HOFFMANN LAW FIRM, PC

Disclaimer

It should be noted that these summaries, are just that, and do not contain all facts or all holdings of the decisions summarized. The words used are, for the most part, from the Court's summaries or the decisions themselves, selectively edited, cut and pasted from those decisions. We make no claim that these summaries are correct in their interpretation of the facts, the eventual outcome of the case, whether any appeal or further review has been sought or granted, or whether the decision has been reversed or modified on appeal or review, or whether the decision's holding's have been reversed or modified in a later decision or by statute, or whether the the decision summarized has been published, or the specifics or current language of the statutes cited, and further makes no claim as to the applicability of any of the summaries or statutes to situations under consideration by the reader. They are not not to be considered as legal advice applicable to any specific matter, the full text of any decision should always be fully examined by counsel, and its value and current viability determined by that counsel.

SUPREME COURT

BELL BROTHERS HEATING AND AIR CONDITIONING v. GWINN, 07-0221 (3-5-10)

Employer seeks further review of court of appeals decision affirming district court's affirmance of an award of workers' compensation benefits to an employee. DECISION OF COURT OF APPEALS VACATED; DECISION OF DISTRICT COURT REVERSED AND CASE REMANDED.

We primarily consider the proof required by the employee to establish a claim for benefits and expenses on account of unauthorized medical care.

We do not believe the statute can be narrowly construed to foreclose all claims by an employee for unauthorized alternate medical care solely because the care was unauthorized. Instead, the duty of the employer to furnish reasonable medical care supports all claims for care by an employee that are reasonable under the totality of the circumstances, even when the employee obtains unauthorized care, upon proof by a preponderance of the evidence that such care was reasonable and beneficial. In this context, unauthorized medical care is beneficial if it provides a more favorable medical outcome than would likely have been achieved by the care authorized by the employer. The allocation of this significant burden to the claimant maintains the employer's statutory right to choose the care under §85.27(4), while permitting a claimant to obtain reimbursement for alternate medical care upon proof by a preponderance of the evidence that such care was reasonable and beneficial.

The employer's right to control medical care attaches under the statute when the employer acknowledges compensability following notice and furnishes care to the employee, and it remains with the employer under the statute until the employer denies the injury is work-related, withdraws authorization of the care, or until the commissioner orders alternate care. Thus, a denial of compensability that results in the employer's loss of the right to choose the medical care is a denial that the claimed injury arose in the course and scope of employment. A dispute between the parties as to the nature or extent of a physical or mental disability arising from an injury for which the employer has acknowledged liability during the time medical care is controlled by the employer, is not a ground, standing alone, for a determination that the employer has forfeited its right to select the medical care.

Although an employee may assert a claim for expenses of the unauthorized medical care, the employee must prove the unauthorized care was reasonable and beneficial under all the surrounding circumstances, including the reasonableness of the employer-provided care, and the reasonableness of the decision to abandon the care furnished by the employer in the absence of an order from the commissioner authorizing alternate care. Consistent with the rationale for giving the employer control over medical care, the concept of reasonableness in this analysis includes the quality of the alternate care and the quality of the employer-provided care.

Here there was no substantial evidence in the record to support a finding that the alternate medical care claim was reasonable and beneficial under all the circumstances. Three reasons primarily support this conclusion:

First, there was no substantial evidence that the results of the surgery were beneficial.

Second, there was no evidence that the Claimant's physician's diagnosis was in fact reasonable or accurate.

Third, under the factual scenario presented here, the Employer was denied an opportunity to review the ultrasound study and the reports from the surgery performed, crucial evidence bearing upon whether the alternate care was reasonable in this case. Defendants' ability to assess and litigate the reasonableness of the alternate care for which Claimant sought reimbursement and its right to control the medical care were consequently undermined.

Without substantial evidence to support a finding that the unauthorized medical care was reasonable and beneficial under the totality of the circumstances, there was no evidence to support a finding that the temporary disability on account of the unauthorized casting and surgery was causally related to the injury.

To establish a claim for alternate medical care, an employee must show that the medical care furnished by the employer is unreasonable.

The arbitration hearing that served as a basis for this appeal was premature. Not only was Claimant's claim for permanent partial disability benefits premature, but so were his claims for temporary benefits and the cost of the unauthorized medical care. These claims can only be properly evaluated when Claimant has reached maximum medical improvement, and the results of the unauthorized surgery are known.

SUPREME COURT

IBP, INC. v. BURRESS, 07-1887 (3-5-10)

Employee challenges district court's determination that his brucellosis was an occupational disease and not an injury. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO REMAND TO INDUSTRIAL COMMISSIONER.

Despite the fact that brucellosis is discussed in Chapter 85A, the record supports the conclusion Burress probably acquired brucellosis from contact with infected hog blood. IBP did not present any evidence indicating Burress had contracted brucellosis in a manner consistent with the definition of occupational disease in §85A.8. It simply relied on the reference to brucellosis in §85A.11. His claim for benefits was properly brought under Iowa Code Chapter 85 (2009).

Nonetheless, because the commissioner relied on an erroneous date to trigger the commencement of the ninety&endash;day period for giving notice of a claim under chapter 85, we remand this case to the district court with instructions to remand to the commissioner for a new determination of the issue of Burress' compliance with the ninety&endash;day notice requirement.

The discovery rule can be applied to both the statute of limitations and the ninety-day notice requirement. IBP bore the burden to prove non-compliance with the statute of limitations or ninety-day notice provision and Burress bore the burden to establish any discovery rule exception. Burress established the discovery rule applies here because the nature of the initial traumatic event, the entry of infected hog blood into his body, was not such that Burress should have realized it produced a compensable injury. Burress was first diagnosed with brucellosis in December 2003 and filed a workers' compensation claim against IBP in January 2005, well within the two-year statute of limitations even if we assume he first became aware of the connection between brucellosis and his work at IBP at the time of his diagnosis.

IBP argues, however, that Burress became aware of the compensable nature of his brucellosis when he was first diagnosed on December 16, 2003, and that this was more than ninety days prior to the date on which IBP received notice. IBP received notice of a potential claim by letter on April 13, 2004. The ninety-day notice period does not begin until Burress became aware of the compensable nature of his injury. The agency applied the discovery rule and held the ninety-day notice requirement did not begin to run until December 8, 2004, the date on which Dr. Nauseef wrote a letter asserting the causal link between brucellosis and IBP. This determination is not supported by substantial evidence because Burress was aware of the potential connection earlier, as indicated by the April 13, 2004 letter from Burress' attorney alerting IBP to the potential claim. Because we have no factual findings by the commissioner in this regard, we remand to the commissioner for a determination of whether Burress complied with the ninety-day notice statute.

The rule providing a mechanism for a cross-appeal conflicts with the rule for defining issues by the briefs because Burress would have been required to file a cross-appeal before learning of the issues designated in IBP's brief. Although the language of IAC 876&emdash;4.28(7) could be interpreted to require Burress to file a cross-appeal, given the disparity in timing when a party such as IBP files a generalized and comprehensive notice of appeal, it was not improper for the commissioner to consider an additional issue.

Because Burress contracted brucellosis from a traumatic event, it is an injury, not an occupational disease, and his claim is not barred under the statute of repose applicable to occupational disease claims. We hold the commissioner's factual finding regarding application of the discovery rule to the ninety-day notice provision was unsupported by substantial evidence. We remand to the district court with instructions to remand the case to the commissioner for reconsideration of the ninety-day notice provision on the record previously made. Additionally, (1) Burress filed his claim within the statute of limitations governing work-related injuries; (2) it was not an abuse of discretion for the commissioner to consider the extent of Burress' disability on intra-agency appeal, and substantial evidence supported an award of permanent total disability; and (3) the award of penalty benefits was improper because IBP had a reasonable basis to contest Burress' entitlement to benefits.

SUPREME COURT

ROJAS v. PINE RIDGE FARMS, L.L.C., 08-0554 (3-5-10)

Dependents of a deceased employee appeal a district court decision affirming the allocation of workers' compensation death benefits. DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.

We find that §85.31(5), requiring a reduction in benefits for nonresident aliens, is neither unconstitutional nor does it conflict with §85.51. We further find the commissioner erred when he allocated a portion of the benefits to Yolanda, the mother of Raul's Mexican children. Although the commissioner was correct when he allocated the death benefits equitably rather than equally, he also erred by considering the effects of the reduction contained in §85.31(5) for nonresident aliens when he allocated the benefits.

AGENCY APPEAL

FLORES v. TYSON FOODS & SECOND INJURY FUND OF IOWA, 5026125, 5026126, 5026127 & 5028349 (2-26-10)

The reasoning in Kratzer lays to rest any assertion that the Supreme Court will read the phrase "another such member" within the context of other parts of the Second Injury Fund Act or the Iowa workers compensation statute overall when the Court is confronted with the issue in this case; namely, whether the Second Injury Fund is liable for residual loss of earning capacity a claimant may have after the same members have been sequentially injured in both a first and a second single accident. Clearly, the Court will hold that first and second injuries to the same members in separate single accidents will result in Second Injury Fund liability. WALLESER

AGENCY APPEAL

DANIELS v. BLACK HAWK COUNTY, 5023419 (2-25-10)

While a treating physician is not to be given more weight as a matter of law, what can be considered is his far greater familiarity with claimant's clinical presentations over a number of months and claimant's complaints to him during that time. He is in a much better position to diagnose a condition and opine as to the cause of that condition. Claimant's complaint that the treating physician failed to examine her immediately before issuing his last opinions and that he did not discuss her history in those opinions are unfounded. The treating physician examined her many times during his treatment and discussed histories provided to him by her in his office notes.

While I agree that an opinion authored by an party's attorney is a concern, that aspect was not sufficient to reject the doctor's opinion. Denial of benefits AFFIRMED. WALSHIRE

AGENCY APPEAL

FLOWERS v. PELLA CORPORATION, 5024401 (2-25-10)

Claimant chose to take FLMA leave in 2004 when an absence from work was mandated by her doctors. All paperwork submitted to Pella for the FLMA and after that time for a period of three years concerning absences needed for treatment and numerous work restrictions failed to indicate that this back problem was work related. Indeed, in March 2006, she applied for and received Pella short-term disability benefits in which she certified that her neck and back problems were not work related. Even after she was laid off at Pella in April 2007 due to her work restrictions, a time when she clearly knew that her back condition was work related and would permanently impact her employment, claimant made no effort to inform Pella that her back or neck condition was work related until she served the original notice and petition on Pella in December 2007, well beyond the 90 days notice requirement §85.23. The failure to act after she was laid off cannot be justified then by a fear of losing her job. Denial of benefits AFFIRMED. WALSHIRE

AGENCY APPEAL

TOWNSLEY v. DEPARTMENT OF TRANSPORTATION, 5022273 (2-25-10)

Claimant was obese before this injury and quite susceptible to this kind of injury and disability and this obesity has hindered recovery. However, one of the most fundamental concepts in our worker's compensation system is that an employer takes an employee "as is" subject to all of his or her frailties and susceptibilities to injury caused by any pre-existing physical or mental condition. Permanent total disability AFFIRMED. WALSHIRE

COURT OF APPEALS

HUFFMAN v. AADG, INC., 0-093 / 09-1007 (2-24-10)

Plaintiff appeals a district court order granting summary judgment to AADG, Inc., his employer. He claims that because he filed two workers' compensation claims, he was not allowed to return to work for a period of time, was reassigned to jobs with lower pay, and was subjected to a hostile work environment. He alleges that this conduct was retaliatory and actionable under Iowa law. OPINION HOLDS: I. Even assuming a worker who has been constructively discharged for filing a workers' compensation claim has a cause of action in Iowa, no reasonable factfinder could conclude that Huffman has been constructively discharged. II. We need not address whether an employee has an actionable claim when an employer demotes him or her in retaliation for filing a workers' compensation claim, because Huffman was not demoted. Here, Huffman challenges his employer's failure to find him work during the period when he was receiving temporary disability benefits. Huffman does not, however, question the adequacy of the benefits he received. In short, Huffman seeks to establish a new common law claim for "failure to take an employee off temporary disability." We believe this new claim would improperly intrude upon the workers' compensation system, and is foreclosed by §85.20 (2007). III. Huffman's claim that he was subjected to harassment for having filed workers' compensation claims is squarely foreclosed by Below v. Skarr, 569 N.W.2d 510 (Iowa 1997).

COURT OF APPEALS

HODSON V. WYCOFF IND., 9-1058 / 09-0914 (2-24-10)

Employee appeals from a district court judicial review ruling affirming the denial of additional permanent benefits in a review-reopening proceeding. OPINION HOLDS: We reverse and remand for the commissioner to determine, on the record already made, whether claimant has met the newly-clarified burden of proof enunciated in Kohlhaas v. Hog Slat, Inc., ___ N.W.2d ___ (Nov. 24, 2009).

AGENCY APPEAL

SHEA v. MC AND R POOLS, INC., 5019876 (2-22-10)

A denial supportable at the time it is made may later lack a reasonable basis in light of subsequent information. Defendants were responsible to pay all accrued benefits as of the date that the claim was no longer fairly debatable. As defendants failed to do so the amount of the penalty as assessed by the presiding deputy is also affirmed.

SUPREME COURT

JACOBSON TRANSPORTATION COMPANY v. HARRIS, 08-0065 (2-12-10)

Employee seeks further review of court of appeals' decision reversing workers' compensation commissioner's calculation of a weekly compensation rate and which weeks should be used to calculate average weekly wage. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Customary earnings does not turn on a determination of what earnings are guaranteed or fixed; rather, it asks simply what earnings are usual or typical for that employee. An employee need not justify the variance with a particular explanation.* The amount of the variance alone, by the magnitude of its departure from the usual earnings of the employee, may suffice to justify the exclusion of a week's earnings from the weekly rate calculation. Even an employee whose wages fluctuate can have an unusually low or abnormally high week of output and resulting earnings. The legislature clarified its intent in the 2000 amendment to have atypical weeks excluded from the calculation, it added the language to § 85.36(6) which specifically addresses the calculation of weekly earnings for employees paid daily, hourly, or by output. An employee who is paid by output (truck driver's miles driven), is likely to have fluctuating earnings.

A week of zero earnings is not customary. Determination of whether wages are customary under the circumstances is a matter expressly committed to the discretion of the commissioner.

The commissioner's decision that compensation during three low weeks was exceptionally low, while the high weeks were not unusually high when compared to the earnings history was not arbitrary or unreasonable in this case. The legislature has provided protection to the employer from the risk of rate calculations based on weeks of unusually high earnings by excluding overtime and premium pay from average weekly wage computations.

*Note, the reason for nontypical wages is relevant if the employee was absent from work for reasons personal to the employee. § 85.36(6) provides for a different method of addressing a nontypical week of earnings due to personal reasons. In that case, the weekly wages must be replaced with the wages the employee "would have earned had the employee worked when work was available" to the employer's workers performing in a similar occupation.

COURT OF APPEALS

COOPER v. KIRKWOOD, 9-894 / 08-1052 (2-10-10)

Cooper appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. On appeal, Cooper's employer, Kirkwood Community College, and its insurance carrier, IMPAC, assert the district court did not have subject matter jurisdiction over Cooper's petition for judicial review and hence the appeal should be dismissed. OPINION HOLDS: We find Cooper's petition for judicial review was not filed according to the requirements of Iowa Code chapter 17A (2005). In the present case&emdash;Kirkwood's application for rehearing was pending when Cooper petitioned for judicial review. Therefore, the district court did not have subject matter jurisdiction over the petition  We reverse and remand for the district court to enter an order of dismissal. DISSENT ASSERTS: I would conclude that Cooper's petition for judicial review was timely and satisfied the procedural prerequisites of Iowa Code section 17A.19. Accordingly, I would reach the merits.

COURT OF APPEALS

PENFORD PRODUCTS v. AHLBERG, 9-1023 / 09-1162 (2-10-10)

Ahlberg appeals from the district court's ruling on judicial review, which reversed the Iowa Workers' Compensation Commissioner's award of penalty benefits assessed against Penford Products Company and its insurer, Zurich American Insurance Company. OPINION HOLDS: It is the employer's burden to assert facts upon which the agency could reasonably find the claim was "fairly debatable." As the commissioner determined, Penford failed to present such facts. We reverse the district court's decision, as the agency's decision was supported by substantial evidence and not based on an erroneous application of the law. 

COURT OF APPEALS

SWIFT & CO. v. FREEMAN, 9-980 / 09-0808 (2-10-10)

Employer appeals from a district court judicial review ruling affirming the workers' compensation commissioner's benefit award. OPINION HOLDS: Substantial evidence supports the agency's determination claimant suffered a whole body injury. Substantial evidence supports the agency's determination claimant is permanently and totally disabled. Freeman's altered gait developed from the left leg injury and aggravated his underlying degenerative arthritis in the left hip and low back, making those conditions a part of the injury. The agency's order for alternative medical care is appropriate. Offering no care is the same as offering no care reasonably suited to treat the injury.

SUPREME COURT

SECOND INJURY FUND OF IOWA vs. KRATZER, 06-0542 (1-29-10)

Does the first injury to Kratzer's Right Leg Qualify as a First Injury Under Iowa Code § 85.64? The resolution of this issue is controlled by our decision filed in Gregory v. Second Injury Fund, ____ N.W.2d ____ (Iowa 2010). See, below. For the reasons stated in Gregory, we conclude the 1994 injury to Kratzer's right leg does qualify as a first injury for Fund purposes.

It is beyond dispute that an injury qualifies as a second injury for Fund purposes if it (1) follows a previous disability to an enumerated member and (2) results in "the loss of or loss of use of another such member." Iowa Code § 85.64. The meaning of the phrase "another such member" is subject to at least two reasonable interpretations. A reasonable person could read the phrase within the context of the other parts of the statute to suggest the General Assembly intended to impose liability on the Fund only if the second disabling injury occurred in an enumerated member that was not previously impaired. On the other hand, the phrase could also be reasonably understood as an expression of the General Assembly's intention that any disabling injury to an enumerated member, including one that was previously partially disabled, may qualify as a second injury so long as the member in question is not the same member upon which the claimant relies for proof of the first qualifying injury. Upon consideration of well-established principles of statutory interpretation, we conclude the latter interpretation is the correct one.

AGENCY APPEAL

SMITH v. MIDWEST MANUFACTURING CO., 5025093 (1-25-10)

In affirming the findings of the presiding deputy the undersigned is unwilling to reject the medical opinions by Robert C. Jones, M.D., based upon a generalization of his history of medical opinions contained outside of this record. The undersigned is unaware of what medical opinions have been presented in other cases or opinions that may have been prepared in cases which never reached this agency.

SUPREME COURT

GREGORY vs. SECOND INJURY FUND OF IOWA, 07-1764 (1-22-10)

Gregory contends the commissioner erred in concluding her 2000 left-hand injury cannot qualify as a first injury under section 85.64. The Fund asserts the commissioner correctly concluded Gregory's first injury resulting in impairment to more than one member enumerated in the statute, considered for purposes of workers' compensation together with impairment to Gregory's shoulders in determining disability to her body as a whole, cannot qualify as a first injury under the statute.

The Fund's salutary purpose is accomplished by an award of compensation after a second qualifying injury to "an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye." Iowa Code § 85.64. Thus, Gregory's entitlement to benefits from the Fund is dependent upon proof of the following propositions: (1) she sustained a permanent disability to a hand, arm, foot, leg, or eye (a first qualifying injury); (2) she subsequently sustained a permanent disability to another such member through a work-related injury (a second qualifying injury); and (3) the permanent disability resulting from the first and second injuries exceeds the compensable value of "the previously lost member."

Given our decision in George that a subsequent injury to an enumerated member is not disqualified as a second injury merely because it occurred simultaneously with an injury to another enumerated member, we believe it would be senselessly inconsistent to conclude a first qualifying injury cannot likewise occur simultaneously with an injury to another such member.

Moreover, the fact that the physical impairment of Gregory's left hand was presumably considered by the parties when they negotiated a compromise special case settlement of Gregory's claim for the first injury will not impede the calculation of the Fund's credit for the compensable value of the partial loss of that enumerated member.

In determining the Fund's liability under section 85.64, the commissioner shall consider only the extent to which Gregory's earning capacity was diminished by the combined effect of the 2000 and 2002 losses to her enumerated extremities. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

COURT OF APPEALS

WEITZ CO. v. JOHNSON, 9-844 / 09-0020 (1-22-10)

Johnson appeals the district court's ruling on Weitz Company's petition for judicial review reversing the workers' compensation commissioner's final agency decision awarding workers' compensation post-hearing penalty benefits to Johnson. Johnson argues the district court (1) employed an erroneous legal standard and (2) erred in concluding the denial of benefits was fairly debatable. OPINION HOLDS: We find that substantial evidence does not support a finding of unreasonable delay during the period of time at issue. We agree with the district court that the commissioner's decision to award penalty benefits in this case should be reversed. We further find that the district court did not use an erroneous legal standard to reach this conclusion. We therefore affirm the conclusion of the district court, and we remand this case to the district court for entry of an order directing the commissioner to deny Johnson's request for penalty benefits. 

COURT OF APPEALS

QUAKER OATS CO. v. MAIN, 9-896 / 08-1507 (1-22-10)

Main appeals from a district court judicial review ruling reversing in part the appeal decision of the workers' compensation commissioner. He claims the court erred in (1) determining that his constitutional challenge to Iowa Code section 85.34(7) (2005) under the single-subject requirement of article III, section 29 of the Iowa Constitution was untimely and (2) reversing the commissioner's determination that § 85.34(7) was inapplicable to his workers' compensation claim because his prior work injuries occurred before the statute's effective date. OPINION HOLDS: We agree with the district court that Main's single-subject challenge to section 85.34(7) is not timely because it was made after the statute was codified. We further agree with the court that the agency erred in determining the statute did not apply to Main's claim due to its effective date.  The judgment of the district court reversing the agency's determination that § 85.34(7) did not apply to Main's claim is therefore affirmed. 

AGENCY APPEAL

CODER v. HACAP, INC., 5021107 (1-6-10)

The presiding deputy correctly did not apply the credit provisions of §85.34(7)(b). This agency has previously held that §85.34(7) is only applicable if both the work injury at bar and the prior disability occurred prior to the enactment of that section on September 14, 2004. Steffen v. Hawkeye Truck & Trailer, File No. 5022821 (App. September 9, 2009)

However, what the presiding deputy failed to include in her analysis is that under the Steffen decision, this agency is to apply the old full responsibility rule. This means that we are to include in any award, not only the disability caused by the shoulder in this case, but the disability caused by the prior back injury. However, I cannot agree that the prior back injury resulted in a 45 percent industrial loss. The prior decision was erroneously based on claimant's testimony that was recanted in this proceeding. Therefore, I conclude since he returned to full duty at HACAP without further problems or loss of pay, claimant suffered no industrial loss as a result of the 2000 work injury to his back. Therefore, his total entitlement under the full responsibility rule remains at 30 percent.

COURT OF APPEALS

PELLA CORPORATION v. SHARP, 9-816 / 09-0502 (12-30-09)

Pella Corporation challenges the district court's affirmance of the workers' compensation commissioner's ruling that Tyler Sharp's biceps tendon rupture on November 27, 2005, was related to his previous cumulative injury to his right arm as of August 30, 2001. OPINION HOLDS: Substantial evidence supports the commissioner's finding that Sharp's 2005 injury was related to his 2001 work-related injury. Also, Pella argues that because it had not performed any evaluation of impairment following the biceps tendon rupture (because it denied liability for injury and thus would not authorize treatment), there is no predicate evaluation with which the employee can disagree and therefore it cannot be required to cover the evaluation. Pella argues it "arguably" is, "obligated to provide reimbursement for a §85.39 IME only as a result of those prior ratings, but only with respect to conditions caused by the August 30, 2001 work injury which those impairment ratings addressed, no part of which pertained to the biceps tendon." Pella contends the commissioner was required to apportion its obligation, ordering payment "only for the expenses related to [Dr. Stoken's] evaluation of impairment regarding conditions for which Dr. Schurman and Dr. Reagan provide impairment ratings." Pella offers no authority for its claim that the commissioner was required to make such an apportionment, and we find none. We find no error. The commissioner did not err in ordering Pella to reimburse Sharp for the evaluation by Dr. Stoken once the commissioner determined Pella's liability. 

AGENCY APPEAL

WILSON v. NASH FINCH COMPANY, 5022819 (12-30-09)

The presiding deputy commissioner found that this claim has been denied and defendants are not entitled to require claimant to attend an IME pursuant to §85.39. The defendants do not have a remedy of suspension of benefits for failure to attend an independent medical examination.

Defendants appealed asserting that the statute does not support the deputy's finding and that the finding does not comport with the obligation of employer's to conduct an ongoing investigation of a claim. Furthermore, defendants make a compelling argument that employers can be prejudiced in the discovery process in denied workers' compensation cases if left without a remedy for compelling attendance at an examination.

Claimant was notified by a faxed letter that defendants had scheduled an examination for him. Claimant's counsel notified defendants' counsel that as liability is denied in this case defendants are not entitled to a § 85.39 examination and that he would advise his client not to attend the examination. Defendants' counsel informed claimant's counsel that that she disagrees that § 85.39 requires an employer to admit liability before an employee must submit for examination. Counsel further noted that IRCP 1.515 provides for examination of an injured worker in situations where a party's physical condition is in controversy.

Held, there are two are different methods for obtaining a similar result with different sanctions for failure to comply. The method of compelling an examination by use of rule 1.515 requires the compelling party to show good cause for the examination and provide notice to the injured worker of the time, place, manner, conditions, scope of the examination, and the person or persons by whom it is to be made. The method of compelling an examination by use of §85.39 places no such requirements on requests for examination other than that the requests be reasonable. The sanction under Iowa Code section 85.39 may be suspension of compensation for the period of the refusal while multiple sanctions are available under IRCP 1.517(2) for failure to comply with an order to submit. It is therefore affirmed that as there is no conflict between section 85.39 and I.R.C.P. 1.515, both are operative in workers' compensation cases.

Defendants need not admit liability for I.R.C.P. 1.515 to apply. However, defendants did not use this rule, therefore claimant had no obligation to attend the scheduled IME.

AGENCY APPEAL

RIZVIC v. BEEF PRODUCTS, INC., 5025025 (12-29-09), and PETERSON v. SWINE GRAPHICS ENTERPRISES, L.P., 5024084 (12-29-09)

The fresh start rule is based upon the premise that a workers' earnings in the competitive labor market at the time of a work injury are reflective of that workers' earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his or her employment prior to a work injury, the impact of that impairment or impediment upon that workers earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

Industrial loss now is no longer a measure of claimant's disability from all causes after which we then apportion out non-work causes and leave in work-related causes under the full responsibility rule. The percentage of industrial loss now is the loss of earning capacity from what existed immediately prior to the work injury. This means that an already severely disabled person before a work injury can have a high industrial loss because the loss is calculated in all cases from what ever his earning capacity was just before the injury and what it was after the injury, not the loss as compared to a healthy non-disabled person. In other words, all persons, start with a 100 percent earning capacity, regardless of any prior health conditions.

AGENCY APPEAL

CALHOUN v. JOHN DEERE DAVENPORT WORKS, 5022715 (12-21-09)

Defendant's attempts to exclude late medical reports were summarily rejected and defendant was not afforded the opportunity to provide rebuttal evidence.

While a presiding deputy is granted significant latitude in accepting or rejection exhibits for admission into the record, it is clear that defendant has been prejudiced in this instance. In essence, claimant has been allowed to ignore the discovery deadline set by the hearing assignment order and thereafter ignore the amended deadline set by the deputy during the course of the hearing. After claimant failed to comply with both deadlines, defendant was not granted the opportunity to rebut. Defendant has been unfairly prejudiced by claimant's conduct.

This matter is remanded to the presiding deputy who shall either exclude the late report or hold the record open for defendant to secure and file rebuttal evidence from its own medical expert. If the record is held open to allow defendant to obtain a further medical opinion, the costs to do so shall be taxed to claimant's counsel. Once the presiding deputy closes the record a remand decision shall be made on the record.

COURT OF APPEALS

FRONTIER NATURAL PRODUCTS v. BUTZ, 9-947 / 09-0822 (12-17-09)

The employer and insurer appeal from the district court's decision on judicial review that affirmed the agency's award of workers' compensation benefits, contending the agency erred in concluding the claimant provided timely notice of her injury by adding an additional factor to the analysis. OPINION HOLDS: From our review of the record, our conclusions are the same as those of the district court. The phrase "probable compensable character" is not synonymous with an employee's recognition of the "seriousness" of the injury as the appellants claim. The appellants argument that the agency erred in adding an additional factor to the analysis is without merit. The agency correctly understood the law to require knowledge of all three "triggering factors." The claimant provided timely notice.

COURT OF APPEALS

THE TRAVELER'S INDEMNITY COMPANY v. D.J. FRANZEN, INC., 9-847 / 09-0040 (12-17-09)

Insurer appeals from the district court's order granting over-the-road trucking company's motion for summary judgment on assigned risk plan rate claim seeking to classify contract drivers as employees. OPINION HOLDS: I. The determination of whether an owner-operator is an independent contractor for purposes of workers' compensation insurance is governed by §85.61(13)(c), Code of Iowa. II. The doctrine of exhaustion of administrative remedies is an affirmative defense that cannot be raised by a plaintiff to bar a defendant from presenting a defense in a suit for money damages. III. The district court properly determined the drivers at issue were independent contractors, and excluded from Franzen's workers' compensation insurance policy.

AGENCY APPEAL

STONE v. CONAGRA FOODS, INC. D/B/A SWIFT & COMPANY, 5023782 (12-14-09)

The authorized treating physician's release of claimant to full-duty work coupled with the failure to expressly opine as to impairment produced an inference that the employer-retained physician did not believe claimant had permanent impairment related to the injury. That inference is sufficient to permit claimant's being reimbursed for the cost incurred for his IME.

AGENCY APPEAL

SWYGMAN v. McANINCH CORPORATION, 5024495 (12-7-09)

Defendants argue that claimant's loss of his employment was purely economic, related to a slow economy, and not based on any restrictions or functional incapacity of claimant. Defendants, therefore, contend that the award of 250 weeks of benefits under § 85.34(2) (u) was excessive. Claimant asserts that his termination demonstrates that the employer considered him too disabled to perform heavy physical labor. Claimant has the better argument, as the evidentiary facts contradict defendants' contention.

AGENCY APPEAL

BRIGGS v. SECOND INJURY FUND OF IOWA, 5024615 (12-4-09)

The presiding deputy erred in finding that the agreement for settlement between claimant and his employer failed to adequately establish employer liability. It is further concluded that claimant has presented sufficient evidence to prove by a preponderance of the evidence that he has sustained a work-related injury resulting in permanent disability.

However, regarding the first injury, a venous condition does not qualify as a scheduled injury. Because § 85.64 requires two scheduled injuries to proceed against the Second Injury Fund, it is therefore concluded that claimant's claim for Second Injury Fund benefits must fail.

AGENCY APPEAL

MILLER v. MAINTAINER CORPORATION OF IOWA, INC., 5020192 (12-2-09)

In order to prove entitlement to the credit the defendants must prove the following: 1) that benefits were received under a group plan, 2) contribution to that plan was made by the employer, 3) the benefits should not have been paid if workers' compensation benefits were received, and 4) the amounts to be credited or deducted from payments made or owed under Chapter 85. §85.38(2).

The first, second, and fourth elements set forth above have been established within the record in favor of defendants and will not be discussed. Having reviewed the record de novo it is concluded that defendants failed to present any evidence to show that "claimant should not have been paid [short-term disability benefits] if workers' compensation benefits were received." Defendants presented no evidence that claimant would not have been entitled to short-term disability benefits had he been compensated through the workers' compensation system.

AGENCY APPEAL

DUGAN v. TYSON, 5020849 (12-1-09)

At the time of hearing claimant testified she was performing light duty work at Tyson. However, claimant also testified that the light duty work, and her restrictions, were in regards to limitations regarding a right upper extremity injury. Claimant's right upper extremity injury is not at issue in this case.

Given the above, claimant has failed to prove she has permanent restrictions regarding her June of 2006 cervical injury.

The record indicates claimant's present light duty status is not due to her June of 2006 cervical injury. Claimant continues to work at Tyson. There is no evidence claimant has sustained any reduction in wage, or a loss of hours due to her cervical injury.

The modified fresh start rule and modified full responsibility rule are to be read together to prevent all double recoveries and all double reductions in workers' compensation benefits. The legislature noted that it was its intent that the amendments are not intended to "change existing law in any way not expressly provided in this division."

COURT OF APPEALS

WHITE v. KILBY, 9-707 / 09-0076 (11-25-09)

Ray Kilby argues the district court erroneously interpreted Iowa Code section 85.20 (2005) and therefore improperly denied his motion for summary judgment. OPINION HOLDS: The exclusivity provisions of Iowa Code §85.20 preclude Kilby's liability under Iowa Code §321.493. We reverse the district court's summary judgment ruling and remand for entry of an order granting Kilby's motion for summary judgment.

COURT OF APPEALS

BELGER v. UNITED PARCEL SERVICE, 9-658 / 09-0273 (11-25-09)

A petitioner for workers' compensation benefits appeals the district court's affirmance of the workers' compensation commissioner's denial of penalty benefits.  OPINION HOLDS:  The commissioner's decision to deny penalty benefits was not irrational, illogical, or wholly unjustifiable since the petitioner's workers' compensation claim was fairly debatable under the standard articulated in City of Madrid v. Blasnitz, 742 N.W.2d 77 (Iowa 2007). 

COURT OF APPEALS

MERCY v. SIMMONS, 9-554 / 08-2045 (11-12-09)

An employer appeals a final decision of the workers' compensation commissioner awarding a claimant permanent total disability benefits. OPINION HOLDS: Because substantial evidence supports the agency's determination, we agree with the district court's decision on judicial review that the agency's award of permanent total disability benefits must be affirmed. 

COURT OF APPEALS

ROBERTSON/STAR BUILDING v. COOHEY, 9-820 / 09-0615 (11-12-09)

Robertson/Star Building Systems and its insurer, Insurance Company of the State of Pennsylvania, appeal the district court's ruling on their petition for judicial review, which affirmed the workers' compensation commission's award of benefits to Jesse Coohey. They contend the district court erred in concluding (1) Coohey's claim is not barred by the statute of limitations, (2) Coohey's treatment is causally related to his 1997 work injury, and (3) Coohey is entitled to attorney fees.  OPINION HOLDS: A. Because there was no denial of liability filed (nor any agency award of benefits or an agreement for settlement, although, weekly benefits had been paid), Coohey's claim for medical benefits was not subject to the three-year statute of limitations as set forth in Iowa Code §85.26(2). B. Expert witness evidence establishes the 1997 work injury was a substantial contributing factor to the August 2005 surgery. Accordingly, we conclude substantial evidence supports the commissioner's finding Coohey's treatment is causally related to the work injury. C. The commissioner's award of attorney fees for the petitioners' failure to admit a request for admission was not irrational, illogical, or wholly unjustifiable.

AGENCY APPEAL

SCHUELLER V. JOHN DEERE DUBUQUE WORKS, 5022959 (11-3-09)

Claimant appeals denial of hearing loss claim. REVERSED.

The deputy provided no explanation or analysis as to why he rejected the undisputed evidence that claimant was present in a noisy work environment for over 40 years with the first 15 years having no hearing protection; that a hearing protection program was instituted to protect workers like claimant from noise induced hearing loss; that defendant considered claimant's hearing loss at a point after 1978 to be work-related; that defendant's own physician considered claimant's hearing loss to be a noise induced, work-related loss as late as 1996; and that no other cause of hearing loss has presently been identified by defendant other than heredity, yet only one of claimant's extended family members has ever suffered from any form of hearing loss.

The deputy's criticism of Dr. Tyler is not shared by the undersigned. Dr. Tyler's report is well founded by the factual history presented in claimant's responses to his questionnaire and supplemented by Dr. Tyler's interview with claimant. Dr. Tyler has significant qualifications as the head of the department of audiology at our state's largest university. He has published numerous articles on hearing loss and does significant research on hearing loss. There is no evidence that any other expert in this matter has similar qualifications.

It is therefore concluded that claimant has presented evidence more than sufficient to prove that his hearing loss arose out of and in the course of his employment with John Deere. Claimant has proven that he sustained an occupational hearing loss under Iowa Code chapter 85B.

AGENCY APPEAL

RUIZ V. TYSON FOODS, 5020962 (10-30-09)

Defendants appeal a PTID award. AFFIRMED.

Claimant is not employable in the competitive labor market. Most convincing were the conclusions of Alfred Marchisio, M.S., who aptly pointed out the deficiencies in the conclusions in the functional capacity testing.

Defendant's offer of a sit down job was not convincing. Apart from the rather self-serving nature of such an offer, the claim that claimant could perform a sit-down job at Tyson assumes that claimant could ambulate to and from that job and to and from other areas of the plant for restroom and other breaks in a timely and efficient manner. The presiding deputy, however, found that claimant has considerable difficulty walking and for that reason cannot perform such work. This was based on a finding that claimant's daughter was credible in testifying about claimant's balance and ambulation problems, his ability to only climb one or two stairs, and his difficulty with keeping the prosthesis on his stump.

The assertion by defendants that claimant voluntarily chose to retire, was likewise, unimpressive. The evidence clearly shows that prior to this work injury, claimant had no intention of retiring, even at age 70. He was working in a relatively heavy job and even defendant's witnesses agree that he was a good worker prior to his injury. It is clear that the only significant event that changed this was the work injury and the resulting loss of use of his legs, not any lack of motivation to work on the part of claimant. WALSHIRE

AGENCY APPEAL

MOORE V. ALAN STEVENS ASSOCIATES, INC., 5021719 (10-30-09)

The assertion that the chronic pain is permanent and therefore the resulting depression is permanent is not convincing. The physician opinions relied upon by claimant are based in part upon claimant's representations to them on the extent and severity of his pain. However, claimant was not found entirely credible.

A claim for marriage counseling was denied. The doctor did not sufficiently explain why he felt that such counseling was the result of the work injury or the claimant's work related depression. WALSHIRE

AGENCY APPEAL

RUBIO V. JOHN MORRELL COMPANY, 5023806 (10-30-09)

Defendants complain that the presiding deputy relied too much on claimant's testimony to assess the significance of the injury and the extent of her current physical problems. Lay testimony from claimant, if viewed as credible, must be considered in determining the actual loss of use so long as loss of earning capacity is not considered.

Also, I find quite unconvincing the view of Dr. Martin that a long ride in an automobile is a more likely cause of her leg numbness than a back injury from her slip and fall at work.

Finally, defendants raise a lack of authorization defense to the medical expenses awarded to claimant. However, defendants dispute their causal connection to the work injury. Consequently, such a defense is not available to defendants.

Also the record is clear that the unauthorized physician routinely reported some improvement in her symptoms with his treatment regimens, but ultimately he was unable to resolve them all. This is sufficient to award the expenses of unauthorized care. WALSHIRE

AGENCY APPEAL

AULT V. DES MOINES PUBLIC SCHOOLS, 5007579 (10-27-09)

Defendants appeal from PTID award. AFFIRMED.

While defendants may be correct in asserting that claimant's physicians have not opined that she is incapable of any work activity, all have opined that her ability to work is extremely limited.

A mental health counselor states that a majority of her depressive symptoms are unrelated to the work injury and that work would be good for her condition, she adds that less than one-half of those symptoms are work related and that due to her depression, claimant is only capable of part-time work in a sheltered environment. While a claimant's must show that the injury proximately caused the medical condition sought to be compensable, it is well established in Iowa that a cause is "proximate" when it is a substantial factor" in bringing about that condition. It need not be the only causative factor, or even the primary or the most substantial cause to be compensable.

Defendants can only rely upon lack of effort to look for work or seek vocational rehabilitation, if suitable full-time work is shown to be a realistic possibility with such efforts. The medical evidence in this case reveals otherwise. Anti-social behavior is not inconsistent with low intellect, chronic pain and chronic depression. While drug use will certainly impact a person's employability, the fact remains that claimant has been legally using narcotic medications since the injury that were prescribed by treating physicians to address her work related chronic pain. WALSHIRE

AGENCY APPEAL

SMITH V. MONSANTO, 1254092 (10-21-09)

Claimant appeals from a review-reopening decision filed on December 2, 2008, wherein the presiding deputy commissioner determined that claimant failed to prove that his change of physical condition was substantially caused by the work injury. REVERSED.

This agency has previously established that claimant's workplace exposures resulted in his respiratory injury and disability. That issue cannot be litigated again. The physician has opined that claimant's respiratory condition, including the exposure at Monsanto, placed claimant at a baseline in 2002 wherein the loss associated with age and acute flare-ups are to the point in 2007 where claimant has no reserve and cannot compensate for the loss. As such, the doctor has opined that if not for the contribution of the work exposure, claimant would still be working in the competitive labor market &endash; and that if not for the substantial contribution of the work exposure, it is anticipated that claimant would have been gainfully employed up to and including the age of 62.

It is therefore concluded that claimant has proven by a preponderance of the evidence that he has sustained an economic change of condition that warrants an award of additional permanent disability benefits as he is presently unable to return to gainful employment.

The evidence further supports a finding that he has sustained a physical change of condition proximately caused by his workplace injury given the doctor's opinions regarding claimant's 2002 baseline and continued deterioration.

Claimant has presented the opinions of a vocational expert who has opined that claimant is not capable of working in the competitive labor market. Such a finding is bolstered by claimant's receipt of social security disability benefits. Due to claimant's age and his advancing respiratory distress it is unlikely that claimant could be retrained for any substantive work duties. It is concluded that claimant has sustained an injury which permanently disables him from performing work within his experience, training, education, and physical capacities. Therefore, claimant is entitled to an award of permanent total disability.

New medical opinions were served less than 48 hours prior to the scheduled hearing. The untimeliness of these opinions at issue is clearly the result of delay or lack of diligence of defendants. The presiding deputy determined that any prejudice to claimant resulting from the late service could be cured by holding open the record for up to 30 days to allow claimant the opportunity to seek additional evidence.

Opinions on termination of healing and opinions regarding permanency are issues that are variable and do not fit well within a discovery deadline set by an order of an administrative agency. However, an issue of causation as is at issue in this case is less variable and was not an issue that needed to be addressed well after the close of discovery and the exchange of exhibits for hearing. The deputy chose not to do so and the undersigned finds no reason to disturb that deputy's determination. However, parties who come before this agency risk exclusion of vital evidence by willful or unjustifiable disregard for the rules of the agency, as this submission of evidence most certainly was.

The final issue for consideration on claimant's appeal is the bill for $213.75 which is the cost associated with claimant's rebuttal evidence to defendants' late submission.

As the deputy's determination has been reversed and claimant is now the prevailing party it is proper to award the cost of $213.75. It is noted that almost 25 years ago this agency held that a maximum of $150.00 would be allowed as a cost reimbursement for any one doctor or practitioner's written report as that is all that would be allowed as an expert witness fee had the expert's views been obtained in an oral deposition under the cost provisions of Iowa Code § 622.72. However, these decisions are contrary to the plain language of 876 IAC 4.33. While a doctors' or practitioners' deposition testimony is limited by Iowa Code section 622.69 and 622.72, no such limitation is contained in this rule for obtaining written reports, nor is there any application of those statutes to written reports. As recently instructed by the Iowa Supreme Court (Boehme), this agency cannot ignore the plain wording of its own rules. It is therefore concluded that the prior agency precedent regarding taxation of costs which is set forth above shall no longer be controlling agency precedent in cases before this agency and the entire reasonable costs of doctors' and practitioners' reports may be taxed as costs pursuant to 876 IAC 4.33.

AGENCY APPEAL

GRAHOVIC V. SECOND INJURY FUND OF IOWA, 5021995 (10-9-09)

First, Agency approval of an agreement for settlement is not adjudication on the merits of a claim. It is an administrative decision that the settlement merely complies with the form and content for such agreements required by the rules. Approval makes no determination as to the merits of any aspect of the claim. Issue preclusion does not apply.

Second, issue preclusion requires a mutuality of interest between the Fund and the parties to an agreement. The interests of the claimant and employer significantly conflict with the interest of the Fund.

Finally, the views of Claimant's expert are not rejected simply because he retired in 1997 from treating patients and now only serves an evaluator for litigation purposes. In fact, there is no evidence that the doctor is less qualified as a medical evaluator than any of the other medical experts involved in this matter. However, his views are not found to be convincing as he does not sufficiently explain them. AFFIRMED.

AGENCY APPEAL

BODE V. MERTZ ENGINEERING, 5023625 (10-6-09)

The presiding deputy failed to apportion a prior injury which occurred with a prior employer from 70 percent industrial disability awarded for claimant's present industrial loss. AFFIRMED.

As was noted in a recent appeal decision filed by this agency, the modified fresh start rule precludes an employer from taking credit for permanent disability paid by a prior employer as any impact of the prior disability is factored into the employee's hourly compensation or salary at the time of hire. Follows, Steffen.

COURT OF APPEALS

WEST RIDGE CARE CENTER v. JOHNSON, 9-462 / 08-2036 (10-7-09)

West Ridge Care Center appeals from the district court's judicial review decision that affirmed the agency decision awarding employee benefits for a permanent total disability to Annette Johnson. West Ridge contends the commissioner and district court erred in finding Johnson permanently and totally disabled under the traditional analysis and the odd-lot doctrine. OPINION HOLDS: We conclude substantial evidence supports the commissioner's decision awarding Johnson permanent total disability benefits. We cannot consider the fact that Johnson continued her employment (with accommodations and restricted to 32 hr/week) at the care center after her injury as probative on the issue of her employability or earning capacity. Because we found substantial evidence supports the award of permanent total disability benefits based on the theory of industrial disability, it is unnecessary to address the odd-lot doctrine. We affirm the district court's order affirming the commissioner's decision awarding Johnson permanent total disability benefits.

COURT OF APPEALS

LOPEZ v. MIDSTATES HORSE SHOWS, 9-452 / 08-1714 (10-7-09)

Everado Lopez appeals and Midstates Horse Shows, Inc. cross-appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. OPINION HOLDS. We find there was substantial evidence to support the commissioner's factual findings regarding the employer-employee relationship and the commissioner's conclusion that Lopez was an employee of Midstates was not irrational, illogical, or wholly unjustifiable. Additionally, we find substantial evidence supported the commissioner's finding that Lopez suffered permanent total disability. In calculating Lopez's weekly rate of compensation, we find the commissioner correctly applied Iowa Code section 85.36(9) (2005). Finally, Midstates's argument regarding a mathematical calculation was not preserved. We affirm the district court.

COURT OF APPEALS

STEWART v. JOHN DEERE DES MOINES WORKS, 9-506 / 09-0323 (10-7-09)

Stanley Stewart appeals from the district court ruling affirming the workers' compensation commissioner's finding that his claim for benefits was barred by the statute of limitations of Iowa Code section 85.26 (2005). While working for John Deere Des Moines Works on February 10, 2001, Stewart fell on ice and injured his hip and groin. He was treated but was not placed on work restrictions for this injury over the course of the next year. On February 4, 2002, Stewart strained his back while working for John Deere. He was treated for this injury and placed on work restrictions. In October 2002, through his treatment, doctors determined that Stewart's pain and limitations were largely related to his hip rather than his back and were attributed to the February 2001 fall. Stewart received temporary partial disability benefits on and off from February 4, 2002, to March 9, 2003. Stewart asserts that the three year statute of limitations applies because the medical records show he was placed on restrictions, and therefore received temporary partial disability payments, for the hip injury caused by the February 2001 fall. John Deere argued, and the commissioner agreed, that Stewart's petition, filed on March 4, 2005, was untimely because compensation records from John Deere and Workforce Development showed all benefits paid related to Stewart's February 2002 back strain, and no benefits were received for his February 2001 fall. The district court affirmed this finding. OPINION HOLDS: Under Iowa Code section 85.26, a proceeding for benefits must be commenced within two years of the date of injury or within three years after the payment of benefits ceases. In evaluating whether substantial evidence supports the commissioner's finding, we are not to reweigh the evidence.  When evidence is conflicting, we defer to the commissioner and do not interfere with the commissioner's findings. The evidence in this case is conflicting. The medical records indicate Stewart was placed on restrictions and received benefits between October 2002 and March 2003, at least in part, because of his hip injury in February 2001. However, the payment records specified that all payments were made as compensation for his February 2002 back strain. Under our principles of review, we find there is substantial evidence to support the commissioner's decision and the district court did not err in so finding.  

COURT OF APPEALS

HAWKEYE WOOD SHAVINGS v. PARRISH, 9-490 / 08-1708 (10-7-09)

Employer and insurance carrier appeal from a district court judicial review ruling affirming the workers' compensation commissioner's benefit award. Employee appeals the district court's credit award. OPINION HOLDS: Substantial record evidence in the review-reopening proceeding supports the commissioner and district court decisions holding: (1) the employee's second injury was related to the original injury; and (2) the employee is permanently and totally disabled. Additionally, the district court erred in granting a credit to the employer when the employer stipulated to "0" credit on the agency prehearing report and, therefore, waived credit entitlement.

COURT OF APPEALS

MERCY v. PLUMB, 9-541 / 08-1688 (9-17-09)

Employer appeals the district court's affirmance of a workers' compensation award, contending that the claimant's injury did not arise out of her employment; it also contests the award of healing period benefits. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

As the commissioner applied the wrong test, "positional risk," for determining whether the injury arose out of the worker's employment and the facts surrounding the fall are not undisputed, the case should be remanded back to the commissioner to apply the correct legal test, "actual-risk." The commissioner's award of healing period benefits is supported by substantial evidence, but will be moot if the injury did not arise out of the employment. 

COURT OF APPEALS

WILIAN HOLDINGS v. RICE, 9-550 / 08-1964 (9-17-09)

Employer appeals a ruling affirming a workers' compensation award of post hearing penalty benefits to an employee, contending the penalty benefit award was erroneous and unsupported by substantial evidence. REVERSED AND REMANDED.

Because the commissioner hearing the underlying claim for benefits considered the case a close one and because the appellate judges were not unanimous in their decision to affirm the underlying award, substantial evidence does not support the award of penalty benefits for a delay in workers' compensation payments during the pendency of the employer's appeal.

AGENCY APPEAL

LOWERY V. KRAFT OSCAR MAYER, 5022946 (9-15-09)

30% PPID award modified to 40% based on no credit or apportionment. MODIFIED.

The Agency again, follows Main v. Quaker Oats, File No. 5017903 (App. 12-19-07), despite reversal at District Court, and explains what the outcome would be if the Agency decision in Main is not upheld on presently pending appeal from District Court.

AGENCY APPEAL

STEFFEN V. HAWKEYE TRUCK & TRAILER, 5022821 (9-9-09) See, PDF for complete decision.

30% PPID award modified to 55% based on no credit or apportionment. MODIFIED.

The issues presented for consideration in this matter afford significant consideration to the applicability and ultimate application of the 2004 amendment to Iowa Code section 85.34(2)(u) and the creation of Iowa Code section 85.34(7). As this appeal decision is the agency's initial comprehensive interpretation of the statutory changes of 2004 it is necessary to preface that the agency is afforded limited deference in the interpretation of statutes and the ultimate interpretation of the state's workers' compensation statute is a question of law for the judicial branch.

The first issue for consideration on appeal is whether the presiding deputy erred in following agency precedent requiring that for the 2004 statutory changes to be applicable to this successive disability claim, both qualifying permanent disabilities must have occurred after September 7, 2004. It is concluded that the presiding deputy commissioner did not err in following agency precedent that the statutory changes of 2004, contained in House File 2581, are inapplicable in this matter as claimant's first injury resulting in disability occurred November 24, 2003. This also decides the second issue of the Deputy finding that defendants were not entitled to credit for the previous disability they compensated under the first injury. Follows Main v. Quaker Oats, File No. 5017903 (App. 12-19-07).

The presiding deputy did, however, err in failing to acknowledge or to account for the prior permanent impairment and resulting disability. The deputy performed an informal apportionment by attempting to isolate the disability related merely to the right shoulder injury and the physical restrictions and limitations resulting from that injury. While claimant's current industrial disability should have been be awarded consistent with the full responsibility rule, without apportionment. Thus, the award was increased from the 30% awarded by the Deputy to 55% PPID with no credit for 25% paid on the first injury.

The Commissioner went on to discuss how a 30% PPID would have been awarded had both injuries occurred on or after September 4, 2004.

COURT OF APPEALS

ISLE OF CAPRI CASINO v. WILSON, 9-659 / 09-0278 (9-2-09)

Claimant appeals the district court ruling dismissing her claim for workers' compensation benefits after finding the Iowa Workers' Compensation Commission did not have jurisdiction of the case. AFFIRMED

The employer, Isle of Capri Casino, denied the claimant benefits alleging the claimant was a "seaman" under the federal Jones Act and therefore the commission lacked subject matter jurisdiction to award benefits. The claimant argued she was not a "seaman" because the casino was not a "vessel in navigation" under the act at the time of her injury in January 2005. OPINION HOLDS:  In Harvey's Casino v. Isenhour, 724 N.W.2d 705, 708 (Iowa 2006), our supreme court determined that federal law "requires only that a watercraft be used or capable of being used, as a means of transportation on water to qualify as a vessel" for purposes of the Jones Act. At the time of Wilson's accident, the Isle of Capri was fully capable of sailing.  It had a captain and marine crew on staff, was under the jurisdiction of the Coast Guard, and had insurance coverage certifying it to sail. It was undisputed that the boat was capable of sailing within ninety minutes at any given time. The casino did not become reclassified as a permanently moored vessel until November 2005. Substantial evidence showed the casino was fully capable of sailing at the time of the injury and therefore was a "vessel in navigation." The district court therefore correctly dismissed Wilson's claim on the ground that the workers' compensation commission lacked subject matter jurisdiction.

AGENCY APPEAL

BONER V. BETHANY LUTHERAN HOME, 5022480(8-26-09)

Defendants appeal odd-lot permanent total disability award. AFFIRMED

Defendants' vocational rehabilitation consultant and her labor market survey of available employment were based upon an incorrect level of physical functioning. The consultant based her opinions primarily upon a functional capacity test that reported clamant capable of light-medium work. Claimant testified that contrary to the functional capacities testing, she is actually functioning at only a sedentary (sitting-down) level and would require frequent breaks to perform beyond that level. Based upon his observation of claimant's demeanor at hearing, the hearing deputy found that testimony credible.

Even if the functional capacity testing report was correct, the vocational consultant only identified two full-time open positions in the Omaha metro area that the consultant felt would not require accommodation--a janitor job requiring the occupant to clean areas in a public restaurant and a food service job requiring the occupant to serve tables, clear tables and stock service areas. I must agree with the hearing deputy that these jobs do not logically appear consistent with in inability to lift more than 10-15 pounds frequently.

Last, the vocational consultant apparently made no effort to actually contact any employer to inquire if these jobs were actually available to claimant. The supposed labor market survey only reviewed job openings posted the local workforce development office. Therefore, no evidence was offered by defendants as to the actual availability of employment to claimant.

Defendants failed go forward to show availability of suitable work to overcome the prima facie that claimant was permanently and totally disabled. WALSHIRE

AGENCY APPEAL

HARRISON V. KONE, INC., 5024317 (8-21-09) (Open PDF for complete decision.)

Claimant appealed denial of PPID, HP & penalty. REVERSED

Prior to the injury of March 14, 2007, claimant had filled out retirement papers which were dated January 15, 2007. Claimant ultimately retired on March 31, 2007, and his pension was effective on April 1, 2007, when he was 65 years and 8 months of age. Claimant testified that his knee and shoulder were factors in his decision to retire. While the presiding deputy commissioner did not find such testimony credible, the undersigned does not agree with her assessment. While the decision to fill out retirement papers was completed on January 15, 2007, a date the deputy noted was prior to his significant injury of March 14, 2007, this ignores claimant's stipulated left knee injury and his right shoulder muscle pain caused by his job duties performed at a church. Further, claimant testified that when he filled out his paper work for retirement he was not locked into the ultimate decision to retire on a specific date.

Claimant's decision to retire on March 31, 2007, rather than perform work for an additional year and a half, resulted in a loss of approximately $300.00 per month in pension benefits.

Claimant has applied for alternate employment and the uncertainty of the economy and stability of pension funds may result in his return to the labor market where he would be required to compete against workers without physical impairment and activity restrictions. After consideration of the record it is concluded that claimant has suffered a 35 percent loss of his earning capacity as a result of the work injury.

Claimant's voluntary retirement alone does not preclude an award of healing period benefits.

No penalty is appropriate as defendants have articulated a reasonable basis to contest claimant's entitlement to benefits relating to his shoulder injury. Defendants acted reasonably in refusing compensation relying upon claimant's retirement from employment as well as a medical opinion.

As regards the knee, Defendant only cited to the presiding deputy's finding that "there has been no showing that any weekly benefits due and owing the Claimant were unreasonably delayed or denied." Defendants provide no reasonable basis for the delay in payment of benefits that claimant has established.

COURT OF APPEALS

SECOND INJURY FUND OF IOWA v. NEER, 8-597 / 07-0579 (8-19-09)

The Fund appeals the district court's decision affirming the workers' compensation commissioner's ruling awarding respondent permanent total disability benefits from the Second Injury Fund. AFFIRMED.

The Fund claims Neer is not entitled to benefits from the Second Injury Fund because under the settlement agreement she was compensated for disability to the body as a whole, and not for the loss of use of a scheduled member, such as a hand, arm, foot, leg, or eye.

The district court looked at Neer's injuries to determine if any were a scheduled injury, instead of looking at how she was compensated for her injuries. The court concluded Neer's injury to her right arm, with resulting carpal tunnel surgery, was a qualifying first loss for purposes of the Second Injury Fund. We affirm the district court and the commissioner's findings that Neer had an injury to her right arm based on her carpal tunnel surgery in 1995, which qualified as the first loss.

There is substantial evidence to show permanent loss of use based on Neer's first qualifying injury to her right arm. After Neer had surgery on her right arm in 1995 she was given a six percent permanent impairment rating for her arm. She was told to take sensible precautions and was accommodated by her employer with different job positions and assistance from co-employees.

There is also substantial evidence to show permanent loss of use due to the second qualifying injury to her left arm. She was given a ten percent permanent impairment rating for the upper left extremity. She was also placed on restrictions, including "no repetitive firm grasping, gripping, pinching, or torquing movements."

AGENCY APPEAL

ORTH V. QUAKER OATS COMPANY, 5011736 (8-18-09)

The estate appeals from the decision of the presiding deputy asserting that the deputy misconstrued the basis for the claim for death benefits and erred in calculating the rate of compensation by failing to recognize a common law marriage. Neither argument is particularly convincing in consideration of the facts presented in the record of the case.

Had claimant considered his gastric bypass surgery to be "reasonable and necessary" medical treatment for his back injury it is only logical that claimant would have sought to have such treatment paid through the workers' compensation system, as all of his other treatment had been provided. There is no evidence contained within the record that claimant sought to have the gastric bypass procedure covered, nor did he file a petition for alternate medical care.

The record of evidence establishes that decedent provided testimony throughout discovery that he and Cathy Orth were not married and made no claim for a common law marriage. Only after decedent's death was the issue of common law marriage asserted.

AGENCY APPEAL

CASON V. SEQUEL YOUTH SERVICES, 5023947 (8-11-09)

The work injury was a cause of a three percent permanent partial impairment to claimant's mouth and jaw for disfigurement and a one percent permanent partial impairment for headaches is affirmed. The headache portion takes this injury into the body as a whole and entitles claimant to compensation for a loss of earning capacity.

Clamant was found credible by the presiding deputy. At hearing claimant testified that he has continued jaw aching and problems with his tongue not feeling the presence of the false teeth which caused speech problems that he states adversely impacts his ability to talk in his current job. He adds that this speech problem would hinder his ability to return to the type of sales jobs he had in the past. MODIFIED to 10% PPID.

COURT OF APPEALS

ORTIZ v. SWIFT & CO., 9-461 / 08-2016 (8-6-09)

Cesar Ortiz was injured during the course of his employment by an ammonia leak, and he continued to have respiratory problems. On May 13, 2005, Ortiz died in a traffic accident while on the road between Chihuahua, Mexico, and El Paso, Texas. Ortiz's wife, Guillermina Acosta, filed a claim for workers' compensation benefits as a surviving spouse, claiming Ortiz's work-related injury was the cause of his death because he was driving to obtain medical treatment. The workers' compensation commissioner determined that injuries received during travel for medical care for a work-related injury can be a compensable consequence of the injury, but that Acosta had not presented credible evidence Ortiz was traveling to obtain medical treatment. The district court declined to find that injuries sustained when an employee is traveling to or from medical treatment for a work-related injury should be compensable. The court noted that even if this theory was adopted, it would not apply in this case. Acosta appeals. OPINION HOLDS: There is substantial evidence in the record to support the commissioner's finding that Acosta failed to show Ortiz was traveling to obtain medical treatment for a work-related injury. There is only speculation concerning what Ortiz was doing on the roadway at the time of his death. The commissioner did not apply an improper burden of proof in this case. Because there is no factual basis in this case to show that Ortiz was traveling in order to seek medical care for a work-related injury, there is no need to address the legal question of whether such a claim would be compensable if it had been proven. 

COURT OF APPEALS

TEEN CHALLENGE v. PAULER, 9-458 / 08-1801 (8-6-09)

  Alan Pauler appeals from the district court's ruling on judicial review reversing his workers' compensation award. The workers' compensation commissioner determined that a nonprofit organization had workers' compensation liability for injuries that occurred while Pauler performed construction work as a participant in its residential program. OPINION HOLDS: We conclude-as did the district court-that the commissioner misapplied the law to fact in analyzing the "benefits" factor of the employer-employee test and in concluding an employer-employee relationship existed in the absence of evidence that the parties intended to establish such a relationship.

AGENCY APPEAL

SHULL V. OMEGA CABINETS, 5023286 (8-5-09)

A review of the surveillance video presented precludes any finding other than a full affirmance of the presiding deputy commissioner's conclusion that claimant is not a credible witness. Claimant is observed on the same day walking without an altered gait while going about her daily business, yet walking with a significantly altered gait and at a very slow pace while entering Excel Physical Therapy. The only logical conclusion is the conclusion made by the presiding deputy commissioner. Claimant is not credible and the medical opinions based upon the presentations made by claimant are likewise not credible.

AGENCY APPEAL

HART V. YELLOW FREIGHT, 5023131 (7-29-09)

Although, voluntary payment of permanency disability benefits for a five percent industrial disability may have been appropriate to avoid penalty, defendant offered no reason for the considerable delay in making that payment following claimant's return to work. Given claimant's high weekly rate of compensation, the $10,000 penalty is appropriate. WALSHIRE

AGENCY APPEAL

MORISTON V. LONGHOUSE NORTHSHIRE NURSING HOME, 5022912 (7-24-09)

Award of costs for the MRI of the brain was appropriate. The costs of diagnostic testing and imaging by the treating physician which the physician felt was necessary to diagnose the treat the cause of claimant's symptoms, even if that test is to rule out other problems that the work-related condition constitutes reasonable and necessary treatment of a work injury. In any event, this agency has long held that employers are to pay for the medical care they authorized.

Award of the costs of one report that was requested by claimant that had been excluded at hearing was appropriate. Our administrative rule 876 IAC 4.33(6) which allows the reimbursement for two doctor reports does not require that the report be actually placed in evidence to qualify for the reimbursement.

Award of an extra meal for transportation to attend the IME examination was also appropriate. Claimant testified without contradiction that she needed a driver to help her travel to this examination, because she is limited in the amount of time she can drive herself because of her back problems. WALSHIRE

AGENCY APPEAL

WALKER V. GRIFFIN PIPE PRODUCTS, CO., 5025036 (7-24-09)

Dr. Larose, as an orthopedic specialist, is more qualified to render causation opinions concerning an orthopedic condition such as carpal tunnel syndrome, than Dr. Gammel, an occupational medicine physician, who was not shown to possess any special qualifications or significant experience in the diagnosis or treatment of orthopedic or carpal tunnel syndrome conditions. WALSHIRE

AGENCY APPEAL

JOSLIN V. TERI HIGGINS, WIDOW OF TIMOTHY J. HIGGINS, 5025036 (7-23-09)

Defendants appeal second Deputy order to pay attorney fees for collecting defendants' share of settlement moneys from a third-party tortfeasor. REVERSED

The presiding deputy was correct in the attorney fee decision that Iowa Code §86.39 on its face does not provide authority to this agency to approve attorney fees in third party lawsuits in the district court. That authority is within the sole province of the district court. The only authority of the agency concerning such fees would arise from our authority to allocate monetary recoveries from third party lawsuits to enforce the indemnity provisions of §85.22. Workers' compensation insurers are to be indemnified from third party lawsuit proceeds for the weekly benefits paid to an injured worker or the worker's dependents to the extent the payment was made, less any attorney fees as may be allowed by the district court. §85.22(1). If this agency is asked to determine the amount of the indemnity under that Code section, then §86.39 subjects the indemnity amount to this agency's approval of any attorney fees charged in connection with amounts allocated by the agency to the employer or its workers' compensation carrier.

It is ultimately concluded in this matter that the presiding deputy erred in awarding to claimant additional attorney fees, over and above the amount already deducted from the allocated indemnity sum for attorney fees in the initial decision.

First, this agency lacks authority to issue a decision that is subject to review and change at a later date other than a review and reopening of an award of weekly compensation payments pursuant to §86.14 or agreement for settlement as provided by §86.13. The deputy's decision to further reduce that allocation with additional attorney fees is improper as it attempts to amend that final allocation decision and the final judgment of the district court. The district court judgment is the law of this case and this agency has no authority to change it.

Even if this agency should have some sort of additional authority to approve new fees, it is simply unreasonable to require defendants to pay a double attorney fee on their allocated share of the settlement proceeds and to provide claimant with a double recovery of attorney fees. The prevention of double recovery is one of the primary reasons for enacting §85.22(1).

Finally, I agree with the presiding deputy that this agency does not have authority to suspend or reduce weekly benefits to enforce the indemnity provisions of §85.22(1).

COURT OF APPEALS

CITY OF AMES v. TILLMAN, 9-073 / 08-1677 (7-22-09)

The City of Ames (the City) appeals a district court decision affirming the Iowa Workers' Compensation Commissioner's determination the City is liable for medical expenses incurred by Jerry Tillman for unauthorized medical treatment he received at the University of Iowa Hospitals and Clinics for his work-related injury. OPINION HOLDS: The agency erred in each of the reasons relied on by the agency, and affirmed by the district court, for holding the City liable for the expenses for the unauthorized medical treatment Tillman received. There is no evidence that the City abandoned Tillman's care or denied liability for his injury, and the mere fact the care received was successful and beneficial does not support liability. The agency's finding that an emergency existed requiring that surgery be performed by someone other than the authorized provider is not supported by substantial evidence. The City correctly informed Tillman of his right to commence an alternate care proceeding. DISSENT ASSERTS: The agency did not err in determining the City did not provide proper notice to Tillman of his ability to contest the City's choice of care. I would affirm the district court's affirmance of the agency decision, finding it unnecessary to address the other grounds relied on by the agency and affirmed by the district court.

COURT OF APPEALS

MILLENKAMP v. MILLENKAMP CATTLE CO., 9-435 / 08-1373 (7-22-09)

Thomas Millenkamp appeals from the district court's ruling on judicial review, affirming the workers' compensation commissioner's denial of his request for post-hearing penalty benefits. He argues (1) the commissioner employed an erroneous legal standard and (2) erred in concluding the denial of benefits was fairly debatable. OPINION HOLDS: The commissioner did not employ an improper legal standard in its denial of penalty benefits, nor err in finding that the question whether the 2001 injury caused Thomas's industrial disability was fairly debatable. We therefore affirm the commissioner's denial of penalty benefits.    

AGENCY APPEAL

CAVEN V. JOHN DEERE DUBUQUE WORKS, 5023051 (7-21-09)

Claimant appeals Deputy's limitation of costs for doctor's report to $150.00 under §622.69 & 622.72. REVERSED

§622.69 & 622.72 Code of Iowa apply to limit expert witness fees, and are contrary to IAC 876-4.33(6) which provides for taxation of the reasonable costs of obtaining no more than two doctor's or practitioner's reports. No limitation is set out in the rule. Reasonableness of the doctor's charges was not raised.

Prior Agency decisions to the contrary are no longer controlling. WALSHIRE

AGENCY APPEAL

SLAYMAKER V. UNITED PARCEL SERVICE, 5002040 (7-20-09)

Defendants appeal unreported remand decision of 9-18-08 finding that, in an apparent rare defense review-reopening, they failed to establish that claimant's earning capacity has increased from the 20 percent loss established in the arbitration decision filed April 30, 2003. (See, ISBA web site.) AFFIRMED

Claimant's earning capacity was determined therein with the understanding that claimant's ability to compete in the competitive labor market was impacted by the invasive shoulder surgery and his then inability to perform the work offered by defendant-employer. However, the earning capacity determination also wisely considered that claimant was a motivated worker likely to have additional employment opportunities &endash; which is exactly what occurred following his retraining and continued rehabilitation.

SUPREME COURT

DRAKE UNIVERSITY v. DAVIS, 08-0639 (7-17-09)

The workers' compensation commissioner awarded an employee benefits for three separate injury dates. The employer and its insurance carrier sought judicial review of the agency action. The district court affirmed the decision of the agency, and also found the employer and its insurance carrier were not entitled to a credit for benefits paid by a group plan under Iowa Code section 85.38(2) (2005). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

In this appeal, we find the employer and its insurance carrier were not deprived of procedural due process, substantial evidence supports the agency's decision, the permanent total disability benefits are not subject to apportionment, the agency misapportioned the benefits due for the March 21, 2001, and July 31, 2002, injuries, and the district court should not have considered the credit for benefits issue. Therefore, we affirm in part the decision of the district court affirming the decision of the workers' compensation commissioner. However, we reverse that part of the district court judgment dealing with the apportionment of benefits for the March 21, 2001, and the July 31, 2002, injuries. Additionally, we vacate that part of the district court judgment dealing with the credit for benefits issue because the commissioner did not consider the issue at the agency level.

AGENCY APPEAL

WILSON V. JBIC, L.L.C. AKA JBIC MUSTANG EXPRESS, JULIE ANDERSON, 5024004 (7-17-09)

Claimant appeals on a number of points. AFFIRMED IN PART & REVERSED IN PART

I agree with claimant that commencing permanency benefits on January 9, 2008 was improper. I also agree that such benefits commence at the end of the healing period. However, in this case the last healing period ended on December 22, 2007. Consequently, the permanency benefits shall commence December 23, 2007.

I cannot agree with the hearing deputy that an employer retained physician did not make a disability determination prior to the evaluation by Dr. Kuhnlein. The deputy felt that only an impairment rating qualifies as a disability determination under the statute. This is not correct. Two doctors retained by defendants issued opinions that claimant reached maximum medical improvement and could return to work without restrictions on work activity. This opinion clearly relates to claimant's disability, especially in an industrial case where the ability to work and earn wages is a vital concern.

Dr. Kuhnlein's entire $5,612.50 IME fee will be awarded. WALSHIRE

AGENCY APPEAL

EAKINS V. PILGRIM'S PRIDE CORPORATION, 5021903 (7-14-09)

Permanent total industrial disability award AFFIRMED with additional analysis.

Claimant has met his burden of establishing total disability as he is a 59 year old worker with a high school diploma who due to restrictions resulting from his workplace injury was terminated from his employment position with defendant-employer. Claimant has a distinguished and admirable military record, but he is incapable of returning to such service. Claimant is likewise incapable of returning to over-the-road truck driving he performed for a significant part of his post-military career. Following his injury claimant was allowed to perform light duty janitorial work. This janitorial work consisted of minor sweeping and cleaning bathrooms, a break room, and a shipping office for four hours per day. The employer ultimately was unable to continue to accommodate claimant's significant restrictions imposed by the authorized physician. Due to claimant's age and limited education it is not reasonable to expect that retraining efforts would be particularly successful.

The refusal of defendant to maintain claimant's employment in any full-duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability. An employer knows the demands that are placed on its workforce. Its determination that the worker is too disabled for it to employ is entitled to considerable weight. If the employer in whose employ the disability occurred is unwilling to accommodate the disability, there is no reason to expect some other employer to have more incentive to do so.

AGENCY APPEAL

RODRIGUEZ V. TYSON FRESH MEATS, INC., 5019814 (7-13-09)

Deputy award of 15 weeks PPD for bilateral scheduled injury, MODIFIED to 100 weeks for 20% PPID to body as a whole.

The treating physician identified shoulder muscle pain on each time he examined claimant. Claimant and his wife at hearing testified that this pain is not limited to the hands and arms, but includes the shoulder. Pain into his shoulder has been a consistent complaint during the entire course of his treatment. Consequently, the impairment rating based on chronic pain, is appropriate and specifically includes chronic shoulder pain.

Claimant's assertion that my analysis in Jefferson v. Eagle Ottawa, File No. 5013791 (App. February 28, 2007) is applicable to this case and is largely correct. Where claimant's pre-injury occupation involved repetitive use his extremities and this work injury has restricted repetitive use of these extremities, claimant's ability to compete for jobs in the labor market for which he is bested-suited has been significantly reduced. Although claimant has returned to all aspects of his job with defendant-employer, he has done so contrary to the recommendations of his treating doctor.

AGENCY APPEAL

CULPEPPER V. FERGUSON ENTERPRISES, INC., 5023819 (7-13-09)

Claimant appealed failure to award PPID. MODIFIED, 50% PPID awarded.

The deputy based his conclusion on an opinion of Dr. Rozek that claimant could return to full duty. The hearing deputy misstated his own earlier findings in his decision that Dr. Rozek opined that claimant could return to any job, except heavy lifting.

As a result of this work injury, claimant lost her job at Ferguson and is unable to return to most of the jobs she held in the past as they required heavy lifting such as her past jobs with Omega Cabinets, Bertch Cabinet Manufacturing, and Roskamp, the jobs for which she was best suited given her age, education and work experience.

Claimant as a result of this injury has suffered a significant loss of actual earnings from her inability to return to Ferguson or to heavy manual labor and is now working only part-time.

Claimant does have some post high school education, but to date claimant has never held an administrative job. WALSHIRE

SUPREME COURT

MANNES v. FLEETGUARD, INC., 08-0057 (7-10-09)

Employer challenges district court's decision remanding workers' compensation case. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mannes filed two workers' compensation claims against her employer, Fleetguard, Inc. The deputy commissioner awarded her benefits for one injury but not the other because she was unable to demonstrate she was injured on the specific date alleged. On judicial review, the district court remanded the case to determine whether Mannes suffered an injury on a different date. On remand, the deputy commissioner determined Mannes suffered an injury (albeit on a slightly different date) and awarded her permanent partial disability benefits. The decision did not address temporary benefits, penalty benefits, costs, or the full responsibility rule. On judicial review, the district court remanded the case to address these issues. Fleetguard appealed. Because temporary partial benefits cannot be awarded as a matter of law where there has been no reduction in income, §85.33(4), the district court erred in remanding the case on that issue. However, remand is appropriate on the other issues since the commissioner did not rule on them.

SUPREME COURT

IBP, INC. v. BURRESS, 07-1887 (7-10-09)

On review from the Iowa Court of Appeals, Claimant challenges district court's determination that his brucellosis was an occupational disease and not an injury. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED.

Burress contracted brucellosis while working at IBP, Inc.'s meat-packing plant. He did not discover he had the disease until six years after he left IBP's employment. The Agency determined brucellosis was an injury, not an occupational disease.

If Burress suffers from an occupational disease, his claim is barred by the statute of repose. See Iowa Code § 85A.12 ("An employer shall not be liable for any compensation for an occupational disease . . . unless disablement or death results . . . within one year . . . after the last injurious exposure to such disease in such employment . . . .") However, if his brucellosis is an injury, his claim is not time barred.

Just because brucellosis is listed in Iowa Code section 85A.11 does not mean brucellosis is always considered an occupational disease. Our case law has established that a disease can be an injury for purposes of chapter 85 when " 'the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection.' "

The district court reversed, concluding Burress suffered from an occupational disease, not an injury. The court of appeals reversed the district court. Because Burress contracted brucellosis from a traumatic event, it is an injury, and he is entitled to benefits under Iowa Code chapter 85 (2009).

AGENCY APPEAL

GUDAHL V. R.S. BACON VENEER COMPANY, 5022325 (7-9-09)

Deputy decision AFFIRMED with the added analysis.

As explained by the treating doctor, in language quoted by the presiding deputy, the incident may have been minor to a normal worker, but it was significant for claimant given his susceptibility to injury due his preexisting spine condition.

COURT OF APPEALS

MERCY MEDICAL CENTER-NORTH IOWA v. FISTLER, 9-301 / 08-1784 (7-2-09)

Debra Fistler was employed as a custodian by Mercy Medical Center. She had surgery for calcific tendinitis in 2002. The condition returned, and she had a second surgery in 2004.  Fistler testified she was informed in 2004 that her condition was work related. The deputy workers' compensation commissioner determined the manifestation and discovery date for Fistler's injury was October 5, 2004. The deputy concluded her claims were not barred by the notice provision of Iowa Code §85.23 (2005), or the statute of limitations found in §85.26. The workers' compensation commissioner affirmed and adopted the deputy's findings.  On judicial review, the district court affirmed the commissioner. The employer appealed. OPINION HOLDS: There is substantial evidence in the record to support the commissioner's findings that it was not until October 5, 2004, that Fistler, as a reasonable person, knew her physical condition was serious enough to have a permanent adverse impact on her employment or employability. The first surgery in 2002 was fairly limited in scope, and she returned to work after a short period of time without limitations. The second surgery, performed on October 5, 2004, was more extensive, and there is substantial evidence to show that after the second surgery Fistler knew she had a serious condition. 

AGENCY APPEAL

HAYES V. CARGILL MEAT SOLUTIONS, 5016708 (7-2-09)

Claimant appeals asserting that the presiding deputy commissioner failed to award additional permanent partial disability above the impairment ratings. AFFIRMED

Claimant was released to full duty without the need for restrictions for both her upper and lower extremities; initial testing of claimant's functional capacity exhibited a sub- maximal effort by claimant; claimant's complaints of lack of functional ability are out of proportion to the observations of her physicians following her surgeries; and that claimant has been able to return to work with her employer without an impact on her employer's expectations of her ability to function at work.

Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript.

AGENCY APPEAL

HOFER V. SNAP-ON TOOLS MANUFACTURING, 5023271 (7-2-09)

Defendants appeal Deputy's MMI date. AFFIRMED

On 5-31-05 a PA marked a box indicating, "has reached MMI". Defendants contend claimant reached maximum medical improvement on that date and no temporary partial disability benefits, or penalty benefits for failure to pay them, should be awarded after that date.

However, after the box indicating "has reached MMI", the PA added a note stating "for this flare-up". This indicates claimant had reached maximum medical improvement for the flare-up only, not for the underlying condition. Earlier in the report he has written "no overtime x 3 mos, to September 1st". This is clearly imposition of a temporary restriction.

The deputy's determination that claimant did not reach maximum medical improvement until February 28, 2006, when a permanent restriction against working overtime was imposed, is affirmed.

As the PA's notes were clear, the award of penalty benefits for failing to pay those temporary partial disability benefits is also affirmed. HEITLAND

AGENCY APPEAL  

WILLIAMS V. 5TH JUDICIAL DISTRICT DEPARTMENT OF CORRECTIONS, 5023266 (6-29-09)

Claimant appeals denial for TB claim. AFFIRMED

While the personnel technician admitted that other employees in 2005 or 2006 had tuberculosis, there was no showing that claimant worked with these individuals for a sufficient period of time or in sufficient proximity to acquire the disease. Claimant proved that there was a possibility that he could have acquired tuberculosis in his employment.

Defendant also persuasively proved that there was a possibility that he could have acquired the disease outside of his employment. Claimant has failed to prove causation by a preponderance of the evidence.

SUPREME COURT

TRAVELERS V. COMMISSIONER OF INSURANCE, 06-1087 (6-26-09)

Workers' Compensation carrier seeks appeals ruling of the commissioner of insurance concluding the insurer charged an excessive premium for workers' compensation coverage under the assigned risk pool. REVERSED

The commissioner's finding that the insured obtained alternative workers' compensation insurance coverage for its interstate transportation services from an insurer other than Travelers is not supported by substantial evidence in the record. We therefore reverse the commissioner's order.

COURT OF APPEALS

BROADLAWNS v. SANDERS, 9-296 / 08-1643 (6-17-09)

Broadlawns Medical Center (BMC) appeals from the district court's ruling on judicial review, affirming the award of workers' compensation benefits to its former employee, Rose Sanders. BMC argues that the commissioner erred in (1) finding Sanders was entitled to additional temporary benefits, (2) finding Sanders sustained a permanent mental injury, and (3) awarding penalty benefits. OPINION HOLDS: Sanders did return to "substantially similar" employment, and thus the award of temporary partial disability is reversed, as it was based on the agency's erroneous interpretation of the law. Finding no evidence in the record to support the agency's conclusion that Sanders's injury was permanent, the award of permanent partial disability is also reversed. Therefore, in reversing the agency's decision to award temporary and permanent partial disability, we reverse the award of penalty benefits.

COURT OF APPEALS

HOEFT v. FLEETGUARD, INC., 8-810 / 07-0551 (6-17-09)

An employer and its insurance carrier appeal, and petitioner cross-appeals, a district court decision remanding the decision of the Iowa Workers' Compensation Commissioner for further findings concerning petitioner's medical condition. OPINION HOLDS: I. Hoeft's Iowa Rule of Civil Procedure 1.904(2) motion and later motion for additional time to file a rule 1.904(2) motion were untimely and did not extend the time for filing a notice of appeal. The appeal is thus not interlocutory in nature, and we have jurisdiction to address the issues raised. II. The district court erred by finding the commissioner had decided an issue not raised by the parties in the intra-agency appeal. III. The district court erred in finding that the commissioner's decision did not comply with Iowa Code section 17A.16(1)'s requirements that the decision include findings of fact and conclusions of law, separately stated.

COURT OF APPEALS

DES MOINES REGISTER v. SHARON, 9-346 / 08-1678 (6-17-09)

Donna Sue Sharon appeals from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner. She claims the agency erred in finding she was required to utilize the health service dispute resolution procedure set forth in Iowa Administrative Code rule 876-10.3 before filing a contested case proceeding seeking home nursing expenses under Iowa Code section 85.27 (2005). OPINION HOLDS: The district court erred in affirming the agency's determination that rule 876-10.3 applied to the facts of this case. The judgment of the district court is therefore reversed and the case is remanded to the agency to determine the reasonable value of the claimed home nursing services

COURT OF APPEALS

EATON CORPORATION v. BRANSON, 9-384 / 08-1537 (6-17-09)

Employer appealed a from the bench dismissal of a petition to enforce settlement, and for punitive damages. AFFIRMED.

Claimant refused to sign written settlement documents. Employer primarily contends the District Court erred in concluding there was not enforceable settlement agreement.

After settlement discussion, Claimant testified that he told the adjustor that, he thought that offer "was more fair than the last offer but [he] wanted to see the papers on it." The adjustor testified that Claimant actually accepted his settlement offer.

We agree with the trial court's conclusion that Eaton did not sufficiently establish by the required "clear, satisfactory, and convincing evidence" that the parties entered into an enforceable oral settlement agreement. Giving weight to the trial court's credibility determinations, we agree that this appears to be a situation where the participants in the phone call were on different wavelengths and may have misunderstood what each other was saying

SUPREME COURT

KOHLHAAS V. HOG SLAT, INC., 08-0589 (6-12-09)

Claimant appeals denial of review-reopening and denial of reimbursement of §85.39 IME expense. REVERSED & REMANDED on review-reopening and AFFIRMED ON IME expense.

The Agency and District Court relied on the holding in Acuity Insurance v. Foreman, 684 N.W.2d 212, 217 (Iowa 2004), which states that the Agency must determine (1) whether there has been a change in the worker's condition as a result of the original injury, and (2) whether this change was contemplated by the parties at the time of any settlement . . . or whether it was beyond what the Agency contemplated at the time of the original assessment of industrial disability.

Claimant contends the rule from Acuity that the change in condition "must not have been within the contemplation of the decision maker at the time of the original award" is obiter dictum and, therefore, not binding precedent. Id. We agree. The language in Acuity is ambiguous, and seems to condone an agency's consideration of, or speculation about, future changes in condition or earning capacity at the time of the initial award.

In determining a scheduled or unscheduled award, the Agency finds the facts as they stand at the time of the hearing and should not speculate about the future course of the claimant's condition.

Likewise, in an unscheduled whole-body case, the claimant's loss of earning capacity is determined by the Agency as of the time of the hearing based on the factors bearing on industrial disability then prevailing&emdash;not based on what the claimant's physical condition and economic realities might be at some future time.

Although we do not require the claimant to demonstrate his change in condition was not contemplated at the time of the original settlement, we emphasize the principles of res judicata still apply&emdash;that the agency, in a review-reopening petition, should not reevaluate an employee's level of physical impairment or earning capacity if all of the facts and circumstances were known at the time of the original action.

We agree with the commissioner and the district court that Iowa Code §85.39 does not expose the employer to liability for reimbursement of the cost of a medical evaluation unless the employer has obtained a rating in the same proceeding with which the claimant disagrees.

AGENCY APPEAL

HORNE V. CASE NEW HOLLAND, 5027707 (6-2-09)

Deputy awarded mileage and lost wages for Claimant's §85.39 IME. Defendants appealed lost wage award. REVERSED.

§85.39 does include mileage for a Claimant's IME, but not reimbursement for lost wages, as it does for an Employer's IME.

Claimant's application for reimbursement of lost wages incurred while attending a section 85.39 employee-requested IME is DENIED.

COURT OF APPEALS

ESTATE OF RISK v. RISK & UNION INSURANCE COMPANY OF PROVIDENCE, 9-197 / 08-1573 (5-29-09)

Insurance company appeals the district court's grant of summary judgment to defendant on its subrogation claim. REVERSED AND REMANDED.

Dr. Risk was killed in a motor vehicle accident in which he was the passenger in a vehicle driven by his wife, Alice who was his office manager. They were on their way to a medical conference. His estate filed a negligence action against Alice, and the workers' compensation insurer intervened seeking subrogation under §85.22 for surviving spouse benefits paid Alice. The estate then dismissed, with prejudice, its action against her.

The insurer moved to set aside the dismissal and for substitution of itself as plaintiff.

The District Court permitted the intervention and substitution.

Hearing was held on whether she was acting as a coworker, who under §85.20(2)could be recovered against only on a showing of gross negligence, or outside the scope of her employment, and, thus liable for ordinary negligence. the District Court found her to be acting outside the scope of her employment.

She filed a motion for summary judgment asserting that as the surviving spouse receiving workers' compensation benefits, she stood in the shoes of the injured employee. The District Court agreed and concluded that, allowing a workers' compensation insurer to recover from a surviving spouse the very benefits it was paying her as a surviving spouse was contrary to public policy, and dismissed.

HELD: Under section §85.22 an insurer may seek indemnification from a surviving spouse for workers' compensation death benefits paid when the employee's estate receives damages from a third-party tortfeasor. Also, section 85.22 only sets forth employers and employees as specified in section §85.20 as persons who may not be a third party. We have found no authority to support Alice's claim. Furthermore, the operation of section §85.22 in this case is not contrary to public policy. The purposes of section 85.22 are to prevent double recover.

AGENCY APPEAL

COOK v. JOHN DEERE DES MOINES WORKS, 5018887 (5-22-09)

The Deputy was unable to find that claimant sustained any permanent disability as a result of a stipulated, traumatic work injury. REVERSED.

The Deputy did not consider the most important aspect of this case, that prior to this work injury claimant was able to perform heavy manual labor and had no permanent restrictions on his work activity. The pre-employment physical conducted only nine months before the work injury coupled with claimant's months of unrestricted work verified his prior full duty ability to work. Following his injury, claimant was provided with restrictions following a valid functional capacity evaluation and he never returned to his pre-injury employment position.

The medical opinions of Dr. Boulden are more convincing than those of Dr. Berg, despite the fact that Dr. Berg claims to have uncovered a new basis for claimant's development of pain. First, the credentials of Dr. Boulden as a board certified orthopedic surgeon are far superior to those of Dr. Berg. Second, Dr. Boulden is the only doctor to have treated claimant's low back before and after this injury. Third, Dr. Berg was unable to explain how the lipomas he theorized caused claimant's pain were symptomatic only after the crush injury. Dr. Boulden is far more familiar with claimant's low back condition than any other doctor in this case. It is not uncommon for radicular pain to have a delayed onset from the initial low back injury. Herein, claimant's medical records document low back pain, followed by hip pain, followed by buttock pain, and ultimately pain extending down his left leg.

Considering all of the factors of industrial disability it is concluded that claimant sustained a 25 percent loss of his earning capacity as a result of the work injury

COURT OF APPEALS

ROCKWELL COLLINS v. ACHEY, 9-242 / 08-1775 (5-6-09)

Employer appeals permanent total disability award based on back injury and depression. AFFIRMED.

    Approximately one year after the injury, Claimant retired early, stating she could not take the pain anymore. She underwent surgery, participated in physical therapy and a spine rehabilitation program for chronic pain sufferers, and received steroid injections and medication to alleviate the pain. Prior to her 2001 work injury, she was diagnosed with depression. In the opinion of one professional, that condition was aggravated by the injury.

    In finding her unfit for gainful employment, the commissioner relied on the opinion of Dr. Chen, who stated, "[R]eturn to any type of regular employment is not appropriate for you based on the nature of the flare-ups that you experience and continued significant limitation."

COURT OF APPEALS

INTERNATIONAL PAPER CO. v. BUEKER, 9-239 / 08-1536 (5-6-09)

Defendants appeal tinnitus award on statute of limitations, date of injury and extent of PPID. AFFIRMED.

    From 1978 to 2005, Claimant was exposed to loud noises from a machine that produced paper. He worked within twenty-five feet of an "extremely loud" siren that was needed to alert the machine tender over the noise of the machine when there had been a failure on the machine. The siren would sometimes go off for thirty minutes at a time. Claimant was also subject to a steam whistle located on top of the siren, which would go off when pressure built up in the machine. Although Claimant wore hearing protection throughout his employment, both the siren and the steam whistle could be heard approximately sixteen blocks from the plant and caused neighbors to complain about the noise.

    He first noticed ringing in his ears, or tinnitus, in 1982. He failed a hearing test in November 2004. By that time, Claimant's tinnitus had become constant. Currently, the constant ringing in Claimant's ears makes it hard for him to sleep, which leaves him tired and feeling sick throughout the day. He also has difficulty concentrating and communicating with others.

    His stated injury date was August 29, 2005, his last day of employment with International Paper.

    Whether a worker knew or should have known of the nature, seriousness, or compensable nature of an injury is a question of fact to be determined by the commissioner. As the district court noted, "Until the paper mill closed in 2005, the Respondent's tinnitus had been a mere distraction and had never actually interfered with his job performance." We agree.

    Substantial evidence in the record supports the 15% PPID awarded.

AGENCY APPEAL

HERRERA V. SOUTHEAST POLK COMMUNITY SCHOOL DISTRICT, 5021555 (4-30-09)

Defendants appeal award based on aggravation of somatization disorder. AFFIRMED.

    Doctors who opined otherwise were not convincing in stating that the injury played no role in precipitating this disability in light of the fact that she was working at the time of the fall and only left work after the fall. The views of defendants' doctor were inconsistent and demonstrated a lack of understanding of the law on aggravation injuries. While stating that the work injury did not precipitate the disorder, the doctor stated that the disorder was "her response to stressors" and this would be her response to any injury. WALSHIRE

AGENCY APPEAL

MOORE V. ALCOA, INC., 5015436 (4-20-09)

Defendant appeals failure to allow additional time to respond to Claimant's late offered expert report. AFFIRMED.

    While it was concluded that the report should not have been admitted without allowing Defendant additional time to respond. And, Claimant clearly violated our division's rules on exchanging practitioner reports as well as the provisions of the hearing assignment order.

    Defendant admits that absent Exhibit 2, the treating doctor opined that CRPS was possible. The treating doctor's opinion was bolstered by the definite diagnosis of CRPS in the late offered report and also by claimant's symptoms of palm sweating, color changes, and abnormal chronic pain &endash; symptoms that even the doctor relied upon by Defendant admits are symptoms of CRPS.

    Under these circumstances it would be unjust to disturb the presiding deputy's finding that the work injury was a cause of complex region pain syndrome.

AGENCY APPEAL

ISLAMOVIC V. TYSON FOODS, INC., 5020884 (4-20-09)

    "The presiding deputy commissioner's award of twenty (20) percent permanent partial disability is affirmed. The award of industrial disability benefits, however, is premised upon defendant's reinstatement of claimant's employment post-injury with an anticipated return to employment with Tyson Fresh Meats."

    Note: For the potential significance of this modification on review-reopening, should he get worse and be terminated, see, Fodor.

AGENCY APPEAL

BANNISTER v. BSA REALTY MANAGEMENT, 5018039 (4-17-09)

Defendants appeal failure to apportion out prior disability. AFFIRMED.

   Prior to the legislative changes to Iowa Code section 85.34 in 2004, Iowa courts had previously adopted the so called "fresh start rule."

   This legislation codified the fresh start rule applicable in this case. The fresh start rule is based upon the premise that a worker's earnings in the competitive labor market at the time of a work injury are reflective of that worker's earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his employment prior to a work injury, the impact of that impairment or impediment upon that worker's earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

AGENCY APPEAL

NAVRUDE V. TRIPLE "C" ROOFING, INC., 5021802 (4-17-09)

Claimant appeals 80% PPID award, seeking permanent total. MODIFIED.

    Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however.

    Claimant is a 73 year old worker with severe restrictions on his ability to perform manual labor, the only work for which he is qualified. It is undisputed that he cannot return to the only job he has had since 1984, which is very physical roofing work. Despite his motivation to look for work since his medical recovery, he has not found any employers willing to hire him.

    Whether or not claimant can perform some work is not the issue in this case. Rather, the issue is whether such work is available to claimant in the competitive labor market. Considering claimant's unsuccessful job search and the uncontroverted views of the vocational counselor, claimant presented a prima facia case that such work is not available to him. Although claimant may have the ability to perform some type of non-physical labor, there is no guarantee that that will occur in the foreseeable future. The odd-lot doctrine was pled in the petition and under that doctrine, when claimant makes such a showing, the employer must go forward with the evidence to show availability of suitable employment. That was not done in this case.

AGENCY APPEAL

MAIN V. QUAKER OATS COMPANY, 5008782 (4-16-09)

Defendants appeal review-reopening based on increased restrictions. AFFIRMED.

    At the time of the prior arbitration proceeding it was found that the doctor gave claimant restrictions of no repetitious overhead or shoulder level work. After that decision, another physician restricted not only repetitive overhead and shoulder level activity, but also overhead, shoulder level, and full forward reaching activity to only

occasional use not to exceed 20 pounds of force.

    "More importantly, (the doctor) at that time had opined that claimant should not return to his job at Quaker Oats." (Strike through added?) "The arbitration decision anticipated a return to work without loss of earnings or rate of pay given the wording of the presiding deputy in his industrial disability analysis."

    The Deputy commissioner's award of 50 percent industrial disability is affirmed. A refusal by the employer to return an injured worker to work due to new permanent restrictions is evidence of a significant loss of employability.

AGENCY APPEAL

FODOR V. AIRGAS NORTH CENTRAL, INC., 5014325 (4-15-09)

Claimant appeals denial of additional benefits on second review-reopening, after termination. REVERSED.

    After his injury Claimant has continued his employment as a cryogenics service technician for the employer.

    In the arbitration decision it was found that, "Claimant's previous work experience largely involved heavy labor or heavy equipment operation or both. He is unlikely to be able to return to this type of work should he no longer be employed as a cryogenics service technician."

    After the arbitration hearing and decision, claimant continued in his job, but states that his shoulder soon began to cause him increasing problems. He returned to the treating physician who felt that there was nothing further he could do other than to take him off work. Initially this leave was considered temporary, but he never returned to work at Airgas or anywhere else.

    After an FCE, the Employer initiated a review by Concentra to identify the specific job requirements of claimant's job. Mayo physicians compared the results to the Concentra job requirements and formally concluded that claimant could not meet those job demand criteria.

    Based on this testing and an interview with claimant, the Employer concluded that claimant was unable to perform ten essential job functions and that accommodation by using co-workers to perform those functions was not available. The Employer thereafter terminated claimant's employment. It was concluded that claimant's termination was not due to a refusal to continue accommodations.

    The added left shoulder complaints in 2008 clearly accelerated the loss of his job. Nothing in this record suggests that this increased disability due to a worsening of the left shoulder condition was anticipated by anyone at the time of the initial arbitration proceedings. Claimant's increased shoulder problems were the proverbial straw that broke the camel's back.

    Refusal of defendant-employer to maintain claimant's employment in any full duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability. An employer knows the demands that are placed on its workforce. Its determination that the worker is too disabled for it to employ is entitled to considerable weight. If the employer in whose employ the disability occurred is unwilling to accommodate the disability, there is no reason to expect some other employer to have more incentive to do so.

    The offer of a seasonal lawn mowing job which he likely cannot perform with his present restrictions does little to establish that claimant is capable of finding suitable, gainful employment for which his experience, training, and education have prepared him. Claimant's medical restrictions have resulted in a worker unable to return to any gainful employment. Permanent total disability awarded.

AGENCY APPEAL

CRAWFORD V. MAYTAG COMPANY, 5022533 (4-14-09)

Defendants cross-appeal award of second IME expense as a cost. REVERSED.

    Treating physician rated Claimant as having no permanent impairment in either of his shoulders or his knee. Claimant obtained an IME of these areas under §85.39.

    Thereafter treating physician operated on Claimant's right shoulder, and later rated his functional impairment. Claimant obtained a second IME claiming the expense as a cost under §85.39.

    Although, the Deputy's order of reimbursement was in line with this agency's prior rulings that subsequent treatment and rating examinations necessitate additional IME's under section 85.39, the Iowa Supreme Court has recently ruled that §85.39 limits an injured worker to one IME, regardless of the number of rating examinations obtained by the employer or its insurance carrier. See, Thorson II.

AGENCY APPEAL

BUSH V. EATON CORPORATION & SECOND INJURY FUND, 5021931 (4-9-09)

PPD award for scheduled member based on scheduled member condition not rated in AMA Guides. AFFIRMED.

    The deputy found one body as a whole impairment for this bilateral injury case, rather than making a finding as to each arm and then combining these ratings using the AMA Guides.

    In making an assessment of the loss of use of a scheduled member, the evaluation is not limited to the use of a standardized guide such as the AMA Guides. Lay testimony and demonstrated difficulties from claimant must be considered in determining the actual loss of use so long as loss of earning capacity is not considered.

    Notwithstanding suggestions to the contrary in the AMA Guides, this agency has long history of recognizing that the actual loss of use which is to be compensated is the loss of use of the body member in the activities of daily living, including activities of employment. Pain which limits use, loss of grip strength, fatigability, activity restrictions, and other pertinent factors may all be considered when determining scheduled disability. WALSHIRE

AGENCY APPEAL

TICKAL . PERKINS FAMILY RESTAURANT, 1275145 (4-7-09)

Claimant asserts Deputy failed to consider new permanent restrictions. AFFIRMED.

    While the deputy found the new restriction following the third back surgery against lifting over 20 pounds to be work related, the award of a 10 percent industrial disability is appropriate, for a person who could still return to the same job she held before the third surgery and the last review-reopening proceeding.

    Claimant offered little evidence other than her physical impairments to show a greater loss of access to the labor market. WALSHIRE

AGENCY APPEAL

ANDERSON V. HAWKINS-MARSH FORD, 5004158 (3-31-09)

Calculation of average weekly wage, and, thus, rate, after promotion. MODIFIED.

    Statutes for computation of wage base are to be applied, not mechanically nor technically but flexibly, with a view toward achieving the ultimate objective of reflecting fairly the claimant's probable future earning loss.

    To achieve a compensation rate that fairly reflects claimant's probable future earnings loss, it was error to disregard her new hours and wage rate considered customary following a significant promotion. The presiding deputy included weeks when claimant was working only part-time prior to a promotion and at a compensation rate tied to her prior position.

    Had claimant received a demotion and a significant reduction in pay and hours which was likewise undisputed, the customary weeks would be the weeks following the demotion &endash; as such a finding would again achieve a fairly reflective calculation of the workers' gross weekly earnings.

COURT OF APPEALS

WILSON V. ISLE OF CAPRI CASINO, 9-059 / 08-1264 (3-26-09)

Defendant appeals denial of stay of enforcement of District Court judgment of award. REVERSED.

    "The district court balanced each of the factors and found the casino failed to meet its burden. We disagree. The casino has a strong likelihood of prevailing in judicial review, and while this factor is not dispositive, the remaining factors weigh in favor of issuing the stay. The fact that Wilson lives paycheck-to-paycheck does suggest that the casino could have difficulty retrieving the award from Wilson if it ultimately prevails. Under the third factor, we do not find evidence that Wilson will be substantially harmed if a stay is issued. The commissioner found that Wilson only had a permanent partial impairment rating of five percent and has no work restrictions. At the time of the workers? compensation hearing, Wilson continued to be employed at the casino and had not suffered any loss of earnings from the injury. Finally, we do not find the public?s interest in the prompt and efficient determination and award of benefits to injured workers justifies denial of the stay."

COURT OF APPEALS

FITZPATRICK v. SQUARE D, 9-106 / 08-0945 (3-26-09)

Claimant appeals District Court ruling affirming Commissioner's appeal decision failing to award PPD. AFFIRMED.

    Claimant suffered from back pain throughout her employment, she fractured two vertebras in her back after falling off a horse. Her complaints of back pain began to increase in the following years.

    While lifting a breaker and leaning over a table, she felt a "tremendous pain" "like a big burning sensation" in her lower back. She completed her shift and attempted to work the following night, but the pain worsened. she decided to seek treatment.

    A physician imposed permanent work restrictions, however, did not believe she suffered any permanent impairment. He characterized the restrictions as preventative and necessary due to her "age, degenerative disc disease, and general level of conditioning."

    The deputy workers? compensation commissioner determined claimant proved "that she sustained a temporary aggravation, but did not prove that she "sustained a permanent injury as a result of her work injury and denied her request for permanent partial disability payments commissioner affirmed and adopted the deputy?s decision. The district court affirmed.

    The Court found the evidence sufficient to conclude, as deputy did here, that Claimant had a long history of back problems preceding her work injury, and that there was substantial evidence to support the agency?s determination.

COURT OF APPEALS

CATIC v. HY-VEE, INC., 8-1059 / 08-1206 (3-26-09)

Claimant appeals denial of her back injury claim. AFFIRMED.

    Claimant tripped over a mop bucket while at work. The Employer admitted that as a result of this fall she had sustained an injury to her left hand, wrist, or arm, and paid medical benefits, through its workers' compensation insurance carrier.

    Claimant filed a petition with the Iowa Workers' Compensation Commissioner, claiming she had sustained an injury to her back, as well as permanent injury to her left wrist. A Deputy determined that, while she had sustained injury to her left wrist, she sustained no permanent disability. The deputy further concluded that Claimant did not sustain a work-related injury to her lower back.

    The Commissioner summarily affirmed the deputy's arbitration decision and adopted it as final agency action.                     

    Claimant filed a petition for judicial review with the district court, and the court affirmed.

   Claimant asserts that the district court applied an incorrect legal standard in affirming that had not met her burden to prove her present back pain was caused by her work-related fall.

    The Court reached the same conclusions and found no merit to her claims of error by the District Court. 

AGENCY APPEAL

WEBSTER V. EATON CORPORATION, 5019482 (3-25-09)

Defendant appeals award of HP, deference to unemployment ALJ, IME expense and denial of cross-examination regarding surveillance. AFFIRMED.

    Defendant failed to show that claimant's termination was equivalent to a refusal to work. While a decision by an ALJ in a claim for unemployment benefits is not binding on the DWC, Iowa Code §96.6(4) does not prohibit giving deference to it.

    Nothing in §85.39 requires that a Claimant notify a Defendant before an examination by a physician of Claimant's choice to obtain reimbursement for the examination. "The only condition precedent is a disability opinion by a physician retained by the employer which claimant believes is too low."

    Disallowing cross-examination concerning surveillance activities shortly before hearing was proper, where among other things, it was inadmissible as late and the questions asked of claimant could have no probative value without reliance on it.

AGENCY APPEAL

MCKENZIE V. VERIZON BUSINESS NETWORK SERVICES, INC., 1253297 (3-24-09)

Defendants appeal review-reopening based on failure of Claimant to improve after weight loss anticipated in the prior arbitration decision. AFFIRMED.

    At the time of the prior arbitration proceeding a significant portion of claimant's pain and disabling complaints were attributed to her morbid obesity. Most physicians recommended weight loss to improve her complaints and disability, and the Deputy found that her recovery was complicated by obesity and that the reason the medical providers had not resolved her symptoms was that they were due to her personal situation, primarily her obesity.

    Since the arbitration, and in response, claimant on her own underwent surgery and demonstrated significant motivation to improve her condition as anticipated by losing 242 pounds. Claimant now weighs 153 pounds.

    She, however, had only slight improvement in her pain and did not improve as anticipated. Her disability was, thus not shown to be attributable to obesity and the previous award was appropriately adjusted by the presiding deputy upon review-reopening.

    It was further concluded that the weight loss surgery constituted reasonable and necessary treatment of the work injury. Also, absent any showing of it being simply for cosmetic purposes, follow-up surgery to remove excess skin following claimant's massive weight loss is reasonable and necessary treatment of the work injury.

AGENCY APPEAL

KENT V. DIAMOND SHINE MANAGEMENT SERVICES, INC., 5021501 (3-20-09)

Claimant appealed failure to follow stipulation, extent of PPID and rate, and Defendants cross-appeal on failure to follow stipulation and extent of PPID. AFFIRMED and MODIFIED.

    Although, the Deputy did err in believing injury to both shoulders was stipulated, injury to the contested side was found due to work activities coupled with compensating for injury to the other shoulder. The Deputy also erred in failing to address the bilateral arm claims.

    The Deputy awarded 40% PPID on the shoulder injuries, but did not consider the arms. After discussion of the factors of PPID, and noting that the refusal of the Employer to, "maintain claimant's employment in any full-duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability." The Commissioner awarded 70% PPID.

    Several of the 13 weeks prior to injury were excluded, from calculation of the 13 week average for AWW  & rate calculation, as unrepresentative in that they included weeks with holidays for which he was not paid, in which the company truck was broken and he could not work, in which claimant was unable to work due to a back strain and due to inclement weather, and in which he was unable to work due to a coworker being unavailable to work as his partner.

SUPREME COURT

GEORGE v. D.W. ZINSER COMPANY,  07-1495(3-13-09)

Employee appeals dismissal of retaliatory discharge & unpaid wage claims. Court of Appeals AFFIRMED in part & VACATED in part; District Court REVERSED.

   Whistleblower fired after reporting lead abatement safety violations to IOSHA was terminated soon after. Complaints filed with IOSHA and District Court were dismissed.

    District Court found Division dismissal precluded action before it. However, the Division's investigation and dismissal was not an adjudication on the merits, and the remedy provided in IOSHA is not exclusive, so preclusion was not appropriate, and Employee may bring a common law action for wrongful discharge.

    The Employee did not have a full and fair opportunity to present evidence or respond to the Employer's position. He had little to no control over the agency's investigation. The Division did not hold a hearing on the issue. It only conducted an informal nine day investigation. The parties were not afforded a full and fair opportunity to litigate the matter in dispute. The only participation by the Employee in the process was the filing of a complaint.

    Court of Appeals affirmed dismissal of discharge claim, but reinstated wage claim.

    Issue preclusion, res judicata, exclusive remedy, wage and retaliatory/wrongful discharge issues were all discussed, as well as the public policy behind retaliatory/wrongful discharge, all discussed, and now applied to complainants, as they have been in workers' compensation matters.

SUPREME COURT

LARSON MANUFACTURING v. THORSON, 06-0799 (3-13-09)

Employer & Insurer appeal denial of stay of enforcement of judgment. AFFIRMED.

    Review of the record disclosed the district court did balance the factors enumerated in section 17A.19(5), including the extent to which Defendants were likely to prevail in the judicial review. The decision recent decision in Thorson II, revealed the district court's correct assessment of the insubstantial likelihood that Defendants would prevail on judicial review, and no abuse of discretion was found in the court's consideration and balancing of this factor.

    The Due process issue was not reached in view of Defendants' posting of supersedas bond and lack of evidence of satisfaction of any part of the judgment before Thorson II was decided.

COURT OF APPEALS

BOWN v. HANDY INDUSTRIES, L.L.C., 9-024 / 08-0636 (3-11-09)

Claimant appeals dismissal of judicial review seeking benefits of shoulder, as opposed to elbow, injury, and award of credit for weekly benefits already paid. AFFIRMED.

    The Court found that viewing the record as a whole, substantial evidence supports the commissioner's determination that Bown did not establish a connection between the rotator cuff injury that was diagnosed in October 2004 and her August 1, 2002 work injury. Only one medical expert&emdash;Dr. Fabiano&emdash;offered an opinion that the two were related. As the commissioner pointed out, Dr. Fabiano's initial examination of Bown occurred over two years after the work injury. Other physicians who had examined or treated Bown in the interim, such as Drs. Murphy, Riggins, and Skaletsky, were unable to find any objective signs of a shoulder injury. Furthermore, Dr. Jochins, who examined Bown around the same time as Dr. Fabiano, specifically disagreed with his finding of a work-related shoulder injury.

     Claimant's arguments regarding credit were not preserved for appeal.

COURT OF APPEALS

BRIDGE v. KARR TUCKPOINTING CO., 8-993 / 08-0936 (3-11-09)

Former Employee appeals denial of cumulative knee injury claim based on 90 day notice requirement of §85.23. REVERSED & REMANDED.

    Claimant filed his petition on May 10, 2004 alleging May 17 and July 18, 2002 injury dates, the Deputy agreed with the July 18, 2002 injury date, since treatment had been sought on that date, but denied based on lack of timely notice. The District Court affirmed.

    However, on May 27, 2004, a physician reported that he believed Claimant's degenerative arthritis was not caused by work, but was "materially aggravated . . . and the necessity for arthroscopic surgery has been accelerated because of his type of work." This report marks the first time that Claimant received a medical diagnosis indicating that his condition was permanent and would require surgery. Until this report, there was no indication that Claimant was alerted to the seriousness, and therefore probable compensable nature of his injury which had aggravated his degenerative arthritis.

    The agency did not have substantial evidence to find that the ninety-day period for notice of "the occurrence of the injury" under Iowa Code section 85.23 had run prior to the information Claimant received from the doctor in March 2004.

AGENCY APPEAL

KAUFFMAN v. HEHR INTERNATIONAL, INC., 5007481 (3-5-09)

Claimant appeals denial of heart attack death claim on res judicata or issue preclusion. AFFIRMED.

    Claimant rightfully notes that if the state of Kansas imposes a greater burden of proof on claimant than would be applied under Iowa law then issue preclusion should not be applied in this case. However, after reviewing the Kansas cases cited by claimant in a well-researched brief, I am not able to conclude that Kansas does place a greater burden in such cases where there is a possible idiopathic cause of death or illness.

    While the decedent in this case certainly died in the course of his employment as a truck driver, there is insufficient evidence to show that this truck accident or claimant's death arose out of his employment. A preponderance of the evidence does not support a specific finding as to the cause of claimant's death. The experts relied upon by claimant, who opine for a traumatic cause of death, are contradicted by the lack of evidence of injury or trauma on the decedent's body. The only such evidence of a traumatic cause of death are claimant's broken ribs and the chest cavity bleeding, which a physician credibly explained were caused by the procedures taken by medical personnel to revive the decedent. The experts opining that the sole cause of death was a heart attack before the truck left the roadway are contradicted by witnesses who found a strong pulse in decedent after arriving at the scene of the accident.

AGENCY APPEAL

WILLIAMS v. KW PRODUCTS, INC., 5022944 (3-4-09)

Claimant appeals denial of penalty on scheduled member PPD where restrictions were medically imposed, but a 0% given. AFFIRMED.

    The issue is the extent of loss of functionality, an argument that the restriction is only prophylactic to prevent injury, rather than evidence of loss of function, is fairly debatable and sufficient grounds to deny permanent disability benefits without risk of a penalty, at least until this agency issues a final decision to the contrary.

AGENCY APPEAL

REINSCH v. WAYNE LARSON RACING SPECIALISTS, INC., 5018292 (3-3-09)

Defendants' appeal award based on reaching into a drawer to retrieve a computer disc and PPID for balance problem. AFFIRMED.

    While claim based solely on the reaching would not be compensable under Blue, the doctor, found medical causation based upon the drawer incident given additional history of lifting, bending, and being placed into awkward positions while performing mechanical work earlier on the day of the injury. Clearly, the doctor did not feel that the limited activity just before the onset of symptoms was the only causative factor.

    The Deputy's finding of permanency was based on claimant's credible testimony that he has a significant problem with balance due to post injury lower extremity problems. Regardless of the lack of any physician-imposed restrictions, this is a significant limitation for a worker with an employment history of high steel work. The law requires the commissioner to consider all evidence, both medical and nonmedical, in arriving at a disability determination.

SUPREME COURT

BOEHME v. FAREWAY STORES, INC., 07-2094 (2-27-09)

Claimant appealed denial of claim for additional benefits after alleged exhaustion of credit for third-party recovery. AFFIRMED.

    Claimant was injured when an ice cream cart fell on him. Medical and weekly were paid by the Employer.

    Six years later Claimant settled his third-party claim against the manufacture of the cart. Employer was reimbursed and had a credit for future benefits.

    After the credit was allegedly exhausted, Claimant filed a review-reopening seeking additional benefits and attorney fees. The Deputy found that the claim for weekly benefits was barred by the statute of limitations. On appeal to the Commissioner, Claimant asserted that the statute did not apply because of equitable estoppel. The Commissioner affirmed and determined that the estoppel issue has not been decided, although it was raised at hearing, the Deputy and was thus not preserved for appeal. The District court affirmed the Commissioner.

    While appeal on the statute of limitations issue was pending, the commissioner directed that hearing be held on the medical expense issue, and the Deputy hearing that issue, awarded medical, but found the attorney fee claim to be barred by Iowa Code §515B.2(b)(4) & (8) and the language of a Memorandum of Third-Party Settlement entered into by the parties.

    Claimant appealed this ruling as well and the Commissioner affirmed, finding that Claimant had failed to preserve estoppel and whether credits should be construed as payment of weekly benefits so as to extend the statute of limitations.

    The Court held that the Claimant had three years from the last payment of weekly benefits by the Employer, or its insurer, within which to seek additional weekly benefits.

    And, that IAC 876-4.28(7) only required that an issue be "presented to the deputy" to be preserved for appeal, NOT that it also be ruled upon, but that this issue had no merit, as the Employer had not made any false representations, nor concealed material facts when filing the third-party settlement agreement with the Commissioner's office. Furthermore, Claimant was represented by his own counsel who had a duty to advise him.

    The language of the Memorandum of Third-Party settlement, "The parties . . . do not stipulate or agree, or in any manner concede that the Claimant is entitled to any specified degree of permanent physical impairment or industrial disability, either now or in the future. . . ." does not support that any credits taken against weekly benefits were to be considered as payment of weekly benefits. As stated by the Commissioner, and affirmed by the District Court, "[t]he terms mandated the commencement of a contested case to determine entitlement to any additional benefits."

    Although, the insurer would ordinarily have the obligation to pay its pro rata share of attorney fees and expenses in obtaining the third-party recovery, here that carrier was insolvent, and the Iowa Insurance Guaranty Association (IIGA) standing in its place. The Fund is protected by Iowa Code §515B.2(b)(4) & (8). Also, the contract specifically set out the amount of the credit given the insurer and did not reference payment of attorneys' fees or litigation expenses.

    NOTE: Claimant was entitled to past medical expenses incurred after the date of the third-party settlement in the amount of $13,520.87 (to be deducted from the Employer's third-party settlement credit), however, with the whole credit being $135,026.11, it will be some time before additional medical benefits could be owed.

AGENCY APPEAL

JOHNSON V. MCANINCH CORPORATION, 5018811 (2-24-09)

Defendants appeal penalty urging violation of a work rule defense was reasonable. MODIFIED.

   Defendants point out that a legal basis existed to fairly debate that claimant's injury arose out of his employment due to his actions of defecating in a spoil pile.

    A claim is "fairly debatable" when it is open to dispute on any logical basis.

   The Deputy found that, given the very close factual similarity to Sachleben, the defendant's position was unreasonable and awarded penalty benefits.

    Defendants, however, set forth various facts to distinguish this claim from Sachleben v. Gjellefald Construction Co., 290 N.W. 48 (Iowa 1940)(In Sachleben, the employee was injured while attending to personal relief between two rail cars.) Although the ultimate conclusion of the agency was that claimant's injury arose out of his employment, defendants were reasonable in denying benefits as they presented sufficient evidence of a genuine legal dispute on this issue. The assessment of a penalty in this claim was reversed.

AGENCY APPEAL

LAUSE V. UNITED PARCEL SERVICE, INC., 5022829 (2-24-09)

Where Claimant's hand injury resulted from loss of temper, Defendant appeals finding of injury arising out of and in the course of employment, and denial of willful injury defense. REVERSED.

    After discussion of issue preservation the Commissioner found that the primary issue of whether claimant's injury arose out of and in the course of his employment was preserved for review on appeal despite (the lack of) a specific finding by the deputy.

    Claimant was a part-time unloader. He asked to go home as he had other matters he wished to attend to as he was remodeling his basement. His request was denied. He acted in a juvenile and immature manner and was heard hitting a UPS trailer and witnessed hitting two boxes.

    While in another trailer by himself claimant hit his right hand and broke a bone in his hand. There were no witnesses to this incident. Claimant was terminated by UPS for destroying customer packages and creating a hostile work environment. Claimant admitted at the hearing that he had initially lied to his employer about how he injured his hand. Claimant justified his dishonesty saying he did so in order to avoid termination. Overall, claimant was not a credible witness. He lied to his employer about the cause of his injury and he was less than straight-forward in his deposition concerning the cause of his injury. His statements that he was trying to pump himself up by hitting objects at work, as well as his general demeanor, made his testimony unbelievable. The record is clear that the claimant broke his hand by hitting it against an object in a UPS trailer.

    While the Commissioner agreed that Defendant had not shown that claimant intended to injury his hand, the nature of this claimant's employment as an unloader of boxes from a semi-trailer did not expose him to risk of injury from irrational anger or immaturity.

    Consequently, such an injury does not arise from his employment with defendant employer.

AGENCY APPEAL

KAUFFMAN V. FLEETGUARD, INC. (NON-PARTY), 5022780 (2-18-09)

Second Injury Fund appeals 35% award for combined effect of two scheduled injuries. AFFIRMED.

    Claimant is not required to show that the prior qualifying injury independently resulted in any industrial loss. It is the cumulative effect of the scheduled injuries resulting in industrial disability to the body as a whole rather than the injuries considered in isolation that triggers the Fund's proportional liability.

    The industrial loss found by the hearing deputy was the sole result of the combined effect of the two qualifying injuries, not the combined effect of all of her problems such as her RSD problems. WALSHIRE

SUPREME COURT

LARSON MANUFACTURING v. THORSON, 06&endash;1954 (2-13-09)

Employer & Insurer appeal long term cumulative trauma award on issues of issue preclusion, notice (due process, not §85.23), statute of limitations, substantial evidence of TPD & PPID, medical and IME expense. AFFIRMED, except as to award of costs for a second IME, REVERSED.

    Claimant started her employment in 1974. Her job duties changed over the years, to eventually include work station rotation,  but consistently involved continuous, repetitive movement and, occasionally, overhead work.

    She first sought chiropractic treatment for neck and shoulder pain in 1986. She next received medical care in August 1992 for shoulder and wrist symptoms, and was on light duty until October when she was released for return to work with no restrictions. April 26, 1996. she again consulted a physician for problems with her her lower back, shoulders, and elbows for the past eighteen months, and was again placed on light duty. November 25, 1996 after completing physical therapy, Larson transferred her to less stressful work, but she continued to treat until August 1998 when she was told she might have fibromyalgia and that she might benefit from a pain clinic.

    Addressing the issues:

   1)    The preclusion claims failed as to changes in how issues were decided differently by the Commissioner on remand than in earlier appeal decision the  because the issues were not decided in a "prior action." The Commissioner's two decisions are parts of a single action, not adjudications of consecutive actions.

   2)    After detailed review of the cumulative injury and the "manifestation" rule, Defendants contention that their right to due process was violated when the commissioner found a date of injury more than three years prior to the date alleged in Claimant's petition were rejected as they had ample notice in the petition and and medical records as evidenced by her light duty assignments.

   3)    Although, under the "manifestation' rule, the Commissioner found that her injury was manifest on April 26, 1996, and she did not file her petition until July 23, 1999, for purposes of filing within the statute of limitations, the "discovery" rule requiring, among other things, that she know her injury is serious enough to have a permanent adverse impact on her employment or employability had not occurred, as she was still working full time, and although on light duty, had not been given any permanent work restrictions nor rating of permanent impairment.

   4)    On the permanent partial industrial disability issue, it was not error for the Commissioner to consider loss of overtime earnings. Also, Defendants failed to show that the Commissioner's award was substantially based on her claimed loss of an undetermined amount of overtime earnings. And there was substantial evidence to support the 25% award.

   5)    Temporary partial disability benefits under §85.33 were appropriately ordered paid for times prior to April 26, 1996. The phrase "after the injury" in section 85.32 was interpreted to permit an award of temporary partial disability benefits upon proof of a diminution of a claimant's earnings during periods of temporary incapacity caused by a work-related condition which later manifests as a cumulative injury. Thus, TPD is payable for periods of time prior to the the date of injury determined by "manifestation."

   6)    The plain language of section 85.27(1) requires the employer to pay for all medical costs incurred as a result of an injury compensable under chapter 85. Section 85.27(1) does not expressly limit the employer's liability for medical costs to costs incurred following manifestation of a compensable workers' compensation claim. Thus, medical is payable for periods of time prior to the the date of injury determined by "manifestation."

   7)    Having paid for a prior examination, Defendants contend the plain language of §85.39 precludes liability for a subsequent examination. They are correct.

AGENCY APPEAL

RICKARD v. VODEC, 5022477 (2-6-09)

Defendants appeal 25% PPD of arm for lateral epicondylitis of the elbow. AFFIRMED.

    The presiding deputy commissioner erroneously concluded the parties had stipulated that claimant's condition was permanent in nature and caused by the work injury on January 12, 2006. Defendants did not stipulate that claimant had sustained a permanent condition as a result of her work injury. The hearing report listed causation to a permanent condition as an issue to be determined by the presiding deputy. Since causation was listed as a disputed matter, claimant bears the burden of proof.

    Many of her duties required repetitive use of her arms. She testified her problems developed gradually but never fully resolved even though she underwent surgery, and that she was unable to open jars and lids with her left arm and hand. She demonstrated to the presiding deputy how difficult it was for her to twist or supinate the left arm. Claimant testified she experienced pain whenever she performed her regularly assigned duties and she often requested assistance from co-workers when she was required to lift and carry heavy objects.

    She has established by a preponderance of the evidence she has a permanent condition of the left arm relating to lateral epicondylitis.

    Although, the deputy's determination the tremors were related to claimant's work injury are expressly overruled.

    The Commissioner could not find that the presiding deputy based his finding on the extent of claimant's scheduled disability in reliance upon the left arm tremors.

    Therefore, the presiding deputy's finding that claimant has a functional loss of 25 percent of the use of her left arm in the activities of daily living as a result of her work injury was affirmed as supported by the medical records coupled with claimant's credible testimony.

COURT OF APPEALS

DONALDSON COMPANY v. BANKS, 8-896 / 08-0816 (2-4-09)

Employer appeals 40% PPID award based on sensitization to isocyanate resulting chemical spill. AFFIRMED.

    After cleaning up a chemical spill at work, Claimant experienced various symptoms, including difficulty breathing, heaviness in her chest, nausea, as well as back and chest pains. A physician at the University of Iowa College of Medicine, pulmonary division, concluded that she suffered from isocyanate exposure, leaving her sensitized and therefore more susceptible to a severe asthma attack upon re-exposure. The Employer was unable to find a position that would isolate her from further isocyanate exposure, forcing her to seek other employment. Due to her limited educational background, and inability to seek another factory job, she obtained a job as a debt collector, at a lower pay level.

    On judicial review, the district court affirmed the forty percent industrial disability, but reversed the award of future medical expenses due to Bank's previous asthma condition.

COURT OF APPEALS

BENCO MANUFACTURING v. ALBERTSEN, 8-892 / 08-0746 (2-4-09)

Claimant suffered an idiopathic fall resulting in a broken neck & appealed from District Court remand to the Commissioner. REVERSED AND REMANDED.

    Claimant worked the midnight shift at Benco Manufacturing on the day of her injury. While working she went to the lunchroom to get a cappuccino. She next walked to the restroom. After she opened the door she thinks/assumes the door hit her on the back of her head. She fell backward, striking her head on the concrete wall screening the restroom from the work area.

    The Court agreed with the district court's conclusion the agency's utilization of the positional-risk doctrine is contrary to current Iowa law. However, this conclusion did not necessarily require a remand because the commissioner found her injury compensable on an alternative basis: claimant experienced an idiopathic fall (falls due to personal conditions) and was entitled to benefits because, Iowa awards benefits for "injuries resulting from risks personal to the claimant . . . where the employment . . . aggravates the injury." The cement wall screening the restroom door is related to the working environment and aggravated her injury from her fall by breaking her neck. See, Koehler Elec. v. Wills, 608 N.W.2d 1 (Iowa 2000) and Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 9.01(4)(9)(b) at 9-8 (2007).

COURT OF APPEALS

ROJAS v. PINE RIDGE FARMS, 8-884 / 08-0554 (2-4-09)

Appeals from apportionment of survivors benefits. AFFIRMED.

    Raul Perez Rojas was born and raised in Mexico. He married Yolanda in a religious ceremony in 1987. Soon after, Raul began traveling into the U.S. to work. He returned to Mexico periodically and fathered five children with Yolanda: and regularly sent money to Yolanda. She relied on that money as her "major, if not sole, source of income." In 1999, while living and working in Iowa, Raul married Jody. They had one child together. Jody was not aware Raul had a wife and five children in Mexico. She believed the money he sent to Mexico was for his parents. Yolanda was also not aware Raul had married Jody and fathered a child with her.

    On February 15, 2004, Raul was killed in an accident at work. Jody and Yolanda each applied for survivors' benefits under Iowa Code section 85.31 (2005). The deputy workers' compensation commissioner found that Jody was Raul's surviving spouse because Yolanda's marriage to Raul was not legally recognized in Mexico. However, the deputy determined Yolanda was a dependent of Raul under sections 85.31(1)(d) and 85.44. The deputy accordingly allocated fifty percent of the death benefits to Jody as the surviving spouse and twenty percent to their son Samuel. The remaining thirty percent was assigned equally to Yolanda and her five children. The deputy further ordered that one-half of the benefits apportioned to Yolanda and her children should be paid to the Second Injury Fund of Iowa (the Fund) as mandated in section 85.31(5).

    Both parties separately appealed, and a different deputy affirmed the arbitration decision with additional analysis. The deputy on appeal found that because "Yolanda and her family received approximately fifteen percent of Raul Rojas's earnings," they should likewise "receive fifteen percent of Raul's death benefits." He further found the hearing deputy was correct in apportioning thirty percent of the death benefits to Yolanda and her children because that would result in them actually receiving fifteen percent due to the effect of section 85.31(5).

    Yolanda additionally claims that Iowa Code section 85.31(5) (2005) is unconstitutional and irreconcilably conflicts with section 85.51.

    The court concluded that the agency did not err in its equitable apportionment of survivors' benefits. Further, as nonresident aliens, Yolanda and her children do not have standing to assert State or Federal constitutional challenges. Their claim that section 85.31(5) irreconcilably conflicts with section 85.51 was also rejected.

AGENCY APPEAL

WHITNEY v. ROBERT WEED PLYWOOD CORP., 5022009 (1-29-09)

Defendants appeal 35% PPID award, and 50% penalty awarded despite death of the adjustor. AFFIRMED.

    The presiding deputy awarded 35% PPID where Claimant, but for payment of tuition owed, had completed a four year college degree in elementary education and, upon payment could have become a licenses teacher in Iowa. Her work experience was in manual labor positions. She decided not to return to this employment, although, no physician opined she was unable to. The employer offered employment. The company cannot be held responsible for any loss of earnings. She decided for her own personal reasons not to return to work at the plant and was unemployed for about seven months.

    She then started sit-down-work as a telemarketer earning approximately what she earned for this employer.

    She was given ratings of impairment of five and twenty-seven percent of the body as a whole. The latter rating included her depression, a back condition, as well as the loss of her toe, the numbness in her foot, a phantom limb sensation, and her asymmetrical gait. She is required to use an orthotic, and compression stockings, she testified she has swelling and pain when she stands for a long period of time, and has been restrictions that limit her ability to stand for any length of time.

    Claimant received temporary benefits but did not receive voluntary payment of permanent partial disability benefits until two days before the hearing. Claimant had obtained a rating of impairment of five percent, but benefits for this amount were not paid immediately.

    Defendants were admirably candid in admitting a delay occurred, but may have been unavoidable because of the illness, disability, and eventual death of the claims representative assigned to the present case. The situation is certainly regrettable. On the other hand, the insurer is a large company charged with making compensation payments voluntarily when due. In this case, the claims file could have been reassigned to another adjuster much earlier in the process and payment could have been tendered in a timely fashion without delay to the injured worker.

    Defendants argue they should be absolved of responsibility for the late payment because their claims representative was ill and had died before claimant could be paid her permanency benefits. However, section 86.13 mandates a penalty unless the delay in payment was necessary for the insurer to investigate the claim or the employer's liability was fairly debatable. Neither of the two situations is applicable to the present case. Defendants admitted liability for the claim. A permanent impairment rating was provided by defendants' doctor several months prior to the date of the hearing. Payment should have been made following receipt of the rating.

AGENCY APPEAL

HAMPTON v. SECOND INJURY FUND OF IOWA, 5021211 (1-9-09)

The Fund appeals award base on right and left upper extremity injuries. AFFIRMED.

    The Fund contends claimant's first injury of October 2000 was a simultaneous injury to claimant's right and left upper extremities. Because claimant's second loss was to his left upper extremity, the Fund argues claimant has failed to establish a second qualifying injury, as the second injury is allegedly not to another qualifying member.         

    The Fund cites Kratzer, an unpublished decision from the Iowa Court of Appeals. This agency is not bound by an unpublished decision from the Iowa Court of Appeals. Claimant did not allege a bilateral first injury. In George, the Iowa Supreme Court held that if one of the two injuries includes more than one member, this does not preclude a claimant from entitlement to Fund benefits. CHRISTENSON

AGENCY APPEAL

RYAN v. IOWA CONCRETE CUTTING, 5020691 (1-8-09)

Defendants appeal 15% PPID for electrical shock, based on criminal record including multiple theft convictions. AFFIRMED, MODIFIED to 40% PPID & REVERSED to award penalty.

    While sawing concrete, claimant struck a live wire carrying 480 volts. He suffered urinary incontinence and left arm numbness.

    Claimant had a disturbing criminal background involving multiple theft convictions. During the discovery proceedings relating to this contested case, claimant was not initially forthcoming about his criminal record. He also attempted to hide his criminal record when he applied for certain jobs. The Commissioner shared the presiding deputy's concern with claimant's willingness to put forth honest answers in this contested case. Claimant's multiple theft convictions severely tainted his credibility in seeking compensation as he has a clear propensity for taking that to which he is not entitled.

    Defendant argues on appeal that the issue of whether claimant sustained a compensable injury, and the issue of causation, are dependent on claimant's credibility.

    Defendant provides no logical explanation for why the agency should disregard the significant injurious event witnessed by a fellow laborer, the consistent reporting of medical symptoms immediately following the injurious event, the unrebutted testimony regarding the nature of the conversations between claimant and his supervisor, and the unrebutted medical evidence on the issue of causation. The mere fact that claimant was previously

convicted of theft and then attempted to shield himself from the implications of those convictions is not a basis to absolve defendant of responsibility for a very clear workplace injury. Compensability AFFIRMED

    Claimant has voluntarily terminated his employment with defendant and a subsequent employer due to his discomfort and embarrassment caused by his urinary incontinence. Claimant is otherwise unrestricted with respect to his employment opportunities. Claimant is capable of working in the construction field although he will require protective padding, necessitating additional accommodation so that he may use the restroom to urinate or change his protective padding.15% PPID MODIFIED TO 40%.

    The medical evidence universally supports the conclusion that the bladder condition was causally connected to the electrical shock injury. Disagreement over other injuries claimed, notwithstanding, defendant's duty to investigate a workers' compensation claim is a continuing obligation and requires a reassessment whenever additional information becomes available. Defendant failed to act reasonably following the date on which claimant's petition was filed. Denial of penalty REVERSED, $1,000.00 awarded.

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