State News : Iowa

Interim Commissioner Named
The Governor has named the senior Deputy, Michelle (Miki) McGovern, as the new acting Workers’ Compensation Commissioner effective immediately.  She will remain in this capacity until the Governor formally appoints a new Workers' Compensation Commissioner subject to confirmation by the Senate.

This should immediately address the backlog of decisions that has accrued over the several weeks since Commissioner Godfrey resigned.  During that time, Deputy Commissioners have not issued arbitration decisions based upon a concern that there would be no certainty as to whether or not those decisions would have reflected final agency action in the absence of a Commissioner, thereby causing problems with the handling of appeals.  Going forward, Acting Commissioner McGovern will handle or direct all inter-agency appeals, and it is anticipated that arbitration decisions will start issuing immediately.


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!

Iowa Supreme Court Schedules Special Evening Session

Des Moines, February 24, 2014 —On Tuesday evening, March 4, the Iowa Supreme Court will hear oral arguments in the case of Godfrey v. State of Iowa, et al., beginning at 7:00 p.m. in the Supreme Court Courtroom on the fourth floor of the Judicial Branch Building, 1111 East Court Avenue, Des Moines. The evening session is an opportunity for central Iowa residents, who may not be able to attend the court's regular morning and afternoon sessions, to watch the court conduct oral arguments.

Attorneys' briefs for the case and a guide to oral arguments are posted on the Iowa Judicial Branch website at:

http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Evening_Oral_Arguments_Des_Moines/index.asp

Proceedings will be streamed live from the Iowa Judicial Branch web site at:http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Oral_Argument_Videos/.

In this case, the Iowa Supreme Court will be asked if tort claims against state officials must be brought under the Iowa Tort Claims Act, Iowa Code chapter 669. The statute provides that if the actions of state employees that are the basis of the claim were within the scope of their employment, the employees have immunity and the State of Iowa will be substituted as defendant for the individual employees.

Plaintiff Christopher Godfrey is serving a statutory six-year term as Iowa's Workers' Compensation Commissioner. His term is due to expire April 30, 2015. He has sued the State of Iowa and several individuals, including Governor Terry Branstad and Lt. Governor Kim Reynolds, on a variety of claims, including violation of his constitutional rights, defamation, and intentional interference with contract.

Under Iowa Code section 669.5, the Iowa attorney general certified that defendants' actions were within the scope of their employment with the state. Based on the attorney general's certification, the individual defendants asked the district court to substitute the State of Iowa as the sole defendant in the case. The district court concluded that chapter 669 mandated a finding that the attorney general's certification on scope of employment was conclusive, requiring the court to substitute the State of Iowa for individual defendants. Plaintiff Godfrey contends the district court was wrong to dismiss the individual defendants from the case.

On appeal of the district court's ruling, issues before the Iowa Supreme Court include:

I. Does the attorney general's certification pursuant to Iowa Code section 669.5(2)(a) conclusively establish that a state employee was acting within the scope of his or her employment (and therefore the action is deemed to be an action against the state and the state is substituted as the defendant in place of the employee) or is the attorney general's certification subject to the court's (or a jury's) independent review?

II. If the attorney general's certification does conclusively establish that a state employee was acting within the scope of employment, then does the application of section 669.5(2)(a) result in an unconstitutional deprivation of plaintiff's due process rights?

A public reception with the supreme court justices will follow the oral arguments.

For more information, visit http://www.iowacourts.gov/About_the_Courts/Supreme_Court/

New Deputy Commissioner Announced

Joseph L. Walsh has been hired as a Deputy Workers’ Compensation Commissioner with the Iowa Division of Workers’ Compensation.  He will commence his duties with the division on January 17, 2014.  Mr. Walsh has previously been in private practice as a workers’ compensation and employment law attorney in Des Moines, Iowa and has served as the Deputy Director of Iowa Workforce Development  from 2007 to 2010.  Mr. Walsh most recently held the position of Chief Administrative Law Judge for Iowa’s Division of Unemployment Insurance Appeals.  Mr. Walsh is a 1993 graduate of Drake University with Cum Laude Honors and a 1996 graduate with Honors of the Drake University School of Law.

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!

Loparex, LLC and Sentry Insurance v. James Bates, Court of Appeals of Iowa, No. 3-593 / 13-0121

The Claimant was injured when his left hand was caught in a machine. He underwent several surgeries which resulted in the amputation of two fingers. He subsequently developed complex regional pain syndrome (CRPS). He experienced abnormal sensations and sensitivity to touch. He also suffered from severe depression as a result of the injury. Due to this, he was proscribed a variety of medications which he contended made him drowsy.

The agency entered a decision finding the Claimant to be permanent and totally disabled, which was affirmed by the District Court on appeal. The case was then appealed on the findings that the drowsiness complaints were related to the work injury, as well as the award of permanent total disability benefits. The Court reviewed these issues for substantial evidence.

The Court found that there was evidence in the record to support the employer’s assertions that the Claimant was not credible, his partner stood much to gain by testifying on his behalf, the medical records did not contain consistent claims of sleepiness, the Claimant was diagnosed with sleep apnea which improved with therapy, he did not lose weight or avoid alcohol as instructed to help with drowsiness, a subsequent on the job injury was not caused by drowsiness as he claimed and that the Claimant had a history of carelessness at work. However, the Court went on to state that this didn’t mean the record lacked substantial evidence to support the finding of a causal connection. Ultimately the Court relied on the references in the medical records to medications causing drowsiness to find substantial evidence and chose not to reweigh that evidence.

The Court next took up the issue of permanent total disability and indicated that it would only overturn the Commissioner’s finding if it was “irrational, illogical or wholly unjustifiable”. The Court opined that they might draw different inferences in regards to Claimant’s permanent disability based upon the records as a whole, the Court could not say that the findings made by the Commissioner lacked substantial evidentiary support or that his determination was irrational, illogical or wholly unjustifiable. As such, the finding of the Commissioner was affirmed.

Iowa Newspapers, Inc. and AIG v. Michelle Watson, Court of Appeals of Iowa, No. 3-783 / 13-0334

On December 19, 2008, the Claimant injured her left side in the course of her employment when she slipped on ice. At first, the Claimant did not think the injury was significant, but it later led to back pain, burning and numbness, headaches, interrupted sleep and depression. In May of 2009, the Claimant ended her employment with Iowa Newspapers as it became too difficult to work.

The Claimant filed a petition for workers compensation benefits and a hearing was held on September 10, 2010. The agency found that the Claimant’s condition arose out of her work injury, that her healing period ended as she was at MMI and that she was permanently and totally disabled. The decision was appealed and affirmed by both the Commissioner and the District Court.

The decision was appealed by the employer on the grounds that the agency erred in finding the Claimant’s injury was related to her fall, her healing period and ended and that she was permanently and totally disabled. The Court opined that their review was for substantial evidence, and though there was conflicting medical evidence, the Court found substantial evidence supported the finding of the agency 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!

Mike Brooks, Inc. and Great West Casualty Co. v. James David House, Court of Appeals of Iowa, No. 3-624/13-0303

The Claimant began his employment with Mike Brooks, Inc. on July 26, 2005 as a commercial truck driver. On March 7, 2007 he suffered a back injury after slipping on ice in the truck loading area. Dr. was seen by orthopedic surgeon Dr. David Hatfield, who prescribed physical therapy. After 2 ½ months, the Claimant passed a DOT physical and was returned to work. After continued back pain, he underwent surgery with Dr. Hatfield on January 31, 2008. He returned to work 6-8 weeks later, but continued to feel pain. Dr. Hatfield recommended that he cease working, and on November 13, 2008, performed an anterior fusion and then a posterior fusion the next day.

The Claimant filed a petition with the Agency on December 16, 2009 alleging the back injury of March 7, 2007. At hearing on December 8, 2012, the Claimant testified about an incident on January 4, 2008 where he pushed a heavy door and felt a burning sensation in his back. In the arbitration decision, the deputy awarded permanent total benefits. The deputy found the record did not support the employer’s position that the January 2008 injury was distinct from the March 7, 2007 injury. In regards to the permanent total disability, the deputy concluded that the Claimant could no longer drive a truck and his restrictions precluded him from returning to work as a millwright or welder.

After affirmance by the Commissioner, the employer appealed on the basis of error in finding a causal connection between the Claimant’s March 7, 2007 injury and his disability, that the evidence did not support a finding of permanent total disability and that the deputy ordered an incorrect commencement date for permanent benefits.

The Court first took up the issue of whether the Claimant’s March 7, 2007 injury was the cause of industrial disability. Specifically, the Court addressed the employer’s argument that the Claimant’s January 2008 door pushing incident was the cause of his subsequent back surgeries and claimed disability. The Court first noted that medical causation is a question of fact vested in the discretion of the agency and the agency’s decision would not be overturned if supported by substantial evidence.

In reviewing the record, the Court found the Claimant’s severe pain, surgeries and inability to work due to back pain occurred after the January 2008 incident, as he was working without complaint for several months subsequent to the March 2007 slip and fall injury. The Court also found that the expert testimony regarding causation did not support the finding that the March 2007 injury caused the Claimant’s disability. Specifically, the Court found that Dr. Hatfield’s opinion, which causally related the Claimant’s surgeries and disability to the March 2007 slip and fall, was based upon incomplete information as it appeared Dr. Hatfield was never made aware of the Claimant’s January 2008 incident and therefore could only relate the Claimant’s complaints to the March 2007 injury. The Court also found the opinion of Dr. Kuhnlein, who opined that the increase in severity after the January 2008 incident was a sequela of the original injury, was also faulty as it was based on the previous opinion of Dr. Hatfield which lacked an adequate history.

The Court found that the opinions of Dr. Kunhleing and Hatfield were not based on awareness of all the facts in the case, and as such, were not reliable. As the opinions were not reliable, they could not form the basis for substantial evidentiary support for the Agency’s decision. The Court then reversed and remanded the decision of the Agency. As the Court reversed on the grounds of causation, there was no need to discuss the additional issues raised on appeal.

Quaker Oats Company and Ace Cigna v. Larry Farar, Court of Appeals of Iowa, No. 3-654 / 13-0195

The Claimant began his employment with Quaker Oats in 1975. He worked numerous jobs, all of which involved heavy lifting and use of ladders and stairs. In 1996, the Claimant began to experience knee pain after sustaining a knee injury running a rail car. In 1997, his knee pain worsened and he was diagnosed with chronic right patellofemoral syndrome. These injuries were initially accepted, but in 1999, the employer declined to pay for further treatment.

In 2000, the Claimant reported an increase in knee pain and ultimately underwent a right knee scope with Dr. Craig Dove which revealed significant arthritic changes. Dr. Dove opined that the Claimant’s condition was partially work related, though the Claimant’s obesity contributed to the problem, as the Claimant’s weight would fluctuate anywhere between 320-375 pounds. Quaker denied Claimant’s right knee claim.

The Claimant then began treatment with Dr. Jeffrey Nassif who treated the Claimant with physical therapy and injections. The Claimant next saw Dr. James Pape in 2001 who opined he suffered from bilateral patellofemoral chondromalacia, a degenerative condition. Dr. Pape recommended anti-inflammatories, which continued for several years.

The Claimant returned to Dr. Nassif in 2007, and following an x-ray which revealed severe osteoarthritis of the bilateral knees, knee replacement surgery was recommended. The Clamiant submitted an incident report to Quaker in March of 2008 claiming that he had sustained bilateral knee injuries as a result of repetitive trauma.

The Claimant then began to experience wrist and hand problems in 2008 and 2009, for which he underwent two surgeries, requiring him to miss work for 3 months. The Claimant then underwent knee replacement surgery with Dr. Nassif on March 15 and May 17, 2010. Subsequent to surgery, the Claimant developed deep vein thrombosis and pulmonary emboli conditions.

The Claimant was seen by Dr. Farid Manshadi, who placed him at MMI as of December 9, 2010, and also assigned the Claimant permanent partial impairment of 37% to the left leg and 39% to the right. He was next seen for an independent evaluation by Dr. William Jacobson on December 16, 2010, who assigned 50% permanent partial impairment to each of his legs.

The Claimant also apparently suffered from depression and anxiety, with symptoms beginning in 2008. Dr. Laurence Krain opined in a 2010 report that the Claimant’s inability to work was due to his depressive condition, which he has continued to receive treatment for.

The Claimant’s last day of employment with Quaker was March 12, 2010. He filed a petition with the Workers’ Compensation Commissioner in 2011. After hearing, the deputy found the Claimant’s work activities were a substantial cause of the his bilateral knee condition. It was further found that his deep vein thrombosis and pulmonary emboli were complications of the Claimant’s total knee replacements and were related to his March 14, 2008 cumulative injury. The employer appealed on the grounds that the decision was not supported by substantial evidence and misrepresented the record.

On appeal, the Court noted that medical causation is a question of fact vested in the discretion of the agency and the agency’s decision would not be overturned if supported by substantial evidence. After examining the medical opinions which were contained within the record, the Court found that while the weight of the medical evidence was contrary to the decision reached by the Agency, the Court determined that substantial evidence supported the agency’s finding of causation. Specifically, the Court found the opinion of Dr. Manshadi, who opined that the Claimant’s work caused his knee symptoms, provided enough evidence to sustain the agency’s finding of causation. The Court went on to note that while Dr. Nassif and Dr. Jacobson had opined the Claimant’s employment was not the cause of his bilateral knee condition, the Court’s job was not to determine whether a different conclusion could be reached but whether substantial evidence supported the findings actually made.

The Court further stated that the Agency had specifically given more weight to the opinions of Dr. Manshadi and the Claimant over those of Dr. Nassif and Dr. Jacobson, and that credibility determinations were within the province of the hearing deputy.

The Court next examined the issue of whether Claimant’s DVT and pulmonary emboli were causally related to his alleged cumulative injury. The Court noted that to so find, it would have to be found that the Claimant had sustained a work related injury which required surgery and that said surgery caused the DVT and pulmonary emboli. The Court ultimately found substantial evidence supported the finding that the DVT and emboli were caused by the Claimant’s bilateral knee replacements. Specifically, the Court found substantial evidence in the opinions of Dr. Manshadi and Dr. Nassif who opined that the surgery caused or could have been a contributing factor to the conditions.

In regards to the employer’s argument that the case should be remanded for a more complete record, specifically that the Agency further discuss in greater detail each doctor’s opinions, the Court found that remand was not appropriate. The Court opined that “even when a record is inadequate, remand for additional evidence is generally not appropriate and is only done when there are “good reasons.”” The Court declined to reweigh the evidence presented and remand the case for a more complete record. As such, the decision of the Agency was affirmed in its entirety.

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!  You can also reach us at www.peddicordwharton.com

Pablo Ledezma v. Procter & Gamble Hair Care, LLC, Cambridge Integrated Services Group, Inc., Court of Appeals of Iowa, No. 3-587/12-2103

The Claimant was injured at work in 2008. The employer and Claimant entered into a settlement agreement on July 23, 2010, which was subsequently approved on September 3, 2010. The agreement indicated that the Claimant had sustained a compensable injury and that he was entitled to temporary, permanent partial and medical benefits.

In July of 2011, the Claimant filed a Petition at Law alleging a bad faith claim based upon a failure to pay his outstanding medical bills as required in the settlement agreement. In August 2012, the defendants filed their motion for summary judgment arguing that the Claimant’s claim  was based in contract and no cause of action existed for bad faith breach of contract and that since all medical bills were paid there was no breach of contract.

The Claimant filed a resistance indicating that the bad faith claim was based upon a delay in payment of medical benefits pursuant to the settlement agreement. The district court granted the motion for summary judgment on the grounds that the claim was a contract claim and not an insurance or workers’ compensation bad faith claim. On appeal, the Court first found that the Claimant had not preserved the issue as to whether any initial denial of benefits was in bad faith. The Court then went on to affirm the district court’s ruling holding that it is well settled law that this was a contract claim and not a bad faith claim.

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!

Whirlpool Corporation v. Danny Davis, Court of Appeals of Iowa, No. 3-582/12-1962

The Claimant alleged a work injury on April 29, 2008. He had been employed with the employer for 16 years and at the time was working in the paint department. As part of his job he had to maintain sufficient levels of chemicals in the barrels. On his date of injury, one of the barrels was empty. The barrel weighed several hundred pounds and when the Claimant went to replace it, the pallet it was placed on broke, causing the Claimant to hold onto it to keep it from falling. The barrel pulled the Claimant and his foot became stuff in the pallet. As the barrel continued to pull him, he heard a rip in his lower back.

The Claimant immediately reported his injury and was taken by ambulance to Mercy Medical Center. While at the hospital, the Claimant was diagnosed with a lumbar strain and was given pain medication. He was to refrain from lifting and prolonged sitting and to follow up in two days. Two days later, the Claimant say Dr. Momany who would ultimately treat the Claimant’s back until June of 2009. He was diagnosed with mechanical back pain, and three days later reported feeling 20% better. An MRI taken in June of 2008 was unremarkable.

The Claimant then took a leave of absence from the employer between July and August 2008 for problems associated with COPD. The Claimant then asked Dr. Momany to unrestrict him on September 11, 2008 as he had to be unrestricted to bid for a new position and his job was being eliminated. Dr. Momany placed the Claimant at MMI as he was having no significant pain and indicated he had no impairment.

The Claimant saw Dr. Momany again on September 30, 2008 due to feeling a pain in his back while climbing a ladder at work. The Claimant then began to treat with his personal doctor, Wendy Buresh. The Claimant told Dr. Buresh that his back pain had not felt better since the injury occurred and diagnosed the claimant with a low back strain.

The Claimant later followed up with Dr. Momany and was referred for an FCE in October 2008 as it was felt he was approaching MMI. The FCE determined that the Claimant fell into the medium work level and assigned certain restrictions but returned the Claimant to work. On December 22, 2008, the Claimant obtained a seven percent whole person impairment rating from Dr. Mark Taylor.

The Claimant continued to treat with Dr. Buresh for his chronic back pain and unrelated lung condition. He was seen Dr. Gene Gessner at a pain clinic in March and April of 2009 where he received injections and a TENS unit, but the Claimant indicated no improvement. The Claimant also continued to see Dr. Momany, and on June 9, 2009 had to take a leave of absence due to threats of self harm related to his chronic pain.

Dr. Buresh indicated that she believed the Claimant’s complaints were consistent with the type of injury sustained on his date of injury and that he was also experiencing situational depression as a result of the injury. The Claimant then saw Dr. Kuhnlein for an IME on September 4, 2009. Due to the confusion in the record between Claimant’s original date of injury and the potential reinjury in September, Dr. Kuhnlein could not state to a reasonable degree of certainty whether the current complaints were related to his original April injury or a new injury. He then assigned the Claimant 5% impairment and gave him some restrictions.

The Claimant’s last day of employment had been June 9, 2009 as he was kept on medical leave by Dr. Buresh since that time. It was indicated that the pain kept him from doing construction which he did prior to his shifts at Whirlpool. He also continud to hunt and mow his lawn regularly, though limited some by pain.

At hearing, the claimant acknowledged that he had treated with Dr. Meyer, a chiropractor prior to his alleged work injury. Though Dr. Meyer indicated that he was treating the Claimant primarily for cervical pain. The deputy awarded the Claimant permanent total disability benefits, medical expenses and costs. The deputy gave no weight to the opinions of Dr. Momany and indicating that the Claimant’s testimony was credible and corroborated by the record. The deputy indicated that while the Claimant had preexisting depression, it was lit up and aggravated by the work injury.

The decision was affirmed by the commissioner on appeal. The employer appealed to the district court and sought a stay of judgment pending the court’s decision. The district court found the expert opinions cited by the deputy provided substantial evidence and that the employer failed to show irreparable injury if the stay was not granted.

The employer appealed, contesting the findings that the Claimant’s physical and mental conditions were causally related to the April 29 2008 incident; the agency’s findings as to the extent of the Claimant’s disability; that Dr. Buresh was not an authorized treating physician and thus it should not be liable for charges related to the Claimant’s visits to her; and that the commissioner erred in awarding costs in the amount of $1,947. Finally, the employer argued the district court erred in denying its application for stay of judgment.

The Court first addressed the issue of causation and extent of disability and found that the agency’s findings and decisions were supported by substantial evidence, thus those issues were affirmed without significant discussion.

In regards to the medical expenses for Dr. Buresh, the Court noted that the employer had stipulated at hearing that the treatment was reasonable and necessary and that the fees were reasonable. The Court went on to indicate that once he was placed at MMI by Dr. Momany, it was reasonable for the Claimant to seek treatment elsewhere. The Court stated that Iowa law states that even when the employee obtains unauthorized care, upon proof by a preponderance of the evidence that such care was reasonable and beneficial, the employer is liable for the cost of the care. The Court found the visits to Dr. Buresh were related to the Claimant’s low back work injury and affirmed the award of medical expenses.

The Court of Appeals did find that it was error for the commissioner to tax costs of $330 to the employer for the cost of Dr. Momany’s deposition. The Court stated that the costs for deposing an expert witness cannot exceed $150 under Iowa law, thus this taxation of costs was in error.

Finally in regard to the motion for stay, the Court found no abuse of discretion in denying the stay as all the appropriate factors were considered.

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!

AARP and Arch Insurance Co. v. Donald Whitacre, Court of Appeals of Iowa, No. 3-082 / 12-1519

The claimant worked part time as a janitor for the AARP. One day while on coffee break with his supervisor, Pat Faught, the Claimant began to choke. He stood up to get a drink of water, stumbled, and hit the corner of Faught’s desk and the corner of the office wall. He landed head first on the floor. The Claimant sustained injuries to the head and face; and had to undergo surgery to remove a blood clot in his brain.

The Claimant petitioned for workers’ compensation benefits and following arbitration hearing, it was concluded his injury arose out of his employment and he was awarded medical expenses and weekly benefits. On appeal to the district court, the Court determined that the agency had erred in finding the injury arose out of the Claimant’s employment with AARP.

On appeal the Court stated that the arising out of test requires proof that a causal connection exists between the conditions of the employment and the injury. The Court went on saying “generally injuries resulting from risks personal to the claimant are not compensable. However, where the employment contributes to the risk or aggravates the injury an exception may arise.

The Court recognized that the parties agreed the Claimant’s fall was caused by a personal condition. However the Claimant contended the condition’s of Claimant’s employment aggravated the injury sustained by the Claimant. It had been concluded by the agency that the design and construction of the office, namely that it was small, had hard concrete walls and floor, significantly contributed to the Claimant’s injury.

The Court’s analysis focused on the distinction between a dangerous employment condition that increases the risk of injury and an employment condition that aggravates the effects of an idiopathic fall. The Court noted that the distinction was a fine one. The Court indicated that the key is that, with idiopathic falls, which “begin with an origin which is admittedly personal,” there must be “some affirmative employment contribution to offset the prima facie showing of personal origin.”

The Court then applied this standard to the facts of the case and indicated that as the deputy concluded the fall took place in a small office, and the Claimant hit the corner of the desk, then the wall and then the floor, that the office conditions did aggravate the effects of the Claimant’s idiopathic fall. Thus, the decision of the Agency was affirmed.

Estate of John Herman v. Overhead Door Company of Des Moines, Inc. and Columbia Insurance Group, Court of Appeals of Iowa No. 3-110 / 12-0892

The Claimant passed away during the appeal of his workers’ compensation claim and his estate was substituted in his place. The Claimant worked for the Defendant employer from August 1994 until an alleged work injury in January of 2009.

The claimant spent the majority of his time in the shop area at work, which he testified was unheated at the time of his injury and the heaters had been broken for a couple of years. He testified that he had told his bosses about the heaters not working. Due to the temperature of the shop, the Claimant wore long underwear, jeans, a hooded sweatshirt, work coat, thermal socks, boots and gloves.

The Claimant’s job duties included throwing away scrap material and emptying trash cans, requiring him to walk outside to the dumpster multiple times a day. The Claimant first noticed his injury on January 21, 2009. On that day, he estimated the temperature in the warehouse where he was working to be in the teens. The ground outside was also covered with five inches of previous snow accumulation. Defendant employer’s owner testified that the snow had been cleared where the Claimant was required to walk and that it was not his job to clear snow.

After work on January 21, 2009, the Claimant noticed blisters on his right foot and toes. The next day at work, he noticed his foot was wet and discovered that his blisters had broken open. The low temperature that day was twenty degrees and the high was forty seven. The Claimant further testified that he did not engage in any outdoor activities outside of work from January 21st to the 23^rd.

When the Claimant arrived to work on the 23^rd, he showed his foot to his supervisor, who sent the Claimant to the emergency room. It was determined that the Claimant had frostbite and a secondary infection on his right foot. The Claimant was treated by Dr. Lester Yen, who attempted to repair the damage to the Claimant’s foot with a skin graft on March 6, 2009. A second attempt at a graft was attempted in May 2009.

The Claimant’s right big toe eventually become infected and he was referred to a bone specialist. He was eventually seen by Dr. Colin Pehde who performed a partial amputation of the Claimant’s right great toe on July 22, 2009. As a result of the amputation, the Claimant developed ulcerations on his second and third toes. A tenotmy was performed to address the Claimant’s persistent pain. On January 11, 2010, it was noticed that the Claimant had an infection in the area where the tenotomy was performed, and he was hospitalized until February 2, 2010.

The Claimant sought workers’ compensation benefits for his right foot injury. Both treating physicians offered opinions that the Claimant’s injury was caused or aggravated by work. At the arbitration hearing, it was determined that the Claimant had not met his burden of proof that the injury was related to his work. The decision was affirmed by both the commissioner and the district court.

The Court of Appeals took up the case and noted that issues of medical causation are questions of fact which will only be reversed if not supported by substantial evidence. The Court went on to state that medical causation is essentially within the domain of expert testimony. Additionally, if the Commissioner rejects uncontroverted expert testimony, he must state why he has done so with sufficient specificity.

The Court noted that this case was an instance where uncontroverted expert medical opinions in support of causation were presented. The Court noted that the commissioner made no determinations of credibility but merely adopted the findings of the deputy, who in the eyes of the Court, “inexplicably stated the doctors were not helpful in determining whether the frostbite occurred at work”. The Court also found that the Claimant’s medical histories supplied on his alleged day of injury supported a finding of causation. After a review of the totality of the record, the Court determined that the commissioner’s outright rejection of the doctors’ uncontroverted medical opinions is not supported by substantial evidence.

The Court then turned its attention to whether the injury arose out of and in the course of the Claimant’s employment. The Court noted that “the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of [the] employment.”

The Court found that the medical record and climatological evidence demonstrated that the Claimant’s “injury coincided as to time, place, and circumstances, and occurred within the period of the employment, while Herman was fulfilling work duties or engaged in something incidental thereto, thereby satisfying the “in the course of” element.” As such, the Court found that the commissioner’s finding that the Claimant’s injury did not arise out of or in the course of employment was based upon an irrational, illogical, or wholly unjustifiable application of law to fact and must be reversed.

The Court reversed the district court’s decision upholding the agency denial of workers’ compensation benefits to the Claimant and remanded to the district court for remand to the commissioner for a determination of benefits.

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!

Charles Coffey v. Mid Seven Transportation Company and Great West Casualty Company, Supreme Court of Iowa No. 11-1106

 The claimant, Charles Coffey, worked for the Defendant employer, Mid Seven Transportation Company, as an over the road trucker. On February 8, 1994, the Claimant fell on an icy parking lot while working in Missouri. His left leg and foot were then run over by an eighteen wheel tractor-trailer. He sustained a medial malleolar fracture and suffered from compartment syndrome in the leg.

The Claimant was motivated to begin working again, but was unable to return to full time employment. He was placed at maximum medical improvement in August 1994 following several surgeries. The Claimant also suffers from post polio syndrome which causes whole body fatigue, weakness, pain and cramping in the legs, pelvis and lower back.

The Claimant had been found by physicians to be incapable of returning to work as a truck driver. He did work part time as a substitute school bus driver in 1996, 1997 and 1998, however the most he ever earned was $7,800 per year, and he eventually terminated that employment due to complications with his right shoulder. He also was awarded social security disability benefits starting in December 1997. He receives approximately $1,192 per month.

Prior to filing his workers’ compensation claim, the Claimant settled his third party claim for $275,000 on December 22, 1997. After attorneys fees and reimbursement to the employer/insurer, the Claimant pocketed $134,786.95. The Claimant instituted his workers’ compensation action in January of 1998 alleging injury to the back, leg and head as well as PPS. The employer admitted the work injury occurred on the date set forth in the petition.

Prior to arbitration, the employer had made workers’ compensation payments to the Claimant of $70,783.19 which included payment for healing period, permanent partial disability, medical expenses and mileage. Also before arbitration, the Claimant and his wife entered into another third party settlement for $100,000. His wife was allocated $60,000 of the settlement for loss of consortium. The Claimant received $24,634.14 after payment of legal fees.

At arbitration on September 5, 2002, the deputy found the Claimant was entitled to workers’ compensation benefits and that his injury caused his PPS, which resulted in a 75% industrial disability. However, it was found that the Claimant’s pulmonary, cardiac, vascular, thyroid problems, bladder cancer, spinal and shoulder issues were not work related.

The employer was ordered to pay 375 weeks of permanent partial disability benefitsat the benefit rate of $472.18 which had been being underpaid at the rate of $392.33. The employer was ordered to satisfy the underpayment by paying $79.85 per week. The employer was also ordered to pay certain disputed medical expenses, including the cost of travel for PPS care.

The decision of the deputy was affirmed on intra-agency appeal, as well as on appeal to the district court and court of appeals. Following the denial of further review, counsel for the employer wrote to the Claimant’s attorney stating that the Claimant’s third party recoveries covered the Claimant’s workers’ compensation claim, but asked whether the Claimant’s attorney claimed any further amounts were due on the award. The Claimant’s attorney responded indicating at lease one third of the amount awarded was due.

The employer’s attorney then responded that they had calculated the amount owed under the agency’s decision to be $154,719.26, however it appears this did not take into account mileage, medical payments or interested owed. It was stated that because the third party statements exceeded the calculated amount, the employer contended all they owed was a payment of the attorney fees for the claimant’s attorney in establishing their credit. This amount was deemed to be $51,573.09, which was paid to the Claimant and his attorney. Claimant’s attorney corresponded back indicating that he believed Claimant was owed more than the calculation done by the employer’s attorney.

The Claimant then filed a review reopening petition on April 2, 2008 seeking additional disability benefits, reimbursement for medical expenses and an order requiring the employer to pay the amount still due under the agency decision as well as a calculation of the credit to which they were owed. On hearing, the deputy found the claim for additional benefits was untimely under the statute of limitations. It was determined the date that the statute began to run was the date of the intra-agency appeal decision, March 23, 2004. The deputy however did award the payment of the medical expenses sought by Claimant, but the deputy did not determine the amount still due under the award, if any, or the amount of credit to which the employer was entitled. The deputy found the payment of $51,573.09 made by the employer was not intended as benefits but rather as a reimbursement of the Claimant’s attorneys in achieving third party settlements.

On intra agency appeal, the Commissioner upheld the finding that the claim for benefits was untimely. However, he reversed the finding that the employer should pay the medical expenses sought by the Claimant as he did not believe they were proved to be related to the work injury. He also affirmed the decision of the deputy that no order was need compelling the employer to make payment as the Claimant could seek a judgment. The decision was then appealed to and affirmed by the district court.

On appeal to the Supreme Court, the Court stated that in regards to the issue of the statute of limitations, such would be reviewed for errors at law as the legislature did not clearly vest the Workers’ Compensation Commissioner with the authority to interpret the statute. The issue as to whether the medical expenses were related to the Claimant’s work injury would be reviewed under the substantial evidence standard.

The Court took up the issue of the statute of limitations and indicated that there was no disagreement between the parties that the review reopening petition must be filed within three years from the date of the last payment of weekly benefits. The employer argued that the statute began to run from the date the commissioner issued the arbitration award, whereas the Claimant challenged the argument on two grounds; 1) that the payment of $51,573.09 constituted payment of weekly benefits, and 2) the statute did not begin to run until the Court denied further review of the arbitration decision.

The Court determined that the commissioner did not determine whether any further benefits were owed under the award, and as such, it could not be determined by the court whether or not the credit of the third party settlements covered all the weekly benefits under the award. The Court held that the Commissioner must first decided whether any further benefits were owed, as the Claimant contended, before determining what the last date of payment of weekly benefits was. The Court then remanded the issue to the Commissioner for a determination whether benefits were still owed. And following the decision of that issue, the Commissioner must then determine whether the last installment of weekly benefits has been paid and on what date if that has occurred.

The Court went on to state that if it is determined that the employer paid all weekly benefits prior to the arbitration award via the credit afforded to it by the third party settlements, the date the statute began to run must still be determined. The Court rejected the Claimant’s argument that the payment of $51,573.09 was payment of weekly benefits. This was based on the logic that 1) the obligation to pay weekly benefits would have already been completely fulfilled prior to the payment, and 2) the Code makes clear that the payment of attorneys fees to the injured party’s attorney for amounts recovered in third party settlements is not considered payment of weekly benefits.

The Court then held that the statute is not tolled pending final appellate review of the arbitration award. Rather, in a situation where the obligation to pay benefits is satisfied before the entering of an arbitration award, the statute begins to run when the award is entered.

Finally, the Court took up the issue of the payment of medical expenses and determined that based upon the review of the record, substantial evidence supported the Commissioner’s finding that the Claimant had failed to prove by a preponderance of the evidence that the sought after medical expenses were related to the work injury. The Court then remanded the case as to the statute of limitations issue, but affirmed the finding in regards to payment of medical expenses.

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!

Brenda Hernandez f/k/a Brenda Flores v. Osceola Foods, Court of Appeals of Iowa, No. 3-269/12-1658

The Claimant was employed at Osceola Foods from January 2003 to April 2008. On May 7, 2004 she injured her back while at work. A settlement agreement was entered into by the parties on May 22, 2006. She was awarded permanent partial disability for a fifteen percent loss of earning capacity. At the time she had a permanent thirty pound lifting restriction.

She continued working for the employer for almost two years after the settlement, at which point, she was terminated dishonesty as she had improperly filled out an employment application for her husband and intentionally misrepresented his employment history. The next day, the Claimant went to a temp staffing agency and filled out an application for Farley’s and Sathers Candy Company, acknowledging she was able to perform all duties as set forth in the job description. This included lifting up to fifty pounds. She was hired through the agency and eventually hired permanently by Farley’s on September 15, 2008. On January 9, 2009, Farley’s learned of her lifting restriction and terminated the claimant’s employment for misrepresenting her ability to do the job.

Following this, she filed a review-reopening petition based upon an allegedly greater loss of earning capacity. The deputy commissioner found that the Claimant did have a change in actual earning but it was due to her dishonest conduct resulting in the loss of her job rather than the work injury. This finding was affirmed by both the commissioner and the district court. The Claimant then appealed to the Court of Appeals.

On appeal, the Court stated the correct standard of review was for errors at law, but also noted that if substantial evidence supported the factual findings of the commissioner these would be upheld. The Court went on to state that while the Claimant attempted to frame the issue as an error at law, the Court agreed with the district court that the “crux of her argument is whether she proved by a preponderance of the evidence there has been a compensable change in her economic circumstances.” The review was thus limited to whether the conclusion reached by the agency was supported substantial evidence.

The Court went on to find that the Claimant’s initial job loss was due to her dishonesty rather than any physical impairment. Her subsequent job loss at Farley’s was also found to be due to her dishonesty rather than any lifting restriction she had. She had apparently been told by Farley’s that if she had been honest about her restriction, she would not have been offered the job. The Court found however that the agency was correct in determining that any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved. The Court ultimately found that no facts about the Claimant’s employability attributable to her injury have changed since her settlement. Substantial evidence supported the findings of the agency and the Court 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!