On September 25, 2019 the Iowa Court of Appeals ruled in favor of one of my clients where we were requesting a second IME at the expense of the Defendants in the case of Ostwinkle v. Mathy Construction Company.
The background of the case is as follows. The worker suffered an accepted low back injury on July 23, 2013.
On August 12, 2016 Chad Abernathey, M.D. provided an impairment rating for the Employer and Insurance Carrier.
The Iowa Workers’ Compensation Commissioner issued an Appeal Decision on July 3, 2019 in the case of Rhonda Tucker v. Menards, Inc. and Praetorian Insurance Co. dealing with a review-reopening.
In a review-reopening action an injured worker can recover additional benefits if their condition has worsened since the original settlement or trial award. The injured worker has the burden of proof to show that their condition has changed since the original award or settlement was made and that the change in condition relates back to the original injury. The change of condition can either be based on physical changes or economic changes.
The claimant in the Tucker case was 58 years old. She did not graduate from high school but did obtain a GED. The claimant worked at Menards for 22 years. She previously worked 15 years for a competing hardware chain, and a few years as a receptionist.
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.
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.
In one of my cases the Defendants obtained an impairment rating of my client’s injuries, and I was able to obtain an independent medical exam with a doctor of my choice to obtain a competing impairment rating at the expense of the Defendants. That part of the case is very standard.
The unusual part was that the Defendants then obtained a second impairment rating. I filed a Petition to obtain a second independent medical exam with a doctor of my choice at the expense of the Defendants.
I went ahead and got the independent medical exam, and have since been fighting with the Defendants about getting reimbursed for the second independent medical exam. I won the dispute in front of the Workers’ Compensation Commissioner. That led to an Appeal by the Defendants to the District Court where I also won.
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:
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.
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.
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:
Iowa Workers' Compensation Lawyer Blog