The Iowa Workers’ Compensation Commissioner issued an Appeal Decision on July 3, 2019 in the case of Rhonda Tucker v. Menards, Inc. and Praetorian Insurance Co. dealing with a review-reopening.
In a review-reopening action an injured worker can recover additional benefits if their condition has worsened since the original settlement or trial award. The injured worker has the burden of proof to show that their condition has changed since the original award or settlement was made and that the change in condition relates back to the original injury. The change of condition can either be based on physical changes or economic changes.
The claimant in the Tucker case was 58 years old. She did not graduate from high school but did obtain a GED. The claimant worked at Menards for 22 years. She previously worked 15 years for a competing hardware chain, and a few years as a receptionist.
The claimant originally injured her neck when she fell on ice at Menards on December 5, 2011.
The disputes over the December 5, 2011 injury originally went to trial on February 6, 2013. The claimant was awarded 40% industrial disability which entitled her to 200 weeks of permanent partial disability payments.
The claimant brought a review-reopening action a few years later stating that her condition had worsened. The review-reopening action went to trial on March 13, 2017.
The Workers’ Compensation Commissioner’s Appeal Decision of July 3, 2019 approved the analysis of the Deputy Commissioner from the review-reopening trial.
The Deputy Commissioner noted that the claimant had a pre-existing cervical spine condition at the time of her 2011 work injury. However, the condition was asymptomatic until her fall on December 5, 2011. The Deputy Commissioners at the original trial and at the review-reopening trial found that her pre-existing neck condition was permanently aggravated by this December 5, 2011.
Menards presented numerous experts giving the opinion that the claimant’s worsening condition after the first trial was due to natural aging and the claimant’s smoking.
However, the Deputy Commissioner found the claimant’s experts more persuasive. The Deputy found that after the original December 5, 2011 injury the claimant’s condition had slowly and steadily gotten worse. The Deputy Commissioner and the head Commissioner agreed with the claimant’s experts’ that the claimant’s current worsened condition is related to her 2011 work injury, and not just a natural progression unrelated to her work injury.
The defense also argued that the claimant’s preexisting degenerative condition ultimately would have worsened on its own. The Deputy and the Commissioner rejected this argument and ruled that when a preexisting degenerative work condition is made permanently worse by a work injury the employer is responsible for the condition even though the claimant would have eventually reached the same condition through the natural process.
Having found that the claimant’s condition had worsened, the Deputy and the Commissioner then turned to the issue of the extent of damages. The claimant had quit her job at Menards due to her increasing difficulty in performing her job and some disputes about her employer not accommodating her work restrictions.
The Deputy and the Commissioner both found that while the claimant’s condition had worsened, she was not permanently and totally disabled. The claimant did go through a functional capacity evaluation which was found to be valid and concluded that she could perform sedentary work.
The claimant stressed that she had gone through an extensive job search but was unsuccessful. The Deputy and the Commissioner both found that her job search was less persuasive than the claimant argued because she highlighted her restrictions at the start of all her applications, and appeared to be trying to sabotage her own job search.
Therefore, the Deputy hearing the review-reopening and the Commissioner hearing the appeal of the review-reopening both found that the claimant’s industrial disability had increased from 40% to 60%. Accordingly, the claimant was entitled to another 100 weeks of permanent partial disability benefits beyond the 200 weeks she had earlier been awarded.