Iowa Workers' Compensation

The case of Nkanta v. Wal-Mart Stores , No. 12-0475 (Iowa App. Nov. 29, 2012), presented an unusual situation where defendants had presented to the deputy a "confidential " sealed envelope that included an offer to confess judgment.  The agency found that offers to confess judgment under Chapter 677 were not applicable to workers' compensation proceedings.  The court of appeals affirmed this finding, as well as findings that claimant failed to prove he sustained a permanent work injury and findings that the costs were to be borne by each party. Claimant sustained an injury to his low back while working at Wal-Mart.  Claimant persisted in having difficulties with his back but Drs. Boyett, Koenig and McCaughey concluded that there was no permanent injury.  Dr. Chen at UIHC found there was myofascial pain and Dr. Jones performed an IME indicating there was a 5% permanent impairment.  The deputy rejected Dr. Jones opinion because he gave no analysis as to why ther...

In Merivic, Inc. v. Gutierrez , No. 12-0240 (Iowa App. Nov. 15, 2012), the Iowa Court of Appeals declined to overturn the commissioner's holding in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007).  The Lovic decision had concluded that a lack of English language skills was a factor to be determined in considering the extent of industrial disability, and also concluded that the failure of a claimant to learn English was not to be considered in determining the client's motivation to work.  Both Gutierrez and Lovic were handled by Jamie Byrne of Neifert, Byrne & Ozga. Gutierrez involved a welder who had injuries to his shoulder and arm.  Claimant English language skills were minimal, and there was conflicting testimony presented at hearing over how easy or difficult it was to learn English for persons who were not native English speakers.  Claimant lost his job as a welder as a result of his injuries, and the commissioner determined that th...

In April of 2012, the Workers' Compensation Core Group of the Iowa Association for Justice had requested a declaratory order from the Iowa Workers' Compensation Commissioner on the issue of the disclosure of surveillance materials.  The gist of the Core Group's request was that section 85.27 of the Iowa Code indicates that employers and claimants in workers' compensation actions agree, as a predicate for making or defending a claim for benefits, "to the release of all information to which the employee, employer, or carrier has access concerning the employee's physical or mental condition relative tot he claim and further waives any privilege for the release of the information."  The Core Group argued that previous agency policy, which had prohibited the disclosure of surveillance material until after the claimant's deposition, was rooted in the Iowa Rules of Civil Procedure rather than the workers' compensation statute, and that the broad waiver of...

The court, in Kelly v. Riser, Inc. , No. 11-1898 (Iowa App. Oct. 31, 2012) addressed a question of an employee of a temporary workers' agency, who recovered benefits for an injury from the workers' compensation carrier, could also proceed against the property owner, general contractor and subcontractor.  The court concluded that there was no right of recovery in tort against parties other than the employer, and that workers' compensation was the exclusive remedy available to the claimant.  Claimant worked for Labor Ready, a temporary employment contractor, and was assigned to dismantle and install a new bleacher system for Bettendorf High School.  He was injured on the job.  The contract between claimant and Labor Ready indicated that the exclusive means of recovery for an injury was through workers' compensation.  Following the injury, claimant received workers' compensation benefits, but later sued over parties in tort.  The district court, on summary j...

In O'Reilly Auto Parts v. Alexander , No. 11-1864 (Iowa App. Oct. 31, 2012), the court addressed two issues.  The first was whether claimant's injury arose out of and in the course of employment.  The second was whether the commissioner had erred in sua sponte entering an insurance carrier into the proceedings.  The court affirmed on both counts. Claimant contended he had suffered a back injury while unloading a tote from a truck and twisting his body to take a step.  Injury reports did not reflect the date of injury actually claimed in the action.  Claimant was not sent to see the company doctor, and did not initially explain the mechanism of injury to his family doctor.  Dr. Ray concluded that claimant had sustained a worsening of pain from the work accident.  Claimant subsequently had a stroke and explained at hearing that he had problems with memory.  The claim was denied by the deputy but the commissioner reversed and concluded that claima...

In Verizon Business Network Serv., Inc. v. McKenzie , No. 11-1845 (Iowa App. Oct. 17, 2012), the court grappled with issues involving review reopening and the commencement date of such benefits, and also concluded that weight loss surgery was not related to the work injury. The case had previously been remanded by the court in November of 2010, to be reconsidered under the review-reopening standard set forth in Kohlhaas .  Claimant had initially been found to have a 25% industrial loss as a result of her back injury, and the commissioner had concluded on the initial review reopening that she was permanently and totally disabled.  The court also indicated that the commissioner should reconsider payment for the bypass surgery under Bell Bros. v. Gwinn .  Finally, the agency was to redetermine the correct date for commencement of benefits. On remand, the commissioner found that claimant was unable to work due to her spine injury.  The commencement date for benefits ...

In Dunlap v. Action Warehouse, No. 11-1451 (Iowa App. Oct. 17, 2012), the court addressed issues of causal connection, permanency, temporary benefits, penalty and sanctions.  The issues concerning causal connection, extent of permanency and temporary benefits were fairly straightforward analyses based on substantial evidence principles.  The penalty and sanction issues are potentially more important. Dunlap was injured at work, and after a numerous struggles to obtain care, including an alternate medical care proceeding, he was set up with Dr. Prevo.  Dr. Prevo found that there was no permanency and further indicated the back problems were not related to his work.  Dr. Prevo was subpoenaed to a deposition and also provided with a subpoena duces tecum.  At the deposition, he refused to provide certain documents that had been subpoenaed.  Prevo refused to answer questions concerning disciplinary proceedings before the Iowa Board of Medicine.  At hea...

In Annett Holdings v. Pepple , No. 12-0468 (Iowa App. Oct. 17, 2012), claimant had sought and obtained a judgment under section 86.42 of the Code.  At the time that claimant sought judgment, defendant sought a stay of that judgment, which was denied by the district court.  The court found that although defendant might suffer harm from the judgment, the harm was less certain and less significant than the harm to claimant. On appeal, the court found that the district court had considered the factors set forth in section 17A.19(5)(c) of the Code, in addition to the Supreme Court's decision in Grinnell College v. Osborn.  The court found that "when  a party requesting judgment has met all the conditions of Iowa Code section 86.42, the district court is required to enter the judgment in favor of the party requesting judgment."  The court found that this was the case, and affirmed the decision of the district court. 

In Carter v. Alter Trading Corp. , No. 11-1697 (Iowa App. Oct. 17, 2012), the court decided a claim dealing with equitable apportionment and penalty benefits for failure to pay benefits pending equitable apportionment.  The fighting question was whether the apportionment of death benefits among his children and wife was equitable. Claimant was a native of Honduras and had a family in Honduras at the time he died as a result of an industrial accident.  That family consisted of his oldest son, Angel, his wife Carmen, and his daughter, Lidia. Claimant came to the US to work, and provided the family with support.  Claimant had a paramour in the US, Ruth, with whom he fathered a child, Sandra.  Claimant did not live with Ruth and Sandra, but provided them with support as well. When claimant was killed, both families sought payment of death benefits.  The deputy allocated 45% of death benefits to Carmen as surviving spouse, and 22% to Angel during the period of hi...

In Tyson Foods v. Shaw , No. 12-0432 (Iowa App. Oct. 3, 2012), the court addressed issues of the manifestation date of the injury, and the corollary issue relating to the 90 day notice requirement.  The court affirmed the commissioner's findings which indicated that the manifestation date was sufficient to bring claimant within the 90 day notice requirement.  The court also found that substantial evidence supported the conclusion that claimant's manifestation was correct found by the agency. Claimant alleged a cumulative injury to his feet from his work at Tyson.  As a part of his job, he had to lift 50 pound bags of chemicals, and had to push heavy items.  He was required to wear rubber pullover boots on the job.  Claimant testified that his feet slipped in the boots because they were too large.  Claimant also had diabetes.  When problems began to develop with his feet, Tyson replaced his standard boots with leather steel toed boots.  Claimant ...

In Estate of Brehm v. Dubuque Community School District , No. 12-0176 (Iowa App. Oct. 3, 2012), the court of appeals addressed the issue of exclusive remedy in the death benefits case.  Claimant had died while performing one of two full time jobs, and under the provisions of the workers' compensation statute, was paid benefits based only on the wages earned on that full time job.  Claimant's estate argued that this remedy wasn't adequate, and that therefore the workers' compensation statute should not have been the exclusive remedy in the case. Because the damages arose from a work related injury, and the employer had paid the damages owed under the workers' compensation act, the court concluded that the remedy was adequate and affirmed the decision of the district court.  The court noted that in situations where there was not an adequate remedy, claims may fall outside of the exclusive remedy provisions, but found that this was not such a case.  The court conclud...

In Annett Holdings v. Allen , No. 12-0388 (Iowa App. Oct. 17, 2012), the court of appeals addressed a suitable work issue in the trucking context, as the Supreme Court had earlier done in Neal v. Annett Holdings , 814 N.W.2d 512 (Iowa 2012).   Allen involved the same trucking company, with the same light duty program in Des Moines as had been the case in Neal .  The primary difference in Allen was that claimant lived in Mississippi, and was over 800 miles away from home.  He declined to perform light duty work in Iowa, and the court concluded that the work offered was not suitable.  The court concluded that the distance traveled to the proposed light duty work was unreasonable, given the distance involved, claimant's cervical fusion, the restriction on the amount of time he could sit, and other physical limitations.  The court affirmed the agency, and reversed the district court in awarding healing period benefits. The court also addressed the finding that cla...

In Menard v. Jones, No. 12-0027 (Iowa App. Sept. 6, 2012), the court of appeals addressed two issues.  The defendants appealed a question of whether claimant had reached maximum medical improvement, and claimant appealed a question relating to part-time.  On rate, the court in Swiss Colony v. Deutmeyer  had indicated that in part-time cases, there needed to be evidence of what type of work was part-time in the industry in which the claimant was engaged.    The court in Jones indicated that the fact that claimant was hired to work on 4 hours a day (and that the employer admitted he was part-time), was not enough to actually establish that he was only performing part time work under the statute.  Since there was no evidence in the record to establish what full time employment was in claimant's field, the court concluded that the case had to be remanded on this issue. On the maximum medical improvement issue, both the treating physician and IME doctor had re...

The court in Villafana v. Blackhawk Foundry , No. 11-1781 (Iowa App. June 27, 2012) found that the commissioner's conclusion that claimant's injury did not arise out of and in the course of employment was supported by substantial evidence.  Claimant's condition (carpal tunnel and neck problems) was originally found work related by Dr. Frederick, but she later concluded that these conditions were not related to work, but were related to earlier injuries sustained by claimant.  Dr. Milas, a neurosurgeon, indicated that he believed the injuries were related to work, although he noted that claimant was a poor historian. At the hearing level, Dr. Frederick's opinions were credited over those of Dr. Milas because it was unclear what records Dr. Milas had reviewed in reaching his conclusions.  The opinions of the deputy were affirmed without further comment.  The COA initially addresses a question of whether claimant preserved error, as he did not point to any cases in...

In College Comm. Sch. Dist. v. Orris , No. 11-1848 (Iowa App. June 27, 2012), the Court of Appeals affirmed the decision of the commissioner, which had concluded claimant was entitled to a 30% industrial award.  Claimant had appealed the action to the district court, alleging that the commissioner had improperly relied on the opinion of Dr. Buck that claimant's fibromyalgia would improve within six months.  The district court remanded to the agency to reconsider the industrial disability award without consideration of Dr. Buck's opinion on this point.  On appeal to the COA, the issue was whether the agency had improperly relied of Dr. Buck regarding claimant's future improvement. The court concluded that the agency had not improperly relied on anticipated future improvement, which would have been impermissible under Kohlhaas , but had instead relied on evidence presented at hearing that demonstrated that claimant was capable of performing her work as a teacher on a f...

In Leavens v. Second Injury Fund of Iowa , No. 11-1636 (Iowa App. June 27, 2012), the Court of Appeals affirmed the decision of the commissioner that claimant had not established a compensable SIF claim.  Presented to the court were issues involving the preclusive effect of an earlier settlement agreement, a question concerning rehearing, and the overall question of whether claimant had established a second injury. On the second injury, which was a bilateral upper extremity injury, claimant and the employer entered into what the court described as a compromise settlement under section 85.35(3).  This settlement was based on a 12/20/06 cumulative injury.  Claimant later filed a claim against the Fund, alleging a first injury from 2000, and the second injury from 12/20/06.  Benefits were awarded against the Fund at the hearing level.  Subsequent to this time, claimant filed a rehearing petition, seeking additional industrial disability.  Apparently much ...

Village Credit Union v. Bryant , No. 11-1499 (Iowa App. May 23, 2012), involved the question of whether a claimant who had been held up at gunpoint on two occasions, had established a mental/mental injury and thus was entitled to temporary benefits (the issue of permanency was not before the court in this proceeding).  Claimant was understandably upset by the events at work, and Dr. Jennisch concluded that she suffered from post-traumatic stress disorder and should work for an employer where she had scheduled appointments rather than random encounters with individuals off the street. Claimant found a job following the robberies with another employer, but had an anxiety attack shortly after beginning work, and quit that employment.  The deputy concluded, under Brown v. Quik Trip Corp., 641 N.W.2d 725 (Iowa 2002), that claimant had been subjected to events of a sudden, traumatic nature that led to unusual stress, and thus had a compensable mental/mental injury.  The de...

The court in Emco v. Samardzic , No. 11-1375 (Iowa App. May 23, 2012) was presented with an issue of medical care for an injury to the arm that had occurred years in the past, but had been aggravated by work activities with the employer arose out of and in the course of employment.  Defendants argued that the injury to the wrist was a result of progressive arthritis and was related to the initial injury (2001) and not to the more recent injury (2007).  At the deputy level, defendants prevailed, but this decision was reversed on appeal, with the commissioner finding that claimant's work activities were a substantial factor in the need for the recommended surgery.  The commissioner also awarded the costs for medical reports to claimant. Dr. Formanek opined that work was a substantial contributing factor in the injury, while Dr. Gainer concluded that the progressive arthritis was the need for the surgery.  On substantial evidence grounds, the court agreed with the ...

In ABF Freight v. Veenendal , No. 11-1862 (Iowa App. May 23, 2012), the court affirmed, on substantial evidence grounds, a finding that claimant's back problems arose out of and in the course of employment and resulted in a 20% industrial disability.  The case demonstrates yet again that if a party loses before the commissioner, and there is evidence to support the decision, it is likely that the appellate courts will rule in favor of the party who prevailed at the commissioner level on substantial evidence grounds. In Veenendal , there was evidence from Dr. Abernathey that the claim was not work related and evidence from Dr. Brady and Dr. Neiman that it was work-related, and the court found that the decision of the commissioner was supported by substantial evidence.  The court also found that the 20% industrial disability finding was supported by substantial evidence. In light of the Pease decision, which was cited in Veenendal , reversals of the commissioner's decision...

In Waldinger Corp. v. Mettler , 817 NW2d 1 (Iowa 2012), the Supreme Court finds that multiple healing periods are consistent with section 85.34(1) of the statute, and overrules its earlier decision in Ellingson v. Fleetguard , 599 N.W.2d 440 (Iowa 1999).  Mettler involved a relatively straightforward situation where claimant was found to have reached maximum medical improvement (MMI) by his doctors, was paid permanency benefits, and was later found to be in need of additional surgery for his ankle problems. That surgery was performed, and a few years later a third surgery was performed, following which claimant was off work from September 18, 2007 until December 7, 2007.  In addition to awarding permanency benefits, the commissioner found that claimant was entitled to healing period benefits following the third surgery.  Ultimately, the Court of Appeals concluded that the commissioner had no special expertise in interpreting the statute and held, based on Ellingson , t...

In Quaker Oats Co. v. Pattison , No. 11-1974 (Iowa App. May 9, 2012), the court of appeals affirmed the commissioner's finding of a permanent total disability without comment, relying on the well-reasoned decision of the district court.

Following the decision of the Supreme Court in Kohlhaas v. Hog Slat, Inc. , 777 N.W.2d 387 (Iowa 2009), the case was remanded to the agency for a determination of whether claimant met the qualifications for review-reopening absent the "contemplation" standard.  On review, the commissioner again decided against claimant, and the case was decided by the Court of Appeals on March 28, 2012.  Kohlhaas v. Hog Slat, Inc. , No. 11-1177 (Iowa App. March 28, 2012). On appeal, Kohlhaas argued that the commissioner read the remand order from the Supreme Court too narrowly.  The court noted that in order to prevail on review reopening, the claimant must demonstrate that following the original settlement, the claimant must demonstrate he suffered an impairment or lessening of earning capacity proximately caused by the original injury.  Citing Simonson v. Snap-On Tools Corp. , 588 N.W.2d 430, 434 (Iowa 1999).  The agency concluded that claimant had failed to demonstrate incr...

In Hawkeye Wood Shavings v. Parrish , No. 11-1546 (Iowa App. April 11, 2012), the court decided, based on the "well-written district court opinion," that the commissioner correctly issued a nunc pro tunc order specifying that defendants were responsible for payment of claimant's medical expenses for his injury. Mr. Parrish was represented by Martin Ozga of Neifert, Byrne & Ozga, P.C.

In Serrato v. Tyson Foods, Inc. , No. 11-1186 (Iowa App. March 28, 2012), the Court of Appeals denied the claim that claimant suffered from COPD as a result of his occupational exposures at a meatpacking plant.  Claimant had argued that chemical residues left on the machines at the plant as a part of his duties cleaning the plant had led to his COPD.  The case was originally analyzed by the deputy as an injury case under Chapter 85, but was adjudicated at the commissioner's level as an occupational disease under Chapter 85A. The claim was denied at both the deputy and commissioner levels, which noted that there was little evidence directly linking claimant's exposures at work to his COPD.  One of claimant's doctors indicated that work at Tyson was an aggravating factor, but all the doctors noted that claimant's 1-3 pack per day cigarette smoking was of greater consequence in causing the COPD.    The commissioner concluded, based on his review of claimant'...

The case of Burton v. Hilltop Care Center , 813 NW2d 250 (Iowa 2012), arose out of a unique set of facts, but has led to a decision in which the court has modified its standard of review principles and simultaneously urged the commissioner's office to rethink its manner of deciding cases. The primary issue involved in Burton was a rate question for a claimant who was allegedly supposed to receive a $1,000 per year raise, but was paid (for 15 months) a wage that was $1,000 more on a monthly basis than she had previously been receiving.  The commissioner and court of appeals concluded that the rate should be decided on the basis of the $1,000 additional per month that had been paid, and defendants challenged this conclusion, in addition to challenging a penalty finding and the award of a 30% industrial disability from abdominal injuries sustained by the claimant. In setting forth its standard of review for the case, the court cites the familiar principles of substantial evidence...

In Kent v. Diamond Shine Management Services, Inc. , No. 11-1041 (Iowa App. April 25, 2012), the Court of Appeals reiterated the importance of the substantial evidence standard in judicial review actions.  Mr. Kent had suffered injury to his bilateral shoulders, resulting in a 6% BAW rating to one shoulder, and a 4% BAW rating to the other shoulder, according to the IME doctor. Work restrictions were in the 40 pound occasional lifting category.  Claimant presented evidence that his reading and math skills were consistent with students in the upper elementary level.  Claimant also presented evidence from a vocational expert that he was unable to perform any activity in the labor market.  Following the end of the discovery period, claimant moved to add an odd lot claim, which was rejected by the hearing deputy. At the time of hearing, claimant was working, but had suffered a loss of income from $12.00 per hour to $7.50 per hour and was working only part-time.  Def...

In City of Davenport v. Newcomb , No. 11-1035 (Iowa App. April 11, 2012), the court addressed an issue that has been the subject of a great deal of controversy - the ability of the defendants to obtain an examination under section 85.39 of the Iowa Code when a claim has been denied.  The court decided, contrary to the previous views of the commissioner, that defendants had the right to such an examination in denied cases.  In Newcomb , the court also addressed issues of whether the deputy erred in permitting the testimony of certain witnesses but not other, and whether penalty benefits were appropriate. The question concerning testimony arose because one deputy heard the evidence before making a decision on the case.  The deputy assigned to decide the claim (Walshire) decided that he needed to hear from the claimant and his wife because their testimony was so different than the treating physician concerning the back problems alleged by claimant, and their credibility ha...

In Spencer v. Annett Holdings, Inc. , No. 11-1032 (Iowa App. March 28, 2012), the court of appeals addressed an alternate medical care issue involving the choice of physician when the treating physician retired.  The hearing deputy had concluded that the employer was allowed to choose the provider, despite the fact that the treating (authorized) physician had made a referral to another physician.  On judicial review, the district court reversed, and concluded that the retiring physician's recommendation of a new physician should be followed.  The court of appeals reverses the finding of the district court. At the district court level, claimant argued that under a long line of agency precedent, if there is a referral by an authorized treating physician, the physician to whom the referral is made becomes the authorized treater.  The district court accepted that argument.  The court of appeals adopted the deputy's argument that the treating physician was not maki...

Neal v. Annett Holdings , 814 NW2d 512 (Iowa 2012) represents the first time the Iowa Supreme Court has addressed issues regarding suitable work for truck drivers, who are often required to perform light duty work at a home terminal which may be hundreds or even thousands of miles away from the claimant's home.  The divided court concluded, in a 4-3 decision, that light duty work offered to a claimant who lived 387 miles from the terminal, and had family in his home state, was not suitable work under the circumstances. The evidence at hearing demonstrated that when claimant was driving, he was able to return home every weekend and occasionally during the week to his wife and three children.  Under the light duty work program, claimant was able to return only once every other weekend.  The arbitration decision found that the light duty work was suitable and that claimant had a 15% industrial disability for his shoulder injury.  On appeal, the commissioner found that...

In Westling v. Hormel Foods Corp ., 810 NW2d 247 (Iowa 2012), claimant developed shoulder problems and what was originally disagnosed as a partial rotator cuff tear, which was followed by surgery.  The operative report noted significant fraying of the anterior and superior labrum, as well as inflammation along the subscapularis muscle, but no rotator cuff tear was found.  Claimant was released with no restrictions, and the surgeon concluded that the surgery did not cause claimant to have a permanent impairment.  Claimant subsequently retired. Dr. Mary Shook performed an IME for claimant, and Dr.Shook attributed pain to arthritis and not overuse.  She concluded that claimant's current symptoms are not from repetitive tasks due to work assignments.  Dr. Shook concluded there was a 2% impairment in claimant's right shoulder and 3% in the left shoulder, both caused by arthritis.  Claimant was found to have no permanent impairment at the commissioner level....

In Tomlinson Cannon v. Whited , No. 1-878 (Iowa App. Jan. 19, 2012), the court affirmed a decision of the agency which had concluded that claimant was entitled to alternate medical care.  Claimant had originally seen Dr. Neiman for his injuries, and later filed an alternate medical care proceeding to allow him to continue care with Dr. Neiman.  During the course of the case, Dr. Neiman recommended that claimant see a podiatrist for a foot injury he had developed.  Defendants had earlier indicated that claimant should see another physician, but claimant declined to see that physician.  On the alternate medical care proceeding, claimant argued, and the agency held, that since Dr. Neiman was the authorized treating physician, the employer was not entitled to interfere with his recommendations for care.  The finding of the agency was consistent with the agency's general rule that the recommendations of the authorized treating physician cannot be contravened by the e...