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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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Under Iowa workers’ compensation law the issue of apportionment has been an unclear area that has led to a great deal of litigation.  Iowa Code Section 85.34(7)(b)(1) covers injuries that occurred before July 1, 2017 and provides:

“If an injured employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable under the same paragraph of subsection 2 as the employee’s present injury, the employer is liable for the combined disability that is caused by the injuries, measured in relation to the employee’s condition immediately prior to the first injury.  In this instance, the employer’s liability for the combined disability shall be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer.”

The Iowa Workers’ Compensation Commissioner issued a decision on August 31, 2018 in the case of Haltom v. JBS USA, LLC and American Zurich Insurance Company.  The Haltom case deals with the issue of apportionment, and also addresses a complex set of facts involving multiple injuries.

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Under Iowa law the Defendants in workers’ compensation cases are required to provide reasonable medical care for work-related injuries.  An injured worker who is unhappy with the medical care they are receiving can bring what is called an application for alternate medical care to attempt to get his medical care changed.  An application for alternate medical care is not automatically approved, and it is not enough that the injured worker is dissatisfied with the care that he has been receiving.  The Iowa rules require that the injured worker must show that the care was not offered promptly, was not reasonably suited to treat the injury, or that the care was unduly inconvenient.

Additionally, the Iowa Workers’ Compensation Commissioner can order alternate medical care when the employer-authorized care has not helped, and the injured worker can show that the authorized care is inferior or less extensive than the care requested by the injured worker.

Another important rule in Iowa workers’ compensation is that the employer’s right to select the provider of medical treatment for an injured worker does not include the right to choose how the injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment.  In other words, work comp defendants are not entitled to interfere with the medical judgment of their own treating doctors.

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Going all the way back to 1920, Iowa workers’ compensation law has always been that employers hire an employee subject to any active or dormant health problem which renders a worker susceptible to injury, and the employer must exercise care to avoid injury to both the weak and infirm and the strong and healthy.

A material aggravation, worsening, lighting up or acceleration of any prior condition has been viewed as a compensable event ever since the initial enactment of the Iowa Workers’ Compensation Statutes.

Over the years there have been numerous Iowa workers with preexisting conditions who recovered workers’ compensation benefits based on the principle that the worker’s physical labor accelerated their preexisting condition.

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Under Iowa law head and back injuries are both compensated under an industrial disability analysis.  Industrial disability tries to measure a worker’s loss of earning capacity, and not just the functional disability from an injury.  Functional impairment is an element to be considered in determining the loss of earning capacity, but consideration must also be given to the injured worker’s age, education, qualifications, experience, motivation, loss of earnings, severity situs of the injury, work restrictions, inability to engage in employment for which the worker is fitted, and the employer’s offer of work or failure to so offer.  Loss of industrial disability/loss of earning capacity is paid as a percentage of 500 weeks.

In the recent July 3, 2018 appeal decision of Bahe v. Iowa Department of Transportation, the Workers Compensation Commissioner affirmed a decision relating to a case in which the worker suffered both a head injury and back injuries.

The claimant was injured while operating a snow plow during a blizzard as part of his job with the DOT.  The snow plow went off the road and into a ditch.  The claimant was unconscious when he was found by emergency responders.  The medical providers documented that he had a large contusion on the top of his head.  The initial assessment by the doctors was that the claimant had suffered a closed head injury and concussion.

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