Court of Appeals Holds that Injuries to Two Shoulders Are Not to be Considered Industrially Under 85.34(2)(v)

Nordstrom v. Carmer, No. 23-1423 (Iowa App. May 8, 2024)

Claimant suffered an accepted injury to her right shoulder in August of 2018. She subsequently developed pain in her left shoulder due to overcompensating for her right shoulder injury with her other arm. Claimant's IME physician opined that the left shoulder injury was due to overcompensation due to the right shoulder injury while defendants' doctor indicated that the left shoulder injury was due to rheumatoid arthritis and was not work-related.  The commissioner concluded that both shoulder injuries arose out of and in the course of employment and found that the injuries should be treated as unscheduled under 85.34(2)(v).  The district court affirmed the decision of the commissoiner.

On appeal, the Court of Appeals first concludes that the report of Dr. Segal, claimant's IME doctor, was supported by substantial evidence.  The Court noted that the decision concerning medical causation was essentially within the domain of expert testimony.  The Court saw no grounds to second guess the decision of the commissioner with respect to causation.

On the main question presented to the Court, defendants argued that shoulder injuries were to be considered as scheduled injuries under 85.34(2)(n). The fact that there were two shoulder injuries did not change the fact that these injuries were scheduled according to defendants.  Claimant argued that because the issue of multiple shoulder injuries was not discussed in 85.34(2)(a) - (u), the injuries were to be determined according to the catch-all provision of 85.34(2)(v), which provides that if injuries are not specifically discussed they are to be considered industrially.

The Court of Appeals noted the recent decision of the Supreme Court in Bridgestone Americas v. Anderson, 2024 WL 1334165 (Iowa 2024) had held that a combined injury to the shoulder and the arm was not within the catch-all provision of 85.34(2)(v).  The Bridgestone Americas Court held that claimant's injuries were not other than those discussed in subparagraphs "a" through "u" because they were mentioned in subsections "m" and "n".  The Bridgestone Court also noted that that case "was not a case of "plural shoulder injuries or plural arm injuries", seemingly indicating that these items might be considered industrially.  The Court of Appeals rejected this conclusion, however, stating that Bridgestone's statement concerning plural injuries should not "insinuate injuries to both shoulders should be treated any differently than two scheduled injuries." Because shoulders were specifically mentioned in 85.34(2)(n), plural shoulder injuries did not fall under subsection (v) and were to be treated as scheduled injuries. The case was remanded to the commissioner to determine the appropriate compensation for claimant's scheduled injuries.