State News : Iowa

Des Moines Area Regional Transit Authority and United Heartland v. Arbreina Young, Supreme Court of Iowa, No. 14-0231

Claimant, Arbreina Young, was employed by the Des Moines Area Regional Transit Authority (DART) as a bus driver. On June 2, 2009, the bus she was driving collided with an empty vehicle on DART premises. She sought medical treatment for a back injury and returned to work on June 8, 2009.

Claimant was sent by DART to an orthopedic surgeon, Dr. Daniel McGuire. Dr. McGuire referred Claimant to Dr. Donna Bahls for pain management. Dr. Bahls treated Claimant from August 2009 to November 2011. On March 18, 2010, Claimant went to Dr. Jacqueline Stoken for a medical examination. The examination was not authorized by DART, but arranged independently by Claimant. In Dr. Stoken’s report, she concluded Claimant reached maximum medical improvement (MMI) on March 11, 2010, and suffered a permanent disability to her back. She assigned Claimant a fifteen percent body-as-a-whole impairment rating and also imposed work restrictions.

On April 16, Claimant underwent a functional capacity evaluation. The evaluation found she should be limited to light to medium categories of work. On May 18, Dr. Bahls determined Claimant had reached MMI, suffering a permanent disability to her back, and assigned her a five percent body-as-a-whole impairment rating. She also adopted the restrictions recommended by the functional capacity evaluation.

Claimant filed a workers’ compensation claim on December 29, 2010, and the case proceeded to a hearing before a deputy workers’ compensation commissioner. At the hearing, Claimant submitted the report from Dr. Stoken as evidence. Following the hearing, the deputy commissioner found Claimant suffered a permanent partial disability to her back resulting in a twenty-five percent reduction in earning capacity. The deputy commissioner also taxed as a cost against DART the expense of Dr. Stoken’s examination and report under the administrative rule governing the assessment of costs in a hearing.

The commissioner affirmed the decision of the deputy commissioner. DART filed for judicial review. The district court affirmed the decision of the commissioner. DART appealed. The sole issue raised on appeal concerned the award as a cost of the examination and report by Dr. Stoken. The court of appeals reversed the district court’s ruling. It found the practice of assigning the expense of an examination as a cost under the rule would defeat the statutory requirements governing the reimbursement of an independent medical examination. Further, the court of appeals determined that Dr. Stoken’s bill was a charge for the examination, not a report, as required by the language of Iowa Administrative Code rule 876—4.33. Clamaint sought and the Iowa Supreme Court granted further review.

The Iowa Supreme Court rejects Claimant’s argument that hearing costs include the expenses of an independent examination because the examination is necessary to obtain a report on the results of the examination for a hearing. The Court agrees that a physician’s written report of an examination and evaluation under Iowa Code section 85.39 would be a reimbursable expense under section 85.39, just as an unreimbursed written report of an examination and evaluation, like deposition testimony and witness fees, could be taxed as hearing costs by the commissioner. Yet, a physician’s report becomes a cost incurred in a hearing because it is used as evidence in lieu of the doctor’s testimony. The underlying medical expenses associated with the examination do not become costs of a report needed for a hearing, just as they do not become costs of the testimony or deposition. The logic of Claimant’s argument is not supported by the language of the governing statutes or the overall workers’ compensation scheme.

The Iowa Supreme Court further concludes section 85.39 is the sole method for reimbursement of an examination by a physician of the employee’s choosing and that the expense of the examination is not included in the cost of a report. Moreover, even if the examination and report were considered to be a single, indivisible fee, the commissioner erred in taxing it as a cost under administrative rule 876—4.33 because the section 86.40 discretion to tax costs is expressly limited by Iowa Code section 85.39. Our legislature established a statutory process to govern examinations of an injured worker in order to obtain a disability rating to determine the amount of benefits required to be paid by the employer. Neither courts, the commissioner, nor attorneys can alter that process by adopting contrary practices. If the injured worker wants to be reimbursed for the expenses associated with a disability evaluation by a physician selected by the worker, the process established by the legislature must be followed.

In sum, the Iowa Supreme Court concludes the commissioner erred in interpreting Iowa Code sections 85.39 and 86.40 (2009) and Iowa Administrative Code rule 4.33. The Court therefore affirms the decision of the court of appeals. The Court remands to the district court to remand the case to the commissioner for further proceedings consistent with this decision. Only the costs associated with the preparation of the written report of Dr. Stoken can be assessed as costs of the hearing.

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Pella Corporation v. Diana Winn, Court of Appeals of Iowa, No. 14-0771

On February 4, 2011, Claimant, Diana Winn, filed two petitions with the Iowa Workers’ Compensation Commissioner, both alleging she sustained a cumulative injury to her right shoulder. The first petition, numbered 5035646, claimed the injury occurred on November 16, 2010, the day she was suspended by her then employer, Pella Corporation. The second petition, numbered 5035647, alleged the injury occurred on June 1, 2010.

At the time of the arbitration hearing, Claimant was sixty-one years old. She had worked for Pella Corporation for thirty-four years. For the last ten years of her employment, Claimant had worked as a stock-keeper, requiring her to carry out different tasks, many involving the pushing and pulling of materials in the stock room.

During Claimant’s tenure with Pella Corporation, she suffered several injuries, including tearing a rotator cuff in her left shoulder in 2008. Claimant returned to work after that injury with restrictions, which essentially left her performing her job tasks with only her right arm. Eventually she began to have pain in her right shoulder, and on June 1, 2010, she saw her medical provider, Nurse Practitioner Katherine Todd, for treatment of her right shoulder pain. Nurse Todd diagnosed Claimant with “[r]ight arm and neck pain, most likely due to overuse due to the fact she cannot use her left arm.” Nurse Todd referred her to Dr. Cassim Igram, an orthopedic surgeon. Dr. Igram ordered an MRI of Claimant’s right shoulder, which took place on July 13. The procedure revealed “a small full thickness rotator cuff tear” in Claimant’s right shoulder. Dr. Igram then referred Claimant to Dr. Scott Meyer, an orthopedic shoulder specialist. Dr. Meyer evaluated Claimant on August 27, 2010, and he agreed Claimant had a tear in the rotator cuff of her right shoulder.

On February 16, 2012, an arbitration hearing was held on Claimant’s petitions before a deputy workers’ compensation commissioner. The deputy entered her arbitration decision on September 19, 2012. She concluded Claimant sustained an injury to her right shoulder as a result of her employment with Pella Corporation. The deputy specifically found the date of Claimant’s “right shoulder injury was November 16, 2010 and not on June 1, 2010,” explaining the November date was “the date [Winn] discovered her condition was serious enough to have a permanent, adverse impact on her employment.” The deputy determined Claimant had a permanent partial disability in the amount of eighty percent and awarded Claimant permanent partial disability benefits.

Pella Corporation sought a rehearing, which was subsequently denied. It then appealed the deputy’s arbitration decision to the commissioner. The commissioner affirmed and adopted the deputy’s decision. Pella Corporation filed an application for rehearing, which the commissioner denied. Pella Corporation then filed a petition in district court seeking judicial review of the agency’s decision, asserting the decision was not based on proper findings of fact and conclusions of law.

Following a hearing in January 2014, the district court entered its ruling on judicial review affirming the agency in all respects but one. Like the commissioner, the court found the deputy commissioner was in the best position to assess Claimant’s credibility, and it concluded substantial evidence in the record supported both the deputy’s credibility finding and the agency’s determination that Claimant suffered an injury in the course of her employment with Pella Corporation. However, the district court agreed with Pella Corporation’s contention that the agency did not employ the proper legal test in determining the date of Claimant’s injury, and it remanded the case back to the agency “to determine the date of cumulative injury using the appropriate legal analysis stated in Herrera [v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001)].” InHerrera, the Iowa Supreme Court clarified the analytical interplay between the cumulative injury rule and the discovery rule. Finally, the district court found the agency’s determination that Claimant sustained permanent partial impairment to her body as a whole in the amount of eighty percent was supported by substantial evidence and was not irrational, illogical, or unjustifiable. The court entered its ruling remanding “for a determination as to the date of the right-shoulder injury, and a reconsideration of [Winn’s] first claim for workers’ compensation benefits, file number 5035647.”

Following the district court’s final decision on judicial review, Pella Corporation appealed, and Claimant cross-appealed. Pella Corporation contends the district court erred by remanding the case to the agency for a determination of an injury date rather than dismissing the case altogether, and Claimant argues the court erred in remanding the case with the direction that the agency consider Pella Corporation’s section 85.23 defense. Pella Corporation asserts the court erred in affirming the agency’s conclusion that Claimant was credible and suffered a work-related injury. Pella Corporation also argues the district court erred in affirming the award of industrial disability benefits when the issue of entitlement to such benefits was not ripe for determination and because the agency award was not supported by substantial evidence and reflects error of law.

Because the Court of Appeals finds the district court erred in finding Pella Corporation’s untimely-notice defense should be considered on remand, the Court reverses on this issue. The Court affirms the decision of the district court in all other respects and remands the case to the district court with instructions on judicial review to remand to the commissioner for a date-of-injury manifestation analysis consistent with the Supreme Court’s directions inHerrera for purposes of benefit calculation.

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Polaris Industries, Inc. v. Ken E. Sharar, Court of Appeals of Iowa, No. 14-1648

Claimant, Ken Sharar, has been employed by Polaris since 2003. His work at Polaris primarily involved physical labor. On November 3, 2009, he fell while performing his work duties and sustained serious injuries to his right shoulder. He underwent two surgeries and extensive physical therapy. He returned to work on light duty but struggled with clerical tasks that required the use of a computer. He eventually settled into a position operating an air lift. He was able to perform these work tasks largely unassisted.

Claimant achieved maximum medical improvement (MMI) on February 21, 2011. The doctor who determined he had reached MMI opined Claimant suffered “a total impairment rating of 5% of the right upper extremity due to his decreased range of motion.” A second doctor performed an independent medical evaluation of Claimant. He calculated a fifteen percent permanent impairment of the extremity—equivalent to a nine percent whole-person impairment—and estimated Claimant could lift thirty-five pounds using both hands. A vocational consultant wrote in an evaluation of Claimant, “It is reasonably likely that he has suffered a reduction in employability of 61% and a reduction in labor market access of approximately 70%. This is reasonably expected to result in a loss in earning capacity estimated at approximately 65%.”

Claimant filed for permanent partial disability benefits. A deputy commissioner at the agency conducted a hearing. He found Claimant to have sustained a forty percent loss of earning capacity and awarded him 200 weeks of industrial disability benefits. Polaris appealed the decision of the deputy commissioner, and the commissioner affirmed the award. Polaris petitioned the district court for judicial review, and the court affirmed. Polaris now appeals from the district court’s affirmance. Polaris does not contest that Claimant is entitled to some amount of industrial disability benefits, but it contends the award of forty percent is excessive and not supported by substantial evidence.

On review of the record and consideration of the applicable factors, the Court of Appeals finds substantial evidence to support the agency’s determination. Claimant’s functional impairment prevents him from engaging in heavy physical labor, and most of his prior work experience and qualifications relate to physical labor. At the time of the hearing, Claimant was forty-eight years old and high-school educated. The record shows he experienced difficulties adapting to retraining and learning new skills. Although Claimant’s actual earnings at the time of the hearing were higher than at the time of the injury, the report of the vocational consultant indicates that Claimant’s earning capacity in the general labor market had decreased.

Archer Daniels Midland, Inc. v. Robert Warren, Court of Appeals of Iowa, No. 14-0956

Claimant, Robert Warren, was born in 1949. He completed the ninth grade, later obtained his G.E.D, and also attended Kirkwood Community College. In 1969, Claimant suffered a severe, traumatic right-hip injury after falling twenty-eight feet from a roof that collapsed. He underwent a Jewett hip nailing procedure involving a three and one-half inch nail, a four inch plate, and metallic screws. Claimant worked as a welder from 1974 until 1986 when that employer’s plant closed. In 1976, at his doctor’s recommendation, Claimant had the Jewett nail removed. Claimant worked for a different employer’s manufacturing business from 1987 to 2000. He then drove a semi-truck for about six months.

On March 19, 2001, Claimant began working for Archer Daniels Midland, Inc. (ADM). His health was “excellent” when he started and he was under no restrictions. As a utility worker at ADM, Claimant was responsible for moving railcars and directing trucks into proper filling position. Claimant’s right hip began to bother him when the rail car staging area was expanded, which caused him to walk more. On January 28, 2009, Claimant went to his family doctor, Dr. Yang Ahn, complaining of stiffness and pain. Dr. Ahn referred him to Dr. Michael Brooks for evaluation on July 31, 2009. Dr. Brooks assessed “[p]olyarthritis with a predominance of osteoarthritis.”

On September 22, 2010, Claimant saw Dr. Sandeep Munjal, an orthopedic surgeon. Dr. Munjal noted, “His work does require significant lifting of loads and more than twelve hundred steps a day of rough walking.” X-rays demonstrated “advanced degenerative changes in the right hip with hallmarks of previous surgery and a valgus alignment of the hip.” Claimant underwent a right total hip replacement on February 22, 2011. Claimant returned to ADM, but was told his work restrictions could not be accommodated. Consequently, Claimant’s last date of employment with ADM was February 18, 2011.

On April 5, 2011, Claimant filed a petition seeking workers’ compensation benefits for a cumulative injury. ADM sent Claimant for an independent medical examination (IME) with Dr. William Boulden on June 15, 2011. In his report, Dr. Boulden opined “Warren’s work activities with Archer Daniels Midland…did not accelerate or cause the osteoarthritis of his hip, for which he had the hip replacement.” On March 13, 2012, Claimant was seen by Dr. Ray Miller for another IME. Dr. Miller wrote: “It is my opinion from evaluating Mr. Warren, his medical records, and his job requirements, that his work activity during his ten years at Archer Daniels Midland were significant physical activities that contributed to the progression of osteoarthritis resulting in the need for a total hip replacement.” At a June 11, 2012 deposition, Dr. Munjal testified that Claimant’s work activities were not a cause of Claimant’s osteoarthritis.

Following an arbitration hearing, the deputy commissioner determined, “The record evidence considered as a whole does not support a finding that claimant’s right hip osteoarthritis and his need for a right hip replacement were rational consequences of his work activities for ADM.” Consequently, the deputy denied Claimant’s workers’ compensation benefits. Claimant appealed to the commissioner.

The commissioner reversed the deputy’s arbitration ruling. The commissioner reviewed the records of Drs. Munjal, Boulden, and Miller and determined Claimant “met his burden to prove that his right hip replacement and disability arose out of and in the course of his employment duties with [ADM].” Further, the commissioner found Claimant had sustained a twenty-percent impairment to the whole person. The commissioner concluded Claimant “sustained a right hip injury through a cumulative process as an aggravation of claimant’s preexisting hip condition.” The commissioner also concluded Claimant had “sustained an injury which permanently disables him from performing work within his experience, training, education, and physical capacities,” entitling him an award of permanent total disability benefits commencing on February 19, 2011.

ADM filed a petition for judicial review in the district court. The district court found substantial evidence supported the commissioner’s finding of causation. ADM Appeals.

Because the commissioner weighed the expert opinion evidence thoroughly and documented its finding of causation, and the district court accepted the finding of the commissioner as supported by substantial evidence in the record, the Court of Appeals affirms the causation finding. Additionally, the Court of Appeals does not find the commissioner’s determination as to industrial disability was irrational, illogical, or wholly unjustifiable. The Court of Appeals therefore affirms the district court’s decision affirming the Iowa Workers’ Compensation Commissioner’s award of permanent total disability benefits to Claimant.

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!

United Heartland, Inc. and Camanche Community School District v. Kathaleen Brown, Court of Appeals of Iowa, No. 14-1070

Claimant, Kathaleen Brown, taught fourth grade at the Camanche elementary school from 1998 through 2010. In the fall of 2000, Claimant developed severe bronchitis and also received treatment for multiple asthma attacks. Between March 2003 and May 2010, Claimant saw her family physician more than two dozen times for respiratory problems. After being hospitalized for pneumonia in 2007, Claimant noticed mold on the filter of a humidifier she had brought into her classroom. The school followed up with four separate indoor air quality investigations between 2008 and 2011. The 2008 study revealed ventilators in Claimant’s classroom were “covered by a layer of particulate material.” Carpet dust samples showed fungal growth. An industrial hygienist suggested the school develop a “remedial cleaning strategy.”

Following a reactive breathing attack at school in May of 2010, Claimant did not return to work. On June 2, 2010, Claimant sought an opinion from Dr. Charles Bruyntjens, a pulmonary specialist. He diagnosed Claimant with occupational environmental lung disease, hyper-reactive airways, and shortness of breath. He found the school environment either started her condition or aggravated a preexisting condition.

Claimant filed a claim for workers’ compensation benefits on October 28, 2010, alleging she was exposed to contaminants in her workplace affecting her lungs, bronchial passages, and whole body. The school district filed an answer denying her allegations.

In April 2011, Claimant saw Dr. Jason Wittmer, a pulmonologist. Dr. Wittmer found no abnormal lung function and no airway obstruction. In August 2011, Claimant’s attorney arranged for an independent medical examination with Dr. Joel Kline. Dr. Kline reached an opinion that Claimant suffered from asthma, which had been substantially aggravated by exposures she received while at the school. In September 2011, the school district’s attorney sought an opinion from Dr. Laurence Fuortes. Dr. Fuortes opined “the elementary school was not grossly contaminated” at least “in the post remediation period.” Dr. Fuortes also found Claimant did not show a “chronic impairment of the respiratory system.”

On April 10, 2012, a deputy workers’ compensation commissioner issued an arbitration decision finding Claimant met her burden of proving an injury arising out of her employment. The school district appealed and the arbitration decision was affirmed on May 9, 2013. The school district sought judicial review. The district court affirmed the agency’s decision. The school district challenges the judicial review ruling on appeal.

The school district contends substantial evidence does not support the acting commissioner’s conclusion that Claimant suffered from “a pulmonary function injury” related to her work. The school district highlights the opinions of Dr. Wittmer and Dr. Fuortes and also contends the agency found Dr. Bruyntjens “was simply not credible” and asserts Dr. Kline’s opinion was based on erroneous information supplied by Claimant. Additionally, the school district argues Claimant cannot show her injury was caused by harmful conditions in the elementary building.

The Court of Appeals finds substantial evidence to back the agency’s conclusion that Claimant suffered a pulmonary function injury. The agency was entitled to rely on Dr. Kline’s assessment of Claimant’s lung injury and its nexus to the school environment, as well as accepting at least some of the opinions from Dr. Bruyntjens. The Court of Appeals also agrees with the district court that the agency record contains expert evidence establishing a causal connection between her injury and conditions in the elementary school. The record is replete with proof that water had infiltrated the roof and ceiling tiles in the fifty-year-old wing of the school building that housed the fourth grade classrooms where Claimant taught.

In summary, the Court of Appeals finds that the agency’s findings of fact were supported by substantial evidence and its application of law to the facts was not irrational, illogical or wholly unjustifiable.

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!

NID, Inc., and Great West Casualty Company v. Troy Monahan, Court of Appeals of Iowa, No. 14-0292

On March 15, 2007, Claimant, Troy Monahan, fell at work, landing on his left side. He treated at a local hospital and was prescribed medication. On September 28, 2007, NID assigned Claimant to a project. Claimant did not think he was physically able to do the project, and he left without ever returning to work. Over the next two years Claimant treated on multiple occasions for pain on his left side.

On February 26, 2009, Claimant filed his petition in arbitration, alleging a March 15, 2007, work-related injury to his upper left extremity, including shoulder, elbow, and hand. The matter came on for hearing in March 2010. The joint hearing report shows the parties stipulated that Claimant sustained an injury on March 15, 2007, that arose out of and in the course of his employment with NID. The parties disputed whether the injury caused disability, Claimant’s entitlement to healing period benefits or to permanent partial disability benefits, and whether Claimant’s medical expenses were causally connected to the injury.

On June 1, 2010, Monahan filed a petition for alternate medical care seeking arthroscopy recommended by Dr. Neff, an orthopedic surgeon who Claimant, on his own volition, treated with. NID filed its answer, disputing liability for Claimant’s “current left shoulder complaints for which he seeks care.” The agency dismissed the petition for alternate care.

On October 27, 2010, the agency filed its arbitration decision. The deputy found Claimant’s work injury was causally related only to the left hand carpal tunnel syndrome and awarded benefits for the period Claimant was off work following carpal tunnel surgery. The deputy ordered that Claimant was entitled to alternate medical care, specifically that “defendants shall provide claimant a second opinion by an orthopedic doctor of their choosing for his shoulder.” The parties appealed and cross-appealed the arbitration decision. In April 2012, the agency issued its appeal decision, affirming and adopting the arbitration decision.

On April 15, 2013, Claimant filed a second application for alternate medical care. The agency dismissed the application, explaining “before any benefits can be ordered, including medical benefits, compensability of the claim must be established, either by admission of liability or by adjudication.” The agency granted Claimant’s request for rehearing. It held the defendants were “barred by the doctrine of res judicata from contending they are not liable for claimant’s continued shoulder problems.” The rehearing decision also stated: “Since the April 2, 2012 appeal decision, defendants have not provided claimant with a second opinion regarding care for his shoulder injury. Defendants are therefore ordered, once again, to provide the alternate medical care prescribed in the October 27, 2010 arbitration decision in this case.” The agency then imposed attorney’s fees and costs as a sanction against NID.

NID sought judicial review of the rehearing decision. The district court concluded the application for alternate medical care “should have been dismissed” because causation was still at issue. The court remanded the case to the agency to hold a hearing on causation. Both parties filed post-ruling motions. The court summarily denied all postruling motions. This appeal and cross-appeal followed.

Claimant concedes the agency erred in applying the doctrine of res judicata to conclude that NID was barred from contesting causation and liability. He argues that the agency decision should nonetheless be affirmed by application of the doctrine of judicial estoppel because NID previously stipulated to causation and liability. The Court of Appeals concludes NID stipulated only that Claimant suffered a work-related injury. NID actually contested causation and liability at every point in these proceedings. Because NID has not asserted inconsistent positions, there is no reason to apply the doctrine of judicial estoppel. The Court of Appeals thus affirms the district court insofar as it held the agency committed legal error in holding res judicata barred NID from denying causation and liability and also insofar as it declined to judicially estop NID from denying causation and liability.

Additionally, the Court of Appeals agrees with the district court that section 86.42 is the appropriate method for seeking judicial enforcement of the agency’s orders and that the agency erred by ordering compliance with the agency’s prior order in the context of an alternate care proceeding. The agency does not have the authority in an alternate medical care proceeding under section 85.27(4) to enforce a prior order.

Finally, the Court of Appeals finds sanctions against NID were not appropriate. The agency’s primary basis for imposing sanctions was NID’s failure to comply with the appeal decision and obtain a second medical opinion regarding Claimant’s shoulder. That issue was not properly before the agency in this alternate medical care proceeding, and NID had a legitimate basis to contest causation and liability.

Given the Court of Appeals’ conclusion the agency erred in applying res judicata, erred in issuing an enforcement order in an alternate medical care proceeding, and erred in imposing sanctions, the appropriate remedy is remand to the agency for dismissal of the alternate medical care petition.

Tyson Foods v. Maria Gaytan, Court of Appeals of Iowa, No. 14-1397

Claimant, Maria Gaytan, suffered a left shoulder injury while working at Tyson’s in November 2005. She filed a petition in arbitration for workers’ compensation benefits with the Iowa Workers’ Compensation Commissioner. In his arbitration decision, the deputy commissioner concluded the injury was the cause of permanent disability and Claimant had “a 40 percent loss of earning capacity or industrial disability.” Claimant was awarded two hundred weeks of permanent partial disability benefits. Tyson did not seek intra-agency review of the decision.

In June 2010, Claimant underwent left shoulder surgery. In March 2012, Claimant filed a review-reopening petition asserting a change of condition since the arbitration decision. She claimed she suffered additional industrial disability as a result of the November 2005 injury. In his review-reopening decision, the deputy commissioner found that at the time of the arbitration decision, Claimant had a two percent permanent impairment to the body as a whole. Since her surgery, Claimant’s functional impairment had risen to ten percent to the body as a whole. Given this record, Claimant had carried her burden of proof that she had a change in condition related to her work injury with Tyson since the original award of benefits. The deputy then awarded Claimant healing period benefits from June 23, 2010, through May 24, 2011, and permanent total disability benefits commencing on November 22, 2005.

Tyson appealed the decision to the Commissioner, and the Commissioner affirmed the decision without additional comment. Tyson then filed its petition for judicial review. In denying the petition, the district court concluded there was substantial evidence of a change in Claimant’s condition after the original arbitration decision and substantial evidence supported an award of permanent total disability benefits under the odd-lot doctrine and an award of healing period benefits from June 23, 2010, through May 24, 2011. The district court affirmed the Commissioner’s review reopening decision in its entirety.

Tyson now appeals, arguing substantial evidence does not support a finding that Claimant sustained a change in condition since the original arbitration decision. It also argues the award of permanent total disability benefits was not supported by substantial evidence.

The Court of Appeals affirms the district court’s decision affirming the Iowa Workers’ Compensation Commissioner’s decision. The Court noted that the district court’s ruling identifies and considers all the issues presented. The cardinal rule of administrative law is that judgment calls are within the province of the administrative tribunal, not the courts, and the Court is statutorily obligated to afford due deference to the commissioner’s findings of fact.

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!

Steven J. Bell Jr. v. 3E a/k/a Electrical & Engineering Co., and Travelers Indemnity/CT, Court of Appeals of Iowa, No. 14-0044

On March 19, 2010, Claimant, Steven Bell Jr., was working as an “inside sales” representative for Electrical & Engineering Co. (3E) when he slipped and fell in the 3E lobby. The fall resulted in a left wrist sprain, a trauma-induced ganglion cyst, lower back strain, and a contusion to the left shoulder and elbow. Claimant underwent surgery to remove the cyst from his wrist in early May and continued physical therapy for his wrist and shoulder. After leaving physical therapy in mid-May 2010, Claimant returned at the end of the month complaining of increased back pain. An MRI done on Claimant’s back revealed no problems or “abnormalities of the lumbar spine.” On June 24, 2010, Claimant was released to work without restrictions. 

On June 4, 2010, Claimant filed a petition with the workers’ compensation commission. The deputy found Claimant’s accident left him with a five percent industrial disability. On October 15, 2012, the commissioner adopted the findings of the deputy. Claimant sought judicial review, and on July 9, 2013, the district court affirmed the commissioner on all grounds. Claimant now appeals.

Claimant argues the commissioner erred in not considering his possible career as a firefighter in determining his lost earning capacity. Claimant received a degree in fire and science technology in 1997 and passed the examinations required to serve as a firefighter, but had not applied for any firefighter positions since 1997. He claims the workers’ compensation statute does not require an employee to have pursued a particular position to establish he or she has the capacity to perform it. The Court of Appeals agrees with the district court’s analysis in finding that the commissioner “properly considered the fact of [Claimant]’s minimal work experience as a firefighter when he chose not to include any lost earning capacity from employment as a firefighter.”

Claimant also claims the commissioner failed to make the credibility findings required by Iowa Code section 17A.16 (2011). The Court of Appeals finds the agency complied with section 17A.16, noting, “We do not hold the commissioner to technical compliance with this provision as long as we can determine where finding of facts end and conclusions of law begin or otherwise can track the commissioner’s analytical process.” The agency decision is divided into a finding-of-fact section and a conclusion-of-law section. The decision logically sets forth the commissioner’s thought process. The decision gives specific findings on Claimant’s credibility and while other credibility findings are not explicit, they can be discerned from the direction of the analysis.

Claimant also argues the issue of permanent disability was not ripe for adjudication because the doctors did not find he had reached maximum medical improvement (MMI) for his back injury. The Court of Appeals finds the commissioner’s decision that Claimant had reached MMI was supported by substantial evidence. In an independent medical examination, a doctor opined the Claimant had reached MMI for his back in June 2010 and only suggested future treatment for pain management; ongoing pain does not extend the healing period if it does not decrease the industrial disability.

Douglas Moad, By his Wife Sharon Moad, v. Gary Jensen Trucking, Inc., Court of Appeals of Iowa, No. 14-0164

Claimant, Douglas Moad, worked as a truck driver for Gary Jensen Trucking, Inc. On December 1, 2008, Claimant was driving his truck within the course of his employment when an SUV driver drove his SUV across the median and struck Claimant’s truck head-on. The other driver died at the scene. Claimant died roughly three months later. Thereafter, Claimant’s wife Sharon filed a claim for workers’ compensation death benefits on Claimant’s behalf, asserting the injuries from his December accident were the cause of his eventual death. Defendant admitted Claimant suffered injuries in his accident, but it denied that those injuries caused or contributed to Claimant’s death.

A hearing was held before a deputy workers’ compensation commissioner in September 2012. Several conflicting expert opinions were offered on the cause of Claimant’s death. Dr. Bruce, the cardiologist who treated Claimant the day of his demise, testified it was his opinion that Claimant’s probable cause of death was a massive pulmonary embolus, though it was also possible he died from a massive myocardial infarction. Dr. Watt testified that the consequences from Claimant’s accident could lead to the tendency to have a pulmonary embolus. The employer’s expert, Dr. Ronald Vessey, opined it was “most probable” that Claimant “died of the sudden death syndrome secondary to having developed an acute event.” Sharon’s expert, Dr. Dan Fintel, a cardiologist, concluded that “a cardiac etiology was the most likely cause of [Claimant’s] persistent chest discomfort, and was a direct consequence of the motor vehicle accident.”

In November 2012, the deputy commissioner entered his decision denying Sharon’s claim. The deputy noted the opinions of Drs. Vessey and Fintel and stated that the “opinions of both doctors are possible scenarios, and perhaps equally persuasive (reading Dr. Fintel’s opinions in the best light). However, the claimant has the burden of proving causation by a preponderance of the evidence.” Sharon appealed the deputy’s decision, and the Iowa Workers’ Compensation Commissioner affirmed the decision. Sharon then filed a petition for judicial review of the commissioner’s decision, challenging the agency’s factual findings, its legal conclusions, and its application of facts to the law. Following a contested hearing, the district court entered its judicial review ruling reluctantly affirming the agency decision.

The Court of Appeals affirms the district court’s ruling, finding substantial evidence supports the agency’s finding that Sharon did not prove by a preponderance of the evidence that Claimant’s accident was a cause of his tragic death. The commissioner relied upon Dr. Vessey’s opinion that Claimant was simply “one of the 250,000-300,000 Americans who die every year of cardiovascular collapse.” Consequently, the agency’s decision was supported by substantial evidence, and the Court of Appeals cannot conclude the agency’s decision to accept Dr. Vessey’s opinion over the other experts was irrational.

Sharon Moad, Individually and as Personal Representative of the Estate of Douglas Moad, et al., v. Richard Libby, as Personal Representative of the Estate of Matthew Libby, et al., and Dakota Truck Underwriters, et al., Court of Appeals of Iowa, No. 14-0290

Douglas Moad was a resident of South Dakota. He was employed as a truck driver by a South Dakota trucking company, Dakota Truck Underwriters (DTU). Pursuant to South Dakota law, DTU voluntarily paid workers’ compensation benefits to Moad arising out of a work-related traffic accident occurring in Iowa. Douglas Moad accepted the workers’ compensation benefits paid by DTU. Douglas deceased several months after the traffic accident. Sharon sought workers’ compensation benefits in Iowa. She also filed this civil suit against the motorist causing the traffic accident. DTU intervened in this case, asserting a workers’ compensation subrogation lien for the benefits paid to Douglas. Ultimately, Sharon settled this case with the underinsured and uninsured motorist insurance carriers and moved to strike the subrogation lien on the settlement proceeds. The parties agreed that DTU had a right to reimbursement if South Dakota law controlled the subrogation question and no right to reimbursement if Iowa law controlled the subrogation question.

The district court held Iowa law applied and granted Sharon’s motion to extinguish DTU’s lien. DTU appealed. In the first appeal, the supreme court concluded the district court and this court incorrectly analyzed the conflict of laws issue. The supreme court remanded the case “to the district court to consider the extent to which section 185 of the Restatement (Second) applies in this case.” The district court concluded Restatement (Second) section 185 applied to this case, concluded that South Dakota law controlled the subrogation question, and held that DTU had a valid lien against the settlement proceeds under South Dakota law for compensation benefits already paid to Moad.

Sharon timely appealed the district court’s order. Sharon first contends the district court erred in concluding Restatement (Second) section 185 was applicable to this case. Section 185 provides as follows:

"The local law of the state under whose workmen’s compensation statute an employee has received an award for an injury determines what interest the person who paid the award has in any recovery for tort or wrongful death that the employee may obtain against a third person on account of the same injury."

Sharon contends an “award” can only be paid following an adjudicative determination of entitlement to benefits, and as DTU voluntarily paid workers’ compensation benefits, section 185 is inapplicable. The Court of Appeals disagrees, finding that Sharon’s interpretation of section 185 is too narrow. Sound policy reasons actually militate against Sharon’s interpretation of section 185; it is at odds with workers’ compensation schema, generally, to adopt a rule that incents employers and insurance carriers to contest claims for no reason other than to preserve subrogation rights.

Sharon also argues that South Dakota law should not determine the subrogation issue because she filed in Iowa a workers’ compensation claim for benefits related to Douglas’s death. The Court of Appeals disagrees, stating that the fact that Sharon sought additional benefits in Iowa is not at all relevant to whether DTU has subrogation rights for benefits already paid pursuant to another state’s law.

Accordingly, the Court of Appeals finds the district court did not err in applying section 185 of the Restatement (Second) of Conflict of Laws and did not err in denying the plaintiff’s motion to strike the lien. The case is remanded to determine the amount of the lien.

Heritage Care and Rehabilitation and Midwest Employer’s Insurance Company v. Debra True, Court of Appeals of Iowa, No. 14-0579 

Claimant, Debra True, began working in 2007 as a dietary aide for the employer. She injured her right shoulder while taking out the trash in 2010. Medical treatment was provided for a short time. Claimant did not miss any days of work due to the injury, so no weekly workers’ compensation benefits were paid. On March 1, 2011, Claimant filed a petition with the workers’ compensation commissioner seeking medical benefits under Iowa Code section 85.27 (2011) for the injury. The case was set for a hearing on February 24, 2012.

Prior to that hearing on January 20, 2012, Claimant filed a motion to amend her petition to include a claim for temporary and permanent disability benefits. Claimant also submitted, and the commission accepted, a $100.00 filing fee. The case proceeded to hearing on February 24, 2012, where it was brought to the deputy’s attention that the $100.00 filing fee was paid and accepted with the motion to amend. Because the fee was accepted, the deputy concluded the agency had deemed the motion to amend to be a petition in arbitration, that filing had occurred prior to the running of the statute of limitations, and therefore, Claimant should be permitted to make a claim for weekly benefits.

After the hearing, the deputy issued a decision awarding a thirty-percent industrial disability to Claimant. The employer appealed to the commissioner, who summarily affirmed the award of benefits and also affirmed the deputy’s decision regarding the motion to amend. The employer filed a judicial review petition with the district court challenging the agency’s ruling on the statute of limitations issue and the award of benefits. The district court affirmed the agency’s decision, and the employer now appeals.

The Court of Appeals concludes the agency’s decision to permit the amendment is not irrational, illogical, or wholly unjustifiable. The employer asserts this ruling was in error because Claimant was required to file an original notice and petition for permanency benefits prior to the statute of limitations running, not just a motion to amend. However, there is no statutory or administrative rule requiring Claimant to file a separate petition for each type of workers’ compensation benefit she seeks from the employer arising out of the same injury. The commissioner concluded a motion to amend was the proper procedural course to take when a petition alleging the same injury for the same date against the same employer is already on file, and the Court of Appeals agrees.

The Court of Appeals also concludes substantial evidence supports the factual findings of the agency and the agency’s award of thirty percent industrial disability is not irrational, illogical, or wholly unjustifiable. The deputy commission assigned a thirty percent industrial disability after  concluding Claimant has clearly lost earning capacity as she is now restricted from overhead and heavy work activities. The deputy noted Claimant’s age and the fact that she had to give up her part-time work. The deputy also stated that the restrictions imposed would preclude Claimant from some food server and food preparation jobs that were in her prior work experience. The Court of Appeals therefore affirms the district court's judicial review decision affirming the agency's award of workers' compensation benefits.

Brandon Lee Wegner v. Hormel Foods Corporation, Court of Appeals of Iowa, No. 14-0300

Claimant, Brandon Lee Wegner, worked for Hormel Foods Corporation and sustained an on-the-job injury on March 23, 2009.  Following a hearing, a deputy commissioner issued an arbitration decision accepting Hormel’s proposed weekly compensation rate over Claimant’s proposed rate, which, in the deputy’s view, was based on “unreliable,” “scissored snippets of original documents mashed together.” The deputy also summarily denied Claimant’s request for penalty benefits based on the claimed unreasonable rate calculation. Because Claimant had not reached maximum medical improvement, the deputy deferred ruling on permanent benefits, and also elected to defer consideration of any issues relating to temporary partial disability benefits.

On intra-agency appeal, the commissioner adopted the deputy’s decision. Claimant sought judicial review. The district court affirmed the commissioner’s decision. Claimant appealed following the denial of his motion for enlarged findings and conclusions. Claimant contends (A) the commissioner failed to set forth sufficient findings of fact and conclusions of law as required by Iowa Code section 17A.16(1), (B) the commissioner erred in determining his weekly compensation rate; (C) the commissioner erred in denying him penalty benefits arising from the compensation rate; and (D) the commissioner erred in bifurcating claims for past temporary disability benefits until he reached maximum medical improvement.

The Court of Appeals affirmed the district court’s judicial review decision affirming the commissioner’s workers’ compensation decision. The Court found both the deputy commissioner and the commissioner complied with Iowa Code section 17A.16(1) (2013) because they explicated their reasons for rejecting Claimant’s proposed rate calculations, denying penalty benefits based on the compensation rate, and deferring consideration of temporary disability benefits and penalties arising from the payment of these benefits. The Court emphasized that step-by-step reasoning in an agency decision is not essential, as long as it is possible to determine what evidence was considered and why certain evidence was credited over other evidence.

Additionally, the Court found the commissioner’s findings on the issue of Claimant’s weekly compensation rate are supported by substantial evidence. The deputy commissioner accepted Hormel’s proposed rate over Claimant’s proposed rate because Claimant’s exhibit did not appear to be a complete record. The Court also found the record contains substantial evidence to support the commissioner’s implicit findings in declining to award Claimant penalty benefits. Finally, the Court found the commissioner acted well within his discretion in deciding to defer consideration of issues relating to the past award of temporary benefits, given that the parties had stipulated Claimant has yet to reach maximum medical improvement and agreed “[e]ntitlement to permanent disability [was] not ripe for determination.”

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!

Gov. Terry E. Branstad today appointed Joe Cortese Iowa’s Workers’ Compensation Commissioner. Cortese will replace Michelle “Miki” McGovern, who had been serving as the acting Commissioner since September 2014. A photo of Cortese can be found here.

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With over thirty years of experience in workers’ compensation, I’m confident Joe Cortese will serve as an independent and fair commissioner,” said Branstad. “I appreciate Miki’s service to the department and the state in the interim.”

The Workers’ Compensation Commissioner is the head of theDivision of Workers’ Compensation which is part of Iowa Workforce Development. Workers’ compensation has the responsibility of administering, regulating, and enforcing the workers’ compensation laws. Though the workers’ compensation commissioner’s office cannot represent the interests of any party, the agency provides information regarding the provisions of the Workers’ Compensation Law, the rights of the parties, and the procedures the parties can follow to resolve their disputes.

Cortese practices workers’ compensation law at Huber, Book, Cortese & Lanz, where he is a partner. He has been with the firm, formerly Jones, Hoffman & Huber, since 1981. He has been a partner since 1985. He received his Bachelor’s degree from Indiana University and earned his J.D. with honors from Drake Law School. He is a member of the Iowa State Bar Association, Polk County Bar Association, Iowa Association of Workers’ Compensation Attorneys, Iowa Defense Counsel Association, Defense Research Institute and a founding member of the American Academy of ADR Attorneys.

Cortese will assume the role of Commissioner effective February 16, 2015. His appointment is subject to Iowa Senate confirmation.

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!

Wal-Mart Stores, Inc. and American Home Assurance Corp. AIG v. Larry Plummer, Court of Appeals of Iowa, No. 14-0417

The Claimant, Larry Plummer, alleges two separate injuries while working at Wal-Mart. The first injury occurred on January 21, 2010. The Claimant worked the third shift, which ended at 6 a.m. After he completed the shift, he clocked out and spent approximately thirty minutes shopping. On his way out, he and a coworker assisted a customer. While providing the assistance, the Claimant slipped and fell. He completed an incident report designated for customers rather than employees. The Claimant sought workers’ compensation benefits for an injury to his back.

A deputy workers’ compensation commissioner concluded the injury did not arise out of and in the course of employment because, at the time he fell, the Claimant was no longer on the clock. On intra-agency appeal, the commissioner reversed the decision and ordered Wal-Mart to cover the medical expenses associated with the Claimant’s physician’s visit. Wal-Mart petitioned for judicial review. The district court affirmed the agency decision and this appeal followed.

The Court of Appeals found that the commissioner’s determination that the “in the course of” requirement was satisfied was not irrational, illogical, or wholly unjustifiable, even though there was a lapse of time between the Claimant’s completion of his shift and the fall. The Court noted that the Iowa Supreme Court has stated, “[w]hat constitutes a reasonable amount of time depends ‘not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.’” Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998) (citingCarter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992)).  The lapse of time between the Claimant’s completion of his shift and the fall was only thirty minutes, and the Claimant had essentially acted as an employee when he stopped to assist the customer.

The second alleged injury occurred on July 17, 2010 when the Claimant was attempting to remove a broken pad on a floor-scrubber and felt a pop in his back and sudden pain in his left and right legs. Wal-Mart contends the commissioner failed to consider the deputy commissioner’s findings that the Claimant and his expert witness were not credible. The Court of Appeals found that the commissioner’s findings were supported by substantial evidence. The commissioner had acknowledged the credibility issues but rejected the deputy commissioner’s “overly negative” view of the Claimant and instead adopted the opinion of the Claimant’s expert because of the expert’s knowledge of the Claimant’s prior medical history.

Wal-Mart also contends that the Court should reverse the award of sanctions against Wal-Mart and its counsel because the Claimant failed to preserve this issue for appeal and because the commissioner's ruling violates Iowa law and Agency precedent. Wal-Mart raised an error preservation concern based on the Claimant’s failure to raise the sanctions issue before the deputy commissioner. The Court of Appeals found that the commissioner has authority to impose sanctions whether or not a deputy commissioner has previously ruled on the issue. The commissioner had concluded Wal-Mart failed to comply with the deputy commissioner’s order for treatment and evaluation. The Court of Appeals found that the commissioner did not abuse its discretion in imposing sanctions on Wal-Mart and its counsel. 

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!

Carolyn Marcine Jenson, v. Cummins Filtration-Lake Mills A/K/A Cummins, Inc., F/K/A Fleetguard, Inc., Court of Appeals of Iowa,No. 13-1733

The Claimant, Carolyn Jenson, appeals a district court decision affirming the commissioner’s denial of her knee injury claim. The deputy concluded the Claimant failed to meet her burden to prove by a preponderance of the evidence that the injury arose out of and in the course of her employment. Instead, the deputy concluded the cause of the Claimant’s knee pain was due “to degenerative disease exacerbated by poorly controlled diabetes” and the Claimant’s weight.

The commissioner affirmed the deputy’s decision noting that it was based largely on the deputy’s assessment that the Claimant’s testimony was not credible or convincing. The Claimant was unable to identify how or when her knee pain began, and the knee injury was inconsistent with the motion described by the Claimant during job tasks. The Court of Appeals concluded the commissioner did not abuse his discretion, the decision is not irrational, illogical, or wholly unjustifiable, and is supported by substantial evidence in the record as a whole. Thus, the Court agrees with the district court’s affirmance.

The Claimant also maintains the district court erred by misconstruing the commissioner’s award when it converted the award into a judgment. Specifically, the Claimant maintains the district court misapplied the fifty-percent penalty awarded by the commissioner when the court applied the penalty to only the unpaid portion of the award rather than the total award.

The Court of Appeals found the district court did not err in determining that Cummins Filtration should only pay a penalty for payments it was required to make less credits for the disability payments paid. The Court emphasized that Iowa Code section 86.13(4)(a) provides that “the workers’ compensation commission shall award benefits in addition to those benefits payable under this chapter…up to fifty percent of the amount of benefits that were denied, delayed or terminated.”

Hydecker Wheatland Company and Zurich North America v. Kelly Bruce, Court of Appeals of Iowa, No. 14-0492

On October 15, 2010, the Claimant, Kelly Bruce, was working for Hydecker Wheatland Company installing new electrical lines.  He was standing in the bucket of a boom truck that touched a live electrical wire. The voltage entered his body through his right hand and surged out through the left hand, causing second- and third-degree burns to both hands, along with significant nerve damage.  He lost his left ring finger and left pinky, as well as his right ring finger, as a result of the accident. 

The deputy commissioner found the Claimant was unable to return to the competitive work force. The deputy decided the Claimant was permanently and totally disabled. The commissioner affirmed and adopted the deputy’s decision. Hydecker sought judicial review. Following a hearing, the district court affirmed the commissioner’s award of total permanent disability benefits. Hydecker now appeals.

Hydecker argues that despite the “dramatic mechanism” of the Claimant’s work injury, he sustained “only moderate industrial disability” and has not reentered the work force due to his unwillingness, not inability, to secure employment. In response, the Claimant asserts phantom pain is a type of neuropathic pain and his reports of such pain were substantiated in the agency record. He also argues his mental injuries—including flashbacks, nightmares, and anxiety—were supported by substantial evidence, including his own testimony, which the commissioner found credible.

The Court of Appeals found that the commissioner’s fact finding was supported by substantial evidence and the determination that the Claimant suffered Permanent Total Disability was not irrational, illogical, or wholly unjustifiable. The commissioner was entitled to consider the toll of the electrical burns on the Claimant’s physical abilities, as well as the impact on his psychological functioning when deciding the extent of his industrial disability. The court noted that the Claimant was unable to return to his prior occupation.  Additionally, the Claimant’s age, lack of education and poor academic skills, and limited work experience support the commissioner’s decision. The Claimant established that he could not compete for jobs in his field, nor could he realistically retrain for other positions given his cognitive limitations and physical restrictions.

JBS Swift & Company and Zurich American Insurance Company v. Wayne Hedberg, Court of Appeals of Iowa, No. 14-0565

The employer appeals the district court’s decision affirming the agency’s award of permanent total disability benefits.  The Claimant, Wayne Hedberg, sustained an injury to his right shoulder and arm on May 7, 2010. After his injury he continued working in light-duty positions within his temporary work restrictions until his surgery on December 31, 2010. On January 3, 2011, after the death of his wife, he moved to Minnesota to live with his brother, because he could not care for himself.  He suffered for most of his life from cerebral lupus, mild cerebral palsy, and hearing impairment, for which he required the assistance of others.  As of March 28, 2011, the employer notified the Claimant there was work available to him within his temporary work restrictions.  Later, he was notified there was work available for him within his permanent work restrictions. The Claimant did not return to work after his surgery and did not seek other employment. On August 8, 2011, he was notified that he was deemed a voluntary quit for failing to report back to work. 

An arbitration decision found the Claimant had an 80% industrial disability but was not permanently and totally disabled. The intra-agency appeal adopted the arbitration decision, with a modification as to the extent of the Claimant’s permanent disability, finding the Claimant was entitled to permanent total disability benefits.  In support of the award of permanent total disability benefits, the commissioner’s designee stated the employer failed to provide any descriptions of the work available to the Claimant. 

On appeal, the employer contends this case does not present a routine question of substantial evidence review.  Instead, the employer argues that the agency failed to consider a relevant and important matter, took action that was unreasonable, arbitrary, capricious, or an abuse of discretion; and reached a decision that was a product of illogical reasoning. Specifically, the employer asserts the agency failed to consider and/or explicitly misstated record evidence; failed to consider the Claimant’s refusal of full-time work within his permanent work restrictions; and failed to consider the Claimant voluntarily left his employment for reasons unrelated to his work injury.

The Court of Appeals found that the record reflects the commissioner’s designee simply ignored or overlooked record evidence regarding the work available to the Claimant. The Commissioner stated that no descriptions of available work were given, but this statement is demonstrably incorrect as there were descriptions given in an expert’s report of jobs that were viable and within the Claimant’s medical restrictions. The overlooked evidence was not immaterial; the heart of the appeal decision was based upon the designee’s conclusion that the employer failed to provide evidence of available work, and that only make-work was available.  The Court of Appeals thus concluded the commissioner’s designee’s action was unreasonable, arbitrary, capricious, an abuse of discretion, and the product of illogical reasoning. The decision was accordingly reversed and remanded to allow the agency to make a decision based on the existing record.  

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!