Court of Appeals Affirms Ruling Denying New Benefits and Reducing Payment for IME

Pesicka v. Snap-On Logistics Co., No. 19-1759 (App. July 21, 2021) involved a claim in which claimant initially suffered an injury resulting in a 13% impairment to his right leg, settled by the parties on an agreement for settlement basis.  Subsequent to the settlement agreement, claimant underwent eight additional surgeries, including surgeries to amputate all of the toes on his right foot.  Claimant filed a review-reopening action.  Claimant's IME physician found that claimant had established a 36% right foot impairment, which was equivalent to a 25% right lower extremity impairment.  Claimant was also found to  have a 5% impairment of the left knee.  

At hearing, the hearing report indicated that the parties stipulated that the impairment was an impairment to the right leg  Claimant's counsel, however, also argued at hearing that claimant should receive a minimum of 100 weeks of benefits due to the valuations for the loss of all of his toes. The deputy found that claimant had taken into account the value of the toes in making his rating of impairment and awarded a 25% impairment to the leg.  On rehearing, claimant argued again that the deputy failed to consider the value of his toes under the code and indicated that the petition had indicated that the injury was to claimant's right leg.  On appeal, the commissioner affirmed with respect to the award, but reduced the payment for claimant's IME because a portion of the IME was related to a SIF claim filed by claimant.  The district court affirmed the decision of the agency.

On review, the Court of Appeals affirms the finding that since claimant's petition and settlement was for an injury to the right leg, the value of claimant's toes under 85.34(2) could not be claimed in the review-reopening action.  The court concludes that claimant was "bound by the previous settlement and written stipulation that the injury was to the right leg." The court finds that given all the circumstances, the stipulation that the injury was to the leg precluded an award for the loss of the toes.  The court finds that Snap-On would have been prejudiced by consideration of the value of the amputation of claimant's toes.

Claimant also argued that the deputy failed to consider subjective evidence in determining the extent of claimant's impairment.  Here, the deputy had considered the testimony of claimant's witnesses and claimant's difficulties with driving, sitting, walking, balancing and decreased agility, according to the court.  Since this was considered the court concluded that the deputy had considered all the evidence.  The court also concluded that the decision was supported by substantial evidence.

Finally, the court agreed that the commissioner correctly reduced the reimbursement amount for the IME.  Claimant acknowledges that although the IME considered claimant's SIF injury, this constituted only 20% of the IME and alleged that reducing the IME reimbursement by 50% was an abuse of discretion.  The court concludes that since the IME was not easily divided into sections and was for two purposes, the 50% reduction was not an abuse of discretion.