Iowa law provides that for work injuries prior to July 1, 2017 an employer is fully liable for compensating all of an injured worker’s disability that arises out of and in the course of the employee’s employment with the employer.
However, Iowa Code Section 85.34(7)(b)(2) provides that where a worker suffers two industrial disability injuries with the same employer, the worker should be paid industrial disability based on the combined disability from the two injuries; and the employer should receive a credit for the benefits paid for the first injury.
The Iowa Workers’ Compensation Commissioner filed an Appeal Decision on November 5, 2018 in the case of Ditsworth v. ICON Ag, Federated Insurance and Nationwide Insurance examining an apportionment situation.
The claimant in the Ditsworth case was first injured on April 29, 2013 while repairing a farm combine. He injured his low back and developed pain going down his right leg. The claimant ultimately underwent a microdiscectomy at the L5-S1 level to treat a herniated disk.
The claimant was given a 20-pound lifting restriction post-surgery. However, the claimant was able to return to his regular job and received help from his co-workers when heavier lifting was required.
The claimant’s second injury occurred on October 10, 2014 when he was loading tires into a trailer. The claimant rolled his ankle after stepping off the back of the trailer and jarred his back. The claimant developed an immediate pain in his back and pain down both of his legs.
The claimant underwent surgery at the L4-5 level and the L5-S1 level that involved a bilateral decompression and a fusion of two levels of his low back.
After his surgery the claimant had continuing back and right leg pain. The claimant underwent a functional capacity evaluation that was valid. The claimant was placed in the light physical demand category and limited to lifting no more than 15 pounds.
The claimant returned to light duty work following the second surgery. However, he was terminated from his job on April 6, 2016 over a dispute about signing a form acknowledging receipt of an employee handbook.
After his termination the claimant worked for several months as a rural mail carrier. However, he had to leave this job because of back and leg pain caused by prolonged sitting while delivering mail. The claimant then obtained a job as an agricultural supply driver. The claimant explained that he could perform this job because he was not required to lift or climb, and the delivery trips were all fairly short so that he did not have prolonged sitting.
At trial in addition to the customary disputes, there were two different insurance companies that were fighting each other. Nationwide Insurance provided coverage for the first injury date and Federated Insurance provided coverage for the second injury date. Federated tried to argue that the second injury was only a continuation of the first injury and Nationwide Insurance should be responsible for both injuries.
The Workers’ Compensation Commissioner decided that there were two separate injuries and Nationwide Insurance would be responsible for the damages from the first injury and Federated Insurance would be responsible for the damages from the second injury.
The Commissioner found that the first injury of April 29, 2013 resulted in a 10% functional impairment and 20% industrial disability. Therefore, Nationwide Insurance was required to pay the claimant 100 weeks of permanent partial disability benefits.
Federated Insurance argued that the claimant’s condition after the second surgery was no worse than his condition after the first surgery. The Workers’ Compensation Commissioner rejected this argument and pointed out that:
- After the first surgery the claimant was found to have a 10% functional impairment. After the second injury the claimant was found to have a 22% functional impairment.
- After the first surgery the claimant was able to perform all of his job duties with limited help from co-workers. After a second surgery the claimant had a great deal of difficulty with his job.
- The first surgery involved a microdiscectomy. The second surgery involved a discectomy and a fusion.
The Commissioner also found that the combination of the first and second injuries resulted in total industrial disability of 50%. As mentioned above, Nationwide was responsible for 20% of this total which equaled 100 weeks of permanent partial disability benefits. Federated Insurance was responsible for the remaining 30% of industrial disability which equaled 150 weeks of permanent partial disability benefits.