Articles Posted in Strategy Advice

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.

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?

Under Iowa law, employees who develop complex regional pain syndrome from a work injury are entitled to receive loss of earning capacity damages.

The Iowa Workers’ Compensation Commissioner entered an Appeal Decision on December 13, 2019, in the case of Griselda Perez-Avina v. Brenneman Pork, Inc. and Farm Bureau Property & Casualty Company that is a good example of how complex regional pain syndrome cases are analyzed.

Ms. Perez-Avina worked as a laborer in the farrowing department of Brenneman Pork.  She injured her right hand on February 26, 2014, while assisting a sow that was giving birth.

During my career I have seen many people who had very real and very serious work injuries make their cases unnecessarily difficult.  Here is a list of some of the most common problems that I have seen.

  1. Denying activities you actually perform outside of work. In most workers’ compensation cases, and especially for cumulative trauma cases, the insurance company will interview the Claimant.  One of the standard areas of questioning is about what type of activities a worker engages in outside of employment.  Sometimes an injured worker will deny that they have a second job, or that they regularly chop their own firewood because they are worried that the claim will be denied based on these other activities.  An insurance company might deny a claim in which they are told the worker has a second job, but the worker still has a good chance to win at trial.  However, a worker who denied a second job or a strenuous hobby is going to be facing an uphill battle when the insurance company discovers the truth.  Believe me, the truth always comes out.
  1. Denying preexisting conditions or past injuries. Similarly, a worker with a shoulder injury might answer interview questions about a past shoulder injury or treatment with a false denial.  The fact that a worker has a preexisting problem is not a work comp defense.  If the employment substantially aggravates the preexisting condition, then the employer and insurance company are responsible for the injury.  However, denying the preexisting problem makes it easier for the insurance company to convince a work comp judge that the complaint is actually based on the preexisting problem.

Under Iowa law, injuries to body parts such as the head, neck, back, and hips were traditionally compensated based on their effect on a workers’ future earning capacity.

Among the statutory changes that went into effect for injuries after July 1, 2017 was an amendment to Iowa Code Section 85.34(2)(v) which provides:

“If a worker who is eligible for compensation under this paragraph (head, neck, back, or hip) returns to work or is offered work for which the employee receives or would receive the same or greater salary, wages or earnings than the employee received at the time of the injury, the employee shall be compensated based only upon the employee’s functional impairment resulting from the injury, and not in relation to the employee’s earning capacity.”

The Iowa Workers’ Compensation Commissioner entered an Appeal Decision in the case of Kuehl v. Foley Company and CNA Insurance on February 3, 2021.  The case is an example of how work injuries that are impacted by psychological issues are handled in Iowa work comp law.

The injured worker did not graduate from high school or obtain a GED.  The Claimant began working as a crane operator when he was 17 years old and continued in that profession for 30 years until he was injured in July of 2017.  The Claimant was climbing into an excavator when he slipped and fell about 3 to 5 feet and landed on his right heel, and felt immediate pain in his back.

The Claimant went through extensive medical care and evaluation.  All of the doctors agreed that the Claimant did suffer some type of low back injury from the fall, and all of the doctors agreed that the Claimant did not require surgery.  The Claimant went through physical therapy without improvement. He took a number of different medications without improvement.  The Claimant generally resisted epidural steroid injections, when these were given, they also did not help.  MRI and EMG testing did not reveal any significant problems.

One of the most common type of case in Iowa workers’ comp is when a worker has preexisting back problems that are aggravated by his job duties.  As the Iowa Supreme Court has stated many times:

“While a claimant is not entitled to compensation for the result of a preexisting injury or disease, its mere existence at the time of a subsequent injury is not a defense.  If the claimant had a preexisting condition or disability that is materially aggravated, accelerated, worsened or lighted up so that it results in disability, claimant is entitled to recover.”

A recent example of the application of the law of preexisting conditions is set out in the December 17, 2020 Appeal Decision of Hays v. Central Iowa Fencing, Ltd. And Grinnell Select Insurance.

Ashley Heinrich v. Area Ambulance Authority, Inc. and Accident Fund Insurance Co. of America is an Appeal Decision filed by the Iowa Workers’ Compensation Commissioner on December 18, 2020.  The Claimant quit her job and obtained new employment while her work comp case was pending.  Fortunately, the case turned out fine for the Claimant, but I have seen a lot of cases where leaving for a new job has a very negative impact on the case.

The dangers of leaving a job while you have a work comp case pending are:

  1. To the extent the injury worsens or new problems are identified, the job change gives the first employer a good start to the argument that the problem is from the new job.

Set out below are the questions I get asked most frequently about work comp and my answers.  I am setting out a lot of questions and giving general answers.  However, the details do matter in Iowa work comp law so you should follow up with a lawyer to figure out how the law applies to your exact situation:

  1. What is workers’ compensation? Workers’ compensation is a statutory system to provide medical care and cash money for employees that are injured on the job.
  1. Does workers’ compensation cover pre-existing problems? Iowa workers’ compensation does not cover pre-existing problems unless the work aggravates or worsens the pre-existing problem.  For example, many people have pre-existing back problems but are able to do their job.  If the employment ends up aggravating your back condition, then you are entitled to receive workers’ compensation benefits.

The recent Appeal Decision in the case of Michael Warren v. Altec, Inc. and Sentinel Insurance Company is an example of how post-concussion injury cases are handled in Iowa workers’ compensation.

The claimant was injured on March 22, 2017 when a J-hook he was using came unhooked from a tank he was pulling, and the claimant fell back and struck his head and was knocked unconscious.  The claimant’s initial symptoms were a mild headache, dizziness and nausea.  The local physician recommended waiting on a neurology referral to see if claimant’s symptoms would clear up on their own.

Unfortunately, the claimant’s symptoms did not clear up and he was referred to see Beth Triebel, O.D. at Vision Park in Des Moines.  Dr. Triebel’s diagnosis was bilateral myopia, presbyopia, vertical heterophoria, and post-concussion syndrome.  Dr. Triebel changed the prescription of the Claimant’s glasses.  Dr. Triebel also ordered vision therapy which ran from October 19, 2017 through July 24, 2018.