Court of Appeals Affirms Commissioner's Finding of Cumulative Injury, Temporary Benefits and Costs

 Central Iowa Fencing v. Hays, No. 21-1530 (Iowa App. July 20, 2022)

Claimant suffered an injury at work which resulted in his physician restricting him from returning to work.  Because of this restriction, the employer would not place claimant back to work, at the same time denying his workers' compensation claim.  Claimant applied for and was granted benefits because the employer had no work available or was not willing to accommodate work restrictions.  The deputy ultimately found that claimant had suffered a cumulative low back injury.  Because claimant had not reached MMI, only temporary benefits were awarded.  The commissioner affirmed this decision.

On judicial review, the district court found that there was substantial evidence to support the decision of the commissioner and affirmed that decision.

The Court of Appeals first dismisses defendants' argument that because claimant did not specifically plead a cumulative injury, the agency could not have found such an injury.  The court notes that the petition filed in a workers' compensation claim does not require claimant to state whether an injury was acute or cumulative. The court found that the petition adequately informed the employer of the possibility that the injury could have been cumulative. The court found that substantial evidence supported the commissioner's finding of a cumulative injury.  

The employer also argued that claimant was not entitled to temporary benefits because he refused suitable work and voluntarily quit.  The evidence demonstrated that claimant was never offered work in writing.  Defendants argue that section 85.33(3) does not require a written offer of suitable work.  The court  notes that section 85.33(3)(b) specifically requires that an offer of work be in writing.  The court finds that the statute is unambiguous on this point ("the employer shall communicate an offer of temporary work to the employee in writing").  The court makes clear that an offer of suitable work must be in writing, which ensures that the employer has the opportunity to modify duties if ne necessary for work to be suitable.  The court goes on to note that although claimant found other work, he was making less income, allowing him to be eligible for temporary partial disability benefits, as the commissioner found.  

Finally, the defendants argued that expert witness reports should be capped at $150 per day under section 622.72 of the Code.  The employer asked that John Deere Dubuque Works v. Caven, 804 N.W.2d 297, 301 (Iowa App. 2011) be overturned on this point. The court finds that the reasoning in Caven remained convincing and that section 86.40 allowed for costs to be determined in the discretion of the commissioner.