IOWA WORK COMP NEWS

Ruud

Fri, 15 Aug 2008 10:12:11 -0500

SUPREME COURT

MIDWEST AMBULANCE SERVICE v. RUUD, 82 / 06–1377 (8-15-08)

Employer appeals on statute of limitations defense, denial of credit for medical paid under COBRA, and award of medical paid under COBRA directly to claimant. AFFIRMED.
The threshold issue in this case is whether Ruud’s petition was timely under Iowa Code section 85.26. In
determining whether the statute of limitations began to run, the commissioner used the correct legal standard, namely, whether Ruud acting as a reasonable person knew or should have known that her physical condition was serious enough “to have a permanent adverse impact on the claimant’s employment or employability. . . .”
Mere recognition that there is substantial contrary evidence in the record does not mean that the commissioner’s determination may be successfully attacked on appeal. The burden is on the unsuccessful party to show that the commissioner’s determination is lacking in substantial evidence. Appellants urged use of a “scrutinizing analysis,” however, such was rejected, as it would tend to undercut the overarching goal of the workers’ compensation system, “for, if we trench in the slightest degree upon the prerogatives of the commission, one encroachment will breed another, until finally simplicity will give way to complexity, and informality to technicality.”
The commissioner determined that Ruud was not aware, and should not have been aware, of the nature, seriousness, and probable compensability of her injury until June 2002. Given this factual finding, we conclude that under Iowa Code section 85.26, the statute of limitations did not begin to run until June 2002. Because her petition was filed within two years of June 2002, the commissioner’s conclusion that it was timely was correct.
The Court held that under Iowa Code section 85.38(2), the employer must contribute in whole or in part to a group insurance plan for the benefit of the claimant in order to be entitled to the statutory credit. Because they have not proven that they contributed to Ruud’s COBRA payments, they cannot prevail on their claim under section 85.38(2).
The Court also held, that the commissioner did not err in ordering direct payment to the claimant for past medical expenses paid through insurance coverage obtained by the claimant independent of any employer contribution (through COBRA).
Compare, Ayers issued two days earlier by the Court of Appeals.

Cecil

Wed, 13 Aug 2008 14:28:24 -0500

COURT OF APPEALS

CECIL v. EMC INSURANCE COMPANIES and EMC RISK SERVICES, 8-473 / 07-1812 (8-13-08)

Claimant appeals from the district court’s review reversing the workers’ compensation commissioner’s award of temporary partial disability and industrial disability benefits. REVERSED, and commissioner’s award AFFIRMED as to TPD, and REMANDED as to PPID.
Claimant was employed as a medical case manager. Her job involved daily travel for which she was assigned an employer-owned fleet or rental car. She submitted an employee injury report indicating she experienced various aches and pains attributable to driving company owned or rental cars during her five and one-half year employment.
As a preliminary matter, we address EMC’s argument that the commissioner erred in rejecting the deputy’s credibility findings. The deputy’s proposed findings are not a consideration on our review because its decision is not final agency action subject to judicial review. The commissioner possesses discretion to accept or reject testimony based on credibility.
The commissioner's award of temporary partial disability benefits is supported by substantial evidence
We agree with the district court’s conclusion that the agency award of industrial benefits solely based on claimant’s loss of earnings is erroneous. We, however, disagree with the district court’s conclusion that the only reasonable determination based on the record before us is that claimant does not have an industrial disability. Under these circumstances, we believe the appropriate remedy is to set aside the commissioner’s findings concerning claimant’s industrial disability, and remand to the commissioner for a redetermination of industrial disability, if any.

Dodd

Wed, 13 Aug 2008 14:13:40 -0500

COURT OF APPEALS

DODD v. FLEETGUARD, INC., 8-332 / 07-1342 (8-13-08)

Claimant appeals from denial of her claim, and denial of reimbursement for §85.39 IME expense. AFFIRMED as to denial of claim, REVERSED and REMANDED as to IME expense.
It is the commissioner‟s duty as the trier of fact to determine the credibility of witnesses.
We find no error in the commissioner‟s analytical process. The commissioner rejected Dodd’s claims because he found there was no credible evidence to prove there was a cumulative or specific injury. In doing so, the commissioner first determined Dodd’s testimony describing how she had injured herself at work was not credible. He then noted there was no medical evidence to support Dodd’s claim that that the rotator cuff tear was the result of a cumulative injury. Finally, he determined Dr. Kuhlein’s opinion relating the injury to two specific instances at work was worth little weight. The commissioner listed the reasons why he determined Dodd’s testimony was not credible and listed reasons why he gave no weight to the opinion of the one doctor who supported her theory of causation. The commissioner‟s legal conclusions were apparent. We find no error here.
Unlike section 85.27, section 85.39 does not state the employer‟s liability for medical expenses is dependent on the claimant‟s proof of compensability. We conclude section 85.39 does not include an implied requirement that the claimant ultimately prove the injury arose out of and in the course of employment.

Ayers

Wed, 13 Aug 2008 13:54:11 -0500

COURT OF APPEALS

AYERS v. D&N FENCE, 8-470 / 07-1795 (8-13-08)

Insurer appeals from judgment in favor of claimant for medical expenses incurred, but not paid by him. REVERSED and REMANDED.
The workers’ compensation commissioner ordered “that defendants pay all of claimant’s expenses under section 85.27 associated with a knee injury and knee replacement surgery.”
The parties to the agency proceedings stipulated that, of the $50,667.04 in medical costs billed to Ayers’s health insurance company, the company paid $27,129.74. Ayers’s out-of-pocket expenses were $507.58.
Claimant subsequently filed a district court motion to have the workers’ compensation award reduced to judgment.
The district court granted the motion, ordering judgment “on behalf of the petitioner, Clifford Ayers, and against Defendant, D & N Fence Company, Inc. for $27,129.74 in actual medical expenses and $100 in costs.” The court denied a request to reconsider its ruling.
The insurer argues that the district court exceeded the scope of its authority under Iowa Code section 86.42 when it entered judgment in favor of Ayers personally for medical expenses paid by a personal health insurer.
Iowa Code section 86.42 allows a party to present an order or decision of the workers’ compensation commissioner to the district court which “shall render a decree or judgment.” The court’s role is ministerial and is limited to entering a judgment conforming with the award. Rethamel v. Havey, 679 N.W.2d 626, 629 (Iowa 2004). The court may, however, construe the commissioner’s award.
In Rethamel II, the Court provided guidance on the language to be used in this type of judgment, including language on enforcement of the judgment. The court stated: An appropriate way to “construe” the award would be to enter judgment stating “Rethamel is liable for Havey’s medical expenses.” Such a judgment could be enforced “at the time of execution or by a separate action” by whoever provided the medical care, or whoever already paid for the medical expenses. We reverse and remand for entry of judgment in conformity with the commissioner’s award.

Harris

Wed, 13 Aug 2008 10:27:57 -0500

COURT OF APPEALS

JACOBSON TRANSPORTATION v. HARRIS, 8-496 / 08-0065 (8-13-08)

Appellants appeal permanent total award and rate determination. PTID AFFIRMED, rate REVERSED.
The deputy issued an arbitration decision in which he found Harris to be permanently and totally disabled. He also found a weekly compensation rate of $483.99 to be appropriate.
The commissioner affirmed the disability finding but modified the weekly rate to $545.51. The district court affirmed.
The rating physician found an impairment rating of ten percent related to the work injury. Jacobson now contends that “[s]omeone who is 90% functionally intact would not seem to be 100% disabled.” However, Iowa case law is clear that functional impairment is not synonymous with industrial disability. functional impairment rating is but one of several considerations that factored into the finding of permanent total disability.
Claimant is a truck driver who can no longer drive any significant distance or for any significant amount of time because he cannot sit for an extended period of time. The record before us contains substantial evidence to support the permanent and total disability finding.
The deputy averaged claimant’s thirteen weeks of earnings prior to the injury. From that average of $827.52, he found Harris entitled to a compensation rate of $483.99. On appeal to the commissioner, claimant contended the deputy erred by including non-representative weeks in its calculation of the weekly average. The commissioner agreed, and revised the calculation to exclude three weeks in which his earnings were significantly lower than the other ten weeks. He found the weekly average to be $953.50 and awarded benefits of $545.51 per week.
There does not appear to be any specific evidence in the record as to why the three weeks struck by the commissioner were lower than any other week. Harris merely testified that he had no idea why his earnings some weeks were particularly low, other than “I took off maybe three or four days home time.” Without any substantial evidence as to why those three weeks were lower than the included week, other than normal fluctuations in productivity, we conclude it was an abuse of discretion and wholly irrational to have concluded they did not fairly reflect customary earnings. The only evidence in the record concerning his earnings is that they fluctuated widely based on a variety of factors, some not necessarily under the control of the truck driver. Claimant’s own testimony indicates that on any given week, a truck driver’s earnings could be substantially lower than average. By discarding those three lower weeks from the average earnings calculation, the agency failed to consider normal, indeed expected, fluctuation in earnings. Accordingly, we reverse the commissioner’s rate-finding of $545.51 and reinstate the deputy’s award of $483.99.

Osborn II

Fri, 8 Aug 2008 08:32:08 -0500

SUPREME COURT

GRINNELL COLLEGE and the CINCINNATI INSURANCE COMPANIES v. OSBORN, 152 / 06–2063 (8-8-08)

Appellants appeal permanent total award for combined effect of bacterial infection and cumulative shoulder injury. AFFIRMED.
Claimant worked first as a custodian until he began to have shoulder problems from the repetitive overhead work required by that position, he then transferred to the grounds department.
He worked with other employees in the grounds department to spread pea gravel around some playground equipment. He became ill and was eventually diagnosed with a Campylobacter bacterial infection. He now suffers from chronic fatigue syndrome and has not worked since September 10, 2000.
The commissioner modified the deputy’s decision to hold the combined effect of claimant’s two injuries caused him to become permanently and totally disabled. The commissioner’s decision was affirmed by the district court on judicial review.
The employer challenged five findings made by the commissioner: (1) that claimant’s infection was contracted from the pea gravel; (2) that claimant was permanently and totally disabled; (3) that certain medical expenses were related to claimant’s treatment for his bacterial illness; (4) that claimant sustained an injury to his right shoulder on August 10, 1999; and (5) that claimant suffered from a permanent disability as a result of his shoulder injury.
The Court considered in detail each of the arguments made by the employer with respect to each specification of error and concluded there was no basis upon which to reverse the commissioner’s award.

Carper

Wed, 30 Jul 2008 15:22:55 -0500

COURT OF APPEALS

CARPER v. DES MOINES PUBLIC SCHOOLS, 8-499 / 08-0134 (7-30-08)

Deceased claimant’s daughter’s representatives appeal denial based on causation. AFFIRMED.
Carper was awarded 40% PPID on a 1999 back injury claim, and died during the pendency of her review-reopening seeking permanent total disability.
Her after-born daughter now seeks benefits for her death caused by overdose.
While it is undisputed that Carper was prescribed some of the medications to manage the pain associated with her back surgeries, in view of differing medical opinions as to a causal connection between her 1999 injury and 2003 overdose, reasonable minds could differ on whether the injury or the drug abuse was a substantial factor in her death. Thus, the record contains substantial evidence to support denial by the Commissioner.
The issue of the after-born child’s entitlement was not reached.

Corman

Mon, 28 Jul 2008 13:42:56 -0500

AGENCY APPEAL

CORMAN V. CK PROCESSING COMPANY, 5020540 (7-28-08)

Claimant appeal 80% PPID award, and seeks permanent total. MOFIFIED to award total disability.
Although claimant may have the ability to perform some type of sporadic errand-running and even less than sporadic fork lift driving, he could not do so for anywhere near a full work day. His work weighing trucks entering his workplace is not a job task that constitutes an employment position in the competitive labor market. Rather, the job task is merely a simple task that occupies less than one-sixteenth of the time claimant is physically present at his employment. The remainder of his day is spent sitting, walking, or resting without additional responsibility. While the record evinces that the employer has done a commendable service for claimant by allowing him to complete this task for a respectable hourly salary, the record more convincingly evinces that should this employer no longer allow claimant to perform this task that he would be physically and mentally unable to compete for any other employment position in the labor market where he resides. It is therefore concluded that claimant has sustained an injury which permanently disables him from performing work within his experience, training, education, and physical capacities. Therefore, claimant is entitled to an award of permanent total disability benefits.
(COMMENT: Make work will not avoid PTID.)

Paulino

Thu, 17 Jul 2008 12:17:46 -0500

AGENCY APPEAL

PAULINO v. C-TEC INC. & AIG, 5019047 (7-17-08)

Claimant appeals denial of payment of past and future expenses of his continued stay at the Center for Comprehensive Services, a physical rehabilitation provider. REVERSED.
Claimant, is a Mexican national who was severely injured while working in Iowa. The severe injury occurred as a result of a fall from a height of 70 feet while he was employed as a construction worker.
Severance of the spinal cord rendered claimant permanently paraplegic and wheel chair bound. He has limd bladder and bowel control. He suffers from frequent urinary infections. He continues to suffer chronic hip and back pain and recurrent sores and decubitus skin ulcers from lack of movement which require constant monitoring and from time to time medical treatment.
Apparently motivated by the high monthly cost at CCS, $18,000 to $23,250, and frustrated by the inability to quickly locate a suitable permanent residence that was acceptable to CCS staff, the insurer began to apply pressure upon CCS to discharge claimant without a suitable residence. This was accomplished with threats to cut off funding of claimant's stay at CCS.
Defendants assert they have no problem satisfying the medical care requirements and agree that they would provide any modifications to any rental property needed to make it fully accessible to claimant. However, they ended any further payments to CCS and closed his file when CCS refused to permanently discharge claimant to a 30-day temporary stay in a motel to find his own apartment. Defendants assert that claimant is refusing to leave CCS.
The parties largely agree that there are considerable problems in obtaining a suitable place for claimant to reside.
The parties at the time of hearing were at a stalemate. Defendants contend that CCS must discharge claimant first and that upon discharge it would be up to the nurse case manager to provide for his needs. CCS states that they cannot discharge claimant without a permanent care plan in place
It is concluded that defendants' actions in this matter are unreasonable. Defendants contend that the reason claimant remains at CCS is because he refuses to pay for his own living expenses. That is simply untrue. At no time has claimant rejected a discharge plan suitable to CCS. Claimant remains at CCS because defendants have not submitted an adequate care plan to CCS and CCS has been unable to develop a plan on their own. CCS has indicated that such a care plan could require claimant to pay for living expenses that he could afford. Defendants are ignoring federal and state regulations as well as ethical concerns that require a discharge to a permanent suitable location for a person in claimant's position. Defendants contend that the $22,500 is wholly unreasonable because a long term plan at CCS is only $9,000. However, it is defendants, not CCS who is blocking use of that plan by their failure to enter into such an agreement with CCS. CCS was the authorized provider of defendants and defendants' current insistence that CCS discharge claimant without a permanent plan in place for his assisted care residence post-discharge is unreasonable, unethical, and perhaps illegal.
Although living expenses after recovery from an injury are usually not compensable medical expenses, they may become compensable upon a showing of special circumstances. This would include furnishing a motor vehicle, not just the modifications to such a vehicle to make is handicapped accessible, when it was shown that prior to the injury the worker had no need for a vehicle due to the wide availability of public transportation in the area of the workers' residence. Manpower Temporary Services v. Sioson, 529 N.W.2d 259 (Iowa 1995). In the same vein, claimant's need to remain at CCS until a comprehensive discharge plan is developed renders the living expenses he is receiving at CCS reasonable and necessary medical expenses. This arises, as found in the Findings of Fact, from moral, ethical, and legal obligations of CCS. Defendants authorized the stay at CCS and they must follow through with that care, including an appropriate discharge from CCS and not simply abandon claimant due to excessive costs.

Alibegic

Wed, 16 Jul 2008 09:32:06 -0500

COURT OF APPEALS

ALIBEGIC v. IBP, INC., 8-450 / 07-1535 (7-16-08)

Employee appeals denial of claim for back injury. AFFIRMED.
Claimant did not have a medical doctor testify about her injuries or render an opinion as to the probable cause of the injuries. Instead, she relied upon written medical reports from her treating doctors that described the injury and subsequent treatment. IBP countered by arguing there was no proof that her herniated discs and resulting surgeries were related to an injury she suffered at work.
The deputy commissioner issued an arbitration decision awarding claimant benefits.
The commissioner reversed the deputy’s decision. The commissioner concluded claimant was not entitled to benefits because she had not met her burden to prove that she sustained a work injury arising out of her employment. Specifically, the commissioner pointed out that there was no medical evidence from any doctor forming a causal connection between her back condition and her employment.
On judicial review we are bound by the agency’s fact-finding if it is supported by substantial evidence. Evidence is substantial for purposes of reviewing an administrative decision when a reasonable person could accept it as adequate to reach the same finding. The fact that two inconsistent conclusions may be drawn from the same evidence does not prevent the agency’s findings from being supported by substantial evidence.
Most importantly to this case, if the commissioner finds that the claimant’s evidence is insufficient to support the claim under applicable law, we may only overturn that negative finding if the contrary appears as a matter of law. A finding may only be made as a matter of law if the evidence is uncontroverted and reasonable minds could not draw different inferences from the evidence.
Our case law is clear that the question of “[w]hether an injury has a direct causal connection with the employment or arose independently thereof is essentially within the domain of expert testimony.”
Claimant presented no expert testimony establishing a link between her work activities and/or a specific work-related incident which allegedly caused the herniated discs. Instead, she relied upon her own testimony describing how she injured her back while working and the fact that the nurses in the IBP Health Services Department initially put her on restricted duty work and authorized limited medical treatment.
This evidence does not compel a finding that claimant’s injury arose out of her employment at IBP. While one could infer claimant injured her back while performing a job that required repetitive bending, twisting, and throwing, reasonable minds could still draw different conclusions from the evidence in this case. Therefore, we find claimant did not prove, as a matter of law, that her injury arose out of her employment with IBP.