Articles Posted in Workers’ Compensation Injuries

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The Supreme Court filed a very interesting decision on May 31, 2019 in the case of Robert W. Milas, M.D. v. Society Insurance and Angela Bonlander.

Dr. Milas brought a lawsuit against a workers’ compensation insurance company and one of its adjusters alleging that they went back on a promise to pay Dr. Milas $14,325.87 for a complex neck surgery, and that those actions constituted both breach of contract and fraudulent misrepresentation.

Dr. Milas is a board-certified neurosurgeon in the Quad Cities.  The disputes began when Society Insurance hired Dr. Milas to perform a neck surgery for an injured worker.

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Under Iowa law if the payment of weekly benefits to an injured employee is denied, delayed or terminated, and the employer cannot show a reasonable cause or excuse, then the injured worker is entitled to be awarded penalty benefits.  Penalty benefits are in addition to the benefits that were not properly paid.  The penalty benefits can be up to 50% of the amount of the weekly benefits that were not properly paid.  The exact amount of the penalty benefits is up to the discretion of the work comp judges.

Unfortunately, some employers and insurance companies do a very poor job of paying weekly benefits in the correct amount and in a timely manner.

Set out below is a modified version of a Post Trial Brief I filed in a case involving very serious injuries and terrible compliance by the insurance company in paying the benefits that were owed.  I have changed the names and dates for privacy purposes.

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Today I just have a short post about a new Iowa law designed to overrule an Iowa Supreme Court case that was decided on November 21, 2018. The case in question is Bluml v. Dee Jay’s, Inc. d/b/a Long John Silvers and Commerce & Industry Insurance Company. I wrote about the Bluml case back on November 21, 2018. You can see my entire article about the Bluml case here.

Part of my take-away from the Bluml case was that the Iowa Supreme Court helped sort out how different types of falls would be handled in Iowa workers’ compensation cases:
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The Iowa Supreme Court issued a decision on May 3, 2019 in the case of Clark, Dusabe, Ezeirig, Green, Tarpeh, and Nyonee v. Insurance Company State of Pennsylvania.  The case involved employees who were injured by chemical exposure.  The employees brought a civil lawsuit against the work comp insurance company based on the insurance company inspecting their factory and failing to address the chemical exposure problems.

The workers’ chemical exposure lawsuit was also against the employer and a number of individuals.  The Supreme Court’s decision of May 3, 2019 only ruled on the claims against the work comp insurance company.

The work comp insurance company argued that it had immunity pursuant to Iowa Code Section 517.5 which provides:

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The Iowa Workers Compensation Commissioner entered a recent Appeal Decision on March 19, 2019 in the case of Tammy Roberson v. Sears Holdings Corporation and Indemnity Insurance Company of North America which  highlights the importance of expert opinions in Iowa work comp cases.  In some situations it is very clear that an injury was caused by work.  This would be where a worker is struck by a forklift, cut by a knife, etc.  However, in many other situations, it is not always clear whether an injury was caused by cumulative trauma at work or whether an injury was unrelated to work and just caused by natural degenerative changes.

Under Iowa law, the cause of an injury is essentially within the domain of expert testimony.  The Work Comp Commissioner considers the expert medical evidence along with all of the other evidence in the case.  Testimony from non-medical witnesses may be used to support or attack expert opinions.  The amount of weight to be given to an expert opinion is determined initially by the Deputy Work Comp Commissioners at trial, and then by the Commissioner if the case is appealed.  The Deputy Commissioners and the Commission have the power to accept or reject expert opinion either in whole or in part.

In the Roberson case, the Claimant was 53 years old at the time of trial.  She had a high school education.  The Claimant also had an extensive and varied work history.  She had worked as a flagger on a construction crew.  She had worked as a supervisor of tar pickers, power washers and ropers.  The Claimant had also worked as a bartender, waitress and a cook.  She had worked as a shipping and receiving clerk.  She had worked as a CNA.  She had worked as a planter in a greenhouse. She had worked in a grocery store as a cash register operator and stocking shelves and working at the customer service desk.  She had worked for a railroad support company and drove railroad crews around the country.  Her job with Sears Holdings Corporation included customer service, stocking, inventory, assembly, shipping, and operating a forklift.

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A Somatic Symptom Pain Disorder is a condition in which the patient’s subjective pain profile is higher than what would be expected for the physical injury.  Doctors who work in the area of pain disorders find that approximately 5% of all pain clinic patients have Somatic Symptom Pain Disorder.  Under Iowa law an injured worker who has developed Somatic Symptom Pain Disorder is entitled to receive workers’ compensation benefits.

On February 26, 2019 the Iowa Workers’ Compensation Commissioner filed an Appeal Decision in the case of Swanger v. Cloverleaf Cold Storage and AIG Insurance that dealt with a Somatic Symptom Pain Disorder.

The Claimant suffered a stipulated low back injury on June 24, 2014.  An MRI showed a small low back disc herniation and an annular tear in the low back.

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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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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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