2021 Workers' Compensation Appeal Decisions

 2021 Workers' Compensation Appeals Decisions

The following are appeal decisions decided by the commissioner in 2021, by month.

December 2021

Carmer v. Nordstrom, No. 1656062.01 (App. Dec. 29, 2021) - Claimant was found to have sustained an injury to her right shoulder and a sequela injury to her left shoulder.  Both of these injuries were found to be scheduled member injuries, but the injuries were found to be industrially compensable under 85.34(2)(v). Claimant was found to have a 70% industrial disability (Palmer). On appeal, the commissioner affirms that there was a sequela injury to the left shoulder, crediting Dr. Segal's report over that of Dr. Milani.  Most importantly, the commissioner affirms the fact that because the two shoulder injuries were the result of a single incident, this injury was to be treated industrially under 85.34(2)(v).  The commissioner notes that "shoulder" injuries were not added to the list of injuries that were to be treated a scheduled member injuries on a 500 week basis when injuries to two arms, legs, etc. occurred.  This, according to the commissioner, leaves a situation where either each shoulder is compensable separately on a 400 week basis or is to be treated inudstrially under 85.34(2)(v). Because 85.34(2)(n) referrred only to loss of "a" shoulder (singular) the fact that two shoulders were involved placed this injury in the catch all provision of 85.34(2)(v), which treats injuries industrially.  On the matter of industrial disability, however, the commissioner reduces the award from 70 to 50%, finding that although claimant's hourly rate was 35% lower in a new job, she was working without accommodation or physical difficulties.  The commissioner also affirmed a small ($250) penalty award. 4 months from arbitration to appeal decision. 

Hunter v. Lan Silver Pines, LLC, No. 1656860; Hunter v. Senior Housing Management, No. 20700082.01 (App. Dec. 14, 2021) - In the first case listed above, the deputy found that claimant had sustained a 40% industrial disability as a result of a cervical strain, low back strain and right ankle/foot strain.  In the second claim, the deputy concluded that there was insufficient evidence to establish a work related injury (Palmer). Defendants appeal the first claim; claimant appeals the second.  The commissioner affirms both cases without further comment.  5 months from arbitration to appeal decision.  

Lopez v. Maple Valley Feeders Co., No. 1663048.01 (App. Dec. 9, 2021) - Claimant was found to have a 20% industrial disability.  Payment for Dr. Sassman's IME was awarded (Walsh).  Defendants appeal and the commissioner affirms on the industrial disability question, deferring to the deputy's credibility finding. The IME payment was reversed, however, as there was no evaluation of disability by a physician retained by the employer. The commissioner concluded that a return to work slip was not an assessment of disability. Because Dr. Sassman did not distinguish between the record review and report preparation, costs under 4.33(6) were denied by the commissioner. 5 months from arbitration to appeal decision.

Himmelsbach v. Quaker Oats, Nos. 5066732, 5066867 (App. Dec. 8, 2021) - Claimant was found to have injuries to his right arm and shoulder, but not to his body as a whole. A 12% rating was awarded. In the second claim, claimant's right knee condition was found to be materially aggravated by a work injury.  Claimant was found eligible for a running healing period on this claim.  Penalty benefits were awarded against the employer in the shoulder claim (Cleereman). Defendants appeal the penalty claim, alleging that they were not provided credit for short and long term disability benefits that were paid.  Defendants also challenge the rate found by the deputy.  Claimant challenges the restriction of the shoulder injury to a scheduled member.

The commissioner affirms the shoulder claim and the knee claim.  On the rate issue, the commissioner finds that the weeks included by claimant fairly represented his customary earnings. Certain bonuses were also included, a "pay for performance" bonus and a "vacation bonus" as these were found to be regular bonuses.  Bonuses which claimant received when the union contract was ratified was found not to be a regular bonus and was not included in determining rate, reversing the deputy.  The commissioner finds there was not enough evidence to determine expected the bonuses annually or bi-annually or in some other consistent time frame.  On the penalty claim, defendants argue that the penalty can only be paid on the difference between the short or long term disability amount and the WC rate.  The commissioner, citing earlier commission precedent, finds that this is a correct reading of 85.38(2).  He rejects claimant's argument that this would allow defendants to skirt their obligations under the law.  The decision finds that the difference between the STD/LTD payment and WC makes claimant whole, without a double recovery and thus penalty is appropriate only on the difference between the two payments.  The commissioner finds that a 50% penalty on that amount is appropriate, however and awards a penalty of $18,000. 6 months from arbitration to appeal decision.

Whitacre v. Avera Holy Family, No. 5061284, 5061285 (App. Dec. 7, 2021) - Claimant was found not to have a disability as a result of his injuries (Walsh). Claimant appeals, arguing that he sustained a permanent injury to the back.  The commissioner affirms without additional comment. 5 months from arbitration to appeal decision. 

Armstrong v. Collis, LLC/SSW Holding Co., Inc., No. 19006218.01 (App. Dec. 7, 2021) - Claimant was found to have a right shoulder injury, compensated under the schedule.  Back, neck and right arm injuries were denied (Cleereman). Claimant appeals the rating for the shoulder injury (apparently not arguing that the injury was industrial).  The commissioner affirms without additional comment. 4 months from arbitration to appeal decision.  

Bautista v. Iowa Premium Beef, No. 1643891.01 (App. Dec. 6, 2021) - Claimant was found to have a right shoulder injury, compensated as a scheduled member, with 64 weeks of benefits awarded.  A neck claim was denied (Gerrish-Lampe). A sequelae claim to the left shoulder was also denied. The commissioner affirms the arbitration decision without additional comment.  6 months from arbitration to appeal decision.  

McKoy v. ITA Group, Inc., No. 5065221.01 (App. Dec. 2, 2021) - In this case, an insurance company was found to be entitled to a lien of $116,666.67 from claimant's third party settlement in the amount of $175,000 (Christenson). Claimant alleges that the deputy erred in finding that reimbursement was due the insurance carrier.  On appeal, the commissioner finds that the insurance carrier is entitled to $116,666.67, based on the 1/3 fee taken by claimant's counsel from the third party settlement.  4 months from arbitration to appeal decision.  

 November 2021

Kish v. University of Dubuque, No. 5066482 (App. Nov. 30, 2021) - In this claim, the arbitration decision limited claimant to functional disability under 85.34(2)(v) (Cleereman).  50 weeks of benefits were awarded.  Claimant appeals and the commissioner affirms with no further comment.  4 months from arbitration to appeal decision.

Rogers v. TPI Composites, Inc. and SIF, No. 19002349.01 (App. Nov. 30, 2021) - In the arbitration decision, the deputy found that claimant's foot injury lit up a pre-existing back condition and awarded  13% industrial disability to claimant.  The SIF claim was dismissed because of the finding that claimant's injury was industrial. A notice defense was rejected.  Penalty benefits were awarded (Gerrish-Lampe). On appeal, the commissioner affirms the finding that claimant's injury was industrial, but increases the industrial award to 20% given his permanent lifting restrictions. The penalty award was reduced because a report finding no causation was issued on November 20, 2020, so no penalty was awarded past that date. The determination that defendants were entitled to control care was reversed inasmuch as claimant had sought care with Dr. Delbridge because of defendants' denial of the claim and the fact that no care was authorized at the time of the hearing. 

The commissioner also reverses a finding that defendants were entitled to credit for short term disability.  The commissioner finds that there was no evidence presented negating the possibility that the payments would have been made even though there was an injury compensable under chapter 85.  Finally, reimbursement for Dr. Kuhnlein's report was limited to the cost of the report under rule 4.33 because there was no prior evaluation of claimant's impairment.  4 months from arbitration to appeal decision.

Lutz v. Consolidated Refrigerated Services, No. 5066804 (App. Nov. 29, 2021) - Claimant was found to have an injury to his leg, but allegations of a permanent injury to the lumbar spine were rejected, as was a PTD claim (Phillips). Claimant appeals and the commissioner affirms the arbitration decision without additional comment.  4 months from arbitration to appeal decision.  

Lester v. Hormel Foods Corp., No. 1663612.01 (App. Nov. 23, 2021) - Claimant was found to have sustained an injury as a result of work, but her claim was dismissed for failure to provide timely notice under 85.23 (Christenson).  Claimant argues that the deputy failed to make explicit credibility findings, rejected material evidence, failed to consider an inference presented to him and placed an inappropriate burden with respect to notice.  The commissioner affirms the dismissal without additional comment.  The commissioner gives considerable deference to the decision of the deputy.  6 months from arbitration to appeal decision. 

Peters v. Ryder Integrated Logistics, Inc., No. 5067874 (App. Nov. 18, 2021) - The arbitration decision found that claimant had established left carpal tunnel syndrome and ulnar neuropathy resulting in a 30% disability to the left arm.  Claims for the neck, back and left shoulder were denied (Lunn). The commissioner affirms the denial of the neck, back and left shoulder and also finds that the arm injury was work-related. With respect to the permanency finding, the commissioner finds that claimant had not reached MMI as of the time of the hearing (the MMI date chosen by the deputy was more than a month before MMI).  Although defendants did not dispute the date chosen for MMI, the commissioner concludes that the case was not ripe for a permanency determination at the time of hearing.  The commissioner notes that claimant has the right to file a review-reopening action to determine permanency.  6 months from arbitration to appeal decision.  

Trimble v. Pepsi Beverages, Nos. 19700505.01, 19700262.01 (App. Nov. 17, 2021) - In one of the files associated with this case, the deputy found that claimant failed to establish a left knee injury (Pals). This finding was affirmed by the commissioner.  The second claim concerned alleged hearing loss and tinnitus.  The deputy concluded the hearing claim was not ripe for determination and found that claimant sustained a 2.5% whole body impairment from tinnitus.  A notice defense was denied.  On appeal, the commissioner affirmed the decisions on hearing loss and notice.  The tinnitus claim was also affirmed, with the commissioner seemingly ignoring the claim made by the injured worker that this claim should have been considered industrially.  Payment for claimant's IME with Dr. Tyler was also denied.  4 months from arbitration to appeal decision.  

Clark v. Winnebago Industries, No. 5063138 (Remand Nov. 16, 2021) - The Court of Appeals in this case found no basis for a penalty award related to claimant's marital status or for penalty related to failure to pay PPD.  The court remanded for a determination of penalty on the underpayment of temporary benefits.  On remand, the commissioner finds that there was a delay in payment of $1469.13 in temporary benefits and further concludes that defendant failed to establish a reasonable excuse for failing to timely pay temporary benefits. The commissioner imposes a 35% penalty and awards claimant $514.20 in penalty benefits.  7 months from COA decision to commissioner's remand decision.

Bobholz v. Genuine Parts Co., No. 5067997.01 (App. Nov. 10, 2021) - Claimant was found to have suffered a temporary impairment, but not a permanent impairment (Copley). On appeal, claimant challenges the denial of permanency benefits and also argues that an additional six months of temporary benefits should be awarded.  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Fairhurst v. Jendro, Inc. and SIF, No. 1641986.01 (App. Nov. 8, 2021) - At hearing, claimant was found to have suffered a 4% disability to the right hand as a result of a 3/31/17 injury and an additional 5% to the right hand due to a 10/19/17 injury.  An injury to the left hand was denied, resulting in the denial of Fund benefits.  Penalty benefits were denied (Pals).  On appeal, claimant asserts injury to the bilateral hands as a result of the 10/19/17 injury and to Fund benefits.  The commissioner affirms.  In the decision, the commissioner finds that Dr. Potthoff's decision finding no impairment to the left hand was more convincing than that of Dr. Manshadi.  Because of "uncertainties" in Dr. Manshadi's opinion with regard to the assessment of impairment according to the Guides, the commissioner rejected Dr. Manshadi's opinion.  The commissioner does, however, overturn the finding of no penalty against the employer.  The employer had waiting seven weeks after MMI to request a permanent impairment rating and there was an additional delay between the receipt of the rating and payment of benefits.  The delay was approximately 20 weeks and a penalty in the amount of $2000 (roughly 50%) was awarded.  6 months from arbitration to appeal decision.  

Pazzi v. EFCO/CPI, No. 5053306.01 (App. Nov. 3, 2021) - In this case, the fighting issue was which insurer was responsible for a PTD award in a review-reopening action.  The deputy who decided the case following hearing apportioned the PTD award by ordering one insurer to pay $302.00 per week and the other insurer to pay $267.82 per week (Grell). On appeal, Deputy Copley, acting as the commissioner's designee, finds that although claimant proved a case for PTD, apportionment was not allowed by the statute (pre-2017 changes).  The deputy found that although the initial decision may have been more equitable, the Supreme Court's decision in Drake University v. Davis precluded apportionment because the statute did not specifically provide for apportionment in such a situation.  Although Drake addressed a different factual situation, it established the proposition that without an apportionment statute "there is no basis for the agency to apportion the award."

Having made this decision, the appeal decision notes that the doctors treating claimant's back injury (the other injury was to the neck) noted that the medications used in treating the back injury were likely the cause of claimant's drowsiness and his mental and cognitive difficulties.  The doctors were unable to recommend a return to work given this finding.  Because the effects of these medications was to restrict claimant from work, the deputy finds that the insurer for this injury was responsible for the PTD payment.  The deputy goes on to indicate that because a worsening in the neck condition occurred, the increase in claimant's industrial disability from the neck condition must be assessed.  The deputy finds that claimant sustained a 40% industrial disability from the neck condition (prior industrial award of 50% and a current industrial disability of 90% due to the worsening of the neck condition).  Because apportionment was not applicable, claimant was entitled to 200 weeks of benefits from Sentry (from the neck condition) and PTD benefits from Travelers.  The decision explains this is not a double recovery, since there were two separate injuries.  7 months from arbitration to appeal decision.  

October 2021

Mather v. Archer Daniels Midland, No. 1640328.01 (App. Oct. 29, 2021) - Claimant was awarded a 9% impairment to the arm following hearing.  Defendant appeals and the commissioner affirms without additional analysis.  3 months from arbitration to appeal decision.  

Heister v. Dream II Holdings and SIF, No. 1652134.01 (App. Oct. 28, 2021) - The only appeal in this case is with respect to the Fund.  The deputy found that claimant sustained a 10% industrial disability based on a first injury to the right upper extremity and a second injury to the left upper extremity.  After credits, claimant was awarded 12.5 weeks of benefits (Lunn).  Claimant appeals and the commissioner affirms with no additional analysis.  5 months from arbitration to appeal decision.  

Hadzalic v. Unity Point Health - Allen Memorial, No. 19700082.01 (App. Oct. 27, 2021) - Claimant was found not to be a credible witness and the deputy concluded claimant had failed to sustain a work-related injury (Walsh).  The commissioner affirms without additional comment, other than to state that he gave considerable deference to the credibility findings of the deputy.  4 months from arbitration to appeal decision.  

Derrickson v. Securitas Security Services, No. 1646401.01 (App. Oct. 26, 2021) - Claimant was found to have an arm injury and was provided a 5% impairment rating.  The deputy found that the injury did not extend to the shoulder (Phillips).  The commissioner affirms without additional comment.  3 months from arbitration to appeal decision.

Cross v. City of Des Moines, No. 1626330.01 (App. Oct. 25, 2021) - In this action, claimant was awarded an 85% industrial award (Gerrish-Lampe). Both parties appeal and the commissioner affirms without further comment. 5 months from arbitration to appeal decision.

Welch v. Seneca Tank, No. 1647781.01 (App. Oct. 20, 2021) - At the arbitration level, the deputy concluded that claimant had a shoulder injury that was a scheduled member injury.  An 11% functional impairment was awarded.  Claimant appeals, challenging the limitation of the injury to a scheduled member and also alleging that portions of claimant's pay were excluded from the rate calculation.  On appeal, the commissioner affirms, finding that claimant's distal clavicle excision did not extend the injury into the body as a whole.  The commissioner notes that the portion of the distal clavicle that was excised was closely interconnected in location to claimant's glenohumeral joint.  Furthermore, the exicision was not performed because of an injury to the distal clavicle but to treat claimant's shoulder pain and function by creating additional space in the subacromial area.  The commissioner then cited Deng and Chavez for the proposition that the injury to the shoulder was not an injury to the body as a whole.

On the rate issue, claimant had received a "benefit allowance" that was applied to his health insurance premium.  Claimant argued this amount should be considered in determining rate.  The commissioner, citing section 85.61(3), notes that the "employer's contribution for welfare benefits" is not included in the rate.  The "benefit allowance" acted as the employer's contribution for welfare benefits and thus was not includable in the rate.  

Marrs v. Regional Care Hospital Partners, Inc., No. 5052161 (App. Oct. 4, 2021) - Claimant filed for review-reopening, arguing that she was permanently and totally disabled.  The deputy found claimant had an 80% industrial disability (Pals).  Claimant appeals.  The commissioner grants claimant's appeal, finding that she demonstrated she was permanently and totally disabled.  The commissioner notes that claimant was limited to rare sitting and standing (1-5% of an eight hour day) according to an unrebutted FCE.  Claimant testified that she spent 90% of her days laying down.  The commissioner notes that although claimant had not attempted to secure employment, she testified she was not aware of any jobs that would allow her to lay down 90% of the day.  Even at-home employment would require an accommodation for using a traction machine 3-4 times a day for thirty minutes.  Although defendants produced a vocational report demonstrating jobs in the "light" category, the commissioner finds "it is unclear how claimant could perform any of those jobs (or any other job, for that matter) while having to lay down for the vast majority of her day."  Although the vocational report was unrebutted by other vocational testimony, it was rebutted by the FCE and claimant's testimony. 4 months from arbitration to appeal decision.  

September 2021

Simmons v. Dubuque Auto Plaza, No. 5061978 (App. Sept. 28, 2021) - Claimant was found entitled to a 10% industrial disability and penalty benefits were denied (Humphrey). Claimant appeals and defendants cross-appeal and the the commissioner affirms on both counts.  No further elaboration is provided for the affirmance of the industrial award, but the commissioner addresses the penalty award.  The penalty argument focused on claimant's rate.  Although claimant argued that defendants were in the best position to determine claimant's rate, claimant received checks not only from the employer, but from car manufacturers and those amounts were not included in claimant's paycheck. The commissioner finds defendant did not know of these amounts until a month before the arbitration hearing.  An agreement as to the greater rate was reached in approximately 21 days and the commissioner finds this did not justify a penalty award.  5 months from arbitration to appeal decision.  

Jones v. Aerotek, Inc., No. 5068857.02 (App. Sept. 23, 2021) - Claimant was found to have a 50% impairment of the arm (Phillips).   Defendant appeals and the commissioner affirms without additional comment. 5 months from arbitration to appeal decision.

Drahozal v. American Airlines, No. 5056606 (Remand Sept. 22, 2021) - This case had reached the Iowa Court of Appeals, which concluded that claimant failed to carry her burden to demonstrate that five weekly benefit checks were issued in an untimely manner.  The case was remanded to the commissioner to amend the penalty award consistent with the appellate decision.  The commissioner adopts the court's decision, reducing the penalty by $820.85. Five months from COA decision to commissioner's remand decision. 

McClain v. Lennox Industries, No. 1664566.01 (App. Sept. 22, 2021) - Claimant was found to have sustained a 12% permanent disability to his leg.  The deputy concluded claimant's injury was not unexplained or idiopathic, but occurred because claimant caught his toe on the floor (Walsh).  The commissioner affirms without further discussion, although explaining that considerable deference to the credibility findings of the deputy was provided.  5 months from arbitration to appeal decision.  

Jurries v. Tyson Foods, Inc., Nos. 5048758, 5048759 (App. Sept. 14, 2021) - Claimant was awarded an additional 35% industrial disability on review-reopening, 15% of which was attributed to claimant's back condition and 20% to his neck condition (Palmer).  The commissioner affirms.  With respect to the back condition, the commissioner notes defendants' argument that Dr. Gordon, who had originally imposed a 50 pound weight restriction, later lifted that restriction. The commissioner finds that although this was true, defendant was honoring the 50 pound limit at the time of the hearing and this had disqualified claimant from his manifest pizza job.  Furthermore, the surgery claimant had on his neck resulted in additional impairment as well as the inability to perform the cold scale operator job.  With these additions, the commissioner affirms the arbitration decision.  4 months from arbitration to appeal decision. 

Lawson v. Benton Sand and Gravel, No. 5066379 (Remand Sept. 10, 2021) - In this remand from a decision of the district court, the commissioner reduces the number of exemptions allowed claimant from five to four, as ordered by the court.  Two months from district court remand to the commissioner’s remand order.

Anderson v. Westhaven Community, No. 19700492.01 (App. Sept. 8, 2021) - Claimant was found not to have met his burden of proving a permanent injury (Christensen). The commissioner affirms without additional comment.  3 months from arbitration to appeal decision. 

Thiede v. Elite Casino Resorts, No. 5068126 (App. Sept. 7, 2021) -  Claimant's request for a running healing period was denied at hearing and the deputy found claimant had suffered a 70% industrial disability.  In a ruling for rehearing, the deputy found that claimant's neck condition was not at MMI, but did not alter the 70% industrial disability finding, nor the finding that claimant was not eligible for running healing period (Christenson).  On appeal, the commissioner notes that although a permanency rating had been found, the deputy had also found that claimant had not reached MMI for her neck condition, a seeming inconsistency.  The commissioner affirms the finding that claimant had not reached MMI and then finds that it was not appropriate to determine permanency,  citing Bell Brothers v. Gwinn (agency cannot speculate on permanency before MMI has been reached).  The commissioner then finds that there was insufficient evidence to find that there were ever any official offers of work made to claimant that she refused (although defendants claimed there were written offers of work, evidence of these offers was not proffered at hearing and defendants' counsel had indicated there was not work available within claimant's restrictions).  Accordingly, the commissioner finds that claimant is entitled to a running award of healing period benefits.  8 months from arbitration to appeal decision.  

Presson v. Freiburger Concrete and Topsoil, No. 5049542 (App. Sept. 2, 2021) - Claimant was found not to be a credible witness and permanency benefits were denied. Additional temporary benefits were also denied (Fitch). The decision of the deputy was affirmed, with the commissioner noting that considerable deference was provided to the the deputy on the matter of credibility. 5 months from arbitration to appeal decision.  

August 2021

Ahrens v. Earwood Family Properties, No. 5066611 (App. Aug. 30, 2021) - Claimant was found to be an employee of the defendant and was awarded temporary and permanency benefits (10% impairment of the hand).  The deputy also allowed claimant to amend his petition to include a penalty claim, but ordered that claim to be heard at a later date.  The commissioner affirms the finding that claimant was an employee.  The commissioner also rejects defendants' argument that claimant did not provide evidence that claimant could not work after the injury, noting that claimant was not required to prove that he was completely incapable of working.  The commissioner noted that claimant was in a sling and could not return to his regular work, despite the fact he had no official restrictions from his physician.  the temporary award of benefits was affirmed.  The commissioner modifies the permanency award from 19 weeks to 16 weeks of benefits.  This was based on the fact that there was no impairment rating provided, but claimant's injury was ratable based on the loss of 80% of his little finger.  The commissioner notes that under the Guides, an amputation is compulsory for an amputation, with the level determining the percentage.  The commissioner notes that "agency expertise" under 85.34(2)(x) is not brought to bear in making this determination, given the Guides.  The commissioner then provides this instruction:

"That said, claimants are cautioned against proceeding to hearing without a physician-assigned impairment rating.  The overwhelming majority of injuries are given impairment ratings using formulas and tables in the Guides that are nuanced and complicated and require reliance on subjective complaimant, in-office measurements, or other factors that are only appropriately considered by a physician. Thus, while in this case claimant's extent of loss and percentage of permanent impairment was determined without a physician's opinion or impairment rating, the holding in this case is based on very specific circumstances and is therefore intended to be very narrow."

The penalty finding was also affirmed.  5 months from arbitration to appeal decision.  

Delehanty v. Finley Hospital, No. 5063812, 5063813 (App. Aug. 30, 2021) - Claimant's back, neck and mental health complaints were denied by the deputy at hearing and claimant was found to have failed to meet her burden of proving an injury arising out of employment.  On appeal, the commissioner's designee (Copley) affirms the earlier decision.  The appeal decision finds that claimant's fibromyalgia symptoms prior to the alleged date of injury were similar to her complaints after that date of injury.  The decision finds that there were no objective differences between the complaints before and after the alleged injury.  The deputy also rejected Dr. Sassman's rating, finding that claimant did not have a DRE Category III injury to the back.  The denial of the claim was affirmed on appeal.  6 months from arbitration to appeal decision.  

Palmer v. Nor-Am Cold Storage, Inc. and Premier Services, Inc., No. 5067030 (App. Aug. 26, 2021) - The deputy concluded that claimant was not employed by Nor-Am, but solely by Premier.  More devastating to claimant's case, however, was the deputy's conclusion that claimant was intoxicated when the work injury occurred and that claimant failed to overcome the presumption that claimant's intoxication was a substantial factor in causing the work injury (Gerrish-Lampe). On appeal, the commissioner affirms the deputy's decision without further comment.  5  months from arbitration to appeal decision.

Howard v. Prestage Foods of Iowa, LLC, No. 1665279.01 (App. Aug. 24, 2021) - Claimant was found to have a shoulder injury, but was found not to have a neck injury that arose out of employment.  A 17% functional award was made by the deputy (Copley).  On appeal, the commissioner affirms without additional comment.  4 months from arbitration to appeal decision.

McMorris v. Seabee Cylinders, No. 1659134.01 (App. Aug. 18, 2021) - In this action, claimant was found to have an 8% industrial disability as a result of hearing loss and tinnitus (Gerrish-Lampe). On appeal, the commissioner increase the industrial award to 25%, based largely upon the fact that claimant could not perform many of his previous highest paying jobs because of his injuries.  Claimant also indicated that he could not work in any environment with sustained noise. Based on these factors, the award was increased to 25%.  4 months from arbitration to appeal decision. 

Levy v. Q Health and SIF, No. 1641868.01, 1641454.01 (App. Aug. 9, 2021) - In this action against the employer and Fund, the deputy concluded that claimant had not established an injury arising out of employment. Accordingly, the case against both the employer and Fund was dismissed (Christensen). The commissioner affirms the dismissal without additional comment.  5 months from arbitration to appeal decision.

Trujillo v. John Deere Davenport Works, No. 1970625.01 (App. Aug. 4, 2021) - In the arbitration decision, the deputy accepted the rating of defendants' expert for a shoulder rating (5%) over that of claimant's expert.  A neck injury was found not to be work related (Phillips).  On appeal, the commissioner affirms the decision of the deputy.  On appeal, claimant argued that her medical mileage was incorrectly decided and alleged that the deputy had violated due process by using Google maps to determine mileage.  The commissioner rejects this assertion, finding that claimant's address and the address of the provider were matters of record.  Claimant argued that she took a different route because of construction, but apparently had not provided this explanation previously.  The commissioner notes that claimant had the burden of proof on this issue and had failed to meet that burden.  4 months from arbitration to appeal decision.  

Barry v. John Deere Dubuque Works, No. 5055977.01 (App.  Aug. 3, 2021) - In this review-reopening action, claimant was found not to have established he was entitled to additional benefits, based on an alleged change in claimant's physical condition (Phillips).  The commissioner affirms without additional comment. 3 months from arbitration to appeal decision.  

July 2021

Maher v. Solar Transport, LLC, No. 5068608 (App. July 27, 2021) - The deputy concluded that claimant's back and leg symptoms were not related to his work and also concluded that a neck injury did not lead to permanent disability (Pals). On appeal, the commissioner affirms the decision of the deputy without further analysis. 9 months from arbitration to appeal decision.  

Manuel v. Gannett Publishing Services, No. 5067758 (App. July 22,  2021) - Claimant was found to have injuries to both shoulders in this post 7/1/17 claim.  He was awarded a 23% impairment to the right shoulder and a 17% impairment to the left shoulder, based on the IME of Dr. Stoken (Walsh).  On appeal, the commissioner affirms the finding that claimant suffered injuries to both shoulders, with the left shoulder injury begin a sequela of the right.  The commissioner, however, reduces the awards for both shoulders.  The commissioner notes that on the left shoulder, claimant did not have surgery and reported that his symptoms had substantially resolved.  On the right shoulder, after surgery, claimant was found by his surgeon to have only some mild weakness and had no restrictions.  The commissioner finds that because claimant reported full resolution of symptoms on the left and had no restrictions, he had no permanent impairment on that side.  The right shoulder award was reduced to 6%, consistent with the impairment rating provided by Dr. Sullivan.  A total of 24 weeks of benefits were awarded.  Note that there did not appear to be an argument that claimant's injuries were BAW injuries.  5 months from arbitration to appeal decision.  

Thompson v. Mail Contractors of America, No. 5039421 (App. July 15, 2021) - In this review-reopening action, the deputy (Walsh) concluded that claimant had established that he was entitled to an increase in benefits and raised the initial 80% industrial award to a permanent total disability.  On appeal, the commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Streit v. Streit Construction, No. 5043612 (Remand July 8, 2021) - In this action, the Court of Appeals remanded for further determination as to whether claimant had suffered cuts and scrapes at work and whether claimant carried his burden of proving that his MRSA infection was a sequela to those cuts and scrapes.  On remand, the commissioner finds that claimant had suffered cuts and scrapes as a result of his work, based on his unrebutted testimony.  The commissioner also found that the MRSA infection was a sequela of those cuts and scrapes.  The commissioner noted that an employer is liable for all consequences that naturally and proximately flow from the accident and finds that claimant's physician had concluded that claimant likely contracted MRSA through cuts and abrasions on his skin.  He rejected Dr. Kuhnlein's finding that the MRSA infection was not work-related.  The commissioner notes that it did not matter whether claimant contacted MRSA at work or at some other place so long as it was a sequela to the cuts and scrapes suffered at work. Based on claimant's restrictions (lifting 40 pounds occasionally), his impairment rating, age and education, a 50% loss of earning capacity was found.  8 months from remand to appeal decision.

Carter v. Bridgestone Americas, No. 1649560.01 (App. July 8, 2021) - At the arbitration hearing, claimant was found to have failed to provide timely notice and was also found to not have filed his petition in a timely manner.  Claimant's petition was dismissed (Phillips).  On appeal, the commissioner finds that claimant's petition was filed in a timely manner.  Claimant had alleged a tinnitus claim and the parties had agreed that the date of the injury was August 1, 2017.  Claimant filed his petition on August 1, 2019.  Although defendants had argued that the injury date was earlier, because of the stipulation of the parties, the commissioner finds that this argument was precluded.  Accordingly, claimant's petition was found to be timely.

On the notice issue, however, the commissioner concludes that claimant had not notified the employer at the time of his employment in August of 2017 and had not provided notice until June of 2018.  Claimant argued that he did not discover the nature, seriousness and probable compensable character of the injury until June of 2018 and accordingly provided timely notice.  Defendants argued that the 2017 amendments to 85.23 and 85.26 had abrogated the application of the discovery rule. The commissioner notes that the legislature's amendments to 85.23 and 85.26 "closely align with the court's longstanding definition and application of the manifestation test."  The commissioner concludes that the legislature's amendments "essentially codified the cumulative injury rule/manifestation test."  The commissioner finds that the legislative changes made no mention of the discovery rule, either by name or its language.  Furthermore, there was no legislative intent to abrogate the discovery rule.  The commissioner finds that the legislature was presumed to be aware that the cumulative injury rule was not to be applied in lieu of the discovery rule.  Although one could "speculate" that the legislature wished to abrogate the discovery rule, the commissioner felt constrained to "follow what the legislature actually drafted, . . . not what it might have wanted to draft."

Claimant argued that he did not discover the probable compensability of the claim before June of 2018.  The commissioner then finds that since claimant testified that he was aware that the ringing in his ears in 2009 and believed it was solely caused by his work in 2009.  Because of this, the commissioner concludes that claimant was aware of the nature and probably compensable character of his injury long before June of 2018. Claimant also testified that his tinnitus had not worsened after he left work.  The commissioner therefore finds that claimant failed to timely notify the employer of his injury. 4 months from arbitration to appeal decision.  

June 2021

Schwers v. Nordstrom, Inc., No. 5064794 (App. June 30, 2021) - Claimant was found to be permanently and totally disabled as a result of a back injury. Costs for his fusion surgery and spinal cord stimulator were ordered.  A bilateral plantar fasciitis claim was denied (Pals). On appeal, the commissioner affirms without additional opinion.  3 months from arbitration to appeal decision.  

Gelles v. Biosolids Management Group, No. 5056091 (App. June 23, 2021) - Claimant's review-reopening action was dismissed by the deputy, who found that claimant failed to demonstrate a change in his physical condition (Gerrish-Lampe). On appeal, the commissioner affirms without additional comment. 5 months from arbitration to appeal decision.  

Vogt v. XPO Logistics Freight, No. 5064694.01 (App. June 11, 2021) - The fighting issue in this case was whether claimant's neck, post-concussive and nasal fracture were to be treated industrially or functionally following her return to work.  Although it was uncontroverted that the claimant was receiving 25% less in weekly pay at the time of hearing than at the time of injury, defendants argued that because claimant was receiving the same hourly wage, the case was to be considered functionally under 85.34(2)(v).  The deputy (Phillips) disagreed and found that claimant had sustained a 65% industrial disability.  The commissioner affirms.

In affirming the industrial award, the commissioner notes that the reduction in hours and earnings was due to her work-related conditions and injuries.  Citing McCoy v. Menard, Inc., No. 1651840.01 (App. April 9, 2021), the commissioner noted that defendants position would lead to illogical and absurd results, noting that under defendants' position, a claimant's hours could be reduced to 1 hour a week and be compensated functionally so long as the hourly wage was the same.  The commissioner notes that the statute says nothing about hourly wages, only whether claimant received the same or greater, salary, wages or earnings.  The commissioner notes that there is no discussion in the legislation as to how the snapshot of claimant's salary, wages or earnings was to be determined, but concludes that although the courts are the ultimate arbiters of the meaning of statutes, the agency of necessity had to make the initial decision on this issue. The commissioner finds that comparing the salary, wages or earnings at the time of hearing was the most logical means of making this comparison.  He rejects the argument that the time of measurement should be the time of claimant's initial return to work.  The commissioner finds that this is the same determination as in the case of determining the extent of industrial disability, which is also made at the time of hearing.  The commissioner also affirms the 65% award.  4 months from arbitration to appeal decision.  

Blasdell v. Linnhaven, Inc., No. 5044236 (App. June 8, 2021) - This case involves a claimant who died after receiving a PTD award and whether Mr. Blasdell was a dependent of the injured worker.  The case was initially heard by Fitch and a decision denying benefits was issued by Copley.  In this appeal decision, written by Christenson, the arbitration decision is affirmed and benefits are denied.   The parties had agreed that claimant was married at the time of the initial decision, but it appears as though the parties had actually separated before the injury, but had not been divorced.  

In this action, claimant had asked for a demeanor hearing after Fitch was replaced by Copley.  According to Christenson, claimant did not argue that the demeanor hearing was not an adequate remedy.  Christenson concludes that claimant waived the argument concerning demeanor because of this.

On appeal, Blasdell argues that under res judicata and judicial estoppel, defendants could not allege that he was not a dependent since they had agreed that claimant was married with three dependents.  Christenson concludes that judicial estoppel was not involved since dependency was not an issue in the initial proceeding (of course this was because the parties had agreed to these issues).  The deputy also concludes that res judicata did not apply since this was not an issue raised and litigated in the initial proceeding.  Christenson goes on to find that as claimant and Blasdell were separated and Blasdell was not actually dependent on claimant, he was not entitled to benefits.  10 months from arbitration to appeal decision.

Guiter v. Grape Tree Medical Staffing, LLC, No. 5067812.01 (App June 7, 2021) - Claimant's petition was dismissed as she failed to sustain permanent disability to the right knee or left hip (Christenson). The commissioner affirms with no additional comment.  4 months from arbitration to appeal decision. 

 Lewis v. Hy-Vee, No. 19700629.01 (App. June 3, 2021) - Claimant was awarded a 15% industrial disability as a result of neck and left shoulder injuries suffered at work (Copley).  Defendants argue, among other things, that disability should be limited to functional disability under 85.34(2)(v), as claimant was receiving the same weekly wage following his return to work. The commissioner affirms, finding specifically the 85.34(2)(v) does not apply, based on the deputy's finding that claimant was working 10 less hours a week, which led to a loss of weekly earnings.  2 months from arbitration to appeal decision. 

May 2021

Melby v. Conagra Foods, Inc., No. 5064273.01 (App. May 28, 2021) - Claimant suffered injuries to her left and right upper extremities and was provided with an 11% whole body scheduled member award (Copley). Defendants challenge the award and the commissioner affirms without additional comment. 3 months from arbitration to appeal decision.  

Patrie v. Martinson Construction Co., No. 5068408 (App. May 26, 2021) - Claimant was found to be permanently and totally disabled following hearing (Gerrish-Lampe).  On appeal, defendants argue that the deputy erred in not limiting claimant's disability due to his age and proximity to retirement age.  The commissioner affirms the PTD award crediting Delbridge over Chen and Bollier.  More importantly, the commissioner notes that the changes to 85.34(2)(v), which requires that claimant's work expectancy be taken into account in determining industrial disability, did not apply to PTD determinations under 85.34(3).  The commissioner specifically finds that the "new consideration of the number of years into the future a claimant reasonably anticipated working is not applicable when a claimant is permanently and totally disabled."  The commissioner notes that the language in (2)(v) was not included in section (3) and declines the invitation to place language in 85.34(3) that the legislature did not include.  

The commissioner goes on to note that even if that provision did apply, it did not change the finding that claimant was permanently and totally disabled.  The commissioner notes that the consideration of the number of years claimant might be working was to be taken into account under (2)(v), but did not specify how that determination was to be taken into account.  The commissioner notes there are no specific weighting guidelines for each of the industrial disability factors and the statute did not place such guidelines in the text of the law.  The fact that claimant was nearing the end of his working life did not change the determination that claimant was PTD.  4 months from arbitration to appeal decision.  

Lofthus v. Koch Brothers, Inc., Nos. 5064144, 5064145 (App. May 25, 2021) - The deputy concluded that claimant failed to provide timely notice of his claim and found the claim was barred (Humphrey).  On appeal, the commissioner reverses, finding that defendants had actual notice.  The commissioner awards claimant a 10% industrial disability.  The commissioner notes the actual notice requirement is met when the employer, as a reasonably conscientious manager, is alerted to the possibility of a potential compensation claim. In this case, claimant testified he provided verbal notice of the claim in December of 2016 or January of 2017 (the injury was on October 25, 2016). This testimony was uncontroverted, as defendant did not present evidence from the employer who received the notice.  The fact that claimant completed the FROI with claimant was highly indicative that the verbal report made him aware of the injury and that it might be work-related.  

On the industrial disability determination,  claimant was found to be limited to lifting 25 pounds, but this really did not affect his IT job.  The commissioner concluded that ID was minimal and assessed the loss at 10%.

The one negative portion of the decision was a reversal of the award of payment for the IME. The commissioner finds that because Bansal's exam was earlier than Mooney's exam (although Bansal's IME was issued later), payment under 85.39 was not appropriate because that section requires a "subsequent examination" to trigger the provisions of the statute.  The commissioner does, however, provide the costs of the report ($2891) as a cost to be paid by defendants.  6 months from arbitration to appeal decision. 

Liford v. Christensen Farms and SIF, Nos. 1580224.01, 20006580.01 (App. May 18, 2021) - Claimant alleged that she had suffered a new injury to her left knee and argued that an earlier right knee injury was a first injury for SIF purposes.  The deputy concluded that the left knee injury was a sequela of the earlier injury and not a new, separate and distinct injury.  Fund benefits were denied, but claimant was provided a 3% whole person impairment for the left and right knee injuries under then 85.34(2)(s) (Pals). Claimant appeals.  The commissioner affirms, finding that claimant's injury to the left knee was a consequence of the first injury.  Under Gumm v. Easter Seal Society of Iowa, 943 NW2d 23 (Iowa 2020), the commissioner concludes the claimant had failed to establish a separate injury claim and a claim against the Fund.  The commissioner noted that Dr. Kuhnlein had concluded that the left knee injury was a consequence of the right knee injury and adopted that opinion.  5 months from arbitration to appeal decision.  

Hagen v. Serta-Simmons National Bedding, No. 5061271.01 (App. May 17, 2021) - Claimant alleged permanent total disability but was awarded 60% at hearing.  In the arbitration decision, the deputy excluded claimant's IME and vocational reports, finding that they had been untimely filed.  Reimbursement for the IME was denied because claimant failed to timely exchange and file the invoice.  Penalties of $5400 was awarded for late payment of weekly benefits (Phillips). 

With respect to the IME and vocational report, both were served on defendants less than 30 days before hearing.  Defendants, however, had been notified of the intent to obtain an IME 10 months prior to hearing and the VE was added to the expert list approximately 2 months prior to hearing.  The commissioner noted that although there was some element of surprise, there was not a complete surprise as defendants had alleged.  Notwithstanding the fact that surprise was not complete, the commissioner concluded that the deputy was correct in excluding the reports.  The commissioner noted that Schoenfeld  applied only to a treating physician, which was not the situation in this case.  Payment for the vocational report was also denied.  With respect to the IME report, however, since the prerequisites of 85.39 had been met, payment of the IME was awarded.  

The 60% award was also affirmed.  The commissioner noted that no physician had found that claimant was incapable of working.  Claimant had also returned to work for a different employer in January of 2020.  Defendants vocational assessment had also identified jobs that claimant could perform.  The commissioner increased the penalty to $8500, finding that there was no medical evidence supporting the denial of benefits for claimant's Achilles' injury.  6 months from arbitration to appeal decision.  

Mosley v. Pretage Foods of Iowa LLC, No. 19006047.01 (App. May 13, 2021) - The deputy found that claimant had proven that his shoulder injury had arisen out of employment, but that there was no permanency.  A neck claim was denied (Grell).  Claimant appeals and the commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Hubbard-McKinney v. Newton Community School District, No. 5066276 (App. May 12, 2021) - Claimant was found to have a 9% lower extremity impairment and was awarded 19.8 weeks of PPD (Walsh). The commissioner affirms the arbitration decision.  The commissioner noted that the deputy had found that Dr. Kuhnlein's opinion was most persuasive  On appeal, defendants rely on the opinion of Dr.  Vincent, which had noted that claimant had numerous earlier X-rays of the left knee (although the doctor did not have the medical records nor clinical notes for this testing).  The commissioner finds that without having these records available (they were not produced at hearing) the decision of the deputy would be affirmed.  3  months from arbitration to appeal decision.  

Naber v. T&D Horizons, dba Country Junction Restaurant, No. 5060433 (App. May 10, 2021) - Claimant was found to have sustained an injury to the right knee and payment for right knee replacement surgery was awarded.  Claimant was awarded a 16% impairment as a result of the right knee injury.  In an amended and substituted decision, the deputy considered an updated impairment rating by Dr. Sassman of 37% and the impairment awarded was modified to 37% (Pals).  The commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

Knaeble v. John Deere Dubuque Works and SIF, Nos. 5066463, 5066464 (App. May 10, 2021) - Claimant was found to have suffered a second injury and was awarded 30 weeks of benefits against the employer.  Claimant was also found to have a first injury and was awarded an 85% industrial loss against the Fund, minus credits.  In the second file, claimant was found to have a left shoulder injury and was awarded a 92% industrial disability minus credits for benefits that had been paid for an earlier industrial injury with the employer (JGL). On appeal, the employer challenges the industrial award in the second case, as well as the credits awarded.  

The Fund award was affirmed, as the commissioner finds that the Fund did not properly appeal.  With respect to the left shoulder injury, the commissioner finds that the deputy's 85% award against the Fund and 92% award against the employer resulted in a double recovery.  In the arbitration decision, the deputy had concluded that a combination of all of claimant's injuries (bilateral CTS, left lower extremity, CRPS, right lower extremity and shoulder) resulted in a 92% ID.  This was apparently accomplished by adding together the percentage impairments for all injuries.  In discussing how to apply 85.34(7)(b), the commissioner notes that the wrinkle in this case is what should occur when a claim against the Fund for two work-related qualifying injuries is sandwiched between successive disabilities under 85.34(2)(u).  Here, the commissioner acknowledges that the award against the Fund can't be changed (i.e. the employer doesn't get credit from the Fund), but seemingly finds that under 85.34(7)(a), benefits provided must not provide a double recovery.  The commissioner finds that Deere is responsible only for a 5% loss of earning capacity for the shoulder injury.  The commissioner finds that the combined disability for which Deere is liable is 35%, 30% of which had been paid as a result of the first injury.  The commissioner notes that the 30% figure was the amount of the first industrial disability award (for CRPS) and that this is the correct amount of credit for the employer.  

Note that much of the discussion of double recovery appears to be surplusage, as the finding that claimant had a combined 35% industrial disability as a result of the first industrial injury and the later shoulder injury, along with the 30% credit would seem to address the problem.  5 months from arbitration to appeal decision.  

Coale v. Barr-Nunn Transportation, No. 5064468 (App. May 5,  2021) - Claimant suffered an injury to his left foot and was awarded healing period benefits and a 15% (22.5 week) functional award of benefits.  Certain medical expenses were awarded, but two items of past medical expenses were denied.  Healing period benefits were also awarded.  Payment for claimant's IME was denied.  On appeal, the commissioner affirms without additional comment.  6 months from arbitration to appeal decision.  

Retterath v. John Deere Waterloo Works, No. 5067003 (App. May 3,  2021) - Claimant had a July 12, 2017 injury to the right "shoulder."  Claimant was awarded an 8% functional rating based on 85.34(2)(n) and was awarded 32 weeks of benefits.  A penalty of $3299 was also awarded (Walsh).  Claimant appeals, arguing that the case should have been considered industrially.  The commissioner affirms the decision without additional comment (no reference to Deng, Chavez or any other cases referencing the shoulder/BAW controversy, although these cases were mentioned in the arbitration decision).  4 months from arbitration to appeal decision.

April 2021

Foster v. East Penn Mfg. Co.,  No. 1592106.01 (App. April 29, 2021) - In this matter, claimant was awarded a 65% industrial disability, as well as temporary benefits and $6500 in penalty for an unreasonable delay in the payment of benefits (Copley). Three days after the arbitration decision, the claimant died.  Thus, although the commissioner affirms the arbitration decision without any additional comment, benefits ended on November 27, 2020, the date of claimant's death.  5 months from arbitration to appeal decision.  

Pruis v. Medplast, No. 5058256 (App. April 28, 2021) - Claimant was awarded permanent total disability benefits as a result of injuries to his cervical spine, head and vision.  Penalty benefits were denied and claimant was awarded all necessary ongoing care, including chiropractic care (Pals).  On appeal, the commissioner affirms without additional comment.  5 months from arbitration to appeal decision. 

Feckers v. John Deere Waterloo Works and SIF, No. 19700153.01 (App. April 15, 2021) - In this action, claimant presented with a bilateral arm injury.  The deputy found that claimant's bilateral arm injury was equivalent to a 31% body as a whole injury.  TPD benefits were denied. Permanent total benefits were awarded against the Fund (Gerrish-Lampe).  On appeal, the Fund argued that there was no first qualifying injury.  The Fund also argued that PTD should have been awarded against the employer under 85.34(2)(t).  The commissioner accepted the Fund's argument and concluded that the deputy had erred in failing to consider PTD benefits against the employer under 85.34(2)(t).  The commissioner finds that the deputy's failure to consider this argument was error and finds that claimant was unable to perform any work due to his bilateral arm injury.  PTD was therefore ordered against the employer.  Claimant's argument that he suffered weight gain and deconditioning as a result of his arm injury was rejected. On the issue of TPD benefits, the claimant affirms the decision of the deputy, finding this issue was moot given the PTD award.  Costs were awarded against the employer, with the exception of those costs of the IME related to the Fund.  4 months from arbitration to appeal decision.  

Kemper v. International Equipment Solutions, No. 1661309.01 (App. April 14, 2021) - Claimant was found to have a 55% industrial disability following hearing (Grell).  Defendants appeal and the commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

Malget v. John Deere Waterloo Works, No. 5048441.01 (App. April 13, 2021) - In this claim, the deputy (Grell) found that claimant was entitled to permanent total disability in his review reopening action.  On appeal, the commissioner affirms without additional comment. 5 months from arbitration to appeal decision.  

McCoy v. Menard, No. 1651840.01 (App. April 9,  2021) - The deputy in this case (Gerrish-Lampe) concluded that claimant's case was functional under 85.34(2)(v) because claimant was receiving the same wage following the accident.  The deputy concluded that "the spirit of the statutory provision seems to provide that if any one of the itemized factors are met, the injured workers' disability should be measured by the functional impairment."  On appeal, the commissioner affirms, but finds that this is because claimant was receiving both the same wages and hours as prior to the injury.  The commissioner finds that the deputy's approach, which would allow for functional consideration even if one hour of work was at the pre-injury wage, was "absurd and illogical" and rejected that interpretation.  He concludes that a "claimant's hourly wage, considered in isolation, is not sufficient to limit a claimant's compensation to functional disability."  The commissioner finds that a claimant's hourly wage must also be considered in tandem with the actual hours worked by that claimant when considering pre- and post-injury wages.  In this case, since claimant was offered the same hourly wage and same number of hours, the case would be considered functionally.  5 months from arbitration to appeal decision.

March 2021

Oppelt v. Klockner USA Holding, Inc., No. 5058047 (App. March 31, 2021) - Claimant was denied odd lot at his arbitration hearing and was awarded a 35% industrial disability (Phillips).  Claimant appeals and the decision is affirmed by the commissioner without additional comment.  4 months from arbitration to appeal decision.  

Stewart v. KPI Concepts, LLC, No. 19700279.01 (App. March 31, 2021) - Claimant was found not to have sustained a permanent disability.  Medical care was denied (Phillips).  On appeal, the commissioner affirms without additional comment. 5 months from arbitration to appeal decision.  

Wood v. Winnebago Industries, No. 5066830 (App. March 24, 2021) -  Claimant was found eligible for several periods of TTD benefits and was also found entitled to a running award of benefits.  A $10,000 penalty was assessed for failure to investigate claimant's allegations (Palmer). The commissioner notes that defendants' appeal brief is not particularly instructive as to the issues in dispute, but nonetheless the commissioner addresses all adverse findings from the arbitration decision.  The commissioner finds, without additional comment that claimant was entitled to temporary benefits and that claimant's termination from the employer was involuntary.  The running award, beginning on April 27, 2019, was affirmed.  The commissioner notes that the penalty assessment was correct and states that the record was "devoid of any evidence that defendant conducted an investigation into claimant's claim."  Defendants denied the claim based on the fact that no authorized physician had taken claimant off work.  The commissioner finds there was no evidence claimant had been placed at MMI and the treating physician had effectively removed claimant from the workforce by restricting his ability to drive vehicles requiring a CDL, which had been claimant's previous job. 10 months from arbitration to appeal decision.  

Anderson v. Cumulus Media, Inc., No. 19700094.01 (App. March 18, 2021) - Claimant was found not to have met his burden of proof and his case was dismissed (Copley). On appeal, the commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

Baker v. MSC Industrial Direct Co., No. 5063687 (App. March 17, 2021) - Claimant's action was initially dismissed by the deputy, who concluded claimant had not sustained a permanent injury (Phillips). On appeal, the commissioner reverses and finds that claimant was entitled to a running award of healing period benefits.  The commissioner notes that the arbitration decision provided very little analysis regarding whether claimant proved he sustained permanent disability, nor whether claimant's current cognitive and/or mental health issues were related to the work injury.  Claimant alleged a concussion/TBI and defendants argued that the injury was psychogenic.  Claimant relied on medical opinions from Manshadi, Gallagher, Hines and DeAnn Fitzgerald.  Defendants relied on Chen, Cullen, Jones, Kardon and Kitchell.  Cullen, Kardon and Kitchell never physically examined claimant.  Chen and Jones conducted one time evaluations.  The commissioner found that the opinions of three well-qualified authorized treating physicians outweighed the defendants' evidence, specifically Fitzgerald, Manshadi and Gallagher.  The commissioner noted that the opinions of defendants' witnesses that the report of a head injury were not contemporaneous because not reported at the initial ER visist was "unreasonably restrictive and would not provide a reliable or representative understanding of claimant's condition following the work injury."  The commissioner found that defendants' position defied logic.  

The commissioner also finds that claimant was entitled to 24/7 supervisory care.  Despite the fact that Dr. Manshadi had concluded claimant was at maximum medical improvement, the commissioner concluded that this status had not been reached.  This was based on Dr. Gallagher's observations that claimant had improved.  The commissioner found that claimant had not reached MMI with respect to his anxiety and depression and provided a running healing period award. 8 months from arbitration to appeal decision.  

Crawford v. All City Management and SIF, No. 5068237 (App. March 16,  2021) - Claimant's action against the employer and SIF was dismissed as the deputy found that claimant failed to demonstrate a permanent injury (Grell).  On appeal, the commissioner affirms. The commissioner notes that claimant was found to have a 0% impairment rating (by Smidt) and notes that under 85.34(2)(x), the agency cannot utilize agency expertise to find disability when there was no permanent functional loss under the Guides.  7 months from arbitration to appeal decision.  

Thurm v. Holy Family Catholic Schools, No. 5066807 (App. March 16, 2021) - Claimant was awarded a 25% industrial disability for aggravation of his back injury (Walsh).  On appeal, the commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Hayes v. Georgia Pacific Corp., No. 5067990 (App. March 10, 2021) - Claimant was found to have a 10% industrial disability.  On appeal, claimant contests the degree of industrial disability as well as the rate calculation (Phillips). On appeal, the commissioner increases the degree of industrial disability to 25%.  The commissioner finds that Dr. Taylor's restrictions, including the inability to operate equipment over rough surfaces, was the most credible and precluded claimant performing his pre-injury job with defendant.  This resulted in a loss of income from $17.25 per hour to $13.00 per hour, plus loss of overtime work. The commissioner affirms the rate determination.  Claimant had received a wage increase during the 13 week period preceding the injury, but the commissioner bases the rate on the 13 weeks, not the wage at the time of the injury.  5 months from arbitration to appeal decision.  

Havill v. Quaker Oats Co., No. 5068734 (App. March 10,  2021) - Claimant's tinnitus claim was dismissed by the deputy because it was not filed in a timely manner under 85.26 (Phillips).  The commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

Brandt v. CRST Van Expedited, Inc., No. 5051580 (App. March 5,  2021) - In this case, claimant was found eligible for treatment for her neck, back and shoulder, as well as for eye exams, PTSD treatment and a gym membership.  Claimant's expenses were denied (Pals). On appeal, the commissioner's designee (Copley) affirms without additional comment, other than to note that defendants had failed to offer reasonable care.  5 months from arbitration to appeal decision.  

Triplett v. City of Des Moines, No. 5056663 (App. March 4, 2021) - In this review-reopening case, claimant was originally found to have sustained a 50% impairment to the right lower extremity.  On review-reopening, claimant alleged that there had been a physical change in condition resulting in additional disability.  The deputy (Grell) disagreed and no additional benefits were awarded.  The commissioner affirms without additional comment.  3 months from arbitration to appeal decision.  

Gomez v. Lawson Enterprises, No. 5065813 (App. March 3, 2021) - At arbitration, claimant's hip condition was found to have been aggravated by his work injury.  Claimant was not at MMI and was awarded two short periods of temporary benefits (Pals).  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Miles v. City of Des Moines, Nos.  5048896, 5048899 (App. March 1, 2021) - On review-reopening, claimant was found to be entitled to an additional 40 weeks of benefits in one claim and to PTD in the other (Grell).  Defendant appeals.  Without additional analysis, the commissioner affirms.  5 months from arbitration to appeal decision.

February 2021

Bowman v. Hy-Vee,  Inc., No. 5066083.01 (App. Feb. 25, 2021) - Claimant was found to have established a 12% right upper extremity impairment, but the deputy concluded claimant's impairment did not extend to the body as a whole (Grell).  Certain temporary benefits were denied, as were penalty benefits.  The commissioner affirms on appeal without additional analysis. 4 months from arbitration to appeal decision.

Banjanin v. Bishop Drumm Retirement Center, Nos. 5067885, 5067886, 5068828 (App. Feb. 25, 2021) - Claimant was found to have failed to meet his burden of demonstrating a work-related injury (Walsh).  On appeal, the commissioner's designee (Copley) affirms, expressly noting that the hearing deputy had found claimant not credible. 5 months from arbitration to appeal decision.

Garrido v. AMVC Employee Services, Nos. 5066290, 5066291 (App. Feb. 19, 2021) - Two injury dates were presented to the deputy at the arbitration decision, against two different insurance companies.  For the first injury date the deputy  (Christenson) found claimant had failed to prove a shoulder injury against the employer and Berkshire Hathaway, the insurer.  On the second injury date, an 8% disability of the right hand was found against the employer and Accident Fund.  On appeal, the commissioner affirms and awards the costs of the IME against Accident Fund, as had the deputy.  7 months from arbitration to appeal decision.

Shaw v. American Income Life Insurance Co., No. 5061293 (App. Feb. 17, 2021) - Claimant was found to be an employee of the employer and was awarded a 20% industrial disability following an automobile accident.  Defendants appeal and the commissioner reverses, finding that claimant was not an employee.  At the time of the injury, claimant was a trainee and was required to coordinate her work hours to match those of her mentor.  Claimant could not progress without claimant attending these appointments and this control was found to be critical by the deputy in establishing the company's control over claimant.  The commissioner found that since claimant could pick and choose which meetings she wanted to attend, the employer did not have control over her employment. All that claimant was required to do was to learn the product line sufficiently so that she could sell the insurance company's products.  Claimant was said to have been provided a framework for training, but could manipulate that framework into a personal plan and therefore claimant had significant control over her training.  The commissioner also found that there was no fixed compensation agreement in place during claimant's training.  Because claimant had significant control over her training, she was found not to be an employee, but was rather an independent contractor.  Based on this finding, the arbitration decision was reversed and claimant was found not entitled to benefits.7 months from arbitration to appeal decision.

Tovar v. John Deere Des Moines Works, No. 5067547 (App. Feb. 12, 2021)  - The arbitration decision found that claimant failed to demonstrate an injury to the upper extremities arising out of employment (Christensen). The commissioner affirms without additional discussion.  4 months from arbitration to appeal decision.  

Johnson v. Mertz Engineering, No. 1652873.01 (App. Feb. 11, 2020) - Claimant was found to have injuries from carpal tunnel syndrome and tendinitis.  The deputy found that Dr. Sassman’s opinions concerning CTS and tendinitis on causation and ratings were to be preferred over those of Dr. Han (Grell). On appeal, the commissioner’s designee (Copley) adopted the 5% rating concerning CTS, but reversed the decision on causation of claimant’s tendinitis.  The deputy found that neither Dr. Han nor Dr. Rodgers had recognized tendinitis and noted that Dr. Sassman had not seen claimant until 20 months after the injury.  6 months from arbitration to appeal decision.

Sullivan v. West Central Cooperative, No. 5050594 (App. Feb. 8, 2021) - In this case, claimant was found to have failed to have met his burden of demonstrating a left knee injury and surgery as well as failing to prove his entitlement to a spinal cord stimulator for his back condition (Phillips). On appeal, the commissioner’s designee (Copley) reverses on both counts.  With respect to the knee injury, the deputy acknowledged that claimant had suffered a knee injury in 1999, but noted that he was asymptomatic until 2011, the date of the work injury.  The deputy found it was “difficult to reconcile” medical opinions relating the injury to events in 1999 in light of the fact that claimant was symptom free from 1999 to 2011, crediting the opinions of Dr.Kuhnlein.  Treatment in the form of a knee scope was awarded.  The deputy found that the recommendation of a spinal cord stimulator by a treater, Dr. Ledet, for claimant’s back injury prevailed over the finding of Dr. Chen that the SCS was not causally related or  necessary.  The deputy noted that even if the causes of claimant’s back pain were multi factorial, since the pain did not arise until after the work injury, the injury arose out of work.  The deputy also found that the SCS was reasonable, based primarily on the findings of Dr. Ledet.  The deputy ordered defendants to promptly authorize and pay for the left knee surgery and SCS.  8 months from arbitration to appeal decision.

Tilton v. H.J. Heinz Co., No. 5053002 (Remand Feb. 4, 2021) - Claimant's action was dismissed by the agency for failure to provide timely notice.  On judicial review, the Court of Appeals remanded the case to the agency for further proceedings regarding a proper date for manifestation of claimant's injury (the decision of the COA indicated that the agency's determination of a September 2010 manifestation date was not supported by substantial evidence).  On delegation from the commissioner, Deputy Christenson finds that claimant's manifestation date was February 4, 2010, when claimant was taken off work for her back pain.  He concludes claimant should have known of the seriousness of her disability on that date.  Because claimant did not notify the employer until May 3, 2013, claimant's action was once again found to be barred under 85.23.  

Kuehl v. Foley Company, No. 5061645 (App. Feb. 3, 2021) - Claimant was found to have a 70% industrial disability for a July 24, 2017 injury (Lunn).  Claimant appeals, asserting permanent total disability.  On appeal, the commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

January 2021

Martin v. Earling Feed and Grain, No. 5064897 (App. Jan. 28, 2021) - In this case, claimant was found to be permanently and totally disabled.  Payment for Dr.Kuhnlein’s IME was denied (Christenson). On appeal, the commissioner affirms the PTD finding and denial of IME payment.  All doctors found that claimant could not work with the exception of Dr. Gutnik and the commissioner found his opinion unconvincing. The onset date for permanency was changed from March 25, 2019 to July 21, 2019, which was the date claimant reached MMI for his psychiatric injuries.  7 months from arbitration to appeal decision.

Sandlin v. Mid American Construction, LLC, No. 5806495 (App. Jan. 27, 2021) - Claimant was found to have an injury to left leg and was awarded a 2% award to the left leg as well as costs of the IME (Walsh). Defendants filed a rehearing request, arguing that the parties stipulated to an injury to the left foot, not the left leg.  The deputy amended the decision to reflect a 2% disability to the left foot.  On appeal, the commissioner affirms the 2% injury to the left foot.  On the IME issue, defendants argue that they did not retain Dr. Kennedy, who opined there was no impairment.  In distinguishing the case from IBP v. Harker, 633 N.W.2d 322 (Iowa 2001), the commissioner noted that the case manager for defendants inquired as to whether Dr. Kennedy would provide a rating and the MCM procured an appointment with Dr. Kennedy for that purpose.  Because defendants set up this rating, the case was distinguishable from Harker because defendants had retained Dr. Kennedy, which was the critical missing fact in Harker.  The commissioner also finds the entirety of Dr. Taylor's bill was payable. 6 months from arbitration to appeal decision.  

Scott v. Quality Mfg. Corp., No. 5064245 (App. Jan. 26, 2021) - In this claim, the deputy concluded claimant had suffered a shoulder injury on June 29, 2017.  A 20% industrial disability was awarded (Walsh). Defendants appeal and claimant cross-appeals, urging that certain temporary benefits should have been paid.  The commissioner affirms without additional comment.  7 months from arbitration to appeal decision.  

Cameron v.  Pacifica Health Services, No. 5063931 (App. Jan. 21, 2021) - The deputy (Gerrish-Lampe, following the retirement of McGovern) issued a decision finding that claimant should take nothing, finding that claimant's 10/22/17 injury was not the cause of her symptoms that led to surgery.  On appeal, the commissioner's designee (Copley) reverses the arbitration decision and finds that claimant was entitled to a running healing period.  The deputy finds that although claimant's injury may have worsened following the injury date, there were no new aggravation of symptoms, simply a continuation of the symptoms that had existed on 10/22/17.  Dr. Schmitz's opinion was found to be problematic inasmuch as it was the only decision finding that claimant had not sustained an injury on 10/22/17 and this finding was contrary to his original finding that claimant had sustained an injury.  Drs.  Kuhnlein, Boulden and Wetjen were found to be more persuasive.  

The deputy denied certain medical care under a beneficial care standard, as claimant did not testify that this treatment provided a more favorable outcome than the treatment provided by defendants (who had initially accepted compensability and provided care).  The deputy did, however, find that ER care was payable under 85.27(4), providing for care in the case of sudden emergency.  Ongoing care was ordered with Dr. Wetjen, with whom defendants had originally authorized surgery.  

The deputy then turned to the question of whether defendants had offered work to claimant under 85.33(3).  Although claimant was offered work in writing, the consequences of refusing an offer of suitable work was not communicated to claimant.  Accordingly, the offer of temporary work was not compliant with the statute and the offer of temporary work was not a valid offer.  The deputy also concluded that claimant's subsequent firing was not preclusive of temporary benefits.  Claimant was terminated after two verbal disagreements  with her supervisor, but this did not amount to serious conduct that would cause any employer to terminate the employee.  Accordingly, a running healing period was appropriate.  

Carfi v. Brand Energy Services, No. 5065315 (App. Jan. 21,  2021) -  In this case, the arbitration claim was heard by deputy Fitch on May 15, 2018.  Due to Deputy Fitch's reassignment, the case was provided to Deputy Copley, who issued a decision on July 19, 2019.  Claimant did not object to the delegation.  Claimant filed an appeal brief in which he argued for the first time that the delegation was improper as claimant's demeanor was a substantial issue in the case.  "In an effort to maintain the integrity of the contested case proceeding, the agency granted claimant an opportunity to have a second 'demeanor' hearing."  This was held on August 5, 2020.  According to this decision, claimant did not object to the demeanor hearing.  After the hearing, claimant argued that the demeanor hearing was an inadequate remedy. Claimant argues in this proceeding that neither Copley nor Christenson nor Cortese should decide the case.  The commissioner's designee (Christenson) finds that claimant waived the opportunity to contest the holding of the rehearing.  

On the merits, the deputy concludes that claimant should take nothing, as did Deputy Copley.  5 months from rehearing decision to appeal decision.  7 months from arbitration (rehearing) decision to appeal decision.

Ramsey v. City of North Liberty, No. 5063830 (App. Jan. 20, 2021) - In this case, claimant was found to have filed his claim outside the 3 year statute of limitations under 85.26(1) (the statute expired on 1/26/10 and the petition was filed on 5/7/18).  The claimant was found eligible for continuing medical benefits and for medical transportation expenses (Grell).  Claimant argued on appeal that claimant was paid wages in lieu of weekly benefits.  On appeal, the commissioner affirmed the dismissal without additional comment.  9 months from arbitration to appeal decision.  

Lord v. American Baptist Homes of the Midwest,  No. 5064714 (App. Jan. 15 2021) - Claimant was found to have an 5% functional disability to the right leg and was also found entitled to alternate medical care (Walsh).  On appeal, the commissioner affirms the finding that claimant suffered a 5% disability.  With respect to the need for additional medical care, the commissioner affirms, but provides additional analysis.  Defendants argue that the deputy failed to consider whether claimant's knee injury continued to be related to work.  The commissioner notes that the deputy did not consider the issue in depth, but did find that the deputy specifically credited the opinion of Dr. Taylor over that of Dr. Crites in ordering additional care.  The commissioner finds that Dr. Crites' opinions were stated in a conclusory manner and that he did not have a firm understanding of claimant's complaints or when they began.  Claimant also testified to continuing symptoms.  Alternate medical care was affirmed.  6 months from arbitration to appeal decision. 

Dehaai v. Casey's and SIF, No. 5066592 (App. Jan. 14,  2021) - In this action, the deputy concluded claimant had not suffered a permanent injury and thus dismissed actions against the employer and the Fund (Walsh).  On appeal, the commissioner affirms the decision, providing additional reasoning.  Claimant had argued that the failure to consider certain exhibits by the deputy led to an erroneous decision.  The commissioner considers those reports and reaches the same conclusions regarding the existence of a permanent impairment.  The commissioner finds that Dr. Bansal's ratings did not prove the existence of a permanent impairment, as they did not distinguish claimant's earlier condition from that which existed after the accident.  The commissioner also reduces the IME fee because it considered injuries applicable only to the Fund.  The fee was reduced to 25% of the total IME costs.  With these additions, the decision of the deputy was affirmed.  5 months from arbitration to appeal decision.  

Wurtzel v. A+ Lawn and Landscape, No. 5060139, 5066566 (App. Jan. 11, 2021) - These two actions involved a 2016 injury as well as new injuries alleged in 2017 and 2018.  The deputy concluded that claimant's current condition was related to the 2016 and awarded a 35% industrial disability.  Penalty benefits were awarded and claimant's rate was increased from $352.62 to $416.95 (Elliott). On appeal, the commissioner affirms the underlying decision for the most part, with some relatively minor modifications.  The commissioner affirmed that claimant's injury related back to 2016, based on the reports from Dr. Bansal and Dr. Boarini.  Dr. Schmitz' view that the injury was related to an incident in 2018 and had not caused permanent disability was rejected.  The 35% industrial disability was affirmed.  Healing period was affirmed, although the date of commencement of permanency was moved back by approximately one week.  On the rate issue, the commissioner concluded that although defendants were incorrect in asserting that claimant's rate should be based on earnings during the winter months (when claimant was typically off work receiving unemployment), the deputy had not taken into account the full 13 weeks of benefits when claimant was working.  The rate was reduced to $387.68.  The commissioner specifically found that in determining the hours to be used, the "hours typically or customarilly worked by an employee during a typical or customary full week of work" were the hours to be considered.  The commissioner reversed the penalty on rate, but affirmed a 50% penalty on the late payment of permanency.  The commissioner noted that there were two carriers involved in the case, but that this fact did not absolve the payment of benefits in a timely manner.  Penalty was affirmed for both healing period and permanency, in the amount of $20,000. 8 months from arbitration to appeal decision.  

DeLeanos v. Pine Ridge Farms, No. 5067831 (App. Jan. 7, 2021) - Claimant was found to have a 95% industrial disability (Gerrish-Lampe). Both parties appeal.  On appeal, the industrial award is reduced to 75%.  The reduction appears to have been because claimant had not searched for other jobs, despite being limited to sedentary work and not being able to perform any work with the employer (as well as not speaking English).  The commissioner also noted there was no medical evidence saying claimant could not work.  7 months from arbitration to appeal decision.

Connelly v. City of Des Moines, No. 5068507 ( App. Jan. 6, 2021) - Claimant was found to have a 10% injury to the leg.  Alternate medical care for meralgia paresthetica was denied (Pals). The commissioner affirms the decision without additional comment. 6 months from arbitration to appeal decision.  

Wheeler v. M and T Investments, No. 5066144 (App. Jan. 5, 2021) - Claimant was found to have suffered a 5% injury to the knee and was awarded healing period benefits and alternate medical care for a knee replacement (Elliott). On appeal, the commissioner affirms without additional comment. The deputy’s credibility finding is given deference by the commissioner. 8 months from arbitration to appeal decision.