Our workers’ compensation system is a creature of statute, and a system of compromise that was put into place as a substitute to our traditional tort system. As a part of that compromise, both employers and injured workers gave up certain rights to create a system of rough justice that is more efficient than requiring the parties to resort to our court system to resolve their disputes.
In the upcoming months, the Iowa Supreme Court will be given several opportunities to make sure that the balance between the rights of injured workers and the rights of employers that is so integral to the effectiveness of our system remains in place. Here is a look at those cases, and the issues that they involve:
Lon Tweeten d/b/a Tweeten Farms and Grinnell Mutual Insurance, Co. v. Corey Tweeten, Case No. 22-2081 (Submitted by Oral Argument on Thursday, November 16, 2023.) (Claimant’s counsel, Janece Valentine; defense counsel, Chris Spencer)
Three Issues:
1. Whether the “discovery rule” was eliminated with respect to traumatic injury cases by the 2017 amendments.
The Commissioner concluded that the legislature’s codification of the “date of injury” in §85.26 did nothing to impact the “discovery rule”. The District Court disagreed, but still decided in favor of the claimant by reasoning that claimant’s injury was more cumulative in nature than traumatic.
2. Whether a settlement with the Second Injury Fund removes agency jurisdiction with respect to the claim against the employer.
The Commissioner held that the employer had waived this argument by failing to identify it as an issue at hearing. The District Court held that error was preserved by virtue of the timing of the settlement approval which would not have allowed the employer to have identified the issue prior to hearing. However, the District Court went on to hold that the settlement with the Second Injury Fund had no impact on the agency’s jurisdiction over the employer’s claim because the “subject matter of the compromise” between the claimant and the Second Injury Fund did not involve the employer.
3. Whether reimbursement for a §85.39 report includes the cost of the examination.
The Commissioner awarded the full cost of the report and the examination. The District Court agreed that this decision was proper. The District Court also observed the employer failed to “establish how one could obtain an impairment rating in the absence of an evaluation”.
Justin Loew v. Menard, Inc., and XL Insurance America, Case No. 22-1894 (Submitted without oral argument on Thursday, November 16, 2023.) (Claimant’s counsel, Paul Thune; defense counsel, Kent Smith)
One Issue:
Whether the claimant’s receipt of a 30% award for a pre-2017 back injury precludes any recovery for a post-2017 back injury with the same employer resulting in an 8% functional impairment.
The Commissioner determined that the employer should be allowed a full 30% credit for the prior body as a whole award against the employer’s liability for the current injury. Since the claimant had returned to work with the same employer making the same wages following this injury, he was limited to the 8% functional rating for disability compensation. Applying the credit, therefore, effectively precluded any award. The District Court affirmed the Commissioner.
Lorri Hagen v. Serta/National Bedding Co., L.L.C., and Safety National Casualty Co., Case No. 22-0864 (Before the Court on an Application for Further Review. Submitted without oral argument on November 16, 2023.) (Claimant’s counsel, John Loughlin; defense counsel, Lindsey Mills)
One Issue:
Whether the Iowa Workers’ Compensation Commissioner erred in excluding claimant’s late-filed reports because defendants failed to show “unfair” prejudice.
The Commissioner excluded two reports exchanged by claimant approximately two weeks prior to hearing for failure to comply with the exhibit exchange deadlines. The District Court held that this was an error because the employer had failed to demonstrate that it was “unfairly prejudicial” by allowing the reports into evidence. The Court of Appeals agreed that it was the objecting parties’ burden to demonstrate “unfair prejudice” and upheld the District Court’s determination that the employer had failed to meet this burden.
P.M. Lattner Manufacturing Co. and Accident Fund General Insurance Co. v. Michael Rife, Case No. 22-1421 (Before Six pending cases before the Iowa Supreme Court How they will impact your workers’ compensation practice December 2023 A PUBLICATION OF THE IOWA ASSOCIATION FOR JUSTICE | 5 the Court on an Application for Further Review. Scheduled for submission without oral argument on December 13, 2023.) (Claimant’s counsel, Anthony Olson; defense counsel, Laura Ostrander)
Two Issues:
1. Whether Commissioner improperly awarded the full cost of claimant’s independent medical examination under §85.39.
The Commissioner awarded the full cost of claimant’s IME without any attempt to apportion between the costs associated with the current injury and/or assessing the prior injury. The District Court held that the employer should not be responsible for any of the cost because claimant had not met the statutory pre-requisites for reimbursement. The Court of Appeals found that the employer had waived any argument that the statutory requirements had not been met. However, the Court found that the Commissioner erred by awarding the full cost without any attempt at apportionment between the injuries assessed.
2. Whether an employer can claim a credit for a 2009 right shoulder injury against the potential compensation owed for a 2019 right shoulder injury with the same employer.
The Commissioner refused to allow a credit because the 2009 injury was an unscheduled injury whereas the 2019 injury was to the scheduled shoulder. The District Court determined that some type of apportionment was in order and remanded to the Commissioner to come up with an award for the 2019 injury that allowed a credit in some amount for the compensation paid on the 2009 injury. The Court of Appeals agreed.
Mid American Construction, L.L.C., and Grinnell Mutual v. Marshall Sandlin, Case No. 22-0471 (Before the Court on an Application for Further Review. Scheduled for submission without oral argument on December 14, 2023.) (Claimant’s counsel Zeke McCartney; defense counsel Chris Spencer)
One Issue:
Whether the Commissioner erred in awarding the full $2,020 cost of claimant’s IME.
The employer argued that no reimbursement should be allowed for the IME because claimant chose the initial evaluating physician, but the Commissioner disagreed. The District Court and the Court of Appeals found that substantial evidence supported this conclusion. The employer also argued that the cost was unreasonable. The Court of Appeals found that only $500 of the $2,020 cost was reasonable because that was the portion of the evaluator’s itemized bill related to the “Impairment Rating/ Restrictions Exam,” and the rest of the charges related to the overall examination charges.
Bridgestone Americas, Inc., and Old Republic Insurance Company v. Charles Anderson, Case No. 22-1328 (Retained by the Iowa Supreme Court, but not currently set for submission.) (Claimant’s counsel, Channing Dutton; defense counsel, Tim Wegman)
One Issue:
Whether a single injury that caused permanent disability to both a right shoulder and a right arm should be compensated as a scheduled member or a body as a whole.
The Commissioner determined that this combination of injuries should be compensated as a body as a whole loss. The shoulder subsection in §85.34 does not provide compensation for an arm; the arm subsection does not provide compensation for a shoulder; and, there is no subsection that provides compensation for this combination of injuries other than the catch all, body as a whole compensation provided in §85.34(2)(v).
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