December Decisions

SUPREME COURT

ZIECKLER v. AMPRIDE, 77 / 05-1958 (12-14-07)

Claimant sought judicial review of the agency’s decision, and the district court affirmed the dismissal of the appeal.

At the time of Claimant’s appeal, IAC 876-4.30 provided: The appealing party shall bear the initial cost of transcription on appeal and shall pay the certified shorthand reporter or service for the transcript . . . . In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the appealing party or parties within 30 days after notice of appeal or cross-appeal shall reimburse the cost of the transcript to the nonappealing party and if not so reimbursed the appeal shall be dismissed. (Note, “shall” is a mandatory term.)

The Commissioner held that The

rule does not contain any exceptions to the directive to dismiss the appeal or give the commissioner discretion to do anything other than dismiss the appeal. I conclude that this rule places an affirmative burden on the appealing party to inquir[e] regarding the cost and identity of the party who initially paid the cost of the transcript and to reimburse that nonappealing party within 30 days. Claimant did not do so in this case. An appealing party has had a “day in court” and the case has been decided on the merits. If an appealing party desires to have the case reviewed again by the agency, that party must comply with the rules governing intra-agency appeals.

The Iowa Supreme court, however, found that the agency’s action in adopting rule 876—4.30 was (1) not required by law; and (2) unreasonable, arbitrary, and capricious because its negative impact is so grossly disproportionate to the benefits accruing to the public interest from the rule. Therefore, rule 876—4.30 lacked adequate foundation in rational agency policy and was invalid, reversing the District Court  and Commissioner.

It should be noted that the Commissioner recently eliminated the most unreasonable feature of rule 876—4.30 by amending it to read as follows: In the event the cost of the transcript has been initially borne by a nonappealing party prior to appeal, the nonappealing party is entitled to reimbursement within 30 days after serving on the appealing party proof of the cost of the transcript. If not so reimbursed, the appeal may be  dismissed.

Iowa Admin. Code r. 876—4.30 (2007) (emphasis added). Accordingly, the infirmity of the rule that required reversal has been eliminated from the rule.

But, keep in mind that the Commissioner still may dismiss under the new rule.

COURT OF APPEALS

MIDWEST AMBULANCE v. RUUD, 7-484 / 06-1377 (12-28-07)

On May 12, 2000, claimant was employed by the employer as a paramedic. As she was disinfecting an ambulance, her left shoulder dislocated. Before she was transported to Methodist Hospital, her shoulder located itself back into place. She was then examined by Dr. Berg, who released her to return to work with no restrictions, but warned her it would continue to dislocate. Later that week, pursuant to Dr. Berg’s referral, she saw a physical therapist who told her she would need surgery at some time in the future. She did not miss any work at this time.

From the time of the injury through approximately November 2000, her shoulder continued to dislocate on an average of once per month.

June 16, 2002, she dove into a swimming pool and once again dislocated her shoulder. As in the past, she was able to re-locate it by herself. She missed one day of work following this dislocation and reported the incident to her employer. In a June 20, 2002 letter to her employer, she requested treatment for her shoulder and related everything back to her original May 12, 2000 dislocation. On July 11, 2002, while lifting a patient at work, she incurred a shoulder strain and reported it to her supervisor. Six days later she saw Dr. Geary, to whom she was sent by the employer. Dr. Geary refused to provide medical treatment, stating the employer was denying liability because the injury was incurred during a non-work diving incident.

August 27, 2003, Claimant filed a workers’ compensation petition. In a November 2004 arbitration decision, a deputy commissioner found that her petition was barred by the statute of limitations. On appeal, the Commissioner reversed citing that the statute of limitations period does not commence until the claimant, acting as a reasonable person, recognizes the “‘nature, seriousness and probable compensable character’” of the injury.

The question of when a claimant knew, or should have known, about the traumatic event and its work-related nature is a fact issue determinable by the industrial commissioner and binding on us if supported by substantial evidence in the record.

The commissioner made the following findings of fact:

If Jodi had made a claim in 2000 or 2001 she would have had little, if anything, to recover. It is uncontroverted that Jodi did not miss work or incur expenses treating her shoulder problems until the summer of 2002. The injury did not adversely impact her employment until June or July 2002. Until June of 2002, events had not developed to a point where she was entitled to a meaningful remedy. Certainly, she could have sought treatment before June 2002. Her failure to realize before June 2002 that her condition was serious was reasonable. Evidence showing that her assessment was reasonable includes Dr. Berg having released her to immediately return to work without restrictions and without recommending care other than a brief amount of therapy. Dr. Everson clearly stated that in this case it was not until after repeated dislocations and the event of July 11, 2002 that surgery became necessary. It is not reasonable to expect her to have more medical expertise than the physician the employer chose to treat her or her surgeon. While she was “in denial” of her condition to some extent while experiencing her dislocations after May 2000, that does not equate to recognizing that the condition was serious on the day the first dislocation occurred. To the contrary, it manifests her belief, optimism or hope that it was not serious. Her fear of losing her career as a paramedic does not prove that she was aware, from the outset, her condition was serious.

And found that she was not, and could not have been aware as a reasonable person, of the probable nature, seriousness, and compensable nature of her injury until June 2002. Her claim in this case was filed well within two years after June 2002.

The issue confronting the commissioner was when Claimant knew or should have known of the nature, seriousness, and compensability of her injury, a fact issue.

In applying the facts to the law, the commissioner stated:

Defendants effectively contended that claimant should have filed a claim with this agency before August 2001 (the date two years before August 2003 when the petition was filed). At that point in time, events had not yet developed to a point where claimant was entitled to a legal remedy. No benefits were yet due and at most, she could have obtained an award that acknowledged that she had an injury for which the employer was liable and that at some unspecified time in the future she would possibly require surgery and a period of accompanying disability. Her claim had not yet become compensable and she was not required to initiate litigation . . . .

I found in this case that claimant did not arrive at a full understanding of the seriousness of her injury until June 2002 when she first missed work. The claim was filed on August 27, 2003 and I hold it to be timely. The defense under Iowa Code section 85.26 fails.

The Court held that the commissioner used the proper test, there was substantial evidence to support the commissioner’s findings, and the commissioner’s application of the law to the facts was not irrational, illogical, or wholly unjustified.

On the issue of credit for medical paid under group, the employer argues that, because COBRA coverage is part of its group health insurance plan, and the employer paid a portion of its current employees’ premiums, pursuant to Iowa Code section 85.38(2), they are entitled to a credit for the expenses paid through Claimant’s COBRA coverage. COBRA, however, is fully paid for by a former employee.

The commissioner concluded the section “requires that the employer contribute to the cost of the insurance plan as a condition for credit. [the employer] did not contribute to the cost of COBRA . . . . Consequently, defendants are not entitled to the requested credit.”

The employer is not entitled to a credit under Iowa Code section 85.38(2), and Claimant is entitled to reimbursement for any medical expense payments made by the insurance plans for which she and her husband paid the health insurance premiums.

DISSENT: Claimant did not have “exact knowledge” of the seriousness of her dislocated shoulder, but she did have the certain knowledge of future dislocations and had a duty to investigate the seriousness of her injury.

Dr. Berg’s notes contain this comment: “Dislocation. Rx for P.T. Will dislocate again!” Although claimant may not have elected to have immediate surgery, the clock nonetheless had started to run. Claimant did not miss any work from her shoulder dislocations until June 17, 2002, following her diving incident, but this is not necessarily determinative as to probable compensability.

Heroic hiding or ignoring symptoms should not forestall an employee’s duty to file a claim, putting the employer on notice of the possible liability.

JOHNSON v. R.R. DONNELLY, 7-707 / 07-0162 (12-28-07)

Again addressing when an injury occurs for purposes of the statute of limitations, but, where the commissioner denied recovery and made the following findings of fact:

The record convincingly establishes that claimant has had long-standing bilateral upper extremity complaints. Claimant has had surgeries on both of his upper extremities prior to his injury on February 9, 2001. Claimant testified that he knew that his bilateral upper extremity injuries could be serious because he had those same or similar types of problems and had required surgeries in the past. Claimant testified that he knew that he had never fully recovered from his prior surgeries to his upper extremities. Claimant testified that he knew that his bilateral upper extremity injuries were a serious problem and that the condition could require surgery. Claimant testified that as early as February 9, 2001, claimant realized that his work injury could affect his ability to work – and in fact his work was causing him increased pain. Claimant also testified that when he left work on February 9, 2001, he knew that the injury was caused by his work and he knew that such an injury was compensable under the workers’ compensation system. I find that claimant knew the nature, seriousness, and probable compensable character of his work injury when he filed his notice of injury with the employer on April 12, 2001. As claimant failed to file his petition within two years of April 12, 2001, he failed to timely file his petition as required by Iowa Code section 85.26(1).

The commissioner’s findings were supported by substantial evidence and affirmed.

PAXTON & VIERLING STEEL v. HOPE, 7-876 / 07-0941 (12-28-07)

On December 21, 2001, claimant injured his back while lifting a steel tub at work. He immediately felt pain in his lower back and left leg. He saw the company physician on December 26, 2001. The doctor prescribed medication and a physical therapy regimen. An MRI revealed mild degenerative disc disease, small focal midline disc protrusions, and a small generalized disc bulge at L4-L5.

By late January 2002, the doctor stopped the physical therapy, but claimant’s “terrible” back and leg pain continued. He continued to work.

In early September, his back and leg pain increased to the point that he went to the emergency room. Two weeks later, he returned to the company physician, who referred him to a neurosurgeon. The neurosurgeon performed an MRI and discovered a herniated disc at L4-L5 with “obvious L5 nerve root compression.” claimant underwent a microlumbar diskectomy surgery

Surgery resolved the pain in his leg, but the pain in his lower back persisted, and he was rated at 13%.

His chronic back pain led to severe depression. In the opinion of his treating physicians, his chronic back pain and causally related depression rendered him unemployable. Two vocational rehabilitation counselors also concluded he was not vocationally employable due to chronic pain and depression.

January 2004 claimant filed a petition with the workers’ compensation commissioner requesting an award of benefits based on the December 21, 2001 injury and a September 3, 2002 work-related “exacerbation” of that injury. By December 27, 2004, claimant could no longer deal with the chronic back pain and mental anguish, so he stopped working at the employer.

Each physician causally connected claimant’s back injury and subsequent chronic pain syndrome to the work injury. There were no contrary expert opinions.

The deputy commissioner issued a ruling concluding claimant’s chronic pain and causally related depression rendered him permanently and totally disabled.

The deputy’s decision was upheld by the Commissioner, and on judicial review.

The employer does not contend the December 21 work injury did not occur. Instead, it focuses on the discrepancy between the January 17, 2002 MRI that did not show the herniated disc and the September 25, 2002 MRI that showed the herniated disc. The employer argues the herniated disc that precipitated the surgery, which allegedly led to the depression and allegedly led to the permanent disability, occurred sometime after the January 17 MRI. Because claimant presented no evidence describing the early September event that “exacerbated” the December injury or describing how this injury was in any way work related, the employer contends he failed to prove his workers’ compensation claim.

We find no merit to this argument because it relies upon the assumption that the triggering event for claimant’s depression was the September 2002 injury, rather than the December 2001 injury.

We also reject The employer’s argument that claimant failed to prove the causal connection because his problems at work, a mortgage foreclosure, and other factors could have contributed to his depression. His treating psychiatrist testified that, in spite of these other factors, the back pain was, in his opinion, the cause of claimant’s depression.

AGENCY APPEAL

MAIN v. QUAKER OATS, File No. 5017903 (12-19-07)

Claimant’s right shoulder is the subject of this particular claim. According to claimant, he hurt his right shoulder at home in January 2004.

On December 20, 2004, claimant returned to work without restrictions after having been released by both his treating physician and a company chosen physician’s fit for duty exam and an FCE by a PT.

By the end of the day, December 22, 2004, claimant had “big-time throbbing pain.” When he woke up the next morning to go to work, he could

not move his arm at all.

He testified that the physical therapy made his shoulder condition worse and he eventually underwent surgery on March 9, 2005.

He was again released without restriction by his own doctor who had done the surgery.

A repeat FCE was similar to the prior one, but a new company chosen doctor, opined that the recurrent tear occurred before claimant returned to work in December 2004, and rejected the PT assessment and assigned permanent restrictions.

The employer accepted their own doctor’s restrictions and refused to return claimant to work.

The opinions of the new company doctor were rejected by the Deputy and Commissioner.

Usually in the absence of permanent restrictions, despite some permanent impairment, a workers’ loss of earning capacity from an injury is minimal. However, in this case, claimant lost his rather lucrative employment with Quaker Oats as a result of this injury because he was perceived by the new company doctor and the employer as having such a disability. It has long been the law of Iowa that an industrial disability award can be based upon the loss of a job or lost earnings from a job transfer due to an injury or “perceived” disability, even in the absence of permanent impairment or physician imposed work restrictions.

Claimant has suffered a 50 percent reduction in his earning capacity from that which existed at the time of the injury, December 22, 2004.

Defendant seeks apportionment or credit of the above award for work and non-work related conditions pursuant to Iowa Code section 85.34(7)(a) and credits against the award for previous payments of permanent disability benefits to claimant as a result of prior industrial injuries pursuant to Iowa Code section 85.34(7)(b).

A note following section 85.34(7) states: 2004 amendments to subsection 2, paragraph u, and adding subsection 7 take effect September 7, 2004, and apply to injuries

occurring on or after that date; 2004 Acts, 1st Ex, ch 1001, §18.

The specific use of the plural “injuries” was held to mean that both the first and second injuries must occur after the date set by the legislature.

It was concluded that because the first injuries for which defendant seeks a credit occurred prior to September 7, 2004, defendant is not entitled to a credit.

The Deputy was REVERSED.

KNIE v. DIEBOLD, INC., File No. 5017520 (12-10-07)

The Commissioner (as delegated) disagreed with the Deputy's finding of only a five percent loss of earning capacity. While he has returned to work without loss of earnings, claimant testified without contradiction that he must modify his work activities to accomplish assigned tasks and that this left arm is significantly weaker than before the injury. I do not find convincing the view that claimant has no physical limitations form this injury because the treating physician did not impose formal restrictions. I find it inconsistent to opine that claimant is six percent permanently impaired from performing activities of daily living, but to also opine that he had no physical limitations.

Assessments of industrial disability involve a viewing of loss of earning capacity in terms of the injured workers’ ability to earn in the competitive labor market, not his ability to remain employed in his current job.

5% PPID award increased to 15%.

Note, Deputy Walshire wrote this decision pursuant to an order of delegation of authority by the workers’ compensation commissioner.

MILLENKAMP V. MILLENKAMP CATTLE COMPANY, 5011148 (12-10-07)

    On rehearing of post hearing penalty award Commissioner REVERSED.

    The sole issue was whether an arbitration decision rendered by a presiding deputy workers’ compensation commissioner can alone impose a new duty upon the defendant employer and insurer to re-evaluate their denial of weekly benefits during the pendency of a timely appeal to the workers compensation commissioner where the

denial of benefits before hearing had been held in the arbitration decision to be fairly debatable. After further consideration in light of the parties’ arguments presented on rehearing, I no longer agree that such a new duty arose in this particular case.

    If defendants’ denial of benefits was fairly debatable before the arbitration decision, it was almost certainly fairly debatable after the decision.

    However, this is not to say that facts and circumstances may arise in other cases after a hearing and proposed decision that would no longer render a denial of benefits fairly debatable and impose a duty upon defendants to re-evaluate their past denial of benefits.

Note: The issue of post-hearing penalties was not preserved, and thus, not addressed by the Court of Appeals 10-1-08. The Commissioner’s 10-11-07 decision (summarized at the bottom of the page) on this issue is here reversed.