May 19, 2021 | Smith, Mills & Schrock Law
The Nebraska Legislature has moved the following bills to Final Reading.
Expansion of Settlement Releases
LB 256, as introduced, provides that a release may be used to finalize an agreement to resolve all issues other than future medical when the injured worker is Medicare eligible, a Medicare beneficiary or a has a reasonable expectation of Medicare eligibility within 30 months from the date of settlement.
LB 407, as introduced, provides that county correctional officers in high population counties may be entitled to workers’ compensation benefits for mental-mental injuries if the conditions of employment were extraordinary and unusual in comparison to the normal conditions of the particular employment. A high population county is defined as one with more than 300,000 inhabitants (currently only Douglas and Lancaster counties fit the definition of high population)
Contact your attorney at Smith, Mills & Schrock Law to discuss how these bills could impact your Nebraska workers’ compensation claim.
April 5, 2021 | Smith, Mills & Schrock Law
Voluntary Resignation Does NOT Trigger Industrial Disability under Iowa Code 85.34 (2)(v)
The Iowa District Court of Polk County issued a ruling on April 21, 2021 in the case of Pavlich v. Martinez, Case No. CVCV060634, holding that since Claimant returned to work for Defendant Employer at the same or higher wages he was entitled only to the functional impairment ratings. The District Court further found Martinez’s voluntary resignation from Defendant Employer did not trigger entitlement to an industrial disability analysis under the new statutory changes. Iowa Code 85.34(2)(v) was amended in 2017 to add the following:
1. If a claimant returns to work or is offered work with any employer at the same or greater wages, the claimant is only entitled to permanent disability benefits according to the functional impairment ratings.
2. If a claimant returns to work with the defendant-employer and later voluntarily resigns, the claimant is only entitled to permanent disability benefits according to the functional impairment ratings.
In this case, Claimant sustained a work related injury on April 16, 2018. After the accident, Claimant eventually returned to full duty work for Defendant Employer driving local routes. He continued in his regular position until voluntarily resigning from Defendant Employer to take a different position. At the time of the arbitration hearing, he was earning more at his new job. When assessing permanent disability benefits, the Deputy Commissioner followed Iowa Code § 85.34(2)(s) (2016) which states injuries to two scheduled members in a single accident is compensated on a functional basis based upon 500-weeks. Claimant was awarded the combination of his scheduled member impairment ratings.
On appeal, the Commissioner reversed how the Deputy Commissioner calculated permanency benefits. In short, the Commissioner determined Claimant should be awarded benefits based on an industrial disability rather than the functional impairment ratings. The Commissioner found, since Claimant suffered more than two scheduled member injuries in the same accident and was no longer working for Defendant Employer, permanency should have been assessed as an industrial disability under section 85.34(2)(v). This was the first Appeal Decision issued by the Commissioner dealing with these statutory changes.
The Commissioner interpreted the new statutory changes to only address the scenario when a claimant returns to work or is offered work by the defendant employer. Although Claimant did return to the same employer at the same wages, he voluntary quit that position to obtain a higher paying position. The Commissioner found the voluntary resignation “triggered his entitlement to benefits using the industrial disability analysis.” The District Court disagreed.
February 10, 2021 | Smith, Mills & Schrock Law
OSHA recently issued updated guidance on mitigation and preventing the spread of coronavirus in the workplace. OSHA outlines the best practices and recommendations for employers to identify COVID-19 in the workplace, including:
- Assigning a workplace coordinator for COVID-19
- Conduct a hazard assessment to identify where and how workers might be exposed to COVID-19 and implement control measures to reduce/eliminate workplace hazards
- Instruct infected or potentially infected workers to stay home
- Perform enhanced CDC-compliant cleaning and disinfecting
- Make the COVID-19 vaccine available at no cost to all eligible employees. Continue to require all employees, included vaccinated employees, to follow COVID-19 prevention protocols as there is no evidence that COVID-19 vaccines prevent transmissions of the virus
The full text can be found here: https://www.osha.gov/coronavirus/safework
Smith, Mills & Schrock Law continues to provide uninterrupted legal services to our client community. As a firm, we have continued to provide our employees the ability to work remotely. While essential personnel continue to work in our Midwest offices during limited times to handle vital tasks and day-to-day business activity, we have continued our COVID-19 protocols including physical distancing and face masks requirements. Our continued commitment to our client community with excellent services is stronger than ever and we invite you to contact us any time.
February 10, 2021 | Smith, Mills & Schrock Law
Shoulders in Iowa Workers Compensation:
The Iowa Workers Compensation Commissioner has issued multiple appeal decisions addressing post-July 1, 2017 shoulder claims. Since the 2017 legislative changes to Iowa Code Chapter 85 added the shoulder to the list of scheduled member injuries, there have been multiple arbitration decisions that have compensated shoulders industrially rather than as scheduled member injuries. However, the Commissioner’s opinion directly contrasts to those prior arbitration decisions and has finally drawn a bright line as to how the agency will define the shoulder going forward.
Specifically, in Deng v. Farmland Foods, Inc., File No. 5061883, overturned the arbitration decision awarding industrial disability for a shoulder injury and instead found that the muscles that make up the rotator cuff are included in the definition of ‘shoulder’ under Iowa Code §85.34(2)(n), and that the claimant should therefore be compensated based upon functional disability of the scheduled member. The commissioner reasoned that the glenohumeral joint and its surrounding muscles, tendons, bones, and surfaces are ‘extremely intricate and intertwined’. He found that it was ultimately difficult to separate the claimant’s injured infraspinatus from the glenohumeral joint considering the muscle’s primary purpose is to stabilize the socket of the shoulder- ie: the functionality of the shoulder is dependent on these surrounding anatomical parts. Because of the importance of such muscles to the function of the joint, the commissioner concluded that excluding everything but the glenohumeral joint itself from the definition of a shoulder under §85.34(2)(n) would lead to the ‘absurd result’ of excluding injuries that are commonly considered shoulder injuries. Therefore, the commissioner ultimately concluded that a ‘shoulder’ under §85.34(2)(n) is not limited to the glenohumeral joint, but rather that the muscles that make up the rotator cuff should be included within the definition of ‘shoulder’.
Iowa Workers Compensation Caselaw Update
February 10, 2021 | Smith, Mills & Schrock Law
Mental-Mental Claims for First Responders in Iowa Workers Compensation:
The Iowa Workers Compensation Commissioner issued an appeal decision in the case of Tripp v. Scott Emergency Communication Center, File No. 5066673, addressing the standard for mental-mental claims made by first responders. The appeal decision upholds agency precedent adopting the test under Brown v. Quik Trip Corporation, 641 N.W.2d 725 (Iowa 2002) that legal causation is met only when a claim is based on a manifest happening of a sudden traumatic nature from an unexpected cause or unusual strain. The Commissioner explains that “whether the traumatic event at issue steams from an unexpected cause or an unusual strain is determined by a subjective standard that takes into account claimant’s occupation.” In this appeal decision, the injured worker was an emergency dispatcher and handled a call for a dying infant. Defendants provided evidence the injured worker had previously handled calls involving the death of an infant. Thus, the Agency concluded that given the nature of the job of an emergency operator, taking a call regarding a dying or dead infant cannot be said to be an unexpected cause or an unusual strain.
This decision highlights the debate between the objective versus subjective legal standard in mental-mental claims. The Commission held, “an objective standard is a legal standard that is based on conduct and perceptions external to a particular person. The objective standard requires the finder of fact to view the circumstances from the standpoint of the hypothetical reasonable person, without regard to the claimant’s personal views or experiences. The subjective standard is a legal standard that is peculiar to a particular person and based on the person’s individual views and experiences.” In this case, the Agency determined the emergency call handled by the inured worker was considered a day to day stress of an emergency operator and applying the subjective standard, there was little evidence the emergency call in question exceeded the day to day stress of an emergency operator.
October 2, 2020 | Smith, Mills & Schrock Law
April 14, 2020 | Smith, Mills & Schrock Law
Smith, Mills & Schrock Law will continue to provide uninterrupted legal services to our client community. COVID-19 is having a major impact on employers, governments and families around the world. We will continue to offer our clients resources and analysis to help in the decision-making process as this pandemic spreads. We can offer assistance with all workers' compensation related matters, employment-related issues and advice on any coronavirus business-related questions.
We are always available for you and invite you to contact us at any time. Almost all firm employees are working remotely. Our digital based operations, firm issued laptops, smart phones, and hot spots have allowed for a seamless translation to a remote office desktop. Only essential personnel are scheduled to work at the office during limited times to only handle vital tasks to continue the day-to-day business activity.
Our commitment toward uninterrupted and excellent services to our client community is stronger than ever.
April 16, 2020 | Smith, Mills & Schrock Law
Smith, Mills & Schrock Law successfully defended the case of McDougal v. Menard, Inc., File No. 5066644, April 15, 2020, before the Iowa Workers’ Compensation Commissioner. Claimant alleged a work related injury to her back as a result of her work duties. Defendants disputed claimant’s allegations based on prior medical evidence of lower back pain with radicular pain in the back of claimant’s leg and her lack of credibility in reporting the claim and her symptoms. The Deputy agreed with Defendants’ evidence that Claimant failed to meet her burden of a work related injury and claimant took nothing in the form of benefits.
April 14, 2020 | Smith, Mills & Schrock Law
How to Successfully Utilize Functional Capacity Evaluations before the Agency:
Smith, Mills & Schrock law defended the case of Grugan v. Walmart, File No. 5063207, March 16, 2020, before the Iowa Workers Compensation Commissioner. Defendant appealed the Deputy Commissioner’s arbitration award finding Claimant had sustained 70 percent industrial disability as a result of a stipulated work injury to her back. Attorneys for the firm argued Claimant’s functional limitations did not significantly change following the work injury based on functional capacity evaluations performed before the work injury and following. Claimant contrasted these reports with testimony of an increase in her symptoms. However, the Agency agreed with Defendant’s expert that an FCE is an objective conclusion that should be given greater weight. Based on these arguments, the Commissioner reduced Claimant’s award from a 70 percent to a 35 percent industrial disability award for the work-related back injury.
June 28th, 2019 | Smith, Mills & Schrock Law
Smith, Mills & Schrock Law is excited to announce WoCo University, an in-depth workers' compensation law course, starting July 10 at our new Smith, Mills & Schrock Law training center in West Des Moines. Learn More.
February 5th, 2019 | Smith, Mills & Schrock Law
Smith, Mills & Schrock Law is happy to announce that our attorney, Michael Lunn, has accepted a position as a Deputy Workers’ Compensation Commissioner with the Division of Workers’ Compensation. He will begin this role on February 18th, 2019. Learn More.
January 18th, 2019 | Valerie A. Foote
With medical marijuana being legalized in an increasing number of states, it was only a matter of time before requests for the same began to crop up in workers’ compensation cases. Learn More.
January 9th, 2019 | Smith, Mills & Schrock Law
Smith, Mills & Schrock is happy to announce that Rachael Irlbeck and Britney Steele have joined the the firm as associate attorneys. Learn More.
November 27, 2018 | Smith, Mills & Schrock Law
For families of divorce, this time of year can be a minefield where each turn can yield a new and fresh argument. Here are a couple tips to help post-divorce families navigate the challenges of the holiday season. Get the Tips
November 16, 2018 | Smith, Mills & Schrock Law
Smith, Mills & Schrock’s is happy to announce that Anthony Dopp, a 2L at the University of Iowa College of Law, will be joining the firm as a summer 2019 law clerk. Learn More About Anthony
March 20, 2018 | Smith, Mills & Schrock Law
The thought of a marriage ending is stressful regardless of whether the change is wanted or not. A divorce can make it impossible to focus on what matters. As is often the case, PEACE will help you remain focused. In the context of a divorce, PEACE is an acronym that can be used to prioritize the steps in a divorce. View Steps
Iowa Workers' Compensation Newsletter
- Vol XL | December 28, 2017 -
- Extent of Misconduct Necessary for an Employee's Termination to Rise to Level of Constructive Refusal of Light-Duty Work (Reynolds v. Hy-Vee)
- When is Second Injury Fund Liability Triggered? (Housley v. Second Injury Fund of Iowa)
- Experts' Consideration of Key Evidence in the Record (McDonald v. EZ Payroll & Staffing Solutions, LLC)
- How Far Is Too Far to Drive to a Doctor's Appointment? (Maher v. Cope Plastics, Inc)
- Persuasiveness of Expert Opinions in Directing Medical Care (Brown v. DAL Global Services)
- and more... as well as our updated scorecards and statistics
August 18, 2017 | Smith, Mills & Schrock Law
A divorce can, and potentially will, be one of the most difficult times of your life. Not only is a relationship spanning years coming to an end, you also have to physically divide property accumulated during your marriage. Understanding the Iowa divorce procedures: View Document
March 17, 2017 | Smith, Mills & Schrock Law | The Iowa Senate has passed the reform legislation as previously passed in the Iowa House. It now heads to Governor Branstad for his signature. This legislation is the most substantial reform to Iowa workers' compensation in decades. View Document
October 28, 2016 | Smith, Mills & Schrock Law | The outcome of the 2016 election is likely to have a direct impact on your life. In addition to voting for the next president of the United States, voters will be casting ballots for members of Congress, as well as state and local leaders. View Document
June 8, 2016 | Smith, Mills & Schrock Law | Loren L. Varney | Effective December 1, 2016, the Department of Labor's new rule defining which "white collar" employees are exempt from overtime pay is scheduled to take effect. View Document
October 7, 2015 | Attorney Skylar J. Limkemann | Emergency response training: it's a bread and butter topic for police officers, firefighters, and emergency medical providers. Despite this, it is far too often outright neglected, or when it is provided, misunderstood. View Document
- Municipal Defense
- Fire / EMS / Police
October 6, 2015 | Smith, Mills & Schrock Law | The sharing economy is an emerging economic-technological phenomenon that is fueled by developments in information and communications technology, growing consumer awareness, proliferation of collaborative web communities, as well as social commerce. View Document