2024 Workers' Compensation Appeal Decisions

 2024 Workers' Compensation Appeal Decisions

April 2024

Ramirez Ruiz v. Hy-Vee, Inc., No. 22004416.01 (App. April 19, 2024) - Claimant suffered an injury to the left foot which the deputy found had extended into the body as a whole.  A 45% industrial disability was awarded.  The deputy agreed to claimant's rate and awarded payment of healing period, temporary partial and penalty benefits.  The penalty was for the underpayment of benefits (Humphrey, in a 58 page decision). On appeal, the commissioner affirmed the decision of the deputy without additional analysis.  4 months from arbitration to appeal decision.

Hayes v. Christian Retirement Homes, Inc., No. 21-14161.02 (App. April 10, 2024) - The deputy concluded claimant had failed to demonstrate an injury arising out of employment.  The deputy also concluded that claimant failed to demonstrate a permanent disability (Gerrish-Lampe). On appeal, the commissioner affirms without additional analysis. 4 months from arbitration to appeal decision.

Moran v. Prairie View Management, Inc., No. 20700374.01 (Remand April 4, 2024) - In this case, the commissioner had initially concluded that claimant did not refuse an offer of light duty work and awarded temporary benefits. The district court reversed this finding and the district court's finding was affirmed by the Court of Appeals. The Court concluded that an employee who voluntarily quits work refuses work from that date and any future date and disallowed the award of temporary benefits.  On remand, the commissioner applies the decision of the Court of Appeals, denies temporary benefits and finds that because there was no award of temporary benefits, penalty was inappropriate.  Two months from remand from Court of Appeals to remand decision.

March 2024

Marshall v. TM, Inc., No. 22700386.03 (App. March 25, 2024) - The deputy concluded claimant had suffered a 19% impairment to the left thumb and awarded claimant healing period benefits.  Because defendants had no reasonable basis for denying healing period, a 30% penalty was awarded (Phillips). Claimant appeals, arguing that the injury was to the arm and not simply the thumb.  Defendants argue there was no permanent disability.  Claimant also argues that the penalty should have been 50%.  The commissioner affirms on all accounts.  Initially, the commissioner overrules claimant's motion to strike defendants' second responsive reply brief, finding no prejudice.  On the major issue of the situs of the injury, the commissioner notes that Dr. Rondinelli found a loss of range of motion of the thumb and also concluded there was a loss of strength in the arm but did not find a loss of range of motion of the arm. The 5th edition of the Guides does not allow for a rating based on lack of strength in the absence of a range of motion loss.  Because of this, the commissioner limits claimant's permanent impairment to the thumb. The 30% penalty assessment was affirmed, with the commissioner finding this amount was reasonable and appropriate.  5 months from arbitration to appeal decision.

Galema v. Second Injury Fund, No. 20003252.01 (App. March 11, 2024) - The deputy concluded that claimant failed to demonstrate a first injury and the case against the Fund was dismissed (Gerrish-Lampe). Claimant asserted he had a right wrist injury when he was 12 and continued to have popping and cracking of the left wrist. The deputy accepted the Fund's expert (Chen) over that of claimant (Kuhnlein) with respect to the first injury and concluded there was no permanent impairment.  The commissioner affirms, concluding that even claimant's examiner did not find a right wrist condition under the Guides, but only a 1% impairment for pain. Since claimant acknowledged he did not have pain as a result of the right wrist injury, and the IME report indicated claimant had reported no pain.  The commissioner indicates that there is no explanation for the finding that claimant had a rating as a result of pain when claimant did not report pain to the evaluator.  The commissioner concurs in the finding there was no first injury and thus no claim against the Fund. 7 months from arbitration to appeal decision.

Droegmiller v. Dixon Family Chiropractic, No, 21010521 (App. March 5, 2024) - This case involves a mental/mental claim based on alleged mistreatment of claimant by a chiropractor for whom she worked.  The deputy concluded claimant had not established the legal portion of the mental/mental claim.  Although the deputy found claimant testified credibly about her alleged mistreatment, the testimony of other former employees in the office did not support claimant's perception of mistreatment (Cleereman). The commissioner affirms the decision of the deputy without additional comment. 6 months from arbitration to appeal decision.

February 2024

DeCormier v. U.S. Nursing Corp., No. 23007660.01 (App. Feb. 28, 2024) - A rate dispute was the primary issue in this action.  The deputy concluded claimant's rate should be calculated under 85.36(6) and found claimant's gross weekly wage was $2,871.50, with a benefit rate of $1562.60.  Claimant had argued that penalty was due because defendants erred in computing the rate, but this claim was denied (Rutherford). Both parties appeal.  Defendants argued on appeal that 85.36(9) should be used because claimant did not work continuously for the employer but instead took time off between her contractual travel nurse assignments. Defendants claim that average over a yearly period more accurately reflects claimant's gross weekly wage.  Claimant argues the rate should have been computed under 85.36(7) and that the rate should be increased.  The commissioner affirms the weekly wage and rate.  Pursuant to her contract with the employer, claimant was scheduled to work 48 hours per week, with a $65 per hour base rate and $97.50 for her callback and overtime rate. The commissioner finds that although none of the methodologies in 85.36 fits perfectly, 85, 36(6) is the most obvious subsection to apply.  The commissioner rejects defendants assertion that 85.36(9) should apply, as no evidence was presented that claimant earned less than the usual weekly wages in the line of industry in which claimant was employed.  There was testimony from defendants' witness that it was not unusual for travel nurses to have substantial gaps, even months, between work contracts. Thus, claimant's pay was typical and 85.36(9) did not apply.

On the penalty issue, the commissioner notes that there was a significant underpayment of benefits (claimant was initially paid $966.83 at a Missouri rate), the rate issue did not fit easily into any of the rate categories under 85.36. The commissioner found that there was no basis for a penalty award once defendants provided a reasonable explanation for the rate dispute.  However, despite repeated entreaties about the rate from claimant's counsel beginning on January 15, 2021, defendants did not provide any explanation for the rate dispute until September 1, 2021.  The commissioner concluded that under 10A.315(4), a penalty of 20% or $5500 was appropriate for the underpayment of rate in this period of time. 5 months from arbitration to appeal decision.

Ealy v. Weitz Industrial, LLC, No. 5054511.01 (App. Feb. 27, 2024) - In this review-reopening action, the deputy "reluctantly found" (because claimant was found non-credible on some issues and also not motivated to find employment) claimant had established permanent total disability (Gerrish-Lampe).  The original arbitration award had been 85%.  The commissioner affirms the deputy's findings that claimant lacked motivation and that his job searches were "cursory and not designed to obtain real employment."  The commissioner also finds that claimant suffered a substantial change in his physical impairment.  The commissioner was also reluctant to award permanent total disability, but does so nonetheless, inasmuch as he previously had an 85% industrial disability and now had further difficulties. 5 months from arbitration to appeal decision.

Schellhorn v. Second Injury Fund, No. 22700307 (App. Feb. 23, 2024) - The deputy concluded claimant had failed to demonstrate a compensable first injury (metal chips causing eye injury) and the claim against the Fund was dismissed (Cleereman).  On appeal, the commissioner affirms with no additional analysis.  3 months from arbitration (rehearing decision) to appeal decision.

Bukasa v. Tyson Fresh Meats, No. 21011090.01 (App. Feb. 21, 2024) - In the arbitration decision, the deputy excluded claimant's IME based on a finding that the IME violated the boundaries for the admission of post-hearing evidence set at the hearing, because those reports contained summaries and opinions by a new medical professional not previously mentioned before or at the hearing.  The deputy rejected claimant's argument that he was entitled to a running healing period, found claimant at MMI and awarded a 4% permanent impairment of the right upper extremity (Gerrish-Lampe). The commissioner affirms both the exclusion of the IME and the permanent award, without providing any additional discussion of these issues.  5 months from arbitration to appeal decision.

Weiland v. Downtown Eagle, Inc., No. 21700391.01 (App. Feb. 16, 2024) - The deputy concluded claimant had established an injury to his right knee as a result of an aggravation of a preexisting condition and awarded a 37% impairment, or 81.4 weeks of benefits. Penalty benefits of $2000 were awarded for the employer's failure to investigate the claim for approximately 10 months (Palmer). Defendants appeal and claimant cross-appeals, arguing that the penalty should be increased to $4296.61.   The commissioner affirms the deputy's decision without additional analysis. 8 months from arbitration to appeal decision.

Griffey v. Western Express, Inc., No. 5062272.01 (App. Feb. 16, 2024) - In the original action in this case, claimant died as a result of a work accident.  His dependent son was to receive benefits until he reached the age of 18 (or 25 if a full-time student).  Claimant's dependent filed a review-reopening proceeding, arguing that he was mentally incapacitated from earning and was entitled to benefits as long as he remained incapacitated.  The deputy concluded that claimant had met his burden of proof and ordered that benefits be paid for as long as the dependent was incapacitated (Pals). The commissioner affirms the decision of the deputy without additional evidence. 3 months from arbitration to appeal decision.

Vaske v. City of West Des Moines, No. 22001874.01 (App. Feb. 13, 2024) - Claimant suffered an injury to his right had on November 19, 2020. The question presented at the hearing was whether claimant's cubital tunnel syndrome was related to the injury, which the deputy answered in the negative, based on the report of the treating surgeon (Christenson). The commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Bradbury v. The Andersons, Inc., No. 22700285.01 (App. Feb. 12, 2024) - Claimant was found to have sustained a cumulative low back injury.  As a result of the injury, the deputy concluded claimant was permanently and totally disabled (Grell). The commissioner affirms without additional analysis.  6 months from arbitration to appeal decision.

Johnson v. Seedorff Masonry, No. 22700099.01 (App. Feb. 7, 2024) - The deputy rejected claimant's arguments, finding that although claimant had established a permanent injury, he had not notified defendant of his injury in a timely manner and had not filed a timely claim.  On appeal, the commissioner affirms without additional comment. 5 months from arbitration to appeals decision,

Ikeljic v. Johnston Community School District, No. 1634044.01 (App. Feb. 6, 2024) - Claimant was found to have sustained a 50% industrial loss as a result of neck and left injuries from a June 2017 event. $500 in penalties were awarded (Walsh).  Defendants appeal and claimant cross-appeals, arguing that the award should have been higher.  The commissioner indicates that deference was due the deputy's credibility findings.  He indicated that there were relevant factors in favor of both increasing and decreasing the award, but concludes that the 50% award was appropriate.  Although claimant maintained a "regular job" with the school district, co-employees of claimant assisted him with certain heavier tasks during the summer.  Although claimant was an older worker and could not perform some of the tasks he had performed on earlier jobs, he was earning higher wages and there had been no reason to believe his employment would be terminated.  On the penalty issue, the commissioner notes that defendants had not complied with the contemporary notice requirement of Code 10A.314(4)(c) and there was no reasonable cause or excuse for the delay (a two month delay after defendants' doctor issue a rating).  The commissioner found that an increase in the penalty was not justified and that the deputy's decision was a reasonable assessment of the purposes and goals of the statute.  The commissioner also agreed that the deputy could award the costs of claimant's deposition transcript.  4 months from arbitration to appeal decision.

Borges-Tun v. Hope Haven, Inc., Nos. 20007673.01, 2207131.01 (App. Feb. 5, 2024) - In these actions, claimant was found to have sustained a 6% injury to her right upper extremity as a result of a 2020 injury date and a 2% additional impairment to the right upper extremity as a result of a 2021 injury (Gerrish-Lampe).  Past due medical benefits were awarded.  The commissioner affirms without additional analysis. 4 months from arbitration to appeal decisions.

Hayes v. Eagle Window and Door Manufacturing, No. 5038676.02 (App. Feb. 2, 2024) - This complicated matter involves two separate injuries with two separate employers.  The injury in the first action occurred in 2010 and following the initial arbitration case and review-reopening, claimant was found eligible for a 60% industrial disability.  In the second action, against Georgia Pacific, claimant was found to have a 25% industrial disability.  Claimant subsequently filed review-reopening petitions in both actions, which were tried separately.  The Georgia Pacific claim was tried first, although filed second and resulted in a finding that claimant was an odd lot employee.  On review reopening claim in this case, the deputy concluded claimant had not proved an increased loss of future earning capacity due to the 2010 injury (Rutherford). Claimant appeals, arguing that he is permanently and totally disabled and also arguing that the deputy erred in failing to credit his IME.  Claimant's claim for alternate care was also denied.  Ultimately, the commissioner affirms the denial of further relief against Eagle without additional analysis.  6 months from arbitration to appeal decision.

January 2024

Nunez Hernandez v. Story Construction, No. 1653567.01 (App. Jan. 26, 2024) - The deputy found that claimant had failed to establish a permanent impairment and was denied benefits by the deputy (Palmer).  On appeal, the commissioner affirms the decision of the deputy without additional analysis.  7 months from arbitration to appeal decision.

Tegtmeier v. Buchanan County Health Center, No. 5060404.03 (App. Jan. 25, 2024) - Claimant was found to have suffered mental trauma following an assault by a patient at work.  Because claimant was improving and the claimant's treating psychologist indicated that she would continue to improve, claimant was found not to have reached MMI (Cleereman). On appeal by the defendants, the commissioner's designee (Grell) finds that the decision of the deputy was correct without additional analysis.  5 months from arbitration to appeal decision.

Vieyra v. ABCM Corporation, No. 217011.01 (App. Jan. 23, 2024) - Claimant was found credible and was awarded 40 weeks of benefits based on an injury to her right shoulder.  The medical causation opinion of Dr. Bansal was accepted. Past medical expenses were awarded (Cleereman). Defendants appeal, alleging the injury was not work-related and that an award of past medical expenses was in error.  The commissioner affirms that the injury arose out of work and specifically affirms the deputy's credibility finding.  Dr. Bansal's report concerning causation was also found to be credible.  The commissioner, however, reverses the award of medical expenses, finding that claimant had not demonstrating that the charges for the care were fair and reasonable or that the care was reasonable, necessary and causally related to the work injury.  Claimant argued that defendant had provided no evidence to demonstrate the cost of the care was unreasonable or unnecessary, but the commissioner concluded this stood the burden of proof on its head.  Because no evidence regarding the past medical expenses was provided, it was impossible to find the past medical expenses were causally related to the injury or were reasonable.  Because no evidence on these points was presented, the award of past medical expenses was reversed. NOTE:  The arbitration decision only briefly discusses the medical expense issue, finding that defendants' denial of the claim meant that it lost the ability to control care and concluding that because the injury arose out of employment, defendant was responsible for all medical expenses and mileage incurred in claimant's treatment. 6  months from arbitration to appeal decision.

Culpepper v. CNH Industrial America, LLC, No. 22001932.01 (App. Jan. 22, 2024) - In this case, the deputy concluded claimant had not established an injury arising out of employment.  For good measure, the deputy also concluded that even if there had been a work-related injury, it had not been reported to the employer in a timely manner (Gerrish-Lampe). The commissioner affirms without additional analysis.  5 months from arbitration to appeal decision. 

Driscoll v. City of Cedar Rapids, No. 22001119.01 (App. Jan. 5, 2024) - This case involves a case of first impression in Iowa concerning an employee who developed complications from the Covid 19 vaccination and sought to demonstrate that the injury arose out of and in the course of his employment.  The deputy concluded that claimant's injury had arisen out of and in the course of employment (Cleereman). On appeal, the commissioner reverses and concludes that the injury did not arise out of and in the course of employment.

The parties agreed that claimant's injury had resulted from the administration of the Covid 19 Johnson and Johnson vaccine.  Although the employer "strongly encouraged" employees to obtain the vaccine according to he testimony of at least one witness, the parties also agreed that there was no requirement from the employer that an employee obtain the vaccine.  Claimant did receive the vaccine during normal work hours, which was allowed by the City's policy. Claimant testified that although he did not originally plan on receiving the vaccine, after the receipt of emails from the city encouraging the use of vaccines, he decided "that was the honorable thing to do."  Claimant felt some peer pressure to obtain the vaccine. A great deal of evidence was presented demonstrating that the City had strongly encouraged employees to receive the vaccine.

In his decision, the commissioner notes that although the City encouraged its employees to obtain the vaccine, "defendant made it clear the vaccinations were only recommended and not mandatory." No incentives were provide to obtain the vaccine. No disciplinary action was imposed if an employee failed to obtain the vaccine.  The commissioner found that the employer had encouraged employees to receive the vaccine, but had not "strongly encouraged" the receipt of the vaccine.

The deputy had relied on Larson's treatise on workers' compensation, which noted that a claim might arise out of and in the course of employment "if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations."  The commissioner rejects this formulation, finding that this "would discourage an employer from trying to support the greater good or trying to assist its employees."  He also noted that Larson's treatise was not universally accepted or applied throughout the states.

The commissioner concluded that claimant was "in the course of employment" when he received his vaccination, since claimant was able to use work time to obtain the shot.  The commissioner finds, however, that the injury did not arise out of employment.  Using the actual risk doctrine, the commissioner concludes that claimant had not proven that there was an actual risk of an adverse reaction to the Covid 19 vaccine as a result of his employment.  The vaccine was in no way connected to employment according to the commissioner.  Taking the Covid 19 vaccine was not a rational consequence or hazard connected with claimant's employment.  Had the vaccine been required, claimant would have been able to make such a case, but the vaccine was not required by the City.  The commissioner also finds that Larson's "strongly urged" standard, "creates a disincentive for employers to assist their employees and to provide convenience for their employees."  The commissioner also finds that the "strongly urged" standard was not universally accepted. 7 months from arbitration to appeal decision.