Iowa Workers' Compensation

Iowa's drug testing statute, section 730.5, provides a statutory remedy for wrongful discharge.  In Ferguson v. Exide Technologies , No. 18-1600 (Iowa Dec. 13, 2019), the Supreme Court concluded that an action for common law tort was not available and that the statutory remedy precluded common law recovery.  The court also found that attorney's fees were available under section 730.5. Plaintiff suffered injuries to her elbows as a result of her work with Exide.  When she reported the injury, she was informed that she had to submit to a drug and alcohol test under the employer's policy.  She refused to take the test and was fired for her refusal.  Plaintiff sued under 730.5 and also asserted a wrongful discharge tort.  The employer admitted to the statutory violation and a jury trial on damages, which was only allowed in the common law action, resulted in an award to plaintiff for lost wages and benefits and for emotional distress.  Plaintiff was also awarded attorney&#

In  Leeper v. Pioneer Hi-Bred International, No. 18-1637 (Iowa App. Nov. 27, 2018), the court of appeals affirmed the decisions of the agency and district court finding that claimant had not demonstrated a permanent impairment.  No physician had concluded claimant had a permanent ratable impairment for loss of function under the Guides, although Dr. Kuhnlein provided a 1% impairment for pain.  Despite this, the agency found that claimant had not demonstrated a permanent impairment.   The Court of Appeals concludes that despite claimant's assertions of numerous errors under the IAPA, the case boiled down to a question of whether the decision was supported by substantial evidence.  The Court of Appeals concluded that the agency had considered the medical evidence in addition to the testimony of claimant and found that no permanent impairment had been established.  This finding, according to the court, was supported by substantial evidence and the decision was affirmed under Iowa

The following are brief synopses of some of the cases that have been decided in cases involving post 7-1-17 dates of injury and the applicability date of the 2017 law. Rubalcava v. Siouxpreme Egg Products , No. 5066865 (Arb. June 23, 2020) - In this action, Deputy Grell concludes, based on the opinions of Dr. Archer, concludes that claimant’s injury, which was characterized as a shoulder injury, extended into the body.  Claimant had rotator cuff tears which were found to be proximal to the shoulder joint, as well as a distal clavicle excision.  The decision indicates that the analysis was similar to that of finding a wrist injury to be an injury to the arm rather than the hand.  The decision also analyzes earlier decisions concerning “shoulder” injuries.  Ultimately, because claimant returned to work, the claim was limited to the rating of impairment (9%) to the body as a whole under 85.34(2)(x). Alm v. Archer Daniels Midland , No. 5067128 (Arb. June 10, 2020) - Claimant sustained

In Romero v. Curly's Foods , No. 18-2066 (Iowa App. Nov. 6, 2019), the Court of Appeals affirmed the dismissal of a claim on notice grounds.  Claimant had alleged a cumulative injury and urged that she did not appreciate the permanent impact on employment until just before she notified defendants of the injury.  The commissioner concluded that claimant realized that the injury was work related and serious in May of 2013 because she argued she reported the injury to defendants at that time.  Defendants argued that notification had not occurred until 2014.  On the facts of the case, the commissioner concluded that claimant had not notified defendants in a timely manner.  The commissioner also noted that this was a fact specific finding, applicable only to this case.   Rather than delve into the question of when claimant appreciated that the injury would have a permanent impact on employment, the court finds that the commissioner's findings were supported by substantial evide

In Saltern v. HNI Corporation and Gallagher Bassett Services , No. 18-1748 (Iowa App. Oct. 9, 2019), the Court of Appeals affirmed a district court ruling dismissing a bad faith claim brought by plaintiff Saltern.  The ruling was premised on the court's conclusion that the employer did not lack a reasonable basis for denying benefits and thus the first prong of the bad faith test was not met. Claimant had prevailed in her workers' compensation claim on her claim for injury due to carpal tunnel syndrome.  Penalty was awarded based on the fact that HNI had not communicated its basis for rejecting the claim under section 86.13 of the Code.  Following the resolution of the workers' compensation claim, Saltern brought a bad faith action.  The district court concluded on summary judgment that at the time that HNI first denied the claim, there was no information to indicate that her carpal tunnel was related to employment. Specifically, no doctor had concluded that the injury

In Ostwinkle v. Mathay Construction Co. , No. 19-0341 (Iowa App. Sept. 25, 2019), the Court of Appeals affirmed the award of a second IME in a review reopening case under section 85.39 of the Code.  After filing his review reopening case, claimant sought and was granted an IME by the commissioner, which was duly paid by defendants.  Claimant subsequently dismissed the review reopening petition, and later refiled following the issuance of a second impairment rating by defendants' physician.  Claimant sought another IME, which was granted by the deputy.  Defendants appealed and  the commissioner and district court affirmed. On appeal to the Court of Appeals, the decision of the agency was affirmed. Defendants argued that 85.39 permits payment for only a single IME.  Claimant argued that the statute allows a second IME if there is a second impairment rating by defendants' physician, which had occurred in this case.  The court concluded that Kohlhaas was the most applicable

The court in A-Tec Recycling v. Wood , No. 18-2182 (Iowa App. Sept. 11, 2019) found that the commissioner's decision concluding that claimant's heart condition was attributable to his employment, was supported by substantial evidence.  A 10% industrial award was affirmed. Claimant had fallen from the back of a truck and experienced significant bruising on his right side.  Following the fall, the condition worsened and when he sought medical treatment, he was diagnosed with atrial fibrillation, pneumonia and pleural effusion.  The Court of Appeals concludes that because claimant's treating physician found that the work injury was a substantial contributing factor to the heart problem, the decision of the agency was supported by substantial evidence.  The doctor's finding that claimant would be required to use medications for the rest of his life as a result of the heart condition was also found to be substantial evidence supporting a finding of permanency.  

The Court of Appeals, in Hecht v. Highline Construction, Inc ., No. 18-2017 (Iowa App. Sept. 11, 2019), affirmed the commissioner's denial of permanency benefits as well as the denial of penalty benefits. The original arbitration decision had awarded claimant a 30% industrial award based on hearing loss and tinnitus.  Claimant testified that when working at a job as a driver after working for Hecht, he had a difficult time driving because of the tinnitus and hearing loss and left that job.  Following the hearing, defendants sought to introduce three additional exhibits, which demonstrated that claimant left Hecht because of unacceptable performance and left his subsequent job because he was asked to conduct illegal DOT inspections.  The deputy granted a motion to admit this evidence.  The commissioner affirmed this finding and based on this evidence, found that claimant was not credible and reversed the 30% award.   On appeal, claimant argues that under rule 4.28, a request

In Bell v. 3E , No. 19-0310 (Iowa App. Sept. 11, 2019), the Court of Appeals reversed the decision of the district court and concluded that a petition for judicial review in a workers' compensation case was not served in a timely manner.  The petition was therefore reversed. Petitioner filed a timely petition for judicial review but did not immediately serve the petition as required by IRCP 1.302(5) .  Although the petition was served by EDMS after being filed on May 22, 2018, the petition was not served by petitioner until August 24, two days after the district court noted that no service had occurred.  The district court concluded that the late service did not prejudice 3E. On appeal, the Court of Appeals reversed the decision of the district court, and noted that section 17A.19(2) of the Code required service within ten days, by personal service or mail. The court noted that the EDMS rules do not equate to service of process when a petition is automatically served under t

In Sullivan v. West Central Cooperative,  No. 18-1811 (Iowa App. Aug. 21, 2019), the Court of Appeals affirmed the decision of the commissioner which concluded that claimant had failed to demonstrate a physical mental claim. Claimant had a stipulated physical injury at work, which was not before the court on appeal.  The sole issue presented to the court was whether claimant had established a physical mental injury.  At hearing, two reports were presented by claimant in favor of a permanent mental health problem caused by the accident.  Claimant relied on the reports of Dr. Mills and Dr. Gallagher.  Defendants argued, based on the reports of Dr. Chesen and Dr. Andrikopoulos, that claimant had not established a physical mental injury.  They found that claimant was malingering and had no ongoing mental health problems as a result of the accident.  The deputy found and the commissioner affirmed, that claimant had not reported any depression, PTSD or other mental health problems in the w

In Saghir v. Menards, No. 18-1712 (App. August 7, 2019), the court of appeals affirmed the decision of the commissioner, which had concluded claimant had not established a permanent impairment or industrial disability.  While working for Menards, claimant had a piece of lumber fall on his head.  Testing showed normal head, neck and back results and the treating neurologist indicated that most of the symptoms were related to depression. A neuropsychological evaluation found no permanent neurological impairment.  No work restrictions were imposed. At hearing, claimant indicated that he suffered from memory problems, balance issues and headaches.  An eye physician found significant loss of function in the eyes and the IME doctor assigned ratings for the head injury and vision, gait and neck problems, as well as limiting claimant to sedentary work. The deputy concluded claimant was not a credible witness and stated that he exhibited a "deliberate effort to exaggerate and conc

Carroll Area Nursing Services v. Malloy , No. 18-2126 (Iowa App. July 24, 2019) involved the operation of the going and coming rule and resulted in the award of healing period benefits by the commissioner.  The employer appealed and the Court of Appeals affirms the award of benefits. Claimant was a visiting nurse.  On the date of her work accident, she had left her car at her mother's house to attend a personal medical appointment.  Claimant's mother drove claimant to her appointment and on the way back from the appointment, claimant was asked to see a patient of hers.  She returned to her house, changed into her work clothes and as she was heading to the patient's house, was involved in a head-on collision.  At hearing, claimant was found entitled to a running award of healing period benefits.  The agency cited the personal vehicle exception to the going and coming rule.  The agency also found there was no personal deviation at the time of the accident. The Court noted

In Tilton v. H.J. Heinz Co. No. 18-1629 (Iowa App. July 24, 2019), the Court of Appeals reversed the decision of the district court and affirmed the action of the commissioner which had found claimant had not notified the employer of her claim in a timely manner.  . Claimant suffered a cumulative back problem while working for Heinz.  In 2010, she began working in a position that was said to be physically demanding, although she had suffered from back pain since 2000 and had treated for it since that time. Claimant was taken off work due to back pain in March of 2010, but she was found to be capable of work without restriction in September of 2010. The problems recurred in February of 2011 and ultimately claimant went on disability benefits on April 15, 2013.  She gave notice of a work injury on May 5, 2013 and filed a claim for benefits in March of 2015. The commissioner concluded that claimant's condition had manifested in 2010 and thus her 2013 notice was not timely under 85

In McDonald v EZ Pay , No. 18-1152 (Iowa App. July 24, 2019), the Court of Appeals affirmed a decision of the commissioner finding that claimant's legionnaire's disease was not related to an incident at work where he cut his hand while attempting to catch a cutting blade.  At hearing, claimant presented evidence from his treating physician that the cut and subsequent infection made him more susceptible to contacting legionnaire's.   A supervisor at the plant indicated in an affidavit that there had never been Legionella bacteria found at the plant and opined that he did not believe this condition could have been caused by the operations at the plant.  The agency initially accepted the reports of the doctor over that of the supervisor and awarded benefits.  This finding, however, was reversed on appeal, finding that neither the treating doctor nor Dr. Bansal was aware of the procedures at the plant to prevent Legionella bacteria from infecting the water in the plant. The

In Dubinovic v. Des Moines Public Schools , No. 18-1065 (Iowa App. June 5, 2019), the court was presented with the commissioner's denial of claimant's application for penalty benefits.  Claimant argued that healing period benefits were not paid in a timely manner and that penalty benefits were due for this and for later payment of permanency.  The commissioner found that the employer paid healing period and permanency benefits in a timely manner. The court of appeals first finds that claimant did not establish that there was a delay in payment or a denial of benefits since the employer had paid benefits on a timely basis.  Claimant alleged that the payment of  healing period benefits was several days late.  Claimant was paid wages by the employer until January 25 and healing period benefits were begun on January 29 for amounts higher than claimant's weekly earnings.  The court finds that on these facts, the failure to award penalty benefits was not irrational, illogica

Acting on a certified question of law from the federal district court, the Supreme Court in De Dios v. Indemnity Insurance Co. of North America and Broadspire Services, Inc. , No. 18-1227 (Iowa May 10, 2019) concluded that a bad faith action was not proper against a third party administrator because the administrator did not possess the attributes that have led to the imposition of bad faith liability The dispute arose out of a workers' compensation claim in which plaintiff  sued both the insurance carrier and 3d party administrator for bad faith.  The court found that the bad faith cause of action arises from: 1) the special contractual relationship between the insurer and insured, 2) the specific statutory duties imposed on insurers, or  3)some combination of the two.  Because a 3d party administrator did not possess these attributes, according to the court, bad faith liability against that entity was improper. The court canvasses the law of bad faith, both generally and in t

In Ortiz v. Loyd Roling Construction , No. 18-0047 (Iowa May 24, 2019), the Supreme Court reversed earlier rulings that held that service of a petition for judicial review was not timely when served via email rather than regular mail.  The IAPA, section 17A.19(2), provides that it is a jurisdictional requirement for petitioner to mail a copy of the petition to all attorneys of record.  In this case, petitioner emailed a copy of the petition in a timely manner, but did not mail the petition within 10 days as required by statute.  Both the district court and court of appeals held that since the statute did not discuss the emailing of the petition service was untimely and the petition was dismissed.  The Supreme Court reverses and discusses the fact that when the statute was enacted in 1981, email was virtually unknown.  The court also notes that most discussions between attorneys in 2019 occurs via email and that there has been a change such that email is the "required or preferre

In Niday v. Roehl Transport, Inc. , No. 18-0712 (Iowa App. April 3, 2019), the court addressed section 85.71(1)(b) of the Iowa Code and concluded that since the contract of hire between claimant and the employer had been made entirely in Iowa, jurisdiction under Iowa workers' compensation law was appropriate in Iowa.  Claimant changed careers when in his 50's received his CDL in Iowa and saw an ad for Roehl in Iowa.  Roehl did not have a terminal or a drop lot in Iowa.  Claimant applied online and was told that he was preliminarily qualified for the position, which first required various medical testing.  A car was rented for claimant in Iowa and he was to drive to Wisconsin (headquarters for Roehl).  Claimant reported to Gary, Indiana for classroom training. Claimant passed this training and was assigned a driver for on the road training throughout the U.S.  Claimant retrieved a truck in Indiana and drove home to Iowa in the truck. Claimant's route information was set up

In Gumm v. Easter Seal Society of Iowa, Inc., No. 18-1051 (Iowa App. May 15, 2019), the Iowa Court of Appeals reversed the decision of the commissioner and district court and held that a claimant was not required to prove a discrete and distinct injury to prove a cumulative injury had occurred.  Claimant had suffered and injury to her right ankle in 2008 and was provided with a 17% rating for this injury.  She returned to work following the injury.  In 2014, claimant filed another petition, alleging that she had sustained a cumulative injury to the right ankle following her return to work.  The commissioner concluded that claimant had not suffered a distinct and discrete injury and held that under Ellingson , the failure to demonstrate such an injury defeated her claim.  The commissioner found that the deterioration of claimant's ankle condition was a sequella of the initial injury and was not compensable, as claimant was outside the statute on limitations on the initial claim. 

In Dubinovic v. Des Moines Public Schools , No. 18-0194 (Iowa App. May 15, 2019), the Iowa Court of Appeals affirmed a decision finding that claimant had not demonstrated a mental/mental injury under Dunleavy   and Brown  v. Quik Trip.  Claimant had argued that the Supreme Court's standard in Dunleavy was inconsistent with the workers' compensation law.  The court declines to address this issue, as they are not in a position to overrule existing precedent.  The court finds that the agency correctly held that claimant had not met the Dunleavy standard. The court also addressed the question of whether claimant had demonstrated he met the Brown  standard, which does not require a showing of additional stress if there is an event of a sudden traumatic nature precipitating the mental injury.  The court found that substantial evidence supported the agency's finding that there was no such traumatic event.  The court also found that the failure to apply the Brown  standard was no

In Baccam v. ACH Food Companies, aka Tone's, No.18-1002 (Iowa App. March 6,  2019), the court addressed issues concerning the extent of claimant's leg impairment,  the extent of penalties and costs of the action.  Claimant was found to have a 2% leg impairment by defendants' doctor, 3% from his IME doctor, but argued that based on his loss of use, his award should have been higher than the 3% awarded by the commissioner.   The Court of Appeals affirmed, based on substantial evidence.  On the penalty claim, claimant argued his penalty benefits on permanency should have been greater.  a 5% penalty award was made,  based on a failure to pay permanency benefits when due.  The court concluded that there was no error in this finding.  On the costs issue, the court found that claimant was not entitled to payment for the costs of the appeal transcript. On the remainder of costs, the court found that the commissioner had not abused its discretion in denying costs. 

In Huff v. CRST Expedited , No. 18-0336 (Iowa App. March 6, 2019), the court addressed an alternate medical care dispute and remanded the claim to the agency for a determination of certain facts relating to claimant's access to certain appliances and services.  The court concludes that the absence of medical evidence is not a bright line bar to an award of alternate medical care, but finds the agency must  make further factual findings. Claimant had a catastrophic accident, rendering him wheelchair bound.  Following his accident, he lived with his son in a second floor apartment, but ultimately requested ADA compliant living arrangement, a handicap van and a home healthcare provider.  The agency initially denied the alternate medical care application because claimant had not presented medical support for his alternate care requests.  Claimant later filed a second alternate medical care request, which contained an assessment from the Area Agency on Aging relating to his medical ne

In Lynch Livestock v. Bursell , No. 17-1629 (Iowa App. March 6, 2019), claimant was awarded medical expenses for unauthorized care premised on a beneficial care theory. In an earlier appeal, the court of appeals had remanded the claim to the agency, finding that if alternate care had not been correctly ordered based on the correct legal standard, claimant must prove the treatment was reasonable and beneficial. On remand, the agency denied the petition for alternate medical care because claimant had not exhausted conservative care before obtaining surgery.  Following the alternate care hearing, an arbitration hearing was held and claimant was awarded medical care, finding that the deauthorization of certain previously authorized physicians was inappropriate and that claimant's care with these doctors was reasonable and beneficial. At the district court level, the employer argued that claimant had not met the Bell Brothers  standard.  the district court agreed, holding that defen

In Evenson v. Winnebago Industries , No. 17-1419 (Iowa Jan. 18, 2019), the court held that the failure to file a notice of appeal with the district court in a timely manner meant that the Supreme Court did not have jurisdiction to consider the appeal.  Accordingly, the appeal was dismissed Two appeals were filed in this workers' compensation action, one originating in Winnebago County and the other in Polk County. Although the appeals were timely filed with the Supreme Court and copies were sent to opposing counsel, there was no filing of the appeal with the clerks of the respective counties until a corrected notice was filed with the Polk County Clerk 144 days after service.  Appellate Rule 6.101(1)(b) holds that time for filing a notice of appeal is tolled when the notice is served, "provided the notice is filed with the district court clerk within a reasonable time." Thus, the question before the court was whether filing 144 days after service was a reasonable time. 

In Pella Corp. v. Winn , No. 17-1545 (Iowa App. Jan. 9, 2019) , the court affirms an award of permanent total disability and penalty.  The employer had also argued that the petition for review-reopening was untimely and the court affirms the rejection of this argument by the agency. In the original action, claimant was found to have a work-related injury, but as temporary total and permanency benefits were not in dispute, only medical benefits were awarded.  This decision was ultimately affirmed by the Court of Appeals.  Claimant subsequently filed a review-reopening proceeding, at which the agency awarded permanent total disability.and penalty benefits.  On review, Pella argued that review-reopening is not available under Iowa Code 85.26(2) and 86.14(2) when the initial award did not include weekly disability benefits. The agency determined an award of solely medical benefits was eligible for review-reopening under section 85.26(2).  Pella argued "weekly benefits" mea

In Dunlap v. AIG, Inc., Commerce and Industry Insurance Company , No. 17-1503 (Iowa App. Jan. 9, 2019), the Court of Appeals reverses a district court order granting summary judgment in favor of defendants in a workers' compensation claim. The case was brought following a workers' compensation action in which claimant was found entitled to benefits but penalty benefits were denied because the issue of liability was fairly debatable because defendants had one doctor opining that the injury was not work-related.   In the underlying workers' compensation claim, Dr. Wolfe had opined that it is possible that Dunlap's arm injuries, while not directly caused by the initial work injury, were a result of the natural consequences of claimant's back injury requiring him to ambulate with the use of a cane. Despite this, defendants continued to deny liability. Claimant was ultimately found to be permanently and totally disabled and awarded medical care.   Plaintiff subs

This document provides information concerning appeal decisions by the workers' compensation commissioner in 2019, and will be updated as information becomes available throughout the year. December 2019 Avdic v. Wells Fargo ,  No. 5065576 (App. Dec. 31, 2019) - Although a neck injury was denied, claimant was awarded a 15% industrial disability for a shoulder injury (Grell). Without additional comment, the arbitration decision is affirmed.  15 months from arbitration to appeal decision.   Clapper v. Herberger Construction , No. 5063340 (App. Dec. 31, 2019) - Claimant was awarded a 75% industrial disability.  Defendants assert that claimant's injury should be considered under 85.34(2)(s) and also argue on appeal that the award was excessive.  The commissioner affirms the industrial award.  The commissioner notes in his decision that although the deputy had not specifically indicated that claimant had sustained a body as a whole injury, it was clear that a mental inju