2024 Workers' Compensation Appeal Decisions

 2024 Workers' Compensation Appeal Decisions

December 2024

Mulder v. Schuiteman, No. 1641929.01 (App. Dec. 13, 2024) - The deputy concluded claimant had sustained an 80% industrial disability and made findings crediting the testimony of claimant and his sister (Christenson). Defendants appeal the decision, arguing that the deputy erred in not specifically addressing certain alleged discrepancies in the record and alleging claimant was not credible.

In affirming the decision, the commissioner initially notes that the deputy had the opportunity to view claimant's testimony and that of his sister, something which the commissioner did not have.  Considerable deference was given to the credibility determinations of the deputy for that reason. Defendants also pointed to various pieces of evidence that were not mentioned by the deputy in the decision.  The commissioner finds that the deputy does not need to discuss every relevant piece of evidence and find that this bit of evidence is accepted or rejected, citing Terwilliger v. Snap-On Tools Corp., 529 NW2d 267, 271 (Iowa 1995). The governing standard is instead whether the commissioner's reasoning is sufficient for a court to ascertain the factual basis on which the decision was based.  If the path taken through the evidence is sufficient for the reviewing body to determine how the decision was reached, each and every fact in evidence need not be discussed. In this case, the deputy appropriately considered the evidence even though every piece of evidence was not discussed.  The commissioner also notes that he had reviewed all the evidence in the record for purposees of judicial review.  The commissioner also concludes that although a specific credibility finding was not made by the deputy, the decision found that as a general matter claimant's testimony and that of his sister was credible.

The commissioner concluded the decision by going through a number of examples where the defendants alleged that the deputy had not considered various evidence when, in fact, the deputy had addressed those problems. For example, defendants argued the deputy had not provided a causation analysis when the deputy had relied on one doctor with respect to causation and specifically rejected the opinions of defendants' doctor. Numerous arguments along these lines were rejected.  The decision of the deputy was accepted in full by the commissioner. 6 months from arbitation to appeal decision.

Green v. VK Logistics, L.L.C., No. 22005063.01 (Dec. 9, 2024) - The deputy afforded claimant's testimony low weight due to credibility issues and found that he had failed to prove a work injury.  The deputy noted numerous inconsistencies in claimant's testimony and dismissed the claim (Gerrish-Lampe). As per usual in this situation, the commissioner affirmed the underlying decision without additional analysis. 6 months from arbitration to appeal decision.

Hubert v. SIF, No. 22701029.01 (App. Dec. 9, 2024) - In this Fund only action, the deputy concluded claimant had not established a first injury to the left leg for Fund purposes.  For good measure, the deputy also concluded claimant had not established a second injury (Cleereman). The commissioner finds that claimant failed to demonstrate a first injury and denies Fund benefits without additional analysis. For the sake of clarity and completeness, the commissioner noted that the parties had agreed that claimant had suffered a second qualifying injury and both experts had concluded claimant suffered permanent disability as a result of that injury.  The deputy had found that Dr. Bansal had erroneously combined two impairment ratings and thus was unrealiable.  The commissioner concluded that this did not impact the fact claimant had sustained a second injury to the left arm.  Small comfort to claimant. 5 months from arbitration to appeal decision.

Perry v. Tyson Foods, Inc., No. 21010430.01 (App. Dec. 5, 2024) - Claimant was found not to be a credible witness and temporary and permanency benefits were denied, as the deputy concluded claimant had failed to meet the burden of proof (Fitch). The commissioner affirms without additional analysis. 4 months from arbitration to appeal decision.

Jones v. City of Pleasant Hill, Iowa, No. 21003206.01 (App. Dec. 4, 2024) - The deputy concluded claimant was not credible and found that she failed to carry her burden of proof to establish a wok injury (Lunn). On appeal, the commissioner affirms without additional analysis.  4 months from arbitration to appeal decision.

November 2024

Delaney v. SIF, No. 19005645.04 (Remand Nov. 26, 2024) - This is a remand of the Supreme Court decision in Delaney v. SIF, 6 NW3d 714 (Iowa 2024), in which the Court concluded that a leg injury with a sequella injury of lymphedema was a second injury for Fund purposes and that the commissioner's determination of the value of the SIF claim was "only the extent to which [the employee's] earning capacity was diminished by the combined effects of the . . . losses to her enumerated extremities." The Court remanded to the commissioner for a determination of claimant's loss of earning capacity from her first and second injuries.

On remand, the commissioner noted claimant's first injury to the left ankle and second injury to the right knee.  Claimant had a knee arthroplasty following the right knee injury and was ultimately fired by the employer because she could not meet productivity expectations.  Claimant testified that although she was able to do her job she did not seem to be able to work fast enough to suit the employer. Claimant subsequently found work at a flower shop, but left because she was not given enough hours.  Claimant subsequently too social security retirement benefits.  Her restrictions were to avoid kneeling, no use of ladders and no prolonged standing or walking.  The commissioner finds that claimant was entitled to a 40% industrial disability, largely due to the fact that claimant had not had any difficulty with productivity prior to her injury.  The commissioner also noted that the lack of motivation to return to work was not compensable.  The 40% award was reduced by the functional loss from the first injury (11% of the leg) and second injury (37% of the leg).

Johnson v. Cinemark Holdings, Inc., Nos. 1656302.01, 21006471.01 (App. Nov. 19, 2024) - In the first action, claimant was found to has sustained a permanent functional impairment of 26% of the body.  In the second action, claimant was found to have a 38% injury to the left lower extremity.  The deputy concluded that apportionment did not apply as the effects of the second injury (to the left leg) were not coextensive with those from the first injury (a left knee injury that developed into CRPS).  Because the impairment from the second injury was due only to the second injury, apportionment was not applicable (Christenson). Defendants appeal and the commissioner affirms on the extent of both injuries as well as non-apportionment, with no further disucssion.  5 months from arbitration to appeal decision.

Jimmerson v. Ultimate Auto and SIF, No. 1630457.01 (App. Nov. 7, 2024) - Claimant suffered an injury to his right leg (pre-July 2017), diagnosed as lymphedema.  He filed actions against the employer as well as the Fund, with a first injury to the left leg.  The deputy concluded claimant's lymphedema was a body as a whole injury and awarded a 60% industrial disability due to the lymphedema.  No benefits were awarded against the Fund.  The employer received 30% credit for an earlier (pre-2017) industrial shoulder injury (Fitch).

On appeal, claimant argues that the 60% industrial award was appropriate, but also argues that an award against the Fund was merited, based on the first and second injuries, citing Delaney v. SIF, 6 NW3d 714 (Iowa 2024).  The employer argues that the injury for which it was responsible was not an industrial injury, but a scheduled member injury.  The Fund argues that the injury was industrial and there should be no liability against the Fund.

On appeal, the commissioner reverses the finding that claimant's injury was to be treated industrially.  He finds that although claimant had lymphedema, which is a blockage of the body-wide system of blood vessels, all  of claimant's symptoms and functional limitations were confined to and limited to the right leg. The commissioner noted that Delaney concluded that a determination of whether an injury was a whole body injury for Fund purposes was a "fact-based inquiry that must be determined on a case-by-case basis."  In this case, as noted above, the commissioner concluded that the injury affected only the right leg and thus was to be considered functionally. The commissioner awards 99 weeks of benefits for the right leg injury and indicates that defendants are not entitled to credit.

The commissioner then finds that claimant had sustained a cognizable Fund claim and concludes that, based on the the left knee injury and right knee injury, claimant had suffered a 30% industrial disability, based on the fact that claimant had informal limitations of no prolonged standing or walking for more than 30 minutes and the fact that claimant was able to continue his current job as a driver. The Fund received credit for the 99 weeks of benefits payable for the right knee injury and 4.4 for the first injury to the left leg, and thus owed 46.6 weeks of benefits. Claimant thus receives 5.4 weeks of benefits less than in the original decision. 12 months from arbitration to appeal decision.

October 2024

Franck v. Rudd Sanitation, Inc., No. 1665762.01 (App. Oct. 29, 2024) - Claimant was found to have injured his cervical spine and shoulder and was awarded a 15% industrial disability. IME costs were limited to the amount of the impairment examination (Gerrish-Lampe). Claimant argues on appeal that because he continued to work for the employer at the same or higher wages, the award should have been functional, which in this case would provide a larger award. A five percent penalty was also awarded. The penalty award was affirmed.  With respect to the industrial/functional argument, the commissioner notes that the deputy did not address this issue in the arbitration decision and also notes that the issue was not raised in the hearing report or in the evidentiary hearing. The parties did dispute, however, whether the issue was industrial vs. functional.  Claimant's brief referenced the issue in a "single sentence" according to the commissioner, "no supporting argument or discussion was provided." In this case, the commissioner finds that although claimant returned to full duty work at the same or higher wages, he had retired from employment.  This, according to the commissioner, was sufficient for consideration of the injury as industrial under 85.34(2)(v), citing Martinez v. Pavlich, No 5063900.  The commissioner, citing Mid-American v. Sandlin, 2 NW3d 838 (Iowa 2024), finds that the entire cost of the examination and report and awarded the full amount of the IME. 7 months from arbitration to appeal decision.

Reistroffer v. Quality Concrete Company, No. 19006100.02 (App. Oct. 29, 2024) - The deputy concluded claimant had suffered a 34% body as a whole functional impairment and rejected defendants' motion to exclude claimant's IME report, finding there was no prejudice to defendants (Pals). Penalty was denied. On appeal, the commissioner affirms without additional analysis. 3 months from arbitration to appeal decision.

Storey v. Sapp Bros., Inc., No. 21000470.01 (App. Oct. 24, 2024) - Claimant was found to have sustained a 20% industrial disability (Lunn). On appeal, defendants allege claimant was not credible and claimant argues that the award should be increased to 40%.  The commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Stevens v. Health Carousel, LLC, No. 21010196.02 (App. Oct. 22, 2024) - Claimant was found  to have sustained an injury resulting in a running healing period award. Penalty benefits of $2000 were awarded based on unreasonably underpaid or delayed benefits of $6186.83.  Alternate medical care including a lumbar fusion surgery was awarded (Grell). The commissioner affirms the award without additional analysis. 5 months from arbitration to appeal decision.

Wooff v. Nine Park Lane, Inc., No. 20000076.02 (App. Oct. 18, 2024) - Claimant was found to have sustained a right shoulder injury, neck injury and a mental injury and was awarded a 55% industrial disability.  A 35% penalty was awarded on delayed weekly benefits (Phillips). Defendants argue that the neck and mental health injuries were not related to claimant's work. Alternatively, defendants argue that industrial benefits should not have been awarded since claimant was offered a position to return to employment at higher earnings. Defendants argue that claimant's injuries are to be determined functionally un 85.34(2)(v).  Claimant asserts that he was permanently and totally disabled.

The commissioner affirms the decision that causation of all injuries was proven by claimant.  He rejects claimant's argument that the deputy required claimant to provide vocational analysis in order to prove permanent total disability, finding that although such opinions are potentially convincing, they are not required to prove PTD. The commissioner goes on to note that claimant was offered employment consistent with his restrictions by the employer. According to the commissioner, claimant did not believe he was qualified for the position, but did not really dispute he could physically perform the job (the arbitration decision notes that claimant was likely "not qualified" for one of the jobs offered and that claimant testified the other job was too physically and mentally demanding).  The commissioner ultimately affirms that claimant was not permanently and totally disabled.

The commissioner then goes on to find that although claimant established an industrial injury, because he had been offered employment at a higher wage, the case was to be considered functionally rather than industrially under 85.34 (2)(v).  Defendants argued on appeal that the deputy did not specifically discuss this provision in the decision and the appeal decision indicates that claimant did not address this provision in the brief. The terms of the employment offer would have paid claimant more than he was earning at the time of the injury. Because claimant was "offered work" at a "greater salary" the commissioner concluded that 85.34(2)(v) compelled consideration of the case functionally. The commissioner finds claimant had a 41% whole body functional impairment (35% for the neck injury and 9% for the shoulder injury).

The commissioner reverses the deputy on the issue of payment of past medical expenses, finding that because defendants had denied the neck injury, it could not assert the authorization defense to deny payment of those medical expenses. Emergency room care was ordered to be paid by claimant for the neck injury.  Certain other medical expenses that occurred after defendants had authorized care were denied.  the commissioner also finds that a penalty of $2500 on late or unpaid benefits of $8100 was appropriate. 7 months from arbitration to appeal decision.

Baker v. MSC Industrial Direct Co., Inc., No. 5063687.01 (App. Oct. 16, 2024) - In the initial actions on this case, claimant was found to be entitled to a running healing period of benefits, a finding that was affirmed on judicial review.  After claimant reached MMI, the case returned to the agency and the deputy (Phillips) originally concluded that claimant was not PTD under a traditional industrial disability analysis, but was PTD under the odd lot doctrine.  Defendants, on rehearing, argued that claimant had not raised the odd lot issue and this issue had been waived.  The deputy agreed and awarded claimant a 98% industrial disability. Claimant appeals and on appeal the commissioner finds that claimant is permanently and totally disabled under a traditional industrial disability analysis.

Claimant's injury occurred when he was struck on the head by a 1000 pound cabinet. He was found to have a TBI as well as mental health difficulties.  Although claimant was found to have reached MMI for the TBI, he had not reached MMI for his mental health problems. Claimant's primary physician opined that claimant cannot work and requires constant supervision at home for his physical injuries. Dr. Manshadi also concluded claimant could not be gainfully employed. Claimant continued to treat with Dr. Manshadi and with Dr. Gallagher for mental health issues.  Following the initial opinion, claimant was found eligible for social security disability. At the time of the hearing, claimant was also receiving ongoing in-home care (the caregiver was paid for 16 hours a day).

The commissioner concludes claimant had reached MMI for his mental health injuries as of December 22, 2022, the date that a psychologist had opined he had reached MMI. The commissioner concludes that claimant suffered a permanent impairment as a result of the work injury.  With respect to the extent of disability, the commissioner concludes that because of ongoing memory issues, claimant was not a good candidate for retraining.  Although claimant had not looked for work, the commissioner concludes that this was not a definitive finding of lack of motivation in this case, inasmuch as claimant had effectively been precluded from driving since 2017.  The commissioner also noted that claimant required 24 hour care and accepted the opinions of Dr. Manshadi and Dr. Gallagher that claimant was not capable of returning to work. Permanent total disability was found by the commissioner.

The commissioner also concludes that claimant continues to require 24 hour surveillance, noting that there was no sufficient evidence to rebut the issue. The commissioner awards claimant's caretaker payment for 112 hours per week at a rate of $16.46 for 2022 (with lesser hourly rates for prior years).  Claimant had also entered into a 3d party settlement with multiple defendants in the amount $1 million.  Defendants received credit for the settlement and were ordered to pay 1/3 of each weekly benefit amount to claimant's attorney.  7 months from arbitration to appeal decision.

Tremaine v. Arconic Corp., No. 21012392.01 (App. Oct. 4, 2024) - The deputy concluded claimant had failed to carry his burden of demonstrating that an August 12, 2021 work injury caused or accelerated claimant's pre-existing left hip condition.  No benefits were awarded and payment for the IME was denied (Phillips). The commissioner affirms without additional analysis.  4 months from arbitration to appeal decision.

Iske v. Graphic Packaging International, No. 22014213.01 (App. Oct. 3, 2024) - Claimant was found to have sustained a work-related shoulder injury, but the deputy also concluded that claimant had suffered an intervening injury to his right shoulder outside of work after the work-related injury. The intervening "injury" occurred when claimant turned over in bed and "did something wrong to his shoulder." No temporary or permanency benefits were awarded, although defendants were obligated to hold claimant harmless for all medical care they had authorized from the date of injury on January 17, 2022 until May 16, 2023.  Medical expenses after May 16 were denied (Grell).  On appeal, the commissioner affirms the decision of the deputy without additional analysis.  4 months from arbitration to appeal decision.

September 2024

Horne v. United Technologies Corp. and SIF, No. 21005075.01 (Remand Sept. 26, 2024) - In this case, claimant's simultaneous arm and shoulder injury was found to be a qualifying second injury for Fund purposes.  On appeal, this finding was affirmed.  The Fund filed an application for rehearing, arguing that under the district court decision in Anderson v. Bridgestone Americas, which found that a shoulder/arm injury was to be treated industrially, Fund benefits were inappropriate.  The rehearing application was granted based on the status of the shoulder/arm issue at the time.

Ultimately, the district court decision in Bridgestone Americas was reversed by the Supreme Court, with the shoulder/arm injury treated as scheduled.  Following a judicial review action, the district court remanded the claim to the agency for further consideration in light of Bridgestone Americas.  On remand, the commissioner finds that the arm injury was a qualifying injury for Fund purposes.  The shoulder injury was not such a qualifying injury since it was not enumerated under section 85.64. Citing West v. SIF, No. 20001935.01 (App. April 21, 2022).  Based on a first injury (2% leg injury) and the second arm injury (also a 2% injury), the commissioner finds that the industrial disability is 10% and was entitled to 40.6 weeks of benefits from the Fund (50 weeks minus 9.4 week credit).  5 months from remand to commissioner's remand decision.

Kingsbury v. Second Injury Fund of Iowa, No. 21012812.01 (App. Sept. 25, 2024) - The deputy dismissed claimant's action against the Fund on summary judgment, finding that claimant's compromise settlement with the employer on the second injury, vitiated claimant's argument that she had a second qualifying loss.  Claimant appeals, arguing that there were disputed issues of fact and law, making summary judgment inappropriate.  On appeal, the commissioner affirms without additional comment. 4 months from arbitration to appeal decision. 

Pruis v. Medplast, Inc., No. 5058256 (App. Sept. 24, 2024) - The appeal in this case involves only the question of penalty.  The deputy awarded claimant a penalty of $1000 for benefits of $111,459.17 from a roughly four year period that were paid late (Pals). In the underlying claim, permanent total disability was found and defendants filed for judicial review, during which a stay of the judgment was granted.   The district court ultimately affirmed the judgment and lifted the stay. Defendants appealed and a supersedeas bond was posted. On December 7, 2022 the Court of Appeals affirmed and no further appeal was filed. 15 days after the decision of the Court of Appeals, defendants paid accrued benefits. The commissioner finds that these benefits were paid late.  One further weekly benefit check was also found to be late.

The commissioner affirms the finding that penalty was due claimant.  The commissioner finds, however, that defendants were not required to pay benefits during the appeal process in light of the fact that they obtained a stay and later posted bond.  The commissioner concludes that in light of this fact there was no duty on the part of defendants to conduct a re-evaluation of the claim during the appeal process.  The commissioner also found that claimant was provided with timely notice of the reason for denial.  After the appeals were concluded, however, the payments made by defendants were late without reasonable cause or excuse.  The commissioner increases the penalty from $1000 to $12,000, representing a $1000 penalty for each of the 12 days the payments were late. 4 months from arbitration to appeal decision.

Rahbusch v. Pella Corp. and SIF, No. 22700490.01 (App. Sept. 18, 2024) - Claimant was found  not credible and the deputy (Cleereman) concluded he had not sustained a compensable injury. The commissioner affirms without additional analysis.  6 months from arbitration to appeal decision.

Van Syoc v. Mid-Iowa Restoration, No. 22700654.01 (App. Sept. 16, 2024) - Claimant was found not to be a credible witness, but the deputy (Christensen) found he had sustained an injury arising out of and in the course of his work activities.  The deputy went on to conclude, however, that claimant had not sustained either temporary or permanent disability and so awarded nothing in benefits.  IME costs were denied.  On appeal, the commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Urgell-Rueda v. MCS Communication LLC, and Eagle Boring Group,  No. 22700540.01 (App. Sept. 12, 2024) - In this death case, one of the issues was the identity of the correct employer for claimant's decedent.  Both the deputy (Lunn) and commissioner conclude that Eagle Boring Group was the correct employer as the evidence suggested that this entity was responsible for paying claimant's wages.  More importantly, the deputy concluded claimant was intoxicated at the time of death and had not overcome the presumption that the intoxication was a substantial cause of the accident in question. Claimant had been found to have marijuana in his system and although claimant's expert indicated that the drug finding was not reliable and could not be related to the injury, the deputy concluded based on testimony from defendant's expert that the blood testing was consistent with claimant having smoked marijuana shortly before the accident and that there was a severe impairment in performance tests in such circumstances.  The commissioner affirms this conclusion without additional analysis. 3 months from arbitration to appeal decision.

Kowalske v. Dubuque Steel Products, No. 21008309.02 (App. Sept. 9, 2024) - The deputy concluded claimant's testimony was unreliable and in conflict with the documentary evidence in the case.  Ultimately, the deputy found that claimant failed to establish causation and that claimant's longstanding back and hip issues were unrelated to work (Gerrish-Lampe).  Claimant appeals and the commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Smith v. H.D. Supply Management, Inc., No. 20006595.02 (Remand Sept. 5, 2024) - The commissioner's original decision had treated a shoulder arthroplasty and arm injury as a body as a whole injury.  On judicial review, the district court concluded that the injury should be treated as a scheduled matter and remanded to the agency.  The agency finds that under Bridgestone Americas v. Anderson, 4 N.W.3d 676 (Iowa 2024), a simultaneous injury to an arm and shoulder is to be treated as a scheduled injury. The commissioner concludes claimant is entitled to 112 weeks of benefits for the shoulder injury (28%) and five weeks of benefits for the right arm injury (2%).  The commissioner also concludes claimant is entitled to temporary benefits for the period between when claimant's payments were stopped (May 10, 2021)  and the finding of MMI (November 2, 2021).  Finally, the commissioner imposes a penalty of $19,000 for the defendants unreasonable denial of benefits after May 10.  The commissioner concludes that Dr. Fabiano's responses to questions concerning causation were unclear and did not provide a reasonable basis for terminating benefits.  Defendants did not attempt to follow up on this unclear opinion and the failure to investigate was also unreasonable.  4 months from remand to commissioner's remand decision.

August 2024

Thu v. Tyson Fresh Meats, Inc., Nos. 22000570.01, 22701040.01 (App. Aug. 22, 2024) - At hearing, claimant was found not to be a credible witness.  Although the deputy concluded claimant had suffered injuries to the left and right shoulders, these injuries were found not to lead to entitlement to either temporary or permanency benefits.  Alternate medical care was denied (Phillips). On appeal, the commissioner affirms without additional analysis other than to indicate that the deputy's credibility finding was entitled to deference. 6 months from arbitration to appeal decision.

Lamb v. MAC Concrete Construction, No. 20014597.01 (App. Aug. 16, 2024) - The deputy concluded that although claimant was not a credible witness, a 35% industrial disability was appropriate (Pals). Before claimant’s attorney filed briefs with the deputy, the attorney’s withdrawal from the case was accepted.  Claimant appealed, but the appeal was not timely.  In addition, briefs on appeal were not filed in a timely manner.  Claimant also failed to pay for a transcript on appeal.  The commissioner spends most of the time on appeal discussing the reasons why a dismissal of the appeal was appropriate, including a discussion of why the filing of a timely appeal was jurisdictional.  The commissioner also found the failure to file timely briefs and pay for the transcript justified dismissal of the appeal.  Nonetheless, the commissioner noted that on the merits, he would have affirmed the decision of the deputy. 6 months from arbitration to appeal decision.

Emunah v. 81N Prime, LLC, No. 22004062.01 (App. Aug. 13, 2024) - Claimant was found to have sustained a left wrist injury, but did not prove that her carpal tunnel was related to this injury.  A left shoulder injury was also denied.  No temporary, permanency or medical benefits were awarded for any of the injuries.  Dr. Sassman's IME costs were awarded (Humphrey).  Claimant appeals and the commissioner finds, pursuant to Iowa Code sections 17A.5 and 10A.321, that the deputy's decision is affirmed.  The only additional analysis is with respect to the payment for Dr. Sassman's IME  On this issue, the commissioner strikes a portion of the conclusions as unnecessary to resolution of the issues presented in the case.  The commissioner notes that the stricken portion of the conclusions may be inconsistent with Larson v. Thorson.  The stricken portion indicates that a decision on payment of multiple IME's is dependent on the facts of the case.  With this redaction, the deputy's decision is affirmed. 5 months from arbitration to appeal decision.

Morgan v. Advanced Crop Management, Inc., No. 23700026.01 (App. Aug. 5, 2024) - Although claimant was found to have sustained a work injury, the deputy (Phillips) concluded there was no entitlement to temporary or permanency benefits.  Claimant appeals, and the commissioner affirms with no additional analysis.  3 months from arbitration to appeal decision.

Loew v. Menard, Inc., Nos. 1652966.01, 20700736.01 (Remand Aug. 2, 2024) - The Supreme Court remanded this case to the commissioner to determine permanency for a 2018 work injury, which the commissioner had concluded did not entitle the claimant to additional benefits.  The Court concluded that under 85.34(7), the new injury was not a preexisting disability, but a new disability for which compensation was required.  The Court also indicated that an offset of a previous disability with a functional disability occurring with the second injury was "incommesurable, and it makes no logical sense to use one award to offset the other.  Thus, the sole issue on remand was to determine the extent of claimant's injuries.

The commissioner concludes on remand that since the claimant's hourly wage had increased following both of his injuries, claimant was entitled only to functional consideration of the extent of the injury.  Dr. Bansal was the only doctor who had provided a rating of the 2018 injury of 8% in addition to the 20% loss claimant had suffered as a result of the earlier injury.  The commissoiner awards the 8% body as a whole rating found by Dr. Bansal.  6 months from appellate decision to remand decision.

July 2024

Tuttle v. ADM, Nos. 20003796.03, 21011955.02, 22700262.01 (App. July 31, 2024) - Claimant was found to have sustained a leg injury in one of the proceedings, an aggravation of a back back injury in another (for which claimant was awarded a 60% industrial award, and and was denied benefits for an aggravation of a hip condition in the third action (Phillips, in a 102 page decision). The commissioner affirms on all three claims, but provides additional analysis with respect to the back claim.

Claimant had argued that she was odd lot and the commissioner concurs that she met her initial burden of proving odd lot.  Because defendants’ vocational expert produced evidence of jobs claimant could perform and because the department of vocational rehabilitation indicated that there were certain at-home jobs claimant could perform, the commissioner found defendants met their burden of production, thus defeating the odd lot claim.  The commissioner then went on to note that claimant demonstrated no motivation to work and did not apply for work after her injury and accordingly denied the claim for PTD benefits and affirmed the 60% award. 9 months from arbitration to appeal decision.

Klein. v. Whirlpool Corp., No. 1656402.03 (App. July 30, 2024) - The fighting issue in this case is whether the application of a modifier for a rating of impairment for a distal clavicle excision is appropriate under the Guides. Defendants’ physician applied such a modifier, claimant’s IME doctor did not and claimant was provided the lower rating as a result of the modifier (Gerrish-Lampe). Claimant asserts the deputy used agency expertise in applying the modifier, contrary to 85.34(2)(x). The commissioner affirms the decision of the deputy, concluding that use of the modifier was appropriate. The commissioner finds that reference to the Guides is not a factual finding, but an application of the law to the facts, which is within the commissioner’s expertise and not violative of 85.34(2)(x). The commissioner also concludes that since the Guides are the appropriate means of determining the extent of a scheduled impairment, failure to ignore binding law would be inappropriate. The commissioner also rejects the assertion that the deputy should have given official notice of intent to utilize the Guides in this case.  According to the commissioner, the agency can and must use agency expertise to read, interpret and apply the governing law.  The decision of the deputy was affirmed. 6 months from arbitration to appeal decision.

Devorss v. Sears Manufacturing Homes, Inc., Nos. 22008635.01, 22004720.01, 22008634.01 (App. July 23, 2024) - In these three claims, the deputy concluded claimant had failed to meet his burden of proof in all three claims (Humphrey). Claimant appeals and the commissioner affirms without additional analysis. 6 months from arbitration to appeal decision.

Hawk v. Compass Group, USA, No. 21700950.03 (App. July 22, 2024) - The deputy concluded claimant was a credible witness and had sustained a permanent impairment for which he was not at MMI.  Healing period benefits were not awarded as this was not presented as an issue on the hearing report. Alternate medical care was also awarded (Lunn). Defendants appeal and claimant cross-appeals.  The commissioner affirms without additional analysis. 5 months from arbitration to appeal decision.

Gustin v. Central States Roofing, No. 19003652.02 (App. July 17, 2024) - Defendants filed a motion for rehearing of an arbitration decision, arguing that they were entitled to a credit of approximately $36,000. The deputy allowed the credit (Gerrish-Lampe).  On appeal to the commissioner, the credit is affirmed without additional comment. 4 months from rehearing to appeal decision.

Stuart v. Dickten Masch Plastics, No. 5056493.01 (Remand July 17, 2024) - The Court of Appeals remanded this claim to the agency to apply the correct legal standard on a review-reopening petition.  The appellate court concluded that, in determining whether a plant closure could be a change in economic condition a general layoff did not preclude a finding of change in condition.  In this case, claimant had been accommodated in her work prior to the general layoff and argued that the layoff constituted a change in condition because the accommodations provided her did not exist in the general workforce.  The commissioner finds, based on the decision of the COA that the question to be answered was whether claimant received accommodations after her initial injury.  Since there was no evidence to the contrary, the commissioner found in the affirmative on this issue.

Following the layoff, claimant attempted to find work but was unable to do so given her significant limitations, which limited her to sedentary work. The record suggested, according to the commissioner, that potential employers were not willing to accommodate the restrictions.  Claimant was also limited in her intellectual abilities (could not operate a computer or write checks). The commissioner concluded claimant had suffered an economic change in conditions and then found, based on claimant's significant restrictions and inability to find work that she was permanently and totally disabled. The commissioner found odd lot, as defendants witnesses did not submit evidence of any jobs claimant could actually perform.  In the absence of odd lot, the commissioner also found claimant was permanently and totally disabled. 8 months from COA decision to remand decision.

Koudelka v. Winnebago Industries, Inc. No. 22700142.01 (App. July 17, 2024) - Claimant was found not to have sustained a work-related injury (Lunn). The commissioner affirms the dismissal of the case without additional analysis. 5 months from arbitration to appeal decision.

Ojeda v. Sivyer Holdings, LLC, No. 20008020.01, 21005432.01 (App. July 8, 2024) -  On the first file, claimant was struck on the side of his head by a chain and reported various injuries.  The deputy concluded claimant had sustained no permanent disability for the injuries.  In the second claim, an injury to the shoulder was found to be a scheduled injury to the shoulder and not an industrial injury (Pals). The commissioner affirms the decision of the deputy with additional analysis.

Claimant argued that he had difficulties chewing solid food following the first injury, and Dr. Bansal provided an impairment rating concerning this injury.  Claimant testified at hearing, however, that he had not had a conversation with Dr. Bansal about difficulties chewing food and in light of this testimony, the commissioner found Dr. Bansal's opinion lacking in factual foundation and discounted that opinion as had the deputy.  The commissioner also found that the deputy had not utilized agency expertise to interpret the Guides but instead had concluded that the factual premise of the claim had not been presented to Dr. Bansal. No permanency was found.

Claimant underwent a shoulder arthroplasty.  Using the functional analysis of Chavez, the commissioner concludes that the purpose of the rotator cuff repair was to affect and improve the functionality of the shoulder. The commissioner based this conclusion on the opinions of the surgeon that the shoulder arthroplasty was for protection of the right shoulder and did not extend beyond the shoulder.  The commissioner also rejected an odd lot claim, finding that such a claim was inappropriate absent an industrial disability claim. 5 months from arbitration to appeal decision.

June 2024

Koeller v. Cardinal Logistics Management Corp., No. 22012068.02 (App. June 27, 2024) - The deputy concluded claimant had suffered a 13% shoulder impairment, found that claimant was entitled to three exemptions in determining his rate, was entitled to payment of an underpayment of healing period benefits, was not entitled to penalty benefits and was entitled to past medical expenses (Rutherford).  The commissioner affirms the deputy on all of these issues.  The commissioner modified the decision of the deputy concerning payment of IME expenses, ordering that claimant was entitled to reimbursement of expenses for Dr. Taylor's examination of claimant and payment for his imposition of restrictions and recommendations for future medical care.  The $570 for this part part of the IME were ordered reimbursed in light of MidAmerican Construction, LLC v. Sandlin, 2 N.W.3d 838 (Iowa 2024). 3 months from arbitration to appeal decision.

Fridley v. Securitas Security Services, No. 21006485.02 (App. June 10, 2024) - In this appeal decision, the commissioner reduces an 85% industrial award to 60% and rewrites the decision of the deputy (Walsh) as a part of the decision. Claimant suffered an extremely serious auto accident as a part of his employment - so serious that he was not expected to live. Claimant suffered a fractured tibia, DVT, pneumonia while hospitalized and was also found to have suffered a brain injury by Dr. Jacoby. Dr. Demarest concluded that there was no neuropsychological injury, but found claimant suffered adjustment difficulties following the accident. Claimant also suffered from severe oropharyngeal dysphasia.

Claimant testified he was unable to return to past work and Securitas did not offer employment. Claimant walks with the aid of a cane and also has balance issues. Claimant was said not to have complied with vocational assistance that was offered and the commissioner concluded he was poorly motivated to return to work. Claimant’s vocational expert found a 100% loss of earning capacity based on an FCE and a 77% loss of earning capacity based on Dr. Sassman’s report.

Dr. Sassman noted the traumatic brain injury, leg injury, vocal difficulties and continuing back problems. She provided a 29% whole body rating and concluded claimant could not lift more than 20 pounds, could not kneel or crawl and should not work on ladders.  The commissioner credited Dr. Sassman’s report. He ordered payment of the report by defendants, although he finds that the cost of the report was on the high side of reasonable.

The commissioner first finds claimant was not an odd lot employee, concluding that defendants’ vocational testimony and the lack of a job search rebutted claimant’s primary facie claim for odd lot. Although the commissioner concludes that claimant was unable to return to “virtually any” of his past employment, the vocational evidence from defendants demonstrated that claimant was still employable. As I so many cases, claimant’s alleged lack of motivation ultimately led to the conclusion that claimant’s industrial loss was limited.  The commissioner concluded that claimant, who was 49, had tranferable skills that would allow him to retrain and return to the labor market. A 60% industrial award was found appropriate.

The commissioner also concluded that claimant’s wages were correctly computed under 85.36(6), as his hourly earnings fluctuated depending on whether he was on on-call status. The commissioner also orders a $500 penalty, as ten weeks of benefits were paid in an untimely manner. 7 months from arbitration to appeal decision.

May 2024 

Roth v. General Millls, Inc., No. 1657652.01 (App. May 3, 2024) - Claimant was found to have sustained an injury to the shoulder, but the injury was found not to have extended to the body. Claimant was found eligible for 24 weeks of permanency benefits.  Unauthorized medical care received by claimant was denied (Phillips). On appeal the commissioner affirmed the decision of the deputy without additional analysis. 4 months from arbitration to appeal decision.

April 2024

Poe v. Capital Express, Inc. and SIF, No. 22004117.01 (App. April 30, 2024) - In this action, claimant was found to have sustained a 6% injury to the leg and was awarded healing period benefits from April 4, 2022 through August 21, 2002.  A 50% penalty was awarded on all accrued weekly benefits for an unreasonable delay in payment without conveying the reason for the delay (Walsh).  Fund benefits were also awarded, but were not a part of the appeal.  The employer appeals the award of healing period benefits as well as the imposition of a penalty on healing period benefits.

The commissioner reverses the award of healing period benefits.  Claimant's counsel had repeatedly pursued an answer as to whether he would be paid and asked for an explanation as to why payment was not forthcoming.  Defendants set claimant up for an IME and indicated that once the IME was conducted and liability affirmed, benefits would be paid, but also indicating that if claimant refused to attend the IME, no benefits would be paid and claimant would forfeit his rights under 85.39. Claimant indicated that all medical appointments should be cancelled until a determination was made on compensability.  The appointments were thereafter cancelled.  Defendants argued that because claimant failed to attend the IME, benefits were forfeited.  Claimant argued that defedants' actions in failing to provide medical care, denying weekly benefits and awaiting an IME were unreasonable. Claimant argued that defendants failure to provide any details of the request for an IME should result in an award of healing period benefits.

The commissioner finds that the plain language of 85.39 ("refusal of the employee to submit to the examination [requested by the employer] shall forfeit the employee's right to any compensation for the period of the refusal.") required claimant to attend the IME and the failure to attend resulted in a forfeiture of claimant's rights to healing period benefits after claimant declined to attend the IME (6/8/22) The permanency award was affirmed.  On the penalty issue, the commissioner found that prior to June 8, defendants never provided a reasonable basis for delay or denial of the claim and awarded a 50% penalty on those benefits.  5 months from appeal to arbitration decision.

Burden v. United Parcel Service, No. 21013153.01 (App. April 24, 2024) - Claimant was found credible by the deputy, who concluded claimant had suffered a left knee injury as well as a neck injury.  Because claimant continued to work for more wages than at the time of the injury, the claim was considered functionally and claimant found to have a 27% whole body impairment (Walsh). Defendants argued that claimant had not sustained a compensable neck injury on appeal and urged that Dr. Taylor's IME should not have been credited over claimant's treating physician.  The commissioner affirms the decision of the deputy.  The commissioner noted that claimant had stated he had symptoms that were indicative of cervical spine involvement early in the injury process.  The commissioner noted that the treating neurosurgeon had clearly identified a cervical injury and that this bolstered the credibility of Dr. Taylor's IME. 5 months from arbitration to appeal decision.

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.