In one of my cases the Defendants obtained an impairment rating of my client’s injuries, and I was able to obtain an independent medical exam with a doctor of my choice to obtain a competing impairment rating at the expense of the Defendants.  That part of the case is very standard.

The unusual part was that the Defendants then obtained a second impairment rating.  I filed a Petition to obtain a second independent medical exam with a doctor of my choice at the expense of the Defendants.

I went ahead and got the independent medical exam, and have since been fighting with the Defendants about getting reimbursed for the second independent medical exam.  I won the dispute in front of the Workers’ Compensation Commissioner.  That led to an Appeal by the Defendants to the District Court where I also won.

Today I just have a short post about a new Iowa law designed to overrule an Iowa Supreme Court case that was decided on November 21, 2018.  The case in question is Bluml v. Dee Jay’s, Inc. d/b/a Long John Silvers and Commerce & Industry Insurance Company.  I wrote about the Bluml case back on November 21, 2018.  You can see my entire article about the Bluml case here.

Part of my take-away from the Bluml case was that the Iowa Supreme Court helped sort out how different types of falls would be handled in Iowa workers’ compensation cases:

  1. Where an employee falls from an elevated position such as a ladder or scaffolding the injury will generally be compensable under Iowa Workers’ Compensation law.

The Iowa Supreme Court issued a decision on May 3, 2019 in the case of Clark, Dusabe, Ezeirig, Green, Tarpeh, and Nyonee v. Insurance Company State of Pennsylvania.  The case involved employees who were injured by chemical exposure.  The employees brought a civil lawsuit against the work comp insurance company based on the insurance company inspecting their factory and failing to address the chemical exposure problems.

The workers’ chemical exposure lawsuit was also against the employer and a number of individuals.  The Supreme Court’s decision of May 3, 2019 only ruled on the claims against the work comp insurance company.

The work comp insurance company argued that it had immunity pursuant to Iowa Code Section 517.5 which provides:

The Iowa Workers Compensation Commissioner entered a recent Appeal Decision on March 19, 2019 in the case of Tammy Roberson v. Sears Holdings Corporation and Indemnity Insurance Company of North America which  highlights the importance of expert opinions in Iowa work comp cases.  In some situations it is very clear that an injury was caused by work.  This would be where a worker is struck by a forklift, cut by a knife, etc.  However, in many other situations, it is not always clear whether an injury was caused by cumulative trauma at work or whether an injury was unrelated to work and just caused by natural degenerative changes.

Under Iowa law, the cause of an injury is essentially within the domain of expert testimony.  The Work Comp Commissioner considers the expert medical evidence along with all of the other evidence in the case.  Testimony from non-medical witnesses may be used to support or attack expert opinions.  The amount of weight to be given to an expert opinion is determined initially by the Deputy Work Comp Commissioners at trial, and then by the Commissioner if the case is appealed.  The Deputy Commissioners and the Commission have the power to accept or reject expert opinion either in whole or in part.

In the Roberson case, the Claimant was 53 years old at the time of trial.  She had a high school education.  The Claimant also had an extensive and varied work history.  She had worked as a flagger on a construction crew.  She had worked as a supervisor of tar pickers, power washers and ropers.  The Claimant had also worked as a bartender, waitress and a cook.  She had worked as a shipping and receiving clerk.  She had worked as a CNA.  She had worked as a planter in a greenhouse. She had worked in a grocery store as a cash register operator and stocking shelves and working at the customer service desk.  She had worked for a railroad support company and drove railroad crews around the country.  Her job with Sears Holdings Corporation included customer service, stocking, inventory, assembly, shipping, and operating a forklift.

A Somatic Symptom Pain Disorder is a condition in which the patient’s subjective pain profile is higher than what would be expected for the physical injury.  Doctors who work in the area of pain disorders find that approximately 5% of all pain clinic patients have Somatic Symptom Pain Disorder.  Under Iowa law an injured worker who has developed Somatic Symptom Pain Disorder is entitled to receive workers’ compensation benefits.

On February 26, 2019 the Iowa Workers’ Compensation Commissioner filed an Appeal Decision in the case of Swanger v. Cloverleaf Cold Storage and AIG Insurance that dealt with a Somatic Symptom Pain Disorder.

The Claimant suffered a stipulated low back injury on June 24, 2014.  An MRI showed a small low back disc herniation and an annular tear in the low back.

In some cases the issue is whether an injured worker is an employee or an independent contractor.

In other circumstances it is clear the injured worker is an employee, but it can be difficult to figure out who is the employer.  The Iowa Workers’ Compensation Commissioner filed an Appeal Decision on March 4, 2019 in the case of Cerda v. The R & A Construction LLC and Rafael Alvarez and Riverport Insurance Co., involving a construction injury in which there were five possible employers.

Under Iowa law there are six factors that are examined to determine whether an employer-employee relationship exists:

The recent February 14, 2019 Iowa Workers’ Compensation Appeal Decision in the case of Bonde v. Pro Cooperative and Nationwide Agribusiness dealt with a situation in which there were no witnesses to the injury.

The Claimant reported that he fell while at work and injured his low back.  The Claimant explained he had slipped and fell on some loose soybeans on the icy parking lot.  There were no witnesses to the fall.  The fall itself happened on Thursday, February 19, 2015.  The Claimant was able to continue working throughout the day.  The Claimant came to work on the next day, on Friday, and was also able to work the entire day although he was in pain.  The Claimant was off work on Saturday and Sunday.  By Monday the Claimant’s back pain was worse and he reported the injury.

The employer and insurance carrier did not give the Claimant any instructions on going to a physician.  They did not provide any workers’ compensation benefits, and they did not give the Claimant any guidance on whether or not he should come into work.

The Iowa workers’ compensation law on apportionment has gone through many changes based on statutory amendments by the legislature and judicial interpretations by the Courts.

In my last blog entry I talk about the January 17, 2019 workers’ compensation appeal decision of Byers v. Guardsmark, LLC and New Hampshire Insurance Company and concentrated on the parts of the case relating to injuries to older workers.

The Byers case also analyzed the issue of apportionment.  The Claimant in Byers had suffered severe back injuries in the late 1990s while working as a truck driver that had left him unable to work between the late 1990s and his employment as a security guard that began in 2014.  The Claimant suffered another severe back injury in 2014 while working.

An injured worker does not have to be absolutely helpless in order to be awarded permanent total disability benefits under Iowa work comp law.  A worker is considered to be permanently and totally disabled when an injury prevents the worker from performing the type of jobs his experience, training, education, intelligence and physical capacities would otherwise permit him to perform.  Additionally, a finding that a worker could theoretically perform some small amount of work does not necessarily rule out an award of permanent total disability benefits.

Older workers with preexisting problems can suffer a moderate injury that knocks them out of the workforce and entitles them to an award of permanent total disability.

Byers v. Guardsmark, LLC and New Hampshire Insurance Company is a January 17, 2019 Appeal Decision from the Iowa Workers’ Compensation Commissioner that provides a good example of an older worker who ends up being awarded permanent total disability.

If an injured worker is found to be an employee, then they are entitled to receive workers’ compensation benefits.  However, if an injured worker is found to be an independent contractor, then they are not entitled to receive workers’ compensation benefits.  Iowa Code Section 85.61(11) defines an employee as someone who has entered into the employment of or is working under a contract of service, express or implied, for an employer.

Where the employer-employee relationship is in dispute, the worker has the initial duty to prove by a preponderance of the evidence that they were an employee within the meaning of the law. If the worker can establish a prima facie case that they were an employee, then the burden shifts to the Defendant to rebut the presumption that the worker was an employee.

Determining whether or not a worker is an employee relies on analyzing multiple factors.  No one factor is controlling.  The factors are: