Articles Posted in Procedural issues

Last week the Iowa Supreme Court ruled in the case of Staff Management and New Hampshire Insurance Company v. Jimenez that an undocumented worker is entitled to receive work comp benefits for an Iowa job injury.

For many years undocumented workers that were hurt on the job in Iowa have been able to obtain workers’ compensation benefits. However, in the Jimenez case the employer and the insurance company challenged whether an undocumented worker should be able to receive Iowa workers’ comp benefits.

The worker in the case was Pascuala Jimenez who was 45 years old at the time of the workers’ compensation trial. Ms. Jimenez was born in Mexico and first came to the United States in 1991. She entered the United States legally with a visa that was good for ten years. After her visa expired Ms. Jimenez was no longer legally able to work in the United States and became an undocumented worker.

Unfortunately, we see a lot of cases in which seriously injured workers (especially middle aged workers and older) end up being fired from their jobs. The terminations usually fall under one of four categories.

The first general category is that at some jobs if a worker reports an injury they will be terminated almost immediately.

The second firing category is that the employer claims that the injured worker has violated some work rule, and this violation is the reason for the termination. A frequent termination reason cited is that the worker has missed work for medical treatment, and the worker has allegedly failed to comply with employer’s rules on notifications for missed work. However, injured workers end up getting fired for a wide variety of alleged rule violations including safety violations, time clock violations, damaging company property, falsifying company records, insubordination, poor performance, using company property for personal business, inability to return to full duty work within a required time period, going over the limited number of absences permitted by the employer, and inability to perform their job because of the injury.

In Iowa work injury cases the insurance companies and employers will sometimes conduct surveillance of the injured worker. The surveillance is usually done by companies that specialize in this type of work. The parties conducting the surveillance will secretly follow a worker for one to three days and videotape and/or photograph the worker to the extent possible. If a worker has claimed that they are severely disabled, and the defendants can obtain video and photographs showing the worker being involved in strenuous activities that is helpful evidence for the defense that the worker has exaggerated the extent of his injuries.

The Iowa case law is full of examples of videos and photos of injured workers performing activities that they claimed they could not do. Surveillance teams have been able to show injured workers doing things like helping to roof their own home, carrying large appliances out of stores, digging fence posts, laying sod, and planting fairly large trees by hand.

Under Iowa law the defendants traditionally have not had to reveal their surveillance evidence until after they have had an opportunity to take the deposition of an injured worker. A deposition is part of the discovery process in Iowa workers’ compensation cases in which the defense lawyers get to interview the injured worker in person. The injured worker is sworn under oath to tell the truth, and a court reporter takes down all of the questions and answers, and types them up in a written form that is called a transcript. The deposition transcripts can be used as evidence at the workers’ compensation trial. As part of the deposition the defense lawyers will ask the injured worker about his activities in such a way to try to hide from the worker that surveillance had taken place. The best possible results from a defense point of view is if a worker will deny doing the type of activities that he is actually shown performing in the surveillance video. The defense then has the double prong attack of being able to say that the worker not only exaggerated the extent of their disability, but lied about it under oath.

Today I am going to write about some of the situations that I have seen come up recently in work comp cases in which injured workers ran into trouble, or almost ran into trouble because they did not talk to a workers’ compensation lawyer about their claim. These examples are only the tip of the iceberg. There are an almost infinite number of things that can go wrong, and every case has its own wrinkles and variations.

MISCALCULATING YOUR DEADLINE FOR FILING A WORKERS’ COMPENSATION PETITION. The general rule in Iowa is that if you are injured on the job, but are never paid workers’ compensation benefits, you have to file your workers’ compensation petition within two years of the date of injury. Alternately, if you are injured on the job and are paid workers’ compensation benefits, then your time deadline for filing your workers’ compensation petition is within three years of the last payment of monetary workers’ compensation benefits to you. See here for my March 27, 2013 blog entry which discusses Iowa work comp time limits in greater detail.

Lane v. Spencer Municipal Hospital, Case No. 3-226/12-1358 (June 26, 2013) is a recent decision from the Iowa Court of Appeals that talks about one of the ways that the time deadline can be miscalculated. In the Lane case the plaintiff was injured on February 28, 2010 and filed their petition on February 29, 2012. The plaintiff’s argument that the petition was timely was based in part on Iowa Code Section 4.1 that provides that in computing time limits the first day is excluded, and the last day is included. Therefore, the plaintiffs in Lane argued that they were entitled to exclude February 28, 2010 when they were injured, and the clock started ticking on March 1, 2010. They then reasoned that moving forward 24 months from March 1, 2010 took them to March 1, 2012. Therefore, the plaintiffs believed that they should have up until the last second of February 29, 2012 for filing their petition. The plaintiff’s position is reasonable, and one member of the Court of Appeals agreed with the plaintiff. However, the majority of the Court of Appeals found that the plaintiffs filed their petition one day too late, and therefore their claim was completely barred. The leap year angle in the Lane case is unusual, but there are literally hundreds of Iowa cases dealing with different disputes that arise in calculating the time limits for filing lawsuits.

There is an old saying that you should never say or do anything that you would not want to show up on the front page of the New York Times. I have always thought that was good advice, and with a few unfortunate exceptions I have generally been able to follow that rule.

However, in the modern world of social media such as Facebook, Twitter, Google Plus, etc., etc. many people actually create a record in electronic words and photos that they might have not wanted to share with the world if they had given it a little more thought. In the last several years the issue of whether claimants in all kinds of injury cases can be required to share their social media accounts in the discovery phase of their cases have become a big issue all across the country. The states have varied quite a bit in their decisions of how much of an injured worker’s social media history can be discovered and accessed by the Defendants. However, it is a strong possibility that such access will be required in Iowa workers’ compensation cases. It has already become fairly common in Iowa for the defense lawyers to request access to the accounts of injured workers.

An injured worker social media account could hurt his workers’ compensation claim in any number of ways. In cases across the country either civil courts or workers’ compensation tribunals have barred or lowered damages for claimants based on evidence from social media accounts.