Articles Posted in Procedural issues

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An injured worker can potentially have a workers’ compensation claim because of a work injury, and then a disability discrimination claim out of the same set of facts while trying to return to work. However, there are significant differences in the two claims. The Iowa Supreme Court issued a decision on June 25, 2021 in the case of Ronald Rumsey v. Woodgrain Millwork, Inc. d/b/a Windsor Windows and Doors which address these differences.

The worker has been deaf since birth.  He uses a hearing aid, but generally relies on lip reading and sign language in order to communicate.

The employer found that the claimant was an excellent employee for many years, including being awarded Employee of the Month twice.

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The Iowa Workers’ Compensation Commissioner entered an appeal decision on December 29, 2021, in the case of Pamela Carmer v. Nordstrom, Inc.  The case addressed two interesting issues:

  1. If a worker suffers an accepted right shoulder injury, and develops problems with the left shoulder from trying to protect the right shoulder, will the left shoulder injury be considered to be a work injury?
  1. One of the 2017 amendments to the Iowa workers’ compensation law changed the classification of a shoulder injury from a more valuable unscheduled injury to a less valuable scheduled injury. However, if a worker suffered injuries to both shoulders, should the bilateral injury be treated as a scheduled or unscheduled injury?
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We were fortunate that when the COVID problems developed the Iowa Workers’ Compensation Commissioner had already made several technology changes so that the system was in place to allow the injured workers and insurance companies to conduct remote trials.

One of the changes is that the Iowa Workers’ Compensation Commissioner had gone to an electronic filing system in 2019.  The electronic filing applies to all documents in the system, including the paperwork for trials.

In Iowa work comp cases the parties are required to cooperate to put together a set of joint medical exhibits for the case.

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EMPLOYEE VERSUS INDEPENDENT CONTRACTOR UNDER IOWA WORKERS’ COMPENSATION LAW

Under Iowa law, employees are entitled to receive workers compensation benefits and independent contractors are not entitled to receive workers compensation benefits.  Corbin v. Pro-Platinum Construction & Remodeling, LLC. and Le Mars Insurance Company is an April 6, 2020 Appeal Decision from the Iowa Workers Compensation Commissioner analyzing a dispute on whether an injured worker was an employee or an independent contractor.  The Commissioner affirmed the decision of the Deputy Commissioner who noted that there are many legitimate independent contract relationships in the workforce, but that in the Corbin case the employer had been trying to evade his responsibilities to provide workers compensation insurance by using false independent contractor agreements.

Under Iowa workers compensation law there are 8 main factors that are examined to determine whether an injured Claimant is a worker or an independent contractor.  I am going to review the 8 factors and discuss the applicable underlying facts in the Corbin case.

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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.

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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.

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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.

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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:

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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:

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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:

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