2023 Workers' Compensation Appeal Decisions

 2023 Workers' Compensation Appeal Decisions

December 2023

LaGuerre v. JBS USA Holdings, Inc., No. 21012994.01 (App. Dec. 29. 2023) - The deputy concluded claimant had suffered an injury to his right arm with a sequella injury to the right leg. The injuries were skin injuries. The deputy found that defendants were responsible for the injury under 85.34(2)(t) as a functional injury, not as industrial disability. and awarded 35 weeks of benefits (Lunn). On appeal, claimant argues that the injury should have been considered industrially under 85.34(2)(v) and should be awarded a 65% industrial disability.  The commissioner affirms the decision of the deputy without providing additional analysis. 5 months from arbitration to appeal decision.

Antunez-Erazo v. Brand FX Body Co., Nos. 21012704.01, 21008748.01 (App. Dec. 28, 2023) - In these two actions, the deputy concluded that claimant had suffered a low back injury, but did not find permanency in the first action and also concluded claimant had not suffered a permanent impairment in the second action (Gerrish-Lampe). The parties agreed that healing period benefits should have been awarded and the commissioner revises the deputy's decision to award payment of those benefits.  The commissioner also affirms the decisions that claimant sustained no permanency.  

The commissioner also addresses an issue of payment of claimant's IME.  The deputy had awarded half of the IME fee.  Claimant asserts that the entire IME should be paid.  Defendants argue that since claimant's IME occurred on the same date ass defendants' IME and defendants' IME was not authored until a week after claimant's IME, the IME was not compensable under 85.39.  Although the commissioner noted that defendants' argument was "technical and procedural," he concluded that 85.39 did not allow for payment of the IME because "claimant could not be dissatisfied with the evaluation arranged by the employer a week before that opinion was issued."  The commissioner does award $1750 of Dr. Bansal's IME as a cost under 4.33(6), given the length and detailed nature of that report.  4 months from arbitration to appeal decision.

English v. City of Des Moines, No. 20701000.02 (App. Dec. 20, 2023) - In this action, the deputy concluded that claimant had not established a permanent impairment.  Payment for an IME was denied (Gerrish-Lampe). On appeal, the commissioner affirms without additional analysis. 4 months from arbitration to appeal decision.

 Hughes v. IMT Mutual Holding Co., No. 22003564.01 (App. Dec. 18, 2023) - Claimant was found to have suffered deep vein thrombosis, but was found not to be entitled to either temporary or permanent disability benefits (Phillips). Claimant appeals the finding that claimant did not demonstrate permanent disability.  On appeal, the commissioner reverses and concludes that Dr. Kuhnlein's 16% impairment rating was appropriate.  The commissioner found Dr. Kuhnlein's rating, which had been rejected by the deputy, to be thoughtful, consistent with and pursuant to the AMA Guides.  The commissioner does not reach claimant's argument that the deputy utilized evidence outside the evidentiary record and improperly utilized agency expertise because Dr. Kuhnlein's rating was found to be appropriate. Claimant's claim for penalty benefits was denied as the commissioner concluded defendants had conducted a reasonable investigation and had also convinced the deputy that no permanency was owed.  80 weeks of benefits were awarded to claimant. 4 months from arbitration to appeal decision.

Cortez v. Tyson Foods, Inc., Nos. 20700573.02, 20000903.02 (App. Dec. 13, 2023) - Claimant was found to be permanently and totally disabled in her review-reopening/85.34(2)(v) petition.  The deputy concluded that under either approach, claimant was entitled to permanent total disability.  The deputy also concluded that the full responsibility rule remained in force after the 2017 amendments (Walsh). Defendants appeal and on appeal the commissioner reduces the PTD award to 80% and finds that use of the odd lot doctrine was erroneous.

As a result of her occupational asthma, claimant was unable to continue working at her previous job.  The original claim was settled on July 6, 2021 and claimant was terminated by the employer on July 21, 2021, which resulted in the filing of the review-reopening claim and a claim under 85.34(2)(v), as claimant's original claim had been on a functional basis and was now to be considered industrially since claimant no longer worked for the employer.   The commissioner concluded that there was no reasonable likelihood that claimant would ever return to work for defendant.  The commissioner disclaims use of the odd lot doctrine and finds that the deputy did not use the odd lot doctrine in reaching the decision. Using the normal principles for determining disability, the commissioner notes that claimant was 55 with a third grade education in Guatemala, with limited English proficiency.  She only retained the ability to lifting up to 15 pounds and could not perform her former job.  Nonetheless, the commissioner concludes that because claimant had not attempted to find other work and had not presented vocational evidence, she had only an 80% industrial disability. 7 months from arbitration to appeal decision.

November 2023

Garrigus v. A.Y. McDonald Industries, Inc., No. 21701057.01 (App. Nov. 28, 2023) - Claimant was found not to have carried his burden of demonstrating a work-related injury (Palmer). The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.

Gree v. ABF Freight Systems, No. 21001044.01 (App. Nov. 17, 2023) - Claimant was found to have suffered work-related back and leg injuries.  Claimant was found to be entitled to alternate medical care and a rate of $866.33 was adopted. The claim had originally been pursued under Missouri law and claimant's rate under Iowa law was slightly lower than that under Missouri law, so defendants were found entitled to credit for the overpayment of benefits.  Termporary benefits from 10/23/19 through 12/21/19 and 2/24/20 through 6/24/20 were awarded (Rutherford).  Defendants appeal and the commissioner affirms the arbitration decision without additional analysis. 5 months from arbitration to appeal decision.

Markezich v. Finish Line, Inc., No. 21010618.01 (App. Nov. 7, 2023) - Claimant was found to have sustained a knee injury and was awarded 2% disability of the right lower extremity.  Penalty benefits in the amount of $3,468.98 were awarded for defendants unreasonable actions in denying temporary and permanency benefits (Christenson). The commissioner affirms without additional analysis. 4 months from arbitration to appeal decision.

Sowder v. MJL Delivery, Inc., No. 20004530.03 (App. Nov. 1, 2023) - The deputy concluded claimant was not a credible witness and limited recovery to a temporary disability of the left leg.  Permanent disability for claimant's left leg, right leg, low back and body as a whole was denied.  IME costs were also denied (Palmer).  The commissioner affirmed, giving deference to the deputy's credibility determinations.  No further analysis was provided. 4 months from arbitration to appeal decision.

October 2023

Medhaug v. Burke Corporation, No. 21013184.01 (App. Oct. 31, 2023) - Claimant was found to have sustained a shoulder injury and was also found to have reported his injury in a timely manner.  Claimant was found credible by the deputy.  No permanency was awarded as claimant was not at MMI as of the time of hearing.  Medical expenses and costs were awarded to claimant.  The commissioner affirms the decision without additional analysis. 5 months from arbitration to appeal decision.

Shadlow v Love's Travel Stops, No. 21001168.01 (App. Oct. 26, 2023) - Claimant was found to have established odd lot and permanent total disability benefits were awarded (Walsh). The commissioner reduces the award to 375 weeks of benefits.  Defendants had argued that the 2017 amendments had eliminated the fresh start rule and that claimant's benefits should be apportioned from a prior military disability.  The commissioner notes the existence of the fresh start rule and its application in Roberts Dairy v. Billick.  The commissioner concludes that the language included in 85.34(7) ("the employer is not liable for compensating an employee's preexisting disability that arose out of an in the course of employment with a different employer") had not changed since Roberts and since Roberts applied the fresh start rule, the "inclsuion of the same language in the 2017 statutory enactment does not eliminate the modified fresh-start rule."  The commissioner, however, disagreed with the use of the odd-lot rule.  Although claimant demonstrated a prima facie case as an odd lot employee, defendants produced vocational expert testimony that documented jobs claimant could perform.  In addition, claimant secured employment with a new employer after the injury.  Although claimant ultimately quit this job, the "ability to obtain subsequent employment as well as the defendants' vocational opinion bot constitute evidence that rebuts claimant's odd-lot assertion and satisfies defendants' burden of production."  Claimant was provided an 8% impairment rating, with sedentary to light work restrictions and the commissioner finds this justified a 75% award rather than permanent total disability. 4 months from arbitration to appeal decision.

Wall v. City of Des Moines, No. 21701301.01 (App. Oct. 24, 2023) - Claimant was found to have sustained a cumulative injury that manifested in 2014, but was not discovered until Octobrer 2, 2021.  Claimant was found to have provided notice in a timely manner given the date of discovery.  Claimant was awarded permanent partial disability benefits and penalty benefits in the amount of 25% of all unpaid benefits (Gerrish-Lampe).  The commissioner affirms.

The commissioner accepts the deputy's finding that the injury manifested in 2014.  The commissioner noted that although this was the date of injury under the discovery rule the statute of limitations did not begin to run until the claimant realizes the injury was serious enough  to have a permanent adverse impact on employment.  Claimant quit work on October 2, 2021 and was provided a definitive diagnosis of the injury on October 5 of that year. Claimant filed his petition less than 90 days after the October 2 date.  On the penalty question, although defendant asserted it had a reasonable basis for the denial of benefits, it did not establish that an investigation was conducted, that the denial was based on the outcome of the investigation or that it contemporaneously conveyed the basis of denial.  A former acting supervisor of claimant's testified that he had actual notice of the injury, yet no investigation was demonstrated. The penalty award was affirmed. 6 months from arbitration to appeal decision. 

Hernandez Garcia v. Metro Salvage Pool, Inc., No. 21007693.01 (App. Oct. 17, 2023) - Claimant was found not to be permanently and totally disabled and was awarded a 30% industrial disability (Grell). Claimant appeals and the commissioner affirms the award without additional analysis. 4 months from arbitration to  appeal decision.  

Murphy v. Ottumwa Regional Health Center, No. 21006375.01 (App. Oct. 16, 2023) - Claimant's injury was found to be the result of an unexplained fall from a level surface and benefits were denied (Christenson).  Claimant appeals and the commissioner affirms.  The commissioner specifically rejects claimant's argument that the deputy applied the wrong legal burden.  Claimant had argued that under 85.61(7)(c), the defense to an unexplained fall was an affirmative defense for which defendants had the burden of proof.  The commissioner finds that the burden remained on claimant and that 85.61(7)(c) was simply a definitional section.  Even if the was on defendants, however, the commissioner concluded that defendants had made their burden. 6 months from arbitration to appeal decision.  

Derifield v. John Deere Waterloo Works, No. 21701314.01 (App. Oct. 6, 2023) - Claimant was found to have sustained a right shoulder injury, but not an injury that extended into the right arm.  A functional rating of 2% of the shoulder was provided (Grell).  On appeal, the commissioner concludes that the injury did not extend beyond the right shoulder into the arm and affirms the decision of the deputy without additional analysis. 4 months from arbitration to appeal decision.

 Eichmeyer v. Nordstrom, Inc., No. 21700779.01 (App. Oct. 4, 2023) - Claimant was found to have sustained injuries to her left arm and left shoulder.  The deputy considered the case industrially under 85.34(2)(v) and awarded claimant a 20% industrial disability (Walsh).  Defendants argue that the surgery performed on claimant's left shoulder was the same surgery performed in Chavez and argues that the case should be considered as only a shoulder injury.  The commissioner affirms, with additional analysis.

The commissioner concludes that the injury and surgery are similar to those in Chavez, but notes that the Supreme Court's decision in Chavez indicated that the injury was limited to the shoulder because "nothing in the record indicates Chavez suffered a permanent impairment to her right arm apart from the shoulder injury."  In this case, Dr. Taylor found a specific injury to the arm (limited to 1%) which meant that claimant had suffered injury to both the shoulder and the arm.  That conclusion was unrebutted in the record and was sufficient to bring the case under the purview of 85.34(2)(v), since the combination of injuries in this case was not included in 85.34(a) - (u) and therefore fell within the catch-all provision of (2)(v). 4 months from arbitration to appeal decision.

September 2023

Brown v. Fort Dodge Community School District and SIF, No. 21000859.01 (App. Sept. 27, 2023) - The deputy concluded claimant had not proven a work-related injury to the right knee (the second injury) and dismissed claimant's case against both defendants.  For good measure, the deputy concluded claimant had not demonstrated a first injury (Pals).  On appeal, the commissioner affirms.  The commissioner finds that Dr. Beecher's opinion giving a permanent impairment could not be relied on because it was not clear he utilized the AMA Guides.  The commissioner also finds fault in the opinion of Dr. Stoken, as it did not discuss the significance of a preexisting right knee condition, for which claimant sought treatment only four days before the work injury.  The commissioner found that Dr. Stoken's opinion was not grounded in accurate facts or an accurate history.  It was also found that Dr. Stoken's rating was "invalid" under the AMA Guides.  5 months from arbitration to appeal decision.  

Damjanovic v. Hawkeye Mold and Design Co., No. 1666137.02 (App. Sept. 20, 2023) - Claimant's injury was found to be limited to the left arm, for which a 24% award was provided.  Healing period benefits were awarded from the period of August 5 to August 19, 2019 and from November 29, 2020 through April 19, 2022, but denied in the period from August 27, 2019 through November 28, 2020 (Phillips). Claimant appeals and the commissioner affirms the arbitration decision without additional comment. 5 months from arbitration to appeal decision. 

Rema v. Transco Railway Products, Inc., No. 21001855.01, 21012426.01 (App. Sept. 12, 2023) - Claimant was found to have suffered a left shoulder injury and a later right shoulder injury as a sequela of the left shoulder injury.  Claimant was found to have sustained an 8% functional loss to the left shoulder and a 15% functional loss of the right shoulder (Walsh). Defendants appeal and the commissioner reverses the finding of a right shoulder injury.  The commissioner finds that claimant had suffered an earlier right shoulder injury which had resulted in the assessment of permanent restrictions, which resulted in claimant being assigned to a lighter duty job.  The commissioner also credited defendants' physicians, who had concluded that claimant's right shoulder injury was related to the original right shoulder injury and not the left shoulder injury.  The commissioner also discounted Dr. Manshadi's report, finding that the report provided no discussion of the factors that contributed to the injury.  With respect to the left shoulder injury, the commissioner also adopts the ratings of defendants' physician and reduces the award from 8% to 7%. 6 months from arbitration to appeal decision.

Fuller v. Bimbo Bakery, USA, No. 20012896.01 (App. Sept. 12, 2023) - Claimant was found to have sustained a 65% industrial disability as a result of a back injury and was found to be a credible witness (Walsh). The commissioner finds that claimant had sustained a low back injury at work and found that defendants' argument that claimant had an intervening injury was properly rejected.  On the issue of industrial disability, the commissioner specifically finds that the ratings and restrictions provided by Dr. Sassman were the most appropriate.  He affirms the 65% award.  The commissioner also finds that the employer was aware of claimant's request for emergency care and ordered payment for that care, in addition to alternate medical care in the form of pain management.  The commissioner reduced the IME payment, finding that claimant was not entitled to payment for injuries that were not found to be compensable, citing a number of Iowa Court of Appeals decisions.  The IME payment was reduced from $4455 to $1500. 7 months from arbitration to appeal decision. 

Nielsen v. Midwest Medical Transport Co., No. 22005624.04 (App. Sept. 11, 2023) - Claimant filed a application for relief under 85.27.  As a part of this application, claimant sought to compel defendants to produce a video of a motor vehicle accident which caused claimant's alleged injury.  The claim was dismissed, with the deputy concluding that 85.27(2) was not directed at evidence such as a video obtained from within an ambulance. Because of this, the 85.27 petition was dismissed.  The commissioner affirms the dismissal, finding that under Iowa Insurance Institute v. Core Group, 867 N.W.2d 58 (Iowa 2015), 85.27(2) was limited to medical records, not to information bearing on an employee's physical or mental condition.  Claimant indicates that this finding is dicta, as the case dealt with surveillance video, but the commissioner concludes that claimant did not cite to authority which supported the production of the video under 85.27(2).  The commissioner also concludes that once a petition was filed, discovery would be available.  The commissioner also finds that allowing discovery before a regular petition was filed would result in piecemeal litigation of the case.  4 months from arbitration to appeal decision. 

Vance v. Delaney Concrete Construction Co., No. 19004997.01 (App. Sept. 6, 2023) - Claimant was found not to have sustained sequela injuries to his back and left leg.  A stipulated bilateral shoulder injury was treated functionally as claimant was still working and earning more than at the time of injury.  A 14% disability was awarded (Rutherford). The commissioner affirms the arbitration decision without additional analysis.  4 months from arbitration to appeal decision. 

August 2023

Evans v. Bob Brown Chevrolet, Inc., Nos. 20000128.01, 21009683.01 (App. Aug. 30, 2023) - Claimant alleged an injury to the right arm on 12/18/19 and an injury to the left wrist on 7/2/21.  The deputy concluded that claimant's right arm injury did not result in a permanent impairment.  The commissioner affirms the deputy (Phillips), and rejects claimant's argument that a doctor would normally provide a rating of impairment following a surgery.  The treating surgeon, Dr. Rodgers, provided a 0% rating and the rating of Dr. Bruggeman were rejected by the deputy.  The commissioner concludes that if the agency found that there was "normally" a permanent impairment in cases involving surgery, it would be exercising agency expertise, which is prohibited by 85.34(2)(x).  Similarly, claimant's testimony that he suffered loss of range of motion, loss of strength and pain as a result of his injury was rejected under 85.34(2)(x). Dr. Bruggeman's opinions were rejected because they did not cite the AMA Guides, as Dr. Rodgers had.  6 months from arbitration to appeal decision.

With respect to the left arm injury, the deputy found that claimant failed to prove that the injury was causally related to work.  The commissioner affirms this finding, concluding that Dr. Paulson's opinion that claimant's ulnar abutment syndrome was a congenital condition and not related to work. Dr. Bruggeman's opinion was rejected as he provided no explanation of how the action of claimant reaching with his left arm at work caused an aggravation of the underlying condition. The commissioner finds that Dr. Bruggeman had adopted a "positional risk" approach to work injuries, which was rejected in Lakeside Casino v. Blue.  The deputy had found that claimant was entitled to alternate care for his left arm TFCC condition.  Since this was not related to work, the commissioner reverses this finding.  

Gallegos v. Shelly Krieg, Inc., No. 5066131.01 (App. Aug. 24, 2023) - In this review-reopening action, defendants sought to reduce claimant's 60% industrial award for a back and shoulder injury.  The deputy concluded that defendants had not demonstrated that claimant had sustained a physical change of condition, upheld the earlier award and ordered defendants to pay for claimant's FCE (Palmer). The commissioner affirms without additional analysis.  3 months from arbitration to appeal decision.

Rainer v. John Deere Dubuque Works and SIF, No. 20013850.01 (App. Aug. 22, 2023) - Claimant was found to have established injuries to his right elbow, right wrist and left elbow arising out of his employment or as a sequela of his original work injury.  The right wrist and left elbow injuries were still in the healing process and thus permanency was not awarded.  Alternate medical care was awarded (Lunn). The defendant appeals, arguing that claimant "made up" the injuries. The commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.  

McCauley v. Polk County, Iowa, No. 22700159.01 (Amended and Substituted Appeal Decision Aug. 16, 2023) - This case had originally been decided in July of 2023, with the commissioner finding that claimant's settlement of a wage claim issue with defendant had waived further rights under the workers' compensation law.  Claimant filed an application for rehearing of the decision and the commissioner rescinds the earlier decision.

In the arbitration decision, the deputy had concluded that although claimant's ulcers had been aggravated by her work, she did not file her claims in a timely manner.  A mental health claim was also found not to be work-related.  In this amended appeal decision, the commissioner finds that although claimant did not specifically report a work injury to Matt McCoy of the Polk County Board of Supervisors, she did tell him that the bleeding ulcers could potentially be related to stress from her work.  The notice claim of the employer was rejected.  The amended decision notes that in the settlement agreement claimant signed with the county, nothing was specified to indicate that workers' compensation was a part of the case.  The commissioner also noted that no settlement documents were ever filed with the workers' compensation agency.

The amended appeal concludes that claimant proved an aggravation of her underlying gastrointestinal issue, but did not prove a permanent aggravation of her condition.  Medical benefits were allowed, however, for the treatment claimant had received.  The commissioner also finds that given the testimony at the hearing from claimant, supervisor McCoy and others that the work at Polk County constituted a stressful work environment.  Despite this, the commissioner concludes that based on the medical evidence, claimant failed to carry her burden that her mental health condition was causally related to her work.

On the issue of waiver, the commissioner finds that the initial decision was incorrect in concluding that claimant had waived her workers' compensation claims.  Citing section 85.18 of the Code, the commissioner notes that rights under the workers' compensation act could not be waiver except as provided in chapter 85.  The commissioner noted that section 85.35(1) requires that any settlement of a workers' compensation case requires a settlement to be submitted to the workers' compensation commissioner for approval.  Since no such documents were filed, claimant did not waive her rights to workers' compensation benefits.  

Thus, the result of the rehearing of the case is the correction of the earlier waiver decision to conclude that claimant did not waive her rights under the workers' compensation act and the payment of medical expenses for claimant's ulcer with no indemnity benefits provided.  Temporary benefits were not awarded because claimant was paid her regular wages for the time period she was off work.

Hermanstorfer v. Lennox Industries, Inc., No. 19002216.01 (App. Aug. 14, 2023) - Claimant was found to have sustained a permanent injury, but since she was found to be working with greater earnings than at the time of the injury, the case was not considered industrially.  Claimant was awarded 35 weeks of benefits for a 7% whole body injury (Grell).  Both parties appeal and the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision. 

Jones v. Dexter Laundry, No. 21012114.01 (App. Aug. 8, 2023) - Claimant was found to have established a work-related injury, manifesting on February 10, 2020.  The employer's notice defense was rejected.  A running healing period was established for claimant (Walsh). On appeal, the commissioner affirms the decision of the deputy, but concludes that the manifestation date for claimant's injury was January 27 rather than February 20.  This was based on the fact that claimant testified he was aware of an injury on this date (the deputy had decided on February 20 as this was first date claimant lost time from work).  Since claimant communicated to the employer the circumstances of his injury and the symptoms he was experiencing at the same time he lost work, there was no notice issue.  The running award was affirmed without additional analysis.  The commissioner affirms that claimant had not reached MMI as of the time of the hearing.  Defendants were ordered to authorize treatment with an appropriate physician of claimant's choosing.  This was a reversal of the deputy's decision which had awarded care with Dr. Harris.  The commissioner found that there was an "apparent willingness" on the part of the doctor to "tailor his medical opinions to accommodate claimant's desired outcome in his claims for unemployment and social security disability benefits."  Because of this, care was to be provided by another physician of claimant's choosing.  6 months from arbitration to appeal decision. 

July 2023

Van Valkenburg v. Bridgestone Americas, No. 19003419.01 (App. July 27, 2023) - Claimant was found to have sustained a 3% shoulder impairment (Pals). Claimant appeals, arguing that the 11% impairment rating of Dr. Stoken was appropriate.  The commissioner affirms without additional comment.  5 months from arbitration to appeal decision.  

Eslinger v. Adair County Mutual Ins Association, No. 21015112.01 (App. July 26, 2023) - Claimant was found to have sustained an injury to her left knee, but no permanency was awarded because MMI had not been reached.  Past medical expenses were denied because defendants did not authorize treatment.  Alternate medical care was awarded with Dr. Mahoney (Walsh).  On appeal, the commissioner affirms the deputy's decision in all respect without further analysis.  7 months from arbitration to appeal decision.  

Hernandez v. Oak Grove Pork, Ltd., Nos. 19006204.01, 21009807.01 (App. July 20, 2023) - The first injury presented by claimant resulted in a take nothing decision  The second injury, to the right shoulder and cervical spine, resulted in a finding that claimant had sustained an 85% industrial disability (Walsh). On appeal, the commissioner reduces the industrial award to 50%.  The commissioner noted that claimant retained the ability to lift up to 25 pounds and was capable of light work, according to an FCE.  The commissioner found that claimant was not motivated to work, despite having made applications for 42 jobs in a 5 months period (although no work search in the 11 month period preceding the hearing).  Because of the work restrictions and limited work search, the award was reduced to 50%.  5 months from arbitration to appeal decision.  

Williams v. SIF, No. 19001029.01 (App. July 20, 2023) - Although the agency was found to have jurisdiction over the claim, over objections that the claims were properly filed with the Iowa Civil Rights Commission, claimant was found not to have met his burden of demonstrating a first injury (Phillips). On appeal, the commissioner affirms the finding of subject matter jurisdiction.  He concludes that claimant suffered both a first and second loss entitling him to Fund benefits.  Claimant's first injury was due to cerebral palsy, which the deputy found was an injury to the brain and thus was not a scheduled member injury.  The deputy relied on a web page for the Centers for Disease Control in making this finding.  The commissioner notes that this web page was not entered into evidence and notes that Dr. Hawk had concluded that claimant had a 12% injury to his right lower extremity. The Fund presented no evidence.  Based on Dr. Hawk's findings a first injury was found and combined with a second injury to the left lower extremity (the subject of a commutation), the commissioner finds claimant was entitled to a 30% industrial disability less 41.8 weeks of credit.  5 months from arbitration to appeal decision. 

Blasdell v. Linnhaven, Inc., No. 5044236 (Remand July 19, 2023) - This is a remand decision (Christenson) from a Supreme Court decision in which the Court concluded that claimant's decedent had not abandoned her and was entitled to death benefits, reversing the decision of the agency.  On remand, the commissioner concludes that claimant's decedent is entitled to death benefits and rejects the employer's claim that claimant committed suicide, as there was no evidence of suicide in the record.  The decision also finds that in light of a stipulation among the parties, the rate was computed as married with three exemptions. 3 months from Supreme Court to remand decision.

Critchlow v. Menard, Inc., No. 1660829.01, 21700895.01 (App. July 18, 2023) - Claimant was found to have suffered a 15% industrial disability as a result of injuries to his cervical and thoracic spine, as well as a 5% industrial disability to the lumbar spine (Cleereman).  The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.  

McCauley v. Polk 'County, Iowa, No. 22700159.01 (App. July 14, 2023) - The deputy concluded claimant had established that her ulcers were materially aggravated by employment, but also found that claimant's mental health impairment was not materially aggravated by employment.  The deputy also found that claimant had not notified the employer of her injury in a timely matter and thus the claim was dismissed (Christenson). The commissioner affirms, with additional analysis.  Claimant had left employment with Polk County and had not been paid 33.88 hours of unused vacation.  She contacted the county concerning this matter and signed an agreement with the county settling this matter and releasing all claims against the county.  Defendants claim that this settlement barred her claims against the employer, including workers' compensation claims.  The commissioner agrees, finding that since there was no contested case filed with the commissioner at the time of the settlement, there was no necessity for the commissioner to approve the settlement.  Note that there does not seem to be a discussion of section 85.18, which provides that no contract shall operate to relieve the employer from liability except as provided in the chapter.  4 months from arbitration to appeal decision.  

Meyer v. Quality Manufacturing Corporation, No. 21012793.01 (App. July 13, 2023) - Claimant was found to have suffered an injury to his cervical spine and was granted temporary benefits and an industrial award of 25%.  Claimant was found credible by the deputy (Walsh). The decision was affirmed by the commissioner, who finds that the deputy correctly assessed claimant's credibility.  5 months from arbitration to appeal decision.

Foley v. John Deere Dubuque Works, No. 19006619.02 (App. July 13, 2023) - Claimant was found to have sustained a right shouldedr impairment to have provided the employer with timely notice of the injury.  Because claimant had not reached MMI, permanency was not adjudicated (Walsh).  On appeal, the commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Wohlers v. Pottawattamie County, Iowa, Nos. 20701202.01, 20701189.01 (App. July 11, 2023) - The deputy concluded claimant had failed to prove an injury or occupational disease (West Nile virus) arising out of employment. The deputy concluded that the harmful conditions were not more prevalent at the worksite than in everyday life (Pals). The commissioner affirms the denial of benefits without additional analysis.  5 months from arbitration to appeal decision.

June 2023

Akers v. Arconic, No. 20700548.02 (App. June 21, 2023) - Claimant was found to have a 17% right lower extremity impairment. Defendants were given credit for short term disability benefits against temporary benefits that were provided (Phillips).  The commissioner affirms without additional analysis.  7 months from arbitration to appeal decision. 

Monsalvo Lopez v. Seaboard Triumph Foods, Inc., No. 21006717.01 (App. June 21, 2023) - Claimant was denied termporary and permanency benefits by the deputy (Phillips).  The commissioner affirms that claimant was not entitled to temporary benefits because he refused suitable work when he failed to return to work from a non-work-related injury.  The commissioner further finds that because claimant had not reached MMI, the permanency determination was not ripe.  The opinion of an ER physician was rejected in favor of the treating physician and pain management physician.  Claimant continued to voice complaints related to  his low back at the time of hearing and the commissioner concluded that permanency was not ripe.  The commissioner also found that alternate medical care in the form of treatment with the treating physician and pain management physician was appropriate. 6 months from arbitration to appeal decision. 

Hofer v. Lennox Industries, Inc., No. 20003191.01 (App. June 20, 2023) - Claimant was found to be a credible witness and was awarded a 20% industrial disability for developing tinnitus and hearing loss as a result of his work.  The costs of Dr. Simplot's IME were reimbursed (Rutherford). On appeal, the commissioner affirms that claimant had developed tinnitus and hearing loss as a result of his work, but further concluded that claimant was only eligible for the functional losses he sustained and not industrial disability.  The commissioner concludes that under 85.34(2)(v) claimant, who had retired, was not "terminated from employment" by the employer.  Because of this, the award to claimant was to be functional rather than industrial.  Claimant was found to be entitled to 60 weeks of benefits on a functional basis, based on a 3% rating for tinnitus and a 26.25% binaural hearing loss.  Note that the commissioner's decision in this case would appear to preclude industrial consideration in almost all tinnitus/hearing loss cases, since those claims are seldom brought prior to claimant's retirement.  In the deputy's decision, industrial consideration was provided because there was no evidence that claimant was offered work for which he would receive the same or greater wages.  5 months from arbitration to appeal decision.

 Kehrli v. Overhead Door Co. of Waterloo, Inc. No. 1653327.01 (App. June 19, 2023) - The deputy found that claimant had sustained a 35% functional impairment of his right lower extremity and further concluded that defendants failed to preserve their failure to mitigate defense (Humphrey).  On appeal, the commissioner affirms the 35% awared, but changes the commencement date and concludes that the failure to mitigate defense was preserved.  The failure to mitigate claim was based on claimant's refusal to undergo surgery for his meniscal tear.  The argument was found to lack merit since addressing this defense would "require the use of agency expertise to determine whether the functional rating assigned by Dr. Manshadi should be reduced."  Since 85.34 (2)(x) precludes the use of agency expertise, the defense was found to lack merit.  The commencement date was changed from November 19, 2018 to July 27, 2020, as this was the date claimant was found to have reached MMI.  5  months from arbitration to appeal decision.

Wenzel v. Archer Daniels Midland Co., No. 1612257.01 (App. June 16, 2023) - Claimant was found to have a 30% industrial disability as a result of 2016 sequella  injuries to his left upper extremity and low back.  Defendants were ordered to pay 95% of Dr. Kuhnlein's IME costs (Christenson).  Defendants appeal and claimant cross-appeals.  On appeal, the commissioner increases the industrial disability award to 50%, finding that claimant was working at the only job available within his restrictions at ADM and noting that although claimant was being paid $39.10 per hour, the job in which he was in generally paid between $23 and $25 per hour.  The payment for Dr. Kuhnlein's IME was reduced to 80%, because claimant had initially raised a Fund claim and a portion of the IME was for purposes of that claim.  5 months from arbitration to appeal decision.

Schoenberger v. Zephyr Aluminum Products, No. 1642927.02 (Remand June 6, 2023) - This case comes to the commissioner from a Court of Appeals decision finding that claimant had preserved error on the issue of whether an injury was industrial versus scheduled.  The underlying dispute concerned an injury claimant had suffered to the shoulder and arm.  In this decision, the commissioner concludes that as a result of claimant's shoulder injury, claimant suffered a sequella injury to his arm.  The commissioner found the opinions of Dr. Kuhnlein and Dr. Nepola to be more persuasive than the opinion of Dr. Field, who found that claimant's arm injury was not directly related to his shoulder.  Dr. Kuhnlein had noted that claimant only developed numbness and tingling in the arm following his shoulder surgery and Dr. Nepola also concluded that the arm injury was a sequella injury.  

The commissioner concludes that because claimant had an injury to the shoulder and the arm, he fell within the catch-all paragraph of 85.34(2)(v) anbd that his injury should be considered to be industrial.  In this case, however, claimant returned to work with the employer and and was earning greater wages at the time of the hearing than at the time of injury.  Therefore, under 85.34(2)(v), the injury was to be considered functionally.  Claimant was awarded the 11% functional impairment endorsed by Dr. Kuhnlein. 3 months from remand decision to appeal decision.

May 2023

Severin v. Second Injury Fund, No. 1521101.01 (Remand May 24, 2023) - In this remand action, in which the district court reversed the agency’s finding that the opinion of Dr. Hines was flawed because it was not based on a review of the radiographic evidence.  The district court concluded that there was no evidence to support the decision of the agency on this point and remanded for further proceedings.  The opinion of Dr. Hines was based on claimant’s first injury and the compensability of second injury was not in issue.

On remand, the commissioner notes that the only doctor addressing the first injury was Dr. Hines. The Fund did not present evidence on this point.  Given the remand decision, the commissioner finds Dr. Hines credible and concludes claimant had established a first injury to the right leg.  The commissioner concludes that the impairment rating from Dr. Chen for the second injury (1% to the bilateral arms) was more accurate than that of Dr. Hines (18% whole person impairment for the arm injuries) and accepts the opinion of Dr. Chen, while strongly criticizing Hines’ report, including a string citation of cases in which Hines had been found not credible.  Nonetheless, given that claimant had first and second injuries, as well as a 15 pound lifting limit, a 30% industrial award was provided, reduced by 24.4 weeks of benefits credited to the Fund.  3 months from remand by the district court to the commissioner’s decision.

Tilton v. H.J. Heinz Co., No. 5053002 (Remand May 22, 2023) - This remand action was before the commissioner (or in this case the commissioner's designee Heather Palmer) for a third time following an earlier remand from the Court of Appeals and the current remand from a decision dated July 20, 2022.  The injury in question occurred in April of 2013 and hearing was conducted on March 16, 2016.  The primary issue in the case was the timeliness of notice under 85.23 and the date on which the claim manifested.  In the second Court of Appeals decision, the court remanded to the agency for a determination of the date claimant knew or should have known the injury would have a permanent adverse effect on her employment.

Claimant had back problems beginning in the mid-2000s.  According to Dr. Mathew, Dr. Bradley and Dr. Hines, claimant's work activities at Heinz aggravated her underlying back condition, but she continued to work.  In February of 2010, Dr. Bradley indicated claimant would have flareups with her back occasionally, but did not indicate she had a permanent impairment.  After 2010, claimant had falls resulting in further problems with her back and received steroid injections.  She also had a slip and fall on January 11, 2013 outside of work, resulting in a Toradol injection.  On April 15, 2013, claimant reported to work and began having pain that caused her to tell her employer she could no longer perform the work.  Claimant did not work after April 15.

The deputy first concludes that claimant's preexisting "chornic low back pain became worse over time while she was working for Heinz to the point where she could no longer tolerate the pain on April 15, 2013. . .."  The deputy concluded claimant had suffered a permanent aggravation of her back condition.  The deputy also concluded that claimant's adjustment disorder was related to her injury, based on the opinions of Dr. Mittauer.  The deputy then concludes that no physician had provided claimant with permanent restrictions before her last day of employment.  Thus, the deputy concluded that the limitations period was not tolled until April 15, 2013 under the discovery rule.  Claimant therefore gave timely notice and filed her claim in a timely manner.

The deputy finally concludes that claimant was entitled to permanent total disability benefits based on claimant's impairment rating (20%), and restrictions of avoiding prolong standing, walking, sitting, repetitive bending and squatting and lifting of more than 15 pounds. Both Dr. Mathew and Dr. Mittauer indicated that claimant was not capable of working.  Defendants' VE opinion (Oppedal) was rejected because there were no specific positions identified that claimant could perform and the opinions of Drs. Mittauer and Mathew.  A credit of $37,764.48 was applied for long term disability benefits.  Claimant's request for alternate medical care was awarded and defendants were found liable for claimant's medical care.  Defendants were also found liable for $20,000 in penalty for failure to properly investigate the claim.

Mero Bustos v. Tyson Foods, Inc., No. 19700550.01 (Remand May 18, 2023) - This case was before the commissioner on remand from the district court, which held that the agency's denial of claimant's request for alternate care was "entirely conclusory."  The commissioner again denies alternate medical care.  

The commissioner notes that claimant had been recommended a lumbar surgery by Dr. Jensen and had filed an alternate medical care proceeding which had been denied.  Claimant did not appeal the alternate medical care decision.  Following this proceeding, claimant continued to have difficulties and Dr. Jensen again indicated that surgery could be considered "rational as a treatment course."  He ultimately performed a posterior lumbar instrumented fusion in October of 2020.  Dr. Johnson, the authorized treater, indicated that the surgery had not resulted in a substantial improvement of claimant's condition.  Dr. Jensen reported that claimant's back pain had improved significantly following surgery and that his radiculopathy had improved.  At hearing, claimant requested payment for the surgery, which was denied.  The district court affirmed this finding.  Claimant also requested alternate care with Dr. Jensen.  In the remand decision, the commissioner finds there was no evidence defendants had abandoned care and also finds that claimant had failed to prove the care offered by defendant was unreasonable. Because of this, the commissioner denies alternate care. 4 months from district court decision to remand decision.

Richardson v. The Respite Connection, Inc., No. 21700726.01 (App. May 18, 2023) - The deputy concluded that claimant failed to demonstrate that she was an employee of the employer and the case was dismissed (Gerrish-Lampe).  The commissioner affirms with additional analysis.  The commissioner notes that all individuals who work for Respite were employees and that they never paid employees in cash, as claimant had alleged.  The commissioner also notes that claimant never entered any evidence such as checks that demonstrated that claimant was paid by Respite.  Although claimant worked at a cabin owned by the owners of Respite, this cabin was not owned by Respite.  Based on the lack of evidence that claimant was employed by Respite, the claim was dismissed.  4 months from arbitration to appeal decision.

Pingel v. Iowa Central Community College, No. 20003971.01 (App. May 10, 2023) - The deputy concluded claimant had established a permanent aggravation of her preexisting pulmonary condition as a result of exposures at work.  A 20% industrial award was granted (Walsh).  On appeal, the commissioner reverses the deputy's decision and concludes that claimant's pulmonary condition was not aggravated by her work activities.  

In reversing, the commissioner concludes that claimant's first medical record indicating that her exposure to chemicals at work had aggravated her pulmonary condition had not occurred until October 23, 2019.  A pulmonary function test in January of 2020 desmonstrated COPD.  The physician indicated that claimant had smoked two packs of cigarettes a day for 45 years and also noted that she was not specific as to the chemicals that had caused her problems.  In documenting the reason for claimant's problems, Dr. Meyer, the treating physician, did not note chemical exposures as one of the causative factors for those medical problems.  Dr. Meyer later indicated that rather than claimant going on disability, she should find another job where she was not exposed to cleaning chemicals and stated that working with those chemicals "causes complications with her respiratory system."  Although claimant indicated that Dr. Meyer had requested MSDS sheets for the chemicals to which she was exposed, nothing in Dr. Meyer's records references any MSDS sheets.  The commissioner finds Dr. Meyer's notes, which were void of any causation opinions, were more accurate and convincing than claimant's later statements.  Claimant noted that she had not experienced any flare-ups since she last worked for the employer in January of 2020.

The commissioner specifically disavows the deputy's conclusion that the contemporaneous medical records documented the development of claimant's condition and concludes that those records do not support a finding of permanent disability.  Dr. Hawk and Dr. Brimeyer (a pulmonologist) did not relate the injury to work, while Dr. Bansal did.  The commissioner rejects Bansal's opinion, finding that he "never affirmatively opines that claimant's workplace exposures materially and/or permanently aggravated her pre-existing condition."  the commissioner also faults Dr. Bansal's permanent impairment finding, stating that Dr. Bansal did not rely on pulmonary function tests but rather the fact that claimant routinely used an inhaler and nebulizer.   The commissioner concludes that claimant should take nothing from the employer. 5 months from arbitration to appeal decision.  

April 2023

Uhlenhopp v. Iowa Dept. of Transportation, No. 5058838.01 (App. April 25, 2023) - In this review-reopening proceeding, the deputy concluded claimant had failed to demonstrate a change in physical condition justifying an increase in industrial disability.  Temporary benefits were also denied, as was payment for an IME (Cleereman).  The commissioner affirms without additional analysis.  4 months from arbitration to appeal decision.

Getiso v. Tyson Fresh Meats, No. 200004806.01 (App. April 20, 2023) - Claimant was found to have a 13% lower extremity impairment.  Certain medical expenses were denied because claimant did not request additional medical treatment prior to seeking alternate medical care.  Alternate medical care was awarded with Avera Therapy, Sioux Falls Foot Specialist and AMG Neurology (Lunn). The commissioner affirms the bulk of the award, but reverses the alternate medical care award.  The reversal was based on the fact that claimant did not request additional care up through the time of the hearing.  The commissioner finds there was no showing of an abandonment of care.  Because no request for care had been made, alternate care was found inappropriate.  5 months from arbitration to appeal decision.

Newburry v. The Lutheran Home for the Aged Association, No. 21000314.02 (App. April 20, 2023) - In the arbitration decision, the deputy found that claimant's injury should be considered industrially, as he was earning less that he had earned at the time of the work injury.  a 60% industrial award was provided (Pals).  The commissioner affirms the conclusion that the injury was to be considered industrially and also affirms the 60% industrial award.  The commissioner reduces the rate from $682.21 to $669.81 based on the inclusion of two time periods that had been excluded by the deputy. 3 months from arbitration to appeal decision.

Gurule v. Lowe's Home Centers, No. 5066730.01 (App. April 20, 2023) - Claimant was found to have sustained a back injury as a result of work activities and had to have surgery for that injury.  The deputy found claimant had an 80% industrial disability (Cleereman).  On appeal, defendants argued that claimant had not demonstrated a work-related back injury and if he had, the industrial award should only be 40%.  The commissioner affirms without additional analysis.  7 months from arbitration to appeal decision.

Leggett v. Tyson Foods, Inc., No. 19006313.01 (App. April 19, 2023) - The deputy concluded that claimant failed to meet her burden of demonstrating that her work injury was a permanent injury.  Alternate medical care was denied (Phillips). On appeal, the commissioner affirms without additional analysis. 6 months from arbitration to appeal decision. 

Reichert v. John Deere Waterloo Works and SIF, No. 21700341.01 (App. April 19, 2023) - Claimant had a 2% injury to the right upper extremity and had also had a first qualifying injury to her left hand and arm, entitling her to benefits from the Fund, which the deputy found was a 5% industrial loss. After credits to the Fund, claimant was found eligible for 20 weeks of benefits (Gerrish-Lampe). Claimant's rate was computed without weekly Continuous Pay Plans (CIPP) payments. Claimant appeals the industrial disability award and argues that the rate was inaccurately computed.

The commissioner on appeal increases the industrial disability award to 10% and also concludes that the deputy incorrectly computed claimant's rate.  With respect to the rate, claimant contended that the deputy should have included CIPP payments in addition to a profit sharing bonus.  The employer agrees that CIPP payments should be included.  With respect to the profit sharing bonus, the commissioner notes that he had earlier addressed this issue in a Declaratory Order.  The commissioner concludes that a bonus is not to be included unless "the employee's right to the benefit has vested at the time of his or her injury" citing Noel v. Rolscreen, 475 N.W.2d 666 (Iowa App. 1991) and the earlier Declaratory Order.  The commissioner finds that the bonus had not vested and concludes that the bonus is not to be included in claimant's gross weekly wage.  On the industrial issue, the commissioner concludes that claimant has continued problems with gripping and lifting and continued pain, but has continued to work for the employer and finds claimant has a 10% industrial disability.  With the Fund's credit of ten weeks, claimant receives 40 weeks of benefits. 4 months from arbitration to appeal decision.

Davis v. Kraft Heinz Co., No. 5066322 (App. April 14, 2023) - Claimant was found to have a cumulative injury to her bilateral arms and shoulder, with the injury manifesting on March 9, 2017. Healing period, medical expenses and costs were provided.  A 30% industrial award was provided (Walsh).  The employer appeals, arguing that healing period was not payable, that claimant had not reached MMI and that even if MMI was reached, a 30% industrial award was in error.  The commissioner affirms the healing period award as well as finding an injury to the arms and shoulder.  The manifestation date was reversed, but the industrial award was affirmed.

Claimant reported to her PCP on October 20, 2016, that she was chronically tired, had back aches, arm soreness and chronic neck pain when working all day.  The neck pain had begun following a 2002 auto accident.  When claimant returned to her PCP on March 9, she reported her neck an bilateral upper extremity pain made her entire spine sore.  On May 9, 2017, claimant reports injuries to both hands, pain, right shoulder pain and low back pain from overuse as a result of the labeler and cleanup function of her job. Dr. Frederick recommended a job evaluation to determine work relatedness. A PT observed the job and concluded it would not lead to carpal tunnel syndrome.  An EMG showed bilateral CT.  Ultimately, Dr. Frederick and Dr. Boulden found that claimant's CT and shoulder injury were not related to work.  Dr, Bansal found the injury work-related and noted that claimant's cleaning job, which required use of a pressure hose, was a causal factor in claimant's injury.  Neither Frederick or Boulden noted anything about the use of the pressure hose.

The commissioner noted that based on claimant's testimony and medical recoreds that her injury manifested on September 30, 2016 rather than March 9, 2017.  Although claimant told a nurse at work of her pain in late 2016, there was no evidence that claimant knew the seriousness or probable compensable character of her injury at that time.  However, the commissioner then finds that at the time she saw her PCP on March 9, he advised her to work with the employer's workers' compensation representative.  The commissioner concludes this is the date on which claimant knew of the seriousness and probable compensable character of her injury.  Since she reported the injury on May 9, she notified the employer in a timely manner.  She also filed her claim well within two years of her knowledge of the nature and seriousness of the injury.

On the industrial disability injury, the commissioner noted that claimant was 60 years old and had been able to return to work with theh  employer.  He affirmed the 30% industrial award. 6 months from arbitration to appeal decision.

Oppman v. Eaton Corporation, No. 1649999.01 (App. April 6, 2023) - Claimant was found to have suffered a sequeala injury to his low back  caused by his stipulated 2018 right knee injury.  Pre-existing pulmonary and obesity conditions were found to be exacerbated by the work injury.  Claimant was found to be permanently and totally disabled (Walsh).  The commissioner affirms, but provides additional analysis.

Claimant had an injury at work, causing an ACL tear, meniscal tear and medial patellar tears. A surgery consultation was delayed because defendants indicated they needed to determine causation.  Claimant was not to ambulate on icy surfaces because of a fall risk.  Claimant subsequently fell on ice, but an X-ray revealed no acute findings.  Surgery was subsequently performed by Dr. Bollier, but claimant had subsequent problems and was referred for physical therapy.  During PT an antalgic gait was noted. Claimant subsequently reported increased back pain, which was noted by the physical therapist and physician. He returned to Dr. Bollier, who informed him that "per work comp rules, the back pain is not considered a work injury."  He provided a 2% rating.  Dr. Kuhnlein subsequently provided a 10% injury to the knee and a 5% injury to the back.  He provided lifting restrictions of 20 pounds.  Dr. Baker, who had seen claimant for his back, also found that the back problems were a sequela of the knee injury. Dr. Chen found that the right knee condition did not lead to the low back symptoms.  Bollier agreed.  The commissioner finds that the opinions of Dr. Kuhnlein and Dr. Baker were more persuasive on the sequela issue.  The commissioner noted that Dr. Bollier had not indicated what "work comp rules" he was referring to in concluding claimant's back injury was not work-related.

The commissioner also affirms the permanent total finding despite disagreeing with the deputy commissioner that the employer had no work for claimant.  He concludes, however, that claimant would be unable to return to work with the employer given his current restrictions. The commissioner notes that claimant had worked for the employer for 20 years, was a motivated worker and had been found disabled by SSA despite the fact that he was only 48 years old.  The PTD award was affirmed. 5 months from arbitration to appeal decision.

Molina v. Wells Enterprises, Inc., No. 21010516.01 (App. April 6, 2023) - Claimant was found to have failed to carry her burden of establishing an injury that arose out of employment (Christenson).  As is the usual case where causation was denied following the arbitration hearing, the commissioner affirms without additional comment.  3 months from arbitration to appeal decision.  

March 2023 

Amling v. A.Y. McDonald Industries, Inc., No. 1640446.01 (App. March 30, 2023) - Claimant's right shoulder claim was accepted and claimant was found to have a 14% functional impairment.  A right arm claim was denied as claimant was found to have no permanency.  Apportionment for the right shoulder claim was denied (Pals). The commissioner affirms without additional analysis.  6 months from arbitration to appeal decision.

Smith v. H.D. Supply Management, Inc., No. 20006595.02 (App. March 29, 2023) - The deputy concluded that claimant had sustained permanent injuries to his right arm and right shoulder, which was treated industrially under 85.34(2)(v).  Claimant was found to be permanently and totally disabled.  Penalty benefits in the amount of $19,000 were awarded (Cleereman).  The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.

Pena v. Leclaire Mfg. Co., No. 21015492.01 (App. March 24, 2023) - Claimant was found not to have met his burden of demonstrating a work injury.  Payment for an IME was denied (Phillips).  On appeal, the commissioner affirms without additional analysis.  5 months from arbitration to appeal decision. 

Beyer v. RR Donnelley and Sons Co., No. 20009249.01 (App. March 22, 2023) - The deputy concluded that claimant's first injury to her left shoulder and sequela injury to the right shoulder should be treated industrially.  A 40% industrial award was provided and healing period benefits were awarded (Pals). Defendants appeal and the commissioner affirms on all accounts.  With respect to the consideration of claimant's injury as industrial, the commissioner, citing his earlier decision in Carmer v. Nordstrom, No. 1656062.01 (App. Dec. 29, 2021), concludes that the catch-all provision 85.34(2)(v) governs rather than the section 84.34(2)(n).  Thus, a bilateral shoulder injury is to be treated industrially.  8 months from arbitration to appeal decision.

Weimerskirch v. Progressive Processing, LLC, No. 1655936.01 (App. March 21, 2023) - Claimant was found to have sustained a left shoulder sequela injury in January of 2019, caused by a stipulated 2018 right shoulder injury.  Healing period benefits were awarded and claimant was provided benefits of 35% for an industrial disability because his employment terminated before the hearing (Humphrey). On appeal, the commissioner affirms the finding of a left shoulder sequela injury and also affirms the 35% industrial award.  

The commissioner makes further comments regarding the sequela injury and the date of injury.  The commissioner finds that claimant sustained the left shoulder injury as a result of the fact that he was restricted from using his right arm as a result of the initial injury.  The commissioner notes there was specific medical evidence from the treating physician that claimant's performance of his job with only one arm "would be much more stressful on the shoulder joint than performing the job with two arms."  Based on this opinion, the commissioner affirms that the injury was a sequala.  The commissioner changes the commencement date for permanency from August 9, 2020 to December 9, 2020.  The parties had not stipulated to a commencement date and the commissioner uses the date of Dr. Segal's report providing an impairment rating as the commencement date for permanency benefits.  5 months from arbitration to appeal decision.

Orozco v. City of Fort Dodge-Blanden Museum, No. 21002991.01 (App. March 15, 2023) - The deputy concluded claimant had failed to demonstrate a temporary or permanent disability and the case was dismissed (Walsh).  Claimant appeals and the commissioner affirms without additional analysis.  5 months from arbitration to appeal decision.

Abiet v. Smithfield Foods, Inc., No. 20008808.01 (App. March 13, 2023) - Claimant was found not to have sustained his burden of demonstrating a permanent work injury (Gerrish-Lampe).  On appeal, the commissioner affirms without additional analysis. 7 months from arbitration to appeal decision.

Ramirez v. Arconic, Inc., No. 20010579.02 (App. March 10, 2023) - The deputy found that claimant had established injuries to his left arm (cubital tunnel and carpal tunnel syndrome) and rejected defendants' argument that the claim was untimely.  Defendants were ordered to pay for claimant's medical care and for Dr. Bansal's IME.  Because claimant had not reached MMI, no determination of permanency was made (Christenson).  The commissioner affirms the arbitration decision without further analysis. 6 months from arbitration to appeal decision.

Schmit v. Tyson Fresh Meats and SIF, No. 19007052.01 (App. March 9, 2023) - Claimant was found to have a 5% impairment to the left shoulder as a result of his work injury, but the deputy concluded that claimant failed to prove left ulnar neuropathy, which had been asserted as a second injury for Fund purposes.  The left shoulder injury was found not to be an enumerated scheduled member for Fund purposes. Because there was no second injury, Fund benefits were denied.  Penalty benefits were also denied (Pals). On appeal, the commissioner concludes that the deputy's decision was correct without additional analysis.  5 months from arbitration to appeal decision.

Mack v. DSC Logistics, No. 20003348.01 (App. March 7, 2023) - Claimant was found not to have carried his burden of proving an injury arising out of employment.  IME costs were also denied (Rutherford).  On appeal, the commissioner affirms without additional comment.  4 months from arbitration to appeal decision. 

Kelly v. East Side Jersey Dairy, Inc and SIF, No. 1621904.01 (App. March 7, 2023) - Claimant suffered an injury to his right upper extremity, which the deputy concluded extended into the shoulder in this pre-2017 case.  Claimant was awarded a 50% industrial disability.  Payment for Dr. Sassman's IME was denied (Walsh). The commissioner affirms the 50% award.  The commissioner finds, however, that claimant was entitled to reimbursement of Dr. Sassman's IME.  In this situation, following the issuance of an impairment rating by claimant's doctor, he was told prior to being represented, that the independent medical examination was limited to doctors in the Dubuque area.  Claimant chose another doctor who had been a treater to provide the evaluation.  The commissioner finds that this could not be considered an independent medical evaluation and awarded the fees of Dr. Sassman.  4 months from arbitration to appeal decision.

Hunt v. SIF, No. 1650632.03 (App. March 1, 2023) - Claimant was found to have a first and second injury and was awarded a 65% industrial disability, with credits of 22 weeks for the first injury to the right knee and 81.4 weeks for the second injury to the left knee (Walsh). The commissioner affirms the industrial award of 65% without additional comment.  The commissioner disagrees, however, with the assessment of the credit for the first injury.  The commissioner did not consider claimant's impairment rating for the first injury to be accurate because Dr. Sassman's rating was based on claimant's understanding of his range of motion rather than on objective measurements.  Claimant subsequently had a total knee replacement to the right knee and the Fund asserts that an 81.4 week credit was appropriate.  There was no impairment rating from a doctor based on the TKR.  Claimant argues that since the TKR came after the second injury, it should not be considered.  The commissioner concludes that, despite the absence of a rating, the TKR is rated at 37% under the Guides and this is not the agency acting as a medical professional or utilizing agency expertise because the Guides are so clear on the rating applied to this procedure.  The commissioner therefore provides an 81.4 week credit for the first injury.  The commissioner also provides an additional 11 weeks of credit because of a 5% permanent disability that preexisted the second injury.  5 months from arbitration to appeal decision. 

February 2023

Brunk v. Glenwood Resource Center, No. 1900535.02 (App. Feb. 27, 2023) - Claimant was found to have suffered a back injury arising out of work and was awarded healing period benefits, an 8% functional rating and $1912.00 for the costs of Dr. Bansal's report, but not the full costs of an IM>  Credit was denied to defendants (Humphrey). On appeal, the commissioner finds that claimant's actions did not amount to horseplay, affirmed the permanency award and affirmed the award of costs for Bansal's report.  Defendants argued that claimant had an earlier injury in 2013 and that they were entitled to credit for that injury, which would result in no payment of benefits to claimant.  Plaintiff argued that there was no mechanism in 85.34(7) to apportion a prior industrial loss and current functional loss.  The commissioner finds that under 85.34(7)(a), claimant cannot receive a double recovery and that claimant's industrial recovery for his earlier shoulder injury (unscheduled) should be credited against his current award for his functional loss to his back. Claimant was found not to be entitled to any further benefits.  The commissioner finds that the 2017 changes did not limit the credit of a prior industrial award to a subsequent functional loss.  The commissioner does not address the fact that the statute does not address apportionment at all.  5 months from arbitration to appeal decision.

Freiburger v. John Deere Dubuque Works, No. 5066626.01 (Remand Feb. 24, 2023) - This case was a remand matter from the Polk County District Court.  The Court had remanded the action for further consideration of the opinion of Dr. Delbridge and clarification of a penalty award on temporary benefits.  The ruling on judicial review had concluded that the record did not support Dr. Delbridge's conclusion claimant had a gait derangement.  On remand, the commissioner reviews the records of Dr. Delbridge and finds they are more convincing than those of Dr. Field.  Dr. Delbridge had opined claimant had a 7% impairment of both left and right lower extremities.  Under 85.34(2)(s), this resulted in 30 weeks of PPD benefits.  On the penalty issue, the commissioner concludes that all of the TTD benefits were paid late and defendant offered no reasonable excuse for the delay.  A 50% penalty was imposed, for a penalty of $6,867.93.  TPD benefits were also paid late and there was no excuse.  A 50% penalty resulted in an award of $3,076.00 for this penalty.  4 months from district court decision to remand opinion.

Mejia v. Costco Wholesale Corp., No. 1655858.01 (App. Feb. 24, 2023) - Although claimant was found to have sustained an injury to her left arm and left shoulder as a result of a work injury, the deputy concluded that claimant had not established a temporary or permanent disability.  Alternate medical care was denied, as was payment for an IME (Phillips).  On appeal, the commissioner reverses two aspects of the underlying decision, finding that claimant suffered a permanent injury to her arm and concluding that defendants should pay claimant's IME costs.  The determination that claimant had suffered a permanent injury was based on Dr. Bansal's objective ratings of loss of range of motion.  The commissioner credited Dr. Bansal's opinion over that of Dr. Chen, because Chen had not indicated how he determined claimant's range of motion. On the IME issue, the commissioner concluded that because the treating doctor had issued a 0% impairment rating, claimant was entitled to an IME.  The full costs of the IME were awarded. 4 months from arbitration to appeal decision. 

McCarthy v. Jeld-Wen Holding, Inc., No. 5029888.01 (App. Feb. 22, 2023) - The deputy concluded that claimant was permanently and totally disabled in this review-reopening action, both under traditional analysis and odd lot.  The deputy found that claimant had established a change in economic condition justifying the increase in benefits (Phillips).  On appeal, the commissioner affirms the permanent total award, finding that claimant proved permanent total disability on the basis of odd lot.  The commissioner finds that claimant did not establish a change in economic conditions, but did prove a change in physical condition justifying the review reopening action.  Claimant's pulmonary condition had worsened and an FCE found claimant could not perform even sedentary activities.  Although claimant did not have a change in economic conditions, the change in physical condition justified the permanent total award. 4 months from arbitration to appeal decision. 

Milbrandt v. R.R. Donnelly, No 20009756.01 (App. Feb. 17, 2023) - In this appeal decision, the commissioner addressed the question of whether a settlement of a claim with the Second Injury Fund deprives the agency of jurisdiction to pursue an underlying claim against the employer.  The deputy (Pals) had concluded that the settlement with the Fund deprived the agency of jurisdiction.  On appeal, the commissioner reverses.

The commissioner first notes that the statute provides that an approved compromise settlement "shall consitute a final bar to any further rights arising under this chapter . . . regarding the subject matter of the compromise. . . ."  The commissioner noted that the statute had been revised in 2005 in response to the decision in United Fire & Cas. Co. v. St. Paul Fire and Marine Ins. Co., 677 N.W.2d 755 (Iowa 2004), which held that an earlier settlement against one insurance company barred a later action against a different insurance carrier.  The 2005 amendments added language "regarding the subject matter of the compromise."  An earlier agency decision, Ahn v. Key City Transport, Inc., No. 5042640 (App. Oct. 8, 2015), had applied United Fire despite the change in language.  In Milbrandt, the commissioner specifically overrules Ahn and concludes that the deputy's decision should be reversed.

The commissioner first finds that the agency had subject matter jurisdiction of the case, noting that chapter 85 gave the commissioner subject matter jurisdiction of all workers' compensation claims.  The case, according to the commissioner, was one of jurisdiction of the case, not subject matter jurisdiction.  The commissioner notes that in this case, the employer and insurance carrier were not parties to the settlement proposal and thus the language of the statute did not require dismissal of the claim against the employer.  The action against the Fund was distinct from that brought against the employer and "to hold otherwise would render the language of the amendment to the statute restricting the bar to matters 'regarding the subject matter of the compromise' superfluous and is contrary to the intent of the legislature."  Therefore, the agency had jurisdiction of the claim against the employer.

The commissioner next addressed the merits, finding that claimant had suffered an impairment arising out of employment (bilateral carpal tunnel syndrome), based on the reports of claimant's supporting physicians.  Dr. Paulson's opinions regarding permanency were adopted, resulting in a whole person impairment value of 14%.  A short healing period (12/16/20 - 1/4/21) was awarded and medical care which claimant had paid for, was also awarded.  IME costs were found to have been waived because claimant did not request these costs in the hearing report. 6 months from arbitration to appeal decision.

Graper v. DS Enterprises, L.C. dba Yellow Cab of Iowa City, No. 20701203.01 (App. Feb. 10,, 2023) - The deputy found claimant had not established an injury arising out of employment (Lunn). The commissioner affirms.  4 months from arbitration to appeal decision. 

Riley v. Arkansas Best Corp., No. 1659289.01 (App. Feb. 9, 2023) - Claimant was found to have an 18% functional impairment of the shoulder (Palmer).  Defendants appeal and the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision. 

Tyer v. B-20 Auto, Inc., No. 20007729.01 (App. Feb. 9, 2023) - In this action, the deputy concluded claimant had not established an employer-employee relationship as the defendant did not exert significant control over claimant's work. Accordingly, claimant was found to be an independent contractor and the case against defendant was dismissed (Humphrey).  The commissioner affirms without additional comment.  3 months from arbitration to appeal decision.

Freese v. Cemstone Concrete Materials, LLC, No. 20006149.02 (App. Feb. 8, 2023) - Following the arbitration hearing, the deputy concluded claimant had not met his burden of demonstrating an injury to the right knee arising out of employment (Gerrish-Lampe). The commissioner affirms without additional analysis.  4 months from arbitration to appeal decision. 

Roberts v. Linn County, Iowa, No. 19000117.01 (App. Feb. 8, 2023) - The deputy concluded claimant was permanently and totally disabled under a traditional analysis and under odd lot (Grell).  The commissioner affirms the PTD award without additional analysis.  4 months from arbitration to appeal decision.  

Nash v. Genuine Parts Co., No. 20700884.01 (App. Feb. 7, 2023) - Claimant was found not to have met her burden of demonstrating an injury (plantar firbromatosis) arising out of and in the course of employment (Humphrey). The commissioner affirms without additional analysis.  6 months from arbitration to appeal decision.  

Edwards v. John Deere Davenport Works, No. 21700093.01 (App. Feb. 7, 2023) - Claimant was found to have a bilateral shoulder injury.  The deputy concluded that the claim should not be dismissed because of a variance in the injury date between an injury alleged on October 21 and October 25.  Permanency was denied as claimant had not reached MMI, but healing period was awarded, despite the fact that a portion of the healing period occurred during a plant-wide layoff.  A running award of benefits was also provided.  Penalty of $2283.24 was awarded for failure of defendant to pay claimant 30 days of benefits after serving an Auxier notice (Lunn). On appeal, the commissioner affirms without additional analysis. 8 months from arbitration to appeal decision. 

Zalaznik v. John Deere Dubuque Works, No. 5066386.02 (App. Feb. 2, 2023) - In this review-reopening decision, claimant was found to have established a change in physical condition.  The doctrine of issue preclusion was applied to the opinions of Broghammer and thus his opinions were found not credible.  Claimant was found to have established a 37% impairment of the back, less a 19% award that had previously been paid.  Medical expenses and costs were awarded and claimant was found entitled to penalty of $5700 failure to timely pay healing period, but penalty for permanency was denied.  An award of attorney's fees for defendant's denial of request for admissions was denied (Christenson).

On appeal, the commissioner affirms with respect to all issues except the "issue preclusion" claim and the claim for penalty for permanency.  The commissioner finds that issue preclusion did not apply to Broghammer's opinions, since the issues in the original proceeding and review-reopening were different as defendants claimed that claimant's symptoms in 2021 were not related to the original injury.  Despite the fact that issue preclusion did not apply, however, finding the opinions of Dr. Abernathey, the treating surgeon who related the surgery to claimant's original injury.  Dr. Segal concurred.  The award of permanency was therefore affirmed.  On the penalty issue, the commissioner concludes a penalty of $1800 was due because defendants had initially authorized treatment with Dr. Abernathey and Dr. Howard, but did not contact Dr. Howard or Dr. Abenathey to investigate the case, even after receiving their causation opinions.  The award was made to "deter defendant and other employers from engaging in similar conduct in the future.  3 months from arbitration to appeal decision.

January 2023

Songer v. XPO Logistics Freight, Inc., No. 21013046.01 (App. Jan. 24, 2023) - Claimant was found to have an aggravation of a pre-existing back condition.  Because his employment had terminated with the employer, the case was considered industrially and a 50% award was provided (Lunn). The commissioner affirms the finding that the case was to be considered industrially without additional analysis.  

The commissioner noted that claimant had suffered an injury while lifting at work, when a "jolt of electricity" went through his body.  He was treated and on November 6, 2019 was noted to be having occasional flares that cause pain.  He subsequently (Nov. 12) slipped on ice at home, complaining of right hip pain.  He was subsequently seen for physical therapy and was released to full duty work by the PA-C who had seen him for his work injury.  Claimant continued to complain of pain and low back pain, with no mention of hip pain.  The treater noted that the work injury could not be entirely excluded as a cause of the continued problems and recommended claimant be seen by a spine specialist.  Defendants demurred and ceased treatment.  

Claimant subsequently sought care on his own and was seen by Dr. Piper.  He found it would be "hard to attribute these [changes] to a specific work injury.  Surgery was not provided, but Dr. Biggerstaff recommended a spinal cord stimulator, which was provided.  This resulted in a 100% reduction in claimant's pain.  Four doctors commented on claimant's condition.  Biggerstaff thought there was a material aggravation.  Piper found this was not work-related. Chen related the problems to the fall on ice.  He provided a 5% impairment.  Stoken related the injury to work and provided a 13% impairment rating.

The commissioner finds that Chen's opinion was wanting because the record did not support a finding that claimant's condition following the work injury was temporary.  In additional, the slip and fall on ice did not break the chain of causation.  The commissioner finds the opinions of Stoken and Biggerstaff more persuasive.  On the extent issue, the commissioner noted that claimant was not able to continue working for the employer because of a 50 pound lifting restriction.  The commisssioner, however, concludes that claimant was not motivated to work, as claimant testified that at the time of his work injury, "his wife wanted him to retire and he was thinking of working another year or two."  The industrial award was reduced to 25%.  The commissioner finds that the treatment received, including the stimulator were reasonable and beneficial treatment for which defendants were liable. 4 months from arbitration to appeal decision. 

Dungan v. Den Hartog Industries, No. 21700246.01 (App. Jan. 13, 2023) - Claimant was found to have sustained a permanent disability to his back, and the injury was considered industrially because claimant's employment with the employer had ended.  The deputy concluded that claimant, who had voluntarily quit his job because he and his family moved away, was entitled to industrial disability under 85.34(2)(v), as interpreted by the commissioner in Martinez v. Pavlich, No. 5063900 (App. July 30, 2020),  The deputy also concluded claimant did not have to pursue a second action in order to receive industrial disability in these circumstances. A 15% industrial disability was awarded (Humphrey).  The commissioner affirms without additional comment.  3 months from arbitration to appeal decision.

Tellez v. Amity Followserve - Iowa, Inc., Nos. 1661847.01, 19001291.01 (App. Jan. 11, 2023) - In a claim related to injuries to the right hip and lower extremity, the deputy concluded claimant had not met her burden of proof.  In the second claim, alleging a low back and left hip injury, the deputy found claimant's injury was related to her work and caused permanent impairment.  Because claimant's employment had ended, industrial disability was awarded, but was limited to 12%. The deputy also found claimant was a credible witness (Gerrish-Lampe). The commissioner affirms both decisions, without additional analysis other than to give deference to the deputy's credibility determinations.  6 months from arbitration to appeal decision.

Collins v. Des Moines Area Regional Transit Authority, No. 21700275.01 (App. Jan. 9, 2023) - Claimant filed a claim alleging that his Covid infection arose out of and in the course of his employment.  The deputy concluded that claimant failed to meet his burden of proof (Humphrey). The commissioner affirms without additional analysis.  3 months from arbitration to appeal decision.  

Johnson v. International Paper, No. 21002359.01 (App. Jan. 5, 2023) - The deputy concluded that claimant failed to prove he had suffered a work-related injury (Phillips).  Costs for an IME were denied.  On appeal, the commissioner affirms without additional analysis.  3 months from arbitration to appeal decision.  

Forster v. East Penn Mfg. Co., No. 5061342.01 (App. Jan. 3, 2023) - In this review reopening decision, the deputy found that claimant had established a change in physical condition and sustained a 10% industrial disability.  Defendants were found liable for medical expenses and penalty benefits were awarded for a 61 day delay in paying benefits awarded by the Court of Appeals as well as for late payment of temporary benefits, for a total of about $5000 in penalties.  The deputy also found that defendants had not established entitlement to credit for $11,533 in benefits.  The costs of Dr. Bansal's IME were not awarded under 85.39, but a portion of the costs were award for his report (Christenson).

On appeal, the commissioner found that the penalty awards were apprpropriate and also concluded that defendants had failed to demonstrate entitlement to a credit.  The penalty award was also affirmed, as was the award of costs.  On the question of change in condition and industrial disability, the commissioner found that claimant had sustained significant injuries to his should, resulting in permanent restrictions.  He also found that a 15% permanency award was appropriate.  The commissioner found that claimant was a young and motivated worker and increased the industrial disability award to 25% based on the signicant restrictions she had suffered.  4 months from arbitration to appeal decision.