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Workers' Comp Case Summaries

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Medical Care the employer offered was unreasonable and unduly inconvenient. The employee injured his elbow while working as an over-the-road truck driver. The employee initially received treatment in Indiana where he was released to light duty work. Pursuant to a memorandum of understanding signed by the employee that stated that the Company may require him to temporarily relocate for modified work duty if injured, he traveled to Des Moines for light duty work and treatment. When this conservative treatment failed he was authorized to treat with an orthopedic surgeon in Alabama near his home where surgery and physical therapy were completed. When the employee was once again released to light duty work, the employer once again had him temporarily relocate to Des Moines and provided him with physical therapy in the hotel where he was staying. The employee, dissatisfied with the physical therapy being provided in the hotel, filed a petition for alternate medical care with the agency requesting therapy back in Alabama. The agency granted his petition, concluding treatment offered 897 miles from his home is unduly convenient and burdensome. The deputy noted that the memorandum of understanding is contrary to the law and case law of Iowa because it attempts to use an agreement to relieve the employer from part of its liability to provide reasonably suited treatment for the injury without undue convenience to the employee under Chapter 85. The employer appealed to the district court where the agency’s decision was affirmed noting that because he was recovering from surgery in Alabama where he lives, the employer cannot legally use this memorandum of understanding as a device to compel him to relocate 897 miles away from Alabama where reasonable physical therapy could be provided without undue hardship. The Court of Appeals determined that there was substantial evidence to support the agency’s decision. The Court noted the treatment in a hotel exercise room with no physical therapy equipment was not equivalent to that in the physical therapists office in Alabama. The Court of Appels found that agency did not err in holding the memorandum of understanding violated section 85.18, because the employer used it to compel the employee to relocate 897 miles away causing him to lose the consistency of his treatment and endure the stress of an 1800 mile round trip every two weeks. Annett Holdings, Inc. v. Roland, No. 15-0043.


Employer needs to show an actual date of notice of a change in authorization, or that the employee knew or should have known that the care was unrelated to injury to avoid liability for such care. The employee slipped on an egg on the floor at work and injured her back in August 2009. The employer acknowledged the injury and authorized and paid for treatment through September 30, 2009. The employee filed a petition with the commissioner against her employer and insurer seeking benefits, penalty benefits, and medical expenses incurred from May 2010 through April 2011. The employer argued that it did not authorize the expenses she incurred between May 2010 and April 2011 and that they were not causally connected to her compensable workplace injury. The deputy commissioner issued a decision stating that the employee’s condition after September 30, 2009 was not the result of her August work injury, thus denying her claims for benefits and medical expenses after September 30, 2009. The commissioner affirmed the decision that the medical expenses were not causally related to the work injury, but in fact awarded the employee the medical expenses and transportation expenses between May 2010 and April 2011. The deputy reasoned that she was entitled to these expenses because she incurred them while seeking care from providers authorized by her employer, and because the employer conceded it failed to notify her it was not authorizing further treatment. This was appealed to the district court who upheld the commissioners decision that any condition after September 30, 2009 was not work related, but reversed the commissioner on requiring the employer to pay the travel and medical bills. The Court of Appeals upheld both decisions. The Supreme Court found section 85.27(4) to mean that employers have an obligation to hold employees harmless for authorized medical expenses, but also an obligation to determine when it no longer wishes to authorize care and notify an employee when it is no longer authorizing that care. The Court found that the treatment after September 30, 2009 was not causally related, but remanded the case according to a new standard to avoid liability for treatment from authorized providers. In order to avoid liability the employer needs to show an actual date of notice of a change in treatment authorization. If actual notice was not given, the employer may still establish it is not liable for authorized care, if the employee knew or should have known that the care was unrelated to the work injury. Ramirez-Trujillo v. Quality Egg, LLC, No. 14-0640


Employer not obligated to pay for an IME obtained prior to the employer’s doctor issuing a rating. Claimant had a work-related injury in June of 2009. Defendant authorized medical treatment beginning in August of 2009. In May 2010, the employer-retained physician determined claimant had reached maximum medical improvement (MMI) and provided an opinion regarding permanent impairment. Prior to that, in March 2010, claimant had requested and received an IME from Jacqueline Stoken, D.O. The commissioner awarded $2,800 for the IME to be paid by the defendant employer. On appeal, the defendant contended it had no obligation to pay for the IME, as it was obtained prior to a rating by the employer-retained physician. The Court of Appeals found Iowa Code section 85.39 to allow for an IME to be charged to the employer, but only after the employer’s retained doctor made a rating. The Court stated to allow a claimant the cost of an IME conducted prior to the employer’s physician’s report under the Iowa Administrative Code, would be to allow an agency rule to defeat the requirements of a statute enacted by the legislature. The Supreme Court held that an employer is not obligated to pay for an evaluation obtained outside this statutory process. The Court also considered whether the commissioner could tax fees arising from the evaluation as "costs incurred in the hearing" when the employee submits a written report of the evaluation at hearing. The Court held that the expense of the examination is not included in the cost of the report, but that the costs associated with the written report of the employee’s doctor could be assessed as costs of the hearing. Des Moines Area Regional Transit Authority v. Young, 867N.W.2d 839 (Iowa 2015).


Employer must conduct investigation and give employee notice prior to terminating benefits. The employee was injured on October 23, 2010 while working as a cook. She was 24 and had obtained treatment for her low back on prior occasions. It was ultimately found that she had a disk extrusion so she was referred for epidural injections. The insurance provider denied the injections and a note by the doctor indicated that the insurer had put the employee in "medical limbo" and had not been paying her while she was off work. The employee sought counsel and her attorney filed a petition for alternate care. The day before hearing the injection was approved. The benefit was helpful and a second injection was administered. She was sent for an IME and it was determined she was at MMI. She obtained her own IME and it was recommended she be evaluated for surgery. On April 18, 2012 the surgeon opined that she was not a candidate for surgery and would have reached 6-12 weeks after the accident. He opined the disk extrusion was not related to the fall. A hearing was held and the deputy workers' compensation commissioner issued an opinion that the employee failed to meet her burden of proof that the ongoing back problems were related to the injury at work. Thus, she was not entitled to temporary benefits or penalty benefits. The commissioner affirmed the decision and adopted the deputy's decision. On judicial review the district court remanded the case for a determination of healing period and penalty benefits because the employee was never notified her benefits were being terminated. The Court of Appeals determined that penalty benefits were appropriate because the termination was not preceded by an investigation and the termination contemporaneously conveyed to the employee. Instead, there was no investigation for months after the termination of benefits and no notice was given to the employee. The Court of Appeals found that this justified a penalty and remanded it for a determination of the penalty along with a determination of healing period benefits. Pettengill v. American Blue Ribbon Holdings, LLC, No. 14-1511

Employee got off work but remained at the employer for about 30 minutes shopping in the store. As he was leaving the store after shopping he assisted a customer and injured his back in the process. Employee filled out an incident report designated for customers. Employee sought workers’ compensation benefits for his back injury. The deputy commissioner concluded the injury did not arise out of and in the course of his employment because he was no longer on the clock. On intra-agency appeal the commissioner reversed the decision. The employer filed an application for rehearing which was denied and on judicial review the court affirmed the agency decision. The employer appealed because the employee was not performing any services and was only shopping at the store. The Court of Appeals affirmed the district court’s decision because the employee could be found to be working when he stopped to help the customer. The employer also appeals on the basis that the commissioner failed to consider the deputy commissioner’s findings that the employee was not credible based on video of him involved in heavy labor and inconsistent deposition testimony. The commissioner acknowledged the credibility issues and limited the employee’s disability to 20% of the body as a whole. However, he rejected the overly negative view of the employee and adopted the opinion of his expert despite any credibility problems. The Court found this was supported by substantial evidence and affirmed. The employer was sanctioned by the commissioner in the amount of $213.82 for failure to comply with an alternate care order. The employer appealed this because it claims the issue was not preserved on the appeal. The Court of Appeals held that the commissioner on intra-agency review under Iowa Code 17A.15(3) has, all the power which the agency would have in initially making the final decision. Therefore, the decision was affirmed. Wal-Mart Stores, Inc. v. Plummer, No. 14-0417.

Total knee replacement arose out of employment when an injury at work caused an acute exacerbation of chronic knee arthritis. The employee had been told, prior to the work injury, that he would need a total knee replacement in the future but it was not certain when it would be required. At work, the employee fell down some icy stairs and hurt his knee. An MRI showed a medial meniscus tear, chronic ACL tear, and patella tendon tear. Conservative care was unsuccessful and a total knee replacement was performed. The deputy commissioner determined that the right knee was compensable and awarded a 50% permanent impairment. The employer appealed and the commissioner affirmed without further comment. The employer also appealed to the district court which affirmed the decision. The Court of Appeals found that there was substantial evidence for the commissioner's determination that the work injury worsened the employees preexisting condition which exacerbated the need for surgery. The award was affirmed. No. 3-1111/13-0495.

Worker who was not forthcoming deemed not credible. The worker did not give accurate health history to her doctors, particularly with respect to prior injuries. She also gave contradicting complaints of pain and forgot about some of them until confronted during her testimony. She also offered contradictory testimony regarding health issues, specifically previous depression and whether she was taking opiates for back pain. The commissioner found that she was not credible and the court affirmed this finding because there was substantial evidence in the record that supported the finding. The commissioner also found that one of the doctors was more credible than the others because he had a complete picture of the worker's medical history. The other doctors that found the injury was causally connected did not have the complete history. Therefore, the commissioner found that the doctor with the most information was more credible and the worker was not credible. The Court affirmed the commissioners finding that the injury was not causally connected to a fall while working for the employer. Zaglauer v. Mercy Medical Center, No. 3-780/13-0160.

Worker who had developed asthma because of exposure to certain chemicals was not totally disabled. The worker developed asthma because of exposure to certain chemicals. The doctor awarded a permanent impairment of 25% of the body as a whole. The only restriction associated with that impairment was that the worker could not work in an environment where he would be exposed to any of those chemicals. This restriction made is so that he was unable to work at the plant he had been working at but the employer offered him work at another plant. He declined to move. The deputy commissioner awarded him a 25% industrial disability and indicated that he was not totally disabled because he would work where he was not exposed to the chemicals. The employer also filed a cross appeal for the award of healing period benefits. The deputy commissioner awarded healing period benefits until the date of maximum medical improvement. This was affirmed on appeal because the worker was not able to work in substantially similar employment without being exposed to the chemicals that caused his injury. Deckert v. Jeld-Wen, Inc., No.3-782/13-0288.


Offers to Confess Judgment are not applicable to Workers' Compensation Proceedings. The employer filed an offer to confess judgment with the commission prior to the hearing. The deputy stated he did not view the offer of judgment and ordered both sides to pay their own costs because "there are no procedures, under the statutes and rules of this agency for awarding costs under an offer of judgment." The employer appealed the deputy's decision and the commissioner adopted the deputy's findings and rulings as the final agency decision. The commissioner expressly concluded that "offers to confess judgment pursuant to chapter 677 of the Iowa Code are not available in proceedings under the Iowa workers' compensation act." On appeal to the Court of Appeals the court held an offer to confess judgment would interfere with the discretion granted to the commissioner to assess costs. Therefore the commissioner's decision was affirmed.


Healing period benefits available after reaching Maximum Medical Improvement. In a workers' compensation case appealed the Supreme Court, the Court was asked to answer the question of whether a claimant could receive additional healing period benefits after reaching maximum medical improvement (MMI). In this case, the claimant began working for the employer in the early 1970s as a plumber. In 2001 he began to complain of lower extremity pain, and it was determined that he sustained an ankle injury as a result of his work. He underwent surgery in January 2002, and he returned to work. His pain returned the following year, and a second surgery was performed in September 2002. He again returned to work, but he "turned" his ankle in 2003 and received some injections which were not effective. A third surgery was performed in 2004. He reached MMI as of April 5, 2005. He quit working for the employer in 2006, but continued working as a plumber. He continued to have ankle problems, and underwent yet another surgery on September 18, 2007. He was then off work from the date of surgery until December 7, 2007 when he returned to work. The issue in this case is whether the claimant is entitled to healing period benefits following the 2007 surgery while he was off work.

This decision had been decided before by the Supreme Court, and the Court determined that healing period benefits were not available after reaching MMI. See Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999). The Court overruled Ellingson and held that a claimant may be entitled to additional healing period benefits even after reaching MMI. In overruling the prior case, the court stated that the prior decision was flawed because it eliminated the healing period intended to replace lost wages during convalescence. The prior decision also ignored the fact that a single injury can cause a new temporary disability, even after reaching MMI according to the court.


Distance to available work offered to injured worker can be a factor regarding suitability: Claimant worked as an over-the-road flatbed truck driver. He was injured in 2007 which resulted in a rotator cuff tear. Due to the injury he was given restrictions including limiting the amount he could lift. At the time of the accident, the claimant lived in Grayville, Illinois. After the restrictions were issued, the employer offered the claimant light duty work in Des Moines, Iowa, which was 387 miles away from his home, wife, and children. His employer agreed to provide a motel during the work week, and transportation costs to visit his family every other weekend. The claimant denied the work, and benefits terminated. The question at hearing was whether the offered work was "suitable." On appeal the Commissioner held that due to the distance between his home and work, the offered job was not "suitable," and noted that "being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter." On appeal, the Supreme Court agreed with the Commissioner and held that the location of the offered work may be considered when determining the suitability of work.


No permanent impairment awarded despite invasive shoulder surgery. Claimant sustained an injury to his shoulder while working for his employer, which ultimately required surgery. During surgery part of a frayed labrum was removed in addition to freeing a bone spur, among other things. His doctor opined that he did not sustain a permanent impairment, and shortly thereafter the claimant voluntarily retired and never looked for permanent employment. At hearing the Deputy found that the claimant did not sustained a permanent impairment, and was not entitled to industrial disability. On appeal, the claimant argued that it was error to determine he sustained no permanent impairment because he underwent a surgical procedure, and the AMA Guides definition of impairment includes "derangement of bodily structures." When upholding the Deputy and the Commissioner, the Supreme Court noted that the Guides are not conclusive evidence on the extent of a permanent impairment, and furthermore, because this was an unscheduled member injury, industrial disability applied which required analyzing several factors, including: age, education, qualifications, experience and his inability, because of the injury, to engage in employment for which he is fitted. Because factors other than the AMA Guides are considered when awarding industrial disability, the Court affirmed the decision finding that he did not sustain a permanent impairment.


Healing period benefits appropriate when claimant retired shortly after work-related injury. In a workers' compensation case, the Deputy awarded a 35% industrial disability and healing period benefits. The claimant suffered an injury to his knee in 2003, and later injured his shoulder on March 14, 2007. He then retired in April 1, 2007. Regarding the healing period benefits, the defendant argued that benefits were inappropriate because the claimant retired shortly after the injury. The Deputy ultimately awarded healing period benefits, which was affirmed on appeal, because there was substantial evidence that the claimant's retirement was caused, in part, by his workplace injuries.


Iowa Workers' Compensation Commission has jurisdiction over maritime work in marina consisting of routine maintenance. The manager of a marina along the Mississippi river tried to remove a canopy by using the bucket and boom of an excavator. In order to reach the canopy, the manager began driving the excavator down two boat ramps and onto a barge. Before he could get the excavator onto the barge, the ramps slipped, the machine fell into the water, and the manager drowned. His surviving spouse filed a petition for death benefits with the Iowa Workers Compensation Commissioner. The employer answered arguing that the federal Longshore and Harbor Workers' Compensation Act (LHWCA) covered the death. The critical question was whether the manager was an employee under the statute, which is defined as "any person engaged in maritime employment . . . but does not include . . . individuals employed by a marina and who are not engaged in construction, replacement or expansion of such marina (except for routine maintenance)." Because the manager's work was considered to be routine maintenance, the LHWCA did not apply, and the Iowa Workers' Compensation Commission had proper jurisdiction.

No. 10-1237. [1-095] BLUFF HARBOR MARINA v. WUNNENBERG

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