Court of Appeals Affirms Denial of Second Injury Fund Benefits
The Court of Appeals, in Ginther v. Second Injury Fund, No. 17-0867 (Iowa App. June 6, 2018), affirmed the decision of the agency that claimant had not demonstrated a qualifying injury for second injury fund purposes. Claimant's first injury was plantar fasciitis of the right foot. Dr. Sassman had concluded that no ratable impairment existed for plantar fasciitis, but found that a 3% whole person impairment for pain was appropriate. The deputy found that claimant did not have a qualifying first injury because Dr. Sassman's opinion that there was a 3% rating for pain was unconvincing. The deputy also noted that since the rating was to the body as a whole, this was not a qualifying injury for SIF purposes. The commissioner affirmed.
The court found that because Dr. Sassman did not find that claimant had suffered a loss of use of the right foot, but had rather provided a whole person rating based on pain, he did not establish that he had lost the use of his right foot. Accordingly, the court found there was no first qualifying injury as a matter of fact.
Claimant argued that his pain arose as a result of his foot injury and that therefore he had established a qualifying injury. Without additional comment, the court again indicates that claimant did not establish he had lost use of his foot. In a final ruling, the court finds that the decision of the agency was not irrational, illogical or wholly unjustifiable. The decision of the commissioner was affirmed.
The court really doesn't grapple with the underlying issue of the fact that the situs of the injury was the foot and claimant had established that he had planter fasciitis of the right foot and a permanent impairment, which would normally be enough to be a qualifying injury for Fund purposes. Turning this argument on its head, it would seem that if ratable pain in the foot is enough to keep the injury from being a scheduled member for Fund purposes, then pain as a general matter should be an industrial injury, regardless of whether it emanates from a scheduled member or not.
The court found that because Dr. Sassman did not find that claimant had suffered a loss of use of the right foot, but had rather provided a whole person rating based on pain, he did not establish that he had lost the use of his right foot. Accordingly, the court found there was no first qualifying injury as a matter of fact.
Claimant argued that his pain arose as a result of his foot injury and that therefore he had established a qualifying injury. Without additional comment, the court again indicates that claimant did not establish he had lost use of his foot. In a final ruling, the court finds that the decision of the agency was not irrational, illogical or wholly unjustifiable. The decision of the commissioner was affirmed.
The court really doesn't grapple with the underlying issue of the fact that the situs of the injury was the foot and claimant had established that he had planter fasciitis of the right foot and a permanent impairment, which would normally be enough to be a qualifying injury for Fund purposes. Turning this argument on its head, it would seem that if ratable pain in the foot is enough to keep the injury from being a scheduled member for Fund purposes, then pain as a general matter should be an industrial injury, regardless of whether it emanates from a scheduled member or not.
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