2022 Workers' Compensation Appeal Decisions

 2022 Workers' Compensation Appeal Decisions

The following is a compilation of workers' compensation appeal decisions decided in 2022, arranged by month.

December 2022

Ernster v. SIF, No. 19003583.01 (App. Dec. 29, 2022) - Claimant was found not to be a credible witness at the arbitration level and benefits were denied in this SIF only action.  Claimant had settled the underlying action with the employer on an agreement for settlement. The deputy concluded that claimant had not demonstrated a second qualifying loss to her left leg and thus no SIF benefits were awarded (Fitch).  The commissioner affirms, noting that the deputy is to be given deference in the credibility determination. 4 months from arbitration to appeal decision.  

Hayes v. Georgia Pacific Corp., No. 5067990.02 (App. Dec. 29, 2022) - In this review-reopening petition, claimant sought an increase in the 25% industrial disability previously awarded for a low back injury.  The deputy found there had been a change in claimant's physical condition, resulting in permanent and total disability under the odd lot doctrine (Phillips).  In the arbitration decision, claimant had produced vocational evidence of a 95.4% occupational loss (Laughlin) and defendants had not provided vocational evidence. Penalty benefits and alternate medical care were denied.  On appeal, the commissioner affirms the finding of PTD under the odd lot doctrine, without additional analysis. 6 months from arbitration to appeal decision.  

Menter v. Lennox Industries, Inc., No. 20003192 (App. Dec. 15, 2022) - Claimant was found to have sustained a 53.8% binaural hearing loss as a result of exposures at work.  Claimant's tinnitus was found not to be work-related (Lunn). Defendants appeal and the commissioner affirms without additional analysis. 4 months from arbitration to appeal decision.  

Murray as Conservator of Meyers v. Lazer Spot, Inc., No. 21004833.01 (App. Dec. 14, 2022) - The deputy concluded claimant had failed to carry his burden of proving a work-related injury (an unwitnessed fall).  The deputy also overruled claimant's objections to certain statements, an OSHA report and the report of a biomechanical engineer (Christenson).  Claimant appeals and the commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.  

Lackey v. Dave Koppes Trucking, Inc., No. 5064363.01 (App. Dec. 9, 2022) - Claimant's injury was limited to a functional award as claimant was still working for the employer at the time of hearing, receiving greater earnings.  The deputy concluded claimant had a 53% body as a whole injury, based on the rating of Dr. Segal (Phillips).  Defendants appeal, arguing that the 7% rating of Dr. Karam was a more accurate reflection of claimant's injury.  The commissioner affirms without additional comment or analysis.  3 months from arbitration to appeal decision.   

November 2022

Strable v. Second Injury Fund, No. 1666216.03 (App. Nov. 29, 2022) - The deputy concluded claimant was not entitled to Fund benefits because she did not establish a second loss (Grell).  Claimant appeals, arguing that Supreme Court precedent mandates a finding that claimant demonstrated a second loss and payment of industrial disability against the Fund.  The commissioner reverses the decision and finds that claimant sustained a second qualifying loss and a 70% industrial disability.  

Claimant had a stipulated first loss involving the bilateral hands and arms.  The second injury involved an injury to her left ankle.  Ultimately, she was diagnosed with a left peroneal tear and left ankle joint instability and surgery was performed.  As a result of her cast, claimant developed left hip pain as well as mental health issues.  The mental health issues were found to be permanent.  Dr. Bansal found that claimant had a 42% lower extremity impairment and a 5% impairment for a back injury.  Claimant cited Gregory v. SIF, 777 N.W.2d 395 (Iowa 2010).  In Gregory, the court found that claimant had established a first injury even though there had also been injuries to the shoulder.  In Gregory, the court noted that in SIF v. George, 737 N.W.2d 141 (Iowa 2007), the court had indicated that "the method of calculating compensation for a first qualifying injury cannot be controlling on this issue" and found that the fact that Gregory "combined in a single workers' compensation proceeding her claim for that scheduled loss with other scheduled and unscheduled injuries did not disqualify it as a first qualifying injury under section 85.64.  The commissioner was to determine loss of earning capacity for Fund purposes only to the extent claimant had a loss of earning capacity due to losses to the enumerated extremities.

The commissioner finds, on the facts of the case, that claimant clearly sustained an injury to her left lower extremity and thus had suffered a second injury.  The fact that she sustained permanent back and mental health injuries was, according to the commissioner, "of no consequence to her entitlement to Fund benefits under Gregory."  The commissioner, after concluding claimant had waived an odd lot claim because it was not raised in the hearing report, concluded that claimant had sustained a 70% industrial disability against the Fund.  4 months from arbitration to appeal decision.  

Note that claimant had reached a full commutation agreement with the employer concerning the left leg injury and a compromise settlement regarding left hip, back and mental health injuries.

Fisher v. Arconic, Inc., No. 1651146.01 (App. Nov. 17, 2022) - The deputy concluded claimant had failed to demonstrate an aggravation of a pre-existing mental health problem.  A 2% injury to the body as a whole was found by the deputy.  Payment for Dr. Bansal's IME was denied (Lunn).  The commissioner affirms the findings on the mental health claim and 2% award without further analysis.  On the IME denial, the commissioner finds that claimant failed to raise the issue of payment for the IME in the hearing report, although it was raised in claimant's post-hearing brief.  The commissioner finds that claimant waived the issue by failing to include it in the hearing report and thus affirms the denial of payment.   5 months from arbitration to appeal decision.  

Furman v. Guardian Industries, No. 19004024.01 (App. Nov. 16, 2022) - In this action, the deputy concluded claimant was not a credible witness and found claimant had not demonstrated an injury arising out of employment.  IME reimbursement was denied (Humphrey).  As in most cases where the claimant is found not credible, the commissioner affirms the decision of the deputy without additional comment.  4 months from arbitration to appeal decision.  

Elliott v. Flynn Company, Inc., No. 200003792.03 (App. Nov. 8, 2022) - The deputy concluded claimant had failed to demonstrate her injury arose out of her employment.  An IME payment was awarded under 85.39 (Christenson). The commissioner affirms the denial of benefits with further comment.  The payment for the IME was denied by the commissioner, who concluded that 85.39 (2017) allows for payment only if an injury is found compensable.  Since there was no compensable injury, IME costs under 85.39 were not payable.  5 months from arbitration to appeal decision.  

Loraditch v. Seaboard Triumph Foods, Inc., No. 19004961.01 (App. Nov. 7, 2022) - Claimant was found to have a 41% impairment of the left hand.  The deputy concluded that claimant did not suffer an industrial disability (Cleereman).  The commissioner affirms the arbitration decision without further analysis.  3 months from arbitration to appeal decision.  

Richardson v. Hy-Vee, Inc., No. 5067948 (App. Nov. 7, 2022) - Claimant was found eligible for a running award of healing period due to an aggravation of underlying mental health conditions.  The deputy also concluded that claimant failed to prove that her physical conditions were related to the work injury.  A penalty award of 50% was provided for failure to pay temporary benefits from February of 2019 through April of 2020 (Walsh).  Defendants argue that claimant was not a credible witness and that claimant's physicians had not seen a video of the incident in question which caused the mental health problems. The commissioner affirms.  With respect to the video, which showed claimant's hair being pulled by another employee and physically touching claimant in front of customers at Hy-Vee, the commissioner finds that this was "very strange and quite upsetting from claimant's perspective."  The commissioner also finds that defendants did not disclose the video until just before the hearing and rejected defendants argument that claimant's doctors should not be provided credit because of their failure to review the video due to the late disclosure.  The commissioner also finds that the delay in payment of benefits was unreasonable and that defendants did not contemporaneously convey the basis for denial.  The 50% penalty was affirmed.  5 months from arbitration to appeal decision.  

October 2022

Garcia v. Smithfield Foods, No. 1657969.01 (App. Oct. 28, 2022) - Claimant was found to have a back injury and somatic symptom disorder, which was treated functionally, as claimant was working at the same or greater salary than received at the time of injury.  Claimant was awarded a 6% impairment for the body as a whole as a result of the leg injury and a 3% impairment as a result of the back injury.  The somatic disorder was not awarded permanency, as the deputy found that the Guides did not allow for an impairment rating for a mental health impairment (Humphrey).  The commissioner affirms the results of the decision, but adds additional analysis with respect to the mental health impairment.  The analysis centered on the differences in opinion between Dr. Ressler, who believed claimant had suffered a moderate (Class 3) impairment as a result of the somatic disorder and Dr. Arias, who concluded claimant had not suffered a somatic symptom disorder.  Dr. Arias stated that MMPI findings suggested symptom magnification.  The commissioner finds neither of these opinions persuasive, but instead relies on the opinion of Dr. Luft, the treating family medicine physician.  Dr. Luft concluded that claimant's injury aggravated his major depressive disorder and found the condition was permanent.  The commissioner concludes that the fact that the AMA Guides do not provide a numeric impairment does not preclude recovery for a mental health impairment, finding that this would lead to an "absurd, illogical and unjust result."  Unfortunately, the commissioner then goes on to indicate that claimant had not presented competent evidence that "he has even mild limitations in his functioning using the criteria in the AMA Guides and finds there is no permanent partial impairment attributable to the work injury.  9 months from arbitration to appeal decision.  

Lara V. Smithfield Foods, Inc., No. 21001591.01 (App. Oct. 26, 2022) - The deputy concluded that claimant had been offered work at the same or greater earnings and accordiningly limited claimant's recovery for his cervical spine injury to a functional disability of 5% (Gerrish-Lampe). Claimant appeals and the commissioner affirms without additional discussion, crediting the findings of Dr. Harbach over Dr. Bansal, as had the deputy.  6 months from arbitration to appeal decision.  

Warren v. Compass Group USA, Inc., No. 21007339.01 (App. Oct. 25, 2022) - In the arbitration decision, the deputy concluded claimant was not a credible witness and found that claimant had failed to demonstrate an injury arising out of employment.  IME costs were also denied (Lunn).  The commissioner affirms without additional analysis.  3 months from arbitration to appeal decision. 

Swanson v. Pella Corp., No. 19700687.01 (App. Oct. 19, 2022) - Claimant was found to have an injury to his right shoulder and the need for surgery was found to be attributable to the work injury.  A right carpal tunnel condition was found not to have arisen out of employment.  An 8% award was provided.  Payment for an IME was denied, but $2000 was ordered for Dr. Stoken's report and $300 for a report from Dr. Crites (Christenson). The commissioner affirms the opinion, with the exception of the award of 8%.  The commissioner noted that Dr. Stoken had found claimant had a 2% impairment of the wrist and 6% impairment of the upper extremity.  Since the wrist injury was not work-related, the commissioner reduces the award to 6%.  Defendants also argued that claimant was not entitled to benefits under the successive disabilities statute, as he had a prior right shoulder injury.  The commissioner finds that under the plain meaning of the successive disabilities statute, defendant is not liable for compensating claimant for any preexisting disability from a prior injury to his right shoulder.  An earlier decision had provided claimant with a 20% industrial disability for the right shoulder injury.  The commissioner compares Dr. Stoken's impairment rating with an earlier rating from Dr. Sullivan which formed the basis for the earlier decision and concludes that claimant was only entitled to an additional 3% in benefits rather than 6%, notwithstanding that the earlier decision was an industrial decision and not a scheduled member decision. 6 months from arbitration to appeal decision.  

Pesicka v. Snap-On Logistics Company, No. 5018910 (Remand Oct. 19, 2022) - The Court of Appeals remanded claimant's case to the agency for determination of the amount of healing period due, interest and the amount of overpayment of PPD benefits.  Prior to the remand decision, the parties filed a joint stipulation that claimant was owed $649.85 for past due benefits, $287.33 in interest and $324.93 in penalty for unpaid healing period benefits.  The stipulation also indicated claimant was overpaid PPD benefits in the amount of $11,890.76, which was a credit to defendant against future benefits.  The commissioner enters a remand decision based on the stipulation.  Three months from COA to remand decision.  

Wenning v. ERJ Dining dba Chili's Grill, Nos. 20012604.01, 20700923.01 (App. Oct. 14, 2022) - The deputy concluded that claimant failed to prove a back injury and failed to establish permanent injures to his bilateral hands and arms.  Future medical care was denied.  On the second claim, treatment of a right knee injury was ordered. Payment for an IME was denied (Walsh). The commissioner affirms without additional discussion.  4 months from arbitration to appeal decision.  

September 2022

Turner v. NCI Building Systems, No. 1652235.01 (App. Sept. 30, 2022) - Claimant was found to have a 40% industrial disability and defendants were ordered to pay a $3800 penalty (Lunn). The commissioner affirms the industrial disability amount and penalty without additional comment.  The commissioner, however, reverses the deputy's conclusion that no specific restrictions should be adopted and also finds that the mental health report of Dr. Dinoff should be admitted (it had been excluded by the deputy as late-submitted).  The commissioner finds that claimant had suffered a mental health impairment, but concludes that the mental health impairment was not permanent.  The commissioner adopts Dr. Taylor's restrictions.  In a lengthy analysis, the commissioner concludes that since Dr. Dinoff's report was for treatment related to a work injury, and had been delayed by defendants, that the report should be admitted.  Most of the decision is devoted to a discussion of whether claimant had a mental health condition related to the injury and the commissioner concludes that claimant had such an impairment.  But since one of the doctors had indicated that claimant's adjustment disorder "will be permanent" if claimant's chronic pain is not resolved, he had, according to the commissioner, failed to establish a permanent impairment.  Since claimant had not appealed the amount of industrial disability attributable to the physical impairments and there was no permanent mental impairment, no additional ID was awarded.  7 months from arbitration to appeal decision.  

Gatewood v. Innkeeper Hospitality Services, Nos. 19007309.01, 20000508.01 (App. Sept. 28, 2022) - Claimant was found to have sustained a 50% industrial disability (Lunn).  Claimant appeals, arguing that the deputy erred in not finding that he suffered from RSD/CRPS.  Claimant seeks additional industrial disability benefits, in addition to payment for a vocational report.  The commissioner affirms the decision of the deputy on the issues of RSD/CRPS and payment for the vocational report  On the degree of industrial disability issue, the commissioner increases ID from 50 to 70%.  The commissioner found that at the time of the injury, claimant was working 30 hours a week for the employer, making $14.00 per hour.  At the time of hearing claimant was making less per hour ($12 per hour at his primary job as a banquet server) as well as working fewer hours per week.  The commissioner also adopted Dr. Segal's finding that claimant had a 33% whole person impairment for his back injury and the restrictions Dr. Segal recommended (sitting 60 minutes with shifting, 10 without shifting; standing 20 minutes consecutive; lifting 20 pounds occasionally floor to waist, 15 pounds waist to shoulder).  A 70% industrial award was provided given these factors.  Claimant's argument that he was odd lot was rejected, based on the fact that claimant was employed post-injury and Lana Sellner's vocational opinion.  4 months from arbitration to appeal decision.  

Thygesen v. City of Harlan, No. 5057045 (Remand Sept. 26, 2022) - In this remand decision, the Court of Appeals concluded that there was an additional component to the application of the discovery rule - whether claimant had knowledge of facts sufficient to trigger a duty to investigate the nature, seriousness and probable compensable character of the injury.  City of Harlan v. Thygesen, No. 21-0265 (Iowa App. March 30, 2022). The Court found that in the circumstances of the case, the claiant had a duty to investigate, notwithstanding the fact that claimant's work activities had not been affected by the injury (tinnitus).  On remand, the commissioner finds, not surprisingly, that claimant had filed his petition outside the statute of limitations, in this case approximately four years after claimant should have known the nature, seriousness and probable compensable character of the injury.  6 months from COA decision to remand decision.

Zuniga v. Smithfield Foods, Inc., No. 1660515.01 (App. Sept. 21, 2022) - The deputy found that claimant had sustained permanent sequela injuries to his left shoulder and mental health caused by an injury to his right shoulder.  PPD benefits for the mental health condition were denied. A 12% right upper extremity impairment and a 3% left upper extremity impairment were found under 85.34(2)(n).  Various costs were awarded as was payment of the IME (Walsh).

On appeal, the commissioner found that claimant had not sustained a permanent mental health impairment, finding that the opinion of Dr. Ressler finding permanency was "equivocal" because it was premised on claimant's left shoulder injury and pain not improving.  The commissioner noted that Dr. Ressler had noted that the mental health impairment was "likely" permanent and had not opine that the impairment was more likely than not permanent.

The commissioner found that the shoulder injuries should be compensated as an unscheduled injury under 85.34(2)(v) rather than separately under 85.34(2)(n), citing Carmer v. Nordstrom.  The commissioner reduced the impairment to the right upper extremity, since the appropriate multiplier was not applied for a distal clavical excision.  The commissioner found claimant had sustained a 4% impairment to the right shoulder and a 1% impairment to the left shoulder, for a total of 5% to the body or 25 weeks (the claim was not addressed industrially as claimant continued to work for the employer at the same salary).  Claimant's recovery was thus reduced from 60 weeks of benefits to 25 weeks.  

The commissioner found that claimant was entitled to payment for Dr. Bansal's IME under 85.39, but denied a second IME, finding that "85.39 allows an injured worker to recover the cost of only one IME."  Costs for Dr. Bansal's second IME, as well as the IME of Dr. Ressler and an FCE were paid as costs, with only the cost of the report being payable. Because only two "costs" were allowable under the administrative rule, the FCE costs were not allowed.  8 months from arbitration to appeal decision.  

Ocampo v. New Fashion Pork, LLP, No. 20012252.01 (App. Sept. 16, 2022) - Claimant was found entitled to a 150 week industrial award.  Credit was denied defendants for approximately a month of PPD benefits. Claimant was denied reimbursement for an IME (Humphrey).  The commissioner affirms the decision without additional comment.  7 months from arbitration to appeal decision.  

Estermann v. Allegis Group, No. 5065220.01 (App. Sept. 15, 2022) - The deputy concluded that claimant was permanently and totally disabled (Cleereman).  On appeal, the commissioner affirms the PTD award without further discussion.  4 months from arbitration to appeal decision.  

Odobasic v. Area Residential Care, Inc., No. 1645232.02 (App. Sept. 9, 2022) - Claimant was found to have a permanent disability to his cervical spine and was awarded a 7% functional impairment as he continued to work for the employer.  The deputy found that claimant had failed to prove the work injury caused a cognitive disability or disability based on depression.  Disability based on vestibular dysfunction, tinnitus and hearing loss was also denied (Phillips).  Claimant appeals the disability award as being too low, as well as the remainder of the arbitration decision finding no disability.  The commissioner affirms the arbitration decision without further elaboration.  4 months from arbitration to appeal decision. 

Tripp v. Scott Emergency Communication Center, No. 5066673 (Remand Sept. 1, 2022) - This case was on remand from the Iowa Supreme Court, which concluded that claimant's mental/mental claim was compensable.  On remand, the commissioner concludes that claimant was entitled to temporary disability benefits.  The commissioner also addresses the question of permanency.  Because claimant continued to be employed at the same or higher wages, the question before the commissioner was the degree of functional disability.

The treating physician had concluded that claimant had a 30% impairment rating according to the guidelines used in determining disability for veterans.  The AMA Guides do not provide a specific impairment percentage for mental health disorders,  The Guides do, however provide for classes of impairment ranging from no impairment to extreme impairment.  The commissioner notes that although the AMA Guides were adopted as a guide for the agency, other medical opinions and material evidence can be used by the agency for the purpose of determining a degree of permanent disability.  In this case, since there was no evidence in conflict with the treating physician's finding of a 30% disability, the commissioner adopted this  finding and awarded claimant 150 weeks of benefits. The commissioner also awarded payment for medical care and found that claimant was entitled to alternate medical care, inasmuch as defendants had not provided care. 

August 2022

Sallis v. City of Waterloo, Iowa, No. 1643953.01 (App. Aug. 29, 2022) - The deputy concluded claimant had sequela injuries to her left shoulder and left upper extremity caused by and earlier injury to the right shoulder and right upper extremity.  An industrial award of 35% was provided (Grell).  The commissioner affirms the finding that claimant suffered these injuries as a result of work, but reduces the industrial disability award from 35 to 20%.  Claimant was 66 and had a limitation of no lifting over ten pounds with her right upper extremity.  Claimant retired from her job with the city and the commissioner concludes that she was capable of retraining but was not motivated to return to work.  Because of this, the industrial award is reduced to 20%.  4 months from arbitration to appeal decision. 

Schonhoff v. John Deere Dubuque Works, No. 5061818 (App. Aug. 29, 2022) - The arbitration decision found that claimant suffered a 10% permanent functional loss to his penis, with no loss of earning capacity.  Claimant, however, suffered sequela mental health conditions which resulted in a 25% industrial disability (Cleereman). The commissioner affirms without additional comment, awarding claimant 125 weeks of benefits.  5 months from arbitration to appeal decision.  

Janssen v. Thomas Rest Haven, Nos. 1655320.01, 1654046.01, 1650201.01 (App. Aug. 26, 2022) - The deputy concluded that claimant had not established permanent injuries to her cervical or lumbar spine arising out of her employment.  Claims for left shoulder and left hip injuries were also denied.  The deputy relied in large part of claimant's alleged lack of credibility (Gerrish-Lampe).  On appeal, the cervical and lumbar findings were affirmed without additional comment.  The commissioner also affirmed the left shoulder and left hip findings, with additional analysis. The commissioner recites a lengthy portion of the deputy's decision that concluded "based on claimant's lack of reliability and her uneven presentation of her complaints" as well as the opinions of various doctors, claimant had not carried her burden of proving injuries arising out of employment.  Claimant argued that Dr. Harbach had supported causal connection, but the commissioner concluded that he had not opined that her work activities had more likely than not caused the conditions in her left hip.  The commissioner concluded the same with respect to the opinions of Dr. Carlson.  The commissioner also concluded that Dr. Chen's opinion of no causation with respect to the left shoulder and left hip was supported by the evidence of record.  The arbitration decision was affirmed.  5 months from arbitration to appeal decision. 

Jay v. Archer Skid Loader Services, LLC, No. 19003586.01 (App. Aug. 23, 2022) - Claimant was found to have sustained a 15% injury to his left shoulder (Humphrey).  The commissioner reduced the award to claimant based on his reading of the AMA Guides with respect to distal clavicle excisions.  Rather than award a 10% impairment to the shoulder as a result of the imposition of the Guides, the commissioner finds the following:

    The AMA Guides direct the physician to assign a rating for a distal clavicle excision, contrary to Dr.     Vincent's opinion.  The AMA Guides also require application of a 25 percent multiplier.  This results     in a 2.5 percent impairment for a distal clavicle excision under the plain text of the AMA Guides.

In reaching this result, the commissioner relies on page 498 of the AMA Guides which indicate that that the severity of an impairment is rated according to Tables 16-19 through 16-30 and then multiplied by the relative maximum value of the unit involved as specified in Table 16-18.  In this case, the multiplier resulted in a 2.5% impairment of the shoulder rather than the 10% typically awarded.  5 months from arbitration to appeal decision.  

Gruver v. Lennox Industries, Inc., No. 20014345.01 (App. Aug. 22, 2022) - Claimant was found to have suffered an injury to his cervical spine, but bilateral shoulder injuries were found not to have been proven by claimant.  Claimant was found not to have reached MMI.  Alternate medical care was awarded for the cervical injury (Cleereman).  Defendants appeal and the commissioner affirms without additional analysis.  The commissioner finds that the deputy correctly assessed claimant's credibility.  4 months from arbitration to appeal decision. 

Johnson v. Carry-On Trailer, Inc., No. 21700162.01 (App. Aug. 12, 2022) - Following the arbitration hearing, the deputy concluded claimant had failed to carry his burden of proving permanent disability from his work injury (Pals). The commissioner affirms without additional analysis.  3 months from arbitration to appeal decision.  

Davis v. John Deere Davenport Works, No. 20700989.01 (App. Aug. 11, 2022) - Claimant was found not to have demonstrated that his carpal tunnel syndrome arose out of employment (Fitch). The commissioner affirms, with additional analysis.  The commissioner finds that although Dr. Bansal concluded that claimant's injury was related to his employment activities, that opinion did not consider the opinion of the treating physician and did not address the opinion of a doctor who had performed an onsite evaluation of claimant performing his work activities.  The commissioner also found that the fact that claimant developed carpal on both sides was inconsistent with the opinion of the treating doctor that claimant did not use his non-dominant arm as frequently as the dominant arm.  With this additional analysis, the decision of the deputy was affirmed.  6 months from arbitration to appeal decision.  

Seliger v. Hy-Vee, Inc., No. 19003453.02 (App. Aug. 11, 2022) - The deputy concluded claimant had not suffered an injury arising out of employment.  Temporary and permanency benefits were denied (Pals).  The commissioner affirms without additional analysis.  4 months from arbitration to appeal decision.  

Williams v. Community Action of SE Iowa, No. 19002053.01 (App. Aug. 10, 2022) - The deputy concluded claimant had suffered an injury to her right hip and awarded a 40% industrial benefit (Cleereman).  Defendants appeal and the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision.  

Heser v. Star Appliances, No. 1661411.01 (App. Aug. 10, 2022) - Claimant was found to have injuries to his thoracic spine as well as depression.  He was awarded a 40% industrial disability (Grell).  Both parties appeal, with defendants arguing that claimant was not entitled to benefits and claimant arguing he was entitled to penalty.  The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.  

Locke v. City of Waterloo, Iowa, No. 19700544.01 (App. Aug. 3, 2022) - The deputy found that claimant had suffered aggravation of injuries to his low back, right shoulder, neck and groin and also suffered mental health conditions and tinnitus (Walsh). Claimant was provided with a 35% functional award.  Defendant appeals and the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision. 

Semelroth v. General Mills, No. 5058406.01 (App. Aug. 3, 2022) - In this review reopening action, claimant was found to have failed to meet his burden of demonstrating a change of condition since the agreement for settlement in his 2015 injury (Gerrish-Lampe).  Claimant appeals and the commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.  

Donna Bolton, Surviving Spouse of Steve Bolton v. Marcus Lumber, No. 20015335.01 (App. Aug. 2, 2022) - The deputy found that claimant's decedent failed to demonstrate that his death was caused by Covid-19 arising out of his work (Palmer).  The deputy found that claimant's workplace followed Covid protocols and that claimant did not always follow masking protocols when meeting with family members, leading to the conclusion that claimant's Covid did not arise out of his employment.  On appeal, the commissioner affirms without additional discussion.  4 months from arbitration to appeal decision. 

July 2022

Marquez de Rodriguez v. Menard, Inc., No. 5067292 (App. July 29, 2022) - In this action, the deputy concluded that claimant was permanently and totally disabled (Humphrey).  The commissioner affirms without  additional analysis.  4 months from arbitration to appeal decision.  

Dhabolt v. City of Des Moines,, Nos. 5068239, 20000505.01 (App. July 28, 2022) - Claimant was found to have sustained two scheduled member injuries (left arm and left shoulder) as a result of a single injury and was awarded 15% industrial. Claimant was also found to have a neck injury and was found entitled to alternate care for that injury and his left shoulder (Walsh).  Defendants did not appeal the industrial award.  They did appeal the neck injury and on this aspect of the case, the commissioner reverses, finding that claimant's neck injury did not arise out of his employment.  The commissioner, after a lengthy recitation of the history of the neck injury, found that claimant did not inform any doctors of the injury to his neck until well after the date of injury, despite claimant's testimony to the contrary.  The commissioner concluded that claimant was not credible on this point, as none of the contemporary medical records contained any mention of a neck injury.  Accordingly, the finding of a neck injury was reversed and alternate care on this point was not awarded. 6 months from arbitration to appeal decision.  5 months from arbitration to appeal decision.  

Mero Bustos v. Tyson Foods, Inc., No. 19700550.01 (App. July 28, 2022) - Claimant was found not to have sustained permanent disability of the left shoulder and was awarded healing period benefits for a low back injury from February to September of 2020.  Claimant was awarded functional benefits of 10% for the low back injury, with industrial disability denied because claimant continued to work for the employer at the same or higher wages (Phillips).  Claimant appeals the length of the healing period and the denial of benefits for the shoulder.  The commissioner affirms without additional analysis.

Cook v. Newton Correctional Facility, No. 5064180.01 (App. July 25, 2022) - In this review reopening petition, claimant was found to have sustained a change in physical condition by reaching MMI.  A 50% industrial award was provided for claimant's back injury.  A credit for a bilateral knee injury sustained at the time of the back injury was also provided (Grell).  On appeal, the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision. 

Miyose v. Essentia Protein Solutions, Ltd., No. 20011901.01 (App. July 21, 2022) - Claimant was found not to be a credible witness and the deputy concluded that claimant failed to establish a work-related injury.  On appeal, the commissioner affirms without additional comment. 6 months from arbitration to appeal decision.

Delaney v. SIF, No. 19005645.04 (App. July 21, 2022) - Claimant was found to have failed to demonstrate a second qualifying injury and Fund benefits were denied.  The commissioner affirms without additional analysis.  5 months from arbitration to appeal decison.

Loh v. Allsteel, Inc. and SIF, No. 5064253.01 (App. July 21, 2022) - Claimant was found to have a right knee injury that arose out of employment and a right knee replacement surgery was authorized. On the Fund claim, a 40% industrial award was provided (Grell).  Only the employer appeals.  The commissioner affirms without additional comment. 5 months from arbitration to appeal decision.

Konchan v. English Valley Nursing Care Center, Nos. 5068222, 5068223 (App. July 21, 2022) - The deputy concluded that claimant's leg pain, back pain and mental conditions did not not arise out of employment (Humphrey). The commissioner affirms on the the merits of the case, with additional analysis.  The commissioner notes that no treating physician had related claimant's leg and back pain to her work (Kuhnlein, as an IME physician, had found causal connection).  The commissioner rejects Dr. Kuhnlein's findings, indicating that he did not explain the lack of objective findings noted by the treating physicians.  On the mental claim, the commissioner found that Dr. Perea noted that there was no mental injury attributable to claimant's work.  Dr. Perea found that there was a "huge psychological component" to claimant's allegations of pain.  The commissioner rejected a claim that claimant's mental problems were a sequela of the physical problems because the physical problems were found not to have arisen out of employment. 5 months from arbitration to appeal decision.

Nusinovic v. Unitypoint Health-Waterloo, Nos. 19001748.01, 20009674.01, 20700556.01, 21700203.01 (App. July 19, 2022) - In two of the cases involved, the deputy concluded that claimant had not proven a work-related injury to the left shoulder.  In another case, claimant was found to have a right shoulder injury and was awarded a 22% of the right shoulder.  Finally, the deputy concluded that claimant suffered a back and right hip injury, but industrial disability benefits were denied because claimant was offered a position at greater earnings than she had at the time of the injury (Palmer). Claimant appeals all four of the cases.  The commissioner affirms all of the decisions without additional comment.  5 months from arbitration to appeal decision. 

Calderon v. Smithfield Foods, Inc., No. 5068837 (App. July 15, 2022) - The deputy concluded that claimant was entitled to a 9% shoulder rating, entitling her to 36 weeks of benefits. A cervical claim was denied (Cleereman). The commissioner affirms the decision, but finds that claimant was entitled to payment for Dr. Bansal's original IME. The commissioner finds that claimant was entitled to the full costs of the IME, not to a pro rata share based on which claim was founded and which unfounded.  A second IME, however, was denied.  6 months from arbitration to appeal decision.  

Freese v. Treehouse Foods, Inc., No. 20004609.01 (App. July 14, 2022) - Claimant was awarded 20% industrial disability for a combined hearing loss and tinnitus claim.  Claimant was granted alternate medical care in the form of cochlear implants.  A $22,000 penalty was also awarded.  The commissioner affirms, but modifies the decision to find that claimant was responsible for an additional $437 in medical benefits. 5 months from arbitration to appeal decision.

Chavez Amaya v. UIHC, No. 20006866.02 (App. July 14, 2022) - The deputy dismissed claimant's petition, finding that she had failed to carry her burden of demonstrating an injury arising out of employment (Lunn).  On appeal, the commissioner affirms without additional comment. 5 months from arbitration to appeal decision.  

Sands v. City of Sioux City, No. 5050047.01 (App. July 13, 2022) - In this complicated penalty proceeding, the deputy assessed defendants a $5000 penalty for failure to pay a commuted permanent total disability award without contemporaneously conveying the reasons for the 39 day delay to claimant (Fitch). The commissioner reverses, finding that the absence of a lawful final order fixing the amount of commuted benefits deprived the deputy of subject matter jurisdiction to enter an award of penalty benefits.

The initial commutation action resulted in a decision in which the deputy ordered the parties to cooperate to reach the correct commutation amount. If the correct amount could not be reached, the parties were ordered to request the appointment of a financial expert to calculate the value of the award. The commissioner upheld the award.  Defendants appealed and the district court remanded, ordering the agency to determine a precise dollar amount either through appointment of a financial expert or by a decision of the agency.  Following this, claimant moved to appoint a financial expert.  A financial expert ultimately determined the value of the award.  Claimant's counsel filed a request for entry of judgment with the district court, which entered judgment on August 18, 2020.  Later that day, the commissioner issued an order delegating authority to a deputy to handle the issues presented by the remanded judicial review action.  The district court decision ultimately became final and defendant did not appeal.  On September 25, defendants paid claimant $409,726.63 (less the the judgment of $411,842.83).  Claimant filed for penalty and the deputy awarded a penalty of $5000.

Defendants interposed numerous defenses, but the commissioner finds that the district court did not have jurisdiction to issue judgment on the penalty claim.  The commissioner concluded that without an order of the agency, the district court did not have jurisdiction to consider the claim, as the agency had never acquiesced to the findings of the financial expert.  The commissioner notes that the decision was not meant to encourage defendant's counsel's unprofessional conduct throughout the hearing, but concluded that since the district court had no jurisdiction, the penalty order was invalid. 6 months from arbitration to appeal decision.

Broderson v. REM Iowa, No. 5055853.01 (App. July 12, 2022) - Claimant was found to have sustained permanent injury to the neck and low back as a result of a 2014 work injury.  A 55% industrial disability was awarded (Pals).  Claimant appeals, asserting that she was permanently and totally disabled.  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.

Smith v. TPI Iowa, LLC, No. 5067018 (App. July 11, 2022) - Claimant was found not to have established a permanent injury (Gerrish-Lampe). The commissioner affirms the decision of the deputy without additional comment.  5 months from arbitration to appeal decision.

Phipps v. Midamerican Energy Co., Nos. 5066050.01, 20005453.01, 20700369.01 (App. July 11, 2022) - In this combined review-reopening and arbitration proceeding, the deputy concluded claimant had not established a change in physical or economic condition and further concluded claimant had not demonstrated he sustained hearing loss or tinnitus associated with his employment.  On the third case, claimant was found to have a 3% impairment of the right wrist.  Apportionment of the injury was denied (Christenson).

On appeal, the commissioner affirms the finding the claimant failed to demonstrate a change of economic condition, but found there had been a change of physical condition for claimant's bilateral shoulder injury, based on Dr. Bansal's finding of decreased range of motion.  The commissioner awards claimant an additional 5% industrial disability based on the fact that although claimant could not perform his former job, he was retired and had a lack of motivation to return to work.  The hearing loss/tinnitus finding was affirmed, but Dr. Tyler's exam report were assessed against defendant.  The right wrist impairment was affirmed, but the apportionment decision was reversed (under the revised version of the statute), with the commissioner finding that apportionment applies to successive injuries to the same body part.  The commissioner does not address the fact that the revised version of the statute does not expressly allow for apportionment.  Since the earlier injury resulted in a greater percent of impairment, claimant was not provided with any benefits for the new injury.  7 months from arbitration to appeal decision. 

Wolf v. Prairie Farms Dairy, No. 1662827.01 (App. July 6, 2022) - In this action, the deputy found claimant was permanently and totally disabled (Walsh).  On appeal, the commissioner affirms with no further discussion.  5 months from arbitration to appeal decision.

June 2022

Tyler v. Tyson Fresh Meats, Inc., No 20010491.01, 20010492.01 (App. June 30, 2022) - In the first file, claimant was found to have failed to meet his burden of demonstrating a traumatic injury.  In the second file, claimant was found to have submitted his claim in an untimely manner (the deputy found claimant knew of the nature, seriousness and probable compensable character of the injury by April of 2019 and did not notify the employer of the injury until October 22, 2019, outside of the 90 day notice period) (Grell).  On appeal, the commissioner affirms both results without additional comment. 5 months from arbitration to appeal decision. 

Martinez Yanez v. Vazquez, No. 5066714, 5066714.01 (App. June 30, 2022) - In this case, claimant was found to be an employee of the employer rather than an independent contractor.  He had a total loss of the left eye and was awarded 140 weeks of benefits (Lunn).  On appeal, the commissioner affirms without additional discussion.  7 months from arbitration to appeal decision. 

Lynn v. Drynachan, LLC, No. 5059930 (App. June 29, 2022) - Claimant was found to have failed to meet her burden of demonstrating a permanent disability.  Certain medical expenses were also denied (Humphrey). The commissioner affirms without additional comment.  6 months from arbitration to appeal decision.

Throckmorton v. Seaboard Foods of Iowa, LLC, No. 21001872.01 (App. June 29, 2022) - Claimant was found not to have sustained a permanent disability by the deputy (Pals).  The commissioner affirms without additional comment. 4 months from arbitration to appeal decision.  

Clark v. Arconic, Inc., No. 5061553.01 (App. June 28, 2022) - Claimant was found to have sustained PTSD as a part of work and was awarded a 100% functional rating (claimant was still working at the time of the hearing, making more than at the time of injury) (Gerrish-Lampe).  On appeal, the commissioner affirms the finding that claimant suffered PTSD as a result of the work injury, but reduces the award of benefits to 30%.

The deputy had awarded the 100% functional rating based on the 100% disability rating of Dr. Thomas, a psychologist who had initially provided claimant with a workplace impairment evaluation.  Dr. Jennisch, the IME physician, had not opined on the degree of disability sustained by claimant, but had recorded the extent of the claimant's functioning.  Claimant argued that because Dr. Thomas was the only doctor who had opined on the extent of disability, his rating must be accepted.  The commissioner disagreed.  He notes that the AMA Guides, instead of assigning a numeric impairment rating for mental health injuries, directs the rater to assign a class of impairment from 1 to 5.  The commissioner notes that under 85.34(2)(x), functional disability is to be determined according to the Guides, without the use of lay testimony or agency expertise.  Citing a Montana decision, S.L.H. v. State Comp. Mut. Ins. Fund, the commissioner finds that although the Guides do not provide for a numerical rating and the statute requires a numerical rating for a functional injury, the decision-maker can ultimately determine the numerical rating needed to arrive at the degree of functional loss.  Both Dr. Thomas and Dr. Jennisch had recorded their observations of claimant's functioning and had assigned a class of impairment for each category (Understanding and memory, sustained concentration and persistence, social interaction, adaptation) mentioned by the Guides.  The commissioner finds that Dr. Jennisch's assessment of functioning was more consistent with the record evidence.  After reviewing the class of impairments assigned by each of the physicians, the commissioner concluded that claimant has sustained a 30% functional loss, noting specifically that a class 4 or 5 impairment, such as found by Dr. Thomas, was inconsistent with the functional abilities demonstrated by claimant (maintaining full-time employment, caring for her son, serving as a union steward).  The commissioner concludes that claimant had mild limitations in functioning and a 30% functional loss. The commissioner also reverses the finding that claimant was entitled to the cost of the hearing transcript.  7 months from arbitration to appeal decision. 

Stanton v. Glenwood Resource Center, No. 1656606.01 (App. June 21, 2022) - Claimant was found to have suffered an injury to his bilateral knees, but was found not to have sustained any permanency from the injury (Lunn). The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Walton v. Compass Group USA, Inc., No. 1663689.02 (App. June 20, 2022) - Claimant was found to have sustained injuries to her left knee, left hip and low back.  An 8% functional impairment to the body as a whole was awarded.  A 30% penalty was awarded for late paid weekly benefits from May to September. A 15% penalty was awarded for underpaid benefits from March 31, 2021 until the benefits owing were satisfied (Gerrish-Lampe). The commissioner affirms with respect to the body as a whole award.  On the penalty issue, the commissioner reverses.  The penalty issue concerned defendants' payment of permanency and whether they timely requested an impairment rating.  Defendants did not commence benefits until September of 2019, although claimant was found to be at MMI on May 6. The commissioner finds that the fact that defendants asked the physician to provide a rating on May 24 was sufficient to show that defendants acted reasonably.  The 15% penalty for underpayment of rate was affirmed (which amounted to a penalty of $23.47).  5 months from arbitration to appeal decision.

Stuart v. Dickten Masch Plastics, LLC, No. 5056493.01 (App. June 15, 2022) - In this review-reopening petition, the deputy concluded that claimant failed to demonstrate she was entitled to an increase in benefits.  Payment for an IME was denied (Pals).  On appeal, the commissioner affirms without additional discussion.  4 months from arbitration to appeal decision.

Murray v. City of Missouri Valley, No. 1664884.03, 19700585.02 (App. June 14, 2022) - Claimant was found to have sustained an 80% industrial disability as a result of  his work injury.  The deputy concluded that apportionment of successive disabilities applied and awarded 391.3 weeks of benefits (Copley).  The commissioner affirmed the 80% award, but concluded that apportionment did not apply because defendants did not raise the issue in the hearing report or pleadings and did not discuss the issue until their post-hearing brief.  The commissioner noted that apportionment was an affirmative defense that must be raised by a defendant.  The full 400 weeks of benefits was awarded.  5 months from arbitration to appeal decision.

Ahrens v. Earwood Family Properties, LLC, No. 5066611 (App. June 14, 2022) - The deputy concluded that defendants did not have a reasonable basis for refusing to pay weekly workers' compensation benefits to claimant and awarded a 50% penalty (Gerrish-Lampe). The commissioner affirms the decision without additional comment.  Penalty benefits of $4,051.85 were awarded.  6 months from arbitration to appeal decision.

Wilson v. Tama Paperboard, No. 5060394 (App. June 13, 2022) - Claimant was awarded PTD benefits and was also awarded a penalty of $1500 for approximately $4,000 that were untimely paid (Walsh). The commissioner affirms the penalty award, but concludes claimant had not reached MMI and that the award of PTD was therefore premature.  The commissioner finds that claimant's migraines, spondylosis and cervicalgia, cognitive and mental health issues and bilateral hand tremors were related to claimant's employment.  Vision problems and vestibular dysfunction were found not related to employment.  On the question of MMI, the commissioner finds that the opinion of Dr. Lazarre, the treating physician, was that claimant had not reached MMI for her headaches and should try additional medications.  The commissioner finds that claimant had not reached MMI based on the opinion of Dr. Lazarre.  The commissioner finds claimant is entitled to a running healing period.  The penalty, which was based on an unexplained failure of defendants to pay benefits, was found to be appropriate.  5 months from arbitration to appeal decision. 

Hoppe v. Menard, Inc., No. 1634100.01 (App. June 9, 2022) - Claimant was found to have suffered a meniscus injury and later a left total knee replacement related to her work injury.  A total of 110 weeks of permanency benefits was awarded. Claimant was awarded $2,477.84 in penalty benefits (Christenson). Claimant asserts that the permanency date for the benefits attributable to the knee replacement should have begun at the end of the time the original 4.4 weeks of benefits for the meniscus injury was awarded and urges a higher penalty.   The commissioner affirms without additional comment.  4 months from arbitration to appeal decision. 

Martinson v. The Law Offices of Timothy L. LaPointe, No. 20700217.01 (App. June 9, 2022) - The deputy concluded that claimant had failed to establish a work-related injury, finding that there was no legal or medical causation for her mental/mental claim (Palmer). The commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

Curtis v. Heiar Fencing and Supply, Inc., No. 1654627.01 (App. June 2, 2022) - Claimant was found to have sustained left hip, left knee, left ankle and low back and was awarded a 75% industrial disability (Walsh). On appeal, the commissioner reverses, finding that claimant did not demonstrate permanent impairments to his left hip, left knee and left ankle, but affirms the finding that claimant suffered a permanent impairment to the low back.  The commissioner finds that Dr. Kuhnlein's opinion supporting causation was not supported by the opinion of the treating doctor, Dr. Pierotti.  The commissioner found Dr. Pierotti's opinion, as supported by Dr. Broghammer, was that claimant's work injury was not a substantial factor in bringing about the need for claimant's hip surgery.  With respect to the left knee and left ankle injuries, these were alleged sequela of the hip injury and the commissioner finds that the medical evidence supported the conclusion that this was not work-related. The commissioner accepts the opinion of Dr. Kuhnlein that claimant sustained a lumbar strain, which caused a 3% whole person impairment.  

On the issue of industrial disability, the commissioner reduces the industrial award from 75% to 20%.  This was based on Dr. Kuhnlein's 30 pound lifting restrictions.  Claimant had not worked since the injury and the commissioner concludes that claimant was not motivated to work.  Temporary benefits were also restricted because claimant's hip surgery was not found to be related to a work injury and accordingly claimant's time off work following that surgery was not attributable to work.  5 months from arbitration to appeal decision.  

May 2022

Danilson  v. College Community School, No. 5067985.01 (App. May 31, 2022) - Claimant was found to have sustained a mental health injury and was awarded a running healing period.  Claimant's doctor did not believe he was at MMI and therefore permanency was not addressed (Grell). On appeal, the commissioner affirms without additional comment. 4 months from arbitration to appeal decision.

Lange v. C.R. England, No. 20700102.01 (App, May 26, 2022) - Claimant was found not to have sustained his burden of establishing a work-related injury (Humphrey). On appeal, the commissioner affirms without additional comment.  3 months from arbitration to appeal decision.  

Almendinger v. KAS Investment Co., Inc. (App. May 25, 2022) - This case involves penalty benefits in a number of areas.  The deputy found that the issue of claimant's rate was fairly debatable and declined to impose a penalty.  The deputy found defendants underpaid 17 weeks of benefits based on an improper assertion of credit and imposed a penalty of $657.31.  Penalty of $11,177.24 was imposed for issuing payment of $31,934.98 12 days after defendants dismissed their appeal.  A penalty of $545.93 was imposed for mailing of $54,593.42 in benefits a day late.   On rehearing, an underpayment of $18,249.88 representing 118 weeks of benefits was assessed a penalty of $9,124.94.  Late payment of 127.143 weeks of benefits totaling $114,287.50 resulted in the assessment of $5714.38 in penalties (Phillips).

On appeal, the commissioner's designee (Palmer) affirms the finding that the weekly rate was fairly debatable and no penalty was imposed.  The $9124.94 penalty was reversed.  The deputy finds that the late mailing of the check following the dismissal of the appeal did not merit a 35% penalty.  The penalty amount for this infraction was reduced to $1000.  The deputy also finds that a penalty of $4000 was appropriate for the delay in payment of benefits amounting to $61,859.20, which were paid 26 days late without providing any explanation for the delay.  The upshot of the decision is that defendants are required to pay $5000 in penalties, a significant reduction from the penalties imposed following hearing.  5 months from arbitration decision to appeal decision. 

Pinks v. Iowa Home Care, LLC (App. May 25, 2022) - The deputy concluded that claimant failed to demonstrate a permanent disability (Grell). The commissioner affirms without additional comment. 4 months from arbitration to appeal decision. 

De Lorto v. CRST Van Expedited, Inc., No. 1662945.01 (App. May 25, 2022) - In this action, the deputy found claimant suffered a temporary injury to his right knee, but denied permanency to the right knee, right shoulder, low back and right hip (Copley).  The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.  

Salazar v. Federal Express Corporation, No. 1664432.01, 1658294.01 (App. May 23, 2022) - On the first claim raised by claimant, the deputy concluded there had been no work-related injury.  The second claim resulted in a 12% functional award to the right shoulder (Humphrey).  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.

Tweeten v. Tweeten Farms, No. 20700058.01 (App. May 20, 2022) - In this otherwise unremarkable claim in which claimant was found to have established a right lateral epicondylitis and right deltoid injury, defendants argued (for the first time in their post-hearing brief) that claimant's claim was barred because of an earlier settlement with the Second Injury Fund.  The deputy rejected this claim, based both on the merits of the claim and the fact that defendants had waived the claim because it had not been raised at hearing (Christenson).  The commissioner affirms on the merits without additional comment and then affirms on the SIF/settlement issue with additional analysis.

The commissioner notes that in the settlement agreement between claimant and the Fund, claimant's attorney had specifically struck language from the compromise settlement documents indicating that there would be no hearing on the claim and that claimant was barred from future claims or benefits.  The Fund, however, was released from further liability.  Defendants asserted that the filing of the settlement agreement deprived the agency of jurisdiction over the claim.  The commissioner notes that Chapter 85 granted the commissioner jurisdiction to hear claims involving workers' compensation.  The cases defendant cited in support of their position, Heartland Express v. Gardner and Harvey's Casino v. Isenhour, were found to be inapposite.  Gardner involved section 85.71, which was not an issue in this case.  Isenhour involved a claimant working on a riverboat casino, which was addressed by the Jones Act.  Neither case was found to support defendants' position.  A third case cited by defendants involved an action for contribution or indemnification and was also found not to be relevant.  Finally, the commissioner found that because this was not a jurisdictional issue, the defense could be and was waived because defendants had not raised the issue until after the hearing.  Overall, the decision would seem to put to bed any argument that the agency loses jurisdiction over an action against the employer by settling with the Fund.  7 months from arbitration to appeal decision.   

Hines v. Tyson Foods, Inc., No. 20700462.01 (App. May 13, 2022) - Claimant was found to have sustained a cumulative work-related injury to his back and was awarded an 80% industrial disability.  The deputy concluded that claimant's injury was to be treated industrially rather than functionally under 85.34(2)(v) because defendant never offered claimant a specific position with specific earnings when claimant reached MMI. Claimant was also awarded penalty benefits (Palmer). Both parties appeal.  On appeal, the commissioner affirms without additional comment.  4 months from arbitration to appeal decision. 

Roth v. SIF, No. 5064881 (App. May 11, 2022) - Claimant was found to have sustained a first injury, but not a second injury because this injury was to the hip (Humphrey).  The commissioner affirms without additional comment. 4 months from arbitration to appeal decision.  

Thomas v. Archer Daniels Midland, No. 5064599.01 (App. May 10, 2022) - The deputy concluded that claimant's traumatic brain injury and fracture of cervical spine were sequelae of an earlier work injury to his right eye.  Claimant was found to have sustained a 45% industrial disability (Walsh).  On appeal, claimant was found to be entitled to healing period benefits for 14 months beginning in February of 2017, the date of the eye injury.  The commissioner, however, reversed the finding that the brain injury and cervical fracture were related to that injury.  

Claimant's eye injury, suffered at work, resulted in retinal detachment of the right eye and retinal tear of the right eye. After surgery, claimant was found to have a 79.5% impairment rating of the right eye.  Claimant's subsequent injuries occurred when he was on a pontoon boat, when he missed a step and fell forward, hitting his face and laying the back of his skull open. At hearing, claimant testified he did not remember anything about the accident.  There were apparently no witnesses to the accident.  The commissioner found there was no evidence that claimant's vision or depth perception problems caused the fall.  Because there was no evidence in the record that claimant tripped and fell, there was insufficient evidence to link the injuries to a fall caused by claimant's eye problems.  With respect to claimant's allegations of mental health problems as a sequeala, the commissioner concluded claimant had suffered only temporary impairment.  The commissioner also found that claimant's rate was too high and that defendants were entitled to credit for the overpayments for the healing period benefits that were paid.  6 months from arbitration to appeal decision.

Kruser v. Area Residential Care, No. 5061914.02 (App. May 6, 2022) - Claimant was found to have sustained an aggravation of a pre-existing cervical condition, which was found to be temporary.  A mental health condition was found as a sequela of the neck injury.  No permanency was awarded for this claim and a running award was denied.  A claim of basal cell carcinoma and GI tract problems were found not to be work-related (Christenson). On claimant's appeal, the decision of the deputy was affirmed.  5 months from arbitration to appeal decision. 

Benson v. John Deere Dubuque Works, No. 20014076.01 (App. May 6, 2022) - Claimant was found to have sustained bilateral carpal tunnel syndrome and was awarded 20 weeks of PPD benefits )Phillips).  The commissioner affirms without additional discussion.  4 months from arbitration to appeal decision.  

April 2022

Brown v. Naylor Seed Co., No. 5067998 (App. April 29, 2022) - Claimant was found to have suffered an aggravation of his underlying back condition and was awarded a functional impairment of 22% of the body as a whole, as claimant continued to work for the employer.  Penalty benefits were denied (Walsh). Defendants appeal.  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision. 

Pansegrau v. Tama Paperboard, No. 19700372.03 (App. April 29, 2022) - Claimanat was found to have a 16% impairment to the left lower extremity.  Alternate medical care was denied (Gerrish-Lampe).  The commissioner affirms.  On a separate issue, the commissioner finds that claimant was not entitled to payment for Dr. Tyler's IME charge, which had already been reimbursed in a separate case, which claimant conceded.  4 months from arbitration to appeal decision.  

Barry v. John Deere Dubuque Works, No. 21003269.01 (App. April 28, 2022) - Claimant was found to have sustained injuries to both shoulders resulting from a single accident.  The deputy awarded scheduled member benefits for each injury of 40 weeks of benefits.  Penalty was denied.  Credit for benefits paid was also denied (Phillips). Both parties appeal.  The commissioner affirms, although he notes that the injuries to both shoulders would normally be treated as an industrial loss (citing Carmer v. Nordstrom, No. 1656062.01).  In this case, however, because claimant earned more money following his injury and left his employment voluntarily, the injury was treated as scheduled under 85.34(2)(v).  The remainder of the findings were affirmed.  5 months from arbitration to appeal decision.  

Mull v. B&G Foods, No. 20004338.01 (App. April 27, 2022) - Claimant was found to have provided timely notice of her injury and was awarded a 40% industrial disability for a cumulative injury to her neck (Cleereman).  The commissioner affirms, but awards full compensation for claimant's IME, based on Kern. 9 months from arbitration to appeal decision.  

Hefley v. Fevold Farm Service, No. 20700470.01 (App. April 26, 2022) - The deputy decided that claimant failed to establish an employer-employee relationship and the case was dismissed (Grell). Claimant had argued that Fevold had fraudulently transferred its assets to ECF and that for purposes of the WC claim, the transfer should be voided.  The deputy rejected this claim. Claimant appeals and the commissioner affirms without any additional analysis.  7 months from arbitration to appeal decision.

Stein v. Lutheran Home for  the Aged Association-East, No. 1625461.01 (App. April 25, 2022) - Claimant was found to have sustained an 87% industrial disability.  Claimant was found to have waived the issue of entitlement to healing period benefits by failing to raise the issue at hearing (Gerrish-Lampe). On appeal, defendants allege that the deputy erred in failing to admit certain medical evidence and the deposition of a doctor.  The commissioner denies the application for presentation of additional medical evidence, as that motion had previously been denied.  The commissioner affirms that permanency commenced on 2/17/17 and finds that claimant waived the issue of entitlement to additional healing period of approximately two months.

In the appeal decision, the commissioner finds that claimant's argument that she was entitled to additional healing period benefits was waived because the hearing report did not raise healing period benefits as an issue. The commissioner finds that by signing the hearing report and failing to raise the HP issue at the beginning of the hearing, the issue was waived and cites numerous cases to this effect.  

An issue of credit was also presented, specifically whether certain payments were to be credited to healing period or permanency.  The question presented was whether claimant had an intermittent healing period.  The commissioner concludes that even though claimant's PPD benefits commenced on 2/17/17, she was entitled to intermittent healing period from 11/29/17 through 8/13/18, at which point claimant was found to have reached MMI.  

Claimant argued that she was PTD.  The commissioner noted that an FCE limiting claimant to between 10 and 15 points rarely and 5-10 pounds occasionally adequately assessed claimant's residual functional abilities.  He did not credit Dr. Bollier's opinion that claimant could perform light work.  Based on the restrictions, the commissioner disagreed that claimant suffered an 87% industrial disability.  He found both vocational reports to be problematic (Jayne vs. Merkwan).  Claimant was found to be somewhat intellectually challenged, having attended special education classes.  She was initially motivated to work, but had not worked since September of 2017.  He concludes claimant was not PTD and reduces industrial disability to 65%. 8 months from arbitration to appeal decision. 

Moran v. Prairie View Management, Inc., No. 20700374.01 (App. April 22, 2022) - The deputy concluded claimant had not refused suitable work and ordered payment of temporary benefits.   Claimant was also awarded a 14% functional disability of the right upper extremity.  Penalty benefits of 25% of all unpaid and underpaid benefits were awarded (Gerrish-Lampe).  Defendants appeal and claimant cross-appeals, claiming penalty should have been 50%.  The commissioner affirms without additional comment. 3 months from arbitration to appeal decision.  

West v. SIF, No. 20001935.01 (App. April 21, 2022) - Claimant's SIF claim was denied based on a finding that claimant's shoulder injury was not an enumerated injury under 85.64 and the injury did not extend to the arm (Gerrish-Lampe).  Claimant appeals and the commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Williams v. Archer Daniels Midland, No. 5067813.02 (App. April 18, 2022) - Claimant was found to have a shoulder injury and was provided an 11% award.  Penalty benefits of $10,000 were awarded for failure to pay benefits in a timely manner (Walsh). Both parties appeal, with claimant asserting constitutional issues.  The commissioner affirms the decision of the deputy and concludes claimant preserved his constitutional issues.  6 months from arbitration to appeal decision.

Dudley v. Dudley Brothers Co., Inc., No. 5067344.01 (App. April 13, 2022) - Claimant was found to be an independent contractor and not an employee and thus benefits were denied (Palmer).  The commissioner affirms without additional comment. 3 months from arbitration to appeal decision.  

Davis v. Gordon Food Service, Inc., No. 1652763.01 (App. April 13, 2022) - Claimant was denied benefits because he was found to be intoxicated when the work injury occurred.  Claimant was found not to have overcome the presumption under 85.16(2) that the intoxication was a substantial factor in causing the work injury (Palmer).  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Loew v. Menard, Inc., No. 1652966.01, 20700736.01 (App. April 12, 2022) - Claimant was found to have sustained an 8% impairment as a result of a back injury.  The deputy concluded that because claimant had been awarded a 30% industrial disability for a previous work injury, and because the functional impairment for the earlier injury and the current injury was 28%, he was not entitled to additional benefits (Palmer).  This was based on an analysis of 85.34(7) indicating that the "plain meaning"of the statute compelled the application of the credit.  The commissioner affirms the decision without additional discussion.  4 months from arbitration to appeal decision.  

Bynum v. Kraft Heinz Co., No. 20005112.01 (App. April 7, 2022) - Claimant was found to be entitled to healing period benefits as well as a running healing period.  A notice defense was rejected and claimant was found to be credible (Palmer). The commissioner affirms without additional discussion, other than to defer to the credibility findings of the deputy. 6 Months from arbitration to appeal decision. 

Stonehouse v. NCI/Cornerstone Building Brands, NO. 19006810.01 (App. April 1, 2022) - Claimant was found to have sustained a 60% industrial award.  Defendants appeal, arguing that the award was too high.  The commissioner affirms without additional comment. 6 months from arbitration to appeal decision.

March 2022

Camp v. Durham School Services, No. 5066058.01 (App. March 31, 2022) - Claimant was found to have sustained a permanent total disability as a result of his work injury, which involved back injuries and surgeries to his back and heart.  The deputy ordered payment for these surgeries (Cleereman). The commissioner affirms.  The commissioner addresses the payment for the heart surgery, noting that the heart conditions were not related to the underlying back injury, but that the surgery was necessary to treat the back condition.  The commissioner notes that the agency has "a long history of precedents that require an employer to treat a preexisting non-work related condition to the extent that doing so is necessary in order to effectively treat a work-related condition."  The commissioner notes that if it is necessary to treat a pre-existing condition in order to treat the work condition, defendants are responsible for payment.  The decision notes that agency precedent on this issue has never been addressed beyond the agency.  The decision of the deputy is affirmed on all points.  7 months from arbitration to appeal decision.

Walker v. Whirlpool Corp., No. 1653739.01 (App. March 31, 2022) - Claimant suffered an injury which was treated functionally as she had returned to work after the injury and earned more than she had been earning as of the time of the injury.  She was provided a 34% functional impairment or 170 weeks of benefits (Grell).  Defendants appeal and the commissioner affirms without additional comment other than to defer to the deputy's credibility findings.  4 months from arbitration to appeal decision.

Dunbar v. Menard, Inc., No. 20008907.02, 1657325.02 (App. March 30, 2022) - Claimant was found to have an injury to the right shoulder and was provided a 19% award under 85.34(2)(n) (Copley). Claimant argues that this injury extended into the body as a whole.  The commissioner affirms the decision of the deputy without additional comment.  4 months from arbitration to appeal decision.  

Stephen v. A Touch of Class Banquet and Convention Center, No. 1588289.01 (App. March 28, 2022) - Claimant was found to have sustained a 50% industrial loss and defendants were found liable for a $5000 penalty for untimely payment of healing period benefits (Grell). Defendants appeal and claimant cross-appeals, asserting that the penalty award should have been 50% of the past due healing period benefits.  The commissioner affirms.  He defers to the credibility findings of the deputy.  On the industrial claim, defendants argued that claimant had a lengthy history of treating with chiropractors for his back problems. The commissioner finds that although the treating doctors released claimant to work without restrictions, this was "not in accord with claimant's functioning."  In addition, Dr. Bollier did not correctly rate a shoulder injury, not assigning impairment for a distal clavicle resection.  Although defendants argued that claimant's outdoor activities were intact, the commissioner finds that claimant was extremely active before the injury, riding thousands on miles on his bicycle per year and skiing double black runs in Colorado.  He could not participate in these activities to anywhere near the same extent after the injury.  Furthermore, claimant testified he had sold his catering business as a result of the injuries he sustained.  The 50% industrial award was affirmed.  6 months from arbitration to appeal decision.   

Haney v. Arconic, Inc., No. 5067358 (App. March 25, 2022) - In this hearing loss and tinnitus case, the deputy found that claimant had timely filed his claim, but concluded the hearing loss claim was not ripe for adjudication.  No permanency was found with respect to claimant's tinnitus.  Despite finding that claimant's hearing loss claim was not ripe, reimbursement for an audiology consult and payment for hearing aids was ordered (Humphrey). Both parties appeal.  The commissioner concludes that claimant was not transferred by the employer from excessive noise exposure under 85B.8(a).  Instead, the commissioner found that claimant elected to bid on a new position and received the position due to the seniority system.  Because claimant was not transferred by the employer and was still working for the employer, the claim was found not to be ripe for adjudication and it was improper to determine whether causation existed.  On the tinnitus claim, the commissioner found Dr. Zlab more persuasive than Dr. Tyler and concluded that claimant's tinnitus was not caused by employment.  Finally, the commissioner reversed the finding that defendants were responsible for claimant's hearing aids, premised on the fact that the hearing loss claim was not ripe for adjudication and that the tinnitus was not causally related to employment.  6 months from arbitration to appeal decision.

Workman v. W.W. Transport, Inc., No. 1626728.01 (App. March 24, 2022) - Claimant was found not to have established a permanent impairment.  Claimant was found to be entitled to payment for an IME (Christenson). On appeal, the commissioner affirms without additional comment. 6 months from arbitration to appeal decision.  

Smith v. Barr-Nunn Transportation, No. 20009501.01 (App. March 24, 2022) - Claimant was found to have a 1% impairment of the left lower extremity.  Claimant was found to have reached MMI and was found not to be entitled to a running healing period.  Penalty benefits were awarded (Cleereman). On appeal, the commissioner affirms with no further discussion.  6 months from arbitration to appeal decision.  

Kahler v. Menard, Inc., No. 1629501.01 (App. March 17, 2022) - Claimant was found to have sustained a 30% industrial disability.  Penalty benefits of $500 for underpayment of the rate were also awarded (Walsh). The commissioner affirms the award of benefits, including the $500 penalty.  The commissioner also excludes from payment a month's worth of medical mileage.  5 months from arbitration to appeal decision.

Mohamed v. The Sheraton, LLC, No. 20700416.01 (App. March 16, 2022) - Claimant was awarded healing period benefits, but permanency was not awarded (Phillips). On appeal, the commissioner's designee (Palmer) affirmed the arbitration decision, giving deference to the deputy's credibility findings.  The appeal decision corrected the reference to healing period benefits and denominated them as TTD benefits. 5 months from arbitration to appeal decision.  

Miller v. Lennox International, Inc., No. 5044858.01 (App. March 10, 2022) - Claimant was originally found eligible for a 10% industrial disability as a result of injuries to his cervical spine, right should and mental health sequela.  Claimant filed for review-reopening and was found to have established a 75% industrial disability.  On appeal, this was reduced to 40%.  A second review-reopening petition was filed and claimant was found not to have established a change in his physical condition. Payment for claimant's IME was denied (Gerrish-Lampe).  On appeal, the commissioner's designee (Palmer) affirms the finding that claimant failed to prove a change in physical condition and also finds that claimant was not entitled to IME costs. On the substantive issue, the deputy finds that although claimant pointed to changes in claimant's range of motion in support of his assertion that there had been a worsening of claimant's physical condition, earlier reports of claimant's range of motion had not been submitted as exhibits.  Because the evidence presented did not establish a change, review-reopening was denied.  The deputy also found that claimant's treating physician's opinion was not persuasive because of a lack of objective measurements.  The deputy also finds that claimant "remains unmotivated to work," as he was at the time of the first review-reopening decision. 4 months from arbitration to appeal decision. 

Moyer v. Interstate Power & Light Co., No. 5047944.01 (App. March 9, 2022) - Claimant was originally found eligible for a 15% impairment to the right lower extremity.  Knee, hip and back claims were denied.  On review-reopening, claimant argued that he was PTD based on a change of condition to his right foot, knee, leg, right hip, low back and mental health.  The deputy dismissed defendants' claims of issue preclusion and res judicata and found that as a result of the change in claimant's physical and mental conditions, he was PTD (Palmer).  The commissioner affirms the review-reopening decision without further comment.  5 months from arbitration to appeal decision.  

Kern v. Fenchel, Doster & Buck, PLC, No. 5062419 (Remand March 3, 2022) - In this case, the Court of Appeals concluded that in determining whether payment for an IME was permissible, a finding by defendants' doctor that an injury was not causally connected to employment was sufficient to trigger section 85.39.  The case was remanded to the agency and on remand, the commissioner awards payment for claimant's IME.  The commissioner also finds, in accordance with the decision of the Court of Appeals, that in determining costs to be paid for a doctor's report under 876 IAC 4.33(6), both the costs of the review and report are payable.  Although it was not necessary to reach this issue, the decision affirms that under either mechanism, the entire costs of the IME were payable.

Roldan v. Smithfield Foods, Inc., No. 19005723.01 (App. March 3, 2022) - Claimant was found to have sustained a cumulative work injury to his neck and shoulder.  A notice defense was denied (Gerrish-Lampe).  Because claimant was earning higher wages at the time of the hearing, industrial consideration was found not to be appropriate under 85.34(2)(v).  Claimant was found to have suffered a 10% functional impairment.  On appeal, the commissioner affirms the compensability of the claim, but reduces the functional rating to 5%, based on Dr. Bansal's rating, which was found to be most persuasive (the 10% rating of the treating physician was rejected, as it was found to be "too vague."  The commissioner also found, based on Kern v. Fenchel, that the IME was payable, as defendants' doctor had concluded that claimant's injury was not work-related and that triggered payment for the IME. 7 months from arbitration to appeal decision.  

Pire-Justafre v. Tyson Fresh Meats, No. 1665078.01 (App. March 3, 2022) - Claimant was found to have sustained a 15% industrial disability as well as healing period benefits (Palmer).  Defendants appeal, arguing that claimant's industrial disability should be limited to 5% and that healing period benefits were not payable.  The commissioner affirms, noting that considerable deference was given to the credibility determinations of the deputy.  6 months from arbitration to appeal decision.  

February 2022

Ivester v. XPO Logistics, Nos. 5064976.01, 5064977.01 (App. Feb. 23, 2022) - In the first case, claimant was found to have a 14% shoulder injury.  In the second cause, claimant was found to have established low back, lower extremity and right sided symptoms and was found to be permanently and totally disabled. Claimant was also granted alternate medical care (Cleereman). The commissioner affirms the arbitration decision without additional analysis.  4 months from arbitration to appeal decision.  

Spence v. N and L Parkison Trucking, Nos. 20700248.01, 21007909.01, 20700389.01 (App. Feb. 16, 2022) - Claimant was found not to be credible and the deputy concluded claimant had not established a work injury (Palmer). The commissioner affirmed without additional comment, other than to note that the deputy’s credibility determinations were given deference.  5 months from arbitration to appeal decision.

Markley v. J. Rettenmaier USA LP, No. 1657411.01 (App. Feb. 14, 2022) - Claimant was found to have sustained a 16% injury to the right shoulder, treated as a scheduled member.  Claimant was awarded $2750 in penalty benefits for an unreasonable underpayment of weekly benefits (Walsh).  The commissioner affirms the decision of the deputy without further comment.  4 months from arbitration to appeal decision.  

Hofer v. City of Indianola, No. 20700341.01 (App. Feb. 11, 2022) - Claimant's petition was dismissed by the deputy, who concluded that the injury did not arise out of employment (Phillips). The arbitration decision concludes that neither the treating physician nor the IME report (Kuhnlein) supported a link between claimant's condition and his work.  The commissioner affirms the decision without additional comment.  5 months from arbitration to appeal decision.  

Mendez-Marquez v. Cramer and Associates, No. 5058544.01 (App. Feb. 8, 2022) - Claimant was found not to have demonstrated a CRPS sequela from a left upper extremity injury for a pre- 7/1/19 injury.  However, he was awarded a 85% functional loss of the arm (Gerrish-Lampe). Defendants appeal.  The commissioner affirms the finding that claimant did not prove CRPS, but reduces the functional award to 55% based on claimant's significant restrictions.  Notably, the only rating referenced in the opinion was a 8% rating by the treating physician (the arbitration decision references a 15% upper extremity rating from Dr. Bansal).  4 months from arbitration to appeal decision.  

Freiburger v. John Deere Dubuque Works, No. 5066626.01 (App. Feb. 7, 2022) - Claimant was found to have developed PTSD as a sequella of a 2015 work injury, but this condition was not found to be permanent.  A 5% right leg impairment was found and defendants were found liable for $1042.03 in penalty benefits for late payment of PPD (Christenson). The commissioner affirms the findings with respect to PTSD.  Although claimant's PTSD was found to be "chronic" by a licensed mental health counselor, but because claimant never followed up with the LMHC or Dr. Mittauer about the permanency of the impairment, the commissioner affirmed the earlier decision.  The commissioner increased the penalty for late payment of PPD to $1100. The award of Dr. Delbridge's IME was affirmed.  7 months from arbitration to appeal decision.  

Severin v. SIF, No. 1521101.01 (App. Feb. 3, 2022) - Claimant was found to have failed to demonstrate a qualifying first injury and the claim against the fund was dismissed (Christenson). On appeal, the commissioner affirms without additional comment.  4 months from arbitration to appeal decision.  

January 2022

Carson v. Siemens and SIF, No. 1642424.01, 1653871.01 (App. Jan. 31, 2022) - The parties stipulated that claimant sustained a 17% impairment of the left foot, 2% of the right lower extremity and 1% of the left lower extremity.  The parties also stipulated to a first qualifying injury.  Following hearing, the deputy found that claimant had not sustained a permanent back injury as a sequelae of the other injuries.  Claimant was awarded benefits for the scheduled injuries against the employer and a 60% impairment against the Fund.  Claimant appeals, as does the Fund.  On appeal, the commissioner affirms the finding that claimant suffered a sequelae back injury, but finds that the injury was a permanent one. The commissioner based this finding on the opinions of Dr. Kuhnlein and of Dr. King, who had been a treating physician.  The opinions of Dr. Schmitz, who had not examined claimant, were rejected.  Claimant was found to have a 75% industrial disability, based on claimant's disabilities (claimant was receiving social security for these injuries at the time of the hearing) but did not find him PTD, based on an alleged lack of motivation to work and the lack of vocational evidence supporting permanent total disability.  6 months from arbitration to appeal decision.  

Hatayama v. Select Specialty Hospital, No. 5068839 (App. Jan. 28, 2022) - In the arbitration decision, the deputy concluded that claimant failed to meet her burden of proving that she had suffered a work-related injury.  The deputy also found that remaining issues, including authorized medical care, were moot because of this finding (Gerrish-Lampe). On appeal, the commissioner affirms the finding that claimant had not met her burden of proof.  On the medical issue, however, the commissioner reverses. The commissioner notes that the medical expenses in question were authorized by the employer and that care was directed by the employer.  The commissioner finds that section 85.27(4) requires the employer to hold claimant harmless for any care which was chosen by the employer.  Citing Ramirez-Trujillo v. Quality Egg and Selective Ins. Co., 878 N.W.2d 759 (Iowa 2016), which held that an "employer who authorizes care is responsible for the cost of care" until claimant is notified that care is no longer authorized, the commissioner reverses the deputy's decision and finds that the employer was responsible for the cost of the authorized care.  6 months from arbitration to appeal decision.  

Anderson v. Bridgestone Americas and SIF, No. 5067475 (App. Jan. 25, 2022) - Claimant was found to have suffered a right arm and right shoulder injury and a 50% industrial disability was awarded although the injury occurred on 10/31/18.  The arbitration decision concluded that because both the arm and shoulder injuries were scheduled members arising from the same incident, neither section 85.34(2)(n) was not the applicable section.  Subsection (t) was also not appropriate, as claimant had not suffered an injury to "both hands, both arms, etc." The case was therefore found to be compensable under subsection (2)(v), the catchall provision that applies an industrial disability analysis (Pals).  The claim against the Fund was dismissed.  The employer appeals and claimant cross-appealed against the Fund, although the cross-appeal was later dismissed. Claimant also urges he was PTD. The commissioner affirms without  additional comment.  5 months from arbitration to appeal decision.

Rife v. P.M. Lattner Mfg. Co., No. 1652412.02 (App. Jan. 21, 2022) - Claimant was found to have a shoulder injury of 19%, limited to the schedule.  The deputy also found that the employer was not entitled to a credit against PPD for a prior award of industrial disability.  The deputy also concluded claimant did not refuse an offer of suitable work and awarded healing period benefits (Lunn).  Defendant appeals.  On the the credit issue, the commissioner finds that "not only is there no mechanism in the statute for apportioning past compensation for industrial disability against compensation for a scheduled member, . . . but the statute, as amended, does not support such an apportionment."  The commissioner notes that section 85.34(7) only allowed a credit "to the extent that the preexisting disability has already been compensated under this chapter." The commissioner notes, unremarkably that the comparison between a scheduled member and industrial injury is an apples to oranges comparison.  Less unremarkably, the commissioner indicates his agreement with the deputy that the statute arguably allows for for a credit of a scheduled member against a scheduled member, but indicates that the defendants failed to prove the earlier degree of scheduled disability.  The remainder of the arbitration decision was affirmed.  5 months from arbitration to appeal decision.  

Alvarez v. Daybreak Foods, Inc., No. 19700501.01 (App. Jan. 13, 2022) - Claimant was found to have temporary injuries to her left shoulder and right hip, but no permanent injuries to these areas.  No injuries were found with respect to her neck and back (Cleereman). Without further comment, the arbitration decision is affirmed by the commissioner.  4 months from arbitration to appeal decision.  

Zalaznik v. John Deere Dubuque Works, Nos. 5066386, 5067224 (App. Jan. 11, 2022) - Claimant was found to have sustained a 40% industrial disability for a 9/5/17 work injury and a 50% industrial disability for a 5/15/18 injury. Defendant was given credit for work injuries in 2012 and 2013.  50 weeks of benefits were awarded for the 2017 injury and 50 weeks for the 2018 injury (Christenson).  On appeal, claimant argues that compensation for both dates of injury should be based only upon the functional impairment since he returned to work with defendant and continued to receive the same or greater salary, wages or earnings.  Claimant also argues that no credit is due.  Defendant agrees with claimant's arguments.  6 months from arbitration to appeal decision. 

On appeal, the commissioner agrees with claimant's position and finds that claimant's compensation is limited to his functional disability.  This results in claimant receiving 95 weeks of PPD benefits for the 2017 injury and 60 weeks for the 2018 injury.  Since both parties agreed that apportionment was not applicable, the commissioner does not address that in the decision.  

Butcher v. Advance Services, Inc., No. 5068391.01 (App. Jan. 10, 2022) - Claimant was found entitled to a running award of healing period benefits, found that claimant's lumbar fusion surgery was related to the work injury and awarded medical expenses and alternate medical care (Phillips). On appeal, the commissioner affirms the arbitration decision without further comment.  4 months from arbitration to appeal decision. 

Schoenberger v. Zephyr Aluminum Products, No. 1642927.02 (App. Jan. 5, 2022) - The arbitration decision concluded that claimant had suffered a scheduled shoulder injury and awarded 19% benefits of the left shoulder.  Penalty benefits were denied.  Certain constitutional challenges were not reached in the arbitration proceeding (Christenson). The commissioner affirms the arbitration decision on all counts with no further discussion, with the constitutional issues preserved for judicial review.  5 months from arbitration to appeal decision.