Green v. North Central Iowa Regional Solid Waste Agency
The Iowa Supreme Court recently decided a case that dates back to an original arbitration decision from 2014. This matter has an extensive procedural history resulting from a stipulated work injury, a successful appeal to the Commissioner, a remand decision, another appeal, judicial review decisions by the district court and Iowa Court of Appeals, and of course, the present supreme court decision following a grant of further review. The supreme court ultimately ruled on whether a claimant can, in a review-reopening proceeding, pursue a claim for permanent impairment benefits if the earlier adjudications found the claimant only suffered a temporary injury.
Ms. Green sustained a stipulated injury in 2012. She was working indoors at the recycling center when she was hit from behind by a door from a roll-off recycling truck. She lost consciousness when she was struck. Due to a suspected intracranial frontal lobe hemorrhage, she was admitted to the hospital. She was ultimately diagnosed with a concussion. Following her immediate treatment, Ms. Green reported a series of ongoing symptoms. Providers, however, called into question the veracity of these reported symptoms. The Deputy determined Ms. Green failed to prove a permanent injury and declined to award any benefits for permanent impairment. On appeal, the Commissioner affirmed. Ms. Green filed a petition for judicial review, and the district court remanded the matter back to the Commissioner for further evaluation of whether the claimed medical expenses were causally related to Ms. Green’s injury. The Commissioner clarified which expenses Defendants were responsible for reimbursing and which were Ms. Green’s sole responsibility.
The claimant filed a review-reopening petition in 2018, asserting her condition had changed such that she was now entitled to additional benefits. Specifically, her temporary condition had become permanent, and she was now permanently and totally disabled. In response, Defendants filed a motion for summary judgment, asserting due to the prior adjudication that the Claimant’s injury was temporary and not permanent, there was “no disability that could be reviewed in a review-reopening.” The Commissioner affirmed the Deputy’s determination that there was no genuine issue of material fact, and thus, granting summary judgment was proper. The Commissioner, in affirming the Deputy, concluded: “Claimant asserts she has sustained a change in condition warranting an increase of compensation; specifically, she asserts a worsening of her physical condition and/or that her temporary disability developed into a permanent disability. While these are recognized avenues for proving a change in condition, they cannot be utilized when, as in this case, the issues of claimant’s entitlement to future medical benefits and temporary and permanent disability were previously ripe for determination and were decided adversely to claimant.”
Ms. Green then filed a petition for judicial review, and the district court ruled on the matter in 2021. The district court reversed the Commissioner’s decision and remanded for further proceedings. The court determined the Commissioner was correct in determining there was no genuine issue of material fact—the parties had essentially agreed to as much. However, as to whether summary judgment was properly granted, the district court disagreed with the Commissioner. The court determined because Iowa Courts use “no award” and “zero” interchangeably, the lack of permanent impairment award can be increased, contrary to the Commissioner’s logic. Further, res judicata does not preclude Claimant from asserting a permanent injury because a review-reopening proceeding presupposes a change in condition.
The defendants then appealed the decision to the Iowa Supreme Court, which transferred the matter to the Iowa Court of Appeals for decision. The court affirmed the district court.
Defendants lastly sought further review of the court of appeals decision. The supreme court retained the matter, affirming the district court and court of appeals decisions. The court first addressed the Defendants’ res judicata argument. The court stated, “[R]es judicata in review-opening proceedings will most often apply to questions about whether a party ‘can raise original issues such as work connection, employee or employer status, occurrence of a compensable accident, and degree of disability at the time of the first award.’” The question of whether Ms. Green was entitled to temporary benefits, accordingly, was the question that was governed by res judicata. The court approvingly quoted the district court’s finding that the review-reopening process presupposes a potential change in condition in determining res judicata does not prevent a claimant from asserting a permanent injury despite a prior finding the injury was only temporary. On the issue, the court finally stated, “Because the workers’ compensation ‘statute expressly provides for reopening under specified conditions’—such as a worsening of the worker’s disability— ‘the rule of res judicata has no application when the prescribed conditions are present.’” The court next addressed the Defendants’ argument that because there was no permanent award at the initial arbitration, there is no award that could be adjusted in a review-reopening. The court found the unsuccessful petition for a permanent injury that is the basis of the reopening. Still, instead, the basis is the benefit payments she received for her temporary condition. The issue of Ms. Green’s current condition has not been litigated, only her condition as it was in 2014. Because that issue is still outstanding, summary judgment was improper, according to the court.
Despite the long duration of Ms. Green’s claim, her review-reopening petition is starting from the beginning again. The supreme court remanded the matter to the Agency. Accordingly, the review-reopening petition will be heard, and if the matter is appealed, she will likely see several more years of the matter cycling through the agency and courts. The supreme court unanimously took this opportunity, however, to make clear that if a claimant was unsuccessful in proving a permanent injury at the original arbitration, they could pursue a claim for permanent injury in a review-reopening.
Blasdell v. Linnhaven, Inc., 21-1968, File No. 5044236 (Iowa 2023)
The Iowa Supreme Court recently decided an issue that hadn’t been addressed since the early 1900s—when a married couple’s separation results in desertion under Iowa Code § 85.42(1)(a) such that the surviving spouse is not entitled to death benefits or burial expenses.
The case has a long procedural history. It was initially heard by a Deputy in 2018, and after the decision was issued by a different Deputy in 2019, the Agency reheard the matter in 2020. The Commissioner issued his appeal decision in 2021, and after an application for judicial review, the district court ruled in the same year. The Court of Appeals issued its appeal decision in 2022, and this year the Iowa Supreme Court ruled after granting a petition for further review.
Heather Blasdell sustained a work-related injury in 2012 to her heel, which led to the development of low back pain and depression. In the original claim, the Deputy determined she was permanently and totally disabled, entitling her to ongoing benefits. At the time, Heather was legally married to Roger Blasdell. However, the two had separated nearly two years earlier for “mostly financial reasons.” Heather moved out of the home to a different city, and Roger moved out of the home a few months later. Roger shortly thereafter began a relationship with a different woman, with whom he lived for some time during the five-year relationship. Roger filed taxes each year after the separation, filing some as “single” and some as “married filing separately.” According to Heather’s son, the two maintained consistent contact. According to Roger, the two never had a sexual relationship following the initial separation. According to both, Roger provided financial assistance to Heather during their separation.
In 2016, Heather died as a result of “mixed [prescription] drug intoxication.” The details surrounding her death are irrelevant to the Supreme Court’s ultimate decision in this matter. At the time of her death, she and Roger were still legally married, despite having been separated for over five years. Roger filed for death benefits and burial expenses under Iowa Code § 85.31(1)(a)(1). Iowa Code § 85.42 presumes that a surviving spouse was wholly dependent upon the deceased employee unless “it is shown that at the time of the injury the surviving spouse had willfully deserted deceased without fault of the deceased.” Defendants denied Roger benefits on the basis that he willfully deserted Heather prior to her death without fault of her own.
The Deputy who presided over the first hearing became unavailable before the decision was issued; accordingly, a different Deputy authored the decision. The Deputy determined Roger had willfully deserted Heather at the time of her death through no fault of her own, and accordingly, he was not entitled to any benefits. The Deputy focused on the facts that both parties intended to terminate their marriage relationship, that Roger had a different romantic relationship than there was no cohabitation or sexual relationship after the separation, and that the separation was not a result of Heather’s alcoholism, drug use, abuse, or other objectionable or dangerous behavior.
Following this decision, Roger appealed to the Commissioner, arguing it was a violation of Iowa Code § 17A.15(2), as his demeanor and credibility were substantial factors in the case, and it was improper to have a Deputy issue a ruling without presiding over the hearing. The Commissioner ordered a rehearing, and the subsequent decision was issued in 2020. The Deputy concluded there was nothing about Roger’s demeanor during testimony that changed the analysis or finding that he willfully deserted Heather prior to her death.
The Commissioner ruled on Roger’s appeal from the rehearing decision in 2021. The Commissioner affirmed the Deputy’s finding that Roger was not entitled to any death benefits following Heather’s death.
Roger then filed an application for judicial review. The district court issued its ruling in late 2021. The district court disagreed with the Agency’s prior rulings. In doing so, the court noted that both parties and the Agency had treated the issues of whether Roger and Heather were married at the time of the injury and whether Roger abandoned Heather as one in the same, despite the two being distinct issues. There is no common law divorce in Iowa, and the record was clear that the two were legally married at the time of the injury. The court also noted separation and desertion are not synonymous. According to the court, the Commissioner misapplied the facts to the law. The Commissioner found that Roger abandoned Heather, despite unrebutted testimony that Heather left the marital home and that Roger maintained contact with her. Further, the Commissioner found that both parties intended to end the marriage, in which case Heather would not have been without fault. The court overturned the Agency’s finding that Roger abandoned Heather and remanded the case for consideration of the willful injury argument, which was not initially reached because of the abandonment finding.
The employer appealed the district court’s decision, and it was sent to the Iowa Court of Appeals. The court agreed with the district court that substantial evidence did not support a finding that Roger abandoned Heather without fault of her own.
Finally, the case found its way to the Iowa Supreme Court after it granted the employer’s petition for further review. The Supreme Court reiterated the district court’s finding that the Agency treated the issues of separation and abandonment as one and the same, despite them being quite distinct. In looking at case law from fault divorces, the court determined the following elements are required to show desertion in this context: “(1) the cessation of the marriage relations, (2) the intent to desert, (3) a continuance of the desertion during the statutory period, and (4) the absence of consent or misconduct of the party alleged to have been deserted.” Further, the court found that an agreement between spouses to live apart is not akin to desertion. The court also noted that there is no exception that would preclude a spouse from receiving death benefits in the event of adultery, a fact which the Agency heavily relied on. Also relevant was the fact that under Iowa Code § 85.42(1)(a), Roger is presumed to be wholly dependent upon Heather as he was her legal spouse. As for Heather’s fault, the court looked to the fact that Heather was the spouse who initiated the separation, as she was the one who initially left the marital home. Despite her leaving, however, the two maintained frequent contact, and Roger did financially support Heather. The Agency’s decision was contrary to the evidence because, as the court summarized, the Commissioner conflated separation with desertion and ignored Heather’s fault in the separation. The court lastly agreed with the district court’s determination that the case must be remanded for findings on the issue of willful injury.
Despite the overall holding, there was a dissent in the Iowa Supreme Court, which would have vacated the district and court of appeals decisions in favor of affirming the Agency. The dissent argued the majority utilized the wrong standard of review. Instead, the question of desertion is that of fact, not law, and that the majority did not afford the Agency due deference. The dissent argued it was rational and reasonable that the Agency found “Roger—a working man, who was in no way financially dependent on his spouse, who was not cohabitating with his spouse, and who was instead living with another woman—was not a wholly dependent spouse entitled to spousal death benefits.”
This case is the first in over 100 years that examines a separated spouse’s entitlement to death benefits in Iowa. As the dissent points out, the outcome appears to be contrary to logic, as a wholly independent yet still legally married man is entitled to a lifetime of death benefits following the death of his formerly estranged legal wife. However, as the district court aptly noted, the workers’ compensation statutes being applied are from a period of time when Iowa recognized fault divorces and have not been updated to align with more modern state views on marriage. This case is now our most recent precedent, and any changes to address this disparity would need to come from the legislature. In the meantime, Roger’s case is on remand before the Agency to address those issues not addressed in these initial proceedings—namely, the willful injury exception.
Dunbar v. Menard, Inc. & XL Ins.
March 11, 2023
Attorney Kent Smith recently prevailed in a matter that was heard on judicial review before the district court after being appealed to the Commissioner. Attorney Smith represented Menard, Inc. and its insurer, XL Insurance, in a workers’ compensation claim brought by Karen Jeanne Dunbar.
As the parties agreed to, Ms. Dunbar sustained injuries to her right shoulder on September 21, 2018, and October 5, 2018. Ms. Dunbar ultimately underwent surgery to address her rotator cuff tear, biceps tendon, and AC joint. The surgery was a right shoulder arthroscopy with rotator cuff repair, capsular release, extensive debridement, arthroscopic biceps tenodesis, subacromial decompression, and distal clavicle excision. The Iowa Legislature added the shoulder as a scheduled member in 2017, prior to which shoulder injuries were compensated industrially as body as a whole injury. The fighting issue ultimately ended up being whether Claimant’s injury was limited to the scheduled member shoulder or extended to the body as a whole. The determination was important because if the injury extended to her body as a whole, she would be entitled to an industrial disability analysis in determining her entitlement to benefits, not just a consideration of her functional impairment.
Ms. Dunbar’s surgery involved a distal clavicle excision. The clavicle, also known as the collarbone, originates at the sternum and extends over to the shoulder, where the acromioclavicular joint is found. Ms. Dunbar argued because the clavicle originates at the sternum, which is located in the torso, permanent alteration of the clavicle by an excision procedure is in turn, permanent alteration of the torso, resulting in a body as a whole injury classification. The Deputy ultimately rejected this argument, finding despite the clavicle excision, Ms. Dunbar’s injury was limited to the scheduled member shoulder.
The portion of Ms. Dunbar’s clavicle that was altered in surgery was on the acromioclavicular side of the clavicle as opposed to the sternum side. The Deputy, in turn, found that the clavicle was interconnected in location to Ms. Dunbar’s glenohumeral joint—which was situated away from her torso and chest. The purpose of the excision was to improve Ms. Dunbar’s shoulder pain and function by creating additional space in the subacromial area. The Deputy also found important the fact that Ms. Dunbar’s clavicle was not injured but was instead altered to improve functionality of the glenohumeral joint and shoulder. In accordance with these findings, the Deputy found in favor of Attorney Smith’s argument that Ms. Dunbar’s injury was limited to the scheduled member shoulder, thus precluding an industrial disability analysis.
Ms. Dunbar appealed the Deputy’s findings to the Commissioner. Attorney Smith prevailed here as well, as the Commissioner agreed entirely with the Deputy’s findings, affirming the limitation of Ms. Dunbar’s recovery to her functional impairment.
Finally, following Ms. Dunbar’s application for judicial review to the district court, Attorney Smith again prevailed, as the district court also affirmed that Ms. Dunbar’s injury was limited to her scheduled member shoulder.
After the conclusion of all appeals in this case, Attorney Smith was successful in defending Menard, Inc. and XL Insurance Company against Ms. Dunbar’s claim and ultimately limiting their liability for this injury.
Yunior Tamayo-Perez v. Hormel Foods
Jan. 11, 2023
The Iowa Workers’ Compensation Commission and the district court have recently ruled on a series of interesting alternate medical care petitions and a petition for judicial review. The series of decisions focus on Yunior Tamayo-Perez in his claim against Hormel Foods, Corp., regarding his low back injury. These decisions highlight an interesting course of events over several years regarding an employer’s acceptance of liability for an injured worker’s conditions and subsequent attempts to then deny that liability.
Mr. Tamayo-Perez sustained an injury to his low back which arose out of and in the course of his employment with Hormel. Hormel initially accepted compensability of Mr. Tamayo-Perez’s condition and directed his treatment. According to the Deputy, Mr. Tamayo-Perez’s condition is highly symptomatic and disabling.
Mr. Tamayo-Perez filed his first petition for alternate medical care in July 2021. In its answer, Hormel admitted liability for the back and spine conditions. Mr. Tamayo-Perez voluntarily dismissed the petition after the parties reached an agreement on authorized care.
In September 2021, Mr. Tamayo-Perez filed another petition for alternate medical care. In its answer, Hormel admitted liability. Prior to filing the petition, Mr. Tamayo-Perez was receiving care from two physicians authorized by Hormel, both of whom recommended Mr. Tamayo-Perez undergo a spinal cord stimulator trial. The first formal recommendation for the trial came in May 2021. In July 2021, following the first petition for alternate medical care, Hormel agreed to authorize the trial. By the time a hearing was heard on this second petition in October 2021, Mr. Tamayo-Perez had not been scheduled for the prerequisite psychological evaluation. He was only recently scheduled for the prerequisite MRI. The Deputy determined some of the delays in scheduling these appointments were reasonable. In contrast, others were not, and accordingly, the Deputy found that the overall delay in Mr. Tamayo-Perez’s treatment was unreasonable. In granting Mr. Tamayo-Perez’s petition for alternate care, the Deputy ordered Hormel to authorize any treatment recommended by the authorized treating physicians, including the prerequisite MRI and psychological evaluation.
Three days after the Deputy’s decision on the second petition for alternate care was issued, Mr. Tamayo-Perez filed a third petition for alternate care. In its answer, Hormel again admitted liability. This petition was heard at hearing in October 2021. At the previous hearing, defense counsel invited the claimant’s counsel to attempt to schedule a psychological evaluation earlier than Hormel’s anticipated appointment near Thanksgiving. Claimant’s counsel notified defendant’s counsel of the scheduled appointment on October 14, to which defense counsel responded on October 15, stating she would discuss it with her clients. Claimant’s counsel replied that further waiting was unacceptable. Claimant’s counsel ultimately filed this petition for alternate care on October 15. Hormel authorized the appointment on October 18. Hormel declined to agree to a consent order on the petition, instead seeking sanctions against Mr. Tamayo-Perez’s counsel for frivolous filings. The Deputy ultimately determined it did not have the authority to issue sanctions for frivolous filings against an injured worker as a matter of law; as a matter of fact, however, the Deputy determined that even if there was authority to do so, this case did not warrant such an award. Because the treatment sought was agreed to, the Deputy granted Mr. Tamayo-Perez’s petition and also ordered the parties to engage in reasonable communications regarding future medical care disputes.
Mr. Tamayo-Perez’s fourth petition for alternate medical care was filed in April 2022, which was dismissed without prejudice because Hormel, for the first time, denied liability for his injuries in its answer. Mr. Tamayo-Perez filed an application for rehearing on the grounds of judicial estoppel. Judicial estoppel is the doctrine that prevents a party from successfully and unequivocally asserting one position in a proceeding and asserting an inconsistent position in a subsequent proceeding. The Deputy, in response to the application, ruled that an application for rehearing was not the correct procedure to bring a judicial estoppel claim. Instead, Mr. Tamayo-Perez should file a new petition for alternate care, raising the issue of judicial estoppel.
In May 2022, Mr. Tamayo-Perez re-filed his petition for alternate medical care, this time also asserting judicial estoppel, and Hormel again denied liability. Mr. Tamayo-Perez’s petition came in response to Hormel’s notification that benefits would stop and that it was no longer authorizing any treatment. Mr. Tamayo-Perez filed an objection to the answer, asserting the principles of judicial estoppel should prevent Hormel from now denying liability for the injuries. When the matter came for hearing in late May 2022, there were two issues—the first was whether Hormel could now deny liability, and the second was whether Mr. Tamayo-Perez was entitled to alternate care. The Deputy, in ruling on the first issue, found that Hormel had twice admitted liability in circumstances where the agency then administratively accepted that admission. The Deputy, in citing Iowa Supreme Court precedent, determined once a claim has been judicially accepted, defendants are prevented from changing their position on liability unless there has been a significant change in the facts after liability was initially admitted. In coming to the decision that Hormel is judicially estopped from now denying liability, the Deputy pointed to the fact that Hormel knew of a treating physician’s opinion that Mr. Tamayo-Perez’s symptoms were due to degenerative spine changes in June 2021, well before Hormel twice admitted liability for the injury. Accordingly, the Deputy found Hormel failed to show there was a change in facts following the September and October 2021 admissions of liability. The Deputy determined Hormel was judicially estopped from now denying liability, as to decide to the contrary would allow an employer to control medical care until it suits them to deny it for a tactical or other advantage. The Deputy also determined Mr. Tamayo-Perez was entitled to alternate care. Mr. Tamayo-Perez’s authorized treating physician recommended referral to a new pain specialist and additional physical therapy because Mr. Tamayo-Perez moved out of town. Hormel declined to authorize the recommended care from the authorized physician, which is unreasonable.
Following the Deputy’s decision in May 2022, Hormel appealed the decision to the district court. Following his answer to Hormel’s petition for judicial review, in June 2022, Mr. Tamayo-Perez filed a motion for entry of judgment. Simultaneously, while the petition for judicial review was still pending, Mr. Tamayo-Perez filed an additional petition for alternate medical care, seeking the Deputy to determine Hormel had abandoned care. On July 1, 2022, Hormel filed a motion for stay of agency proceedings with the court. On July 11, the Deputy found that Hormel abandoned Mr. Tamayo-Perez’s care and authorized Mr. Tamayo-Perez to seek his own treatment at Hormel’s expense. On July 18, Hormel filed a petition for judicial review of that agency's decision. Both cases were consolidated. The district court issued its ruling in January 2023.
The district court first ruled on Hormel’s motion to stay Mr. Tamayo-Perez’s petition for entry of judgment. The district court denied Hormel’s motion because, in part, the harm to Mr. Tamayo-Perez far outweighed any potential harm to Hormel. Specifically, if the district court were to grant the motion, Mr. Tamayo-Perez would be without the necessary alternate medical care during the pendency of judicial proceedings.
Next, the district court granted Mr. Tamayo-Perez’s petition for entry of judgment. Hormel argued the petition was filed prematurely because when it was filed, Hormel was still within the 30-day window to file a motion to stay agency proceedings. The district court summarily dismissed this argument because an analogous case had already been determined by the Iowa Supreme Court; in that case, the supreme court determined the timing of a claimant’s petition for entry of judgment does not preclude the court from entering a judgment based on the worker’s compensation award.
The district court then moved to Hormel’s claim that the Deputy lacked jurisdiction to rule on the May 2022 application for rehearing. The district court dismissed Hormel’s argument because Iowa Code section 17A.16 and Iowa Administrative Code Rule 876-4.24 clearly give a deputy commissioner jurisdiction to hear and issue a ruling on an application for rehearing. The district court similarly dismissed Hormel’s argument that the Deputy lacked jurisdiction to rule on the May 2022 petition for alternate medical care. Hormel’s argument was dismissed because it did not provide any statutory or case law to support its position.
Finally, the district court ruled on whether the Deputy correctly determined Hormel was judicially estopped from denying liability for an injury after previously admitting it in agency proceedings. The court summarized the Deputy’s findings and without further analysis, determined there was substantial evidence in the record to support the Deputy’s findings. As to the Deputy’s application of the findings to the law, the district court found the Deputy’s determinations were not irrational, illogical, or wholly unjustifiable.
The district court did find, however, that the Deputy did not have the authority to rule on the June 2022 petition for alternate care because the same petition was on appeal in the district court at the time. In so finding, the district court rejected Mr. Tamayo-Perez’s argument that the petitions were substantively distinct.
Following the district court’s numerous findings and determinations, it ultimately denied Hormel’s petition for judicial review. It vacated the Deputy’s June 2022 order on Mr. Tamayo-Perez’s petition for alternate medical care. Since the district court’s ruling, Hormel has since filed an appeal to the Iowa Supreme Court, and an application to stay proceedings, and Mr. Tamayo-Perez has filed a cross-appeal and resistance to the application to stay proceedings.
Tweeten Farms/Grinnell Mutual and Corey Tweeten, Case No CVCV063846
Nov 30, 2022
Corey Tweeten filed a workers’ compensation claim against his family’s farm, Tweeten Farms, and its insurance carrier, Grinnell Mutual, alleging an injury to his right upper extremity. At arbitration, the Deputy found Mr. Tweeten proved his right lateral epicondylitis and right deltoid tear arose out of and in the course of his employment with the Farm. The arbitration stage of this case made no mention of Mr. Tweeten’s settlement with the Second Injury Fund of Iowa for a prior, unrelated injury.
After the Deputy issued their ruling, the Farm filed a motion for a rehearing, contending the compromise settlement between Mr. Tweeten and the SIF deprived the agency of subject matter jurisdiction over Mr. Tweeten’s claim against the Farm. In the ruling on the motion, the Deputy found the settlement deprived the agency of the power to adjudicate the issue, which is waivable, not of subject matter jurisdiction, which is not. The Deputy then found that the Farm waived the issue because they failed to raise it in the hearing report or at the start of the hearing.
The Farm then appealed the matter to the Commissioner. The Farm asserted that the Deputy erred in finding the compromise settlement between Mr. Tweeten and the SIF did not bar Mr. Tweeten’s claim against the Farm. The Commissioner affirmed the Deputy’s decision with additional analysis.
Mr. Tweeten, when he sought benefits from the Farm, also sought industrial disability benefits from the SIF for the combined effect of the injury to his upper extremity at issue here and a 2008 injury to his right lower extremity. Ultimately, Mr. Tweeten and the SIF entered into a compromise settlement before the hearing.
After the hearing on Mr. Tweeten’s claims against the Farm, the Farm asserted once the agency approved the compromise settlement with the SIF, it lost subject matter jurisdiction over Mr. Tweeten’s claim against the Farm. Mr. Tweeten, in contrast, contends approval of the compromise settlement relates to the agency’s authority to hear the matter, which is subject to waiver.
Subject matter is the authority of a court to hear and determine cases of the general class of the present proceedings. Jurisdiction of the case, in contrast, refers to a court’s ability to hear a particular case. This distinction is important because if a court enters judgment without having subject matter jurisdiction, the judgment is void. If it is entered without the jurisdiction of the case, however, the judgment is voidable and is subject to waiver.
Ultimately, the Commissioner determined the Deputy properly found the compromise settlement did not deprive the agency of subject matter jurisdiction as argued by the Farm. The Commissioner determined the Farm’s reliance on certain cases was misplaced, as they did not involve subject matter jurisdiction but instead jurisdiction of the case. The argument that the agency was without subject matter jurisdiction was without support in fact or law. The Commissioner then determined because the issue at hand was jurisdiction of the case, not subject matter jurisdiction and because the Farm failed to raise the issue in the hearing report or at hearing, it waived the issue, and the ruling would stand.
The Farm then petitioned the district court for judicial review. The district court affirmed the Commissioner’s decisions on causation and the statute of limitations. The court then turned to the subject matter jurisdiction issue. The Farm again set forth the same argument—that the Deputy, now the Commissioner, erred in determining the settlement agreement did not deprive the agency of subject matter jurisdiction.
The court disagreed with the Commissioner’s findings that the farm waived the issue of jurisdiction. To begin, the settlement agreement with the SIF was not approved until after the arbitration hearing, so raising the issue when it did was the first possible time. Further, the issue of whether a court has the ability to act (i.e., whether the court has subject matter jurisdiction) can be raised at any time. Accordingly, the court found that the Farm did not waive the issue of jurisdiction.
Because there were no appellate opinions on the ultimate issue of whether the settlement agreement deprived the agency of subject matter jurisdiction, the court conducted its own statutory interpretation of Iowa Code section 85.35(9). The relevant statute states:
Approval of a settlement by the workers’ compensation commissioner is binding on the parties and shall not be construed as an original proceeding. Notwithstanding any provisions of this chapter and chapters 85A, 85B, and 87, an approved compromise settlement shall constitute a final bar to any further rights arising under this chapter and chapters 85A, 85B, 86, and 87 regarding the subject matter of the compromise…
The court found the plain and ordinary meaning of this code section to support Mr. Tweeten’s position. Specifically, the court looked to the language, “subject matter of the compromise.” The subject matter of the compromise was SIF’s liability for the combination of Mr. Tweeten’s alleged injuries. The subject matter of Mr. Tweeten’s claim against the Farm was potential liability for an arm injury. The court found these are not the same subject matter. To find to the contrary would relieve an employer of liability due to a settlement with a third party and would defeat the purpose of the workers’ compensation regime.
The court determined it would be unfair to ban an injured worker from pursuing a primary claim against an employer because he settled a smaller claim involving a potential combined injury. In particular, because as occurred here, Mr. Tweeten specifically deleted language in the settlement agreement that would bar other claims. Any decision to the contrary would discourage settlements with the SIF before the resolution of the primary claim, would alter the way workers’ compensation practice occurs within the state, and would call into question many previous awards.
The district court then analyzed the Commissioner’s award of benefits. The court reversed the portion of the Commissioner’s decision ordering the Farm to pay temporary benefits. The record did not contain information regarding the wages Mr. Tweeten earned while working light duty. Accordingly, he was not entitled to temporary benefits without proof he was earning less than prior to the injury. The court also determined the statute of limitations barred Mr. Tweeten’s elbow injury but not his shoulder injury.
Interestingly, this issue has again been recently decided by the Commissioner in Milbrandt v. R.R. Donnelly, File No. 20009756.01 (App. Dec. Feb. 17, 2023). Here, similarly to in Tweeten, the defendant-employer argued that the injured worker’s compromise settlement with the Second Injury Fund deprived the agency of subject matter jurisdiction. Here, however, the Deputy found that the settlement did deprive the agency of jurisdiction, and the Commissioner reversed, finding in accordance with the court’s ruling on judicial review in Tweeten. The Commissioner again found that a claim brought against the Fund is distinct from a claim brought by a claimant against an employer and insurance carrier. In coming to this conclusion, the Commissioner also expressly overruled and reversed the decision in Ahn v. Key City Transport, Inc., 2015 WL 5927330, File No. 5042640 (Iowa Workers’ Comp. Comm’n Oct. 8, 2015). This was due, in part, to the discussion regarding jurisdiction failing to consider amendments made to the applicable statutes in 2005.
The Farm has appealed the district court’s ruling on the petition for judicial review to the Iowa Supreme Court. Accordingly, either the Iowa Supreme Court or Iowa Court of Appeals will hear this matter, establishing binding precedent on whether a settlement with the Second Injury Fund deprives the agency of subject matter jurisdiction for an employee’s claim against their employer. The Commissioner has made clear his stance on the matter—finding in accordance with the Tweeten district court again in Milbrandt. As the district court noted in Tweeten, there is no appellate guidance on the issue, leading to a high probability the matter is retained by our supreme court. Depending on the outcome of the appellate decision on this jurisdictional issue, settlements with the Second Injury Fund have the potential to be significantly impacted. For the time being, however, it appears clear the agency has established that settlements with the Second Injury Fund will not deprive the agency of jurisdiction over the employee’s claim against the employer.
Strable v SIF File No. 1666216.03
Commissioner Appeal Nov 29, 2022
The Commissioner awarded SIF benefits to the claimant even though the claimant was asserting a depression claim – rather a body as a whole injury. Can you analyze both the arbitration decision and the commissioner’s rationale on appeal as to why the SIF has liability for a depression/BAW claim?
The Iowa Workers’ Compensation Commission recently decided a case regarding the Second Injury Fund of Iowa’s liability for a body as a whole claim, sparking concerns about double recoveries.
Claimant Regena Strable sustained a first qualifying injury in 2009. Her injury was bilateral carpal tunnel syndrome, and following treatment, she was assigned a 4% permanent impairment to the whole person.
While working at Altoona Nursing and Rehabilitation in 2019, Ms. Strable sustained an injury to her left ankle. While undergoing treatment for her ankle, Ms. Strable developed pain in her low back and was diagnosed with sacroiliitis. The claimant’s sacroiliitis condition ultimately resulted in a 5% impairment rating. The claimant also suffered mental injuries related to the ankle injury, including anxiety, depression, and post-traumatic stress disorder. Claimant’s physicians opined her mental conditions were permanent in nature.
Claimant ultimately sought benefits from the Second Injury Fund of Iowa. Three conditions must be met to trigger Second Injury Fund liability: 1) the employee must have lost or lost the use of a hand, arm, foot, leg, or eye; 2) the employee must sustain a loss or loss of use of another specified member or organ through a compensable injury; and 3) permanent disability must exist as to both the initial injury and the second injury. Iowa Code § 85.64. The Second Injury Fund is liable for the industrial disability present after the second injury that exceeds the disability attributable to the first and second injuries.
At arbitration, the Fund argued Ms. Strable had not suffered a second qualifying injury. The logic behind this argument was that although she sustained a left leg injury—which is a second qualifying loss—because it caused low back and mental injuries, it converted the left leg injury to an unscheduled injury which would be compensated by the employer on an industrial disability basis. The Deputy agreed the mental injury and back injury, both of which were caused by the leg injury, converted the leg injury into that which would be compensated industrially. The question then was whether the left leg injury should be considered independently of the back and mental injuries such that it was considered a second qualifying loss.
The Deputy looked to our state’s precedent established in Gregory v. Second Injury Fund of Iowa, 777 N.W.2d 395 (Iowa 2010). There, the court determined that “[i]n determining the Fund’s liability under section 85.64, the commissioner shall consider only the extent to which [the claimant’s] earning capacity was diminished by the combined effects of [both injury] losses to her enumerated extremities.” Id. at 401 (emphasis in original). The Deputy determined Ms. Strable’s case differed from Gregory in that Ms. Strable's back and mental injuries were nearly impossible to separate from her leg injury. In contrast, in Gregory, the injuries were to three separate body parts and were unrelated. The Deputy also noted the facts of this matter also likely lead to a double recovery as the dissent in Gregory feared. Ms. Strable settled her low back and mental injury claims with the employer for a substantial sum that exceeded any scheduled member injury as opposed to fully litigating the claims. The Deputy stated now setting up the legal fiction that those two injuries were not present enables Ms. Strable to use procedural tactics to settle claims and pursue Fund benefits, likely resulting in a double recovery for the injuries.
In attempting to reconcile the Gregory majority and dissent, the Deputy determined that Gregory applies to situations where there are two or more separate and district body parts involved with an otherwise qualifying injury. The Deputy found that Gregory does not cover Ms. Strable’s case because the mental and back injuries are not separate body parts but are inherently part of the leg injury. Accordingly, the Deputy held the 2019 injury to Claimant’s leg was confined to an unenumerated part of her body because it was a body as a whole injury, and thus did not qualify for Fund benefits because it was not a second qualifying loss.
Ms. Strable promptly appealed the Deputy’s decision to the Commissioner, asserting the Deputy erred when he found she did not prove a second qualifying loss to trigger Fund liability. The Commissioner reversed the Deputy’s decision, finding Ms. Strable did prove a second qualifying loss, thereby triggering Second Injury Fund liability.
The Commissioner determined Gregory clearly informs the outcome of Ms. Strable’s claim. The Commissioner stated: “The court in Gregory instructed the agency to look at whether the alleged first qualifying injury caused an injury to an unenumerated member (a hand, arm, foot, leg, or eye) and whether the alleged second qualifying injury caused an injury to another enumerated member that was caused by claimant’s employment regardless of whether the injuries caused other enumerated scheduled injuries, or other nonenumerated or unscheduled injuries.” Essentially, disability to an enumerated member, despite any difficulty in doing so, must be parsed out from the disability related to a sequelae injury to non-enumerated members. Accordingly, because it was largely undisputed that the leg injury did, in fact, occur, the Commissioner found that Ms. Strable did prove a second qualifying loss. Thus the Second Injury Fund’s liability was triggered.
The parties stipulated that Ms. Strable sustained a 4% whole-person impairment as a result of her carpal tunnel (her first qualifying loss). This equated to 20 weeks of benefits. The only medical opinion in the record stated that Ms. Strable sustained 42% lower extremity impairment as a result of her leg injury (now held to be her second qualifying loss). The Commissioner only considered the functional impairment to the enumerated leg and did not consider any effect of the sequelae mental and back injuries. This equated to 92.4 weeks of benefits, for a grand total of 112.4 weeks of benefits for the combined effect of both losses. Because both a first and second qualifying loss was established, the Commissioner then evaluated the extent of Ms. Strable’s industrial disability.
After analyzing the typical industrial disability factors, the Commissioner determined that Ms. Strable sustained 70% industrial disability, entitling her to 350 weeks of benefits. In analyzing industrial disability, the Commissioner did not mention mental or back injuries. However, he did consider the medical opinion that Ms. Strable’s work should be restricted to part-time, sedentary work. Those restrictions, however, were based in large part on her mental injury. Because the Second Injury Fund is only liable for the amount of a claimant’s industrial disability that has been reduced by the compensable value of the first and second injuries, the Commissioner held the Fund is only liable for 237.6 weeks of benefits, to begin after the expiration of the employer’s liability for the 92.4 weeks of benefits associated with the leg. This ultimately equated to a Fund liability of $196,602.12.
Ms. Strable had already settled her mental and back injury claims with her former employer for a substantial sum. Because the industrial disability award then inadvertently considered her mental injury, there are concerns this decision gave rise to a double recovery for at least her mental injury—a concern addressed by the dissent in Gregory—and concerns the Second Injury Fund will now be liable for body as a whole and mental injuries. Absent any decision to the contrary by our Iowa Courts or alteration to the law from our legislature, the Second Injury Fund will likely be inadvertently liable for unenumerated injuries and for apparent double recoveries. Should this trend continue, it is likely employers will be disincentivized from settling with employees, despite the agency’s established encouragement of settling without hearing. Further, there is a high likelihood that double recoveries will be seen in similar cases, despite the legislature’s clear intent to prevent such recoveries. This is an issue that must ultimately be determined by our appellate courts or by our legislature to remedy this gap in the application of the law.
Arbitration Decision - Ruff v. Senior Housing Health Care File No. 1655383.01
October 27, 2022 | Charles A. Blades
Biceps tendon tear and resulting Popeye deformity are injuries to the shoulder, compensation awarded based on scheduled shoulder injury.
Claimant worked as a maintenance man at a retirement community. Following claimant's stipulated work injury from lifting a toilet, he underwent a left shoulder MRI, which showed the long head of the biceps tendon was completely torn and retracted. Dr. Hill performed arthroscopic surgery to repair rotator cuff, labral tearing, and adhesive capsulitis. Post-operatively, claimant underwent PT with essentially normal recovery but with complaints of biceps spasm and shoulder fatigue as well as with loss of range of motion. Dr. Hill released him to return to work with no restrictions and assigned 9 percent upper extremity impairment based on loss of range of motion.
Dr. Segal, claimant's medical expert, opined that the biceps tendon rupture and permanent Popeye deformity caused claimant's injury to be considered to the upper extremity in addition to the shoulder. The deputy noted that Dr. Segal provided "his own definition of the shoulder which appears unrelated to those adopted by the Iowa Supreme Court or the Commissioner." Dr. Segal opined claimant's permanent impairment to be 21 percent left upper extremity or 13 percent whole person impairment. Dr. Segal added significant impairment because of loss of strength, which the deputy noted was not consistent with the AMA Guides. Dr. Segal did not provide a separate impairment rating for the biceps tendon injury and Popeye deformity.
Defendants' medical expert, Dr. Gorsche, opined claimant's injury was to his shoulder and any permanent impairment would be directly related to the shoulder injury. The Popeye defect did not result in permanent impairment to the arm apart from a shoulder injury. Dr. Gorsche noted that the biceps tendon is an interarticular structure in the glenohumeral joint. The rupture of the of the biceps tendon "actually occurred inside the joint and then
retracted distally to the level of the bicipital groove. Therefore, the injury that took place is a shoulder injury." Dr. Gorsche continued, "[r]upture of the long head of the biceps tendon always occurs interarticular and is the result of shoulder pathology." He also opined claimant's impairment should be based on loss of range of motion and not combined with loss of strength.
In a rebuttal report, Dr. Segal opined that the biceps tendon is "not essential to shoulder function" and that the impairment that the biceps tendon injury causes is primarily related to elbow flexion and pain in the biceps muscle.
Deputy Phillips ruled that claimant's injury, including the biceps tendon tear and Popeye deformity, was an injury to shoulder. The deputy noted that, at hearing, claimant's testimony showed his ongoing, current symptom complaints are all shoulder-based. The deputy found the opinions of Dr. Gorsche, an orthopedic specialist, more persuasive than those of Dr. Segal, a neurosurgeon. Dr. Gorsche explained that the biceps tendon rupture occurred inside of the glenohumeral joint. The biceps tendon originates in the shoulder as defined by Iowa law. Chavez v. MS Technology LLC, 972 N.W.2d 662 (Iowa 2020). Dr. Gorsche also noted that the Popeye defect does not result in a permanent impairment to the arm apart from the shoulder injury. The deputy also rejected Dr. Segal's impairment rating to the extent it incorporated loss of strength. Finally, the deputy denied claimant's request for reimbursement for the cost of Dr. Segal's main report under 876 IAC 4.33 on the grounds that Dr. Segal's invoice was not sufficiently detailed to indicate which portion of the invoice pertains to drafting of the report.
C. Collins - Arbitration Decision WC Stamped 10 24 22
October 26, 2022 | Charles A. Blades
Deputy Humphrey rejects claimant's COVID claim, holds claimant did not meet his burden to establish a causal connection between his work activities and COVID-19.
Claimant Collins, age 69, was working in the customer service department at Des Moines Area Regional Transit Authority's (DART's) central station in early November of 2020 when he tested positive for COVID-19. He was subsequently diagnosed with "long-haul" COVID or COVID syndrome. Claimant claimed he acquired COVID at work based on a spike in the incidence of COVID among co-employees at the time of his positive test result and based on his assertion that, other than working, he was totally "hunkered down" at home with no non-work activities or contacts. He admitted he always wore a mask at work, maintained social distancing and made use of hand-sanitizers, in compliance with DART policy. He was unable to identify any direct personal contact with any co-employee who had tested positive or other specific potential exposure at work. The evidence showed the employer followed all applicable CDC guidelines in place including enforcement of mask use, social distancing and hand sanitizing, and also employed preventative measures including testing, contact tracing and notification, enhanced ventilation, use of plexiglass shielding, and other measures.
The deputy noted that the report of claimant's medical expert, Dr. Kuhnlein, did not identify possible specific exposures whether with co-employees or customers and did not provide any information with respect to transmissibility, incubation period, or symptoms of COVID-19. Nonetheless, Dr. Kuhnlein opined that "the greatest probability for Mr. Collins' exposure was during his work at DART." Dr. Mooney, defendants' medical expert, opined that "it is impossible to state with medical certainty that the infection occurred during his employment rather than somewhere else. There is no evidence of any specific contact . . . that would directly relate his contraction of COVID-19 to his employment environment." The deputy determined that there is an insufficient basis in the evidence from which to conclude it is more likely than not Collins contracted COVID-19 while working for DART. Having so ruled, other disputed issues including the question of compensability of COVID-19 as an "injury" or "personal injury" under Iowa Code Chapter 85 were not addressed.
Breakdown of Amendment to Iowa Code 85.27 Regarding Prosthetic Devices
August 03, 2022 | Charles A. Blades
Previously, Iowa only allowed for one prosthetic per lifetime for workers injured on the job. The new bill requires an employer to provide multiple permanent prosthetic devices to an employee covered under workers’ compensation if it is deemed reasonable medical care. Obviously, the employer would be required to fix or replace a damaged or worn out prosthetic, and they could potentially be required to do that multiple times over the course of an employee’s lifetime. There is no limit other than what is medically reasonably necessary.
The new bill also requires an employer to repair or replace any prosthetic device that was damaged or made unusable by circumstances arising out of and in the course of employment other than through ordinary wear and tear. This obviously means any prosthetic device, including those needed because of personal, non-work related conditions. Be on the lookout for litigation where the issue is whether wear and tear occurred cumulatively as a result of repetitive work activities, versus through ordinary wear and tear.
Another part of the new bill involves settlements. Specifically, with any closed file settlement of a claim involving a prosthetic, to close the medical, the employer/insurance carrier must pay an additional amount to cover the estimated cost of future replacement. If the new bill requires an extra amount tied to a bona fide estimate, it could mean significant increase to the cost of closed file settlement in cases involving prosthetics for employers/insurance carriers. The new also adds in a provision that the payment for prosthetic replacement goes to the Second Injury Fund, which holds it and then pays for the future prosthetic if needed.
We will continue to keep you posted regarding this bill. If you have any questions, please reach out to your attorney at Smith Mills Law.
CUSTOMER FOOD TRUCK EVENT
September 13, 2022 | Smith, Mills & Schrock Law
COVID-19 Caselaw Update
March 30, 2022 | Smith, Mills & Schrock Law
Deputy Heather Palmer issued an arbitration decision on March 24, 2022 involving an employee’s death from COVID-19. In the case of Bolton v. Marcus Lumber and Redwood Fire & Casualty Co., File No. 20015335.01, Deputy Palmer found Claimant did not meet the burden of proving her spouse’s work was a substantial factor in causing him to contract COVID-19, which caused his death. Thus, the Claimant took nothing in the case. If you have any questions regarding this case, contact our attorneys.
Smith, Mills & Schrock Admits Newest Shareholder
Attorney Rachael D. Neff has been named Shareholder at Smith, Mills & Schrock Law, effective January 1, 2022. Rachael’s practice is focused on workers’ compensation, civil defense and family law. She represents employers and insurance carriers in the areas of insurance defense and workers’ compensation, in addition representing clients in divorce, guardianships, and adoptions. Rachael has been a regular presenter in the areas of workers’ compensation and insurance law providing value added education to the firm’s client community. A graduate of the University of Iowa and Drake University Law School, with high honors, the firm is thrilled to name Rachael as the newest shareholder.
March 10, 2022 | Smith, Mills & Schrock Law
Join Smith, Mills & Schrock Law and the Workers Compensation Defenders in Las Vegas this October for a special lunch and end-of-conference happy hour mixer at the National Workers Compensation Disability Conference
September 17, 2021 | Smith, Mills & Schrock Law
Presenter Highlight: Attorney Rachael Neff will be presenting on "Agency Update" at the 43rd Annual Iowa Association of Workers’ Compensation Lawyers’ Seminar, October 14-15, 2021
September 17, 2021 | Smith, Mills & Schrock Law
Join us next week for the 59th Annual Iowa Workers’ Compensation Symposium
Tuesday August 10 and Wednesday August 11, 2021. Attorney Kent Smith is presenting “Deposition Skills” and the firm will be handing out fun goodies in vendor hall.
Click HERE for the full agenda.
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