction.  Claimant denied that his shoulder pain had dissipated and indicated he continued to need physical therapy.  He also denied that he could lift 75 pounds. A week after the imposition of the 75 pound restriction, Dr. Field indicated claimant had no restrictions. Claimant indicated his dissatisfaction with Dr. Field's care and file a petition for alternate medical care.  He requested care from a doctor specializing in shoulder injuries at the University of Iowa.  The deputy granted alternate care, finding that the care provided by Dr. Field was not effective.  On review, the Court of Appeals affirmed, citing Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433,

In Reynolds v. Algona Manor Care Center, No. 15-1095 (July 27, 2016), the Court of Appeals reversed the decision of the agency finding that a spouse could not be reimbursed for wages lost because of transportation of the claimant to and from medical appointments.  The agency had awarded medical costs and expenses, penalty benefits and costs.  The district court had remanded to the agency to determine interest on temporary benefits.  These items were appealed by the employer. Claimant appealed the denial of reimbursement for wages to claimant's spouse. The court first finds that substantial evidence supported the commissioner's conclusion that claimant was entitled to payment for various prescription and non-prescription medications as well as payment for a medical visit.  The court found that remand was appropriate to determine if any interest was owed, inasmuch as benefits had been delayed on a few occasions.  The penalty claim was based on the appropriate commencement date

In Polaris Industries v. McCormick , No. 15-1573 (Iowa App. June 15, 2016),  the agency had awarded a 20% industrial disability for her right shoulder and elbow problems.  The award was premised in part on the deputy's conclusion that "claimant has permanent restrictions for her job."  On appeal, the employer argues that no medical provider found that claimant had permanent restrictions and thus the decision of the agency was not supported by substantial evidence. On appeal, the court catalogues recent decisions regarding substantial evidence and concludes the agency's decision was supported by substantial evidence and was not irrational, illogical or wholly unjustifiable.  The court noted that Dr. Hines had advised claimant not to engage in lifting above shoulder height or lifting of the arm at the shoulder and repetitive flexion at the wrist.  This, combined with claimant's testimony as to her restrictions was found to be sufficient to support the conclusions

In Evenson v. Winnebago Industries, No. 14-2097 (Iowa June 3, 2016), the Supreme Court concluded that an employer's matching contributions to a 401(k) plan are not weekly earnings for rate purposes. The Court also concluded that the district court erred in affirming the date on which the healing period commenced and ended and the date on which PPD benefits commenced. On the rate issue, the court noted that "gross earnings" was defined in section 85.61(9) as recurring payment by the employer before deductions and excluding irregular bonuses, overtime pay, reimbursement of expenses and the employer's contribution for welfare benefits.  The Court notes that although an employee's 401(k) plan is related tangentially to his or her wage or salary, an employer's 401(k) plan matching contributions are based on the employee's choice and contribution.  Although the portion the employee chooses to contribute to the plan comes from his wages, the added contribution

In Sager v. Innovative Lighting, dba Hawkeye Molding, Inc.,  No. 15-0783 (Iowa App. May 25, 2016), plaintiff had filed a common law negligence action against Innovative Lighting.  Plaintiff had been hired for work at Hawkeye by Jacobson Staffing, which was apparently how all parties work for Hawkeye.  Jacobson provides workers' compensation coverage for its employees.  Plaintiff was injured at Hawkeye and filed a workers' compensation claim against Jacobson, for which he received a settlement. Plaintiff's attorneys had communications with Hawkeye concerning the filing of a third party action, and filed suit claiming negligence against Hawkeye for an injury to his hand from a burn resulting from hot liquid.  Hawkeye filed a motion for summary judgment claimant that it was immune from liability under the exclusivity provisions of the Iowa Code, section 85.20.  The district court concluded, in ruling in favor of Hawkeye, that the only reasonable inference to be drawn was tha

The passage of HF 2581 in 2004 eliminated the provision that overlapping streams of benefits were impermissible under section 85.36(9)(c) of the Code.   In Drake University v. Davis , 769 N.W.2d 176 (Iowa 2009), the Supreme Court held that in a situation where a claimant had a PPD award followed by a subsequent award of PTD benefits, both benefits could be received simultaneously, because the language of section 85.34(7) of the Code, which addressed issues of apportionment, did not reference awards under section 85.34(3) of the Code, only awards under section 85.34(2). In JBS Swift v. Ochoa, No. 15-0840 (Iowa App. May 25, 2016), the Court of Appeals followed Davis  and affirmed the commissioner's award of an overlapping 70% industrial disability and a subsequent PTD award.  The court noted that the awards were both supported by substantial evidence and indicated, in discussing Davis , that "we are not at liberty to overrule controlling supreme court precedent."  Althoug

In McComas-Lacina Construction v. Drake , No. 15-0922 (Iowa App. May 11, 2016), the Court of Appeals affirms the decision of the commissioner on substantial evidence grounds.  Although this is a fairly typical finding for both the Court of Appeals and Supreme Court, the decision adds a humorous twist, stating the following: We begin and end our analysis with the following observation: “The administrative process presupposes judgment calls are to be left to the agency. Nearly all disputes are won or lost there.” Sellers v. Emp’t Appeal Bd., 531 N.W.2d 645, 646 (Iowa Ct. App. 1995) (citations omitted). A case reversing final agency action on the ground the agency’s action is unsupported by substantial evidence or is irrational, illogical, or wholly unjustifiable is the Bigfoot of the legal community—an urban legend, rumored to exist but never confirmed. Here, the employer had a full and fair opportunity to present its evidence and argument to the deputy commissioner and the commissione

In Wehde v. Georgia Pacific and Second Injury Fund , No. 15-0045 (Iowa App. No. 15-0045), the Court of Appeals addressed an issue where claimant had filed an original action against the employer and Fund and had prevailed and later filed a review reopening action.  In this action, claimant prevailed against the employer, and received an additional award of 8% for her left leg, but no additional impairment for her right leg and no additional industrial disability benefits from the Fund.  The agency concluded that there was an increased loss of earning capacity as a result of her additional loss of use to the left knee.  The agency assessed the costs for the left leg to the employer, ordered shared costs for the right leg, and costs relating to the loss of earning capacity were assessed to claimant. The district court affirmed and the case was appealed. The Court of Appeals concluded that although the treating doctor had not imposed restrictions in the original action, the IME doctor h

In Tyson Foods, Inc. v. Teah , No. 15-1776 (April 27, 2016), the Court of Appeals addressed a situation where claimant developed a shoulder injury as a result of repetitive work activities at Tyson. Claimant was found to have reached maximum medical improvement, but continued to complain of shoulder problems.  Dr. Adams concluded that claimant had chronic calcific tendinitis, but not evidence of a rotator cuff tear.   He found that work activities had aggravated her condition.  He found that work had accelerated her condition, but also found that no surgery was currently needed but that a surgery in the future would not be work-related.  Tyson denied liability. Claimant was asked to sign a non-work leave of absence.  She refused and was eventually terminated. At hearing, the agency concluded that claimant had demonstrated that she had a compensable injury and awarded a  running healing period.  Defendants appealed, claiming that if Dr. Adams' opinions were rejected, there was no

In Ramirez-Trujillo v. Quality Egg , No. 14-0640 (Iowa April 15, 2016), the Court wrestled with the meaning of section 85.27(4) of the Iowa Code.  The sentence in issue in this case states that "If the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that the employer is no longer authorizing all or any part of the care and the reason for that change in authorization."  The commissioner concluded that section 85.27(4) required a notice to the claimant in all circumstances if the employer was terminating previously authorized care.  The district court reversed, finding that Quality Egg reasonably believed claimant had recovered from the work injury and did not need to provide notice.  The Court of Appeals agreed with the commissioner and reversed the district court. In a lengthy decision, the Supreme Court reverses the decision of the Court of Appeals and remands the claim to the commission

Pella Corporation v. Marshall , No. 14-2121 (Iowa App. April 6, 2016) involved a claimant who sustained an injury to his right shoulder.  At the deputy level, claimant's injury was found not to have arisen out of employment.  This decision was reversed by the commissioner, who concluded that claimant had a 20% industrial disability.  At the first judicial review proceeding, the case was remanded to the commissioner for a determination of whether the facts as testified to by the claimant or the history contained in the medical records would govern.  On remand the commissioner affirmed the initial decision, finding that no deference was provided to the original arbitration decision because there had been no credibility finding made in that decision.  This decision was affirmed by the district court. On appeal, after discussing the history and facts of the case in great detail, the court affirmed with respect to causation and the degree of industrial disability.  On the causation is

In Jack Cooper Transport Co. v. Jones , No. 15-0960 (Iowa App. April 6, 2016), the commissioner concluded that a truck driver who suffered a back injury was permanently and totally disabled.  In the decision, the causation determination and restrictions of the IME physician, Dr. Koprivica, were accepted over the opinions of Dr. Boarini or Dr. Ciccarelli.  The district court affirmed the PTD award on substantial evidence grounds. Noting that the issue of causation was within the realm of medical expert testimony, the court concluded that there was substantial evidence to support the finding that claimant sustained a permanent injury.  The court also concluded that the finding of permanent total disability was not irrational, illogical or wholly unjustifiable.  The court noted that claimant was not able to return to work after the back injury.  Dr. Koprivica restricted claimant from driving a truck, which had been the only work performed by the claimant.   The decision of the agency wa

In Bridgestone/Firestone v. Dalton , No. 15-0571 (Iowa App. Feb. 24, 2016) , claimant suffered an injury to his shoulder which was denied by the company.  The agency found that claimant's injury had resulted in a 50% industrial disability and a penalty of $75,000.00 was assessed against the employer by the deputy.  On appeal, the penalty award was reduced to $33,027.69.  The district court affirmed the commissioner's decision. The court noted that factual issues were decided based on the substantial evidence standard, and that the application of law to facts was determined based on the "demanding 'irrational, illogical or wholly unjustifiable' standard of section 17A.19(10)(m)." On the penalty issue, the court noted that Dr. Troll had found that because there was no specific injury, he could not relate his shoulder problems to work.  Claimant subsequently saw Dr. Neff, who recommended surgery.  The agency found that Dr. Troll's opinion was not a reason

In Gordon Sevig Trucking Co. v. Radwan , No. 15-0297 (Iowa App. Feb. 24, 2016), the court concludes that the decision of the agency finding that claimant had sustained an aggravation of his underlying back condition, a shoulder injury and a subsequent mental injury was supported by substantial evidence.  The court also affirms the commissioner's 40% industrial disability award. Claimant had suffered an earlier injury to his back, which resulted in surgery.  When he was hired for the employer, he did not disclose the earlier back injury, but had no problems with his back for two years after he started work.  Claimant suffered an unwitnessed slip and fall at work in November of 2009.  He was transported by ambulance to the hospital. Claimant ultimately had surgery at a different level of his lumbar spine than his earlier surgery.  The deputy concluded that there had been a back injury and a temporary mental health injury.  A 40% industrial disability was awarded.  The decision was

In Kraft Foods, Inc. v. Shariff , No. 15-0287 (Iowa App. Feb. 24, 2016), the Court of Appeals addressed a situation where the deputy found that claimant's testimony was not credible and relied on the on-site physician to find that the claim did not arise out of and in the course of employment.  The commissioner reversed the decision of the deputy on appeal. Claimant was in an auto accident which resulted in a closed head injury, a back injury, a right shoulder injury and a left knee injury.  He was initially treated but at some point the plant doctor  "began to grow inpatient and disenchanted" with claimant, who was the safety manager for the employer.  Dr. Garrels indicated that he had "lost all respect" for the claimant and discussed the "extreme nature of his manipulation."  He left the impression with another treating doctor that he believed claimant was malingering. Dr. Field and Dr. Epp found that claimant's right shoulder problems were r

In Polaris Industries v. Hesby , No. 15-0629 (Iowa App. Feb. 10, 2016), the Court of Appeals addressed the issue of whether the defendant had presented sufficient evidence to justify a credit for prior injuries that occurred to claimant while working with the same employer.  The agency had concluded that no satisfaction of the employer's obligations was due because the employer failed to produce sufficient evidence to justify the credit.  The district court reversed, finding that claimant had acknowledged payment of at least 30 weeks of benefits and also noting that a prior hip injury had also resulted in payment of industrial disability. On appeal, the court remanded, finding that the agency's conclusion that claimant had not received permanency benefits was not supported by substantial evidence.  The court also remanded for consideration of payments made for claimant's 2009 hip injury, which had not all been paid out at the time of the decision in this case, which invol

In Annett Holdings v. Roland, No. 15-0043 (Iowa App. Feb. 10, 2016), the Court of Appeals upheld a decision of the agency awarding claimant physical therapy in his home state of Alabama rather than the physical therapy that had been offered in Des Moines.  When claimant had begun work for Annett Holdings, he signed a "memorandum of understanding" indicating that as a condition of employment, he agreed to temporarily relocate to Des Moines for the purposes of performing modified work if he were injured on the job.  Claimant had an elbow injury, and surgery in Alabama, following which he was taken off work and referred for physical therapy, which originally occurred in Alabama. When claimant was released to light duty work, he was temporarily relocated to a Des Moines hotel, where physical therapy was performed.  Claimant filed for alternate medical care and the agency concluded that treatment provided 897 miles from claimant's residence was unreasonable and unduly inconv

In Gleeson Constructors and Engineers, LLC v. Madrigal , No. 14-1467 (Iowa App. Jan. 13, 2016), the Court of Appeals affirmed the award of permanent total disability benefits on substantial evidence grounds. Claimant was a Mexican national who had three semesters of college in Mexico, but who was not fluent in English.  He suffered an episode at work in 2007 where his back locked.  He was placed on light duty and continued this work until he had surgery in 2009 and quit his job.  Physicians and therapists believed the surgery was successful and there was no objective physical impairment to his back.  Claimant testified to the extreme pain, loss of strength, inability to sleep and jerking in his left leg that occurred following the surgery. The court indicates that the subjective degree of pain made claimant's credibility an issue.  Defendants also alleged that claimant had "a history of attempting to avoid work."  Three functional capacity evaluations were administere