Articles Posted in Strategy Advice

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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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The recent February 14, 2019 Iowa Workers’ Compensation Appeal Decision in the case of Bonde v. Pro Cooperative and Nationwide Agribusiness dealt with a situation in which there were no witnesses to the injury.

The Claimant reported that he fell while at work and injured his low back.  The Claimant explained he had slipped and fell on some loose soybeans on the icy parking lot.  There were no witnesses to the fall.  The fall itself happened on Thursday, February 19, 2015.  The Claimant was able to continue working throughout the day.  The Claimant came to work on the next day, on Friday, and was also able to work the entire day although he was in pain.  The Claimant was off work on Saturday and Sunday.  By Monday the Claimant’s back pain was worse and he reported the injury.

The employer and insurance carrier did not give the Claimant any instructions on going to a physician.  They did not provide any workers’ compensation benefits, and they did not give the Claimant any guidance on whether or not he should come into work.

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The Iowa workers’ compensation law on apportionment has gone through many changes based on statutory amendments by the legislature and judicial interpretations by the Courts.

In my last blog entry I talk about the January 17, 2019 workers’ compensation appeal decision of Byers v. Guardsmark, LLC and New Hampshire Insurance Company and concentrated on the parts of the case relating to injuries to older workers.

The Byers case also analyzed the issue of apportionment.  The Claimant in Byers had suffered severe back injuries in the late 1990s while working as a truck driver that had left him unable to work between the late 1990s and his employment as a security guard that began in 2014.  The Claimant suffered another severe back injury in 2014 while working.

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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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