Articles Posted in Strategy Advice

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An injured worker does not have to be absolutely helpless in order to be awarded permanent total disability benefits under Iowa work comp law.  A worker is considered to be permanently and totally disabled when an injury prevents the worker from performing the type of jobs his experience, training, education, intelligence and physical capacities would otherwise permit him to perform.  Additionally, a finding that a worker could theoretically perform some small amount of work does not necessarily rule out an award of permanent total disability benefits.

Older workers with preexisting problems can suffer a moderate injury that knocks them out of the workforce and entitles them to an award of permanent total disability.

Byers v. Guardsmark, LLC and New Hampshire Insurance Company is a January 17, 2019 Appeal Decision from the Iowa Workers’ Compensation Commissioner that provides a good example of an older worker who ends up being awarded permanent total disability.

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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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Under Iowa workers’ compensation law the insurance company and employer cannot interfere with the medical judgment of their own treating physician.  Schwers v. Nordstrom Distribution Center is a December 17, 2018 Alternate Medical Care Decision from the Workers’ Compensation Commissioner that deals with this rule.

The Claimant injured her back on August 10, 2017.  Nordstrom Distribution Center is self-insured for work comp injuries.  Nordstrom accepted the injury and provided medical care.  Dr. Michael Chapman performed a low back fusion surgery on the Claimant.

Unfortunately, the Claimant continued to have low back pain.  Dr. Chapman referred the Claimant to pain doctor #1 who performed a number of tests and a diagnostic medial branch block, and gave the opinion that a medial branch problem and facet disease could be ruled out as a cause of the Claimant’s back pain.

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Under Iowa Workers’ Compensation law if an employee suffers a compensable injury, and then develops a second injury as a result of the original injury, then the second injury is also compensable as a workers’ compensation claim.  This sequence of the original work injury causing a second work injury is called a sequela of injuries.

The recent December 17, 2018 appeal decision of the Commissioner in the case of Kirkendall v. Cargill Meat Solutions Corp. and The Insurance Company of the State of Pennsylvania is a good example of a sequela injury case.

The Claimant injured her right shoulder when she fell on ice on December 10, 2009.  After a period of conservative treatment the Claimant began a series of right shoulder surgeries.  The first right shoulder surgery was on April 7, 2010.  The second right shoulder surgery was on December 17, 2010.

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Iowa workers’ compensation is an adversary system of justice.  The insurance companies will sometimes reject legitimate work injuries, and will frequently pay less than the full value of a work injury.  If your claim is rejected or underpaid you have the right to hire your own lawyer to contest the dispute.

Our lawyers have reviewed the cases of many injured workers that have been rejected or denied by work comp insurance companies.  In many of these rejected and denied cases we have been able to obtain our clients money and medical care.

Similarly, many people have come to us after being offered or paid small amounts of money.  In many of those cases we have been able to obtain additional compensation benefits for the clients.

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Under Iowa workers’ compensation law a worker can bring a review-reopening action to obtain additional compensation after an open file settlement or trial award if his functional impairment or loss of earning capacity has increased.  The worker has to prove that his worsening condition was proximately caused by the original injury. The worsening can either be physical or a reduction in the worker’s earning capacity.

An interesting angle relating to review-reopening actions was addressed in the December 14, 2018 appeal decision of Hayes vs. Eagle Window & Door, Manufacturing, Inc. and Old Republic Insurance Company.  The Workers’ Compensation Commissioner ruled that a review-reopening action could be based on an injury that previously existed, but which was unknown or could not have been discovered by the exercise of reasonable diligence at the time of the prior settlement or award.

In the Hayes case the Claimant was originally injured back on July 20, 2010 when he received an electrocution injury while working.  The case went to hearing on May 6, 2013 and resulted in an award of 15 weeks of permanent partial disability benefits.  At the time of the May 6, 2013 arbitration hearing the doctors had only identified that the Claimant had incurred minor bilateral arm injuries from the electrocution.

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The Iowa Workers’ Compensation Commissioner filed an Appeal Decision on November 30, 2018 in the case of Clay v. Bridgestone Americas and Old Republic Insurance Co.  The case involved a hernia claim with an injury date of October 25, 2013 and a low back claim with an injury date of June 27, 2014.  In this blog post I am going to first talk about hernia injuries, and then talk about the importance of maximum medical improvement in Iowa work comp cases.

  1. HERNIA INJURIES IN IOWA WORK COMP CASES

The Claimant had some abdominal pain in May and June of 2013.  The doctors were not able to find any explanation for the pain.  On October 25, 2013 the Claimant lifted a 50-pound bag as part of her job and felt a twinge in her stomach.  The October 25, 2013 pain continued and the Claimant saw several physicians before she was diagnosed with a hernia on December 27, 2013.

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The Iowa Workers’ Compensation law on when an employee is entitled to work comp benefits from a fall on the job has been very uncertain for a number of years.  On November 16, 2018 the Iowa Supreme Court issued a decision that helps clarify the Iowa law.  The Supreme Court case was Bluml v. Dee Jay’s, Inc. d/b/a Long John Silvers and Commerce & Industry Insurance Company.  In the Bluml case the Iowa Supreme Court set out different rules for different types of fall situations:

  1. Where an employee falls from an elevated position such as a ladder or scaffolding the injury will generally be compensable under Iowa Workers’ Compensation law.
  1. Where an employee falls while on stairs the injury will also generally be compensable under Iowa Workers’ Compensation law.
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Iowa workers’ compensation law defines a worker or employee as “. . . a person who has entered into employment of, or works under contract of service, express or implied or apprenticeship for an employer. . .”  In cases involving a dispute over whether or not the injured party was an employee, if the claimant establishes a prima facie case that he is an employee, the employer then has the burden of going forward with evidence which rebuts the Claimant’s status.

The primary issue in deciding whether or not the claimant is an employee is the intention of the parties.

The factors to be considered in assessing whether an employer/employee relationship exists are:

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In this blog post I am going to talk about two recent Iowa work comp alternate medical care decisions, and some related strategy advice.

  1. Be polite. The recent October 2, 2018 Alternate Medical Care Decision in the case of Stewart v. Hy-Vee, Inc. and EMC Property and Casualty Company involved an accepted left knee injury.  During the course of the case the claimant moved from Iowa to Lake Charles, Louisiana. The Defendants arranged care with an orthopedic surgeon at the Imperial Health Center located in Lake Charles, Louisiana.

 
The claimant was late for her first appointment with the orthopedic surgeon.  The claimant said she was 30 minutes late, and the doctor’s office said she was 90 minutes late.  The appointment had to be rescheduled.

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