2019 Workers Compensation Appeals
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.
Rios v. John Deere Waterloo Works, No. 5053450 (App. Aug. 19, 2019) - In the case, claimant was found to have failed to demonstrate that her injury arose out of her employment. (Pals). On appeal, the commissioner affirmed. The fighting issue in the case involved the effects of claimant's fall down the stairs. Due to her condition, claimant was unable to testify as to her fall down the stairs and a witness to the fall indicated that claimant fall on down six to eight stairs and was not dazed when he helped her and that claimant left without assistance. Claimant's experts relied on a history of what seemed to be a more serious fall and their reports were rejected because they were not based correct facts and were thus unreliable. 21 months from rehearing decision to appeal decision.
Spencer v. St. Pius Church, Nos. 5053747, 5058037 (App. Aug. 14, 2019) - In the arbitration decision, the deputy found that claimant was entitled to 300 weeks of benefits. The deputy also found that a letter from defendants' doctor was prejudicial because discovery had already closed and this exhibit was excluded. On appeal, the commissioner first finds that the document should have been admitted. The commissioner concluded that claimant was already in possession of this document when the parties entered into an agreement closing discovery. Hence, claimant was not surprised or prejudiced by the document. On the merits of the appeal, the commissioner reduces the 60% industrial award to 30%. This was based largely on the fact that claimant never restricted his work activities in response to the restrictions recommended by Dr. Sassman. The claimant was able to perform the same tasks as a janitor as he had performed previously. 18 months from arbitration to appeal decision.
Auge v. Lago Construction, LLC, No. 5062048 (App. Aug. 8, 2019) - In this matter, the deputy concluded that claimant had suffered a 50% industrial loss and ordered medical mileage. Reimbursement for two IME's was denied on the basis that no payment was possible if the IME preceded a rating from defendants' doctor (Christenson). On appeal, the commissioner affirms the ID award and award of medical mileage, but finds that under rule 4.33(6), the report portion of the two IME's was payable. 18 months from arbitration to appeal decision.
Brown v. Camanche Community School District, No. 5034722 (Remand Aug. 7, 2019) - The commissioner reduced claimant's industrial disability from 85 to 45% in the appeal decision. The district court concluded the commissioner had not considered the opinions of Dr. Shapiro. On remand, the commissioner's designee (Copley) affirms the reduction to 45%. The decision finds that it was unclear whether Dr. Shapiro had reviewed any of the claimant's medical records prior to a post-injury angiography. The statements of Dr. Shapiro were not found to be persuasive. The Deputy notes that claimant had not relied on Dr. Shapiro until the petition for judicial review. Two monthsfrom remand to agency remand decision.
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 injury alleged by claimant was industrial and caused permanent impairment. Based on this, the industrial award was affirmed. 16 months from arbitration to appeal decision.
Brannan v. Casey's Marketing, No. 5063484 (App. Dec. 30, 2019) - In this claim, the arbitration decision found that claimant had sustained a 10% partial disability of the right leg. Medical benefits for a knee replacement surgery were denied, as claimant was not in need of a knee replacement at the time of hearing. Penalty benefits of $698 were also awarded (Gordon). The commissioner affirms the arbitration decision and notes that if any intervening events occur which make the need for a knee replacement non-work related, defendants can raise those events at the time. 16 months from arbitration to appeal decision.
Garzona v. Wyckoff Heating & Cooling, Nos. 5061081, 5061082 (App. Dec. 30, 2019) - Claimant was found permanently and totally disabled as a result of should and back injuries (Elliott). On appeal, the commissioner concludes that claimant did not sustain an injury to his right shoulder, but affirmed the decision that claimant injured his back. In terms of his lower back injury, the commissioner concludes that claimant is precluded from virtually all work in the construction industry, he can handle a supervisory position. Based on his limitations to light or lower medium work, the commissioner finds claimant is entitled to a 65% industrial disability. Costs for an FCE were denied, as the FCE was not required by a doctor. The vocational report of Carma Mitchell was not awarded as costs as he did not rely upon her report. 18 months from arbitration to appeal decision.
Vangvoratheo v. IAC Iowa City LLC, No. 5058182 (App. Dec. 20, 2019) - File not found. The underlying arbitration decision (Gordon) awarded payment of seven weeks of TTD as well as payment of out of pocket medical costs. 16 months from arbitration to appeal decision.
Nguyen v. Des Moines Public Schools, No. 5058344 (App. Dec. 19, 2019) - Claimant was awarded a 70% industrial, with permanency commencing on 9-1--17 (Grell). Defendants challenged the award as well as the commencement date. The commissioner affirms without additional analysis. 16 months from arbitration to appeal decision.
Hussing v. Lowe's Home Centers, No. 5059108 (App. Dec. 18, 2019) - The deputy provided a 25% for injuries to her back and hip as well as a $500 penalty for an unreasonable delay in weekly benefits (Pals). The deputy's findings were affirmed without comment by the commissioner.
Dickerson v. John Deere Davenport Works, No. 5065074 (App. Dec. 16, 2019) - File not found.
Huff v. CRST Expedited, Inc., No. 5063162 (Remand Dec. 13, 2019) - In this alternate medical care matter, claimant alleged that he was entitled to a handicap van or alternate means of transportation; a home health care aide to provide assistance with activities of daily living; and wheelchair accessible/ADA compliant housing. The initial agency decision denied benefits because claimant had not prevented medical evidence to support the requests. After appeals to the Court of Appeals, the case was remanded because the court concluded that medical evidence was not essential to the claims being made by claimant.
On remand, the deputy denies all of claimant's claims with the exception of the assistance of a home health aid for cutting his toenails. The van was denied because claimant had given away his van to his son prior to the injury and there was no evidence he was unable to use a taxi or other vehicle for transportation. Most of the in-home health assistance was denied because the evidence did not demonstrate the needs for these items or the inability to perform most activities of daily living. The housing assistance was rejected because the deputy (Palmer) concluded that rent did not constitute an appliance under the terms of the statute. 9 months from Court of Appeals decision to remand decision.
Perez-Avina v. Brenneman Pork, Inc., Nos. 5050212, 5050213 (App. Dec. 13, 2019) - Claimant was found to be permanently and totally disabled based on chronic pain syndrome in her bilateral upper extremities, but found that claimant had not established CRPS. Claimant's depression was also found to be related to the work injury (Palmer). Both parties appealed. On appeal, the commissioner affirms the permanent total disability award without additional discussion. 20 months from arbitration to appeal decision.
Jackson v. Tyson Fresh Meats, Inc., No. 5065752 (App. Dec. 12, 2019) - At arbitration, claimant was found to have failed to carry her burden of proof (Gerrish-Lampe). On appeal, the commissioner affirms without comment. 16 months from arbitration to appeal decision.
Powell v. City of Des Moines, No. 5058555 (App. Dec. 11, 2019) - The deputy concluded at hearing that claimant did not timely file his claim based on the fact that claimant had not been paid wages in lieu of benefits (despite the fact that the evidence indicated he was paid "injury pay" under the city's rules) (Gordon). On appeal, the commissioner affirms without additional comment. 16 months from arbitration to appeal decision. 17 months from arbitration to appeal decision.
Fleetwood v. Fansteel Wellman Dynamics, No. 5022736 (App. Dec. 10, 2019) - Claimant was awarded a 70% disability in the original decision and in this review-reopening decision, the deputy concluded claimant had demonstrated permanent total disability (Gordon). On appeal, the commissioner affirms the permanent total award. The commissioner concluded that the deputy correctly assessed the credibility of the claimant and her experts, Dr Koprivica and Carma Mitchell.
Wheeler v. The Kensington, No. 5067687 (Remand Dec. 9, 2019) - In this remand decision, the commissioner's designee (Palmer) concludes that pursuant to the ruling of the district court defendants had denied liability in this alternate medical care case. Accordingly, the petition for alternate medical care was dismissed. In the interim, defendants had paid for the care sought by claimant.
Strong v. Western Iowa Tech Community College, No. 5040800, 5056575 (App. Dec. 6, 2019) - Following hearing, claimant was found to have sustained a 60% industrial disability. Defendants assertion that they were entitled to a credit for overpayments of healing period benefits was rejected under Deutmeyer (Walsh). On appeal, the commissioner affirms without additional comment.
Nank v. Universal Tank-Fabrication, No. 5056865 (App. Dec. 6, 2019) - Claimant was found to be permanently and totally disabled as a result of left and right shoulder injuries (Elliott). On appeal, the commissioner reduces the award to 75% industrial disability. The commissioner initially notes that the opinions of Dr. Sassman and Dr. Hunt were to be preferred over those of Dr. Nepola. Dr. Sassman limited claimant to lifting 20 pounds to waist height. Defendants' vocational specialist (Sellner) indicated that there were jobs claimant could perform, but claimant did not attempt to perform any of the work recommended. Despite the fact that claimant was receiving social security disability and was not able to return to his long time work as a painter, his lack of motivation was found to preclude a finding of PTD and the award was reduced to 75%. 18 months from arbitration to appeal decision.
Tew v. Sparboe Farms, Inc., No. 5065716 (App. Dec. 5, 2019) - The deputy concluded that claimant failed to carry his burden of proving an injury arising out of employment. (Palmer). The commissioner affirms. In explaining the decision, the commissioner notes that claimant had initially noted an injury occurring following a fall while mowing his yard. Ultimately, after an extended discussion (the decision runs to 17 pages), the commissioner concludes that claimant's testimony was inconsistent and contradictory. After analyzing the evidence, the commissioner finds the claimant failed to provide convincing and credible testimony to explain how his injury had occurred. 18 months from arbitration to appeal decision.
Coop v. Manpower, No. 5058958 (App. Dec. 4, 2019) - Claimant was found eligible for running healing period for a pre-7/1/17 shoulder injury (Gerrish-Lampe). Defendants appeal and the commissioner affirms without additional comment. 15 months from arbitration to appeal decision.
Donath v. Heyl Trucking, Inc., No. 5056087 (App. Dec. 2, 2019) - Claimant was not not to have established a permanent disability following hearing (Gordon). On appeal, the commissioner affirms without additional comment. 17 months from arbitration to appeal decision.
November 2019
Goss v. Second Injury Fund, No. 5051761 (App. Nov. 27, 2019) - In this claim, the deputy concluded that claimant had suffered a first injury, but the second injury pled was found to be a sequela of the first injury and consequently not a second injury for Fund purposes (Pals). On appeal, the commissioner affirms without additional comment. 16 months from arbitration to appeal decision.
Lehnhardt v. Nordstrom, Inc., No. 5057034 (App. Nov. 26, 2019) - Claimant was found entitled to a 30% industrial disability following hearing and a $2000 penalty was awarded (Palmer). Claimants appeals the amount of the award and penalty. The commissioner affirms without additional comment. 15 months from arbitration decision to appeal decision.
Meador v. Second Injury Fund, No. 5057325 (App. Nov. 25, 2019) - In this case, the deputy concluded that claimant had successfully established a claim against the Fund and provided a permanent total award (Walsh). On appeal, the commissioner affirms the permanent total award without discussion. The commissioner also finds that the Fund is due a credit for claimant's condition prior to the second, work-related injury. Claimant had a preexisting condition to his leg which had resulted in a knee replacement prior to his work related second injury, which was the only injury pled. The commissioner found that despite claimant's allegation that the amount of the credit would be speculative, the rating for the prior injury was not speculative because a knee replacement is specifically rated in the Guides. The commissioner found that to do otherwise would be unfair to the Fund and noted that a claimant is not required to provide a rating for first qualifying injuries, citing George. The effects of the decision may be limited because many injuries are not treated with such precision in the Guides. The decision may also be useful for claimants in future Fund cases because it makes clear that a rating for the first injury is not required. Although this is consistent with caselaw, it is helpful to have this stated as plainly as it is in the decision. 18 months from arbitration to appeal decision.
Berte v. Snap-On Logistics Co.. No. 5065025 (App. Nov. 22, 2019) - Claimant was found to have a temporary exacerbation of a mental injury and to have injuries to her fingers. Claimant was also found to be entitled to the costs of Dr. Bansal's IME under 4.33(6) (Gordon). On appeal, the commissioner affirms the merits of the decision without additional comment. On the costs issue, the commissioner continued his cramped reading of DART and concludes that because Dr. Bansal did not specify in his assessment of "record review and report" which costs applied to each, that no costs were appropriate. 18 months from arbitration to appeal decision.
Bennett v. Progressive Processing, No. 5055697 (App. Nov. 19, 2019) - In this action, the deputy found claimant had not sustained a permanent mental injury. Claimant’s injury was found to be confined to the left leg and no body as a whole injury was found. Penalty benefits in the amount of $1500 were awarded (Gordon). On appeal, the commissioner affirms with no additional discussion. 19 months from arbitration to appeal decision.
May v. Menards, No. 5041559 (App. Nov. 15, 2019) - At hearing, claimant was found to be PTD in this review-reopening action (Gerrish-Lampe). On appeal, the commissioner's designee (Copley) affirms, finding that the report of defendants' vocational expert (Sellner) was inconsistent with the restrictions placed on claimant and was also inconsistent with claimant's testimony about the type of work he could perform. Only a few of the positions identified by Sellner fell within the restrictions imposed on claimant. Defendants were found to have failed to produce evidence of the availability of suitable employment and the employer did not offer claimant work. Accordingly, claimant met his burden of demonstrating he was an odd lot employee. 18 months from arbitration to appeal decision.
O’Hara v. SIF, No. 5058876 (App. Nov. 14, 2019) - Claimant was found to have suffered first and second injuries, resulting in a 30% industrial disability (Palmer). Both parties appeal and the commissioner affirms without comment. 17 months from arbitration to appeal decision.
Cabrera v. Tyson Foods, No. 5055898 (App. Nov. 13, 2019) - In this case, the deputy concluded that claimant had not demonstrated she sustained a permanent disability to her back (Elliott). The commissioner affirms without additional comment. 20 months from arbitration to appeal decision.
Cuturovic v. Tyson Foods, Inc., No. 5063063 (App. Nov. 8, 2019) - Claimant was found not to have met her burden of proof that her low back condition was caused by work (Grell). Claimant appeals and the commissioner affirms the arbitration decision. 19 months from arbitration to appeal decision.
Mahoney v. Robert Half International and SIF, No. 5056921, 5056922 (App. Nov. 8, 2019) - Claimant was found entitled to Fund benefits based on a first injury to the right upper extremity and seonc injury to the left wrist. A 30% industrial award was provided, with the Fund having credit for 25 weeks for the first injury and 30 weeks for the second. Claimant had also alleged a Fund case involving another cumulative injury which occurred after the second injury, but this claim was denied (Walsh). The commissioner affirms on the issues involving the Fund. The decision was reversed insofar as the hearing deputy found that costs were to be assessed against the fund. The commissioner concludes that costs are not appropriately assessed against the fund under 85.66. 19 months from arbitration to appeal decision.
Whitacre v. Avera Holy Family, No. 5061284, 5061285 (App. Nov. 8, 2019) - In this action, the deputy concluded that defendants were entitled to summary judgment on an issue involving timely notice. Claimant argues that there was a genuine dispute of material fact on appeal and the commmissioner, specifically the fact that he told his supervisors about the injury. The commissioner finds that since claimant's answers to interrogatories were directly contrary to statements presented by the defendants, there was a genuine dispute of material fact and the decision was reversed. 16 months from arbitration to appeal decision.
Lapcheske v. Polk County, No. 5055505 (App. Nov. 6, 2019) - At arbitration, claimant was found to have sustained a fall that resulted in a 25% industrial disability. The arbitration decision concluded that claimant had not suffered an idiopathic fall, but had slipped on water, resulting in injury (Palmer). On appeal, the commissioner's designee (Copley) affirms in total but discusses the arising out of element of the claim in some detail. The appeal decision concludes that claimant did not slip on water, resulting in the conclusion that this was an unexplained fall. The idea that the fall was idiopathic was rejected because the fall was not something that occurred because of claimant's personal condition. Instead, the fall, although unexplained, meaning that the actual risk rule applied. In this case, because claimant landed on a stone floor, resulting in a humerus fracture. The appeal decision concluded that because the floor surface increased the risk of fracture, there was actual risk associated with the workplace and thus the injury arose out of employment. The 25% industrial award was affirmed without additional comment. 17 months from arbitration to appeal decision.
Hinz v. Unity Point Health, No. 5052769 (App. Nov. 5, 2019) - The arbitration decision in this review reopening decision found that claimant had failed to satisfy her burden of demonstrating that she was entitled to additional benefits. Reimbursement of the unpaid balance of the IME was also denied (Copley). On appeal, the commissioner affirms the arbitration decision without additional comment. 16 months from arbitration to appeal decision.
Vega v. Farmland Foods, No. 5057931 (App. Nov. 5, 2019) - In this appeal, the deputy found that claimant had established CRPS and was awarded a 25% industrial disability (Pals). Defendants challenge the award, arguing that Dr. Ledet and Dr. Mooney, who concluded claimant did not have CRPS, should be followed rather than claimant's treating physicians (Dr. Jensen, Dr. Nalluri, Dr. Klein, Dr. McQueen). On appeal, the commissioner's designee (Gerrish-Lampe) finds that the opinions of the treating doctors should be followed, inasmuch as they had all noted indications of CRPS, had diagnosed CRPS and had treated claimant as though he had CRPS. The deputy notes that the standard claimant must meet is whether the injury is more likely than not CRPS, not that claimant has proven CRPS beyond a reasonable doubt. The 25% industrial award was affirmed with little discussion. The deputy also rejected an argument that claimant's injury was restricted to his leg, finding tha this was a nervous system injury under Collins and Barton. The deputy also noted that the CRPS affected claimant's ability to walk and created back pain, also industrial in nature. 20 months from arbitration to appeal decision.
Peckham v. Roger Roberts dba Roberts Construction, No. 5056939 (App. Nov. 1, 2019) - At hearing, claimant was found to be entitled to 100 weeks of benefits as a result of bilateral leg injuries compensated under 85.34(2)(s). The deputy found that injuries to the head, nose, back, shoulder and left hip, as well as mental injuries, did not arise out of employment (McGovern). On appeal, the commissioner modifies the deputy's reliance on Dr. Kimelman impairment rating for claimant's leg injuries and more significantly found that claimant's back injury was related to work. Claimant was awarded a 75% industrial disability. 17 months from arbitration to appeal decision.
The commissioner adopted Dr. Gehrke's 8% whole body impairment rating to the right lower extremity and 2% whole body to the left ankle. to reduce the rating to 10% whole body. The finding that claimant had a 20% impairment rating for the right leg only was therefore modified. Ultimately, however, the commissioner concluded, contrary to the deputy, that claimant had alleged and discussed back and hip injuries close in time to the injury and that this was related to claimant's work injury. The commissioner concluded that Dr. Kimelman erred in finding that claimant had not complained of back injuries for years when instead those complaints occurred within weeks. Because the injuries were now industrial and the leg injuries limited claimant to sit down duty, the commissioner concluded claimant had a 75% industrial disability.
Rice v. SIF, No. 5049190 (App. Nov. 1, 2019) - In this review-reopening action, the deputy at the arbitration hearing concluded that claimant had not met his burden of demonstrating that he was entitled to an increase in benefits (Grell). Without further analysis, the commissioner affirms. 17 months from arbitration to appeal decision.
October 2019
Douglas v Vermeer Mfg., No. 5062611 (App. Oct. 23, 2019) - In this claim, Douglas was awarded a 10% industrial disability based on respiratory injuries allegedly due to his work as a welder. The deputy relied on the reports of Drs. Bansal, Vemuri and Hellbusch to find that claimant’s injury arose out of his employment (Grell). Claimant was an immunosuppressed individual. Dr. Hartley concluded that it could not be determined whether claimant’s increased susceptibility to pneumonia was a result of his exposure to fumes as a welder. On appeal, the commissioner’s designee (Copley) reverses the decision and finds that claimant failed to prove his injury arose out of employment. This decision appears to arise out of the deputy’s conclusion that although claimant may have demonstrated that he was more susceptible to pneumonia because of his work as a welder, claimant must still demonstrate that the germs the caused the pneumonia came from his workplace. Because the deputy concluded, based on Dr. Hartley’s report, that it was impossible to know where these germs came from, claimant failed to meet his burden of proof. In essence, the decision makes it impossible for any claimant to demonstrate work-related pneumonia unless they can specifically prove that the germs causing the pneumonia came from employment. 18 months from arbitration to appeal decision.
Bursell v. Lynch Livestock, No. 5032265 (Remand Oct. 15 2019) - The agency was found by the Court of Appeals to have applied the wrong standard in granting a claim for alternate medical care awarded as a part of an arbitration proceeding. Claimant had originally been found to have established care was reasonable and beneficial under Bell Brothers in the arbitration proceeding, but the claimant lost in the alternate medical care proceeding. The arbitration finding was reversed by the district court and COA. Claimant did not cross-appeal on this claim because the district court held that claimant was not responsible for the medical costs (despite finding that the beneficial care standard was not met) and accordingly defendants were not required to pay for certain of claimant’s medical expenses that had been the subject of the agency’s beneficial care ruling. Christenson was the deputy assigned to the appeal. 7 months from COA to remand decision.
Caligiuri v. Bon Ton Stores and SIF, No. 5065325 (App. Oct. 15, 2019) - At hearing, claimant was found to have sustained first and second qualifying injuries and was awarded a 10% industrial disability (Palmer). On appeal, liability against the fund was affirmed, but the industrial award was increased to 25%. Claimant had resigned her job from Younkers because of her knee problems. She obtained a job that did not require her to be on her feet for as long a period of time, which paid less than she had been making at Younkers. The commissioner’s designee (Pals) increased the industrial award to 25% on these facts. 11 months from arbitration to appeal decision.
Anderson v. The Rasmussen Group, No. 5057073 (App. Oct. 11, 2019) - Claimant was found to have a 76% impairment to her left lower extremity following her arbitration decision (Christenson). On appeal, the commissioner affirms the arbitration award with no further comment. 16 months from arbitration to appeal decision.
Seaman v. City of Des Moines, No. 5053418, 5057973, 5057974 (App. Oct. 11, 2019) - In these combined actions, claimant was awarded an additional 25% industrial on review reopening and was also awarded 25% for a tinnitus/hearing loss claim. A hernia claim was also found to be related to employment (Palmer).
On appeal, the commissioner reversed much of the award, finding that although claimant had established a review-reopening claim, there was no additional industrial disability. The hernia claim was found not to be related to employment. The tinnitus/hearing loss claim was found to have arisen out of claimant's employment, but the industrial award was reduced to 17%. On the review-reopening claim, the commissioner concluded that claimant's departure from employment was not due to the employer's actions and that claimant was capable of performing the accommodated work provided by the employer. The commissioner concluded that claimant's loss of earning capacity, if any, was more due to his lack of motivation than to his injuries. The commissioner concluded that claimant was unwilling to learn a new job and found that this did not increase his industrial disability.
Claimant's hernia was initially found to be related to employment, but the commissioner concluded that the act of picking up a paper clip off the floor was not sufficient to demonstrate that the injury arose out of work, as there was nothing in the conditions of employment that was related to the injury.
Finally, on the tinnitus claim, the commissioner again finds that Dr. Tyler's framework for analyzing tinnitus is not scientifically supported and is quite different than that allowed by the AMA Guides. Despite this, the commissioner concludes that the hearing loss and tinnitus was related to claimant's work and awarded a 17% industrial disability for this claim. Claimant's total industrial disability was found to be 55% (38% had previously been agreed to as a part of the initial settlement of the claim). 21 months from arbitration to appeal decision.
Garcia v. JBS USA Holdings, No. 5063049 (App. Oct. 8, 2019) - The deputy awarded a 25% industrial disability to claimant, also concluding that claimant’s right lower extremity injury extended into the hip (Gerrish-Lampe). On appeal, the commissioner affirms with no additional discussion. 18 months from arbitration to appeal decision.
Stout v. Cottage Grove Place, No. 5053610 (App. Oct. 7, 2019) - Claimant was found to have a 45% industrial disability following hearing (Pals). Defendants appeal, and the commissioner affirms without additional comment. 17 months from arbitration to appeal decision.
American Home Assurance v. Liberty Mutual, No. 5033079 (App. Oct. 7, 2019) - This action involved a dispute between two insurance carriers over liability for a work injury. Claimant initially recovered against American Home and later filed a new petition as well as a review reopening petition. In this petition, American answered that Liberty was responsible based on a new injury date, for both the original benefits paid as a result of the new injury date. Liberty argued that it was only responsible for benefits due after an 85.21 consent order was filed. The deputy agreed with American (Fitch). On appeal, the commissioner’s designee (Copley) reversed, finding that since American didn’t receive an 85.21 order until 2016, Liberty was not responsible until that time. 14 months from arbitration to appeal decision.
Thompson v. Keokuk Steel Castings, No. 5033079 (App Oct. 4, 2019) - In this review reopening appeal, Deputy Copley affirms the decision of Deputy Fitch which found that claimant was not entitled to additional benefits. No additional discussion of the issues was contained in the appeal decision. 19 months from arbitration to appeal decision.
Beavers v. Dohrn Transfer Co., No. 5062860 (App. Oct. 2, 2019) - In this claim, the deputy awarded temporary benefits and 70% industrial benefits (Palmer). Both parties appeal, with defendants arguing there was no causation and claimant asserting a permanent total disability. On appeal, the commissioner affirms with no additional discussion. 18 months from arbitration to appeal decision.
September 2019
McWilliams v. All Lines Painting, No. 5057077 (App. Sept. 30, 2019) - Claimant was found to be permanently and totally disabled following hearing (Elliott). On appeal, the commissioner affirms without additional comment. 17 months from arbitration to appeal decision.
Voshell v. Compass Group, No. 5056857 (App. Sept. 27, 2019) - Claimant was found to have right bicep tendon rupture, rotator cuff injury and labrum injury and was awarded 40% industrial disability. The deputy concluded the award was not subject to apportionment. Penalty benefits were denied (Gordon). On appeal, the commissioner's designee (Copley) affirms, but increases the industrial award to 75%. The commissioner concludes that the greater weight of evidence supported the conclusions of Drs. Sullivan, Olsasky and Sassman than Dr. Aviles. The commissioner also found that the act of pulling open a door at work was an actual risk, not an idiopathic injury and thus claimant did not need to demonstrate an increased risk from work activities. Citing Bluml v. Dee Jay's Inc., 920 N.W.2d 82 (Iowa 2018). In any event, claimant demonstrated an increased risk because the door was heavy and the wind created a suction effect on the door. The commissioner finds that the report of Connie Oppedal was not entitled to the weight given by the deputy. Specifically, the commissioner concluded that the four jobs identified by Oppedal exceeded claimant's restrictions (10 pounds) or required familiarity with computers, which she did not have. This report was given very little weight.
On the issue of apportionment, the commissioner concluded that although claimant had restrictions when she started work, her earning capacity was reset when she began the job for Compass and under Roberts Dairy, this was not apportionable. Claimant was not permanent total, however, because she demonstrated little motivation to return to the workforce. Penalty was denied because defendants reasonably relied on the actual risk doctrine.
Only $150 was allowed as costs of the vocational report. The commissioner concluded that expenses for research and review of the file are associated with the examination and not the report and thus are not payable under 4.33(6). The commissioner notes that in other cases, costs were denied when the expert did not identify the costs of the report, but since this was not appealed by the defendants, the $150 award was allowed (obviously claimant;s counsel should ask VE's to identify the costs of the report in the future. 21 months from arbitration to appeal decision.
Thomas-Wilson v. UFP Technologies, No. 5057149 (App. Sept. 26, 2019) - In this claim, the deputy awarded 15.4 weeks of benefits for a left lower extremity injury (Grell). Defendants appealed and claimant did not submit a brief on appeal. The commissioner affirms. 20 months from arbitration to appeal decision.
Bertsch v. John Deere Dubuque Works, No. 5063359 (App. Sept. 24, 2019) - Claimant was awarded a 50% industrial disability following hearing based on a shoulder injury (Palmer). Without additional comment, the commissioner affirm the award. 16 months from arbitration to appeal decision.
Bartleson v. City of Davenport, No. 5063585 (App. Sept. 24, 2018) - At hearing, claimant was found to has sustained permanent disability to his right lower extremity, with a sequela injury to the left low extremity. Claimant was found eligible for 52.5 weeks of benefits (Gerrish-Lampe). Defendants appeal. On appeal, the commissioner affirms claimant's entitled to benefits, but awards additional benefits under 85.34(2)(t) (formerly (s)) because claimant's injuries were caused by a single accident. The commissioner notes that the statutory language does not require a simultaneous injury, but an injury caused by the same accident. After converting the weeks from lower extremity to body as a whole and adding these together, claimant is awarded 135 weeks of PPD benefits. 16 months from arbitration to appeal decision.
Mack v. Second Injury Fund of Iowa, No 5052951 (App. Sept. 13) - Claimant was found to have demonstrated first and second injuries in this fund claim and was found to have suffered permanent and total disability (Gerrish-Lampe). The commissioner affirms with the exception of an award of costs against the Fund. 20 months from arbitration to appeal decision.
Rizzio v. Quaker Oats Co., No. 5053022 (App. Sept. 12, 2019) - In a rehearing decision, claimant was found to have suffered work-related tinnitus and was awarded 5% industrial (Walsh). The commissioner affirms the rehearing decision. On appeal, the commissioner found that claimant's condition did not manifest in January 2015, but in the early 2000s. Because claimant did not appreciate that his tinnitus was serious enough to have an adverse effect on his employment until 2015, however, the claimant was found to have notified defendants and filed his claim in a timely manner. 18 months from arbitration to appeal decision.
Hoffman v. Curries Mfg., No. 5056295 (App. Sept. 10, 2019) - At hearing, claimant was found not to have established that his knee replacement surgeries arose out of his employment (Christensen). Without discussion, the commissioner affirms. 20 months from arbitration to appeal decision.
Rawlings v. G and P Truck Lines, No. 5057925 (App. Sept. 6, 2019) - Claimant was found not to have carried his burden of proving his injury arose out of his employment (Palmer). Without further analysis, the arbitration decision is affirmed. 18 months from arbitration to appeal decision. In the arbitration decision, claimant was found to have stopped working for the employer after his firing on October 10, 2015, but his injury date was October 15, 2015. Claimant was found not credible and the employer's representative credible with respect to the question of whether the injury occurred while he was working for G and P.
Richardson v. Vermeer Mfg., No. 5057918 (App. Sept. 5, 2019) - File not found. In the underlying decision, claimant was awarded 25 weeks of permanency benefits plus healing period. (Palmer). 19 months from arbitration to appeal decision.
Wells v. Home Goods, Inc., No 5057007 (App. Sept. 5, 2019) - In this claim, a 15% industrial award was provided after hearing for a left shoulder injury (Palmer). Defendants' notice defense claim was rejected. On appeal, the commissioner's designee (Copley) concluded that the industrial award should be raised to 40%. This was based on the treater's (Jacobson) restrictions of no repetitive overhead lifting over 5 pounds, as well as claimant's inability to perform certain jobs that defendants' vocational expert suggested he could perform. In terms of vocational experts, Davis was preferred over Strickland in this case. 19 months from arbitration to appeal decision.
August 2019
Einfeldt v. Airport Hotel Management Services, No. 5059831 (App. Aug. 30, 2019) - In this case, the parties notified the agency that the case had been settled After this was communicated, claimant's counsel notified the agency that his client no longer wanted to settle and indicated further that the client was involved in a criminal proceeding in which her competency was questioned. The deputy found that the request for specific performance could not be granted because the agency did not have equitable enforcement powers and indicated defendants' remedy was in district court. The commissioner affirms. 7 months from arbitration to appeal decision.
Turkovic v. Wal-Mart Stores, No. 5037110 (App. Aug. 30, 2019) - In this review-reopening action, the hearing deputy found that claimant established permanent total disability, after having a 50% industrial award following his injury (Elliott). Penalty benefits of $5400 were also awarded. The commissioner affirmed without additional comment. 19 months from arbitration to appeal decision.
Wilcox v. Marriott Hotel, No. 5056550 (App. Aug. 30, 2019) - File not found. This was a Gerrish-Lampe take nothing decision. 19 months from arbitration to appeal decision.
Benning v. Climate Engineers, Inc., No. 5062758 (App. Aug. 30, 2019) - Although claimant was found to have demonstrated an injury arising out of his employment, the hearing deputy concluded that claimant failed to provide timely notice of the injury (Pals). Without discussion, the commissioner affirms. 18 months from arbitration to appeal decision.
Contreras v. John Deere Davenport Works, No. 5054035 (App. Aug. 26, 2019) - Following hearing, claimant was found not to have met his burden of demonstrating that his bilateral upper extremity issues arose out of employment. Accordingly, the claim was dismissed against the employer and SIF (McGovern). On appeal, the commissioner affirms without additional comment. 18 months from arbitration to appeal decision.
Martin v. City of Harlan, No. 5057038 (App. Aug. 26, 2019) - The fighting issue in the hearing loss/tinnitus claim was the date of claimant's injury. The hearing deputy concluded that the date of injury was in November of 2014 and that claimant had provided notice and filed his claim in a timely manner (Gerrish-Lampe). On appeal, the commissioner reverses, concluding that claimant knew he had hearing loss and ringing in his ears before he retired in 2010. The commissioner concludes that claimant understood the nature and seriousness of his problems at that time. Because claimant should have known the probable compensable nature of the claim no later than 2010, the commissoiner finds that claimant failed to provide timely notice and failed to file his claim in a timely manner. The fact that claimant did not know he could make a claim until 2014 made no difference. According to the commissioner, a reasonable person would have investigated whether he had a claim long before 2014. Citing Chapa v John Deere, 652 N.W.2d 187 (Iowa 2002)(the hearing deputy had distinguished this case because claimant had no contact with co-workers or a company audiologist before his retirement). Claimant's claim was dismissed. 19 months from arbitration to appeal decision.
Almendinger v. KAS Investment Co., No. 5062518 (App. Aug. 23, 2019) - Numerous issues were disputed by the parties in this action, with the ultimate difference from the initial decision (Christenson) being the fact that claimant was awarded penalty benefits of $3000 on appeal. The commissioner's designee (Grell) also concluded that testimony at hearing from defendants' witness was appropriate; that claimant's rate, which was based on a prevailing rate in Wisconsin that was higher than that in Iowa, was appropriately calculated at the higher level; that claimant's depression claim was not substantiated; that alternate medical care was appropriately denied; and that the industrial determination (40%) was correct. On the rate issue, the deputy concluded that prevailing wages paid pursuant to a federal statute do not constitute premium pay. On the penalty claim, the deputy found that defendants substantially underpaid the rate until counsel challenged the rate. There was no evidence that a reasonable investigation of the rate issue was undertaken. There was also no evidence that they conveyed the basis for the reduced rate to claimant in a timely manner. Accordingly, a $3000 penalty was imposed on defendants, based on a total underpayment of $15,000. 20 months from arbitration to appeal decision.
Rios v. John Deere Waterloo Works, No. 5053450 (App. Aug. 19, 2019) - In the case, claimant was found to have failed to demonstrate that her injury arose out of her employment. (Pals). On appeal, the commissioner affirmed. The fighting issue in the case involved the effects of claimant's fall down the stairs. Due to her condition, claimant was unable to testify as to her fall down the stairs and a witness to the fall indicated that claimant fall on down six to eight stairs and was not dazed when he helped her and that claimant left without assistance. Claimant's experts relied on a history of what seemed to be a more serious fall and their reports were rejected because they were not based correct facts and were thus unreliable. 21 months from rehearing decision to appeal decision.
Spencer v. St. Pius Church, Nos. 5053747, 5058037 (App. Aug. 14, 2019) - In the arbitration decision, the deputy found that claimant was entitled to 300 weeks of benefits. The deputy also found that a letter from defendants' doctor was prejudicial because discovery had already closed and this exhibit was excluded. On appeal, the commissioner first finds that the document should have been admitted. The commissioner concluded that claimant was already in possession of this document when the parties entered into an agreement closing discovery. Hence, claimant was not surprised or prejudiced by the document. On the merits of the appeal, the commissioner reduces the 60% industrial award to 30%. This was based largely on the fact that claimant never restricted his work activities in response to the restrictions recommended by Dr. Sassman. The claimant was able to perform the same tasks as a janitor as he had performed previously. 18 months from arbitration to appeal decision.
Auge v. Lago Construction, LLC, No. 5062048 (App. Aug. 8, 2019) - In this matter, the deputy concluded that claimant had suffered a 50% industrial loss and ordered medical mileage. Reimbursement for two IME's was denied on the basis that no payment was possible if the IME preceded a rating from defendants' doctor (Christenson). On appeal, the commissioner affirms the ID award and award of medical mileage, but finds that under rule 4.33(6), the report portion of the two IME's was payable. 18 months from arbitration to appeal decision.
Brown v. Camanche Community School District, No. 5034722 (Remand Aug. 7, 2019) - The commissioner reduced claimant's industrial disability from 85 to 45% in the appeal decision. The district court concluded the commissioner had not considered the opinions of Dr. Shapiro. On remand, the commissioner's designee (Copley) affirms the reduction to 45%. The decision finds that it was unclear whether Dr. Shapiro had reviewed any of the claimant's medical records prior to a post-injury angiography. The statements of Dr. Shapiro were not found to be persuasive. The Deputy notes that claimant had not relied on Dr. Shapiro until the petition for judicial review. Two monthsfrom remand to agency remand decision.
Ruiz v. Revstone Casting Industries, No. 5050063 (Remand Aug. 1, 2019) - File not found.
July 2019
Clark v. Winnebago Industries, No. 5063138 (App. July 31, 2019) - In this action, the deputy found claimant had a 10% impairment to her right upper extremity. Penalty benefits were denied (Palmer). Both parties appealed, with defendants urging a no causation finding and claimant advocating for a 15% award and payment of penalty benefits. On appeal, the commissioner affirmed without comment. 19 months from arbitration to appeal decision.
Clark v. Winnebago Industries, No. 5063138 (App. July 31, 2019) - In this action, the deputy found claimant had a 10% impairment to her right upper extremity. Penalty benefits were denied (Palmer). Both parties appealed, with defendants urging a no causation finding and claimant advocating for a 15% award and payment of penalty benefits. On appeal, the commissioner affirmed without comment. 19 months from arbitration to appeal decision.
Frauenholtz v. University of Iowa, No. 5054112 (App. July 30, 2019) - In this action, the deputy concluded claimant failed to meet his burden of proof (Christensen). Without elaboration, the commissioner affirms the decision. Note that in the arbitration decision, the deputy relied in large part on the AMA Guides to the Evaluation and Injury to conclude that absent specific injury, a rotator cuff tear can only occur when there is use of the shoulder in an awkward position, so it may have been a good thing that there was no elaboration on the arbitration decision from the commissioner. 18 months from arbitration to appeal decision.
Vega v. Absolute Construction, No. 5053969 (App. July 26, 2019) - In this action, claimant was found to have sustained a 20% industrial disability, but a back injury and mental health injury was denied (Fitch). On appeal, he commissioner affirmed the decision of the deputy. 17 months from arbitration to appeal decision.
Dawson v. SIF, No. 5061023 (App. July 23, 2019) - In this claim, claimant alleged that three finger injuries constituted a first injury for SIF purposes. This claim was rejected by the hearing deputy (Fitch) and the claim was dismissed. On appeal, the commissioner affirms without additional comment. 17 months from arbitration to appeal decision.
Sanchez v. Alter Trading Co., No. 5053344 (App. July 22, 2019) - File not found. The underlying decision was a 20% industrial award by Walsh. 22 months from arbitration to appeal decision.
Kenkel v. City of Harlan, No. 5062153 (App. July17, 2019) - In this action involving hearing loss and tinnitus, the deputy concluded that claimant had timely presented his claim and rejected a notice defense. A 15% industrial award was provided, along with payment of medical costs (Fitch). The commissioner affirms without additional discussion. 18 months from arbitration to appeal decision.
Hermann v. Cumulus Media, No. 5060452 (App. July 17, 2019) - At hearing, claimant was found to have sustained a work related hip and shoulder injury but was found not to have reached MMI, so permanency was not decided. The arbitration decision awarded medical benefits and payment for 2/3 of an IME (Gordon). On appeal, the commissioner affirms without additional discussion. 4 months from arbitration to appeal decision.
Crosby v. Foodliner, Inc., No. 5054995 (App. July 16, 2019) - File not found. 17 months from arbitratoin to appeal decision. This is a Walsh decision awarding 300 weeks of benefits as a result of neck and back injuries.
Griffin v. DeWitt Electric., No. 5051995 (App. July 16, 2019) - File not found. 19 months from arbitration to appeal decision. This is a Pals take nothing decision.
Rowe v. Hy-Vee Food Store, No. 5053264 (App. July 15, 2019) - At hearing, claimant was found to have suffered a 55% industrial disability (Pals). On appeal, the arbitration decision is affirmed. 18 months from arbitration to appeal decision.
Jabri v. Quaker Oats Co. and SIF, No. 5042259 (App. July 15, 2019) - File not found. 19 months from arbitration to appeal decision. This was a McGovern RR decision in which claimant took nothing further in the arbitration decision. Bob Rush reports that the commissioner reversed and awarded 37% to the leg and 35% industrial against the SIF.
Spahn v. Deere and Co., No. 5057512 (App. July 3, 2019) - This is a hearing loss case in which the opinions of Dr. Tyler were found to be more convincing than the opinions of Dr. Dobie (Grell). Claimant was found entitled to hearing loss benefits as well as 10% industrial disability. The deputy also concluded claimant's petition had been filed in a timely manner. Without additional analysis, the decision is affirmed. 16 months from arbitration to appeal decision.
Thygesen v. City of Harlan, No. 5057045 (App. July 3, 2019) - Claimant was found to have filed his petition in a timely manner in this hearing loss case and was provided with a 10% industrial disability based on his hearing loss and tinnitus (Palmer). Claimant relied on Dr. Tyler and Dr. Zlab. On appeal, the commissioner affirms without additional analysis. 18 months from arbitration to appeal decision.
Tucker v. Menards, Inc., No. 5039347 (App. July 3, 2019) - In this review-reopening decision, the hearing deputy (Elliott) increased industrial disability from 40-60%.The commissioner affirms the industrial award and finds that certain medical expenses were not payable by defendants (which claimant had conceded on appeal). 17 months from arbitration to appeal decision.
Kern v. Fenchel Doster & Buck, PLC, No. 5062419 (App. July 2, 2019) - In this case, claimant was found to have injuries to his hand and arm and was awarded 40 weeks of benefits. Penalty benefits were denied. Payment for an IME was denied (Grell). On appeal, the commissioner affirms without additional comment. 30 months from arbitration to appeal decision.
Mulvehill v. Kraft Heinz Co., No. 5056658 (App. July 2, 2019) - In this case, the hearing deputy concluded that claimant had not met his burden of proof and dismissed claimant's claim, with the opinion of Dr. Jacobson being found persuasive (Palmer). On appeal, the commissioner reverses and finds claimant's hip condition constituted a work-related aggravation of a prior condition. The commissioner awards a 25% industrial disability. The commissioner adopted the opinion of Dr. Kreiter, who concluded that claimant was asymptomatic prior to a fall down a stairwell, which ultimately resulted in hip replacement surgery. The commissioner also adopted Dr. Kreiter's 15% impairment rating and awarded a 25% industrial disability (claimant had returned to work following the surgery). 30 months from arbitration to appeal decision.
June 2019
Roberts v. Annett Holdings, No. 5041097 (App June 28, 2019) -
Defendants appeal from a review-reopening decision in which the deputy found
that claimant had sustained a 30% industrial disability. The deputy also
denied temporary benefits and found claimant entitled to ongoing payment for
medications (Gerrish-Lampe) A second period of temporary benefits was
awarded. The industrial award is affirmed without additional comment.
Apparently the industrial award was reduced because claimant was found not to
be credible and the commissioner accepts this finding of non-credibility.
On the temporary benefits issue, the decision finds that claimant was entitled
to further temporary benefits after he was let go from a subsequent employer, at
which time he continued to have 25 pound restrictions. The deputy found
that these benefits were appropriate. The finding that ongoing medication
care is appropriate is reversed, as there was said to be insufficient evidence
that such treatment was reasonable. 18 months from arbitration to appeal
decision.
Rivas
v. Farmland Foods, No. 5052859 (App. June 28,
2019) - In this case, the commissioner affirms a 50% industrial award without
additional analysis (McElderry). The only change in the decision is to
reject a charge for an IME because the doctor (Sassman) did not itemize the
time spent on the evaluation versus the time spent providing the report.
A second IME, which was conducted after defendants doctor had provided a
rating, was paid. 30 months from arbitration to appeal decision.
Bruning v. Farner-Bocken, Nos 5062212, 5062213, 5062214 (App. June 26, 2019) - Claimant was found to have a 20% industrial disability due to an initial work injury and an additional 70% due to a second injury (Gerrish-Lampe) Both parties appeal. Dr. Nelson had limited claimant to 30 pounds, with no driving restrictions. Claimant had previously been a driver, but had not attempted to return to work following his second surgery. Claimant argued that he could not return to driving because of his use of pain medication. The commissiioner's designee (Copley) concluded that an attempt to return to work would have been largely unsuccessful due to the use of pain medication. Nonetheless, the 20% + 70% award stood because claimant's failure to attempt to look for work made it difficult to evaluate his loss of earnings. 18 months from arbitration to appeal decision.
Bajramovic v. Johnston Community School District, No. 5063121 (App. June 26, 2019) - In this action, the commissioner affirms a finding that claimant had not established that his injury caused industrial disability, specifically discrediting Dr. Sassman's finding there had been a neck injury (Gerrish-Lampe). The commissioner also affirms a finding that defendants are to receive credit for LTD benefits paid, despite the fact that these benefits were not paid until over a year after claimant's entitled to PPD benefits for his scheduled injury had ended. The parties had stipulated to a credit for benefits paid after 9/28/17. Claimant argued that no credit was due because eligibility to PPD benefits had ended by the time claimant started to received LTD benefits. Despite a decision in State v. Erbe, 519 N.W.2d 812 (Iowa 1994) that the purpose of 85.38 was to avoid double payments to claimant, the deputy found that even though claimant had not received such a double payment, the credit was applicable. The commissioner also differs with the commissioner in Miller v. University Hospitals, No. 1253772 (App. Aug. 6, 2002), which held that no credit was allowed unless there was a duplication of payments. 17 months from arbitration to appeal decision.
Mast v. Crest Services, No. 5056664 (App. June 19, 2019) - In this action, the commissioner’s designee (Copley) affirmed a 30% industrial award and a small penalty award ($2000) for failure to pay TTD without investigating the claim. This affirmed the original award by deputy Gordon. 17 months from arbitration to appeal decision.
Heyer v. Iowa State University, No. 5058992 ( App. June 19, 2019) - File not found.
Hiatt v. CB Richard Ellis, No. 5056187 (App. June 13, 2019) - In this appeal, the commissioner affirms a 50% award and an award of healing period, without additional comment. Deputy Fitch issued the original arbitration decision. Costs for an FCE are denied under 4.33(6) because the FCE was not authorized by a physician, notwithstanding the fact that the rules do not require such authorization. 18 months from arbitration to appeal decision.
Nunemaker v. General Mills, No. 5057384 (App. June 12, 2019) - This is a decision by the commissioner's designee (Copley) affirming the underlying decision without any comment. The decision affirmed a 25% award by Palmer. 17 months from arbitration to appeal decision.
Searcy v. Anderson Erickson Dairy, No. 5056942 (App. June 11, 2019) - Following hearing, claimant was found not to have a permanent impairment. Medical expenses were denied (Christenson). Claimant appeals and the commissioner affirms. The commissioner also refuses to award any costs since claimant did not prevail on any of his issues. Claimant had argued that the deputy erred by relying on his own research regarding Oswestry scores, but the commissioner finds this discussion was not necessary to reach a decision in the case. 17 months from arbitration to appeal decision.
Bryan v. Kiowa Line Builders, No. 5062947 (App. June 10, 2019) - In this action, claimant was awarded benefits for an injury to the arm. Industrial disability benefits for a mental injury were denied, as were ID benefits for a burn injury (Gordon). The commissioner’s designee (Copley) affirmed the decision, with additional analysis concluding that a burn injury alone was not an industrial injury. 14 months from arbitration to appeal decision.
Dunham v. UPS, No. 5062713 (App. June 3, 2019) - In this appeal, the deputy awarded 70% industrial. In addition, the deputy provided defendants with a small credit using the formula in Warren Properties v. Stewart (Elliot). Defendants appeal and claimant cross-appeals, arguing PTD. The industrial award is affirmed without additional comment by the commissioner’s designed (Copley). Defendants also argued that an overpayment should be credited against the current award and the appeal decision affirms that the credit runs against any future award of benefits. 13 months from arbitration to appeal decision.
May 2019
Ahrens v. Quality Manufacturing, No. 5059431 (App. May 31, 2019) - The commissioner in this case affirms a take nothing decision (McGovern)without further comment. Five months from arbitration to appeal decision.
Deffebaugh v. 1st Interiors, No. 5047330 (App. May 30, 2019) - At hearing, claimant was found to have sustained an injury to the leg in the amount of 20%. An industrial allegation was denied (Elliott). On appeal, the designee (Copley) concluded without comment that an industrial injury did not exist. She concluded that given Sassman's 10% whole body rating as a result of a burn, the actual rating to the leg was 24%, so she increased the rating slightly. 13 months from arbitration to appeal decision.
Brackett v. CDS Global, No. 5055996 (App May 24, 2019) - Claimant was found to have sustained a work related injury to her left knee, but since MMI had not been reached, permanency was not determined. Defendants were ordered to pay medical expenses (Pals). The commissioner affirms. In addressing this issue, the commissioner deals with the opinion of the primary care physician, who found claimant's work activities had aggravated but not caused the injury. The commissioner found the PCP's opinions more convincing than those of the orthopaedic surgeon. 16 months from arbitration to appeal decision.
Lulic v. Waterloo Community School District, No. 5057597 (App. May 23, 2019) - Following hearing, claimant was found to have suffered incontinence, depression and agoraphobia as a result of her stipulated back injury (Elliott). Claimant was found permanently and totally disabled. On appeal, the commissioner's designee is found PTD, but her incontinence is found not related to her back injury. Neither the treating physician nor the IME physician directly addressed the causal relationship of the incontinence. The decision addresses claimant's lack of motivation to return to work and finds that had claimant attempted to return to the work force, this attempt would have been futile, given her restrictions and her depression. 6 months from arbitration to appeal decision.
Rasmusseon v. Vermeer Mfg., No. 5057557 (App. May 21, 2019) - File Not Found. 15 months from arbitration to appeal decision. Claimant was found eligible at hearing for a 15% industrial award (Pals).
Houston v. Harding Enterprises, No. 5052683 (App. May 21, 2019) - In this case, the commissioner's designee (Copley) affirms a partial commutation (Gordon) without additional comment. 5 months from arbitration to appeal decision.
Koithan v. American Eagle Airlines, No. 5048430 (App. May 21, 2019) - Claimant was awarded a 45% industrial award. IME fees were denied. On appeal, the commissioner sustains the 45% award. With respect to the IME, the commissioner finds this cannot be taxed under 85.39, but concludes that this is payable under 4.33(6). The commissioner finds that Dr. Stoken charged $1000 for the preparation of the report and finds this is taxable as a cost. 17 months from arbitration to appeal decision.
Ahlgren v BBU, Inc., No. 5054860 (App. May 17, 2019) - Claimant was found to have a 25% industrial disability (Pals). The commissioner's designee (Copley) affirms this aspect of the decision, but finds that defendants were entitled to credit for overpayment of healing period benefits amounting to just over $2000. This had been denied at hearing under 85.34(5), because defendants did not provide argument on the Swiss Colony v. Deutmeyer issue, but Deputy Copley finds this is actually to be determined under 85.34(4), which allows credit in this situation. 9 months from arbitration to appeal decision.
Vonsprecken v. BBU, Inc., No. 5057238 (App. May 17, 2019) - The hearing deputy (McGovern) found that claimant was not entitled to benefits. On appeal, the commissioner's designee (Copley) affirms and finds specifically that Dr. Segal's opinions were made based on incomplete information and thus were not credible. 5 months from arbitration to appeal decision.
Phu v. Tension Envelope, No. 5035804 (App. May 17, 2019) - On review-reopening the deputy found that claimant had reached MMI and was entitled to a 60% industrial award. Payment for a second IME was denied (Fitch). The commissioner's designee (Copley) affirms the 60% award, but modifies the date on which healing period benefits terminated. The commissioner, citing Evenson, finds that claimant's end of healing period came when one of the three situations contained in 85.34 occurred. Because claimant returned to work in 2012, the first period of healing period ended at that time. The commissioner finds, however, that since claimant returned to work which paid less, she was entitled to TPD benefits at that time and was entitled to those benefits until she reached MMI in 2015. The commissioner finds that although permanency commenced in 2012 and that there were therefore overlapping benefits, this result had been countenanced by Evenson. The result here is similar to the result reached in Kelly, decided on May 13. The commissioner find that claimant was entitled to a payment of $290 for claimant's second IME with Dr. Bansal. 19 months from arbitration to appeal decision.
Prazak v. Assa Abloy, No. 5055663 (App. May 17, 2019) - In this appeal the commissioner affirms a PTD award for injuries to both of claimant's shoulder (Elliott). No further analysis is provided for the affirmance. 17 months from arbitration to appeal decision.
Bennett v. Bridgestone Americas, No. 5047745 (App. May 17, 2019) - At hearing, claimant was found to have a permanent mental disability and was awarded 50% industrial. A fund claim was dismissed because claimant's claim was found to be industrial in nature (Walsh). The appeal decision concludes that claimant suffered a mental injury and rejects defendants' argument that this injury was preexisting. The 50% award was affirmed and benefits against the Fund were denied. 17 months from arbitration to appeal decision.
Brown v. Witham Auto Centers, No. 5054260 (App. May 15, 2019) - The hearing deputy (Fitch) concluded that claimant was entitled to over a year of temporary benefits and 325 weeks of industrial disability for a back injury. In the appeal decision, the commissioner's designee (Christenson) finds that claimant failed to demonstrate that the continuing effects of injury were related to work. Temporary and permanency benefits were denied. The decision is premised on the acceptance of Broghammer and McMains over the opinions of Dr. Sassman and Dr. Abernathey. 21 months from arbitration to appeal decision.
Carillo Gonzales v. Dormark Construction Co., No. 5062410 (App. May 13, 2019) - Claimant was found not to have established an injury that arose out of and in the course of employment (Christenson). 16 months from arbitration to appeal decision.
Kelly v. Performance Contractors, Inc., No. 5055951 (App. May 13, 2019) - In the underlying case, claimant was found to have suffered a compensable injury and was awarded a running award of TPD (Gerrish-Lampe). A 50% penalty was awarded on certain temporary benefits. On appeal, the finding of causation was affirmed. Defendants argued that the running award of TPD benefits was not raised and state they were denied due process. TPD benefits were not raised in the hearing report, although they had been raised in the petition. The commissioner's designee (Copley) concludes defendants had ample notice of the claim, as claimant testified in his deposition he had found a new job at which he was making considerably less money. The colloquy before the hearing also clearly indicated that temporary benefits were in issue. Defendants had also indicated at hearing that claimant had not reached MMI. On these facts, the commissioner finds that the issue of temporary benefits had been raised. Defendants also argued that since claimant had returned to work, temporary benefits were not in issue. The commissioner, citing Evenson, found that the termination of healing period benefits does not necessarily equate to the termination of claimant's period of recovery. The commissioner also rejected an argument that claimant's new job was substantially similar to the old job, finding that it was not.
There was a rate issue involving a $2.00 per hour winter wage incentive. The deputy found this was a regular bonus. The commissioner overturns this result and finds that this is premium pay and not a bonus and should not be included in the wage rate. The commissioner affirmed the award of penalty benefits for the period from March 17, 2016 until February 8, 2017, as defendant conducted no investigation of the claim during that period. IME payment was denied because defendants doctors had never determined permanency. 19 months from arbitration to appeal decision.
Honeycutt v. Genesis Development, No. 5056073, 5056074 (App. May 13, 2019) - In the arbitration decision, claimant was found not to have established sufficient injury for review reopening. Medical costs were addressed in the decision, but not delineated (Fitch). On appeal, the commissioner's designee (Copley) affirms, although a specific delineation is made of the medical payments to be made by the defendants. 16 months from arbitration to appeal decision.
Wilson v. Trans-Lux, No. 5049489 (App. May 10, 2019) - File not found. This was a decision by Grell in which claimant was found not to have demonstrated a compensable injury. 17 months from arbitration to appeal decision.
Brown v. Witham Auto Centers, No. 5054260 (App. May 10, 2019) - In this appeal concerning a request for partial commutation, the deputy found that claimant had no viable commutation action as the period for which compensation was payable could not be determined (Fitch). Per Sloan, the commissioner's designee (Christenson) affirms the decision. 21 months from arbitration to appeal decision.
Sarmu v. Green Plains Industrial Cleaning Services, No. 50539809 (App. May 9, 2019) - Following hearing, claimant was found entitled to a 10% industrial award. On appeal, the commissioner's designee (Pals) affirms the 10% award. The deputy also affirms a $350 award of costs (Mcgovern). Dr. Bansal's IME was credited over the opinions of the treating physician, largely because the treater did not support his opinion by reference to the Guides. 16 months from arbitration to appeal decision.
Underwood v. City of Des Moines, No. 5057188 (App. May 8, 2019) - Following hearing, claimant was found not to have sustained a permanent injury to his low back (Christenson). Claimant appeals and the commissioner affirms without additional analysis. 17 months from arbitration to appeal decision.
De Dios v. Brand Energy, No. 5061144 (App. May 7, 2019) - At hearing, claimant was found to have established a permanent injury and was awarded a 35% industrial benefit (Grell). Defendants appeal and without further analysis, the commissioner affirms. 17 months from arbitration to appeal decision.
Estes v. Hy-Vee, Inc., No. 5054548, 5054549 (App. May 7, 2019) - Claimant was found to have a 5% impairment to the right upper extremity for his first injury. No permanent disability benefits were found related to the second injury. Penalty benefits were denied in both claims. Without further analysis, the commissioner affirms. 16 months from arbitration to appeal decision.
Borkovec v. Dish Network Corp., No. 5042514 (App. May 3, 2019) - This case has a lengthy history and on the merits of the case, the Court of Appeals found claimant was in a running healing period. While the appeal process was proceeding, claimant filed for partial commutation and defendants filed a motion to dismiss, which was denied. The denial of the motion to dismiss is the subject of this appeal. On appeal, the commissioner's designee (Grell) finds that since claimant was in a running healing period and benefits could not be definitively decided, partial commutation is inappropriate. 18 months from arbitration to appeal decision.
Torres v. LeClaire Mfg. Co. and SIF, Nos. 5050690, 5050691 (App. May 3, 2019) - In this claim, claimant was found to have a 25% injury to his left upper extremity in No. 5050690 and an 11% injury to the right upper extremity in No. 5050691. Claimant alleged a 2009 injury as a first injury in both cases, and this was found not to be a qualifying injury (Gordon). It does not appear as though claimant alleged that the injury in 690 was a first injury and the injury in 691 was a second injury for Fund purposes. Without discussion, the commissioner affirms. 16 months from arbitration to appeal decision.
April 2019
Brown v. Golden Crisp Premium Foods, No. 5062366 (App. April 30, 2019) - Claimant took nothing following hearing and the commissioner affirms without additional comment (Christenson). 16 months from arbitration to appeal decision.
Davis v. Bed Rock, Inc., No. 5054446 (App. April 30, 2019) - File Not Found. In this action, claimant took nothing following hearing (Gerrish-Lampe). 16 months from arbitration to appeal decision.
Boken v. Peak Interests, LLC, No. 5040834, 5056052 (App. April 29, 2019) - The parties originally agreed to a 30% award on an AGFS as a result of a back injury. Claimant later filed a review reopening petition as well as a new petition, both alleging injury to the back. The deputy rejected the new claim, finding the injury was temporary, but found claimant permanently and totally disabled on the review reopening petition (Walsh). On appeal, the commissioner finds that the claim of new injury was valid and awards permanent total disability on this claim, but rejects the review reopening claim. The commissioner finds that the new injury led to a fusion surgery and that because of this injury claimant was rendered permanently and totally disabled. The commissioner also rejects defendants' argument that claimant's smoking was a substantial contributing factor to claimant's aggravation of her condition. 17 months from arbitration to appeal decision.
Krell v. Larson Contracting, No 5055555 (App. April 26, 2019) - In this claim, which involved an injury to claimant's foot, the primary questions were whether claimant engaged in horseplay and whether the fact that the injury had occurred on a paid break some 25 feet from the worksite barred recovery. The deputy held that defendants failed to demonstrate horseplay and that claimant was within the scope of employment when the injury occurred. A 9% award was provided and costs for the IME were denied because Dr. Bansal did not differentiate between record review time an the tie of examination (Grell). On appeal, the commissioner affirms without additional analysis. 18 months from arbitration to appeal decision.
Rivera-Avelar v. Farmland Foods, No. 5057081 (App. April 25, 2019) - Claimant was found to have suffered a scheduled member disability of 28% of the the body as a result of a cumulative knee injury. Future medical care was also awarded (Grell). Defendants appeal, and the commissioner affirms. On appeal, the primary argument concerns defendants' notice defense. The commissioner finds that although claimant's testimony was not always consistent, based on claimant's lack of English skills, and the testimony that was presented, claimant had told the employer of his injury in a timely manner. Because timely notice was provided, the commissioner affirmed the decision of the deputy. 16 months from arbitration to appeal decision.
Garr-Kime v. SIEDA, No. 5054972 (App. April 25, 2019) - Claimant was found entitled to a 50% industrial award following hearing (Grell). Noted as File Not Found on appeal. 17 months from arbitration to appeal decision.
Wilson v. CRST Expedited, No. 5049369 (App. April 24, 2019) - Claimant was found to be entitled to a running healing period (Gordon).Defendants argue that claimant's claim was ripe for adjudication and that only a modest industrial award was appropriate. They also argued the claimant's condition had returned to baseline. The commissioner affirms, finding that claimant's back problems were persistent and required medical care. Because claimant was not capable of returning to substantially similar work and had not reached MMI, a running healing period was awarded. 17 months from arbitration to appeal decision.
Bartels v. City of Coralville, No. 5054758 (App. April 23, 2019) - In this action, claimant was found to have a 35% industrial disability on the first injury, and an additional 10% on a second, separate injury. No additional industrial was found for a third injury (Walsh). The commissioner affirms the 35% award, rejecting defendants' argument that the treating doctor's full duty release meant that a 35% industrial award was too high. The commissioner finds that full duty release was meant to be a trial run. The commissioner affirms the additional 10% award finding that defendants had no expert support that there was no permanency from a right shoulder injury. The commissioner also affirms on the third claim, finding there was no evidence of any specific exposures causing respiratory problems. 10 months from arbitration to appeal decision.
Van Dorin v. Vermeer Manufacturing, No. 5043653 (App. April 19, 2019) - In this review-reopening action, the hearing deputy found that claimant failed to establish that his current condition was causally related to the original injury (McGovern). On appeal, the commissioner's designee (Gordon) affirms. Claimant had initially entered into an AGFS relating to his shoulder and on review-reopening claimed that his neck condition was related to the original injury. The neck had also been injured in the original injury, but the settlement agreement did not discuss the neck. As a part of the original injury, claimant's IME physician had indicated that the neck condition had resolved. Ultimately, the commissioner finds that the weight of the medical evidence is that claimant's neck condition is not related to the original work injury. 16 months from arbitration to appeal decision.
Sehic v. Tyson Fresh Meats, Inc., No. 5050655 (App. April 18, 2019) - In an earlier hearing. claimant was found to be entitled to a 10% industrial disability. Claimant had also settled a bilateral upper extremity case for 30 weeks of benefits. The hearing report indicated there was no dispute concerning credits. Following the hearing, defendants asserted a 30 week credit and claimant asserted there were no credits allowable. Claimant filed a penalty claim and sought payment of the additional 30 weeks of benefits. The deputy found claimant waived the issue of credits and awarded $6,183.45 in penalty benefits (Palmer). The commissioner affirms the award, finding that the question of credit had been waived and that defendants had no reasonable basis for failing to pay the additional 30 weeks of benefits. 18 months from arbitration to appeal decision.
Carrow v. Hy-Vee, Inc., No. 5062477, 5062478 (App. April 17, 2019) - Claimant was found not credible in both files and benefits were denied (Elliott). Claimant appeals and the commissioner affirms the denial of benefits without further elaboration. 9 months from arbitration to appeal decision.
Parra v. JBS USA, No. 5056736 (App. April 15, 2019) - Claimant was found to have sustained a 50% industrial disability as a result of injuries to her left and right shoulders, elbow, wrist and hand. The commissioner affirms without additional comment. 17 months from arbitration to appeal decision.
Gonzalez v. Westwind Logistics, No. 5063555, 5065811 (App. April 15, 2019) - On the first claim, the hearing deputy found that claimant failed to demonstrate a permanent disability of his left arm, shoulder and neck arising out of employment. On the second claim, the deputy found claimant was in the course of his employment when he was assaulted by his supervisor, but did not sustain permanent injury (Grell). The commissioner affirms on both appeals The first claim is affirmed without comment. In the second, the commissioner analyzes whether a claimant who has been fired, but remains on the premises to collect his belongings is entitled to benefits. The commissioner finds that claimant was given permission to collect his tools (and was doing so when he was attacked) and that this fact was sufficient to find that the claimant was in the course of his employment. The commissioner addresses two Iowa Supreme Court cases from the 1920s as well as cases from other states before concluding that claimant was in the course and scope of his employment. Unfortunately for claimant, because he was found not to have sustained injuries from the assault, claimant gets nothing. 7 months from arbitration to appeal decision.
Straw v. Larson Construction Co.. No. 5057143 (App. April 12, 2019) - Following hearing, claimant was found to have an industrial disability of 30% and was also found to be entitled to medical care (Palmer). Defendants appeal. On appeal, the commissioner's designee (Copley) affirms the 30% industrial disability. The appeal deputy accepts the opinion of Dr. Neiman, the IME doctor, over those of Dr. Abernathey. The 30% award was affirmed, as was the award of medical care. 17 months from arbitration to appeal decision.
Walsh v. Bird Chevrolet Co., No. 5056759 (App. April 12, 2019) - Claimant was found not to have met his burden of proving hearing loss and tinnitus arising out of employment (Christenson). Claimant appeals and the commissioner affirms without further discussion. 17 months from arbitration to appeal decision.
Hildreth v. Des Moines Public Schools, No. 5062082 (App. April 10, 2019) - In this death case, the hearing deputy found that claimant's death arose out of and in the course of employment (Gerrish-Lampe). Defendant appeals and claimant appeals the fact that costs were denied. On appeal, defendant also objected to claimant attempting to introduce new evidence on appeal. The commissioner agreed and did not consider this evidence. The commissioner affirmed the arbitration decision without further discussion. 17 months from arbitration to appeal decision.
Drake v. Cedar Rapids Community School District, No. 5051095 (Remand April 10, 2019) - File not found. In the appeal decision, claimant as found entitled to a 90% industrial disability award.
Miller v. Lennox International, No. 5044858 (App. April 5, 2019) - In this review reopening action, claimant was found to have an increased industrial disability (from 10 to 75%) (Elliott). On appeal, the commissioner's designee reduces the award to 40%. The reduction by the deputy was premised in large part on the fact that claimant had not complained of additional health problems or seen a doctor prior to his departure from the employer for mental health reasons (although an FCE showed a decrease in function after the time of the initial decision, with restrictions going from 50 to 20 pounds). The appeal deputy found claimant lacked motivation to work (claimant had been found disabled by SSA). Because of these factors, the 75% award was reduced to 40%. The deputy found claimant had proved that maintenance care was beneficial and awarded that care. The costs of Dr Segal's report was rejected because the deputy found this report was not reliable. 7 months from arbitration to appeal decision.
Drake v. McComas-Lacina Construction, No. 5038575 (App. April 1, 2019) - On review-reopening, the deputy concluded that claimant was no longer permanently totally disabled, but had only an 80% industrial disability. A petition for partial commutation of the PTD award was denied (Christenson). On appeal, the commissioner's designee (Copley) reverses the arbitration decision, finds that claimant was still PTD and grants the partial commutation. The reversal of the PTD award had been largely a result of surveillance conducted of claimant. The doctors who reviewed the claim found that claimant's condition appeared to have improved, but none of the doctors had changed the restrictions adopted by Dr. Hitchon (30 pounds) which were the basis of the original finding of PTD). The decision finds that the fact that claimant exceeded his restrictions occasionally did not require a change in the PTD finding because claimant could not do this on a consistent basis. The reviewing deputy then found that claimant was entitled to a partial commutation as it was in his best interests. 16 months from arbitration to appeal decision.
March 2019
Rakanovic v. Tyson Foods and SIF, No. 5055533 (App. March 29, 2019) - Claimant was found to have sustained first and second injuries and the Fund was found responsible for PTD (Gerrish-Lampe). The Fund appeals and claimant appeals the denial of penalties and the assessment against the employer. On appeal, the commissioner finds that claimant suffered a first injury to the leg (the Fund had argued that this injury, which became worse after the second injury, actually occurred after the second injury and the commissioner rejected this assertion). For the second injury, the Fund argues that claimant's leg injury extended into the body because claimant sustained a mental injury. The commissioner affirms the deputy's finding that this was a second injury and limits the employer's liability to 19%, the rating provided by the treater. The commissioner also affirms the PTD finding, concluding that this was because of claimant's injuries to his bilateral legs. The commissioner indicates that benefits commence after a period equivalent to both the first and second injuries (the deputy had found that commencement was after payment for the second injury). Costs against the Fund were denied, as were penalty benefits.
On the allegation of a back injury against the employer, the commissioner affirms the initial decision that there was no permanency from this injury. 20 months from arbitration to appeal decision.
Murdock v. Adventurelands of America, No. 5055603 (App. March 22, 2019) - Claimant was found to have a 10% lower extremity injury, but was denied industrial disability. The arbitration decision also found that claimant had not established a first injury for a fund claim (Grell). The commissioner affirms the finding that claimant's injury was confined to the leg. The first injury was found to be a shoulder injury, which the commissioner concluded was not an appropriate first injury for Fund purposes. 16 months from arbitration to appeal decision.
Rowe v. Tri-City Electric, No. 5055464 (App. March 22, 2019) - Claimant's shoulder claim was denied, with the deputy concluding that the IME doctor's opinion was based on an incorrect history. (Christenson). On appeal, the commissioner concludes that the arbitration decision was correct and the defendants' DME was to be given credit over that of claimant's IME. 16 months from arbitration to appeal decision.
Funk v. General Mills, Inc., No. 5054697 (App. March 21, 2019) - Claimant alleged claims for review-reopening of respiratory injuries, plus new dates of injury relating to those claims. These claims were denied by the deputy (Walsh). The commissioner affirmed. On the review-reopening petition, the commissioner's designee (Copley) found that a gradual worsening of a pre-existing condition was not sufficient to support review-reopening. With respect to the new injuries, the commissioner found these injuries were temporary in nature, citing claimant's treating physicians. Claimant also claimed a hip injury, and this was denied because claimant's IME physician based his opinions on inaccurate assumptions about the nature of claimant's work. 11 months from arbitration to appeal decision.
Housley v. Second Injury Fund, No. 5052507 (App. March 20, 2019) - In this case, the claimant brought a claim against the Fund without including the employer. The arbitration decision found that although the employer had paid claimant for the second injury and there was a second injury, because there had been no settlement or decision fixing the employer's liability (Gordon). a SIF claim was inappropriate. On appeal, the commissioner affirms. The commissioner finds that under Eaton v. SIF, 723 NW2d 452 (Iowa App. 2006), an unpublished court of appeals decision, there is no action against the Fund where there has been no adjudication or settlement establishing the employer's liability. The commissioner concludes that such an adjudication is a condition precedent to a Fund claim. The commissioner finds that voluntary payments do not constitute an admission of liability. Claimant argues that the Fund is able to argue that an agreement with the employer is not binding on the Fund and that because of this, the failure to have an agreement or decision should not bar action against the Fund. The commissioner finds that Eaton is binding precedent (although the appellate rules indicate that an unpublished decision is not precedential) and rejects claimant's argument. 17 months from arbitration to appeal decision.
Roberson v. Sears Holding, No. 5055975 (App. March 19, 2019) - Claimant was found eligible for a running healing period as a result of back, hip and knee injuries. Claimant was also found eligible for medical care (Gerrish-Lampe). Because of the back and hip injuries, claimant was found not eligible for SIF benefits. Without further analysis, the commissioner affirms the arbitration decision. 17 months from arbitration to appeal decision.
Christiansen v. Mitas Tire North America, No. 5054051 (App. March 19, 2019) - Claimant was found to have a 20% industrial disability following hearing. Claimant was also awarded medical bills from two providers (Gordon). On appeal, the commissioner affirms the industrial award without discussion. On the medical benefits, the commissioner found that claimant had not established a more favorable outcome from the care received and thus did not meet the beneficial care standards. 18 months from arbitration to appeal decision.
Redding v. Ferguson Enterprises, Inc., Nos. 5056336, 5056337, 5056338 (App. March 15, 2019) - Claimant was found (in a 60 page opinion)not to have established injuries to his back, left shoulder and neck (McGovern). On appeal, the commissioner affirms. With respect to the low back injury, claimant's IME doctor was found to be vague and nonspecific in his analysis and this was rejected (Manshadi). The commissioner also finds that the greater weight of evidence did not support a left shoulder injury due to work. 7 months from arbitration to appeal hearing.
Garcia De Cea v. Conagra Foods, No. 5063613 (App. March 14, 2019) - Claimant was found to have received an injury arising out of her employment, but was denied penalty benefits. Claimant was also found eligible for alternate care (Christenson). Defendants appeal and the commissioner affirms without additional comment. 9 months from arbitration to appeal decision.
Miracle v. UFP Technologies, No. 5056559 (App. March 13, 2019) - Claimant was found to have received only a temporary injury following hearing and claimant did not provide timely notice of the injury (Gerrish-Lampe). On appeal, the commissioner affirms without discussion. The commissioner does order payment of claimant's IME, since the prerequisites for the IME were met. The commissioner does not that under the post-July 1, 2017 law, the IME would not be allowed because the case was not found to be compensable. 17 months from arbitration to appeal decision.
Perez v. S.M. Hentges, No. 5053115 (App. March 13, 2019) - Claimant was found to have suffered a leg injury, but a sequela back injury was denied following hearing (Walsh). On appeal, the commissioner's designee (Copley) finds that not only did claimant not have an industrial injury, there was no injury to the leg established. The appeal deputy finds that claimant's testimony that he was struck in the heel was not credible, altering a contrary finding by the hearing deputy. Although the deputy notes that there were communication difficulties, the fact that the medical records did not mention a heel injury was sufficient to find that the injury did not occur as claimant described it. No benefits were awarded to claimant. 18 months from arbitration to appeal decision.
Nuhanovic v. Tyson, No. 5058552 (App. March 8, 2019) - Claimant was found entitled to healing period benefits as well as a 60% industrial disability for injuries to the bilateral arms and left shoulder. (Palmer). On appeal, the commissioner affirms without additional analysis. 7 months from arbitration to appeal decision.
Fox v. Tri-City Electric Co., No. 5054478 (App. March 5, 2019) - Claimant was found to have a 35% industrial disability and was awarded $9750 in penalty for HP and $795 in penalty for an underpayment of permanency (Gordon). PTD benefits were denied. Defendants appeal and claimant cross-appeals, claiming additional penalty benefits. Without further analysis, the commissioner affirms the decision. 16 months from arbitration to appeal decision.
Cerda v. R and A's Construction, No. 5051992 (App. March 4, 2019) - In this case, claimant was found not to have established that he was an employee of either R and A or of Rafael Alvarez and his claim was dismissed. Claimant also filed a petition for partial commutation, which was rejected. The commissioner affirms on both counts. On the partial commutation, the rationale for the decision is changed to cite the Sloan case, since the partial commutation was filed before a decision was rendered. 16 months from arbitration to appeal decision.
Hall v Cargill Meat Solutions, No. 5033076 (App. March 1, 2019) - Claimant was found to have a 10% industrial disability as a result of a neck injury (Gordon). On appeal, the commissioner affirms without additional discussion. 16 months from arbitration to appeal decision.
February 2019
Marshall v. Quaker Oats Co., No. 5049370 (App. Feb. 28, 2019) - Claimant was found to have sustained sequela injuries to his knees and was awarded a running healing period (Grell). Defendants appeal. On appeal, the commissioner affirms without additional analysis. 16 months from arbitration to appeal decision.
Green v. TPI Composites, No. 5061214 (App. Feb. 27, 2019) - Claimant was found eligible for healing period benefits and a 30% industrial award, but was denied penalty benefits (Palmer). Defendants appeal. The arbitration decision is affirmed without additional discussion. 16 months from arbitration to appeal decision.
Swanger v. Cloverleaf Cold Storage, No. 5049990 (App. Feb. 26, 2018) - In this action, claimant was awarded an 80% industrial award as a result of a somatic symptom disorder (Elliott). The commissioner concludes that claimant does suffer from a somatic symptom disorder, which results in a subjective pain profile that is not consistent with the physical injury. The commissioner does not find that the claimant lacks credibility but nonetheless reduces industrial disability to 50%. Claimant developed a back problem at work and had numerous injections as a result. The doctors indicated that claimant sees himself in a sick role and indicated that his subjective experience of pain was such that he believed he could not be active at any degree without ongoing discomfort. An FCE was found invalid. Dr. Bansal was the only doctor who recommended surgery. A neuropsychological report showed a psychological overlay to the pain complaints. Work hardening was ordered, but claimant did not participate. Because claimant had allegedly failed to undertake care recommended, among other reasons, claimant's industrial disability was reduced to 50%. The commissioner saw this as a lack of motivation on claimant's part and noted the relatively mild back injury claimant had suffered.
Claimant also requested alternate medical care because of a poor relationship with his primary doctor. The commissioner indicates that although a new medical provider would better serve both parties, defendants retained the right to authorize care. Defendants were ordered to authorize care with another provider. 17 months from arbitration to appeal decision.
Lafon v. Hawkeye On-Site Vehicle Services, Nos. 5055058, 5057153 (App. Feb. 25, 2019) - Claimant was found not to have sustained shoulder and neck injuries as a result of his work (Gerrish-Lampe). On appeal, the commissioner affirms the decision of the deputy. Testimony at hearing from claimant was that he suffered a traumatic workplace injury and reported this immediately to the employer. The employer testified that he did not know about the injury until claimant was terminated some 8 months after the alleged injury. The first medical report, from two months after the incident, does not mention shoulder or neck symptoms. A report of the injury does not occur until claimant's IME. The commissioner finds claimant not credible. The commissioner also finds that timely notice was not provided. 16 months from arbitration to appeal hearing.
Cote v. Federal Mogul Corp., No. 5054541 (App. Feb. 22, 2019) - Following hearing, claimant was found not to be entitled to benefits because he had sustained no permanent impairment (McGovern). Claimant appeals. Without further analysis, the decision of the deputy is affirmed. 17 months from arbitration to appeal decision.
Schutterle v. D and R Feed, No. 5056927 (App. Feb. 21, 2019) - This is an appeal decision, which says "file not found." Neither the appeal decision nor the arbitration decision can be found on the commissioner's website.
Conner v. UPS, No. 5051783 (App. Feb. 15, 2019) - Claimant was found to have a 50% industrial disability as a result of a right shoulder and left carpal tunnel injury. Injuries to the right carpal tunnel, left shoulder and neck were found either not to have been the subject of proper notice or not causally related to work (Gerrish-Lampe). Defendants appeal. The commissioner's designee (Copley) finds that claimant's left carpal tunnel and right shoulder injuries arose out of employment and that defendants had proper notice. The right shoulder injury was found to be a sequela of the carpal tunnel injury. The decision finds, however, that claimant's industrial disability is only 30% because claimant still had the ability to perform office work, which was the type of work she had been performing since the 1970's. 18 months from arbitration to appeal decision.
Robertson v. Fairfield Castings, LLC, No. 5056541 (App. Feb. 15, 2019) - At hearing, claimant was found to have sustained permanent injuries to his left leg and lumbar spine. PTD was awarded under both traditional and odd lot analyses (Pals). Defendants appeal. The commissioner affirms the PTD award without further discussion. 14 months from arbitration to appeal decision.
Bonde v. Pro Cooperative, No. 5054089 (App. Feb. 14, 2019) - At hearing, claimant was found credible and was awarded a running healing period, as well as a $10,000 penalty. (Walsh). Defendants appeal. On appeal, the commissioner's designee (Copley) affirms the decision of the hearing deputy. The decision concludes that claimant was not medically capable of working. She rejected the opinions of Dr. Boulden to the contrary. The decision notes that although it is difficult to sustain a running healing period in the absence of explicit doctor-imposed restrictions, this case was the exception. Claimant was found to be credible and to have been told by the doctors that he could not work, something to which Dr. Beck and Dr. Stoken agreed. The deputy also concluded that surgery with Dr. Nelson, which was conducted days after the hearing, was related to work and was medically necessary. The deputy finds Dr. Nelson's refusal to offer a guarantee of success did not mean the surgery was not reasonable or necessary. Penalty benefits were also affirmed. 18 months from arbitration to appeal decision.
Hessenius v. Great Plains Orthotics and Prosthetics, No. 5044228 (App. Feb. 14, 2019) - Following an arbitration decision finding permanent total disability, defendants filed a review-reopening petition and claimant filed a petition for partial commutation. (McGovern). A partial commutation was awarded, sufficient to allow claimant to pay off his home mortgage, after which weekly benefits would begin again. Claimant appeals from this decision, asking for a partial commutation awarding all but the last week of benefits in a lump sum. The commissioner reverses the decision of the deputy and finds that claimant's requested partial commutation is in claimant's best interests. He specifically finds that the fact that claimant's income from investments is taxaable not to be a reason to deny the partial commutation and indicates that these investments would likely produce a higher income than his "stagnant workers' compensation benefit." 23 months from arbitration to appeal decision.
Jensen v. Cedar Rapids School District, No. 5051383 (App. Feb. 12, 2019) - This is a partial commutation case in which the claimant argues that his petition for partial commutation was filed prior to July 1, 2017, although the petition is file-stamped July 3, 2017. The petition was dismissed, as claimant did not provide a written consent to the partial commutation (Gordon). Claimant argues that the petition was sent by certified mail to the employer and insurance carrier on June 27, 2017 and was received by the carrier on June 28. The petition was also mailed to Des Moines on June 27, but not file-stamped until July 3. Claimant notes that three other petitions mailed the same day to Des Moines were file-stamped on June 29. On appeal, the commissioner finds that he does not have jurisdiction to decide issues in equity, so the commissioner could not reform the date for filing of the petition. The commissioner goes on to indicate that assuming the agency could back date the petition, this would result on a chaotic system, which was unmanageable and bad public policy. The commissioner also implicitly criticizes claimant for not filing the petition prior to this date, since the change in the law occurred in April of 2017. The commissioner finds the best evidence of of the date of filing is the file-stamped petition. The dismissal of the partial commutation is affirmed. 17 months from dismissal to appeal decision.
Van Wyhe v. Brad Groeneweg Trucking, No. 5053966 (App. Feb. 11, 2019) - Claimant was awarded a 65% industrial disability for a material aggravation of a pre-existing cervical spine injury (Elliott). Defendants appeal. Without further analysis, the commissioner affirms the arbitration decision. 15 months from arbitration to appeal decision.
Plew v. AJS of Des Moines, Inc., No. 5056490 (App. Feb. 11, 2019) - Claimant was found entitled to a 15% industrial disability due to a back injury. A hip and right knee injury were found not to have arisen out of employment. Penalty benefits were denied. An IME was found to be triggered but was denied because the bill was not itemized (Palmer). On appeal, the commissioner's designee (Copley) affirms on all issues with the exception of the IME bill. The credibility determination of the hearing deputy was affirmed. The denial of penalty benefits was affirmed. With respect to the IME, Dr. Bansal's IME occurred after the rating by defendants' doctor, so 85.39 was invoked. Since DART only applied to costs under 4.33(6), the fact that Dr. Bansal's report did not itemize evaluation time versus report time was on no consequence. The entire IME cost was awarded. This is consistent with other cases from 2019 (Henry-Pete and Neal) in which the commissioner had made the same finding. 15 months from arbitration to appeal decision.
Frazier v. Fareway Stores, Inc., No. 5060201 et al (App. Feb. 8, 2019) - This file consolidates ten separate petitions. In nine of the files, claimant was found not to have sustained back and mental health injuries arising out of his employment. In No. 5062876, claimant was found to have a cumulative back injury and sequela mental health injury (although claimant was found not to be credible). Claimant was awarded a running award of healing period, $1500 in penalty benefits, payment for medical costs and various costs (Grell). Defendants appeal the award and claimant appeals the paucity of the healing period benefits. On appeal, the commissioner affirms without further analysis. 7 months from arbitration to appeal decision.
Swanson v. Pella Corp., No. 5055114 (App. Feb. 6, 2019) - Claimant was found to have sustained a 20% industrial disability as a result of a shoulder injury. Payment for past medical expenses was awarded and claimant was found ineligible to receive reimbursement for a rating report from Dr. Jason Sullivan, but eligible for a report from Dr. Crites. (Christenson). Without further analysis, the commissioner affirms. 17 months from arbitration to appeal decision.
Gould v. Serta/National Bedding Co., LLC, No. 5055887 (App. Feb. 6, 2019) - Claimant was found to have sustained a 40% industrial disability. $5000 in penalty benefits was also awarded.(Christenson). Without further analysis, the decision of the deputy is affirmed. 17 months from arbitration to appeal decision.
Henry-Pete v. Medical Associates of Clinton Iowa, No. 5055779 (App. Feb. 4, 2019) - Claimant was found to have sustained an injury to her neck and shoulder that resulted in a 75% industrial disability. A low back injury claimant was found not related to work. The deputy awarded claimant only a portion of the IME (Gerrish-Lampe). On appeal, the commissioner concludes that the neck and shoulder injuries were related to work and finds claimant's subjective complaints to be credible. The 75% industrial award was also affirmed. With respect to the the IME, the commissioner reiterated his conclusion in Neal v. Menard, No. 5049640 (App. Jan. 24, 2019) that DART was limited to costs under 876 IAC 4.33. The commissioner concludes that both the exam and report are payable under 85.39. In an interesting turn, the commissioner notes that 85.39 shouldn't have been triggered in the case, since defendants' doctor had only provided a causation opinion, not a determination of permanent impairment. Since defendants had not challenged this finding on appeal, however, the deputy's opinion that this was an 85.39 evaluation was adopted or ordered to be paid. 16 months from arbitration to appeal decision.
Karadsheh v. Sears Holding Co., No. 5048050 (App. Feb. 1, 2019) - Claimant was awarded a 75% industrial disability following hearing (Elliott). The deputy concluded that claimant was not an odd lot employee. File Not Found. 17 months from arbitration decision to appeal decision.
January 2019
Quail v. Simonsen Iron Works, No. 5055412 (App. Jan. 31, 2019) - At hearing claimant was found not to have established injuries to the right upper extremity, right shoulder and neck. Claimant was found not to be credible (Palmer). On appeal, the commissioner affirms without additional analysis. 18 months from arbitration to appeal decision.
Lukken v. MidAmerican Energy, No. 5055339 (App. Jan. 31, 2019) - Claimant was found not to have met his burden of proving hearing loss and tinnitus (McGovern). On appeal, the commissioner affirms the denial of benefits without further analysis. 16 months from arbitration to appeal decision.
Burk v. Allegis Group, Inc., No. 5054104 (App. Jan. 29, 2019) - Claimant was found to have a work-related respiratory condition, but a leg injury and neurological/cognitive deficits were found not to be related to work. The deputy concluded that claimant was permanently and totally disabled based on the respiratory impairments (Fitch). On appeal, the PTD finding is affirmed without further comment. Claimant was instructed to provide an itemization of medical expenses, as the earlier exhibit provided by claimant was said to be indecipherable. 20 months from arbitration to appeal decision.
Glade v. Centerville Community Betterment, Inc., No. 5056268 (App. Jan. 25, 2019) - Claimant was found to have sustained an 80% industrial disability at hearing. A $300 penalty was also imposed (Elliott). Both parties appeal. Without further analysis, the commissioner affirms. 17 months from arbitration to appeal decision.
Neal v. Menard, Inc., No. 5049640 (App. Jan. 24, 2019) - The deputy concluded that claimant's injury did not extend beyond his left wrist to include his left elbow. The deputy also found that claimant had sustained a 20% impairment to the left upper extremity. Medical payments for the left elbow condition were denied. Payment for an IME was denied because the bill was not itemized (Palmer). Claimant appeals. On appeal, the commissioner affirms on all grounds with the exception of payment for the IME. The commissioner finds that since defendants' doctor had issued an impairment rating before Dr. Kreiter's IME, the IME should be paid for. Defendants had argued the since the doctor had not itemized what portion of the claim was for evaluation and what was for the report. The commissioner finds that "would be relevant only if claimant was not eligible for reimbursement for the IME under Iowa Code section 85.39, and if claimant was seeking to recover the cost of Dr. Kreiter's report as a case cost under rule 876-4.33." 20 months from arbitration to appeal decision.
Sandhu v. Nordstrom, Inc., No. 5046628 (App. Jan. 24, 2019) - Claimant was found to have permanent injuries to her bilateral shoulders but the deputy concluded that permanency was not ripe for adjudication because of ongoing work related mental health problems. At hearing, the parties stipulated that claimant's healing period had ended, but a running healing period was awarded nonetheless (Palmer). Defendants appeal and claimant indicates that the parties had not stipulated that the healing period had ended, but asserts that permanency was ripe for adjudication. Claimant argues she is permanently and totally disabled.
The commissioner concludes that claimant had established a permanent impairment with respect to both shoulders. He reverses the deputy and concludes that the claim was ripe for adjudication on the permanency issue. The commissioner awards permanent and total disability to claimant. With respect to the shoulder injury, the commissioner finds that claimant was limited to lifting 10 pounds on a rare basis, premised of the reports of Dr. Sassman and Dr. Ott, as well as a valid FCE. Dr. Nepola's conclusion that no repetitive overhead reaching was the sole restriction was rejected. The commissioner found that claimant could not return to her former work and indicated that her unsuccessful job search reflected the significance of the permanent work restrictions. The commissioner notes that claimant's job search listing was several pages long, but that she had only been given four interviews and was not offered any jobs. The commissioner concluded that claimant's motivation to find work was significant in reaching the conclusion that she was permanently and totally disabled. The effects of the mental health impairment was found to be moot since claimant was found disabled on the basis of her shoulder injuries. 18 months from arbitration to appeal decision.
Pesicka v. Snap-On Logistics, No. 5018910 (App. Jan. 18, 2019) - This was a review-reopening petition in which the hearing deputy awarded additional healing period benefits of $589.96, based on an underpayment and penalty benefits of $626.08. No additional PPD benefits were awarded, but claimant's spouse was awarded lost wages and meal expenses and Dr. Kuhnlein's IME costs were paid (Gordon). On appeal, FILE NOT FOUND. 24 months from arbitration to appeal decision.
Byers v. Guardsmark, LLC, No. 5055931 (App. Jan. 17, 2019) - Claimant was found to be permanently and totally disabled as a result of his work injury. A $1000 penalty was awarded. Claimant's rate was found to be $231.80 (McElderry). On appeal, claimant's credibility was attacked, as claimant's testimony at his deposition varied considerably from what the initial investigation report had discussed. Even though the commissioner does not find that claimant's deposition testimony was credible, he noted that claimant still developed cauda equina syndrome from the injury. Claimant had a significant amount of treatment related to his back surgery. Ultimately, the commissioner agrees with the deputy that claimant is permanently and totally disabled, finding it "difficult to imagine a job claimant could perform given his ongoing back complaints and the assistance he requires." Claimant's rate was modified slightly, to $229.49. 19 months from arbitration to appeal decision.
Noe v. Second Injury Fund of Iowa, No. 5056973 (App. Jan. 15, 2019) - At hearing, claimant was found to have suffered a 40% industrial disability as a result of the combined effects of her first and second injuries (Fitch). Although a discussion of the Fund's credit was not specifically contained in the decision, that decision indicated that the credits stipulated to by the parties were to be provided. The Fund appeals, arguing that claimant did not prove a first injury. Without additional comment, the commissioner affirms. 6 months from arbitration to appeal decision.
Martinez v. Heffelmeier, No. 5055195, 5055196 (App. Jan. 11, 2019) - At hearing, claimant was found to be an employee rather than an independent contractor. Running healing period benefits were awarded and a $21,000 penalty was assessed (Gordon). On appeal, the commissioner affirms the arbitration decision without additional comment. 4 months from arbitration to appeal decision.
Donnell v. Lennox International, Inc., No. 5047570 (App. Jan. 11, 2019) - At hearing, claimant was found not to have met his burden that his shoulder and depression issues arose out of his employment (Grell). On appeal, the commissioner's designee (Copley) affirms the arbitration decision. Much of the discussion in the appeal decision relates to the medical records from claimant's doctors versus defendants' doctors relating to claimant's depression claim. On an issue of eligibility for two 85.39 evaluations, the opinion finds that DART is limited to a single evaluation, notwithstanding language in DART indicating that when an evaluation of permanent disability had taken place, an IME evaluation is appropriate. The deputy finds that in this case, there was no evaluation of permanent disability, only of causation, and that therefore payment for the IME was not appropriate. 18 months from arbitration to appeal decision.
Vanessa Bruss, surviving spouse of Neil Bruss v. Grout Scouts, Inc., No. 5065045 (App. Jan. 8, 2019) - Claimant's spouse filed a petition seeking death benefits in March of 2017, then filed a petition for full commutation on June 29, 2017. The deputy concluded that the commutation petition would be dismissed because there was no settlement or arbitration decision establishing the right to death benefits (Grell). This ruling was appealed. In the interim, the death benefits claim proceeded to hearing and the parties entered into numerous stipulations establishing liability for the death claim. Death benefits were awarded.
The commissioner's designee (Copley) finds that although claimant has now been awarded death benefits, this had not been established at the time the deputy's decision on the commutation issue was decided. Claimant's spouse argues that the appeal was interlocutory, the deputy erred in his application of 85.45 and Sloan and that an ex post facto application of the legislative changes violated claimant's rights.
The designee finds that the claims were not interlocutory, citing district court cases indicating the appeal was not interlocutory. The designee repeats the bulk of the decision in Sloan and notes the district court affirmed the result in Sloan. Sloan v. Mark D. Sloan, DDS, No. CVCV054329 (Ruling and Order on Petition for Judicial Review, Nov. 20, 2017). The designee finds that benefits could not be definitely determined at the time of the arbitration decision on commutation and concludes that the fact that claimant was ultimately awarded death benefits is immaterial to the circumstances at the time of the deputy's ruling. The ex post facto claim was rejected because claimant had no right to a commutation as of June 29 when the petition was filed because entitlement to benefits had not been established. The designee also finds that ex post facto laws only apply to penal and criminal actions. 16 months from deputy decision to appeal decision.
The commissioner's designee (Copley) finds that although claimant has now been awarded death benefits, this had not been established at the time the deputy's decision on the commutation issue was decided. Claimant's spouse argues that the appeal was interlocutory, the deputy erred in his application of 85.45 and Sloan and that an ex post facto application of the legislative changes violated claimant's rights.
The designee finds that the claims were not interlocutory, citing district court cases indicating the appeal was not interlocutory. The designee repeats the bulk of the decision in Sloan and notes the district court affirmed the result in Sloan. Sloan v. Mark D. Sloan, DDS, No. CVCV054329 (Ruling and Order on Petition for Judicial Review, Nov. 20, 2017). The designee finds that benefits could not be definitely determined at the time of the arbitration decision on commutation and concludes that the fact that claimant was ultimately awarded death benefits is immaterial to the circumstances at the time of the deputy's ruling. The ex post facto claim was rejected because claimant had no right to a commutation as of June 29 when the petition was filed because entitlement to benefits had not been established. The designee also finds that ex post facto laws only apply to penal and criminal actions. 16 months from deputy decision to appeal decision.
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