Articles Posted in Strategy Advice

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.

HERE IS WHEN YOU DO NOT NEED A LAWYER:

You do not immediately need a lawyer as long as the employer and insurance company are providing medical care and you are being paid your regular wages or being paid workers’ compensation benefits for missed work.

If everything goes smoothly your case should generally proceed along the following lines:

The Iowa Workers’ Compensation Commissioner filed an Appeal Decision on November 3, 2020 in the case of Mary Coleman Duchesneau v. Wal-Mart Stores, Inc.  The claimant alleged injuries to her bilateral hands, bilateral wrists, bilateral elbows, bilateral shoulders and her neck.  The claimant was seen by a large number of physicians that gave differing opinions concerning the diagnosis of her injuries, the recommended treatment and the causes of her injuries.

Ultimately, the Workers’ Compensation Commissioner found that most of the claimed injuries were work related.  The Commissioner also found that the claimant had suffered 55% industrial disability and therefore was entitled to 275 weeks of permanent partial disability benefits at the claimant’s weekly rate of $338.36.

The claimant was 59 years old at the time of the workers’ compensation trial and had worked at Wal-Mart since 2003.  Over her life she had worked in a number of fields including carpentry, janitorial, retail sales, baking, dry cleaning, child care, cab driving, cashier, and photo manager.  At Hy-Vee she primarily had worked as a deli merchandise supervisor.  The claimant developed problems with both of her hands and arms which radiated up to her shoulders.  The claimant believed her problems were a result of using a handheld device to put prices on deli items for 3 to 4 hours a day.

Prior to July 1, 2017 work injuries to an employee’s shoulder were treated as an unscheduled injury.  The classification of an injury as unscheduled is very important because it generally leads to a higher level of compensation.  In unscheduled injuries the standard for determining the amount of workers’ compensation is how much the injury has a negative effect on the worker’s ability to obtain a new job in the competitive job market.

In addition to unscheduled injuries, Iowa law also has a second category called scheduled injuries.  The scheduled injuries are a list of body parts consisting of the arm, hand, fingers, leg, foot, toes, eyes, and hearing.  Each body part is given a maximum value.  For instance, an index finger is worth a maximum of 35 weeks.  If an employee loses his entire index finger in a work accident, then the employee is entitled to 35 weeks of permanent partial disability benefits.  If a worker suffers an injury to his index finger that results in a 10% impairment of the index finger, then the worker is entitled to 3.5 weeks of permanent partial disability benefits.  (35 weeks x 10% = 3.5 weeks).

All injuries to body parts which are not in this schedule are considered to be unscheduled injuries.  These include injuries to the head, neck, and torso.  Under Iowa law injuries to the hip are still considered unscheduled, and injuries to the shoulder were traditionally considered as unscheduled.