IOWA WORK COMP NEWS

Herrera

Thu, 30 Apr 2009 15:00:04 -0500

AGENCY APPEAL

HERRERA V. SOUTHEAST POLK COMMUNITY SCHOOL DISTRICT, 5021555 (4-30-09)

Defendants appeal award based on aggravation of somatization disorder. AFFIRMED.
Doctors who opined otherwise were not convincing in stating that the injury played no role in precipitating this disability in light of the fact that she was working at the time of the fall and only left work after the fall. The views of defendants’ doctor were inconsistent and demonstrated a lack of understanding of the law on aggravation injuries. While stating that the work injury did not precipitate the disorder, the doctor stated that the disorder was “her response to stressors” and this would be her response to any injury. WALSHIRE

Moore

Mon, 20 Apr 2009 14:59:48 -0500

AGENCY APPEAL

MOORE V. ALCOA, INC., 5015436 (4-20-09)

Defendant appeals failure to allow additional time to respond to Claimant’s late offered expert report. AFFIRMED.
While it was concluded that the report should not have been admitted without allowing Defendant additional time to respond. And, Claimant clearly violated our division’s rules on exchanging practitioner reports as well as the provisions of the hearing assignment order.
Defendant admits that absent Exhibit 2, the treating doctor opined that CRPS was possible. The treating doctor’s opinion was bolstered by the definite diagnosis of CRPS in the late offered report and also by claimant’s symptoms of palm sweating, color changes, and abnormal chronic pain – symptoms that even the doctor relied upon by Defendant admits are symptoms of CRPS.
Under these circumstances it would be unjust to disturb the presiding deputy’s finding that the work injury was a cause of complex region pain syndrome.

Islamovich

Mon, 20 Apr 2009 13:29:21 -0500

AGENCY APPEAL

ISLAMOVIC V. TYSON FOODS, INC., 5020884 (4-20-09)

“The presiding deputy commissioner’s award of twenty (20) percent permanent partial disability is affirmed. The award of industrial disability benefits, however, is premised upon defendant’s reinstatement of claimant’s employment post-injury with an anticipated return to employment with Tyson Fresh Meats.”
Note: For the potential significance of this modification on review-reopening, should he get worse and be terminated, see, Fodor.

Bannister

Fri, 17 Apr 2009 14:22:02 -0500

AGENCY APPEAL

BANNISTER v. BSA REALTY MANAGEMENT, 5018039 (4-17-09)

Defendants appeal failure to apportion out prior disability. AFFIRMED.
Prior to the legislative changes to Iowa Code section 85.34 in 2004, Iowa courts had previously adopted the so called "fresh start rule."
This legislation codified the fresh start rule applicable in this case. The fresh start rule is based upon the premise that a worker's earnings in the competitive labor market at the time of a work injury are reflective of that worker's earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his employment prior to a work injury, the impact of that impairment or impediment upon that worker's earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

Navrude

Fri, 17 Apr 2009 13:28:36 -0500

AGENCY APPEAL

NAVRUDE V. TRIPLE "C" ROOFING, INC., 5021802 (4-17-09)

Claimant appeals 80% PPID award, seeking permanent total. MODIFIED.
Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however.
Claimant is a 73 year old worker with severe restrictions on his ability to perform manual labor, the only work for which he is qualified. It is undisputed that he cannot return to the only job he has had since 1984, which is very physical roofing work. Despite his motivation to look for work since his medical recovery, he has not found any employers willing to hire him.
Whether or not claimant can perform some work is not the issue in this case. Rather, the issue is whether such work is available to claimant in the competitive labor market. Considering claimant’s unsuccessful job search and the uncontroverted views of the vocational counselor, claimant presented a prima facia case that such work is not available to him. Although claimant may have the ability to perform some type of non-physical labor, there is no guarantee that that will occur in the foreseeable future. The odd-lot doctrine was pled in the petition and under that doctrine, when claimant makes such a showing, the employer must go forward with the evidence to show availability of suitable employment. That was not done in this case.

Main

Thu, 16 Apr 2009 13:28:25 -0500

AGENCY APPEAL

MAIN V. QUAKER OATS COMPANY, 5008782 (4-16-09)

Defendants appeal review-reopening based on increased restrictions. AFFIRMED.
At the time of the prior arbitration proceeding it was found that the doctor gave claimant restrictions of no repetitious overhead or shoulder level work. After that decision, another physician restricted not only repetitive overhead and shoulder level activity, but also overhead, shoulder level, and full forward reaching activity to only
occasional use not to exceed 20 pounds of force.
“More importantly, (the doctor) at that time had opined that claimant should not return to his job at Quaker Oats.” (Strike through added?) “The arbitration decision anticipated a return to work without loss of earnings or rate of pay given the wording of the presiding deputy in his industrial disability analysis.”
The Deputy commissioner’s award of 50 percent industrial disability is affirmed. A refusal by the employer to return an injured worker to work due to new permanent restrictions is evidence of a significant loss of employability.

Fodor

Wed, 15 Apr 2009 13:28:11 -0500

AGENCY APPEAL

FODOR V. AIRGAS NORTH CENTRAL, INC., 5014325 (4-15-09)

Claimant appeals denial of additional benefits on second review-reopening, after termination. REVERSED.
After his injury Claimant has continued his employment as a cryogenics service technician for the employer.
In the arbitration decision it was found that, “Claimant’s previous work experience largely involved heavy labor or heavy equipment operation or both. He is unlikely to be able to return to this type of work should he no longer be employed as a cryogenics service technician.”
After the arbitration hearing and decision, claimant continued in his job, but states that his shoulder soon began to cause him increasing problems. He returned to the treating physician who felt that there was nothing further he could do other than to take him off work. Initially this leave was considered temporary, but he never returned to work at Airgas or anywhere else.
After an FCE, the Employer initiated a review by Concentra to identify the specific job requirements of claimant’s job. Mayo physicians compared the results to the Concentra job requirements and formally concluded that claimant could not meet those job demand criteria.
Based on this testing and an interview with claimant, the Employer concluded that claimant was unable to perform ten essential job functions and that accommodation by using co-workers to perform those functions was not available. The Employer thereafter terminated claimant’s employment. It was concluded that claimant’s termination was not due to a refusal to continue accommodations.
The added left shoulder complaints in 2008 clearly accelerated the loss of his job. Nothing in this record suggests that this increased disability due to a worsening of the left shoulder condition was anticipated by anyone at the time of the initial arbitration proceedings. Claimant’s increased shoulder problems were the proverbial straw that broke the camel’s back.
Refusal of defendant-employer to maintain claimant’s employment in any full duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability. An employer knows the demands that are placed on its workforce. Its determination that the worker is too disabled for it to employ is entitled to considerable weight. If the employer in whose employ the disability occurred is unwilling to accommodate the disability, there is no reason to expect some other employer to have more incentive to do so.
The offer of a seasonal lawn mowing job which he likely cannot perform with his present restrictions does little to establish that claimant is capable of finding suitable, gainful employment for which his experience, training, and education have prepared him. Claimant’s medical restrictions have resulted in a worker unable to return to any gainful employment. Permanent total disability awarded.

Crawford

Tue, 14 Apr 2009 14:22:19 -0500

AGENCY APPEAL

CRAWFORD V. MAYTAG COMPANY, 5022533 (4-14-09)

Defendants cross-appeal award of second IME expense as a cost. REVERSED.
Treating physician rated Claimant as having no permanent impairment in either of his shoulders or his knee. Claimant obtained an IME of these areas under §85.39.
Thereafter treating physician operated on Claimant’s right shoulder, and later rated his functional impairment. Claimant obtained a second IME claiming the expense as a cost under §85.39.
Although, the Deputy's order of reimbursement was in line with this agency's prior rulings that subsequent treatment and rating examinations necessitate additional IME's under section 85.39, the Iowa Supreme Court has recently ruled that §85.39 limits an injured worker to one IME, regardless of the number of rating examinations obtained by the employer or its insurance carrier. See, Thorson II.

Bush

Thu, 9 Apr 2009 13:27:57 -0500

AGENCY APPEAL

BUSH V. EATON CORPORATION & SECOND INJURY FUND, 5021931 (4-9-09)

PPD award for scheduled member based on scheduled member condition not rated in AMA Guides. AFFIRMED.
The deputy found one body as a whole impairment for this bilateral injury case, rather than making a finding as to each arm and then combining these ratings using the AMA Guides.
In making an assessment of the loss of use of a scheduled member, the evaluation is not limited to the use of a standardized guide such as the AMA Guides. Lay testimony and demonstrated difficulties from claimant must be considered in determining the actual loss of use so long as loss of earning capacity is not considered.
Notwithstanding suggestions to the contrary in the AMA Guides, this agency has long history of recognizing that the actual loss of use which is to be compensated is the loss of use of the body member in the activities of daily living, including activities of employment. Pain which limits use, loss of grip strength, fatigability, activity restrictions, and other pertinent factors may all be considered when determining scheduled disability. WALSHIRE

Tickal

Tue, 7 Apr 2009 13:27:44 -0500

AGENCY APPEAL

TICKAL . PERKINS FAMILY RESTAURANT, 1275145 (4-7-09)

Claimant asserts Deputy failed to consider new permanent restrictions. AFFIRMED.
While the deputy found the new restriction following the third back surgery against lifting over 20 pounds to be work related, the award of a 10 percent industrial disability is appropriate, for a person who could still return to the same job she held before the third surgery and the last review-reopening proceeding.
Claimant offered little evidence other than her physical impairments to show a greater loss of access to the labor market. WALSHIRE