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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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I decided to look for a Christmas related topic for this work comp blog entry.  The 2002 workers’ compensation case of Smith v. Carl A. Nelson & Company and Wausau Insurance Companies had a Christmas tie-in.  The Claimant was a construction worker with Carl A. Nelson & Company and generally performed concrete work.  The Claimant was laid off during the winters.  The Claimant underwent regular performance reviews and his productivity before his work injury had always been rated as “exceptional.”

In May of 1999 the Claimant suffered a low-back injury.  The Claimant received conservative treatment and did not undergo surgery.  However, he was off work for the remainder of the 1999 construction.  The Claimant was not able to return to work until May of 2000.  The Claimant testified that he had a difficult time performing his usual duties during the 2000 construction season and co-workers had to help him.

In late fall of 2000 the Claimant was placed on his usual winter lay off.  At the start of the lay off the Claimant was not worried about his job, but he testified he figured he was in trouble when he was not invited to the annual Christmas party.  The Claimant was not called back to work in the spring of 2001.

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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 law provides that for work injuries prior to July 1, 2017 an employer is fully liable for compensating all of an injured worker’s disability that arises out of and in the course of the employee’s employment with the employer.

However, Iowa Code Section 85.34(7)(b)(2) provides that where a worker suffers two industrial disability injuries with the same employer, the worker should be paid industrial disability based on the combined disability from the two injuries; and the employer should receive a credit for the benefits paid for the first injury.

The Iowa Workers’ Compensation Commissioner filed an Appeal Decision on November 5, 2018 in the case of Ditsworth v. ICON Ag, Federated Insurance and Nationwide Insurance examining an apportionment situation.

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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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Under Iowa law two of the factors that the Workers’ Compensation Commissioner take into account in assessing the extent of work injuries are the motivation of the injured claimant to return to work and the credibility of the injured worker.  The recent September 24, 2018 work comp appeal decision of Marshall v. Menard, Inc. and Praetorian Ins. Co. provides a good example of how poor motivation to return to work and credibility problems can limit the amount of damages awarded to an injured worker.

In the Marshall case the claimant was 55 years old at the time of hearing.  She had training in hair design and as a medical assistant.  Her work history included working on the family farm; working in the Players Club area of a casino; working in hospitals and dental offices; working at a 911 center; and working as a Juvenile Correctional Officer at a Juvenile Detention Center.

Prior to the injury the claimant was in very good physical condition.

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Under Iowa law the amount of compensation an injured worker is entitled to receive is determined by one of two methods.  If the injury is to a body part listed in the schedule of Iowa Code Section 85.34, the disability is measured functionally.  The most persuasive functional measurements are pursuant to the AMA Guides to the Evaluation of Permanent Impairment.  The scheduled injuries and the maximum permanent compensation for each body part are as follows:

Shoulder. . . 400 weeks of permanent partial disability benefits;

Leg . . . 220 weeks of permanent partial disability benefits;

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If a work comp case goes to trial and the injured worker has not yet reached maximum medical improvement, and is not capable of working, then the worker is given what is called a running award.  This means that the Claimant is entitled to receive weekly healing period benefits until the worker does reach maximum medical improvement or is able to return to work.  On reaching maximum medical improvement or returning to work, the worker would then be entitled to receive permanent partial disability benefits.

Kramer v. Dohrn Transfer Company, Inc. and American Zurich Insurance Co. is a July 12, 2018 appeal decision from the Iowa Workers’ Compensation Commissioner that deals with a contested running award situation.  The employee was a truck driver who suffered a mental health injury from a May 23, 2014 motor vehicle accident while driving for his employer.  The other vehicle involved in the accident failed to stop at a stop sign.  The 18-year-old driver of the other vehicle died in the accident.

The Claimant was very distraught about the accident and stayed off work until June 4, 2014.  The Claimant then returned to work through January 14, 2015.  During the approximate seven months between June 4, 2014 and January 14, 2015 the Claimant was having a lot of problems.  He blew up at his supervisors one day when they asked him to deliver tires.  One of his supervisors took him off work for a day because the Claimant was having problems.  The Claimant saw a number of doctors and received medication.  The Claimant reported to his doctors that he was anxious about driving.  The Claimant’s mother also died on July 20, 2014 and this was an additional source of stress.

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