On September 25, 2019 the Iowa Court of Appeals ruled in favor of one of my clients where we were requesting a second IME at the expense of the Defendants in the case of Ostwinkle v. Mathy Construction Company.
The background of the case is as follows. The worker suffered an accepted low back injury on July 23, 2013.
On August 12, 2016 Chad Abernathey, M.D. provided an impairment rating for the Employer and Insurance Carrier.
Under Iowa law if the payment of weekly benefits to an injured employee is denied, delayed or terminated, and the employer cannot show a reasonable cause or excuse, then the injured worker is entitled to be awarded penalty benefits. Penalty benefits are in addition to the benefits that were not properly paid. The penalty benefits can be up to 50% of the amount of the weekly benefits that were not properly paid. The exact amount of the penalty benefits is up to the discretion of the work comp judges.
Unfortunately, some employers and insurance companies do a very poor job of paying weekly benefits in the correct amount and in a timely manner.
Set out below is a modified version of a Post Trial Brief I filed in a case involving very serious injuries and terrible compliance by the insurance company in paying the benefits that were owed. I have changed the names and dates for privacy purposes.
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.
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:
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:
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:
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.
Under Iowa workers’ compensation law the issue of apportionment has been an unclear area that has led to a great deal of litigation. Iowa Code Section 85.34(7)(b)(1) covers injuries that occurred before July 1, 2017 and provides:
“If an injured 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 under the same paragraph of subsection 2 as the employee’s present injury, the employer is liable for the combined disability that is caused by the injuries, measured in relation to the employee’s condition immediately prior to the first injury. In this instance, the employer’s liability for the combined disability shall be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer.”
The Iowa Workers’ Compensation Commissioner issued a decision on August 31, 2018 in the case of Haltom v. JBS USA, LLC and American Zurich Insurance Company. The Haltom case deals with the issue of apportionment, and also addresses a complex set of facts involving multiple injuries.
We have added a new section to our website discussing a workers’ eligibility for healing period benefits if they are laid off or terminated.
Under Iowa workers’ compensation law an injured employee is entitled to receive healing period benefits if they are laid off or if their place of employment closes until the injured employee reaches maximum medical improvement.
If a worker is terminated after they are injured, they are generally eligible to receive healing period benefits until they reach maximum medical improvement.
We have added a new section to our website concerning light duty issues in Iowa work comp cases. The topics relating to light duty work include:
Iowa Workers' Compensation Lawyer Blog