Moad v. Dakota Truck Underwriters, No. 12-0126 (May 17, 2013), involved the question of what law to apply (the law of Iowa or South Dakota) to determine whether a South Dakota WC carrier was entitled to subrogation for payments made to its insured by underinsured and uninsured carriers arising out of a settlement from third-party litigation.
Claimant died when the truck he was driving for his employer was struck by another vehicle near Iowa City. WC benefits were paid under South Dakota law. Claimant's wife filed a third party action in Iowa District Court. Claimant's wife and children were South Dakota residents. The WC carrier notified the parties that it was entitled to subrogation of any proceeds received by plaintiff as a result of the third party action.
A settlement agreement was reached with Northland agreeing to pay $300,000, plus $100,000 to cover the workers' compensation carrier's subrogation lien. Plaintiff agreed to file a motion to strike or extinguish the lien. Plaintiff filed the motion to strike, alleging that DTU, the comp carrier, had failed to file timely notice of its lien within 30 days after receiving notice of the suit. The court approved the settlement. DTU then sought to intervene, and argued that South Dakota law should apply and they should receive compensation for their lien. The district court found that DTU's claim was barred because of the failure to timely file a response to the third party action. Alternatively, the court applied Iowa law to bar the claim. The court cited section 145 and 185 of the Restatement of Torts, which led to the conclusion that the law with the most significant contacts shoulder govern. On appeal the court of appeals reversed, finding that the case sounded in contract rather than tort and thus the restatement did not apply.
Before the Supreme Court, the parties agreed that if Iowa law applied, DTU was not entitled to subrogation. If South Dakota law applied, however, there was a valid lien. The court undertook a lengthy examination of the conflict of law issues in Iowa and in other states. The court noted that Iowa had rejected the conclusion that the place of the wrong automatically determined which state's law should apply in favor of a most significant relationship test. Ultimately the court applied section 185 of the Restatement, which addressed the most significant relationship test in workers' compensation cases. Section 185 generally provided that in WC cases, the laws of the state in which the compensation was paid will always apply. The court found that section 185 was superior to the more open-ended rules of the most significant relationship test.
The court remanded for further proceedings, and noted that if section 185 did not apply to all aspects of the subrogation issue, section 145 (the most significant contacts provision) would govern. The court rejected the 30 day filing requirement on the grounds that this did not apply in underinsured and uninsured cases. According to the court, section 85.22 had no application to DTU's effort to obtain a lien.
Neifert, Byrne & Ozga, P.C.
Sunday, May 19, 2013
Saturday, May 18, 2013
Supreme Court Decides Review-Reopening Case Involving Statute of Limitations Issues
In Coffey v. Mid Seven Transportation Co., No. 11-1106 (Iowa May 10, 2013), claimant filed a review-reopening petition, which was found to be untimely by the commissioner and district court. The employee also requested reimbursement of certain post-arbitration medical expenses, which were also denied.
Claimant originally had an injury to his left leg in 1994, and was unable to return to work following the injury. After working part time, claimant was ultimately found eligible for social security disability benefits.
Prior to filing his workers' compensation claim, the employee had entered into a settlement with a third party for $275,000, of which he received $134,784.95 after payment of attorney's fees and medical costs. Claimant alleged in his workers' compensation claim that he had injured not only his leg, but his back. He also claimed that his post polio syndrome was aggravated by his injury. He was paid workers' compensation payments totaling $70,783.19 prior to the arbitration decision.
Prior to the arbitration decision, claimant and his wife entered into a third party settlement for $100,000, of which $60,000 was for loss of consortium. Claimant received $24,634.14 after payment of legal fees and expenses. The arbitration decision concluded that claimant had a 75% industrial disability. This finding was appealed through the Iowa Court of Appeals, with the commissioner's decision being affirmed. The last action was a denial of an application for further review on January 11, 2006.
Defendants' counsel wrote to claimant's counsel and indicated that the third party recoveries totally covered the workers' compensation award. Defendants' counsel indicated that payment for attorney's fees would be roughly $51,000. Claimant's counsel believed that approximately $155,000 was due. Defendants wrote a check to claimant for the smaller amount on January 30, 2006.
On April 2, 2008, claimant filed a petition for review-reopening. The deputy found that the claim was barred by the statute of limitations. The deputy found that the three year period began three years after the decision where no payment of weekly benefits occurred after the award. The deputy ordered defendants to pay medical expenses. The deputy found that the payment of $51,000 was not payment of benefits, but payment of attorney's fees. The commissioner reversed on the question of medical payments, finding that claimant had not proved that these costs were related to the injury.
The Court noted that the legislature had not delegated any special powers to the workers' compensation commissioner regarding statutory interpretation. Therefore, the question was one of law. The fighting issue on the statute of limitations claim was when the last payment of benefits had been made. Defendants argued that the SOL commenced from the date of the arbitration award while claimant argued that the payment of the $51,000 constituted weekly benefits or alternatively that the three year statute did not begin until the court's earlier denial of the application for further review.
On the record before the agency, the court found that it could not say that the credit under 85.22(1) covered all the weekly benefits awarded in the arbitration proceeding. Because there appeared to be an issue of whether all medical bills, mileage and interest had been paid, the court remanded the case to the agency to determine whether these payments had been made and whether they were offset by the third party payments. If the agency were to find that defendants still owed benefits after the date of the arbitration decision, the commissioner must decide whether defendants had paid the last installment of weekly benefits. If benefits were still owed, then the three year SOL was still alive.
If the employer was found to have paid all benefits prior to the date of the arbitration award, then the court still had to determine when the SOL commenced. The court concluded that payment of attorney's fees was a reimbursement for attorney's fees and not weekly benefits. Because of this, the SOL was not extended by that payment.
On the issue of whether a settlement from a third party extended the SOL, the court concluded there was no specific precedent addressing this issue, but that there was precedent, in Beier Glass v. Brundige, 329 N.W.2d 280, 287 (Iowa 1983), as to the extension of the SOL when medical benefits had been paid. This precedent noted that the three year SOL commenced from the date of the arbitration decision. The court found that the same rationale applied with respect to payment of the third party award prior to an arbitration decision. Thus, the date of the arbitration decision was the commencement date for the three year statute of limitations. Claimant argued that the final date for exhaustion of appeals was the correct date, but the court rejected this argument. On remand, the agency was to determine whether the obligation to pay weekly benefits was completely satisfied by the third party recovery.
On the medical cost issue, the agency found that there was insufficient evidence that the expenses were related to the work injury. The district court found that this was supported by substantial evidence. The court found that the decision of the agency was supported by substantial evidence.
Claimant originally had an injury to his left leg in 1994, and was unable to return to work following the injury. After working part time, claimant was ultimately found eligible for social security disability benefits.
Prior to filing his workers' compensation claim, the employee had entered into a settlement with a third party for $275,000, of which he received $134,784.95 after payment of attorney's fees and medical costs. Claimant alleged in his workers' compensation claim that he had injured not only his leg, but his back. He also claimed that his post polio syndrome was aggravated by his injury. He was paid workers' compensation payments totaling $70,783.19 prior to the arbitration decision.
Prior to the arbitration decision, claimant and his wife entered into a third party settlement for $100,000, of which $60,000 was for loss of consortium. Claimant received $24,634.14 after payment of legal fees and expenses. The arbitration decision concluded that claimant had a 75% industrial disability. This finding was appealed through the Iowa Court of Appeals, with the commissioner's decision being affirmed. The last action was a denial of an application for further review on January 11, 2006.
Defendants' counsel wrote to claimant's counsel and indicated that the third party recoveries totally covered the workers' compensation award. Defendants' counsel indicated that payment for attorney's fees would be roughly $51,000. Claimant's counsel believed that approximately $155,000 was due. Defendants wrote a check to claimant for the smaller amount on January 30, 2006.
On April 2, 2008, claimant filed a petition for review-reopening. The deputy found that the claim was barred by the statute of limitations. The deputy found that the three year period began three years after the decision where no payment of weekly benefits occurred after the award. The deputy ordered defendants to pay medical expenses. The deputy found that the payment of $51,000 was not payment of benefits, but payment of attorney's fees. The commissioner reversed on the question of medical payments, finding that claimant had not proved that these costs were related to the injury.
The Court noted that the legislature had not delegated any special powers to the workers' compensation commissioner regarding statutory interpretation. Therefore, the question was one of law. The fighting issue on the statute of limitations claim was when the last payment of benefits had been made. Defendants argued that the SOL commenced from the date of the arbitration award while claimant argued that the payment of the $51,000 constituted weekly benefits or alternatively that the three year statute did not begin until the court's earlier denial of the application for further review.
On the record before the agency, the court found that it could not say that the credit under 85.22(1) covered all the weekly benefits awarded in the arbitration proceeding. Because there appeared to be an issue of whether all medical bills, mileage and interest had been paid, the court remanded the case to the agency to determine whether these payments had been made and whether they were offset by the third party payments. If the agency were to find that defendants still owed benefits after the date of the arbitration decision, the commissioner must decide whether defendants had paid the last installment of weekly benefits. If benefits were still owed, then the three year SOL was still alive.
If the employer was found to have paid all benefits prior to the date of the arbitration award, then the court still had to determine when the SOL commenced. The court concluded that payment of attorney's fees was a reimbursement for attorney's fees and not weekly benefits. Because of this, the SOL was not extended by that payment.
On the issue of whether a settlement from a third party extended the SOL, the court concluded there was no specific precedent addressing this issue, but that there was precedent, in Beier Glass v. Brundige, 329 N.W.2d 280, 287 (Iowa 1983), as to the extension of the SOL when medical benefits had been paid. This precedent noted that the three year SOL commenced from the date of the arbitration decision. The court found that the same rationale applied with respect to payment of the third party award prior to an arbitration decision. Thus, the date of the arbitration decision was the commencement date for the three year statute of limitations. Claimant argued that the final date for exhaustion of appeals was the correct date, but the court rejected this argument. On remand, the agency was to determine whether the obligation to pay weekly benefits was completely satisfied by the third party recovery.
On the medical cost issue, the agency found that there was insufficient evidence that the expenses were related to the work injury. The district court found that this was supported by substantial evidence. The court found that the decision of the agency was supported by substantial evidence.
Thursday, May 16, 2013
Court of Appeals Finds There Was No Substantial Evidence to Support Denial of Benefits
Numerous cases on this blog have discussed situations in which the decision of the agency was affirmed on substantial evidence grounds. In Estate of Herman v. Overhead Door Co. of Des Moines, No. 12-0892 (Iowa App. May 15, 2013), the court concludes that because there was no substantial evidence to support the agency's decision that claimant's injury did not arise out of and in the course of employment, claimant (or claimant's estate, since claimant died before this decision) was entitled to benefits. The court concluded that: "because we find the commissioner’s outright rejection of uncontroverted medical opinions is not supported by substantial evidence when the record is viewed as a whole, and we find Herman’s injury arose out of
and in the course of his employment as a matter of law, we reverse and remand."
Claimant worked in an unheated warehouse, and there was really little dispute that claimant worked in subfreezing temperatures in the winter of 2009, when he suffered his injury. On January 21, 2009, claimant noted blisters on his foot, and the following day, his foot was wet when the blisters broke open. On January 23, claimant reported the injury to his employer, and he was sent to the emergency room. This visit resulted in a finding that claimant had suffered frostbite and a secondary injection in the right foot. The frostbite was treated and claimant had skin grafts and an infection before finally losing his right toe.
Both treating physicians found that Mr. Herman's injury was more likely than not related to his work at Overhead Door and specifically his exposure to cold. There were apparently no opinions finding that the injury was not related to work, but despite this fact the deputy and commissioner concluded that the injury did not arise out of and in the course of employment.
The arbitration decision in Mr. Herman's case was very brief and focused not on the doctor's opinions, but on how cold it was in the warehouse and outside. That decision ignored the doctor's opinions by simply stating that they were not of much assistance, despite the fact that those opinions had linked the injury to claimant's work exposures.
On review, the court of appeals noted that this was not a classic "battle of the experts," since there were no experts indicating that the injury was not related to work. The court commented on the decision of the deputy, finding that the deputy had "inexplicably" found that the doctors were not helpful in determining whether the injury was work related. The court found that both the deputy and commissioner had failed to explain why the comments of the doctors were rejected in determining causation. The court found that the outright rejection of the doctor's opinions was not supported by substantial evidence. The court also found that the injury arose out of claimant's employment, and remanded the case to the agency.
Although the result in Herman is not something that occurs with frequency, the case serves as an example that there are still situations where there is no evidence to support a particular proposition, and thus no substantial evidence to support that proposition.
and in the course of his employment as a matter of law, we reverse and remand."
Claimant worked in an unheated warehouse, and there was really little dispute that claimant worked in subfreezing temperatures in the winter of 2009, when he suffered his injury. On January 21, 2009, claimant noted blisters on his foot, and the following day, his foot was wet when the blisters broke open. On January 23, claimant reported the injury to his employer, and he was sent to the emergency room. This visit resulted in a finding that claimant had suffered frostbite and a secondary injection in the right foot. The frostbite was treated and claimant had skin grafts and an infection before finally losing his right toe.
Both treating physicians found that Mr. Herman's injury was more likely than not related to his work at Overhead Door and specifically his exposure to cold. There were apparently no opinions finding that the injury was not related to work, but despite this fact the deputy and commissioner concluded that the injury did not arise out of and in the course of employment.
The arbitration decision in Mr. Herman's case was very brief and focused not on the doctor's opinions, but on how cold it was in the warehouse and outside. That decision ignored the doctor's opinions by simply stating that they were not of much assistance, despite the fact that those opinions had linked the injury to claimant's work exposures.
On review, the court of appeals noted that this was not a classic "battle of the experts," since there were no experts indicating that the injury was not related to work. The court commented on the decision of the deputy, finding that the deputy had "inexplicably" found that the doctors were not helpful in determining whether the injury was work related. The court found that both the deputy and commissioner had failed to explain why the comments of the doctors were rejected in determining causation. The court found that the outright rejection of the doctor's opinions was not supported by substantial evidence. The court also found that the injury arose out of claimant's employment, and remanded the case to the agency.
Although the result in Herman is not something that occurs with frequency, the case serves as an example that there are still situations where there is no evidence to support a particular proposition, and thus no substantial evidence to support that proposition.
Wednesday, May 15, 2013
Court of Appeals Decides "Arising Out Of" Case Favorably to Employee
In AARP v. Whitacre, No. 12-1519 (Iowa App. May 15, 2013), claimant was a 79 year old part time janitor for AARP. While on a coffee break one day, claimant began to choke, stood up to get a drink of water, stumbled and fell, causing injuries to his head and face. The deputy and commissioner found that this injury arose out of his employment and awarded benefits. On judicial review, the district court reversed.
In addressing the question, the court noted that the earlier decision in Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007) had indicated that the arising out of test involved proof that a causal connection existed between the conditions of the employment and the injury. The COA also noted that earlier decisions of the Supreme Court were to the effect that risks that were personal to the employee were not compensable, but further noted that Lakeside Casino and other cases had indicated that the work risk need be no greater than risks outside the workplace.
The parties agreed that the fall was "idiopathic," but disagreed as to whether the conditions at work aggravated the injury. The agency had concluded that the design and construction of the office in which claimant was working had contributed to the effects of the injury. The office was a small office with hard concrete walls and a concrete floor. The deputy concluded that because claimant hit his head on the concrete wall, this aggravated the effects of the injury.
The court noted that the earlier decision in Koehler v. Wills,608 N.W.2d 1 (Iowa 2000), did not require the existence of a dangerous condition at the workplace (Koehler involved a fall from a ladder onto a concrete floor). The COA specifically rejected language found in Miedema v. Dial Corp., 551 N.W.2d 309, 311 (Iowa 1996), which indicated that there needed to be an increased risk from the work situation, finding that this was "an inadvertent throw-back to the increased-risk doctrine." The court found that the work related factor did not need to be greater than the risk in the non-work environment, but it had to be real, and not fictitious.
On the facts of the case, the court found that hitting a desk and then a concrete wall in a small office constituted a real risk that aggravated the effects of the injury. The decision of the district court was reversed and the decision of the agency reinstated.
Although Whitacre does not represent a huge change in the law concerning injuries that arise out of employment, it is an important case in that it stresses the fact that there need be no increased work from the employment situation in order for a claim to be deemed compensable. All that is necessary is that the work setting aggravate the effects of the injury.
In addressing the question, the court noted that the earlier decision in Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007) had indicated that the arising out of test involved proof that a causal connection existed between the conditions of the employment and the injury. The COA also noted that earlier decisions of the Supreme Court were to the effect that risks that were personal to the employee were not compensable, but further noted that Lakeside Casino and other cases had indicated that the work risk need be no greater than risks outside the workplace.
The parties agreed that the fall was "idiopathic," but disagreed as to whether the conditions at work aggravated the injury. The agency had concluded that the design and construction of the office in which claimant was working had contributed to the effects of the injury. The office was a small office with hard concrete walls and a concrete floor. The deputy concluded that because claimant hit his head on the concrete wall, this aggravated the effects of the injury.
The court noted that the earlier decision in Koehler v. Wills,608 N.W.2d 1 (Iowa 2000), did not require the existence of a dangerous condition at the workplace (Koehler involved a fall from a ladder onto a concrete floor). The COA specifically rejected language found in Miedema v. Dial Corp., 551 N.W.2d 309, 311 (Iowa 1996), which indicated that there needed to be an increased risk from the work situation, finding that this was "an inadvertent throw-back to the increased-risk doctrine." The court found that the work related factor did not need to be greater than the risk in the non-work environment, but it had to be real, and not fictitious.
On the facts of the case, the court found that hitting a desk and then a concrete wall in a small office constituted a real risk that aggravated the effects of the injury. The decision of the district court was reversed and the decision of the agency reinstated.
Although Whitacre does not represent a huge change in the law concerning injuries that arise out of employment, it is an important case in that it stresses the fact that there need be no increased work from the employment situation in order for a claim to be deemed compensable. All that is necessary is that the work setting aggravate the effects of the injury.
Wednesday, April 24, 2013
Court of Appeals Affirms Review-Reopening Denial on Substantial Evidence Grounds
Hernandez v. Osceola Foods, No. 12-1658 (Iowa App. April 24, 2013) involved a review-reopening claim following an earlier settlement. At the time of the settlement, claimant had 30 pound restrictions and was working for Osceola Foods. She remained there for two years after the settlement, but was fired for falsely filling out an employment application for her husband. She sought other work, and began to work for another company, Farley's and Sanders Candy. In her application for Farley's, which was through a temporary agency, she did not reveal that she had restrictions, and indicated she was able to perform all duties, which included lifting up to 50 pounds. A few months later, when the new employer found out about the restrictions, Ms. Hernandez was fired.
Claimant sought review-reopening and was denied at the agency level, with the agency finding that claimant's loss of earnings was due to her dishonest conduct rather than to her work injury. The court of appeals affirmed, finding that on substantial evidence grounds there was no showing of any type of change in either physical condition or economic condition. The court finds that although claimant attempted to frame her argument as a legal issue (as she must if she were going to prevail), this was actually a substantial evidence question, and there was ample evidence to support the findings of the agency, and the denial of additional benefits. The court found that claimant's actions in falsifying her husband's application for work and in not being honest in her application with the temporary agency, plus the fact that her physical condition had not changed, was sufficient to deny additional benefits.
Although not before the court, query whether the application for the temporary agency, which asks questions such as whether the applicant is able to perform all duties of the job and "what weaknesses do you bring to the employer?" runs afoul of the ADA.
Claimant sought review-reopening and was denied at the agency level, with the agency finding that claimant's loss of earnings was due to her dishonest conduct rather than to her work injury. The court of appeals affirmed, finding that on substantial evidence grounds there was no showing of any type of change in either physical condition or economic condition. The court finds that although claimant attempted to frame her argument as a legal issue (as she must if she were going to prevail), this was actually a substantial evidence question, and there was ample evidence to support the findings of the agency, and the denial of additional benefits. The court found that claimant's actions in falsifying her husband's application for work and in not being honest in her application with the temporary agency, plus the fact that her physical condition had not changed, was sufficient to deny additional benefits.
Although not before the court, query whether the application for the temporary agency, which asks questions such as whether the applicant is able to perform all duties of the job and "what weaknesses do you bring to the employer?" runs afoul of the ADA.
Wednesday, April 10, 2013
Court of Appeals Decides Alternate Medical Care Claim
Millenkamp v. Millenkamp, No. 11-2068 (Iowa App. April 10, 2013) is a case that has been bouncing back and forth between the agency and the appellate courts since claimant's initial injury in 2001, when claimant suffered a traumatic brain injury while working in his cattle business. The current dispute concerns a situation where claimant had been treating with a physician who retired from the practice. That physician recommended that claimant see another physician, Dr. Neiman, who provided treatment to claimant. Prior to seeing Dr. Neiman, it does not appear as if the employer knew that the authorized treating physician had retired.
According to the court, when the employer learned that the authorized treater had retired, it sought to provide care for claimant, first with Dr. Young, who refused to see claimant, and then with Dr. Cullen, who claimant refused to see because he had been hired by the defendants. Claimant argued that because his treating physician had recommended Dr. Neiman, the agency, under its own precedent, could not interfere with that recommendation and had to follow what the authorized treater had recommended. Claimant sought to have Dr. Neiman named as the treater.
Three alternate medical care hearings were held and in the last one, the agency did not agree, and concluded that once the employer learned of the retirement of the treater, they moved quickly to have claimant seen by another doctor. The agency found that there was no showing that the services offered by the employer to claimant were unreasonable under section 85.27(4) of the Iowa Code, nor was there any showing that care had not been provided with reasonable promptness.
On appeal, the district court affirmed the decision of the agency. On appeal to the court of appeals, claimant argued that the employer did not have the absolute right to change care and in light of the fact that the authorized treater had recommended Dr. Neiman, he should be allowed to continue with Dr. Neiman. The court of appeals found that the record supported the conclusion that the employer had provided (or at least offered) reasonable care, and that this care was offered in a timely fashion.
Claimant argued that the decision of the agency was arbitrary and capricious because it was violative of agency precedent that indicated that the employer could not interfere with the recommendations of an authorized treating physician. The court found that factually the case did not run afoul of agency precedent and indicates that claimant "merely quotes single sentences out of thirty-three different agency decisions and contends the agency’s decision in this case runs afoul to them all." The court found that this was not the case, and that the agency's action had not been an abuse of discretion.
The court also rejected a due process argument raised by the claimant because of the alleged failure to follow agency precedent. Also rejected were arguments that the agency should have looked at an earlier timeframe to determine whether the action of the employer was reasonable, and that the employer had a duty to monitor medical care. On the latter argument, the court concluded that evidence before the agency suggested that once the employer knew of Dr. Neiman's existence, and the retirement of the authorized treater, the employer moved promptly to provide care.
The Millenkamp case is heavily fact intensive and thus most likely does not provide much in the way of precedent with respect to future alternate medical care cases. Reading between the lines of the Court of Appeal's decisions, it appears as though claimant had been very concerned about prior treatment he had been provided and was worried that the past treatment, which claimant believed was unreasonable, would lead to additional unreasonable treatment in the future. The court restricted its inquiry to the immediate question before them and concluded that the employer's actions had been reasonable and care had been offered with reasonable promptness, thus affirming the agency.
According to the court, when the employer learned that the authorized treater had retired, it sought to provide care for claimant, first with Dr. Young, who refused to see claimant, and then with Dr. Cullen, who claimant refused to see because he had been hired by the defendants. Claimant argued that because his treating physician had recommended Dr. Neiman, the agency, under its own precedent, could not interfere with that recommendation and had to follow what the authorized treater had recommended. Claimant sought to have Dr. Neiman named as the treater.
Three alternate medical care hearings were held and in the last one, the agency did not agree, and concluded that once the employer learned of the retirement of the treater, they moved quickly to have claimant seen by another doctor. The agency found that there was no showing that the services offered by the employer to claimant were unreasonable under section 85.27(4) of the Iowa Code, nor was there any showing that care had not been provided with reasonable promptness.
On appeal, the district court affirmed the decision of the agency. On appeal to the court of appeals, claimant argued that the employer did not have the absolute right to change care and in light of the fact that the authorized treater had recommended Dr. Neiman, he should be allowed to continue with Dr. Neiman. The court of appeals found that the record supported the conclusion that the employer had provided (or at least offered) reasonable care, and that this care was offered in a timely fashion.
Claimant argued that the decision of the agency was arbitrary and capricious because it was violative of agency precedent that indicated that the employer could not interfere with the recommendations of an authorized treating physician. The court found that factually the case did not run afoul of agency precedent and indicates that claimant "merely quotes single sentences out of thirty-three different agency decisions and contends the agency’s decision in this case runs afoul to them all." The court found that this was not the case, and that the agency's action had not been an abuse of discretion.
The court also rejected a due process argument raised by the claimant because of the alleged failure to follow agency precedent. Also rejected were arguments that the agency should have looked at an earlier timeframe to determine whether the action of the employer was reasonable, and that the employer had a duty to monitor medical care. On the latter argument, the court concluded that evidence before the agency suggested that once the employer knew of Dr. Neiman's existence, and the retirement of the authorized treater, the employer moved promptly to provide care.
The Millenkamp case is heavily fact intensive and thus most likely does not provide much in the way of precedent with respect to future alternate medical care cases. Reading between the lines of the Court of Appeal's decisions, it appears as though claimant had been very concerned about prior treatment he had been provided and was worried that the past treatment, which claimant believed was unreasonable, would lead to additional unreasonable treatment in the future. The court restricted its inquiry to the immediate question before them and concluded that the employer's actions had been reasonable and care had been offered with reasonable promptness, thus affirming the agency.
Wednesday, March 13, 2013
Court Affirms Denial of Review-Reopening Claim
In Kramer v. Terex, No. 12-1370 (Iowa App. March 13, 2013), the court of appeals affirmed a decision of the commissioner denying further benefits on a review-reopening claim. The original decision had awarded benefits of 40%, and on review-reopening the commissioner concluded that claimant had not met his burden of proof of demonstrating changed economic circumstances. On appeal, the court cited the district court's "well-reasoned" decision and affirmed without comment. IRAP 6.1203.
Court of Appeals Affirms 60% Award on Substantial Evidence Grounds
In Gallo v. Penford Products Co., No. 12-1472 (Iowa App. March 13, 2013), the court affirmed a 60% industrial disability award, and denied claimant's contention this his mental disorder arose out of and in the course of his work. Claimant had suffered an accepted back injury while working, and continued to work after surgery. Claimant was subsequently fired from his employment when it was found out that he had been found to be impersonating a physician for the purpose of obtaining narcotics. Despite these facts, and the finding by the deputy, affirmed on appeal, that claimant was not a credible witness, claimant argued that he was permanently and totally disabled. The evidence on this score was conflicting, with vocational experts reaching opposite conclusions about claimant's motivation to work, and ability to work in light of his back injury. Particularly telling was the fact that claimant continued to work for two years following the injury, before he was fired for impersonating a doctor. On these facts, as presented by the court of appeals, the decision of the commissioner was affirmed on substantial evidence grounds.
The medical evidence was also conflicting on the mental health aspects of the case, with claimant's primary treating doctor noting that problems with anxiety and depression were present prior to the injury, and a psychiatrist concluding that the mental health problems were as a result of the work injury. Again, on substantial evidence grounds, the court concluded that the commissioner's decision was correct, and affirmed that decision.
Gallo is a part of a long line of decisions at the court of appeals that have been affirmed on substantial evidence grounds.
The medical evidence was also conflicting on the mental health aspects of the case, with claimant's primary treating doctor noting that problems with anxiety and depression were present prior to the injury, and a psychiatrist concluding that the mental health problems were as a result of the work injury. Again, on substantial evidence grounds, the court concluded that the commissioner's decision was correct, and affirmed that decision.
Gallo is a part of a long line of decisions at the court of appeals that have been affirmed on substantial evidence grounds.
Supreme Court Denies Further Review in Case Involving English Language Skills and Motivation
On February 22, 2013, the Supreme Court denied further review in Merivic v. Gutierrez, No. 12-0240, a case that had earlier been heard by the Iowa Court of Appeals. See Merivic v. Gutierrez, No. 12-0240 (Iowa App. Nov. 15, 2012). In Merivic, the court of appeals concluded that the decision of the commissioner in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007), was appropriate. The Lovic decision had concluded that a lack of English language skills was a factor to be determined in considering the extent of industrial disability, and also concluded that the failure of a claimant to learn English was not to be considered in determining the client's motivation to work. In Merivic, the employer had directly attacked Lovic as being wrongly decided, and urged the court to find that Lovic was not controlling. The decision of the court of appeals found that the employer's position was an impermissible collateral attack on the Lovic case, and rejected the challenge made by the employer.
The denial of further review in Merivic insures that Lovic remains good law at the commissioner's level, and also implies that the appellate courts do not disagree with commissioner's conclusions in Lovic. This is important in any case in which a claimant's English language skills are at issue. In many cases, the employer faults the employee for not learning English, and argues that the lack of language skills should not be considered in determining the extent of industrial disability. Merivic and Lovic conclude that English language skills can be taken into account, and further conclude that the lack of English language skills should not be seen in a negative light in terms of motivation. Both Merivic and Lovic are fact specific, but both are supportive of the conclusion that the failure to learn English cannot used negatively against claimants.
Jamie Byrne of Neifert, Byrne & Ozga handled both Lovic and Merivic.
The denial of further review in Merivic insures that Lovic remains good law at the commissioner's level, and also implies that the appellate courts do not disagree with commissioner's conclusions in Lovic. This is important in any case in which a claimant's English language skills are at issue. In many cases, the employer faults the employee for not learning English, and argues that the lack of language skills should not be considered in determining the extent of industrial disability. Merivic and Lovic conclude that English language skills can be taken into account, and further conclude that the lack of English language skills should not be seen in a negative light in terms of motivation. Both Merivic and Lovic are fact specific, but both are supportive of the conclusion that the failure to learn English cannot used negatively against claimants.
Jamie Byrne of Neifert, Byrne & Ozga handled both Lovic and Merivic.
Wednesday, February 27, 2013
Court of Appeals Decides Successive Disability Case
In Hansen v. Snap-On Tools Manufacturing Company, No. 12-1038 (Iowa App. Feb. 27, 2013), among the issues addressed by the court was the questions of successive disabilities under section 85.34(7)(b) of the Code. The court seems to conclude that section 85.34(7)(b) does not apply to unscheduled injuries, which would, if affirmed, have a serious impact on the current law concerning that section of the act.
Hansen also addresses issues concerning costs, extent of impairment, healing period and temporary partial benefits.
Claimant sustained two injuries at work, a left shoulder injury in 2005 and an injury to her right hand and arm in 2007 which was traumatic. The shoulder injury was cumulative, although there was medical evidence that there was a later acute injury to the shoulder superimposed on the cumulative process. The commissioner concluded that claimant was entitled to 15% industrial disability, did not specifically accept or reject claimant's computation of healing period/TPD benefits, and reduced the costs payable for the IME from $9,502.50 to $2,890. At the district court level, the healing period issue and IME costs issues were remanded to the agency. At the district court, claimant argued that the successive disability statute was unconstitutional and the district court deferred ruling on this issue.
Claimant argued to the court of appeals that the agency had failed to apply the successive disability statute and material principles of industrial disability. Claimant argued that an earlier right shoulder restriction should have been combined with the left shoulder restrictions in determining industrial disability. The statute notes that if a preexisting disability was compensable under the same paragraph of subsection 2 as the current injury, "the employer is liable for the combined disability that is caused by the injuries,..." The court notes that the record was not clear that the agency ever considered this argument. The court concludes, however, that "even if the agency were to have analyzed these facts under the successive-disability statute, the outcome would not change as the statute is not applicable to Hansen's February 15, 2005 injury."
In explaining this reasoning, the court cites section 20 of HF 2581, the legislative intent section for 85.34(7). The court notes that the legislative intent section indicates that "the method of determining the degree of unscheduled permanent partial disability" is unchanged by the statute. The court concludes that the agency cannot determine the degree of unscheduled disability under 85.34(7)(b), and concludes that that section does not apply to unscheduled injuries. The court gives no real guidance on how 85.34(7)(b) is to be interpreted on this issue (although one could argue that the full responsibility rule could apply if the section of the statute does not apply). The legislative history of the statute appears to be given more sway than the actual language of the statute, which clearly applies to unscheduled injuries. The section of the legislative history would appear to indicate simply that the determination of industrial disability, i.e., the application of the McSpadden factors, is not changed by 85.34(7)(b), not that is doesn't apply to unscheduled injuries.
The court goes on to find the 15% industrial disability finding is supported by substantial evidence. It also concludes that the deputy sufficiently explained his reasons for reducing the amount of the IME costs that were payable by the defendants. The court finds there was sufficient reasoning to demonstrate the agency did not abuse its discretion. The court indicated that even if the IME were payable under the costs section, only reasonable costs were to be paid, and the agency elucidated why the costs were not reasonable. On the temporary benefits issue, the court agreed with the district court that the decision of the agency was not sufficient to demonstrate how temporary benefits had been determined, and remanded to the agency.
The holding of Hansen is that 85.34(7)(b)(1) is not applicable to "unscheduled permanent partial disability." This portion of the decision does not appear to flow from either the language of the statute or legislative intent language, and is likely to be the subject of further review by the Supreme Court. In the meantime, it casts a shadow on the application of 85.34(7)(b) in other cases.
Hansen also addresses issues concerning costs, extent of impairment, healing period and temporary partial benefits.
Claimant sustained two injuries at work, a left shoulder injury in 2005 and an injury to her right hand and arm in 2007 which was traumatic. The shoulder injury was cumulative, although there was medical evidence that there was a later acute injury to the shoulder superimposed on the cumulative process. The commissioner concluded that claimant was entitled to 15% industrial disability, did not specifically accept or reject claimant's computation of healing period/TPD benefits, and reduced the costs payable for the IME from $9,502.50 to $2,890. At the district court level, the healing period issue and IME costs issues were remanded to the agency. At the district court, claimant argued that the successive disability statute was unconstitutional and the district court deferred ruling on this issue.
Claimant argued to the court of appeals that the agency had failed to apply the successive disability statute and material principles of industrial disability. Claimant argued that an earlier right shoulder restriction should have been combined with the left shoulder restrictions in determining industrial disability. The statute notes that if a preexisting disability was compensable under the same paragraph of subsection 2 as the current injury, "the employer is liable for the combined disability that is caused by the injuries,..." The court notes that the record was not clear that the agency ever considered this argument. The court concludes, however, that "even if the agency were to have analyzed these facts under the successive-disability statute, the outcome would not change as the statute is not applicable to Hansen's February 15, 2005 injury."
In explaining this reasoning, the court cites section 20 of HF 2581, the legislative intent section for 85.34(7). The court notes that the legislative intent section indicates that "the method of determining the degree of unscheduled permanent partial disability" is unchanged by the statute. The court concludes that the agency cannot determine the degree of unscheduled disability under 85.34(7)(b), and concludes that that section does not apply to unscheduled injuries. The court gives no real guidance on how 85.34(7)(b) is to be interpreted on this issue (although one could argue that the full responsibility rule could apply if the section of the statute does not apply). The legislative history of the statute appears to be given more sway than the actual language of the statute, which clearly applies to unscheduled injuries. The section of the legislative history would appear to indicate simply that the determination of industrial disability, i.e., the application of the McSpadden factors, is not changed by 85.34(7)(b), not that is doesn't apply to unscheduled injuries.
The court goes on to find the 15% industrial disability finding is supported by substantial evidence. It also concludes that the deputy sufficiently explained his reasons for reducing the amount of the IME costs that were payable by the defendants. The court finds there was sufficient reasoning to demonstrate the agency did not abuse its discretion. The court indicated that even if the IME were payable under the costs section, only reasonable costs were to be paid, and the agency elucidated why the costs were not reasonable. On the temporary benefits issue, the court agreed with the district court that the decision of the agency was not sufficient to demonstrate how temporary benefits had been determined, and remanded to the agency.
The holding of Hansen is that 85.34(7)(b)(1) is not applicable to "unscheduled permanent partial disability." This portion of the decision does not appear to flow from either the language of the statute or legislative intent language, and is likely to be the subject of further review by the Supreme Court. In the meantime, it casts a shadow on the application of 85.34(7)(b) in other cases.
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