State News

Alice Talton v. Fleur Delis Motor Inns, Inc. and Cambridge Integrated Services Group, Inc., Iowa Court of Appeals, No. 2-1095 / 12-0999

The Claimant suffered a work related injury on April 17, 2007, when a seven pound can of tomatoes feel from a height of six feet and landed on her left foot. Primary care for her foot was referred to Dr. Robert Eells. The Claimant was diagnosed with an injury to the first metatarsal head. After approximately three months of care, Dr. Eells referred the claimant to Dr. Eric Barp, a foot surgeon.

Dr. Barp diagnosed the claimant with a fractured fibular sesamoid on her left foot that he believed would heal with conservative treatment. He noted that the claimant’s back pain should subside once she was out of the CAM boot. Dr. Barp wrote to the nurse case manager on November 20^th, indicating the Claimant should stop using her CAM boot that day. The letter also indicated the Claimant to be at maximum medical improvement and that her left big toe arthritis was unrelated to her work injury.

The Claimant then sought treatment on her own initiative from Dr. Vincent Mandracchia on January 11, 2008. Her condition was diagnosed as degenerative joint disease with hallux limitus first metatarsal phalangeal joint on the left. On January 31^st, an exostectomy was performed by Dr. Denise Mandi. The Claimant then saw Dr. David Wadle and Dr. Dana Simon for her back pain. Dr. Simon indicated the Claimant’s back pain was probably secondary to the antalgic gait abnormality, maybe somewhat contributorily. Dr. Wadle indicated the Claimant’s altered weight bearing activities seem to have aggravated a pre-existing condition in her low back. The Claimant also saw Dr. Timothy Kenney for her knee pain. Dr. Kenney indicated the claimant’s altered weight bearing aggravated a pre-existing condition in her arthritic right knee but believed this to be a temporary condition caused by her altered gait while wearing the CAM boot.

On July 8, 2009, Dr. Mandracchia wrote a letter explaining her believed the joint disease and cartilage damage in the claimant’s left big toe directly resulted from her April 2007 work injury and that a joint replacement was a better option over conservative treatment.

The Claimant filed a workers’ compensation petition on January 16, 2009. It was stipulated that the Claimant sustained a left foot injury in the course of her employment; however the Claimant also alleged she experienced right knee and low back problems resulting from the injury. At hearing on August 19, 2010, the deputy ruled in the Claimant’s favor finding the left foot injury altered her gait and caused her right knee and low back problems. Temporary partial disability and alternate medical care were awarded, but as the deputy did not believe the Claimant to be at maximum medical improvement, no permanent benefits were awarded.

On appeal to the Commissioner, it was found that the Claimant’s left foot injury had healed and the ongoing problems she had with her left foot, right knee and low back were unrelated. Temporary disability benefits were awarded through November 20, 2007, the date Dr. Talton had found the Claimant reached maximum medical improvement. The Claimant’s requests for penalty and alternate medical care were denied. This decision was affirmed by the district court.

On appeal to the Court of Appeals, the Court first took up the issue as to whether the Claimant’s April 17, 2007 work injury caused the ongoing problems in her left foot, right knee and lower back. The Court first noted that medical causation is essentially within the domain of expert testimony and that the weight to be given those opinions is for the commissioner to determine.

The Court stated that the commissioner ultimately concluded Dr. Barp’s opinion deserved the greatest weight as it was consistent with the overall medical evidence. The Commissioner also determined that the opinions of Dr. Mandracchia and Mandi should be given little weight as “their own contemporaneous medical treatment notes and records are not consistent with their later causation opinions.” As the record presented a conflict of medical evidence, the commissioner was entitled to place greater weight on one opinion over the other.

The Court next took up the issue as to whether the Claimant’s ongoing left foot, right knee and lower back problems did not arise out of and in the course of her employment. The Court found that the Commissioner’s decision that the Claimant’s ongoing left toe, right knee and low back pain were unrelated to her alleged work injury was not illogical, irrational or wholly unjustifiable. The Court stated that the decision was within the domain of expert testimony and substantial evidence supported the Commissioner’s conclusion on causation.

As the Court found substantial evidence supported the Commissioner’s decision that the Claimant having reached maximum medical improvement on November 20, 2007, the Claimant was not entitled to alternate medical care or any additional temporary disability or healing period benefits.

Thus, the Court affirmed the decision of the commissioner.

Big Tomato Pizza v. Jonathan Cloud, Court of Appeals of Iowa, No. 2-1199 / 12-1291

The Claimant was employed as a delivery driver for the employer. On April 16, 2008, after returning from delivering a pizza when a man named Douglas Evans was being chased out the door of the employer. The Claimant stepped in front of him and was hit by Evans. A brief scuffle ensued between the Claimant and Evans. As a result of the incident, the Claimant was injured and had difficulty breathing. He was taken by ambulance to Iowa Methodist Hospital.

At the hospital, the Claimant was diagnosed with a small puncture wound to the left side of his chest and a collapsed lung. The Claimant remained in the hospital until April 26, 2008. Upon discharge, the Claimant did not have any subsequent medical treatment as he testified he could not afford it and did not have medical insurance. He returned to his job with the employer. He continued to complain of pain in the left chest region and sometimes experienced shortness of breath; particularly with cold, misty or dusty conditions. The Claimant also stated he experienced nightmares about the incident.

On May 30, 2009, the Claimant filed a workers’ compensation petition. He was seen by Dr. John Kuhnlein for an independent medical examination on February 4, 2010. Dr. Kunhlein found the claimant’s pain to have been caused by the April 16, 2008 injury and assigned the Claimant a one percent whole person impairment. It was recommended the Claimant could only lift pizzas above shoulder height on an occasional basis. It was further recommended that the Claimant be examined by a mental health professional for possible post-traumatic stress disorder.

At hearing, the deposition of a fellow employee was presented. This deposition testimony stated the Claimant was returning from delivering pizza when he was Evans being chased by the deponent and another employee. The deponent stated he was chasing Evans because he wanted to get in a fight. The Claimant made a U-turn to follow Evans, got out of his car and engaged in a fight with Evans in front of a restaurant down the block. A co-owner of the employer also testified that he had come into the business the night of the accident to get a pizza and was told that some employees were chasing a man down the street. He also testified that the Claimant came into the business and told the co-owner that he had hit Evans in the head.

The deputy did not find the testimony of the co-owner and co-employee to be as convincing as the Claimant’s. The deputy concluded that the Claimant was the victim of an assault that occurred because he was an employee and that this injury arose out of and in the course of his employment. The deputy determined that compensation was not barred by Section 85.16 and found the Claimant to have suffered a 15% industrial disability. It was also found that the Claimant should be evaluated for a mental health injury as a result of the assault.

On intra agency appeal, the Commissioner found that the ambulance record, police report and hospital medical records were objective evidence of what occurred the night of the incident and were more consistent with the Claimant’s testimony than other testimony presented. The Commissioner affirmed the decision of the deputy but modified the Claimant’s industrial disability rating to ten percent. The decision of the commissioner was affirmed by the district court on judicial review.

The Court first took up the issue as to whether the Claimant’s alleged injury arose out of an in the course of employment. The Court stated that an injury is considering to be arising out employment “if there is a causal connection between the employment and the injury.” The Court went on to state that the phrase “in the course of employment” refers to the time, place and circumstances of the injury.

The employer argued that substantial evidence did not support the finding that the Claimant’s injury did not arise out of an in the course of employment. The Court noted that on appeal it is not for the Court to determine if the evidence could support a different finding but whether the finding made was supported by substantial evidence. The Court found that the employer’s assertion relied on a factual scenario that was different than the factual findings made by the Commissioner. The Court went on to find that the factual findings made by the Commissioner were supported by substantial evidence.

The Court found the Claimant’s testimony to be supported by the ambulance report, police report and hospital reports from the evening of the altercation. The Court found substantial evidence supported the Commissioner’s finding that the Claimant was performing his work duties when he was assaulted. As the Claimant was performing work duty at the time of his injury, his injury was found to arise out of and in the course of his employment.

The Court next turned its attention the employer’s contention that the injury was barred by Section 85.16 which bars compensation for injuries which are caused by an employee’s willful intent to injure himself or another or by the willful act of a third part directed against the employee for reasons personal to such employee. The Commissioner had found that there was no credible evidence that the Claimant wanted to injury Evans or that Evans assaulted the Claimant for reasons personal to the Claimant. The Court ultimately found that substantial evidence supported the finding that the Claimant was hit because he happened to get in Evans’ way and that as such this injury was not barred under Section 85.16.

The next issue addressed by the Court was whether the Claimant was entitled to workers’ compensation benefits. The employer claimed that the Claimant had not shown any loss of earning capacity resulting from the injury. The employer pointed to the fact that the Claimant returned to his employment as a delivery driver for the employer. At most, the employer stated the Claimant was entitled to a disability rating of one percent to the body as a whole.

The Court first noted that in a determination of industrial disability, factors such as the Claimant’s age, education, restrictions and employment experience are considered. The Court ultimately found that substantial evidence supported the Commissioner’s finding that the Claimant had sustained a 10% permanent partial disability. The Court cited to the fact that the Claimant was 40 years old, had quit school in the 11^th grade and obtained his GED. The Court also noted that most of his adult life was spent as a delivery driver and Dr. Kunhlein stated the Claimant could only lift pizzas above shoulder height occasionally and may have problems in dust, mist or cold environments. Based on this, the Court found substantial evidence to support the Commissioner’s decision.

The final issue taken up by the Court was whether substantial evidence supported the finding that the Claimant was entitled to be evaluated and treated for a mental health injury. The employer asserted that the Claimant had not presented any qualified expert opinion on this issue as Dr. Kuhnleing was not a mental health professional. The Court ultimately agreed with the reasoning of the district court which stated “[w]hile Dr. Kunhlein is not a mental health professional…he is certainly qualified to recognize symptoms needing further investigation.” The Court stated that the Commissioner did not find the Claimant had proven a mental health condition as a result of the work injury, but that there was sufficient evidence to warrant further investigation. The Court found substantial evidence supported this finding.

Thus, the decision of the Commissioner was affirmed.

Diane Cecilia Hansen vs. Snap-On Tools Manufacturing Company, Court of Appeals of Iowa, No. 3-031 / 12-1038

The Claimant was employed with the employer since 1971, almost the entirety of her entire working life. She worked in electrical, pack and the ball slide departments. Prior to her alleged work injury, the Claimant had health problems including carpal tunnel syndrome, right shoulder overuse problems, diabetes, high blood pressure, fibromyalgia and a hiatel hernia.

The Claimant filed a workers’ compensation petition on July 10, 2008. The parties agreed that the Claimant sustained two injuries. The first occurred on February 15, 2005 when the Claimant injured her left shoulder while working in the pack department. The second injury was alleged to have occurred on September 11, 2007, when she sustained an injury to her right hand/arm while working in the pack department. In regards to the February 15, 2005 injury, the Claimant alleged the injury manifested over a period of time by microtrauma. The Claimant had left shoulder arthroscopic surgery with Dr. Phillip Deffer. This surgery was performed on June 3, 2005, with the Claimant returning to work on June 10, 2005. Following the surgery, the Claimant continued to experience some shoulder pain and depression.

The Claimant was placed at maximum medical improvement by Dr. Deffer on February 10, 2006. On February 9, 2009, the Claimant underwent an independent medical examination with Dr. Kuhnlein, who opined that the Claimant had a material change in her left shoulder condition related to the February 15, 2005 injury which was an acute injury superimposed on a cumulative process.

On September 11, 2007, the Claimant suffered an injury while putting drawers in toolboxes in the pack department at the employer. After continuing problems, Dr. Deffer performed a right synovectomy in the right hand fourth dorsal compartment and side to side transfer of the extensor indicis proprius tendon on May 9, 2008. The Claimant was placed at maximum medical improvement on July 23, 2008.

After hearing, the deputy concluded the Claimant sustained a fifteen percent industrial loss related to her February 15, 2005 injury. The deputy also found that Dr. Kunhlein’s IME bill totaling $9,502.50 was unreasonable and the employer should only be responsible to reimburse the Claimant $2,890.00. The decision was affirmed by the commissioner with a slight modification to a mileage reimbursement calculation.

On judicial review, the district court remanded to the Commissioner to determine the correct amounts of healing period benefits, the due date of the benefits, the appropriateness of any penalty and whether interest should be assessed based upon the fact that the court found the deputy failed to analyze or provide rationale for the healing period benefits awarded. The issues of temporary partial disability benefits and the reasonableness of Dr. Kuhnlein’s fee were also remanded.

On judicial review, the Claimant argued extensively regarding the constitutionality of the successive disability statute, the applicability of the statute, and whether there was substantial evidence to support the deputy’s industrial disability award. The constitutional issue was reserved for the appellate court and found the deputy’s decision to be supported by substantial evidence.

The decision was appealed by the Claimant claiming the district court erred by failing to reverse the commissioner for failing to apply the successive-disability statute and all the industrial disability factors. It was also claimed that the court erred by taxing one half the costs on judicial review to the Claimant. The employer cross appealed arguing the commissioner was correct in regards to Dr. Kuhnlein’s fee and in the award to temporary benefits award.

The Court first addressed the issue of the successive-disability statute noting that the review of the issue was for errors at law and no deference would be given to the agency’s interpretation of the statute. The Court noted that the Claimant’s challenge to the deputy’s decision regarding permanent disability was based on the argument that all of Claimant’s previous injuries from her employment with the employer needed to be included in the permanent combined disability from which the permanent partial disability compensation award for the February 15, 2005 injury was made.

The Court examined Section 85.34(7), the successive-disability statute, which provides that if an employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable, the employer is liable for the combined disability caused by the injuries. The Claimant argued that the agency had erred by not explaining if and how it determined the fifteen percent industrial disability award represented a combined disability caused by the injuries measured in relation to the employee’s condition immediately prior to the first injury. In essence, the Claimant argued that if the agency properly considered her prior history, her rating should be higher.

The Court stated that in regards to the successive-disability statute, the Court must be able to identify from the record the pathway followed by the deputy when the determination was made. The Court noted that the record was not clear if or how the deputy applied the successive disability statute in making its determination regarding industrial disability. However, the Court went on to note that even if the agency had analyzed the facts under the successive-disability statute, the outcome would not change as the statute is not applicable to the Claimant’s February 15, 2005 injury.

The Court stated that in interpreting a statute, the stated legislative intent governed. In this case, the stated intent to the legislature was that the division did not alter the method of determining the degree of unscheduled permanent partial disability. As the Claimant’s injury was an industrial disability to the body as a whole, the degree of her unscheduled disability could not be determined under Section 85.34.

The Court next found that the agency determination as to the Claimant’s 15% industrial disability was supported by substantial evidence. In so finding, the Court noted that the law did not require the commissioner to specifically discuss each factor in arriving at the determination of industrial disability. Ultimately, the Court found substantial evidence supported the decision made by the Commissioner.

The Court then turned its attention to the issue of costs as to Dr. Kuhnlein’s IME and the costs of judicial review. The Court first looked at the issue of the costs of Dr. Kunhlein’s IME. The Court noted that the fee for an IME must be reasonable. While the agency determined the IME fee of Dr. Kunhlein was unreasonable, the district court remanded the issue as the pathway to determine the allowable fees was not clear. The court examined the deputy’s findings and found that the deputy has sufficiently reasoned as to why the fee was not reasonable and reversed the remand of the district court.

The Court spent no time discussing the issue of the costs of judicial review, merely affirming the finding of the court as “the taxation of costs of judicial review shall be in the discretion of the court.”

The final issue taken up by the Court was the determination that all temporary benefits that the Claimant was entitled to had been paid. The Court noted that in regards to benefits, the agency’s decision must be sufficiently detailed to show the path it had taken through conflicting evidence to arrive at its decision. The Court found that the agency only recited what benefits had been paid and never made any determination as to their accuracy or timeliness. As such, the decision was not sufficiently detailed and the district court’s remand was appropriate.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa

The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.

The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.

At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.

The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.

The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.

Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa

This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.

Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.

The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.

This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.

The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.

The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.

The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.

After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.

The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.

The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.

Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

John Walter Podgorniak v. Asplundh Tree Expert Company and Lumbermen’s Mutual Insurance Company,Court of Appeals of Iowa,No. 2-943 / 12-0644

The claimant injured his left shoulder, neck and head while working for the employer. He filed a workers’ compensation proceeding which ultimately awarded him alternate medical care and running healing period benefits. The Claimant was referred to a treating physician who opined the claimant was at maximum medical improvement; based upon this, the employer terminated the claimant’s healing period benefits.

The Claimant subsequently filed a review reopening petition which raised several issues including a request for penalty benefits based upon the termination of healing period benefits. The deputy awarded a penalty of 50% of all healing period benefits that the claimant asserted were not timely paid based upon the determination that the employer unreasonably delayed the payment of weekly benefits to the claimant. On appeal to the commissioner, the designated deputy reversed the decision reasoning that the decision to terminate healing period benefits was fairly debatable. The decision was affirmed by the district court.

The decision was appealed to the Court of Appeals which took up review of the issue based upon the substantial evidence standard of review. The claimant asserted that the appeal deputy erred by applying a non-statutory ‘fairly debatable’ standard as a per se defense to a penalty claim. The Court however stated that established case law supported the ‘fairly debatable’ language and that there was no material difference between the judicially created standard of ‘fairly debatable’ and the statutory standard set forth in the Iowa Code requiring a reasonable or probable excuse for delay in payment of benefits. The Court then stated that the deputy did not ignore the requirements of the Iowa Code by relying upon the judicial opinions which discussed those requirements.

The Court then discussed the issue as to whether substantial evidence supported the finding made by the commissioner. The Court found substantial evidence in the opinions of three doctors that the claimant was at maximum medical improvement. The claimant attempted to claim that these opinions carried no weight as they were rendered before the claimant completed his alternate care, but the Court found no case law to support this proposition. The Court then affirmed the finding of the commissioner based upon substantial evidence.

Pilgrim’s Pride Corporation and Zurich North American v. Johnie M. Eakins,Court of Appeals of Iowa,No 2-1016 / 12-0901

The employer appealed the district court’s ruling which affirmed the commutation decision of the workers’ compensation commissioner. The deputy had granted the claimant’s request for a partial commutation, giving him a lump amount rather than weekly benefit payments.

The Court first discussed that partial commutations may be awarded when it is found to be in the worker’s best interests based upon a number of factors, which include: age, education, mental and physical condition, life expectancy, family circumstances, living arrangements, responsibilities for dependents, financial condition, debt, living expenses, and reasonableness of plan for investing lump sum proceeds and ability to manage the invested funds.

The employer contended that the agency failed to consider the claimant’s lack of financial sophistication, the tax consequences of the commutation decision and the claimant’s lifelong interest instead of just his current financial situation. The Court stated that the agency’s decision did in fact clearly consider these issues. The Court then noted that the agency was particularly concerned with the claimant’s ability to find adequate housing should he not receive a commutation. The agency also considered the fact that the claimant would only draw down interest and principal of the lump sum until his wife completed nursing school and obtained employment. The claimant also intended to conserve the principal to provide an estate for his wife should she survive him. Based upon these factors the agency determined that the commutation was in the claimant’s best interest long term and the Court could find no error in the agency’s application of law to these facts.

The employer also attempted to argue that substantial evidence did not support the awarding of the commutation as the claimant had a lack of income to pay day to day expenses and his desire to spend the benefits on other family members. The employer also indicated that the claimant’s history of spending money indicated that he would spend the money rather than invest it, which would leave him destitute. The Court acknowledged that there was evidence to support the conclusion that the commutation was not in the claimant’s best interests, but stated that it was not the job of the appellate court to determine whether the evidence supports a different finding but rather whether the finding made was supported by substantial evidence. The Court ultimately found substantial evidence supported the award of the commutation. The evidence relied upon was the claimant’s desire to obtain adequate housing and his indication that he would employ the services of a financial advisor.

The next issue taken up by the court was what was the correct date to commute the award from. The Court found that the correct date to be used to calculate the interest rate for the purposes of the commutation was the date the agency decision became final. This was based upon Iowa Code Section 85.48, which sets the rate to be paid based upon the interest at the time judgment is entered. The Court held that a workers’ compensation decision becomes a final judgment when there is a final decision without further proceeding, unless there is an appeal to the agency. As there was an appeal to the commissioner in this case, a final judgment was not entered until the decision of the commissioner. The Court then ordered that the commutation be revised to reflect the value of the commuted weeks and that any weekly payments made after the date of the commissioner’s decision while the case was on appeal should be credited to that value.

Ottumwa Manufacturing d/b/a Cadbury Schweppes Holding, Inc., v. Carl Boyd Sr.,Court of Appeals of Iowa,No. 2-813 / 12-0889

The claimant sustained an injury to his feet on August 22, 2008 when they were run over by a forklift while at work. This caused crush injuries to both of his feet. The claimant began to treat with podiatrist, Dr. Scott King. An MRI revealed a bony contusion of the metatarsal joints. The claimant claimed to have reported hip pain since he was injured, but Dr. King did not note any right sided hip pain until March of 2009. Dr. King associated this pain with the claimant’s work injury and assigned restrictions. Later, he signed a letter deferring to the claimant’s other physicians in regards to work restrictions and the cause of his hip injury.

The claimant was also seen by Dr. Kenneth Pollack, a pain management specialist. The claimant complained of pain in his low back and right hip, which Dr. Pollack theorized was likely caused by altered body mechanics stemming from his crush injury. In March of 2009, Dr. Pollack opined that the claimant’s left knee and right hip pain were a direct result of his work related injury. This was based on the claimant having no symptoms prior to his injury. However, in January 2010, Dr. Pollack signed a letter which stated he was unable to state that the claimant’s right hip complaints were a result of the claimant’s 2008 work injury.

The Claimant was seen by Dr. Nettrour, a hip specialist, in November of 2009. He opined that the claimant had a right hip injury with unclear etiology. He subsequently signed a letter which stated the claimant suffered no identifiable hip injury and any hip pain could not be related to his work injury. The Claimant was also seen by Dr. Friedgood, a neurologist, who opined the claimant did not need permanent restrictions based upon his right hip injury.

The Claimant was seen by Dr. Stoken for an independent medical exam in November of 2009. Dr. Stoken related the claimant’s complaints of pain in his feet, right hip and low back to his work injury. He was placed at maximum medical improvement as of September 21, 2009 and given an impairment rating of 28% to the whole body. He was given permanent work restrictions to avoid prolonged standing and walking and to avoid repetitive bending, twisting and lifting.

The Claimant was next seen by Dr. Eric Barp. Dr. Barp believed the claimant to likely be at maximum medical improvement. His work was restricted to sit down work only. Late Dr. Barp indicated the document assigned this restriction was in error and that the claimant could return to work without restrictions from a foot and ankle standpoint. The claimant was then given a permanent impairment rating of 4% to the body as a whole.

At hearing, the deputy found the claimant’s injury extended beyond his lower extremities into his right hip. The deputy then found the claimant to have suffered an 80% industrial disability. On intra-agency appeal, the claimant argued he should have been given an award of total permanent disability. The decision of the deputy was affirmed by the commissioner; which was subsequently affirmed by the district court.

Both parties appealed to the court of appeals. The employer argued that the commissioner erred in determining the claimant sustained a whole body injury rather than an injury to the bilateral lower extremities as there was insubstantial evidence to support the finding. Ultimately the Court found substantial evidence supported the finding made by the commissioner. The Court focused on the fact that the commissioner gave greater weight to the opinions of Dr. Stoken as well as the opinions of Dr. Pollack indicating the hip pain was related to claimant’s work injury. The Court indicated it was not their duty to re-weigh the evidence or to question the weight given to expert opinion, as such the court found substantial evidence supported the finding made by the agency.

The Court then turned its attention to the assignment of 80% industrial disability awarded by the agency. The employer contended that substantial evidence did not support the award. The claimant on the other hand argued that he should have been awarded permanent total disability. The Court found that substantial evidence supported the award made by the agency. The Court looked to the factors that the agency considered such as claimant’s use of a wheel chair – which while self imposed – the court found necessary, a vocational evaluation showing the claimant could only perform sedentary work, his inability to perform part time employment and the opinion of the claimant’s vocational expert indicating there were no jobs available to the claimant in the current job market. However, the Court noted that the agency did not award permanent total disability as the claimant’s physicians had not imposed work restrictions which would keep him from being able to perform seated work.

Based upon the factors above the court found the award of 80% industrial disability was supported by substantial evidence and the decision of the agency was affirmed.

Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa

The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.

The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.

At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.

The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.

The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.

Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa

This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.

Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.

The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.

This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.

The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.

The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.

The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.

After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.

The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.

The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.

Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Angel Richards v. Creston Nursing & Rehabilitation Center, Court of Appeals of Iowa, No. 2-1017 / 12-1120

The Claimant began working as a CNA with the defendant in October of 2005. Prior to this, the Claimant had a history of back pain starting in 2002. On February 13, 2006, the Claimant alleged a back injury that occurred while she was moving a patient. She sought medical attention that day and returned to light duty four days later. According to the attending physician she was fully recovered on February 27, 2006.

The parties stipulated that the Claimant again injured her low back while assisting a resident out of bed on October 10, 2006. She saw Dr. John Hoyt who gave her epidural injections, muscle relaxers and physical therapy. She was then assigned to half days with no lifting but continued to experience some radiating right leg pain.

In early December 2006, Dr. Hoyt increased claimant’s restrictions to being able to lift 50 lbs. The Claimant then apparently aggravated her back while cleaning tables in late December at work. She was then seen by Dr. Lynn Nelson, an orthopedic surgeon, in January. An MRI taken at this time revealed that the claimant had very small disc bulges at L4-5 and L5-S1, however she was not experiencing a significant degree of impingement. Dr. Nelson opined that no surgery or injections were necessary; but did limit the claimant to office work and a 15 lb lifting restriction.

In January 2007, the Claimant slipped in the defendant’s parking lot and was again seen by Dr. Hoyt. Dr. Hoyt found the claimant’s symptoms to be improving. Then in February of 2007, the claimant was fired for excessive absenteeism. Soon thereafter, the Claimant was discharged from Dr. Hoyt’s care in March of 2007. She was briefly employed as a telemarketer in June, but then left to care for her father in law. Once he was improved, the Claimant began as a CNA at Crest Haven Care Center in January of 2008. At her pre-employment physical the Claimant was reported as being pain free in regards to her back. She worked without restrictions at Crest Haven and ultimately left her employment there due to circumstances unrelated to her back.

In April of 2008, the Claimant began working as a cashier at Kum & Go. In August of 2008, the Claimant fell in the Kum and Go parking lot. She saw Dr. Gerdes complaining of severe tail bone and back pain. She was diagnosed with acute lower back spasm and returned to work a week later with lifting restrictions. In September of 2008, the Claimant reported another fall at Kum & Go. An MRI taken revealed mild degenerative disc disease at L4-5 and L5-S1 with annular disc bulges, but no other maladies.

Kum & Go denied the claimant’s workers compensation claim stemming from this September fall as there was no significant difference in her MRI results from 2007 as to 2008. The employer also suspected the Claimant may have lied about the fall to obtain time off from work.

In November of 2008, the Claimant sought an IME with Dr. Robert Jones. Dr. Jones attributed the claimant’s pain primarily to her October 2006 injury. He opined that her improving symptoms did not mean the injury had completely resolved, but could not apportion a percentage of pain between her CNRC injury and the fall at Kum and Go. He assessed the claimant to have 5% permanent impairment causally related to the two injuries.

The Claimant was fired from Kum and Go in October of 2008 for unexcused absenteeism. She has been unable to find work since. The Claimant filed the current workers’ compensation action against CNRC in April of 2009. In connection with the claim, Claimant’s counsel wrote to Dr. Nelson for his opinion as to whether the Claimant’s injury was caused by her incident at CNRC or the fall at Kum & Go. Dr. Nelson ultimately opined that the claimant’s incident in October of 2007 did not result in permanent impairment.

At the claimant’s deposition she testified that she had trouble sitting as well as using stairs due to her low back pain. Video surveillance conducted of the claimant showed her ascending and descending stairs with no problem. The deposition and surveillance footage, as well as claimant’s medical records, were provided to Dr. Jones to obtain his opinion on causation. He continued to opine that the claimant’s 2006 nursing home injury was a significant causative factor in the claimant’s current complaints.

After the arbitration hearing, the deputy issued a ruling which found the claimant failed to carry her burden of proof that her work injury caused her permanent impairment. The conclusion was based largely on the claimant’s lack of credibility while testifying. The deputy also found Dr. Jones had relied on a very suspect history in rendering his opinions. The opinion of the deputy was adopted by the commissioner which was affirmed on appeal as being supported by substantial evidence.

The case was then appeal to the Court of Appeals. The Court first noted that its review would be based upon the substantial evidence standard as the case was based upon factual determinations which were vested in the agency’s discretion. The Claimant challenged the findings of the agency in regards to the Claimant’s credibility and the discounting of the opinion of Dr. Jones. In regards to the Claimant’s credibility, the Court found that even despite possible overstatements by the deputy in regards to the claimant’s tendency to deceive, the determination regarding credibility withstood a substantial evidence challenge. This was based upon numerous inconsistencies in the claimant’s testimony, both in her deposition and at hearing.

The Court then turned its attention to the issue of Dr. Jones’ opinion regarding causation. The Court found that the deputy had explained his reasoning for discounting the opinion of Dr. Jones as it was based upon the claimant’s statements which were found to lack credibility, and as such was relying upon a suspect history. The Court opined that it was within the purview of the deputy to weigh expert opinion testimony and the deputy did not abuse his discretion in finding the opinion of Dr. Jones’ unconvincing. As such, the Court affirmed the findings of the deputy.

Mercy Hospital Iowa City and Cambridge Integrated Services v. Susan Goodner, Court of Appeals of Iowa, No. 2-933 / 12-0186

 The Claimant was a family practice physician who treated two patients with mono in January of 2000. On January 18^th, one of those patients vomited on the claimant’s hands during the examination. The Claimant began experiencing symptoms on February 4^th and when they did not subside she performed a mono spot test on February 13 which came back positive.

The Claimant sought medical treatment from Dr. Wools-Kaloustian, an infectious disease specialist who diagnosed the claimant with mono. On February 25^th, the claimant reported her illness to her employer and remained off work or worked reduced hours due to extreme fatigue.

The Claimant was eventually referred to Dr. Minner by the workers’ compensation carrier in July of 2000 to determine if there was a work-related condition and if further treatment was necessary. Dr. Minner found the infectious disease to be causally related to the claimant’s employment and referred further care to Dr. Ovrom. Dr. Minner also opined that the long term prognosis for complete recovery was good.

In November of 2000, the Claimant was seen by Dr. Gervich for a second opinion at the request of the claimant’s private disability company. Dr.Gervich expressed doubt that the Claimant ever contracted infectious mononucleosis, though he could not disprove it. This was based upon the incubation period of the claimant’s disease. Dr. Minner subsequently referred the Claimant to Dr. Wesner, a psychiatrist, due to possible depression. Dr. Wesner diagnosed the claimant with depression which was related to the chronic fatigue syndrome following her infection. She was referred to individual and family therapy which he believed were reasonable and necessary treatment for her major depressive disorder and the chronic fatigue syndrome.

The Claimant’s symptoms of fatigue waxed and waned over the next few years and she continued to see Drs. Ovrom, Wesner, and Minner. Dr. Ovrom’s initial diagnosis was post viral fatigue, but he revised his diagnosis in April of 2002 because he believed Goodner’s condition met the criteria for chronic fatigue syndrome, and recommended consideration of permanent partial disability. On July 24, 2002, Dr. Minner placed the claimant at MMI. At that time Goodner was able to work twenty hours per week and was “overall at approximately 70% of full-time productivity.” Dr. Minner retired soon thereafter and care was transferred to Dr. Buck.

The Claimant first saw Dr. Buck in October of 2002. Dr. Buck concurred with Dr. Minner’s assessment of maximum medical improvement, stating, “Clearly her condition has and will continue to have mild episodic relapse, but the overall pattern has been quite stable now for some time.” He anticipated her needing periodic care with both Dr. Wesner and Dr. Ovrom, and he authorized additional visits with both providers. At his deposition, Dr. Buck stated that he believed there was a significant possibility that the Claimant had never contracted mono.

In November of 2002, the claimant was seen by Dr. Meier for a second opinion. She was diagnosed with chronic fatigue syndrome triggered by infectious mononucleosis. He further opined that he did not believe the claimant had reached MMI as her condition remained in a state of flux. Goodner underwent a series of studies including a sleep study, hormonal study, and immune disorder study at the prompting of the board of medical examiners. These studies came back normal, ruling out other conditions causing the fatigue.

The Claimant gained approximately thirty-three pounds during the course of her illness. She attributed this weight gain to her fatigue as she was unable to exercise regularly or plan healthy meals. She also developed type 2 diabetes, high cholesterol, and hypertension. She sought assistance from a weight loss clinic. When her attempts to lose weight were unsuccessful, she underwent bariatric surgery in May of 2007.

In October of 2008, the claimant was referred to Dr. Pocinki, an expert on fatigue syndrome. It was Dr. Pocinki’s opinion that the claimant met all the criteria for chronic fatigue syndrome, and he believed the condition was triggered by the mononucleosis infection. He determined she was not yet at maximum medical improvement and anticipated it would be another two to three years before she would achieve this state.

The claimant was then seen by Dr. Risk, for an independent medical exam at the request of her attorney in February 2009. Dr. Risk opined the claimant developed post viral fatigue syndrome as a result of her exposure to mononucleosis. Although her obesity predated her symptoms, her subsequent fatigue lead to inactivity and poor diet. This condition resulted in her gaining the additional weight and developing diabetes, hypertension, and high cholesterol. He also believed the fatigue led to depression. He did not believe she was at maximum medical improvement at that time.

At the request of Mercy Hospital, a records review was performed by Dr. Katz. He opined that while the claimant may have a fatigue syndrome, the fatigue did not develop from mononucleosis, and he did not believe she contracted mononucleosis at all. He stated the likelihood of contracting mononucleosis in the way the claimant described was essentially zero. He also asserted the incubation period reported in the claimant’s case, seventeen days, was out of the question for this virus, which has a typical incubation period of forty to sixty days. He also stated the claimant’s clinical symptoms did not fit with infectious mononucleosis, which in older patients is typically characterized by a prolonged fever and liver involvement. Finally, it was Dr. Katz’s opinion that there was no specific concrete connection as to the cause of chronic fatigue syndrome; therefore, he doubted the causal link between mononucleosis and chronic fatigue syndrome.

Dr. Lutz also performed a records review at the request of Mercy Hospital. Like Dr. Katz, Dr. Lutz opined, in his March 2, 2009 report, there is no medical literature support for the way Goodner claims the mononucleosis virus was transmitted to her. He also found the incubation period in this case was too short for mononucleosis, which typically has an incubation period of one to three months.He asserted the claimant’s case likely was the result of “VIP syndrome” where a physician treats a patient differently when the patient is an important person such as a doctor. Dr. Lutz believed this was why no initial treating doctor tested for mononucleosis, but just accepted her description and self-diagnosis. He states that her treating providers assumed causation in this case rather than establishing it based on her history. He also opined that there was no data to support a viral cause of chronic fatigue syndrome as the cause of chronic fatigue is unknown. Finally, he was concerned with the level of medications the claimant was taking, because many of the medications could be the cause of her fatigue and have a sedating effect.

Finally, Mercy Hospital had Dr. Stutts conduct a psychiatric evaluation of the claimant in January 2009. After conducting a review of the medical records and a patient examination, Dr. Stutts recommended that the claimant discontinue many of the medications she was on because he believed the medications were contributing to her chronic fatigue syndrome in a significant fashion and likely perpetuating her problems. Dr. Stutts believed the psychotropic medication had so muddied the water that he could not tell if the claimant had chronic fatigue or if the symptoms were caused by the medication.

The Claimant’s employment status during this time was quite up and down. Ultimately the claimant took a full year off from practicing medicine in 2006 on the advice of her treating physicians. The Claimant stated this year off greatly helped her and she returned to practice at a clinic in Kalona, Iowa. However she was forced to resign this position in January of 2008 due to fatigue.She was advised by the medical board to stop seeing patients, and her medical license was placed on inactive status by mutual agreement in January of 2008. For the claimant to once again practice medicine, her treating physicians would need to recommend to the board of medicine that her license be reactivated, she would need to present a plan for how she would see patients without becoming fatigued, and the board would need to approve her plan.

The Claimant initially reported her workers’ compensation claim in February of 2000. The claim was accepted, and treatment and benefits were provided with no agency intervention until September of 2006. At that time the claimant filed a petition for alternate medical care asking the workers’ compensation commissioner to order Mercy Hospital to pay for physical therapy for strengthening and conditioning, and massage therapy for muscle aches. At hearing, counsel for Mercy Hospital admitted liability for the claimant’s February 2000 injury. Counsel also admitted that the claimant had a case of chronic fatigue syndrome “that has been accepted as a work injury.” During the hearing, Mercy Hospital agreed to provide the physical therapy requested, but asserted the massage therapy prescribed by Dr. Ovrom was “not causally related to the work injury.” The deputy commissioner authorized the care requested.

The claimant filed an arbitration petition with the agency on May 18, 2007, alleging she was permanently and totally disabled as a result of her work injury, which developed on February 4, 2000. On February 18, 2009, after consulting with Drs. Katz and Lutz, Mercy Hospital amended its answer to generally deny the injury. After hearing, the deputy issued a ruling finding Mercy Hospital judicially estopped from contesting liability for the injury due to the position Mercy Hospital took at the alternate care proceeding.

The deputy went on to conclude the claimant sustained an injury in the course and scope of her employment and that the chronic fatigue syndrome was causally related to that injury. The deputy commissioner found Mercy Hospital responsible for one-half of the cost of the family counseling ordered by her treating physicians. He also ordered Mercy Hospital pay the full cost of the bariatric surgery after concluding, “there is no evidence in the record that claimant ever had any weight problem before her exposure to [the virus].” The deputy finally concluded that the injury caused the claimant to be permanently and totally disabled as an odd-lot employee because her injury made her unable to perform work “that her experience, training, education, intelligence, and physical capabilities would otherwise permit her [to] perform.”

The findings of the deputy were adopted by the commissioner on appeal. The district court then affirmed the agency’s decision did not preserve error on its claim nor did it prove the agency acted irrationally, illogically, or without justification in finding Mercy Hospital should be judicially estopped from contesting liability for the injury after having admitted liability in the alternate care petition. The district court also found substantial evidence supported the findings of the agency. The case was then appealed to the Court of Appeals.

The Court first opined that the decision of the agency in regards to judicial estoppel would be reviewed de novo and the Court was free to substitute its interpretation of the law for that of the agency. The issue of whether the medical evidence supported the finding that the claimant contracted mono resulting in chronic fatigue syndrome would then be reviewed according to the substantial evidence standard as question of medical causation is a fact question vested within the purview of the agency. As to whether the claimant was permanently and totally disabled, this would be reviewed based on the irrational, illogical or wholly unjustifiable standard as it involved the agency’s application of law to the facts which is vested within the discretion of the agency.

The Court first took up the issue of whether Mercy Hospital was estopped from contesting liability for the claimant’s injury based upon its position at the alternate care hearing. The Court first looked to the established precedent fromWinnebago Industries, Inc. v. Haverly, which stated that an employer cannot change its position regarding liability subsequent to an alternate medical hearing barring a significant change in facts after the admission of liability. The Court stated that it could not overrule the holding inHaverly as it was Iowa Supreme Court precedent. The Court then took up the next argument of Mercy that the holding inHaverly had been limited by subsequent case law.

Mercy argued that a case known asTyson Foods, Inc. v. Hedlund, limited the application ofHaverly in this case. In Hedlund, a claimant had mistakenly filed an alternate care petition to which the employer had admitting liability. Once the claimant realized the mistake, the petition was dismissed. The claimant then later filed a second alternate care petition in which the employer denied liability. The Supreme Court held thatHaverly did not have preclusive effect in this instance as the deputy had not decided the first petition based on the admission of liability by the employer and as such it was a nonevent. In the present case, the Court differentiated the facts from those in Hedlund and found thatHedlund did not apply to the current situation as the deputy had accepted the admission of Mercy Hospital in ruling on the alternate care petition.

Mercy also tried to argue that Haverly should have no effect on the current situation as the alternate care petition was filed prior to the contested case proceeding (the alternate care petition in Haverly was filed after the contested case proceeding began). The Court found no merit to this argument as the doctrine of judicial estoppelis intended to prevent a party from asserting a position in a subsequent proceeding that is inconsistent with its position in a prior proceeding.

Mercy next argued that the exception applied in this case as there had been a significant change in facts based upon Mercy’s receipt of the opinions of Dr. Katz and Dr. Lutz which caused them to change their stance on liability. The Court found that the agency appeared to have rejected the “significant change in facts” exception on the basis that Mercy Hospital could have obtained the medical opinions from Drs. Lutz and Katz earlier. The Court did not further address the issue as to whether the exception applied in this case as the Court found the agency also decided the case on the merits, thus dodging the issue as to whether the exception applied in this case.

After its discussion of the issue of judicial estoppel, the Court next turned its attention to whether the medical evidence supported the findings made by the agency. The Court in finding that substantial evidence supported the findings of the agency articulated that it was within the purview of the agency, under Iowa case law, to determine how much weight to give to an expert opinion. It was not for the Court on appeal to reweigh the evidence which was considered by the agency. The Court could only determine whether or not substantial evidence supported the findings made. The Court opined that several of the claimant’s treating physicians testified, based on their knowledge and experience the mechanism of injury, the incubation period, and the causal connection between mononucleosis and chronic fatigue syndrome all supported a finding that the claimant suffered a work-related illness—mononucleosis—and her current condition—chronic fatigue syndrome—was causally related to work; thus substantial evidence supported the findings made.

The Court then took up the issue as to whether the claimant was permanently and totally disabled. The Court noted that Mercy Hospital claims the claimant in her deposition admitted that if she exercised and did the right things she would regain the ability to work at least part time as she had from the onset of her illness until quitting her job at the clinic in 2008. Mercy Hospital argued that the agency cannot award total disability to a claimant who admits she can take action to return to work, but refuses to do so. The Court found this argument appealing but noted that the expert testimony supported the finding of permanent and total disability.

The Court noted that the finding of permanent disability was based upon claimant’s classification as an odd lot employee. The Court opined that an odd-lot employee is totally disabled if “the only services the worker can perform are ‘so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.’” The Court then stated that even assuming the claimant was able to obtain her license to practice medicine again and could practice medicine part time if she “exercised and did the right things” as Mercy Hospital contends she should do, this does not foreclose the agency’s determination she is an odd-lot employee entitled to an award of permanent total disability. The Court noted that the agency gave greater weight to the claimant’s vocational expert than Mercy’s and the Court would not disturb that on appeal.

The final issue addressed by the court was whether the agency erred in ordering Mercy to pay for the Claimant’s bariatric surgery and family therapy sessions. The Court first examined the issue of the bariatric surgery and determined that it was unauthorized care for an accepted injury; which meant that for Mercy to be responsible for paying for this care the Claimant had to show that it was both reasonable and beneficial. In reaching this conclusion, the court had to first determine whether the liability position of the employer at the time the treatment was sought controls or if it is when the claim is fully presented to the deputy (as Mercy had changed their position to full deny compensability, this would mean the claimant would only have to establish compensability for the injury and reasonableness of treatment). Ultimately, the Court found that the liability position at the time treatment is sought controls. Therefore, because Mercy Hospital had accepted the injury and maintained control of the medical care at the time the claimant obtained the bariatric surgery, she must prove the treatment was both reasonable and beneficial.

In deciding the issue as to whether the care was reasonable and beneficial, the court stated T]he concept of ‘reasonableness’ in this analysis includes the quality of the alternative care and the quality of the employer-provided care.” It includes “the reasonableness of the employer-provided care, and the reasonableness of the decision to abandon the care furnished by the employer in the absence of an order from the commissioner authorizing alternative care.” Id.The medical care is “beneficial if it provided a more favorable medical outcome than would likely have been achieved by the care authorized by the employer.”

The Court ultimately found that Based on the record before it, they were unable to conclude substantial evidence supports the determination that the weight-loss surgery was both reasonable and beneficial to the work-related injury. There is no employer-provided care in order to compare the reasonableness of the alternative care sought. This is not a case where an employee abandoned the care provided by the employer to seek alternative care as a result of a disagreement of her diagnosis or treatment. Most importantly, the Claimant had not made a successful return to the labor market following the bariatric surgery and has instead been found to be permanently and totally disabled. The surgery therefore could not be said to have been beneficial. Thus the finding in regards to compensability for the bariatric surgery was reversed.

In regards to the family therapy sessions, Mercy argued that the medical care contemplated by section 85.27 is for the worker alone, not the worker’s family. The Court first noted the deputy agreed with Mercy Hospital that it could only order Mercy Hospital to pay for medical care to the claimant, not her family. However it found the family therapy was recommended by the treating physicians to treat the claimant’s depression. Part of the family therapy benefited the claimant and part benefited her family. Because the deputy was unable to dissect out what part of the therapy benefited the claimant alone, it ordered Mercy Hospital to pay for one-half of the cost. The Court found no error in the deputy’s decision. The court held the deputy did not order Mercy Hospital to pay for care given to the family. The deputy reduced the amount payable by half in order to hold Mercy Hospital responsible for a portion of the therapy that benefited the claimant. Thus the issue was affirmed.

Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100.  We’d be happy to help, whether it be a quick or a complex issue!

Jennifer Caswell successfully defended a case involving a claimed low back injury.  Claimant indicated to co-workers that there was a non-work cause. Ms. Caswell’s presentation of the witnesses and her cross-examination of the claimant demonstrated that claimant was not credible. Judge Stine entered an order of dismissal with prejudice. Therefore, the employer did not have to pay any temporary disability, medical expenses, or permanent disability, nor was it ordered to pay the attorney fee in excess of $11,000.00 claimed by opposing counsel.

In another case,Jennifer Caswell obtained an order of dismissal when she successfully argued that no compensable injury or aggravation occurred and any disability or symptoms claimant had were related to a pre-existing degenerative condition.   Had Judge Fridrich found for claimant on causation, her permanency award would very likely have been permanent total disability with a present value of almost $650,000.00, plus additional exposure for medical treatment.

Insurer sent settlement payment to the employer’s attorney on the 30^th day after entry of an order approving lump sum settlement. However, the payment was not delivered to counsel for the employee until the 31^st day after the lump sum order was entered. The Court of Appeals held that a 50% penalty on the $265,000.00 settlement check was due. Had the adjuster sent the check via UPS directly to counsel for plaintiff there would be no penalty due, even though it arrived on the 31^st day, because it was sent within 30 days as required byBrown v. Harbor Fin. Mortgage Corp., 267 Neb. 218, (2004).

Harris v. Iowa Tanklines, Inc.,20 Neb. App. 513 (2013)

NC Risk Handling Hint -Setting Aside a Form 60

Dennis Ray Spivey was employed by Wright’s Roofing as a laborer for approximately three years. Wright’s
Roofing contracted with AMS Staff Leasing, who provided workers’ compensation coverage for its employeeswhose employment had been reported to AMS. Spivey completed forms required by AMS and AMS issued his paychecks. Plaintiff stopped working for Wright’s Roofing and a Wright’s Roofing representative submitted termination forms to AMS noting that Spivey was no longer employed by Wright’s Roofing. A year later, Spivey resumed his employment with Wright’s Roofing but did not complete AMS staffing forms. Instead, Spivey was paid with checks drawn on a Wright’s Roofing account.

One day, Spivey was injured as he worked on a residential job in which Boyet Builders was the general contractor and Wright’s Roofing was the subcontractor. Spivey filed a Form 18 and AMS Staff Leasing, Dallas National Insurance, Co., and Crawford & Company (hereinafter “Defendants”) filed a Form 60 and began paying weekly disability benefits. Shortly thereafter, Defendants determined that they had no Workers’ Compensation coverage applicable to Spivey, and filed Forms 63 and 61, denying liability and terminating benefits.

Spivey filed an amended Form 18 and a Form 33 in which he named Wright’s Roofing, Dallas National and Boyet Builders as responsible parties. Boyet Builders filed a Form 61 and a Form 33R and denied that Spivey was its employee at the time of the injury and asserted that Defendants had already accepted liability for benefits.

At hearing, Spivey moved that Defendants be ordered to reinstate TTD benefits and Deputy Commissioner Phillips allowed the motion. She later entered an Order holding Boyet Builders and Auto-Owners Insurance liable for Spivey’s injury and ordered them to pay indemnity and medical benefits. Boyet and Auto Owners appealed to the Full Commission. The Commission determined that Defendants had no legal basis to withdraw their Form 60 and ordered them to provide indemnity and medical benefits. Defendants appealed to the North Carolina Court of Appeals.

On January 15, 2013 inSpivey v. Wright’s Roofing, the Court first considered whether the Full Commission erred by refusing to allow Defendants to set aside the Form 60. Finding no error, the Court noted that an employer who files a Form 60 waives the right to contest the compensability of a claim on the basis of a unilateral mistake. According to the Court, the burden is on the employer or carrier to determine whether a particular claim is compensable and whether the employer or carrier is liable before filing a Form 60.

The Court also addressed the issue of whether the Full Commission erred in holding that Boyet Builders was not responsible for benefits pursuant to N.C.G.S.§ 97-19. The Court noted that N.C.G.S. § 97-19 applies only when two conditions are met. First, the injured employee must be working for a subcontractor doing work that has been contracted to it by a principal contractor. Second, the subcontractor does not have workers’ compensation insurance coverage covering the injured employee and since workers’ compensation insurance was available through Spivey’s immediate employer, Wright’s Roofing, because Defendants accepted the claim, there was no error.

Risk Handling Hint:Risk Managers are reminded to carefully consider whether a claim is compensable before accepting an injury on a Form 60. Benefits can be paid and medical treatment provided during the investigation period by filing a Form 63. If additional time is required to conduct an investigation, the employer and carrier can request a limited extension of time from the Industrial Commission.

Michael DePue v. WCAB (N. Paone Construction, Inc.) 

1113 C.D. 2012 (PA. Cmwlth. January 30, 2013)

By: Lisa A. Miller, Esquire

The Commonwealth Court affirmed the Decision of the Appeal Board and WCJ which denied the Claimant’s Review Petition to add a left shoulder injury to the description of his work injury more than two (2) years after the approval of a Compromise and Release Agreement, and also denied Claimant’s Penalty Petition for failure to pay medical bills for the left shoulder injury.

The Claimant sustained a work-related closed head injury on February 26, 1996. On March 3, 2008, the Claimant and Defendant entered into a Compromise and Release Agreement to settle the Claimant’s indemnity benefits for a lump sum amount of $175,000.00 as “full and final satisfaction of all future wage loss benefits.”

The injuries described in the C&R Agreement were described as “any and all injuries. . . . including but not limited to the accepted injuries of a severe closed head injury with seizure disorder, and short term memory loss.” The Defendant agreed to continue to pay “all reasonable and related medical bills.” 

The Claimant filed a Penalty Petition alleging that Defendant failed, neglected, or refused to pay medical bills. The Claimant sought a fifty (50%) percent penalty on $1,200.00 in medical bills. The Claimant also filed a Review Petition alleging that the description of his work injuries were incorrect. 

The Defendant denied the Claimant’s allegations, and sought dismissal of the Review Petition invokingres judicata and collateral estoppel.

The Claimant submitted a Pre-Trial Memorandum in which he alleged that Defendant informed him in January 2010 that it would no longer pay for treatment for his left shoulder injury.

The Defendant submitted the WCJ’s Decision approving the Compromise and Release Agreement; the transcript of the Compromise and Release Hearing; and a packet of Proposed Addendums to the Compromise and Release Agreement prepared by Claimant’s counsel with changes, including a hand written notation made by Defendant’s counsel thereon; and the February 27, 2008 letter that Defendant’s counsel sent to Claimant’s counsel. 

In an Interlocutory Order, the WCJ precluded Claimant from proceeding on the Review Petition, and scheduled a hearing on the Penalty Petition to determine whether the Claimant was alleging unpaid medical bills from the left shoulder injury only, or for other injuries accepted by the Defendant. The WCJ indicated that if Claimant was alleging the medical bills only for the left shoulder injury, the Penalty Petition would be denied. Claimant’s counsel stated that the Penalty Petition was related only to the left shoulder injury, and the WCJ denied the Review and Penalty Petitions. 

The WCJ concluded that the Review Petition was barred byres judicatabecause the Claimant was aware of the left shoulder injury at the time of the C&R, and agreed not to include it in the Compromise and Release Agreement. The WCJ relied onWeney v. WCAB (Mac Sprinkler Systems, Inc.),960 A.2d 949 (Pa. Cmwlth. 2008). InWeney the Claimant’s first Review Petition was resolved by a Stipulation, in which the parties agreed to amend the NCP to include a shoulder injury. Three (3) days after the WCJ approved the Stipulation and granted the Review Petition, the Claimant filed another Review Petition to amend the NCP to add neck or cervical spine injuries. The Court concluded that the second Petition was barred by theres judicata because the Claimant was aware of those injuries and their causal relationship to the work incident during the first Review Petition proceeding, and should have litigated the claim during that proceeding. 

The Appeal Board affirmed the WCJ’s Decision, concluding that the evidence did not indicate that the C&R Agreement was entered into by unilateral or mutual mistake.  The Board determined that the C&R Agreement was final and binding, and that the Review Petition was barred byres judicata. The Board noted the Claimant was attempting to raise a matter in his Review Petition that should have been litigated during the earlier proceeding on the Compromise and Release Agreement underWeney.

The Claimant argued that the Compromise and Release Agreement should be “corrected” to add the left shoulder injury to the description of his work injuries.  The Claimant alleged that the left shoulder injury was “erroneously” omitted in the final draft of the Agreement. Claimant contends that the Employer routinely paid medical bills for the left shoulder injury, and that it knew that the bills were “casually related to his injuries.” Claimant disputed thatres judicata applied to the matter noting that there was no prior litigation involving a request to amend the description of his work injuries.

Employer argued that the Claimant flagrantly misrepresented that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement.  Employer contended that the Claimant was entitled to receive medical benefits only for the injuries described in the Compromise and Release Agreement as accepted by the Employer, and that the Review Petition was barred byres judicata and collateral estoppel. 

Section 449(a) and (b) of the Act provides that:

a) Nothing in this Act shall impair the right of the parties interested to compromise and release …any and all liability which is claimed to exist under this act on account of injury or death.

b) Upon or after filing a Petition, the Employer or Insurer may submit the proposed Compromise and Release by stipulation signed by both parties to the WCJ for approval. The WCJ shall consider the Petition and proposed Agreement in open hearing and shall render a Decision. The WCJ shall not approve any Compromise and Release unless he first determines that the Claimant understands the full legal significance of the Agreement. The Agreement must be explicit with regard to payment, if any, of reasonable, necessary and related medical expenses. 

In enacting Section 449 of the Act, the legislature intended a Compromise and Release Agreement to be “on equal footing with civil settlements” in order to promote a public policy of encouraging the parties to settle disputes and bring them to finality. Stroehmann Bakeries, Inc. v. WCAB (Plouse),768 A.2d 1193, 1196 (Pa. Cmwlth. 2001).

Defendant’s exhibits demonstrated that before the execution of the Compromise and Release Agreement, Claimant’s counsel sent a Proposed Addendum to the Agreement to Defendant’s counsel. 

Paragraph Twenty-Four (24) of the Proposed Addendum stated “the accepted injuries includes ‘closed’ head injury, seizure disorder, left shoulder fracture, chronic pain, loss of short term memory and bi-polar disorder. Defendant agrees to continue to provide medication and medical care which is reasonable and necessary, and casually related to his injuries.”

Defendant’s counsel sent the Proposed Addendum back to Claimant’s counsel after crossing out the injuries of “left shoulder fracture”, “chronic pain”, and “bi-polar disorder” in paragraph 24, and placing a hand written notation, which stated that “we already negotiated these injuries at the time of the ‘settlement’”. In a letter dated February 27, 2008, that accompanied the Proposed Addendum sent back to Claimant’s counsel with his changes and notation, Defendant’s counsel further stated “we previously negotiated the accepted injuries in 2007 and those are the only injuries I will outline on the Agreement.” The C & R Agreement signed by the Claimant and Defendant described Claimant’s injuries as accepted by Defendant as “a severe closed head injury with seizure disorder and short term memory loss” and omitted the other injuries listed in the Proposed Addendum. 

At the March 3, 2008 hearing, the Claimant testified that his head injury affected mostly his short term memory and caused seizures.  He was not asked, and did not testify as to the left shoulder injury. 

The WCJ found that Claimant understood the full legal significance of the Agreement “as regards to his work related injury and right to Worker’s Compensation benefits.”  The WCJ determined that the parties entered into a “valid and binding Agreement” Department of Labor and Industry, Bureau of Worker’s Compensation v. WCAB (Ethan-Allen Eldridge Division),972 A.2d 1268 (Pa. Cmwlth. 2009).  An approved Compromise and Release Agreement can be set aside only upon a clear showing of fraud, deception, duress, a mutual mistake or unilateral mistake caused by an opposing party’s fault. Farner v. WCAB (Rockwell Int’l), 869 A.2d 1075 (Pa. Cmwlth. 2005);Barsczzewski v. WCAB (Pathmark Stores, Inc.), 868 A.2d 224 (Pa. Cmwlth. 2004).

After negotiations with the Defendant, the Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by the Defendant in the Compromise and Release Agreement. The record did not support Claimant’s assertion that the left shoulder injury was erroneously omitted in the final draft of the Compromise and Release Agreement. The Compromise and Release Agreement was final and binding on the parties, and may not be amended after its unappealed approval period.

Once a Compromise and Release Agreement is approved, any issue which was not expressly reserved in the Agreement may not be raised later.  Department of Labor and Industry, Bureau of Workers’ Compensation v. WCAB (U.S. Food Service), 932 A.2d 309 (Pa. Cmwlth. 2007). Because the Claimant did not expressly reserve his right to add the new injury to the description of his work injuries, he was precluded from doing so more than two (2) years after the approval of the Compromise and Release Agreement.

Claimant argued that the description of the “injury” in the Compromise and Release Agreement as “any and all injuries” sustained in Employer’s workplace indicates the party’s intention to include the left shoulder injury in the injuries accepted by the Defendant. The Claimant relied on the contract construction rule that the intention of the parties must be ascertained from the document itself, if its terms are clear an unambiguous. 

However, Employer did not accept its liability for the left shoulder injury in the NCP or in any Agreement, and specifically refused to include it as part of the Compromise and Release. Nor was there any prior decision finding Defendant liable for that injury. 

The Court rejected the Claimant’s reliance on the Doctrine of Promissory and Equitable Estoppel. Promissory estoppel may be invoked to enforce a promise made by a party to an opposing party when there is no enforceable agreement between the parties. Crouse v. Cyclops Indus., 560 Pa. 394, 745 A.2d 606 (2000). 

In order to maintain an action in promissory estoppel, the aggrieved party must show the (1) the promissor made a promise that he or she should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise.  The essential elements of equitable estoppel are that the party’s inducement of the other party to believe certain facts to exist and the other party’s reliance on that belief to act. Westinghouse Elec. Corp/CBS v. WCAB (Korach),584 Pa. 411, 883 A.2d 579 (2005). In the absence of “expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with the honest purpose and with absence of negligence as with their opposites.” Westinghouse, 584 Pa. at 423, 883 A.2d at 586. 

Nothing in the record suggests that Defendant promised to continue to pay medical bills for the left shoulder injury, and that Claimant relied on such promise to enter into the Compromise and Release Agreement. The record demonstrates that he negotiated the extent of his work injuries with the Employer, and ultimately agreed to omit the left shoulder injury in the Agreement. Claimant can not rely on the Employer’s voluntary payment of the medical bills for the left shoulder injury to support his estoppel claims. The Court has consistently held that Employer’s voluntary medical payment does not constitute an admission of liability for the injury. Securitas Sec. Servs. USA, Inc. v. WCAB (Schuh),16 A.3d 1221 (Pa. Cmwlth. 2011); Findley Township v. WCAB (Phillis),996 A.2d 111 (Pa. Cmwlth. 2010). To hold otherwise would be contrary to the Act’s policy of encouraging Employers to voluntarily pay medical expenses to injured employees to assist them in regaining health without fear of being later penalized for the payment. Defendant’s payment of medical expenses was not an admission of liability for the left shoulder injury and cannot be construed as a promise to continue to make such payment. 

In conclusion, the Claimant’s Review Petition was barred by the final and binding Compromise and Release Agreement. 

Here are the details of a new proposed bill out of the Iowa House that would change the way we handle alternate medical care, among other items:

House File 274

Bill Explanation:
This bill relates to the state's workers' compensation laws by modifying alternate care procedures for medical treatment, creating registries of physicians who treat and evaluate work=related injuries, providing for the retention of a medical director, creating a state workplace injury care providers registry fund, establishing a workers' compensation advisory council, providing for and appropriating fees, and providing effective dates.

MEDICAL AND ALTERNATE CARE. Code section 85.27(4), concerning the provision of medical services, requires an employer to provide written information about the state's workers' compensation laws to an employee upon receiving notification that the employee has suffered a work=related injury.

The employer has the right to predesignate a licensed physician to treat the injury and make necessary referrals and may predesignate a physician listed on the state registry of workplace injury care providers. If the employer does not predesignate a treating physician, the employee may designate a physician of the employee's choosing to provide the treatment. The physician predesignated by the employer or designated by the employee is required to provide ongoing written documentation of the physician's opinions, treatment recommendations, and care plan to the employee along with information about whether the opinions, recommendations, and care plan are in accord with either the official disability guidelines and treatment guidelines in workers' compensation published by the work loss data institute or the American college of occupational and environmental medicine practice guidelines (ACOEM), and if so, citation to the appropriate guidelines. The employee has the right to request and obtain a second opinion from another licensed physician of the employee's choosing at the employer's expense. If the employer or employee is dissatisfied with the care of a treating physician predesignated or designated by the other party or with any referral made by that physician, the employer and employee may mutually agree to alternate care. If they cannot agree on alternate care, either party may notify an insurance claims specialist within the division of workers' compensation, who shall, within five working days, schedule a conference between the parties to review the basis for dissatisfaction and provide an advisory opinion to resolve the dispute. If the parties still cannot agree on alternate care after this conference, the workers' compensation commissioner may, upon application and reasonable proof of the necessity, allow and order alternate care. The employee is responsible to make the application for alternate care and to provide such reasonable proof to the commissioner if the employer provided written information about the state's workers' compensation laws at the time of notification of the employee's injury, and predesignated a treating physician listed on the state registry of workplace injury care providers, and if the treating physician predesignated by the employer provided written documentation to the employee of the physician's opinions, treatment recommendations, and care plan along with citation to the appropriate treatment guidelines. The employer is responsible for making the application for alternate care and providing reasonable proof if the employer and predesignated treating physician did not act as described above or if the employee designated the treating physician to treat the work injury. The commissioner is not bound by the advisory opinion of the claims specialist and must conduct a hearing and issue a decision within 10 days of receipt of an application for alternate care. The employer has the right to request an employee to submit, as often as is reasonable and at a reasonable time and place to an examination by a licensed physician chosen by the employer for any purpose relevant to the employer's duties to provide benefits to the employee under the state's workers' compensation laws and at the employer's expense. If the employer makes the request in writing and pays all expenses, including transportation, the employee shall submit to the examination. Each time that the employer obtains an evaluation of an employee's permanent disability by a physician chosen by the employer, if the employee believes that the evaluation of disability is too low, the employee may obtain a subsequent examination and evaluation by a physician of the employee's choosing at the employer's expense, including transportation expenses to and from the place of the examination.

PROVIDER REGISTRIES ==== FEES ==== MEDICAL DIRECTOR. New Code section 85.73 requires the workers' compensation commissioner to establish and maintain a registry of licensed physicians that offer or provide treatment of work=related injuries. The commissioner shall, by administrative rule, establish requirements for a physician to be listed on the registry and establish a registration fee. The provision shall not be construed to require a physician to be listed on the registry in order to offer or provide treatment of work=related injuries or to prohibit an employer or employee from predesignating or designating a physician to provide treatment who is not listed on the registry.

New Code section 85.74 requires the commissioner to establish and maintain a separate registry of licensed physicians trained to perform independent medical evaluations and to issue impairment ratings of injured employees. The commissioner shall establish, by administrative rule, minimum training requirements for a physician to be listed on the registry and establish a fee. A physician must be listed on the registry in order to perform independent medical evaluations and issue impairment ratings of injured employees in this state. The commissioner may prohibit an employer or employee from using an independent medical evaluation or impairment rating of an injured employee from a physician who is not listed on the registry as evidence at a hearing to determine benefits under the state's workers' compensation laws.

New Code section 85.76 authorizes the commissioner to retain the services of a medical director to assist the division of workers' compensation in advancing the field of occupational health in Iowa and to advise the commissioner on how to successfully apply and administer the state's workers' compensation laws.
STATE WORKPLACE INJURY CARE PROVIDERS REGISTRY FUND. All registration fees collected pursuant to new Code sections 85.73 and 85.74 shall be credited to the state workplace injury care providers registry fund created in new Code section 85.77 and are appropriated to the division of workers' compensation by new Code section 85.75 to carry out the provisions of new Code sections 85.73, 85.74, 85.75, 85.76, and 85.78, including establishing and maintaining the two physician registries, retaining a medical director, and for the expenses of the workers' compensation advisory council created in new Code section 85.78.

WORKERS' COMPENSATION ADVISORY COUNCIL. New Code section 85.78 establishes a workers' compensation advisory council within the division of workers' compensation that is composed of six members, three representing employers and three representing organized labor. The governor appoints two of the members, the president and the minority leader of the senate jointly appoint two members, and the speaker and the minority leader of the house of representatives jointly appoint two members. The members serve six=year staggered terms, except that for the initial terms beginning on January 1, 2014, one member appointed by the governor, one member representing employers, and one member representing organized labor shall be appointed for three=year terms to ensure that members serve staggered terms. The purpose of the council is to assist the workers' compensation commissioner in the successful administration of the division of workers' compensation and to make recommendations to the governor and the general assembly regarding workplace safety and improvements to the state's workers' compensation system.

EFFECTIVE DATES. The sections of the bill creating the provider registry for treatment of work injuries, the provider registry fund, the position of medical director, and the advisory council, and appropriating fees, take effect January 1, 2014. The sections of the bill pertaining to alternate care procedures and required registration of physicians performing independent medical evaluations and impairment ratings take effect July 1, 2014.

If you have any questions on this, please feel free to call Mark Bosscher or Lee Hook at 515-243-2100. We'd be happy to help answer any questions you might have, big or small!

On February 15, 2013, the Alabama Court of Civil Appeals released its opinion in CVS/Caremark Corp. v. Gloria Washington wherein it addressed  the affirmative defense of judicial estoppel in the workers’ compensation context. Specifically, the Court noted the availability of the defense but only when properly pled. 

The Court of Appeals had previously addressed the issue in White Tiger, Inc. v. Paul Clemons (released January 13, 2012).  In that case, the Court ruled that a claimant’s assertion that he was available and able to do some work at his unemployment hearing, did not prevent him from being awarded permanent and total disability benefits in his workers’ compensation case.  The Court noted that being willing and able to do some work does not necessarily mean that you are able to secure employment that you are physically able and qualified to do. In the workers’ compensation case the plaintiff testified that he could not secure work because of his disability but he would give it a shot if someone hired him for a job he was qualified to do. For this reason the Court held that the two statements, in separate judicial proceedings, did not contradict one another in order to satisfy the necessary criteria for judicial estoppel to apply. 

In the more recently decided Washington case, the Court held that the employer waived its right to assert judicial estoppel as a defense by not affirmatively asserting or pleading it.  The Court further noted that the employee would have been judicially estopped from prevailing on a claim for permanent and total disability benefits based on the Court’s rationale in Clemons.  The Court distinguished the two cases because the employee in Washington testified in her workers’ compensation case that she could not work at all because of her pain and she had not sought employment.  The employee further admitted that she misrepresented her condition and ability to work in her claim for unemployment benefits. Unlike the Clemons case, in which the plaintiff testified he would give it a shot if he was hired in a position he was qualified for in the workers’ compensation case, the employee in Washington testified that she could not work and had not sought work because her injury/pain prevented her from working at all. Therefore, the two statements were in direct conflict of one another.  

Practice Pointer: Judicial estoppel is a viable defense in workers’ compensation cases but only if it is affirmatively pled.   

_____________________________ 

ABOUT THE AUTHOR 

The article was written by Joshua G. Holden, Esq. of Fish Nelson, LLC, a law firm dedicated to representing employers, self-insured employers and insurance carriers in workers’ compensation matters. Fish Nelson is a member of The National Workers’ Compensation Defense Network (NWCDN). If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at jholden@fishnelson.com, 205-332-1428 or any firm member at 205-332-3430.