NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
When an employee moves for legitimate reasons, but labor market research cannot be performed in the new hub community, the community at the time of injury should be used. Here, because the appointed counselor could not perform labor market research in the town in Mexico where claimant moved, the trial court erred in finding the hub for determining loss of earning capacity (LOEC) was Mexico. The Court also held that in a modification action to terminate a running TTD award, the employer’s burden of proving a decrease in incapacity was satisfied by showing the claimant reached MMI. The burden of proving entitlement to permanency remained with claimant.
Case Report – By Karin L. Weingart, March 29, 2013
Gore v. WVOIC and Boone County Parks & Recreation Comm’n, (W.Va. 3/28/2013)
On March 28, 2013, the West Virginia Supreme Court of Appeals issued a decision supporting the ranges of permanent impairment in spinal injuries which limit excessive permanent partial disability awards. In a Memorandum Decision inGore v. WVOIC and Boone County Parks & Recreation Comm’n, No. 11-0612 (W.Va. 3/28/2013), the Court addressed the petitioner’s challenge to the Rule 20 tables for ranges of permanent impairment for spinal injuries. In West Virginia, the basic operation for permanent impairment ratings for lumbar, thoracic, and cervical injuries requires the IME physician to assess impairment pursuant to the range of motion model for impairment found in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition. The resulting impairment rating is then applied to the appropriate category in the corresponding table in W. Va. C.S.R. § 85-20 (“Rule 20”) and adjusted accordingly, if needed, to fall within the appropriate range.
The claimant challenged the rule and procedure, arguing that although the workers’ compensation statute gives the Commission authority to “adopt standards for the evaluation of claimants and the determination of a claimant’s degree of whole body medical impairment” the Legislature clearly intended that a claimant be compensated based upon medical impairment personal to him. The claimant argued that W. Va. C.S.R. §§ 85-20-64.1 and 64.2 are in direct conflict with W. Va. Code § 23-4-6(i). The claimant asserted that each claimant is to be compensated commensurate with the degree of his or her medical impairment, not a preconceived estimate of impairment based upon diagnostic codes. The claimant argued that the Rule 20 tables for ranges of impairment base permanent partial disability awards on diagnosis rather than actual whole person medical impairment specific to the claimant. He also noted that the Court had previously determined in Repass v. Workers’ Compensation Division, 212 W.Va. 86, 569 S.E.2d 162 (2002) that diagnosis based disability ratings were invalid and unreliable because they conflict with the proper time for such ratings, the proper treatment of progressive injuries, the procedure for reopening, and consideration of second injuries.
In theGore opinion, an unanimous Court recognized that the Legislature charged the Board of Managers in W. Va. Code § 23-4-3b with the task of adopting ranges of permanent partial disability for common injuries. The Court further found that the Board’s decision to determine impairment by using the AMA Guides Range of Motion model and applying that to the appropriate table is consistent with the intention of the Legislature as expressed in W. Va. Code § 23-4-6(i). The Court also cited to their prior decision in Simpson v. West Virginia Office of Insurance Commissioner, 223 W. Va. 495, 678 S.E.2d 1 (2009), where the Court stated that W. Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers’ Compensation Board of Managers by the Legislature in W. Va. Code § 234-3b(b) (2005).
The Goredecision upholds a standard developed by the Board of Managers and which has been a key factor in containing what had previously been rather excessive PPD awards for common spinal injuries.
Karin L. Weingart, Esq.
Spilman Thomas & Battle, PLLC
On March 1, 2013, the Alabama Court of Civil Appeals released its
opinion in Ex Parte Russell Threadgill wherein it denied in part and
granted in part the employee’s petition for mandamus relief.
At trial, the employee claimed that he had two accidents. His first
accident allegedly resulted in injuries to his back, left leg, right
arm, and right shoulder. His second accident allegedly resulted in
injuries to his left ankle and right shoulder. The employee testified
that his second accident was the direct and natural consequence of
injuries resulting from the first accident. Specifically, he claimed
that the tingling and numbness in his left leg from the first accident
caused him to fall. The employer presented medical evidence that
rebutted the employee’s claims by demonstrating that the employee had
not been experiencing those problems prior to the second accident. The
judge ultimately held that the employee’s second accident was not a
direct and natural consequence of his previous injuries. Additionally,
the judge found that the second accident was not compensable because the
employee could not show that his employment caused him to roll his
ankle and fall.
The Court of Civil Appeals agreed that substantial evidence supported
the trial judge’s finding that the employee’s job did not cause the
second accident and that the second accident was not a direct and
natural consequence of his previous injuries. However, the Court found
that the trial judge erred in denying benefits for the right shoulder
injury solely on the grounds that the second accident was not
compensable. The Court stated that evidence indicated the shoulder
injury may have been the result of the first accident and that the trial
judge failed to resolve that dispute. The trial judge was therefore
directed to determine whether or not the right shoulder injury was the
result of the first accident.
My Two Cents:
Because the Court granted the employee’s petition in part, the trial
judge will likely do one of two things: Either find the shoulder injury
was the result of the first accident and award benefits or find that the
shoulder injury was not the result of the first accident and deny
benefits.
_________________________________________
About the Author
This blog post was written by Trey Cotney, Esq. of Fish Nelson LLC, a
law firm dedicated to representing employers, self-insured employers and
insurance carriers in workers’ compensation matters. Fish Nelson is a
member of The National Workers’ Compensation Network (NWCDN). If you
have any questions about this article or Alabama workers’ compensation
issues in general, please feel free to contact the author at
tcotney@fishnelson.com or any firm member at 205-332-3430.
Taking a Look at the Latest on Affordable Care Act
Eric E. Kinder
Erin Jones Adams
Spilman Thomas & Battle, PLLC
Employers nationally continue to struggle with how to respond and adapt to the ever- changing landscape that is the Patient Protection and Affordable Care Act (often known as ObamaCare or the ACA). We at Spilman Thomas & Battle will continue to work with you through 2013 and beyond as the implementing regulations for the ACA continue to be issued. We are working to identify strategies to help employers navigate the process in the manner that best serves their respective industries.
Before discussing guidance issued recently regarding wellness programs that are part of a health care plan, there is news of a bit of a reprieve. Originally all employers were to provide notice to their employees regarding their state health insurance exchange no later than March 1 of this year. The written notice would inform employees of the existence of the health exchanges in their state, the manner in which an employee may contact the exchanges and information on how an employee may be eligible for a premium tax credit if the employee purchases a health plan through an exchange and other related tax issues. States, however, have been slow to decide if they were going to establish an exchange, and if so, what the rules for that exchange would be. Accordingly, the Department of Labor has stated that employers are not required to comply until it issues regulations regarding employer compliance with these notice requirements. Currently, the Department of Labor expects the timing for distribution of notices to be late summer or fall of this year, and it is considering providing model generic language that employers can use. We will send out information to employers when these regulations are issued.
A question many employers have asked relates to the establishment or continuation of their wellness programs. The federal government recently issued draft regulations on how employers can ensure their wellness programs are nondiscriminatory under the law. These rules would apply to all wellness programs that are part of a health plan, including those already in existence.
An initial matter, the regulations do not apply to wellness programs not connected to a health plan; employers who have wellness programs separate and apart from their plans need not worry. Employers with programs offering health insurance premium reductions need to read on.
The regulations established two categories of wellness programs. The first is participatory wellness programs available to all employees (or all similarly-situated employees) that either do not provide a reward or do not condition the reward based on the individual meeting certain health criteria. Examples of participatory wellness programs include programs that reimburse all or part of the costs of membership in a fitness center or that provide a reward to employees who attend a monthly, no-cost health education seminar. In general, participatory wellness programs are legal without further review.
On the other hand, health-contingent wellness programs are only permitted where they meet five specific standards. A health-contingent wellness program requires an individual to satisfy a standard related to health to obtain a reward. To survive legal scrutiny, a health-contingent wellness program must meet the following five conditions.
(1) Frequency of opportunity to qualify – The program must provide the employees the opportunity to qualify for the reward at least once per year.
(2) Size of reward – In general, a health-contingent wellness program reward may not exceed more than 30% of the cost of employee-only health care coverage. Programs designed to prevent or reduce tobacco use, however, may offer rewards up to 50% of the cost of employee-only health care coverage.
(3) Uniform availability and reasonable alternative standards - A reward under a health-contingent wellness program must be available to all similarly-situated individuals, which means a “reasonable alternative standard” (including a waiver of an otherwise applicable standard) must be provided for meeting the goal if it is either unreasonably difficult due to a medical condition or where it is medically inadvisable for the employee to attempt to satisfy the standard. In defining what a reasonable alternative standard is, the regulations provide a few rules. First, if the reasonable alternative standard is an educational program, the plan insurer must make the program available (as opposed to telling the employee to find the program) and must pay for it. Where the reasonable alternative standard is a diet program, the employer does not need to pay for the costs of the dietary food, but must pay for any membership or participation fee. And where the reasonable alternative standard is compliance with the recommendations of a medical professional, the plan must provide reasonable alternative standards that can be met within recommendations provided by the individual’s physician.
(4) Reasonable design – Health-contingent wellness programs must be reasonably designed to promote health or prevent disease, may not be overly burdensome, cannot be a subterfuge for discrimination based on a health factor or disability and may not be highly suspect in the method chosen to promote health or prevent disease. That said, plans and insurers may conduct screenings and measurements in order to target wellness programs effectively, but the program must still be made available to all individuals who do not meet this standard. Again, the program must also provide different, reasonable means for qualifying for the same reward.
(5) Notice of other means of qualifying for the rewards – Plans and insurers must disclose the availability of other means for qualifying for the reward for the possibility of waiver of the otherwise applicable standard and all plan materials describing the terms of the health-contingent wellness program. If, however, plan materials merely mention that a program is available without describing its terms, this disclosure is not necessary. To be safe, plans should include language such as the following in the description of all health-contingent wellness programs: “Your health plan is committed to helping you achieve your best health status. Rewards for participating in a wellness program are available to all employees. If you think you might be unable to meet a standard or a reward under this wellness program, you might qualify for an opportunity to earn the same reward by a different means. Contact us at [insert contact information] and we will work with you to find a wellness program with the same reward that is right for you in light of your health status.”
The draft regulations make clear the federal government is increasingly supportive of the use of workplace wellness programs as a means to promote health and prevent disease. While the proposed regulations offer employers certain flexibility in developing and maintaining wellness programs, employers must not forget to vet their wellness programs against other laws that impact the provision of wellness programs, such as the ADA or GINA. The draft regulations are intended to apply to plan or policy years beginning on or after January 1, 2014. Employers who currently sponsor wellness programs should review and consider revising those programs pursuant to the proposed requirements. Employers who aim to develop wellness programs should consider the conditions discussed above, keeping in mind that the final regulations have not yet been issued. If you have questions about the ways in which the ACA impacts your existing or planned wellness program, please contact Eric Kinder at 304.340.3893 orekinder@spilmanlaw.com.
How to Survive the Department of Labor’s Wage and Hour Enforcement
By Carl H. Hellerstedt, Jr.
As most employers know, the federal wage/hour law under the Fair Labor Standards Act (“FLSA”) includes the requirement to pay “non-exempt” employees time and one half of their “regular rate” for work in excess of 40 hours in a work week. The U.S. Department of Labor (“DOL”) is charged with enforcing the FLSA through its Wage and Hour Division. (It is currently engaged in a multi-year ongoing enforcement initiative focused on vendors performing services for the fracking and pipeline industry that has recovered nearly $200,000 in wages in that industry alone.) Prudent employers will want to be diligent to ensure compliance with wage and hour matters in light of the DOL’s willingness to audit employers.
How Can You Protect Yourself from a DOL Audit?
Employers should perform an internal audit at least once a year, addressing the following topics:
· Record-keeping: Computer-based payroll systems will contain the information necessary to meet most DOL requirements. Time worked and bonus calculation records should be kept as part of the pay records, which should be kept for a minimum of three years.
· Employee vs. Independent Contractor: The distinction between an employee and an independent contractor is not governed solely by how the parties title themselves; the DOL has specific tests to determine who is an employee and who is an independent contractor and often focus on who controls the manner of work. Employers using independent contractors should be careful to ensure that they are not directing, or only minimally directing, how and when independent contractors are performing their duties.
· Exempt vs. Non-Exempt: The exemptions from the overtime requirements which are often at issue in the shale industry include whether the employee meets the criteria to be exempt under the “salaried basis,” “professional,” “executive” or “administrative” categories. Determining if the employee meets the exemption criteria can be extremely fact-intensive.
· Compensable Time: A major area of litigation in recent years has centered on what should be considered to be time worked and therefore compensable and count toward overtime hours. This includes the use of cell phones and computers outside of normal working hours. Travel time can also be an issue in circumstances where the employer provides a take-home vehicle. The employer should have a written policy on the use of take-home vehicles to insure that the commute from home to work is not compensable.
Be Aware That Noncompliance with the FLSA Can Result In Considerable Costs!
The FLSA has provisions for doubling the amount of unpaid wages and overtime, attorney fees and for a special form of class action. When current or former employees hire private counsel to prosecute FLSA claims, the employer can expect a class action suit for double damages going back three years under the FLSA, as well as a companion claim of violations of the applicable state wage payment law and state overtime law. State laws are often used because some state law provisions are actually more favorable to the employee than the FLSA. Such is the case in matters including the use of class actions, the scope of exemptions and the calculation of overtime.
For more information, please contact:
Carl H. Hellerstedt, Jr.
412.325.3308
Immigration Reform May Affect All Employers
On January 29, 2013, President Obama announced his plan for comprehensive immigration reform. While the proposal to require mandatory, phased-in electronic employment verification has obvious implications for employers, the proposal to provide a pathway to earned citizenship may have an unforeseen effect on employers, as well. While surprising to some, many individuals in all walks of life do not have work authorization but are still members of the workforce.
Consider the following scenario: a long-term employee approaches you or a supervisor in your company and advises you that she provided you with a false social security card at the time she was hired, but that she now has a valid social security card and that she would like to update her records. How should an employer handle such a situation?
Several different issues are implicated in this and similar situations. At the outset, the employer will need to determine whether the employee was authorized to work in the past and whether the employee has current (and future) work authorization. Section 274A of the Immigration and Nationality Act provides that it is unlawful for an entity to hire an individual knowing the individual is unauthorized to work. The statute also provides that it is unlawful for an entity tocontinue to employ an individual knowing she is or has become unauthorized for employment.
In the scenario we presented, the employer may have a defense to any charges that it knowingly employed an alien unauthorized to work in the United States in the past because the employer completed the I-9 process and determined that the employee’s offered documents were valid at the time. If the employee does not have current work authorization at the present time and going forward, however, the employer will be liable for violating the Immigration and Nationality Act if it continues the employee’s employment.
If the employee is currently authorized to work, the employer must consider the separate issue of the employee’s misrepresentation during the hiring process. The employer must review the particular facts of the situation, including whether the employee provided false information on the employment application, the I-9 form, or other company documents. The employer will need to review its policies and procedures, as well as its past practice in similar situations. Is there a written policy that provides for disciplinary action for falsification of employer documents? Does the employment application state that the individual represents that all of the information provided is accurate? Has the employer previously allowed an employee to continue their employment after discovering a misrepresentation in similar circumstances (for example, on a resume)? The employer should focus on its specific policies, whether the employee had notice of its policies, and treating employees with consistency for similar misconduct.
The most difficult issue for employers to face is when a long-term, well-loved, star employee advises her employer that she is or was undocumented. Even if it is possible to continue this employee’s employment in the future without violating the Immigration and Nationality Act, the employer must carefully consider whether maintaining the employment relationship will establish a precedent for other similar situations.
When confronted with this or a similar situation, the employer should gather all the facts and then contact legal counsel for assistance in navigating all the issues that may arise.
For more information, please contact:
Larissa C. Dean
304.291.7924
ldean@spilmanlaw.com
Alice Talton v. Fleur Delis Motor Inns, Inc. and Cambridge Integrated Services Group, Inc., Iowa Court of Appeals, No. 2-1095 / 12-0999
The Claimant suffered a work related injury on April 17, 2007, when a seven pound can of tomatoes feel from a height of six feet and landed on her left foot. Primary care for her foot was referred to Dr. Robert Eells. The Claimant was diagnosed with an injury to the first metatarsal head. After approximately three months of care, Dr. Eells referred the claimant to Dr. Eric Barp, a foot surgeon.
Dr. Barp diagnosed the claimant with a fractured fibular sesamoid on her left foot that he believed would heal with conservative treatment. He noted that the claimant’s back pain should subside once she was out of the CAM boot. Dr. Barp wrote to the nurse case manager on November 20th, indicating the Claimant should stop using her CAM boot that day. The letter also indicated the Claimant to be at maximum medical improvement and that her left big toe arthritis was unrelated to her work injury.
The Claimant then sought treatment on her own initiative from Dr. Vincent Mandracchia on January 11, 2008. Her condition was diagnosed as degenerative joint disease with hallux limitus first metatarsal phalangeal joint on the left. On January 31st, an exostectomy was performed by Dr. Denise Mandi. The Claimant then saw Dr. David Wadle and Dr. Dana Simon for her back pain. Dr. Simon indicated the Claimant’s back pain was probably secondary to the antalgic gait abnormality, maybe somewhat contributorily. Dr. Wadle indicated the Claimant’s altered weight bearing activities seem to have aggravated a pre-existing condition in her low back. The Claimant also saw Dr. Timothy Kenney for her knee pain. Dr. Kenney indicated the claimant’s altered weight bearing aggravated a pre-existing condition in her arthritic right knee but believed this to be a temporary condition caused by her altered gait while wearing the CAM boot.
On July 8, 2009, Dr. Mandracchia wrote a letter explaining her believed the joint disease and cartilage damage in the claimant’s left big toe directly resulted from her April 2007 work injury and that a joint replacement was a better option over conservative treatment.
The Claimant filed a workers’ compensation petition on January 16, 2009. It was stipulated that the Claimant sustained a left foot injury in the course of her employment; however the Claimant also alleged she experienced right knee and low back problems resulting from the injury. At hearing on August 19, 2010, the deputy ruled in the Claimant’s favor finding the left foot injury altered her gait and caused her right knee and low back problems. Temporary partial disability and alternate medical care were awarded, but as the deputy did not believe the Claimant to be at maximum medical improvement, no permanent benefits were awarded.
On appeal to the Commissioner, it was found that the Claimant’s left foot injury had healed and the ongoing problems she had with her left foot, right knee and low back were unrelated. Temporary disability benefits were awarded through November 20, 2007, the date Dr. Talton had found the Claimant reached maximum medical improvement. The Claimant’s requests for penalty and alternate medical care were denied. This decision was affirmed by the district court.
On appeal to the Court of Appeals, the Court first took up the issue as to whether the Claimant’s April 17, 2007 work injury caused the ongoing problems in her left foot, right knee and lower back. The Court first noted that medical causation is essentially within the domain of expert testimony and that the weight to be given those opinions is for the commissioner to determine.
The Court stated that the commissioner ultimately concluded Dr. Barp’s opinion deserved the greatest weight as it was consistent with the overall medical evidence. The Commissioner also determined that the opinions of Dr. Mandracchia and Mandi should be given little weight as “their own contemporaneous medical treatment notes and records are not consistent with their later causation opinions.” As the record presented a conflict of medical evidence, the commissioner was entitled to place greater weight on one opinion over the other.
The Court next took up the issue as to whether the Claimant’s ongoing left foot, right knee and lower back problems did not arise out of and in the course of her employment. The Court found that the Commissioner’s decision that the Claimant’s ongoing left toe, right knee and low back pain were unrelated to her alleged work injury was not illogical, irrational or wholly unjustifiable. The Court stated that the decision was within the domain of expert testimony and substantial evidence supported the Commissioner’s conclusion on causation.
As the Court found substantial evidence supported the Commissioner’s decision that the Claimant having reached maximum medical improvement on November 20, 2007, the Claimant was not entitled to alternate medical care or any additional temporary disability or healing period benefits.
Thus, the Court affirmed the decision of the commissioner.
Big Tomato Pizza v. Jonathan Cloud, Court of Appeals of Iowa, No. 2-1199 / 12-1291
The Claimant was employed as a delivery driver for the employer. On April 16, 2008, after returning from delivering a pizza when a man named Douglas Evans was being chased out the door of the employer. The Claimant stepped in front of him and was hit by Evans. A brief scuffle ensued between the Claimant and Evans. As a result of the incident, the Claimant was injured and had difficulty breathing. He was taken by ambulance to Iowa Methodist Hospital.
At the hospital, the Claimant was diagnosed with a small puncture wound to the left side of his chest and a collapsed lung. The Claimant remained in the hospital until April 26, 2008. Upon discharge, the Claimant did not have any subsequent medical treatment as he testified he could not afford it and did not have medical insurance. He returned to his job with the employer. He continued to complain of pain in the left chest region and sometimes experienced shortness of breath; particularly with cold, misty or dusty conditions. The Claimant also stated he experienced nightmares about the incident.
On May 30, 2009, the Claimant filed a workers’ compensation petition. He was seen by Dr. John Kuhnlein for an independent medical examination on February 4, 2010. Dr. Kunhlein found the claimant’s pain to have been caused by the April 16, 2008 injury and assigned the Claimant a one percent whole person impairment. It was recommended the Claimant could only lift pizzas above shoulder height on an occasional basis. It was further recommended that the Claimant be examined by a mental health professional for possible post-traumatic stress disorder.
At hearing, the deposition of a fellow employee was presented. This deposition testimony stated the Claimant was returning from delivering pizza when he was Evans being chased by the deponent and another employee. The deponent stated he was chasing Evans because he wanted to get in a fight. The Claimant made a U-turn to follow Evans, got out of his car and engaged in a fight with Evans in front of a restaurant down the block. A co-owner of the employer also testified that he had come into the business the night of the accident to get a pizza and was told that some employees were chasing a man down the street. He also testified that the Claimant came into the business and told the co-owner that he had hit Evans in the head.
The deputy did not find the testimony of the co-owner and co-employee to be as convincing as the Claimant’s. The deputy concluded that the Claimant was the victim of an assault that occurred because he was an employee and that this injury arose out of and in the course of his employment. The deputy determined that compensation was not barred by Section 85.16 and found the Claimant to have suffered a 15% industrial disability. It was also found that the Claimant should be evaluated for a mental health injury as a result of the assault.
On intra agency appeal, the Commissioner found that the ambulance record, police report and hospital medical records were objective evidence of what occurred the night of the incident and were more consistent with the Claimant’s testimony than other testimony presented. The Commissioner affirmed the decision of the deputy but modified the Claimant’s industrial disability rating to ten percent. The decision of the commissioner was affirmed by the district court on judicial review.
The Court first took up the issue as to whether the Claimant’s alleged injury arose out of an in the course of employment. The Court stated that an injury is considering to be arising out employment “if there is a causal connection between the employment and the injury.” The Court went on to state that the phrase “in the course of employment” refers to the time, place and circumstances of the injury.
The employer argued that substantial evidence did not support the finding that the Claimant’s injury did not arise out of an in the course of employment. The Court noted that on appeal it is not for the Court to determine if the evidence could support a different finding but whether the finding made was supported by substantial evidence. The Court found that the employer’s assertion relied on a factual scenario that was different than the factual findings made by the Commissioner. The Court went on to find that the factual findings made by the Commissioner were supported by substantial evidence.
The Court found the Claimant’s testimony to be supported by the ambulance report, police report and hospital reports from the evening of the altercation. The Court found substantial evidence supported the Commissioner’s finding that the Claimant was performing his work duties when he was assaulted. As the Claimant was performing work duty at the time of his injury, his injury was found to arise out of and in the course of his employment.
The Court next turned its attention the employer’s contention that the injury was barred by Section 85.16 which bars compensation for injuries which are caused by an employee’s willful intent to injure himself or another or by the willful act of a third part directed against the employee for reasons personal to such employee. The Commissioner had found that there was no credible evidence that the Claimant wanted to injury Evans or that Evans assaulted the Claimant for reasons personal to the Claimant. The Court ultimately found that substantial evidence supported the finding that the Claimant was hit because he happened to get in Evans’ way and that as such this injury was not barred under Section 85.16.
The next issue addressed by the Court was whether the Claimant was entitled to workers’ compensation benefits. The employer claimed that the Claimant had not shown any loss of earning capacity resulting from the injury. The employer pointed to the fact that the Claimant returned to his employment as a delivery driver for the employer. At most, the employer stated the Claimant was entitled to a disability rating of one percent to the body as a whole.
The Court first noted that in a determination of industrial disability, factors such as the Claimant’s age, education, restrictions and employment experience are considered. The Court ultimately found that substantial evidence supported the Commissioner’s finding that the Claimant had sustained a 10% permanent partial disability. The Court cited to the fact that the Claimant was 40 years old, had quit school in the 11th grade and obtained his GED. The Court also noted that most of his adult life was spent as a delivery driver and Dr. Kunhlein stated the Claimant could only lift pizzas above shoulder height occasionally and may have problems in dust, mist or cold environments. Based on this, the Court found substantial evidence to support the Commissioner’s decision.
The final issue taken up by the Court was whether substantial evidence supported the finding that the Claimant was entitled to be evaluated and treated for a mental health injury. The employer asserted that the Claimant had not presented any qualified expert opinion on this issue as Dr. Kuhnleing was not a mental health professional. The Court ultimately agreed with the reasoning of the district court which stated “[w]hile Dr. Kunhlein is not a mental health professional…he is certainly qualified to recognize symptoms needing further investigation.” The Court stated that the Commissioner did not find the Claimant had proven a mental health condition as a result of the work injury, but that there was sufficient evidence to warrant further investigation. The Court found substantial evidence supported this finding.
Thus, the decision of the Commissioner was affirmed.
Diane Cecilia Hansen vs. Snap-On Tools Manufacturing Company, Court of Appeals of Iowa, No. 3-031 / 12-1038
The Claimant was employed with the employer since 1971, almost the entirety of her entire working life. She worked in electrical, pack and the ball slide departments. Prior to her alleged work injury, the Claimant had health problems including carpal tunnel syndrome, right shoulder overuse problems, diabetes, high blood pressure, fibromyalgia and a hiatel hernia.
The Claimant filed a workers’ compensation petition on July 10, 2008. The parties agreed that the Claimant sustained two injuries. The first occurred on February 15, 2005 when the Claimant injured her left shoulder while working in the pack department. The second injury was alleged to have occurred on September 11, 2007, when she sustained an injury to her right hand/arm while working in the pack department. In regards to the February 15, 2005 injury, the Claimant alleged the injury manifested over a period of time by microtrauma. The Claimant had left shoulder arthroscopic surgery with Dr. Phillip Deffer. This surgery was performed on June 3, 2005, with the Claimant returning to work on June 10, 2005. Following the surgery, the Claimant continued to experience some shoulder pain and depression.
The Claimant was placed at maximum medical improvement by Dr. Deffer on February 10, 2006. On February 9, 2009, the Claimant underwent an independent medical examination with Dr. Kuhnlein, who opined that the Claimant had a material change in her left shoulder condition related to the February 15, 2005 injury which was an acute injury superimposed on a cumulative process.
On September 11, 2007, the Claimant suffered an injury while putting drawers in toolboxes in the pack department at the employer. After continuing problems, Dr. Deffer performed a right synovectomy in the right hand fourth dorsal compartment and side to side transfer of the extensor indicis proprius tendon on May 9, 2008. The Claimant was placed at maximum medical improvement on July 23, 2008.
After hearing, the deputy concluded the Claimant sustained a fifteen percent industrial loss related to her February 15, 2005 injury. The deputy also found that Dr. Kunhlein’s IME bill totaling $9,502.50 was unreasonable and the employer should only be responsible to reimburse the Claimant $2,890.00. The decision was affirmed by the commissioner with a slight modification to a mileage reimbursement calculation.
On judicial review, the district court remanded to the Commissioner to determine the correct amounts of healing period benefits, the due date of the benefits, the appropriateness of any penalty and whether interest should be assessed based upon the fact that the court found the deputy failed to analyze or provide rationale for the healing period benefits awarded. The issues of temporary partial disability benefits and the reasonableness of Dr. Kuhnlein’s fee were also remanded.
On judicial review, the Claimant argued extensively regarding the constitutionality of the successive disability statute, the applicability of the statute, and whether there was substantial evidence to support the deputy’s industrial disability award. The constitutional issue was reserved for the appellate court and found the deputy’s decision to be supported by substantial evidence.
The decision was appealed by the Claimant claiming the district court erred by failing to reverse the commissioner for failing to apply the successive-disability statute and all the industrial disability factors. It was also claimed that the court erred by taxing one half the costs on judicial review to the Claimant. The employer cross appealed arguing the commissioner was correct in regards to Dr. Kuhnlein’s fee and in the award to temporary benefits award.
The Court first addressed the issue of the successive-disability statute noting that the review of the issue was for errors at law and no deference would be given to the agency’s interpretation of the statute. The Court noted that the Claimant’s challenge to the deputy’s decision regarding permanent disability was based on the argument that all of Claimant’s previous injuries from her employment with the employer needed to be included in the permanent combined disability from which the permanent partial disability compensation award for the February 15, 2005 injury was made.
The Court examined Section 85.34(7), the successive-disability statute, which provides that if an employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable, the employer is liable for the combined disability caused by the injuries. The Claimant argued that the agency had erred by not explaining if and how it determined the fifteen percent industrial disability award represented a combined disability caused by the injuries measured in relation to the employee’s condition immediately prior to the first injury. In essence, the Claimant argued that if the agency properly considered her prior history, her rating should be higher.
The Court stated that in regards to the successive-disability statute, the Court must be able to identify from the record the pathway followed by the deputy when the determination was made. The Court noted that the record was not clear if or how the deputy applied the successive disability statute in making its determination regarding industrial disability. However, the Court went on to note that even if the agency had analyzed the facts under the successive-disability statute, the outcome would not change as the statute is not applicable to the Claimant’s February 15, 2005 injury.
The Court stated that in interpreting a statute, the stated legislative intent governed. In this case, the stated intent to the legislature was that the division did not alter the method of determining the degree of unscheduled permanent partial disability. As the Claimant’s injury was an industrial disability to the body as a whole, the degree of her unscheduled disability could not be determined under Section 85.34.
The Court next found that the agency determination as to the Claimant’s 15% industrial disability was supported by substantial evidence. In so finding, the Court noted that the law did not require the commissioner to specifically discuss each factor in arriving at the determination of industrial disability. Ultimately, the Court found substantial evidence supported the decision made by the Commissioner.
The Court then turned its attention to the issue of costs as to Dr. Kuhnlein’s IME and the costs of judicial review. The Court first looked at the issue of the costs of Dr. Kunhlein’s IME. The Court noted that the fee for an IME must be reasonable. While the agency determined the IME fee of Dr. Kunhlein was unreasonable, the district court remanded the issue as the pathway to determine the allowable fees was not clear. The court examined the deputy’s findings and found that the deputy has sufficiently reasoned as to why the fee was not reasonable and reversed the remand of the district court.
The Court spent no time discussing the issue of the costs of judicial review, merely affirming the finding of the court as “the taxation of costs of judicial review shall be in the discretion of the court.”
The final issue taken up by the Court was the determination that all temporary benefits that the Claimant was entitled to had been paid. The Court noted that in regards to benefits, the agency’s decision must be sufficiently detailed to show the path it had taken through conflicting evidence to arrive at its decision. The Court found that the agency only recited what benefits had been paid and never made any determination as to their accuracy or timeliness. As such, the decision was not sufficiently detailed and the district court’s remand was appropriate.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa
The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.
The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.
At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.
The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.
The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.
Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa
This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.
Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.
The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.
This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.
The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.
The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.
The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.
After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.
The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.
The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.
Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!
John Walter Podgorniak v. Asplundh Tree Expert Company and Lumbermen’s Mutual Insurance Company,Court of Appeals of Iowa,No. 2-943 / 12-0644
The claimant injured his left shoulder, neck and head while working for the employer. He filed a workers’ compensation proceeding which ultimately awarded him alternate medical care and running healing period benefits. The Claimant was referred to a treating physician who opined the claimant was at maximum medical improvement; based upon this, the employer terminated the claimant’s healing period benefits.
The Claimant subsequently filed a review reopening petition which raised several issues including a request for penalty benefits based upon the termination of healing period benefits. The deputy awarded a penalty of 50% of all healing period benefits that the claimant asserted were not timely paid based upon the determination that the employer unreasonably delayed the payment of weekly benefits to the claimant. On appeal to the commissioner, the designated deputy reversed the decision reasoning that the decision to terminate healing period benefits was fairly debatable. The decision was affirmed by the district court.
The decision was appealed to the Court of Appeals which took up review of the issue based upon the substantial evidence standard of review. The claimant asserted that the appeal deputy erred by applying a non-statutory ‘fairly debatable’ standard as a per se defense to a penalty claim. The Court however stated that established case law supported the ‘fairly debatable’ language and that there was no material difference between the judicially created standard of ‘fairly debatable’ and the statutory standard set forth in the Iowa Code requiring a reasonable or probable excuse for delay in payment of benefits. The Court then stated that the deputy did not ignore the requirements of the Iowa Code by relying upon the judicial opinions which discussed those requirements.
The Court then discussed the issue as to whether substantial evidence supported the finding made by the commissioner. The Court found substantial evidence in the opinions of three doctors that the claimant was at maximum medical improvement. The claimant attempted to claim that these opinions carried no weight as they were rendered before the claimant completed his alternate care, but the Court found no case law to support this proposition. The Court then affirmed the finding of the commissioner based upon substantial evidence.
Pilgrim’s Pride Corporation and Zurich North American v. Johnie M. Eakins,Court of Appeals of Iowa,No 2-1016 / 12-0901
The employer appealed the district court’s ruling which affirmed the commutation decision of the workers’ compensation commissioner. The deputy had granted the claimant’s request for a partial commutation, giving him a lump amount rather than weekly benefit payments.
The Court first discussed that partial commutations may be awarded when it is found to be in the worker’s best interests based upon a number of factors, which include: age, education, mental and physical condition, life expectancy, family circumstances, living arrangements, responsibilities for dependents, financial condition, debt, living expenses, and reasonableness of plan for investing lump sum proceeds and ability to manage the invested funds.
The employer contended that the agency failed to consider the claimant’s lack of financial sophistication, the tax consequences of the commutation decision and the claimant’s lifelong interest instead of just his current financial situation. The Court stated that the agency’s decision did in fact clearly consider these issues. The Court then noted that the agency was particularly concerned with the claimant’s ability to find adequate housing should he not receive a commutation. The agency also considered the fact that the claimant would only draw down interest and principal of the lump sum until his wife completed nursing school and obtained employment. The claimant also intended to conserve the principal to provide an estate for his wife should she survive him. Based upon these factors the agency determined that the commutation was in the claimant’s best interest long term and the Court could find no error in the agency’s application of law to these facts.
The employer also attempted to argue that substantial evidence did not support the awarding of the commutation as the claimant had a lack of income to pay day to day expenses and his desire to spend the benefits on other family members. The employer also indicated that the claimant’s history of spending money indicated that he would spend the money rather than invest it, which would leave him destitute. The Court acknowledged that there was evidence to support the conclusion that the commutation was not in the claimant’s best interests, but stated that it was not the job of the appellate court to determine whether the evidence supports a different finding but rather whether the finding made was supported by substantial evidence. The Court ultimately found substantial evidence supported the award of the commutation. The evidence relied upon was the claimant’s desire to obtain adequate housing and his indication that he would employ the services of a financial advisor.
The next issue taken up by the court was what was the correct date to commute the award from. The Court found that the correct date to be used to calculate the interest rate for the purposes of the commutation was the date the agency decision became final. This was based upon Iowa Code Section 85.48, which sets the rate to be paid based upon the interest at the time judgment is entered. The Court held that a workers’ compensation decision becomes a final judgment when there is a final decision without further proceeding, unless there is an appeal to the agency. As there was an appeal to the commissioner in this case, a final judgment was not entered until the decision of the commissioner. The Court then ordered that the commutation be revised to reflect the value of the commuted weeks and that any weekly payments made after the date of the commissioner’s decision while the case was on appeal should be credited to that value.
Ottumwa Manufacturing d/b/a Cadbury Schweppes Holding, Inc., v. Carl Boyd Sr.,Court of Appeals of Iowa,No. 2-813 / 12-0889
The claimant sustained an injury to his feet on August 22, 2008 when they were run over by a forklift while at work. This caused crush injuries to both of his feet. The claimant began to treat with podiatrist, Dr. Scott King. An MRI revealed a bony contusion of the metatarsal joints. The claimant claimed to have reported hip pain since he was injured, but Dr. King did not note any right sided hip pain until March of 2009. Dr. King associated this pain with the claimant’s work injury and assigned restrictions. Later, he signed a letter deferring to the claimant’s other physicians in regards to work restrictions and the cause of his hip injury.
The claimant was also seen by Dr. Kenneth Pollack, a pain management specialist. The claimant complained of pain in his low back and right hip, which Dr. Pollack theorized was likely caused by altered body mechanics stemming from his crush injury. In March of 2009, Dr. Pollack opined that the claimant’s left knee and right hip pain were a direct result of his work related injury. This was based on the claimant having no symptoms prior to his injury. However, in January 2010, Dr. Pollack signed a letter which stated he was unable to state that the claimant’s right hip complaints were a result of the claimant’s 2008 work injury.
The Claimant was seen by Dr. Nettrour, a hip specialist, in November of 2009. He opined that the claimant had a right hip injury with unclear etiology. He subsequently signed a letter which stated the claimant suffered no identifiable hip injury and any hip pain could not be related to his work injury. The Claimant was also seen by Dr. Friedgood, a neurologist, who opined the claimant did not need permanent restrictions based upon his right hip injury.
The Claimant was seen by Dr. Stoken for an independent medical exam in November of 2009. Dr. Stoken related the claimant’s complaints of pain in his feet, right hip and low back to his work injury. He was placed at maximum medical improvement as of September 21, 2009 and given an impairment rating of 28% to the whole body. He was given permanent work restrictions to avoid prolonged standing and walking and to avoid repetitive bending, twisting and lifting.
The Claimant was next seen by Dr. Eric Barp. Dr. Barp believed the claimant to likely be at maximum medical improvement. His work was restricted to sit down work only. Late Dr. Barp indicated the document assigned this restriction was in error and that the claimant could return to work without restrictions from a foot and ankle standpoint. The claimant was then given a permanent impairment rating of 4% to the body as a whole.
At hearing, the deputy found the claimant’s injury extended beyond his lower extremities into his right hip. The deputy then found the claimant to have suffered an 80% industrial disability. On intra-agency appeal, the claimant argued he should have been given an award of total permanent disability. The decision of the deputy was affirmed by the commissioner; which was subsequently affirmed by the district court.
Both parties appealed to the court of appeals. The employer argued that the commissioner erred in determining the claimant sustained a whole body injury rather than an injury to the bilateral lower extremities as there was insubstantial evidence to support the finding. Ultimately the Court found substantial evidence supported the finding made by the commissioner. The Court focused on the fact that the commissioner gave greater weight to the opinions of Dr. Stoken as well as the opinions of Dr. Pollack indicating the hip pain was related to claimant’s work injury. The Court indicated it was not their duty to re-weigh the evidence or to question the weight given to expert opinion, as such the court found substantial evidence supported the finding made by the agency.
The Court then turned its attention to the assignment of 80% industrial disability awarded by the agency. The employer contended that substantial evidence did not support the award. The claimant on the other hand argued that he should have been awarded permanent total disability. The Court found that substantial evidence supported the award made by the agency. The Court looked to the factors that the agency considered such as claimant’s use of a wheel chair – which while self imposed – the court found necessary, a vocational evaluation showing the claimant could only perform sedentary work, his inability to perform part time employment and the opinion of the claimant’s vocational expert indicating there were no jobs available to the claimant in the current job market. However, the Court noted that the agency did not award permanent total disability as the claimant’s physicians had not imposed work restrictions which would keep him from being able to perform seated work.
Based upon the factors above the court found the award of 80% industrial disability was supported by substantial evidence and the decision of the agency was affirmed.
Jose Sanchez v. Celadon Trucking Services, No 2-1091 / 12-0895, Court of Appeals of Iowa
The Claimant was injured in a motor vehicle accident in the course and scope of his employment with the employer. He settled a third party suit against the drive at fault for $200,000. The employer was reimbursed on its lien for workers’ compensation benefits already pain. As there were funds remaining after payments of this lien, the employer retained a lien for future workers’ compensation payments it would become liable to pay. After hearing, the Claimant was awarded 25% industrial disability.
The Claimant filed a review reopening proceeding seeking additional compensation alleged that his physical condition had worsened and his industrial disability had increased. The Claimant also sought an adjudication on the issue of the employer’s remaining lien.
At hearing, the deputy found the claimant lacked credibility and that factor combined with the conflicting medical opinions in regards to his physical condition, led the deputy to conclude that the Claimant had not suffered any change of condition and there was no worsening of his earning capacity. The amount of the lien asserted by the employer was also adjudged to be correct. These findings were affirmed by the commissioner.
The Claimant then appealed the decision to the district court, who concluded that substantial evidence supported the finding that the claimant had no sustained a worsening of his physical condition. The district court also agreed that the calculation of the employer’s lien was correct. The Claimant then appealed to the Court of Appeals.
The Court affirmed the decision of the district court stating that substantial evidence supported the agency’s determination. In so doing the Court opined that their review waslimited to determining whether substantial evidence supports the decision the agency made and they would no reweigh the evidence to see if supported a different decision.
Debra Cooper v. Kirkwood Community College, No. 2-1080 / 11-1755, Court of Appeals of Iowa
This was the second time that this case had been on appeal for the Court of Appeals. The Claimant had filed a petition on March 4, 2003 alleging a work related injury on March 18, 2001. The employer answered raising the affirmative defenses that the claimants’ claims were barred as she did not give 90 days notice and that the statute of limitations had passed. After hearing in 2005, the deputy concluded that the claimant had failed to sustain her burden of proof that she suffered an injury arising out of and in the course of her employment. As such, the deputy did not address the affirmative defenses raised by the employer.
Both parties filed for rehearing as the employer wanted the deputy to address its affirmative defenses. Rehearing was granted and the deputy ultimately affirmed the prior decision. On appeal to the commissioner, the decision was affirmed as well. The case was appealed to the district court which remanded the case to the agency for fact finding regarding the employer’s affirmative defenses. On remand to the agency, a decision was entered finding that the claimant’s claim was barred by the 90 day notice provision but not the statute of limitations.
The decision was then appealed to the district court which found it had subject matter to hear the case as it was found to be appealed from a final agency decision. The district court then found that substantial evidence supported the finding of the agency. The district court also affirmed the agency’s findings regarding the claim being barred by notice provisions but not the statute of limitations.
This case was appealed to the Court of Appeals which found the district court lacked subject matter jurisdiction to hear the case as the Claimant had to wait for a resolution of the employer’s filing for rehearing prior to filing for judicial review. The case was remanded for dismissal of the district court petition.
The district court dismissed the Claimant’s petition for judicial review on April 26, 2010. Following inaction by the agency on the employer’s motion for rehearing, Claimant filed a second petition for judicial review of the agency decision twenty-eight days later, on May 24, 2010. The employer filed a motion to dismiss asserting the petition for judicial review was not timely filed. The court denied the employer’s motion and affirmed the agency decision, finding the claimant failed to prove an injury arising out of and in the course of her employment. The court also found that the claimant did not provide the employer timely notice of her injury. This decision was appealed to the Court of Appeals.
The employer first argued that the Court lacked subject matter jurisdiction to hear the case as the Claimant filed her petition for judicial review more than two and a half years after the time limit set forth in the Iowa Code. The Court noted that failure to file within the manner proscribed by statute deprives the Court of subject matter jurisdiction. The employer arguedthat the second petition for judicial review was untimely since the application for rehearing was filed in 2007, and the petition for judicial review was not filed until 2010, after dismissal of the first petition by the district court. The Court of Appeals did not agree with this argument.
The Court indicated that because the initial petition for judicial review was taken filed before a final agency decision was issued, the claimant’s appeal was provisional or conditional—i.e., interlocutory in nature. The Court went on to note that Iowa Code 17A.19(3) requires the thirty-day time limit to file an appeal to begin from the issuance of an “agency’s final decision.” The Court pointed out that previous Iowa Supreme Court precedent held that the 30 day time limit did not apply to petitions for judicial review from interlocutory actions. The Court held that the twenty-day window until an application for rehearing is “deemed to have been denied” was tolled and the thirty-day time limit to petition for judicial review was stayed pending the decision by our court and subsequent dismissal by the district court. Ultimately the Court found the Claimant’s second petition for judicial review was filed after the application for rehearing was deemed denied and twenty-eight days after dismissal by the district court and agreed with the district court that the petition for judicial review was timely; thus the Court had subject matter jurisdiction.
After finding subject matter jurisdiction existed, the Court proceeded to the merits of the Claimant’s appeal. The Court first noted that as the Claimant had alleged that the Commissioner applied the improper legal standard, that the decision would only be disturbed if the application of the law was irrational, illogical or wholly unjustifiable. The claimant contended that the words “claimant must prove that her work was the probable cause,” used in the decision applied the wrong legal standard to her case—a tort causation standard—and thereby reversible legal error was committed.
The Court first noted that the standard for an injury to be connected to employment is that the injury must be caused by or related to the working environment or the conditions of the employment. The Court stated that whether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony; and the Commissioner may accept or reject expert opinion on the matter.
The Court then examined this particular case and found that the commissioner carefully weighed the expert testimony, noting “[n]o doctor has specifically opined that claimant’s work activities as of March 2001 were a substantial factor in causing her underlying condition to become symptomatic” and that “[n]o doctor has opined that [the claimant’s myofacial pain, depression, and fibromyalgia] standing by themselves were caused by or aggravated by claimant’s work.” The commissioner concluded evidence of causation was lacking. The commissioner, applying the law to the facts, found no connection between Cooper’s work at Kirkwood and her injuries. Due to this, the Court could not find that the agency’s application of law to the facts was not irrational, illogical or wholly unjustifiable.
Ultimately the Court found that the finding made by the agency was supported by substantial evidence and affirmed the decision.
Call Mark Bosscher or Lee Hook with any questions @ 515-243-2100. We’d be happy to help, whether it be a quick or a complex issue!