November Decisions

SUPREME COURT

Winnebago Industries and Sentry Ins. v. Haverly (12-1-06)

In connection with an Alternate Care Petition, http:/www.iowaworkforce.org/wc/forms/14-0011.pdf, and a defendant’s response admitting item one thereof, the Court has now held that, "We can assume in this case that Winnebago decided to admit liability for the purpose of maintaining control over Haverly’s care, but rejected any broader application of that admission because it wanted to challenge its liability for payment of benefits. Under judicial estoppel, this is not permitted."

Our Comment: These petitions are often filed before the usual Original Notice and Petition, http://www.iowaworkforce.org/wc/forms/14-0005.pdf, before counsel has been retained, and looked upon as something that can be amended or withdrawn later if a basis for denial is found. Thus, they have been responded to by adjustors without consulting counsel and this item admitted in an effort to maintain the control of medical afforded by §85.27.

In view of this decision, however, this admission CANNOT be later amended, nor withdrawn, and is BINDING law of the case.

We see this holding as a potential TRAP which goes against the general rule that voluntary payment is not an admission of liability. §86.13.

This same first item is also contained in the Vocational Rehabilitation Petition, http://www.iowaworkforce.org/wc/forms/14-0009.pdf, and the Independent Medical Examination Petition, http://www.iowaworkforce.org/wc/forms/14-0007.pdf, and we see no reason the Court’s opinion will not be applied to them as well. It will also apply to cases where this item has already been admitted.

Also, the same bad faith principals, requiring that you investigate and have valid reasons for denial when you make your denial apply.

COURT OF APPEALS

Kirk Gross Co. and United Fire Group v. Schwab (11-30-06)

Without proof to the contrary counsel is presumed to have had settlement authority when he accepted an offer on behalf of his client. The district court's order that granted the petition in equity to enforce specific performance of a settlement agreement between the parties on Claimant’s worker compensation claim, affirmed.

AGENCY APPEAL

JONES v. THE DEXTER COMPANY and EMC, 5009973 (10-13-06)

Although, opinions of an examining physician on causation, extent, and impairment rather than an opinion generated by a mere paper review are generally preferable, and deputy logically could have concluded that this physician's paper review was entitled to less weight than a diagnosis based on personal observation, defendants' denial of the claim on the basis of such opinions was not proven by claimant to be unreasonable or not fairly debatable. There was no showing by claimant that the records reviewed by these physicians or the assertions relating to claimant's employment position were either significantly incomplete or inaccurate. Penalty stricken.

WEATHERWAX v. BOESEN THE FLORIST, LLC., 5011784 (10-25-06)

Overtime pay cannot be included in gross earnings in computing the gross weekly earnings under Iowa Code section 85.36(9). The “total earnings” to be divided by fifty for a part time worker’s AWW for rate calculation do not include overtime pay on the current or prior employment's.

ALONZO V. IBP, INC., 5009878 (10-31-06)

Disciplinary action such as a suspension or termination based upon misconduct or a violation of an employer's work rules is not a refusal to perform suitable work. Absences from work unrelated to claimant's work injury can constitute a refusal to perform suitable work, if shown to be intentional and not due to reasonable excuse regardless of the employer's absenteeism policies.

In this case, defendant has shown that the work offered was suitable but failed to show that the absence was intentional and not reasonably excusable. It was not shown by the employer that claimant was acting unreasonably in visiting his ailing mother or that the failure to properly complete leave forms were so devastating upon the employer's operations as to be inexcusable.

        FORTUNE v. U.S.A. HEALTHCARE, 5005972 (10-31-06)

The only reasonable interpretation of Miedema v. Dial Corp 551 N.W.2d 309 (Iowa 1996) (the toilet case) is not that an injury from the common act of turning one's body is only compensable upon a special showing of increased risk from employment, but that an injury from such innocuous physical acts such as turning, reaching, bending, stooping, crawling or kneeling is not compensable without an increased risk showing, if and only if the physical act was performed in furtherance of a personal convenience, not a job task.