Unfortunately, injuries will sometimes worsen after a workers’ compensation case is resolved.  The Iowa Workers’ Compensation Commissioner recently issued an Appeal Decision in the case of Dautovic v. Concord Hospitality and PMA Insurance Group and Zurich American Insurance which analyzes the legal implications of a worsening injury.

The claimant in Dautovic began working for a Marriott Hotel run by Concord Hospitality in 1997.  The claimant’s job involved a lot of heavy work including deep cleaning of rooms and hallways, working with laundry, and moving furniture.

The claimant originally injured his low back on the job in early 2006 when lifting a bed frame.

The claimant went through over two years of conservative treatment until he finally underwent low back surgery in 2008.  Within a few months the claimant returned to full-duty work at the hotel.  In late 2009 the claimant and the work comp insurance company, PMA Insurance Group, settled the 2006 low back injury for 20% industrial disability which equaled 100 weeks of PPD benefits.

The claimant was able to perform his regular work functions until approximately 2011 when his back symptoms began to worsen.

From 2011 through July of 2013 the claimant saw many physicians to evaluate his worsening condition.  The doctors generally agreed that surgery would not help, but a number of the doctors thought that a spinal cord stimulator might prove helpful.

In July of 2013 the claimant did undergo his second low back surgery.  The surgery was very helpful, and the claimant reported that his condition was 70-80% improved.

The claimant underwent a functional capacity evaluation in January of 2014.  The functional capacity evaluation placed the claimant in the medium physical demand category.  The claimant’s job at the hotel was at least a heavy demand category job and perhaps a very heavy demand category job.

As a result of the functional capacity evaluation the claimant was given work restrictions of lifting no more than 20 pounds on an occasional basis only, and only performing occasional bending, twisting, or stooping.  The hotel notified the claimant that they did not have any work available within his restrictions and terminated his employment.

Following his termination the claimant brought a workers’ compensation claim arguing two theories of recovery:

  1. He had suffered a new work injury that had led to his 2013 surgery.
  2. His 2006 injury had gotten worse. In the Iowa workers’ compensation system this is called a review-reopening action.

By the time the hotel terminated the claimant in 2014 they had changed workers’ compensation insurance companies from PMA Insurance to Zurich American Insurance.  If the claimant could prove he was entitled to a review-reopening of his original 2006 injury, then the PMA Insurance Group would have to pay the damages.  Alternately, if the claimant could prove that he had suffered a new 2013 injury, then Zurich American Insurance Company would have to pay.

The Iowa Supreme Court held in the case of Excel Corp. v. Smithart, 654 N.W.2d 891, 900 (Iowa 2002) that the rule for determining whether an injured worker had suffered a new injury was:

“The standard that must be met to establish two separate work-related injuries requires claimant to demonstrate a distinct and discreet disability attributable to work activities that occurs after an initial injury.  It is not enough for the worker to show disability has been increased by the subsequent work activities.  These circumstances may serve to increase the disability attributable to the first injury, but do not establish a second and discreet disability.  To establish a separate injury claim the subsequent condition of the claimant must not be a consequence of the first injury.”

Both of the insurance companies presented multiple experts to try to shift the risk to the other insurance company.  The Iowa Workers’ Compensation Commissioner ruled that all of the claimant’s problems were attributable to the first injury.  As a result, Zurich American Insurance was out of danger.

Therefore, the remaining issue in the case was whether the claimant’s condition had worsened so that he could recover under a review-reopening action.

To win in a review-reopening action the claimant has to show a change in condition related to the original injury since the time of the original award or settlement.  The change may be either economic or physical.  A claimant is not entitled to bring a review-reopening action if he entered into a closed file settlement.

The Iowa Workers’ Compensation Commissioner ruled that the claimant was entitled to win his review-reopening action based on both an economic change and a change in his physical condition.

The Commissioner found that the claimant’s economic situation had changed because he was no longer employed by the hotel.  Additionally, he was not able to find alternate employment.

The Commissioner also found that the claimant’s physical condition had changed in that his pain had increased and he now had work restrictions.

On the issue of damages the Commissioner decided that the claimant did not quite qualify for permanent total disability.  Although he was 54 years old and his relevant work experience was in heavy manual labor, the Commissioner decided that the claimant was not particularly motivated to find alternate work.

Therefore, the Commissioner ruled that the claimant was entitled to 90% industrial disability.  90% industrial disability is worth 450 weeks of benefits.  PMA Insurance Group was given a credit for the 100 weeks of benefits they had paid originally.  Therefore, PMA Insurance Group was required to pay an additional 350 weeks of PPD benefits.

Please be sure to contact our office if you have any questions about changes in your injuries and review-reopening actions.