Potentially Significant Cases Post 7-1-17 DOI
The following are brief synopses of some of the cases that have been decided in cases involving post 7-1-17 dates of injury and the applicability date of the 2017 law.
Rubalcava v. Siouxpreme Egg Products, No. 5066865 (Arb. June 23, 2020) - In this action, Deputy Grell concludes, based on the opinions of Dr. Archer, concludes that claimant’s injury, which was characterized as a shoulder injury, extended into the body. Claimant had rotator cuff tears which were found to be proximal to the shoulder joint, as well as a distal clavicle excision. The decision indicates that the analysis was similar to that of finding a wrist injury to be an injury to the arm rather than the hand. The decision also analyzes earlier decisions concerning “shoulder” injuries. Ultimately, because claimant returned to work, the claim was limited to the rating of impairment (9%) to the body as a whole under 85.34(2)(x).
Alm v. Archer Daniels Midland, No. 5067128 (Arb. June 10, 2020) - Claimant sustained a back injury in September 2017. He continued to work for ADM at the time of hearing. Under 85.34(2)(x), the deputy considered the case functionally since there had been no loss of income. A 23% impairment rating was awarded under the Guides, with Kuhnlein’s report prevailing because it was based on the Guides (Boarini’s was not). The deputy, pursuant to agreement between the parties, concluded that 10% apportionment from an earlier injury would be applied. Apparently claimant did not raise an issue that apportionment no longer applied.
Hays v. Central Iowa Fencing, No. 5064784 (Arb. May 28, 2020) - The fighting issue in this case concerns return to work issues. Claimant argued that the employer never provided a written offer of return to work and therefore temporary benefits were payable. The employer argued that it had provided an oral offer of suitable work. The deputy (Linn) notes that “suspension of temporary benefits is allowed if suitable work is offered and declined. An offer of suitable work must be in writing.” The deputy specifically notes that under 85.33(3)(b), an offer of suitable work must be in writing. Since there was no such offer in this case, a running award of temporary partial disability benefits (claimant had obtained another, lesser paying job) was awarded. The cases highlights the necessity for written notice of suitable work.
Pelley v. John Deere Waterloo Works, No. 5067771 (Arb. May 11, 2020) - From the perspective of post 7/1/17 law, the issues in this case were whether a claimant who was still working for the same employer was entitled to industrial consideration for a CRPS claim as well as how claimant's age was to be treated in determining industrial disability. The deputy concluded that since claimant testified he was being paid $2.00 per hour less, had no overtime and was not able to access bonuses he had previously received, he was not receiving the same or greater salary, wages or earnings under 85.34(2)(v) and that the claim was to be considered industrially. A 75% industrial disability award was provided. On the age question, claimant was 40 at the time of injury and intended to work until retirement at 67. The deputy found that claimant's earning capacity over this 27 years was seriously eroded.
Smidt v. JKB Restaurants, LC, No 5067766 (Arb. May 6, 2020) - This case is one of the first cases to fully address a range of issues under the 2017 law, including the definition of a shoulder injury, return to work issues, the proximity of claimant to retirement age and payment for an IME. The deputy (Grell) initially finds, based on reports of Dr. Kuhnlein, that claimant's injury to his left shoulder extends into the body as a whole and thus entitles claimant to industrial disability (in this case disability of 40%). The deputy specifically finds that the injury was proximal to the glenohumeral joint and thus extends into the body. Citing earlier cases on this issue, the deputy concludes that in Arroyo, Agee and Hospardsky (all of which limited shoulder injuries to a scheduled injury), the question of whether the injury extended into the body was not presented. The deputy noted that in Chavez and Deng, the issue was presented and the injuries extended into the body as a whole. The deputy writes extensively on earlier cases involving shoulder injuries and notes that the statute was not specific on what constituted a "shoulder." Applying liberal construction, the injury in claimant's case was found to be a body as a whole injury.
On the return to work issue, the deputy concludes that claimant did not refuse suitable work by allegedly engaging in sexual harassment since no disciplinary action was taken against claimant based on those allegations.
The 2017 law (85.34(2)(v)) provided that claimant's proximity to retirement was to be considered in determining industrial disability. Although neither party introduced specific evidence of the number of years claimant was anticipated to continue working into the future, the deputy found that claimant was likely to retire within ten years and considered that as a factor in determining industrial disability, which was placed at 40%.
Defendants also argued that claimant's IME costs were not reasonable because they were higher than the typical fee charged by a medical provider (85.39(2)), another change made by the 2017 laws. Dr. Kuhnlein's fee was found to be reasonable and the entirety of the fee was awarded.
Heeren v. Derby Trucking, No. 5067250 (Reh’g April 28, 2020) - In the original decision, the deputy (Gerrish-Lampe) provided claimant a 20% scheduled member award despite the fact that the ratings were 10% and 2%. On rehearing, the deputy, citing 85.34(2)(x), concludes that an award beyond the ratings was impermissible in a scheduled member case and provides a 10% award.
Rivera v. Smithfield Foods, No. 5066964 (Arb. April 14, 2020) - Claimant alleged both neck and shoulder injuries. The deputy (Gerrish-Lampe) found that claimant's injury did not extend beyond the shoulder and denied there was a neck injury. There was no real discussion of the anatomy of the shoulder, rather the claim was simply found to be a scheduled member injury. The neck injury was denied. In determining the benefits to be provided to claimant, the deputy noted the ratings to the shoulder were 6% and 8%. Despite these findings, the deputy concluded that because the restrictions placed on claimant's activities were so significant, that the functional loss was 40% of the 400 weeks of benefits under 85.34(2)(n). Note: the decision does not discuss 85.34(x), which limits scheduled member payments to those indicated by the AMA Guides.
Greer v. Hahn Ready Mix, No. 5066470 (Arb. April 9, 2020) - Claimant suffered a back injury at work, which was found to be industrial in nature. Because claimant returned to her past work at the same rate of pay, however, under 85.34(2)(v) the deputy concluded that claimant's recovery was limited to her functional impairment and she was provided with 25 weeks of benefits based on Dr. Bansal's 5% rating. IME costs were denied under 85.39(2) because defendants' doctor had concluded claimant's injury had not arisen out of employment and had not provided a rating. 50% of Dr. Bansal's report was awarded as a cost. Palmer.
Mayes v. Tyson Foods, No. 5066393 (Arb. March 26, 2020) - Claimant suffered injuries to the cervical and lumbar spine as a result of work incidents in 2018. Claimant had significant functional disabilities as a result of these injuries. Although claimant initially returned to work with Tyson, he could not perform the job to which he was assigned. The deputy concluded that Tyson presented no evidence to demonstrate he had been offered alternative work and claimant testified he had not refused work. Accordingly, claimant’s claim was treated industrially and claimant was awarded a 60% industrial disability. Pals.
Nunn v. Northland Restaurant Group, No. 5066818 (Arb. March 4, 2020) - In this action, defendants assert claimant was not eligible for benefits under section 85.16(2) of the Code. Specifically, defendants argue that discussions in the medical record and at hearing that claimant smoked marijuana was sufficient to meet the employer's burden of demonstrating intoxication. The deputy (Christenson) finds that 85.16(2) requires testing as a prerequisite to satisfying the employer's burden of demonstrating intoxication. In this case, since there was no proof and no testing of intoxication, the intoxication defense fails. Alternate care was ultimately awarded to claimant.
Deng v. Farmland Foods, No. 5061883 (Arb. Feb. 20, 2020) - In this case, claimant alleged that her "shoulder" injury extended into the body, as found by Dr. Bansal. As there was no medical evidence suggesting the injury was not a body as a whole injury, the deputy (McGovern) found that the case should be treated industrially. Since claimant had not suffered a loss of income, and was actually making more money, the rating to the body as a whole was awarded. The deputy specifically noted cases where a "shoulder" case had been treated under 85.34(n) (Agee, No. 5065304 and Hospodarsky, No. 5061912) and found that in those cases no doctors had concluded that the injury extended beyond the body as a whole. The deputy found that there was no evidence to support a body as a whole claim in those cases, thereby distinguishing those cases. The deputy cited her 2/5/20 decision in Chavez in support of her decision. A small penalty was also awarded and the deputy found that the date on which benefits are to commence is the date of MMI, not when defendants actually obtain a rating.
Arroyo v Smithfield Foods, No. 5066288 (Arb. Feb. 6, 2019) - Claimant alleged injuries to the neck and bilateral shoulders, occurring post-7/1/17. The deputy (Grell) found that the neck and left shoulder conditions were not permanent impairments. The right shoulder was found to be a 6% impairment and the deputy awarded scheduled benefits under 85.34(2)(n). There was no analysis of whether the injury extended into the body and claimant's IME doctor (Bansal) apparently did not discuss this issue. Accordingly, there was no analysis of whether a "shoulder" condition could extend into the body. The condition was not surgical, but the medical evidence found tears in the supraspinatus and infraspinatus.
Chavez v. MS Technology, LLC, No. 5066270 (Arb. Feb. 5, 2020) - This case raises two issues of importance relating to the 2017 legislative changes. The first is the extent to which a "shoulder" injury which extends into the body is compensated industrially. The second addresses the question of return to work and whether a claimant has returned to work at the same wages (although reduced hours) can be considered industrially. With respect to the shoulder issue, the deputy (McGovern) acknowledged that there had been earlier decisions that had addressed shoulder questions (Agee and Hospodarsky). Neither of those cases had addressed the question in any detail. The deputy noted that earlier decisions had indicated that the "shoulder" was the joint between the arm and the trunk. The medical evidence in the case demonstrated that the injury affected parts of the body proximal to the shoulder joint and thus should be treated industrially under 85.34(2)(v). The surgery also involved changes to the body as a whole and the work injury was proximal to the shoulder joint.
On the second question, the deputy noted that if an employee returns to work or is offered work for which the employee receives the same or greater "salary, wages or earnings" than prior to the injury, the claimant is to be compensated functionally. Following the injury, the claimant in this case earned less because the plant was working fewer hours but had the same hourly wage The deputy found claimant was receiving the same salary, wages or earnings and thus the injury was treated functionally despite the fact that it would otherwise have been considered as an industrial injury. Ultimately, claimant was awarded 30 weeks of benefits, based on a 6% impairment to the body.
This case represents the first time that a deputy has addressed questions regarding the shoulder and return to work in any detail and will be helpful in future cases regarding body as a whole injuries proximal to the shoulder joint.
Rubalcava v. Siouxpreme Egg Products, No. 5066865 (Arb. June 23, 2020) - In this action, Deputy Grell concludes, based on the opinions of Dr. Archer, concludes that claimant’s injury, which was characterized as a shoulder injury, extended into the body. Claimant had rotator cuff tears which were found to be proximal to the shoulder joint, as well as a distal clavicle excision. The decision indicates that the analysis was similar to that of finding a wrist injury to be an injury to the arm rather than the hand. The decision also analyzes earlier decisions concerning “shoulder” injuries. Ultimately, because claimant returned to work, the claim was limited to the rating of impairment (9%) to the body as a whole under 85.34(2)(x).
Alm v. Archer Daniels Midland, No. 5067128 (Arb. June 10, 2020) - Claimant sustained a back injury in September 2017. He continued to work for ADM at the time of hearing. Under 85.34(2)(x), the deputy considered the case functionally since there had been no loss of income. A 23% impairment rating was awarded under the Guides, with Kuhnlein’s report prevailing because it was based on the Guides (Boarini’s was not). The deputy, pursuant to agreement between the parties, concluded that 10% apportionment from an earlier injury would be applied. Apparently claimant did not raise an issue that apportionment no longer applied.
Hays v. Central Iowa Fencing, No. 5064784 (Arb. May 28, 2020) - The fighting issue in this case concerns return to work issues. Claimant argued that the employer never provided a written offer of return to work and therefore temporary benefits were payable. The employer argued that it had provided an oral offer of suitable work. The deputy (Linn) notes that “suspension of temporary benefits is allowed if suitable work is offered and declined. An offer of suitable work must be in writing.” The deputy specifically notes that under 85.33(3)(b), an offer of suitable work must be in writing. Since there was no such offer in this case, a running award of temporary partial disability benefits (claimant had obtained another, lesser paying job) was awarded. The cases highlights the necessity for written notice of suitable work.
Pelley v. John Deere Waterloo Works, No. 5067771 (Arb. May 11, 2020) - From the perspective of post 7/1/17 law, the issues in this case were whether a claimant who was still working for the same employer was entitled to industrial consideration for a CRPS claim as well as how claimant's age was to be treated in determining industrial disability. The deputy concluded that since claimant testified he was being paid $2.00 per hour less, had no overtime and was not able to access bonuses he had previously received, he was not receiving the same or greater salary, wages or earnings under 85.34(2)(v) and that the claim was to be considered industrially. A 75% industrial disability award was provided. On the age question, claimant was 40 at the time of injury and intended to work until retirement at 67. The deputy found that claimant's earning capacity over this 27 years was seriously eroded.
Smidt v. JKB Restaurants, LC, No 5067766 (Arb. May 6, 2020) - This case is one of the first cases to fully address a range of issues under the 2017 law, including the definition of a shoulder injury, return to work issues, the proximity of claimant to retirement age and payment for an IME. The deputy (Grell) initially finds, based on reports of Dr. Kuhnlein, that claimant's injury to his left shoulder extends into the body as a whole and thus entitles claimant to industrial disability (in this case disability of 40%). The deputy specifically finds that the injury was proximal to the glenohumeral joint and thus extends into the body. Citing earlier cases on this issue, the deputy concludes that in Arroyo, Agee and Hospardsky (all of which limited shoulder injuries to a scheduled injury), the question of whether the injury extended into the body was not presented. The deputy noted that in Chavez and Deng, the issue was presented and the injuries extended into the body as a whole. The deputy writes extensively on earlier cases involving shoulder injuries and notes that the statute was not specific on what constituted a "shoulder." Applying liberal construction, the injury in claimant's case was found to be a body as a whole injury.
On the return to work issue, the deputy concludes that claimant did not refuse suitable work by allegedly engaging in sexual harassment since no disciplinary action was taken against claimant based on those allegations.
The 2017 law (85.34(2)(v)) provided that claimant's proximity to retirement was to be considered in determining industrial disability. Although neither party introduced specific evidence of the number of years claimant was anticipated to continue working into the future, the deputy found that claimant was likely to retire within ten years and considered that as a factor in determining industrial disability, which was placed at 40%.
Defendants also argued that claimant's IME costs were not reasonable because they were higher than the typical fee charged by a medical provider (85.39(2)), another change made by the 2017 laws. Dr. Kuhnlein's fee was found to be reasonable and the entirety of the fee was awarded.
Heeren v. Derby Trucking, No. 5067250 (Reh’g April 28, 2020) - In the original decision, the deputy (Gerrish-Lampe) provided claimant a 20% scheduled member award despite the fact that the ratings were 10% and 2%. On rehearing, the deputy, citing 85.34(2)(x), concludes that an award beyond the ratings was impermissible in a scheduled member case and provides a 10% award.
Rivera v. Smithfield Foods, No. 5066964 (Arb. April 14, 2020) - Claimant alleged both neck and shoulder injuries. The deputy (Gerrish-Lampe) found that claimant's injury did not extend beyond the shoulder and denied there was a neck injury. There was no real discussion of the anatomy of the shoulder, rather the claim was simply found to be a scheduled member injury. The neck injury was denied. In determining the benefits to be provided to claimant, the deputy noted the ratings to the shoulder were 6% and 8%. Despite these findings, the deputy concluded that because the restrictions placed on claimant's activities were so significant, that the functional loss was 40% of the 400 weeks of benefits under 85.34(2)(n). Note: the decision does not discuss 85.34(x), which limits scheduled member payments to those indicated by the AMA Guides.
Greer v. Hahn Ready Mix, No. 5066470 (Arb. April 9, 2020) - Claimant suffered a back injury at work, which was found to be industrial in nature. Because claimant returned to her past work at the same rate of pay, however, under 85.34(2)(v) the deputy concluded that claimant's recovery was limited to her functional impairment and she was provided with 25 weeks of benefits based on Dr. Bansal's 5% rating. IME costs were denied under 85.39(2) because defendants' doctor had concluded claimant's injury had not arisen out of employment and had not provided a rating. 50% of Dr. Bansal's report was awarded as a cost. Palmer.
Mayes v. Tyson Foods, No. 5066393 (Arb. March 26, 2020) - Claimant suffered injuries to the cervical and lumbar spine as a result of work incidents in 2018. Claimant had significant functional disabilities as a result of these injuries. Although claimant initially returned to work with Tyson, he could not perform the job to which he was assigned. The deputy concluded that Tyson presented no evidence to demonstrate he had been offered alternative work and claimant testified he had not refused work. Accordingly, claimant’s claim was treated industrially and claimant was awarded a 60% industrial disability. Pals.
Nunn v. Northland Restaurant Group, No. 5066818 (Arb. March 4, 2020) - In this action, defendants assert claimant was not eligible for benefits under section 85.16(2) of the Code. Specifically, defendants argue that discussions in the medical record and at hearing that claimant smoked marijuana was sufficient to meet the employer's burden of demonstrating intoxication. The deputy (Christenson) finds that 85.16(2) requires testing as a prerequisite to satisfying the employer's burden of demonstrating intoxication. In this case, since there was no proof and no testing of intoxication, the intoxication defense fails. Alternate care was ultimately awarded to claimant.
Deng v. Farmland Foods, No. 5061883 (Arb. Feb. 20, 2020) - In this case, claimant alleged that her "shoulder" injury extended into the body, as found by Dr. Bansal. As there was no medical evidence suggesting the injury was not a body as a whole injury, the deputy (McGovern) found that the case should be treated industrially. Since claimant had not suffered a loss of income, and was actually making more money, the rating to the body as a whole was awarded. The deputy specifically noted cases where a "shoulder" case had been treated under 85.34(n) (Agee, No. 5065304 and Hospodarsky, No. 5061912) and found that in those cases no doctors had concluded that the injury extended beyond the body as a whole. The deputy found that there was no evidence to support a body as a whole claim in those cases, thereby distinguishing those cases. The deputy cited her 2/5/20 decision in Chavez in support of her decision. A small penalty was also awarded and the deputy found that the date on which benefits are to commence is the date of MMI, not when defendants actually obtain a rating.
Arroyo v Smithfield Foods, No. 5066288 (Arb. Feb. 6, 2019) - Claimant alleged injuries to the neck and bilateral shoulders, occurring post-7/1/17. The deputy (Grell) found that the neck and left shoulder conditions were not permanent impairments. The right shoulder was found to be a 6% impairment and the deputy awarded scheduled benefits under 85.34(2)(n). There was no analysis of whether the injury extended into the body and claimant's IME doctor (Bansal) apparently did not discuss this issue. Accordingly, there was no analysis of whether a "shoulder" condition could extend into the body. The condition was not surgical, but the medical evidence found tears in the supraspinatus and infraspinatus.
Chavez v. MS Technology, LLC, No. 5066270 (Arb. Feb. 5, 2020) - This case raises two issues of importance relating to the 2017 legislative changes. The first is the extent to which a "shoulder" injury which extends into the body is compensated industrially. The second addresses the question of return to work and whether a claimant has returned to work at the same wages (although reduced hours) can be considered industrially. With respect to the shoulder issue, the deputy (McGovern) acknowledged that there had been earlier decisions that had addressed shoulder questions (Agee and Hospodarsky). Neither of those cases had addressed the question in any detail. The deputy noted that earlier decisions had indicated that the "shoulder" was the joint between the arm and the trunk. The medical evidence in the case demonstrated that the injury affected parts of the body proximal to the shoulder joint and thus should be treated industrially under 85.34(2)(v). The surgery also involved changes to the body as a whole and the work injury was proximal to the shoulder joint.
On the second question, the deputy noted that if an employee returns to work or is offered work for which the employee receives the same or greater "salary, wages or earnings" than prior to the injury, the claimant is to be compensated functionally. Following the injury, the claimant in this case earned less because the plant was working fewer hours but had the same hourly wage The deputy found claimant was receiving the same salary, wages or earnings and thus the injury was treated functionally despite the fact that it would otherwise have been considered as an industrial injury. Ultimately, claimant was awarded 30 weeks of benefits, based on a 6% impairment to the body.
This case represents the first time that a deputy has addressed questions regarding the shoulder and return to work in any detail and will be helpful in future cases regarding body as a whole injuries proximal to the shoulder joint.
Hou v. Smithfield Foods, No. 5066327 (Arb. Jan. 13, 2020) - In this claim, the parties agreed that claimant had suffered a shoulder injury that was to be treated as a scheduled member under 85.34(2)(n). The deputy (Elliott) noted that this section provides that a shoulder injury has a maximum value of 400 weeks. Claimant did not argue that the injury extended into the body as a whole. The deputy treated the injury as a scheduled injury.
Hernandez v. Tyson Foods,No. 5064403 (Arb. Dec. 19, 2019) - In this case, claimant alleged a shoulder injury as well as a neck injury. No argument was made by claimant that the "shoulder" injury should be treated industrially and the deputy (Gerrish-Lampe) treats this as a scheduled member. The neck claim was denied, so claimant was paid on the basis of a scheduled injury.
Anderson v. Broadlawns Medical Center, No. 5064991 (Arb. Dec. 16, 2019) - In this action, claimant raised issues indicating that her injuries to her rotator cuff, glenoid and labrum were injuries to the body as a whole. She also complained of lymphedema. Dr. Kuhnlein opined that the surgical procedures were conducted proximal to the glenohumeral joint and were therefore body as a whole injuries. The deputy (Christenson) appeared to conclude that the injury was to be treated under the shoulder rules and not industrially, but since he concluded that the lymphedema was a body as a whole injury, the case was considered industrially and claimant was awarded 30%. There was no analysis of whether claimant's injury was a shoulder injury.
Streif v. John Deere Dubuque Works, No. 5068621 (Arb. Dec. 3, 2019) - Christenson. In this case, claimant suffered a crush injury to the thumb/hand. There was apparently no allegation of industrial loss, simple a dispute about the rating of impairment. In making the determination, the deputy notes that under 85.34(2)(x), lay testimony is not to be used to determine the percentage of impairment. The deputy goes on to note, however, that "the new statute does not appear to prohibit using lay testimony in aiding to ascertain which of the two ratings in this case is more convincing or credible." The deputy finds that the higher rating is appropriate in light of the testimony. The deputy also goes on to note that even if the testimony was not considered at all, the higher rating was more supported.
Stiles v. Annett Holdings, No. 5064673 (Arb. Nov. 15, 2019) - Palmer. This case involved a potential "shoulder" injury with one date of injury stated as 6/27/17 and others post 7/1/17. The deputy concluded that claimant's injury date was post-7/1/17, calling into question the new act. There are two potentially significant aspects to the decision. First, the deputy concludes that defendants notice and SOL defenses were subject to the discovery rule. The deputy finds that the changes to 85.23 and 85.26 "are consistent with the discovery rule that has been followed in workers' compensation cases in Iowa for many years." The deputy then analyzes the case in terms of prior appellate cases concerning the discovery rule and finds that claimant timely notified defendants and timely filed his claim.
With respect to the "shoulder" injury, claimant apparently did not argue that his injury was to the body as a whole and was, in fact, not a shoulder injury since it did not involve the glenohumeral joint. Therefore, the deputy concluded that the injury was in fact a shoulder injury, did not extend into the body as a whole and thus should be treated under 85.34(2)(n) as a scheduled member injury. The deputy awarded 52 weeks of benefits based on the 400 week schedule. Because the issue of whether the injury was or was not a shoulder injury was not litigated, it is unclear what the ramifications of this decision will be.
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