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It should be noted that these summaries, are just that, and do not contain all facts or all holdings of the decisions summarized. These are, also, only summaries of selected decisions. The words used are, for the most part, from the Court's summaries or the decisions themselves, selectively edited, cut and pasted from those decisions. We make no claim that these summaries are correct in their interpretation of the facts, the eventual outcome of the case, whether any appeal or further review has been sought or granted, or whether the decision has been reversed or modified on appeal or review, or whether the decision's holding's have been reversed or modified in a later decision not summarized, or by statute, or whether the the decision summarized has been published, or the specifics or current language of the statutes cited, and further makes no claim as to the applicability of any of the summaries or statutes to situations under consideration by the reader. They are not not to be considered as legal advice applicable to any specific matter, the full text of any decision should always be fully examined by counsel, and its value and current viability determined by that counsel.

IOWA SUPREME COURT Notice: The opinions posted on this site are slip opinions only. Under the Rules of Appellate Procedure a party has a limited number of days to request a rehearing after the filing of an opinion. Also, all slip opinions are subject to modification or correction by the court. Therefore, opinions on this site are not to be considered the final decisions of the court. The official published opinions of the Iowa Supreme Court are those published in the North Western Reporter published by the West Publishing Company.

IOWA COURT OF APPEALS: Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.

AGENCY: Appeal opinions of the Department of Workers' Compensation are subject to rehearing and appeal, and the agency is afforded limited deference in the interpretation of statutes, as the ultimate interpretation of the state's workers' compensation statute is a question of law for the judicial branch.

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COURT OF APPEALS

MENARD, INC. v. BAHIC, 14-0239 (11-26-14)

The Commissioner found Bahic suffered a 60% PPID and also found Bahic achieved MMI from his injury in October 2012. The commissioner ordered Bahic's employer to commence paying PPD benefits in October 2012. The district court upheld the agency action. On appeal, the employer claims (1) Bahic's "healing period terminated in May of 2011" because he was not working in a "light duty" job but had actually acquired a new permanent job, and (2) "any award of permanent disability should commence" in May 2011. The employer also claims the district court erred in upholding the commissioner's industrial disability award. OPINION HOLDS: The reduction in Bahic's wages entitling him to temporary partial disability benefits clearly shows Bahic worked in a job with reduced wages in May and June 2011. Menard did not present any evidence that permanency benefits should commence at a date other than the date it claimed Bahic reached MMI and no doctor found Bahic's condition had stabilized in May of 2011. Therefore, we find no merit to Menard's claim permanent benefits should commence in May 2011. As to industrial disability, when we combine our review of the record with Menard's challenges, Bahic's responses, and the district court's well-reasoned opinion, we agree with the district court. No purpose would be served by restating the district court's thoughtful and comprehensive analysis. AFFIRMED.

COURT OF APPEALS

CATHOLIC HEALTH INITIATIVES v. HUNTER, 14-0202 (11-26-14)

An employer appeals from the district court's ruling on judicial review, which affirmed the workers' compensation commissioner's award of TTD benefits and medical care to its employee. OPINION HOLDS: I. The employee may recover TTD benefits or HP benefits because substantial evidence supports the finding she is not capable of performing substantially similar employment. II. Substantial evidence supports the finding the employee's hip condition is causally connected to her work injuries where two doctors gave opinions within a reasonable degree of medical certainty to support this finding and no expert witness evidence was offered to rebut their opinions. III. Substantial evidence supports the finding the employee suffered a work-related injury to her neck where the expert witness opinion she suffered a 15% impairment was unrebutted. IV. Substantial evidence supports the agency's award of expenses for unauthorized medical treatment because that treatment was more medically beneficial than the treatment provided by the authorized provider.

COURT OF APPEALS

ANDERSON NEWS v. REINS, 14-0038 (11-13-14)

An employer appeals from a district court ruling on a petition for judicial review of a workers' compensation commissioner's ruling affirming the commissioner's ruling in part and remanding it to the commissioner for further consideration in part. OPINION HOLDS: I. The commissioner applied the correct standard in determining whether a review-reopening hearing could be held. Because the commissioner's finding that the claimant is suffering from a worsening condition is supported by substantial evidence, a review-reopening was appropriate. II. The trial court's remand to the commissioner to determine whether lost earning capacity existed was appropriate where the commissioner made no finding as to the claimant's lost earning capacity to support an increase of her permanent partial impairment. III. The commissioner's finding future medical care is supported by substantial evidence.

COURT OF APPEALS

CITY OF DAVENPORT v. TIMM, 13-1357 (11-13-14)

The City of Davenport appeals from the district court's dismissal of its petition for interlocutory judicial review of an order from the Iowa Workers' Compensation Commission and denial of its motion to stay agency proceedings. OPINION HOLDS: The district court correctly found the City has not shown that irreparable harm will result in waiting for a final agency decision before judicial review. Because we affirm the district court's dismissal, the City's appeal of the court's denial of its petition to stay agency action pending decision on judicial review is moot. We therefore further affirm the district court's denial of the City's petition to stay. DISSENT ASSERTS: I respectfully dissent, as I would find the district court erred in concluding it did not have subject matter jurisdiction to hear the appeal. I would find the district court did have jurisdiction to decide the issue, as the commissioner had made the final agency ruling on the issue of whether Paulsen could pursue her claim under Iowa Code chapter 85 (2009). Therefore, I would reverse the district court, and remand to allow the district court to review whether the commissioner was correct in finding it had jurisdiction under chapter 85 to allow Paulsen's claim to move forward. 

COURT OF APPEALS

IOWA INSURANCE DEFENSE INSTITUTE v. CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE, 13-1627 (10-29-14)

The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self Insurers Association, Property Casualty Insurers Association, and the National Association of Mutual Insurance Companies appeal a declaratory order ruling made by the Iowa Workers' Compensation Commissioner, asserting that the commissioner abused its discretion in filing the order, and that the commissioner erred in its interpretation of §85.27(2) (2013). OPINION HOLDS: We conclude the commissioner's decision to file a declaratory order was within its discretion, and further conclude that the commissioner did not err in interpreting §85.27(2). We affirm. SPECIAL CONCURRENCE ASSERTS: The commissioner erred in holding §85.27(2) applies to surveillance materials. The commissioner compounded this error by conflating and conjoining two separate legal doctrines into something he called "attorney-client work product privileged [sic]." Assuming the "attorney-client work product privilege[sic]" refers to the work-product doctrine, the commissioner erred in holding that s§85.27(2) waives work-product protection and that the party asserting work product protection must seek relief from the agency rather than vice versa. Finally, the commissioner erred in holding surveillance materials must be produced prior to deposition of the claimant. Accordingly, I must respectfully dissent

COURT OF APPEALS

WEST DES MOINES COMMUNITY SCHOOLS v. FRY, 13-1391 (10-29-14)

The employer challenges the award of workers' compensation benefits to employee John Fry. The commissioner determined Fry lost 25% of his earning capacity due to a cumulative injury to his left sacroiliac (SI) joint, manifested in October 2008. The commissioner awarded PPID; HP; alternate medical care; and expenses related to the injury. The employer contends the commissioner's determination was not supported by substantial evidence and its application of the cumulative injury doctrine to the facts of this case was irrational, illogical, and wholly unjustifiable. OPINION HOLDS: We find substantial evidence upholds the commissioner's decision concerning Fry's work-related injury and industrial disability. We also agree with the court's conclusion that the commissioner's reliance on cumulative injury was rational, logical, and justifiable. Accordingly, we affirm.

AGENCY APPEAL

RAMIREZ v. TYSON FOODS, INC., 5041483 (10-22-14)

The deputy found claimant had established the work injury had caused a PPID in the amount of 45%. MODIFIED

Claimant has two conditions which are causally related to the work injury. The left shoulder injury resulted in surgery. The low back injury was non-surgical. There is not one physician who indicated surgery was required for claimant's low back condition. The modality of choice was exercise, especially walking at home. Claimant has two conditions which are causally related to the work injury. The left shoulder injury resulted in surgery. The low back injury was non-surgical. There is not one physician who indicated surgery was required for claimant's low back condition. The modality of choice was exercise, especially walking at home.

After claimant was released to return to work, he was able to perform his job for several years. Had claimant not been terminated for fighting with a co-worker, he would still be employed at the plant.

After reviewing all of the record, as well as the factors leading to an industrial disability, it is the determination of the undersigned; claimant has a PPID in the amount of 25%.

AGENCY APPEAL

CORNELIOUS v. LABOR WORLD OF IOWA, INC. a/k/a USA STAFFING, 5040735 (10-17-14)

Claimant testified he believes he was not thoroughly examined by either Dr. Mooney, Miller, or Igram. However, claimant could have received an IME from a physician of his own choice, at the expense of the defendants under §85.39. Claimant did not do this. None of the three experts in this case found claimant had any permanent impairment.

Claimant testified he believes he has received inadequate care from Drs. Mooney, Miller, and Igram. Claimant was evaluated by all three physicians. Claimant did receive diagnostic testing. He was offered physical therapy. Dr. Igram opines claimant does not require further medical treatment. No expert has opined claimant should receive further medical treatment. Given this record, claimant has failed to carry his burden of proof that he is entitled to alternate medical care.

Claimant's counsel indicated to the deputy, TTD would not be an issue at the arbitration decision. Claimant cannot now on appeal raise this issue for the first time. Claimant's request for additional TTD is denied as the issue was not preserved for appeal.

Claimant testified he was limited in what he could do at Pizza Hut with respect to lifting and that his employer was providing various accommodations.

The undersigned also reviewed exhibit M which contained video footage of claimant holding a "Pizza Hut" sign and dancing on a street corner in Ames, Iowa. After reviewing, the video footage, it is evident this claimant is able to dance and move quite gracefully for a man of his age. His various gestures are really remarkable. His movements do not appear limited, despite claimant's testimony. AFFIRMED

SUPREME COURT

GITS MANUFACTURING COMPANY and ST. PAUL TRAVELERS INSURANCE COMPANY vs. DEBORAH FRANK, 13-0665 (10-17-14)

Employee seeks further review of a court of appeals decision reversing her award of benefits by the Iowa Workers' Compensation Commission. DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED.

An employer and its insurance carrier sought judicial review of a Commission decision finding an employee TPD under the odd-lot doctrine and denying them certain credits for disability payments previously received by the employee from other sources. The district court affirmed, finding the employee is totally and permanently disabled under the odd-lot doctrine, but reversed on the issue of credits claimed by the employer and its insurer. Both parties appealed. The court of appeals reversed the judgment of the district court, holding substantial evidence did not support the finding the employee is TPD under odd-lot, and the commission was correct in its decision concerning the credits. The employee sought further review

On further review, we find substantial evidence supports the commission's finding that the employee is TPD under the odd-lot doctrine. In our discretion, we let the court of appeals decision regarding (denial) the employer's credit stand as the final decision. Consequently, we affirm the judgment of the district court finding substantial evidence supported the commission's findings that the employee is TPD. We reverse the district court's judgment regarding the issues concerning the credit. Therefore, we remand the case to the district court to enter a judgment affirming the decision of the commission.

The commission denied Gits a credit for SSDI benefits and LTD benefits, and awarded penalty benefits against Gits.

In weighing McBroom's (VR expert) testimony, the commission found McBroom's testimony and opinions relied heavily upon the premise that Frank could be retrained with the skills necessary to work in an office position. The commission further found Gits failed to present evidence that, taking into consideration age and medical condition, Frank could complete the necessary classes for her to obtain a clerical position.

COURT OF APPEALS

EMCO v. SEHIC, 14-0336 (10-15-14)

EMCO appeals from the district court's order affirming the Iowa Workers' Compensation Commissioner's award of 35% industrial disability to Sehic, claiming the award is not supported by substantial evidence. OPINION HOLDS: We conclude there is some evidence in the record showing Sehic sustained a work injury that caused a disability, and so, pursuant to precedent, we must affirm the district court's conclusion the award was supported by substantial evidence. Affirmed. 

COURT OF APPEALS

HINEGARDNER v. IMON COMMUNICATIONS, 14-0030 (10-15-14)

Hinegardner appeals the district court's judicial review ruling, which affirmed the workers' compensation commissioner's denial of his petition for workers' compensation benefits. OPINION HOLDS: A. Hinegardner first contends substantial evidence does not support the agency's credibility determination. When viewing the entire record before the agency, we conclude substantial evidence supports the finding that Hinegardner's claims regarding the extent of his injury prior to the work-related claim are not credible. B. Hinegardner also contends substantial evidence does not support the agency's finding regarding medical causation. However, the expert witness testimony, coupled with the claims Hinegardner has made that conflict, other evidence in the record, provides substantial evidence to support the finding that Hinegardner did not suffer a compensable work injury. 

COURT OF APPEALS

HILL CONCRETE v. DIXSON, 13-1778 (10-15-14)

Hill Concrete appeals from the Commissioner's award of HP to Dixson from March 31, 2010, until May 4, 2012, in its review-reopening decision. Hill asserts the commissioner erred in concluding §85.34(1) (2011) governs the time period in which HP can be awarded in a review-reopening proceeding. Hill argues that healing period benefits should only be awarded when the claimant's condition "warrants" additional benefits, as set forth in §86.14(2), rather than when the claimant has reached MMI, as dictated by §85.34(1).  According to Hill's position, Dixson should not have been awarded benefits after July 16, 2010, because his condition after this date did not warrant further HP, given he stated on July 16, 2010, that he was pain-free.  OPINION HOLDS: We conclude the timeframe for healing period benefits set forth in §85.34(1) applies in a review-reopening proceeding that is initiated under §86.14(2). Consequently, substantial evidence supports the commissioner's award of benefits from March 31, 2010, until May 4, 2012, given that the record shows Dixson did not reach maximum medical improvement until May 4, 2012. Consequently, Dixson was properly awarded healing period benefits until this date. Affirmed.

COURT OF APPEALS

MERCY HOSPITAL v. GOODNER, 13-1748 (10-15-14)

The employerand its insurer, appeal from the district court's entry of judgment upon Goodner's petition for enforcement of the workers' compensation commissioner's award. The commissioner entered the following award: "Defendants [Mercy] shall pay unto the claimant [Goodner] permanent total disability benefits at the rate of [$996] per week from January 18, 2000, except for any periods of time claimant returned to employment, and during the time claimant remains permanently and totally disabled." On appeal, Mercy contends the district court "did not properly construe the award when entering judgment." OPINION HOLDS: Finding no error, we affirm. 

AGENCY APPEAL

SALTERN v. HNI CORPORATION, 5037327 (10-14-14)

The presiding deputy also awarded penalty benefits in the amount of 10% of the healing period benefits as well as 10% of the permanent partial disability benefits. The deputy based his decision on penalty benefits on the following rationale:

Under the §86.13(4)(c)(1); Jense(o)n v. Cummins Filtration-Lake Mills, File Nos. 5032401-5032402 (App. September 25, 2012). They also have an obligation to convey the basis of the denial at or about the time of the denial. Iowa Code 86.13(4)(c)(3). Defendant did not fulfill either of these obligations.

Defendant contends their [its] answers, filed in this case, fulfilled their [its] obligation to convey the basis of the denial. The answers in this case were simply denials and did not give any basis for the denial.

I am aware that under the rules of this agency, defendant is required to file an answer of motion within 20 days of service of the original notice and petition. 876 IAC 4.9(1). I am aware that it is good practice to timely file an answer or a motion to avoid default. However, §86.13(4) (c) requires some kind of investigation be performed and the reasons of a denial be conveyed at the time of the denial of a claim. A single sentence in an answer indicating, for example, that an investigation was made, that the injury did not appear to be causally connected and that investigation is ongoing, might meet the needs of the requirements under §86.13(4)(c). That did not occur in this case. And it did not occur even when claimant's counsel specifically asked for the basis of the denial in the July 15, 2011 letter. For these reasons, a penalty is appropriate in this case. AFFIRMED

AGENCY APPEAL

HECKERT v. FOUR OAKS, 5039424 (10-13-14)

As a result of walking on a bad knee, claimant asserted that he developed pain in his back, hips, and right leg due to an abnormal gait. There are competing expert opinions. Claimant argues that the presiding deputy gave too much weight and/or misinterpreted the opinions weighing in favor of the defendants' position and not enough to the expert opinions who supported the claimant's assertions he sustained back, hips, and right leg injuries. AFFIRMED

Medical testimony isn't measured solely by the evidence standard. Medical opinions are judged on the probability or likelihood of a causal connection. This is often expressed in the form of asking an expert what their opinion is to a reasonable degree of medical certainty; however, the use of those buzzwords is not necessary. It is not necessary for an expert's opinion to be based on a preponderance of the evidence, but instead whether there is a probability or likelihood of a connection between the inciting incident and the resulting alleged injury.

However, even, if, claimant's problems could be related to the knee is sufficient to meet the standard for causation, it is not the sole reason the presiding deputy found that the claimant had failed to meet his burden.

The opinions of two specialists in Orthopaedics were that claimant's back, hip, and foot/ankle pain could not be attributed to an altered gait as a result of claimant's left knee injury. Further, the deputy found that the objective evidence supported these opinions.

COURT OF APPEALS

DRAYFAHL v. CITY OF WAPELLO, 13-2036 (10-1-14) WRONGFUL TERMINATION

The district court granted a directed verdict in favor of the City of Wapello on Drayfahl's claim of wrongful termination. She was handed a piece of paper that listed five alleged shortcomings on her part, and she was advised she could resign or be terminated. Drayfahl said she would not resign. The mayor told her she was terminated. On appeal, Drayfahl argues her termination was in violation of public policy because the city failed to follow proper procedural guidelines as set forth by ordinance and statute. OPINION HOLDS: Because Drayfahl has not alleged that she was terminated for engaging in any activity protected by a clearly defined policy, we affirm the district court's grant of directed verdict. 

COURT OF APPEALS

CON-E-CO v. NOWATZKE, 14-0470 (10-1-14)

An employer and its insurer appeal from a district court ruling upholding the Commissioner's award of permanent total disability benefits for an employee's injury.  OPINION HOLDS: We have carefully reviewed the record, the briefs of the parties, and the district court's thorough and well-reasoned ruling. The district court's ruling identifies and considers all the issues presented, and we approve of the reasons and conclusions in the district court ruling. Because further discussion of the issues would be of no value, we affirm the district court's decision affirming the Iowa Workers' Compensation Commissioner's decision. See Iowa Ct. R. 21.26(1)(b), (d), and (e).

COURT OF APPEALS

DART v. YOUNG, 14-0231 (10-1-14)

DART appeal from a ruling on judicial review of a decision made by the workers' compensation commissioner. OPINION HOLDS: The decision of the trial court and the decisions of the workers' compensation commissioner in assessing DART charges made for the independent medical examination obtained prior to the employer's physician's rating of the employee's permanent disability as a part of the cost of the hearing are reversed. The employer's physician's report of functional disability must be made before an employer is obligated to pay for the IME obtained by the employee. To allow a claimant the cost of an IME conducted prior to the employer's physician's report under IAC 876-4.33 would be to allow an agency rule to defeat the requirements of a statute enacted by the legislature.

COURT OF APPEALS

LINDEN v. TYSON FOODS INC., 14-0141 (10-1-14)

Linden appeals the district court's judicial review decision that affirmed the workers' compensation commissioner's ruling awarding her benefits for a scheduled member injury to her right arm and denying her request for industrial disability. OPINION HOLDS: Because we conclude the agency correctly interpreted the applicable law and substantial evidence supports the agency's decision, we affirm the judicial review decision of the district court.

COURT OF APPEALS

VITZTHUM v. KLM ACQUISITION CORP., 13-1441 (10-1-14)

Vitzthum appeals from the district court, which affirmed in part and remanded in part the proceedings before the Iowa Workers' Compensation Commission. The defendants, collectively "Aluma," cross-appeal. Together they raise five issues: (1) the correct rate of weekly benefits to which Vitzthum is entitled; (2) whether Aluma has a reasonable or probable cause or excuse to avoid penalties for late payments; (3) whether Aluma has a reasonable or probable cause or excuse to avoid penalties for underpayments; (4) whether the district court was correct to remand for additional fact-finding; and (5) whether the assessment of arbitration and court costs below was proper. OPINION HOLDS: There is substantial evidence supporting the agency's determinations as to the correct weekly benefit rate, penalties for late payments, and penalties for underpayments made prior to June 1, 2009. Costs were properly assigned. The district court properly remanded to the agency for interpretation and application of statutory amendments relative to payments made on and after June 1, 2009. We affirm. ("Rolling delay" not suppported under the facts. The US Rule on interest is only applicable when payment is "made toward retiring a judgment." Christensen, 554 N.W.2d at 261&endash;62. Page 12, n. 8.)

COURT OF APPEALS

BAKKEN v. ORWIG, INC., 14-0001 (9-17-14)

Bakken appeals the district court's judicial review ruling, which affirmed the decision of the workers' compensation commission denying benefits for an alleged cervical spine injury. Bakken asserts the agency decision is not supported by substantial evidence or the decision is otherwise the result of an abuse of the agency's discretion. OPINION HOLDS: We agree with the district court's judicial review ruling after conducting our own review of the evidence along with the claims made on appeal. We therefore affirm the judicial review decision of the district court pursuant to Iowa Court Rule 21.26(1)(b), (d), and (e).

The agency concluded based on its review of the medical evidence and the testimony of Bakken that Bakken had failed to establish a causal relationship between his 2010 work injury and his ongoing cervical complaints. The agency concluded all the evidence in support of Bakken's claim was premised on Bakken having had no ongoing cervical problems from his 2005 cervical fusion until early 2010. The agency found that history was inaccurate and gave the greatest credible weight to the opinion of the employer's expert who had "the most accurate understanding of [Bakken's] right shoulder and cervical pathology from 2004 onward." The agency also found the employer's expert opinion was consistent with the overall recorded medical evidence.

COURT OF APPEALS

CHAPMAN v. AMERISTEEL, 13-2057 (8-27-14)

Ameristeel appeals a district court decision reversing the workers' compensation commissioner, arguing that the district court ignored the commissioner's relevant fact findings. Chapman requests that we reverse the commissioner's final decision dismissing his second workers' compensation petition on claim preclusion grounds. OPINION HOLDS: Because we find that the commissioner's factual findings were supported by substantial evidence in the record, the district court erred in reversing the commissioner's final decision. Further, we find that Chapman's second petition was barred by the doctrine of judicial estoppel. Accordingly, we reverse the district court.

COURT OF APPEALS

HALLETT v. BETHANY LIFE COMMUNITIE, 13-1591 (8-27-14)

Hallett appeals the district court's order affirming the appeal decision of the workers' compensation commissioner that denied Hallett's petition for review-reopening filed pursuant to Iowa Code section 86.14 (2011). Hallett argues the agency incorrectly interpreted the review-reopening statute by requiring her to show a change in physical or economic condition since the time of the original award, the agency's findings are not supported by substantial evidence, and its application of the facts to the law was an abuse of discretion. OPINION HOLDS: Prior case law makes clear Hallett was required to show a change in condition. Substantial evidence supports the agency's findings. The agency's decision was not an abuse of discretion.

COURT OF APPEALS

DILLAVOU v. PLASTIC INJECTION, 13-1359 (8-27-14)

Dillavou appeals following the Iowa Workers' Compensation Commissioner's denial of her worker's compensation petition and the district court's affirmance of that denial. She asserts that there was not substantial evidence to support the finding that her injury was the result of a willful act directed against her by a third party for personal reasons. OPINION HOLDS:There is substantial evidence to support both a finding that the third party's conduct causing the injury was willful and a finding that the willful act was directed against Dillavou for personal reasons. We affirm. 

AGENCY APPEAL

FOGG v. JOHN DEERE DAVENPORT WORKS, 5034158 (8-19-14)

The presiding deputy held that the right shoulder injury claim is not included in this claim as a sequelae of the stipulated left shoulder injury. The deputy stated that medical conditions which develop as a sequelae of an original work injury can only be asserted in the claim for the original injury when the sequelae conditions are the result of non-work activity. Sequelae from work activity are only considered by this agency when asserted as a new work injury. This holding is erroneous.

Claimant's right shoulder difficulties were most likely due to overcompensation or overuse of the his right side as a response to his left shoulder problems is uncontroverted.

Consequently, claimant may indeed have suffered a new work injury to his right shoulder from his work at Deere, but the right shoulder problems would not have occurred but for the original left shoulder injury. The right shoulder condition is a sequelae of the original left shoulder injury. However, claimant's rate of compensation for any disability to the right shoulder must be based on the earnings at the time of the original injury, not the time of the new injury absent a separate new injury claim. In this case, I see no unfairness in considering the right shoulder claim as defendants were well aware of claimant's assertions concerning the right shoulder claim long before hearing and had ample time to prepare a defense prior to hearing. The most frequent and obvious sequelae injury or condition arising from an original work injury involves mental injuries, yet no new notice or statute of limitation defenses arise from mental injuries stemming from the original physical injury. WALSHIRE

COURT OF APPEALS

RYAN COMPANIES v. BISSELL, 13-1869 (8-13-14)

Ryan Companies, an employer, appeals an award of workers' compensation benefits. OPINION HOLDS: For the same reasons detailed in the thorough district court opinion, we conclude substantial evidence supports the agency's findings that employee Greg Bissell injured his lower back in the course of his employment, Ryan Companies had notice, and Bissell lost 100% of his earning capacity as a result of the injury. Therefore, we affirm.

Bissell believed because his physical difficulty following the October 23, 2008 lifting incident was not his first experience with pain in his lower back and legs, the injury could not be compensated. Bissell had previously received treatment for restless leg syndrome, a displaced lumbar disk, and degenerative disk disease. He did not realize he had a compensable work injury until he consulted with an attorney in March 2010 for the purpose of applying for social security disability benefits.

On October 14, 2010, Bissell filed his petition with the workers' compensation commissioner. Ryan engaged Dr. William Boulden to perform an independent medical examination of Bissell. After viewing a 2008 MRI of Bissell's spine, and comparing those results to a 2006 MRI, Dr. Boulden determined the October 23 injury was a new herniated disc, not an aggravation of a previous condition. Dr. Mitch Erickson, a neurologist, came to the same conclusion. The Deputy decided Ryan had actual notice of Bissell's injury. Alternatively, the deputy decided the discovery rule applied to Bissell's situation.

The district court accepted the agency's actual notice finding, but rejected the discovery rule's application. We agree on both counts. It is true an employee may provide information to an employer, which would satisfy the actual knowledge notice requirement without at the same time nullifying his right to invoke the discovery rule. See Dillinger v. Sioux City, 368 N.W.2d 176, 180 (Iowa 1985). But under the facts of this case, after Bissell felt the "pop" in his back while performing a work activity, he had a duty to investigate the compensable nature of his ensuing back pain. See Chapa v. John Deere Ottumwa Works, 652 N.W.2d 187, 190 (Iowa 2002). As for actual notice, the record supported the agency's conclusion that Ryan officials were alerted to Bissell's injury through his contacts with foreman Popson and his call to the company's receptionist.

COURT OF APPEALS

PELLA CORPORATION v. MINAR, 13-1616 (8-13-14)

Pella's appeal from a workers' compensation decision requires us to determine whether the agency's inclusion of an employee's bonuses in her "gross earnings" was "irrational, illogical, or wholly unjustified." OPINION HOLDS: Upon our review, we find substantial evidence to support the commissioner's decision to include Minar's annual and quarterly bonuses in calculating her "gross earnings," and conclude that the commissioner's decision was not "irrational, illogical or wholly unjustified." Accordingly, we affirm.

Pella contends the commissioner acted irrationally in including the bonuses. In its view, Noel is controlling because the case involved its predecessor company, Rolscreen, which implemented a bonus program virtually identical to the one at issue here. Minar responds that Burton is the most recent opinion on the subject and contains language expressly limiting the reach of Noel.

Minar is correct on both counts. The Iowa Supreme Court decided Burton after this court decided Noel and the court declined to read Noel as requiring consideration of the enumerated factors in every case. Burton, 813 N.W.2d at 266. That said, the court did not suggest Noel employed flawed reasoning. Instead, its decision turned on "the applicable standard of review." The court emphasized that "[s]o long as the application of law to fact is not illogical, irrational, or wholly unjustified, the agency's decision will be upheld on judicial review." Id.

Turning to the record in this case, a Pella representative testified that Pella paid its employees an annual service bonus and a quarterly performance bonus both of which were subject to conditions precedent. See Noel, 475 N.W.2d at 667-68. However, the condition precedent to receiving the service bonus was simply being an "active employee on November 30th" of the year the bonus was paid and the condition precedent to receiving the quarterly bonus was being employed on the last day of the quarter. The bonus was paid every year after the 1991 Noel decision. While the bonuses varied in amounts, a factor considered in Noel as supporting a determination that they were irregular, the bonuses in Burton also varied in amounts and this fact did not preclude an affirmance of the commissioner's finding that the bonuses were regular. Additionally, the variance in Minar's bonus between 2005 and 2006 was an insignificant sixty-six cents.

COURT OF APPEALS

SALTERN v. HNI CORP., 13-1193 (8-13-14)

Employee appeals the district court's ruling denying her partial motion for summary judgment and granting the defendants' motion for summary judgment in her tort action for bad faith. OPINION HOLDS: Saltern's argument for partial summary judgment on the basis of judicial estoppel is not preserved for appellate review. We find no error in the district court's grant of summary judgment in favor of the defendants on the ground Saltern could not establish they had no objectively reasonable basis to deny her workers' compensation benefits. According, we affirm the rulings of the district court.

COURT OF APPEALS

BOLTON v. SECOND INJURY FUND OF IOWA, 13-1620 (7-30-14)

Bolton appeals from the district court order affirming the denial of Second Injury Fund benefits. OPINION HOLDS: Bolton argues he is entitled to Second Injury Fund benefits because he has suffered two permanent disabilities resulting in the loss or loss of use of a scheduled member. Because substantial evidence supports the commission's finding that Bolton did not suffer a first qualifying injury, we affirm.

We conclude substantial evidence supports the commissioner's decision. Bolton admits he did not experience any difficulties with his knee until after he began working for Suburban in 2000, some eighteen years after the injury that he alleges resulted in a permanent loss of use of his knee. Bolton did not seek medical treatment for his injury after his initial treatment in 1982. He did not even mention left-knee pain to his doctors until twenty-five years later, when he also complained of right-knee, hip, and back pain. Even then, Bolton made no reference to the 1982 incident that allegedly caused the pain. There is, quite simply, nothing in the record to tie Bolton's complaints of knee pain to the 1982 injury until after he filed for workers' compensation benefits in this matter.

Although Bolton claims the one-percent impairment rating Dr. Kuhnlein assigned to his left leg is overwhelming evidence that he sustained a first qualifying injury, the only evidence upon which Dr. Kuhnlein assigned an impairment rating is Bolton's subjective complaints of pain. Bolton has never been given any restrictions as a result of the injury and there is no objective evidence of loss of use. For these reasons, the commissioner did not give weight to Dr. Kuhnlein's opinion on this matter, and neither do we.

AGENCY APPEAL

HARNEY v. UNIVERSITY OF IOWA, 5036605 (7-17-14)

An award of penalty benefits to the date of hearing in this case is warranted. Even if one only considers Dr. Law's permanent restrictions and those of the vocational consultant, it was unreasonable to limit weekly permanency benefits to 84 weeks which is equivalent to an industrial loss of only 16.8%, while claimant appears to have suffered a 48% loss of actual earnings.

The uncontroverted opinions of the doctors show, the claims practice in this case is even more unreasonable. As aptly pointed out by claimant's attorney in his appeal brief, the State denied the mental claim on the basis of Dr. Ovrom's records. At the time benefits were terminated, Dr. Tansey has been treating claimant for four months. Less than a week after benefits were terminated, the State's own psychiatrist causally related claimant's mental problems to the work injury. The State argues that their doctor was unaware of the 2001 depression treatment by Dr. Ovrom, but at no time did the State ask their doctor if such a history would change his causation opinion. Then Dr. Ovrom discounted the prior depression's role in causing claimant's depression after the work injury, but the State persisted in their denial of further weekly benefits, without any supportive medical opinion. WALSHIRE

COURT OF APPEALS

ARCHITECTURAL WALL SYSTEMS v. TOWERS, 13-1653 (7-16-14)

Architectural Wall Systems and Zurich North America appeal the district court ruling affirming the decision of the Iowa Workers' Compensation Commissioner. The commissioner determined Donald Towers's deep vein thrombosis (DVT) constituted an injury to the body as a whole and awarded him a sixty percent industrial disability.  OPINION HOLDS: We find substantial evidence supports the commissioner's determination the deep vein thrombosis was a spill-over injury affecting the body as a whole, and Towers sustained a sixty percent industrial disability. Accordingly, we affirm.

AGENCY APPEAL

HEPKER v. SECOND INJURY FUND OF IOWA, 5020816 (7-14-14)

The deputy found claimant had proven a review-reopening of his prior award of 75% PPID was warranted and claimant had proven he is presently PTD. Defendant asserts on appeal the presiding deputy commissioner erred in finding claimant was entitled to a review-reopening of his prior award and erred as to the extent of claimant's present disability.

Since the initial award claimant has actively, but unsuccessfully sought re-employment. Claimant's unsuccessful attempt to become re-employed alone would not likely be sufficient to warrant review-reopening. Herein, claimant provided vocational evidence that his employment potential has worsened since his initial award. The Fund did not present evidence to discredit or refute the reasonable opinion. AFFIRMED.

AGENCY APPEAL

TRIMNER v. NATIONAL CARRIERS, 5041156 (7-7-14)

Claimant had worked approximately two weeks prior to his injury. One of the weeks claimant was working included a time period during which claimant was in training. Both parties argue that the rate should not be based upon the actual earnings of the claimant as the presiding deputy calculated. Instead, claimant asserts that the earnings of a comparable worker should be considered but that wages that are unusually low should be stricken from consideration.

Defendants argue that all of the comparable earnings should be considered.

The deputy determined that the best evidence was his actual one week of earnings of $574.58 in light of the other evidence. Claimant advanced no good reason why the low weeks should be stricken and the defendants' evidence consisted of one other employee who had wildly variable earnings with one week the employee earning no wages and the following week earning $1,497.00. 

The presiding deputy relied on §85.36(7) and calculated the weekly benefit rate using the claimant's actual earnings as a long-haul driver. AFFIRMED. GERRISH-LAMPE

SUPREME COURT

GOODPASTER v. SCHWAN'S HOME SERVICE, INC., 13-0010 (6-27-14)

In this appeal involving a lawsuit for wrongful termination of employment, we must determine whether multiple sclerosis is a disability contemplated by the Iowa Civil Rights Act of 1965 (ICRA), Iowa Code chapter 216 (2011). If so, we must also determine whether the employee was otherwise qualified to perform the essential functions of his employment as a product delivery driver who must hold a commercial driver's license. The district court granted summary judgment for the employer. On our review, we conclude multiple sclerosis is a disability under the ICRA and that a genuine issue of material fact exists regarding whether the employee was qualified to perform the essential functions of the position. Accordingly, we reverse the district court and remand for further proceedings.

AGENCY APPEAL

ROMERO v. CURLY'S, 5041589 (6-17-14)

Both parties appeal the extent of disability claimant sustained as a result of the injury to her right knee. Claimant asserts she sustained 27% disability to her right lower extremity while defendants assert claimant sustained 9% disability of the lower extremity. MODIFIED.

The fact finder must consider both medical and lay evidence relating to the extent of the functional loss in determining permanent disability resulting from an injury to a scheduled member

There are cases where an injured worker sustains a scheduled member injury and is entitled to permanent benefits in addition to the impairment rating(s); however, this is not one of those instances. Claimant was released to RTW full duty, w/o restrictions. Since that time she has worked at Curly's full time, regular duty.

Although claimant testified she continues to have some trouble performing activities of daily living she has failed to show any entitlement to impairment beyond the 99% lower extremity assigned by Dr. Martin. PALS

AGENCY APPEAL

MURPHY v. GREAT RIVER MEDICAL CENTER, 5039042 (5-27-14)

Defendants appeal from an arbitration decision in which the deputy found as a result of a stipulated work injury that claimant sustained a PTID. AFFIRMED.

Although claimant may at some future date obtain sufficient retraining to perform some less physically intensive nursing positions, there is no guarantee that such scenario will occur in the foreseeable future. Even with claimant's voluntary retraining efforts, her ability to compete for future employment is tenuous and to date has been unsuccessful, even with defendant-employer. It is therefore concluded claimant has sustained an injury which permanently disables her from performing work within her experience, training, education, and physical capacities. Claimant shall be compensated with permanent and total disability benefits for the period of her total disability.

AGENCY APPEAL

DAVIS v. KATHY'S TREE & STUMP REMOVAL, 5040858 (5-19-14)

Claimants appeal from an arbitration decision in which the deputy found that an uninsured employer-defendant, Kathy K. Goff f/k/a Kathy K. Alder d/b/a Kathy's Tree & Stump Removal, had proven that claimant's claim for benefits was barred under the Iowa Code section 85.16(2) intoxication defense. REVERSED.

There are conflicting opinions regarding the asserted intoxication of claimant on the date of the work accident. However, both experts agree that drug concentrations alone cannot be used to determine whether claimant was suffering from impairment at the time of her work injury. The urine and hair samples resulted in test results that were contradictory and insufficient for such a showing of either intoxication or impairment on the date of her accident. It is concluded that there is scant and unreliable evidence that Davis was acting with a lack of judgment and cognitive functioning at the time of her injury. Rather, it is concluded that claimant was performing dangerous and fast-paced work as she had done many days previously when the rope she routinely used became accidentally entangled in limbs and was fed into a chipper causing her to be violently thrown against the chipper table.

AGENCY APPEAL

ATWOOD v. JOHN MORRELL & CO., 1252548 (5-13-14)

Claimant asserts on appeal that the presiding deputy erred in failing to approve the partial commutation as the partial commutation is in the best interest of claimant. REVERSED.

Claimant's plans articulated by his father and his financial adviser are reasonable and leave claimant with more savings at the end of each month than his present circumstance. The plan would eliminate claimant's debts and interest charges and provide claimant with unencumbered real property that he would retain as an asset in addition to his monthly social security payment. The plan would also eliminate several costs currently incurred by claimant which have been discussed. More importantly, claimant would have the ability to purchase an annuity which would extend the time in which he could likely maintain a positive debt to income ratio and would provide a principal payout amount to claimant's two daughters should he be deceased prior to the value of the annuity. Such set-up would save claimant from the costs of term life insurance for a similar lump sum amount. While claimant was previously ill-served by conservators, it is apparent that his father and extended family are invested in claimant's well-being. Other than the fear of the deputy that claimant could cash out an annuity, it is quite obvious that partial commutation is in claimant's best interest. Moreover, the speculative possibility that claimant could at some later date sell his annuity to a third party in exchange for a limited lump sum is the focus for claimant's conservator and the district court to monitor, not this division.

AGENCY APPEAL

LEPLEY V. TAYLOR INDUSTRIES, INC., a/k/a HUSSMANN CORPORATION, 5041518 (5-7-14)

Claimant appeals from an arbitration decision in which the deputy found that he had failed to prove the injury to his right shoulder arose out of his employment duties with defendant-employer. Claimant asserts on appeal that the greater weight of the evidence supports a finding of causation on the right shoulder. REVERSED.

Taking all of the facts into consideration, the substantial evidence supports a finding that claimant's right shoulder injury is related to the work fall, either because of a twist or tear that occurred on that date or due to overuse of the left shoulder. Either one is a plausible explanation for claimant's right shoulder injury. That claimant spontaneously developed the full thickness tear in the subscapularis and the supraspinatus tendons is the least believable scenario.

Claimant has returned to work and therefore would not be entitled to any award at this time. We cannot award benefits prospectively other than to remind the parties that if an injury is compensable, as it is found to be in this case, then claimant would be entitled to temporary benefits when and if he would be out of work due to medical issues.

It is concluded the preponderance of the evidence supports that claimant has not reached MMI and would benefit from further medical treatment for both shoulder conditions. Additional treatment and payment of medical bills can be ordered at this time. GERRISH-LAMPE

AGENCY APPEAL

EVEN v. CROSS LAW FIRM, 5042342 (5-5-14)

Claimant appeals from an arbitration decision, and subsequent rehearing decision, in which the deputy found that claimant sustained a 30% PPID resulting from her stipulated workplace injuries. MODIFIED.

claimant was working at the Cross Law Firm in Hampton, Iowa. She delivered documents to the local county clerk's office. As she returned to the law firm's office she slipped on some ice and fell injuring her low back. About a month later, she was traveling from her home to attend a physical therapy session related to her initial injury. She was struck by another vehicle in what appears to be a relatively high speed collision, and was diagnosed with a cervical strain. Since the motor vehicle accident, claimant also experienced increased back pain, hip pain, and shoulder pain.

Having considered claimant's age, educational background, employment history, physical situs of her injury, her inability to return to full time work after the injury, her motivation level, her permanent impairment rating, as well as her ability to retrain and all other industrial disability factors identified by the Iowa Supreme Court, it is concluded claimant has sustained a 55% PPID.

SUPREME COURT

HAGEN v. SIOUXLAND OBSTETRICS & GYNECOLOGY, P.C., 13-1372 (5-9-14) Wrongful Termination/Whistle Blower

Certified questions from the United States District Court for the Northern District of Iowa concerning a claim for wrongful discharge from employment in violation of public policy.

Certified Question 1: Does Iowa law recognize any of the following conduct as protected conduct on which a doctor-employee can base a claim for wrongful discharge in violation of Iowa public policy?:

(a) A doctor reporting, stating an intention to report, or stating that he might report, to a hospital, conduct of nurses that the doctor believed may have involved wrongful acts or omissions;

(b) A doctor disclosing to a patient or a patient's family that the patient may have been the victim of negligent care or malpractice; or

(c) A doctor consulting with an attorney, stating an intention to consult with an attorney, or stating that he might consult with an attorney, about whether another doctor or nurses had committed wrongful acts or omissions that the doctor should report to the Iowa Board of Medicine or a hospital.

Because a negative answer to the first question would be dispositive of the case, we will not answer the second or third certified question when the court is equally divided on the answer to the first 3 certified question.

We return the questions to the Federal District Court for the Northern District of Iowa without answers. ANSWERS TO QUESTIONS DECLINED. UNPUBLISHED.

COURT OF APPEALS

FEDERAL EXPRESS CORP. v. MASON CITY HUMAN RIGHTS COMM'N, 13-0258 (4-30-14) NOT a workers' compensation claim.

Johnson appeals from the district court's ruling on petition for judicial review, which held the Mason City Human Rights Commission's decision that Johnson was discriminated against, retaliated against, and constructively discharged by her employer, Federal Express, was not supported by substantial evidence. OPINION HOLDS: The district court's decision was thorough, well-researched, and well-reasoned. After review of the record as a whole, applying the proper standard of review, we, like the district court, conclude that substantial evidence does not support the Commission's findings and that the decision is irrational.

Johnson was diagnosed with multiple sclerosis. Although it is not disputed that she was fully able to perform the functions of the swing driver position without accommodation, she sought a set route position because she and her physician thought it would be better for her. There are four instances in which Johnson sought or thought she should be able to seek to change positions or bid on a route that might meet her desired accommodation. On none of the four occasions did Johnson obtain a different position or successfully bid on a route. She was precluded from applying for a position or bidding on a route because she had an active warning letter in her file. On the one instance a route became available for bid to those with an active warning letter or letters, Johnson declined to bid on the position and instead took medical leave. There was no showing of pretext.

AGENCY APPEAL

TRUOG v. HCR MANORCARE, INC., 5041237 (4-30-14)

Claimant asserts on appeal the presiding deputy commissioner erred in failing to find that his fall and subsequent injury arose out of his employment and resulted in disability. AFFIRMED.

In this case claimant clearly established that he was in the course of employment as his injury occurred on the premises of defendant-employer at a time claimant was clearly working for defendant-employer. Claimant asserts that the premises rule further applies to the analysis as to the "arising out of" element of his claim. That is incorrect.

Claimant failed to sustain his burden to show that the injury did not just coincidentally occur while he was at work, but that the injury was in some way caused by or related to his work environment. The versions of how the injury occurred changed repeatedly &endash; even if the specific facts which were altered were ultimately immaterial to the underlying claim.

The first mention of any defect as to the sidewalk contained in the medical records is not until claimant was seen for an independent medical examination with a doctor that he selected.

Given the inconsistencies in claimant's testimony and the testimony of the eyewitness it is found that claimant has not proven by credible testimony that his injury arose out of his employment. Despite the fact that claimant was still within the zone of employment the claim is found to be not compensable due to claimant's inconsistencies as to whether his knee simply gave out, which would not be a compensable event, or whether the injury was caused by an incline or defect in the walking surface which would allow compensability.

AGENCY APPEAL

SHARIFF v. KRAFT FOODS, INC., 5037146 (4-30-14)

The primary issue for consideration on appeal is whether the presiding deputy commissioner erred in finding claimant had failed to prove he sustained disability resulting from his stipulated work injury. REVERSED.

Defendants' authorized treating physician openly shares his belief that claimant's assertion of eligibility for coverage under workers' compensation following a stipulated motor vehicle accident is workers' compensation fraud. It must also be noted that this contested appeal is quite likely the first time where it has been clearly proven that an occupational medicine doctor actually lobbied a medical specialist to change his opinion in a manner favorable to an employer and thus directly interfere with the specialist's recommended and authorized treatment of the work injury which had been voluntarily accepted by the employer and insurer.

While this is acceptable practice by a defense attorney, a claims adjuster, or a qualified workers' compensation representative, it is not acceptable practice by a physician who is to place his patient's medical treatment as his foremost concern and provide reasonable and necessary medical treatment pursuant to § 85.27. While the treating physician certainly had the right, perhaps even an obligation, to inform the employer of his opinions. What they would do with his opinions should not be of particular concern to the physician, unless further treatment would harm claimant. In a workers' compensation context, such advocacy is permissible by a physician employed for that purpose by an employer or insurer, but this is not be permissible for a physician employed to treat a work injury.

The treating physician has a significant and professional history of providing objective medical opinions before the division and this decision is limited to the record of his interactions in this particular case.

Citation is also provided to another recent appeal decision of this division in which the treating physician was found to have unreasonably interfered with an injured worker's attempt to obtain treatment from a medical specialist. See, Burkholder v. City of Davenport, 5032613 (App. December 2013).

Troubling from review of this record are actions of the medical care professionals who attempt to judge the overall validity of a contested workers' compensation case - as opposed to providing medical opinions upon which the legal determinations of compensability can be made by the insurance carrier and perhaps ultimately this division. Physicians lack training to make legal determinations as to causation or the arising out of element in workers' compensation claims.

AGENCY APPEAL

DELIRE v. KEY CITY TRANSPORT, INC., 5038022 (4-17-14)

Defendants assert that the presiding deputy incorrectly found claimant's average weekly wage to be $1,494.26. In reviewing the issue of claimant's average weekly wage and corresponding weekly compensation rate it is noted that claimant worked for Key City for only three weeks and two days prior to the injury, thus complicating the task of the division to provide a representative compensation rate.

The record does not contain any weeks which are actually representative of claimant's earnings. Nor does the record contain evidence of the earnings of employees in a similar occupation.

This is an extremely fact specific case in which the undersigned must use his expertise and specialized knowledge to evaluate the best available evidence to determine claimant's average weekly wage. Based on the testimony of the parties at hearing it is concluded that claimant's weekly compensation rate should be based on an annual income of $70,000.00 which results in an average weekly wage of $1,346.15. The parties stipulated that claimant is single and entitled to one exemption for rate purposes. Therefore, it is concluded that claimant's weekly compensation rate is $748.78. The arbitration decision is therefore amended solely as to the issue of claimant's weekly compensation rate.

COURT OF APPEALS

MARTEN TRANSPORTATION v. BOWES, 3-1217 / 13-0538 (4-16-14)

Bowes appeals from the district court's reversal of the workers' compensation commissioner's grant of benefits. Bowes contends the district court improperly found the commissioner applied the "odd-lot" doctrine. Ace American Insurance Company (Ace) and Marten Transportation, LTD (Marten) cross-appeal, arguing the commissioner improperly found Bowes was completely disabled and improperly determined Bowes' injury arose out of a 2009 work incident. OPINION HOLDS: The odd-lot doctrine was not applied by the commissioner and we do not have jurisdiction to address the merits of Ace and Marten's cross-appeal. We remand to the district court to address the causation and industrial disability issues raised on Ace and Marten's cross-appeal. REVERSED AND REMANDED WITH INSTRUCTIONS.

COURT OF APPEALS

STARK v. LAUTERWASSER, 3-1114 / 13-0609 (4-16-14)

This case asks us to decide if the workers' compensation commissioner properly concluded an injured carpenter was working as an employee, and not an independent contractor, of a construction company and therefore was eligible for benefits. OPINION HOLDS: Because substantial evidence supports the commissioner's fact findings, and his application of the law to those facts was not "irrational, illogical, or wholly unjustifiable," we reverse the district court and remand for determination of the remaining issues. (This decision discusses the factors considered to distinguish between an "employee" and an "independent contractor." See, also, Independent Contractor.

COURT OF APPEALS

HENRICKSON v. IHLE TRUCKING, 13-1114 (4-16-14)

An employee appeals from a district court ruling upholding the Iowa Workers' Compensation Commissioner's award limiting the employee's claim to a scheduled member loss. OPINION HOLDS: We find the district court identified and thoroughly considered each of the issues raised now on appeal, and we agree with its well-reasoned findings and conclusions. Because we conclude that a full opinion by this court would not augment or clarify existing case law, we affirm the district court's ruling without further opinion pursuant to Iowa Court Rule 21.26(1)(b), (d), and (e) (2014).

COURT OF APPEALS

CARGILL MEAT SOLUTIONS CORP. v. DELEON, 4-64 / 13-1266 (4-16-14)

Defendants appeal the district court's ruling on judicial review, which affirmed the Commissioner's award of benefits. Cargill contends the commissioner's determination that Deleon was permanently injured due to a work accident and the subsequent award of permanent total disability was based on an unreliable expert opinion. OPINION HOLDS: Because we find the commissioner's award is the result of a decision process in which the important and relevant matters were considered, and because we find it is supported by substantial evidence in the record when the record is viewed as a whole, we affirm. Dr. Hines' opinion was based both on prior medical records and a physical examination of DeLeon. It is not the role of the court to reassess the evidence or make its own determination of the weight to be given the various pieces of evidence.

COURT OF APPEALS

KOLLASCH v. HORMEL FOODS, 4-066 / 13-1416 (4-16-14)

Kollasch appeals the district court ruling on his presentation of a workers' compensation settlement agreement for entry of judgment. Kollasch contends the district court failed to convert the language agreed upon by the parties into a judgment and exceeded its jurisdiction by modifying the language of the agreement. Kollasch also contends the district court erred by failing to assess court costs. OPINION HOLDS: We find the district court properly construed the language of the agreement. The district court's carefully defined role is to explain the meaning of the terms of the award without overstepping by reviewing, reversing, or modifying the award. Where the district court merely explains what is found in the award as approved by the workers' compensation commissioner, but does not alter the terms of the award, there is no error. As otherwise stated by our supreme court, the district court may construe the award, but may not expand upon it. We also affirm the district court's decision not to assess court costs to Hormel Foods. 

AGENCY APPEAL

BAKER v. BRIDGESTONE/FIRESTONE, 5040732/5040733 (3-27-14)

Claimant asserts on appeal that his claim is not barred by the provisions of § 85.26(1), statute of limitations, as the discovery rule should be applicable despite the traumatic nature of his injury.

Claimant strongly asserts that the division precedent in Clark v. City of Spencer, File No. 5017329 (App. September 11, 2007) as to the (lack of) applicability of the discovery rule in traumatic injury cases be reversed. Claimant provides citation to a persuasive decision of the Iowa Supreme Court in Ruud v. Midwest Ambulance Service, 754 N.W.2d 860 (Iowa 2008) in which the discovery rule was applied in a shoulder dislocation injury claim, thus extending the statute of limitations. Claimant also cites to Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256 (Iowa 1980) in which the Iowa Supreme Court applied the discovery rule to an injury certainly traumatic in nature. Defendants assert that the decision in Ruud is fact specific and is more persuasive as to the necessary deference a court must provide to an agency on judicial review.

When considering the arguments of claimant it is evident that traumatic injuries commonly fail to be instantly disabling or otherwise have an immediate significant impact on employment. Recognition of such could invite application of the discovery rule to such injury claims. The undersigned is, however, unwilling to provide such application of the discovery rule and overturn the prior holding of the division in Clark v. City of Spencer.

AGENCY APPEAL

BROWN v. CTI READY MIX, 5038772 (3-27-14)

The deputy ordered that "claimant is not entitled to reimbursement of the second IME." The record does not support such an order as claimant sought payment of one IME, not two &endash; seeking reimbursement of the costs of an IME with Dr. Jacqueline Stoken. There was a discussion at the arbitration decision prior to the commencement of testimony regarding whether claimant was entitled to full reimbursement for one IME which includes an examination of both the right and left shoulders or whether the reimbursement is limited to only the portion of the IME dealing with the right shoulder.

The arbitration decision finds, and it has been affirmed on appeal, that claimant sustained injury to both his left and right shoulders. Defendants have already compensated a portion of the IME costs with Dr. Stoken relating to the right shoulder injury. There is no argument remaining that claimant has not met the initial threshold of seeking an examination pursuant to § 85.39, as the timeliness issue is apparently stipulated as shown by defendants' prior partial reimbursement. Claimant petitioned his claim for both left and right shoulder injuries and was successful in proving a bilateral shoulder injury. Even if claimant had not ultimately prevailed on the left shoulder injury, claimant's IME costs are clearly the responsibility of defendants pursuant to Dodd v. Fleetguard, Inc., 759 N.W.2d 133, 140 (Iowa App. 2008). As such, claimant has proven that defendants are responsible for the entire costs of Dr. Stoken's IME as set forth by statute. The arbitration decision is therefore modified to award the full cost.

COURT OF APPEALS

DES MOINES ASPHALT & PAVING v. GOMEZ, 4-063 / 13-1160 (3-26-14)

Employer and its insurer appeal from a district court ruling upholding the Iowa Workers' Compensation Commissioner's award of permanent total disability benefits for an employee's mental injury. OPINION HOLDS: Gomez was assaulted by a co-worker while at a job site. He was subsequently treated by various doctors and diagnosed with, among other things, post-traumatic stress disorder (PTSD). We find the district court identified and thoroughly considered each of the issues raised now on appeal, and we agree with its well-reasoned findings and conclusions. Because we conclude that a full opinion by this court would not augment or clarify existing case law, we affirm the district court's ruling without further opinion pursuant to Iowa Court Rule 21.26(1)(b), (d), and (e) (2014).

AGENCY APPEAL

SHERRICK v. WEST DES MOINES SCHOOL DISTRICT, 5041403 (3-24-14)

Claimant asserts the presiding deputy commissioner erred as to the extent of his loss of earning capacity and as to the commencement date of his PPD.

The statutory provision of § 85.34(2) requires compensation for PPD to be payable at the time the injured worker's HP ends. That date is identified by the definition in the first sub-section. The first day after claimant's date of injury is August 13, 2010. Claimant was immediately returned to work after his injury and therefore had no lost time. Pursuant to the plain language of § 85.34, claimant's PPD benefits were to commence on August 13, 2010. It is so ordered.

The statute does not recognize an exception for situations in which a diligent defendant-employer (as is evident herein) commences benefits at the time of MMI after appropriately providing authorized care and performing a proper claim investigation. The statutory language envisions that the compensation benefits were owed to claimant on the day after the work injury and when benefits are delayed due to ongoing medical treatment, the defendant-employer shall be liable for interest during the time when benefits were owed and the subsequent date when they were paid. While defendant presents a persuasive argument for an alternate commencement date, that date is not supportable under the statute. AFFIRMED & MODIFIED.

AGENCY APPEAL

GIESE v. CNH AMERICA, LLC, 1282970 (3-18-14)

Defendants appeal from an arbitration decision, in which the deputy found a partial commutation previously awarded should be calculated from the date of the deputy-level commutation decision as opposed to the date of the subsequent appeal decision due to the specific language of the appeal decision order.

Typically appeal decisions of the division in which partial commutation of an award is ordered contain the following language within the award to make a specific new order for commencement of the award:

Defendant[s] shall pay claimant a lump sum payment of future weekly benefits, except for the final week, as set forth in claimant's petition for commutation, discounted to the present value based on the number of weeks to be commuted and the interest rate for determining the discount as of the date of this decision. Weekly benefits will resume if claimant is still living at the end of his/her life expectancy per the tables.

While defendants are correct that the commencement of the commutation award in the appeal decision should have been the date of filing of the appeal decision, there is no present basis for the division to alter the law of the case through the present appeal. AFFIRMED.

AGENCY APPEAL

SMITH v. MONSANTO, 1254092 (3-18-14)

The primary issue considered upon appeal is whether claimant's previously determined pulmonary/lung condition which had rendered him permanently and totally disabled constitutes a substantial contributing factor in his death, thus entitling Regina Smith to survivor benefits.

To arrive at the original decision on the medical and disability claim, the division had to determine if the workplace exposure to dust and other fumes was a cause or significant contributor of his lung condition and emphysema. In a subsequent appeal decision from a deputy level review-reopening decision, there was an added finding of a causal link of the work injury to claimant's worsened lung condition and worsened emphysema at that time. Consequently, defendants now can only challenge the causal link between claimant's lung condition and his death the only means of such re-litigation is to file a petition to vacate the decision pursuant to IRCP 1.1012 - and according to IRCP 1.1013(1), the petition must be filed within one year of the decision.

The views of Dr. Kuhnlein and Dr. Cosmic also make reference to an issue of whether the occupational exposure was the "predominate" cause of his death. Quite frankly, such opinions are irrelevant to a determination in the present matter in that claimant in this case need only establish and prove that his occupational exposure was a proximate cause of claimant's death. It is well-established in Iowa that a cause is "proximate" when it is a "substantial factor" in bringing about that condition. It need not be the only causative factor, or even the primary or the most substantial cause to be compensable under the Iowa workers' compensation system.

Regina Smith, is entitled to weekly death benefits from the date of the death of Michael L. Smith and continuing thereafter for the remainder of her life or until her remarriage. REVERSED.

COURT OF APPEALS

SULLIVAN v. CUMMINS FILTRATION-LAKE MILLS, 3-1170 / 13-0658 (3-12-14)

Sullivan appeals the district court ruling on her petition for judicial review. Sullivan claims the workers' compensation commissioner misapplied the Iowa successive-disability statute, and did not properly summarize the evidence and explain the agency's decision-making process. Sullivan also contends the commissioner erred by denying her application for alternative medical care. OPINION HOLDS: We find the successive-disability statute is inapplicable to this case because Sullivan failed to prove a permanent partial disability and accordingly there is no successive disability under the statute. We also find the commissioner's findings of fact and conclusions of law were sufficiently separated to allow us to reconstruct the commissioner's reasoning on appellate review. Because we find there is no disability, an award of alternative medical care is not available. We affirm.

SUPREME COURT

MIKE BROOKS, INC., and GREAT WEST CASUALTY CO. vs. JAMES DAVID HOUSE, 13-0303 (3-7-14)

An employee seeks further review of a court of appeals decision reversing a district court ruling upholding the Iowa Workers' Compensation Commissioner's award of PTD benefits for an employee's back injury. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

House presented the opinions of two medical experts, each of whom concluded House's back injury and all subsequent treatment and surgeries were causally related to the slip-and-fall incident of March 7, 2007.

The commissioner found the expert medical opinions of Dr. Hatfield and Dr. Kuhnlein convincing on the issue of medical causation. Even assuming Dr. Hatfield was unaware of the later incident, the commissioner could find on this record that Dr. Kuhnlein's opinion on causation was based on a thorough independent physical exam and review of House's medical and employment history including the later incident. The commissioner considered all of the expert medical opinions "together with all other evidence introduced bearing on the causal connection between the injury and the disability."

Accordingly, we conclude substantial evidence amply supports the causation finding actually made by the commissioner, and we are not at liberty to disturb it on the ground the evidence could support a different determination.

AGENCY APPEAL

GOMEZ v. DES MOINES ASPHALT & PAVING, 5034039 (3-5-14)

Defendants assert on appeal that the presiding deputy commissioner erred in finding a partial commutation is in the best interest of claimant due to the uncertainty of his debts and the questionable nature of his plans for investment. Defendants further assert the matter should have been stayed pending further action upon defendants' petition for judicial review pending before the Iowa Court of Appeals.

The proper venue for seeking stay of further division action on this claim pending judicial review was with the Iowa District Court. The division has jurisdiction to proceed with further activity in this matter pending an order of the district court. As no stay has been entered pursuant to § 86.26 the presiding deputy commissioner did not err in his denial of a stay within the division or in issuing a partial commutation decision. AFFIRMED.

AGENCY APPEAL

VAZQUEZ v. JOHN MORRELL & CO., 5037850/5039388 & 5039389 (3-3-14)

The deputy commissioner issued a four-page decision involving three contested-case petitions involving numerous contested issues for resolution.

The arbitration decision does not provide a sufficiently-detailed path to the broad conclusion that claimant had been paid all permanency owed on the three files - when the evidence contained in the record quite starkly points to a new injury to claimant's right shoulder of February 2, 2010. Administrative findings of fact must be sufficiently certain to enable a reviewing court to ascertain with reasonable certainty the factual basis on which the administrative officer or body acted. REMANDED to make more specific and supported findings, to provide analysis necessary for conclusions of law, and to rule upon the issues presented in claimant's application for rehearing specifically relating to claimant's present disability resulting from his right shoulder condition. The presiding deputy commissioner shall include within the remand decision a finding as to the taxation of costs, including the costs associated with preparation of the hearing transcript.

AGENCY APPEAL

OKIC v. WAL-MART STORES, INC., 5041759/5041760 & 5041646 (2-28-14)

The primary issue of contention on appeal is whether claimant's stipulated work injuries on January 26, 2012 or May 28, 2012 substantially aggravated claimant's preexisting conditions resulting in temporary or permanent disability.

From a review of the medical opinions of Dr. Yankey, Dr. Quam, and Dr. Wolfe in conjunction with the testimony provided at hearing and the various exhibits it is concluded that claimant has proven by a preponderance of the evidence that her stipulated work injury of May 28, 2012 resulted in a substantial aggravation or worsening of her preexisting conditions as set forth by Dr. Wolfe. While claimant claimed an injury in January 2012 lifting a heavy bag, that injury did not preclude claimant from all work at Wal-Mart or produce her present activity limitations. The May 28, 2012 injury in which she fell to the ground resulted in a more significant and apparent injury.

The preponderance of the evidence previously discussed supports the conclusion that claimant is not yet at MMI and that further pain management and other treatment is reasonable.

The final issue for consideration on appeal is the reasonable fee allowable for the costs of Dr. Wolfe's IME of claimant pursuant to § 85.39.

The deputy commissioner limited the reimbursement of Dr. Wolfe's fee by subtracting out the fee itemized for a medical record review, finding such review an unreasonable charge. When considering the contentions of the parties, it is evident that Dr. Wolfe was reasonable in reviewing claimant's extensive medical record history. When considering the status of her preexisting conditions and whether her condition had been substantially aggravated, it is certainly reasonable if not fully necessary to review and abstract claimant's prior medical records. Failing to do so would have at least lessened the credibility of the medical opinions of Dr. Wolfe, if not making them fully incredible. The division precedent supports an order of reimbursement for the medical record review associated with a section 85.39 examination. REVERSED.

AGENCY APPEAL

HANSON v. TARGET CORPORATION, 5040287 (2-26-14)

Claimant appeals. It is clear that Dr. Risk was aware of surveillance evidence, although the extent of his awareness is not clear, and Dr. Risk's awareness did not result in the doctor altering his strict work restrictions. It is noted that the record does not appear to answer whether Dr. Risk reviewed all of the surveillance evidence or whether claimant told him that such evidence existed. What is clear is the actual reasoning of the deputy is not technically accurate as to the basis for discounting the weight provided to the testimony of Dr. Risk. As claimant's credibility is a key - if not the sole key - issue in this case and due to the deputy's prior in-person observation of claimant's testimony in context with the entire record as a whole, this matter must be remanded to the presiding deputy commissioner for clarification and further findings. REMANDED.

AGENCY APPEAL

MEREDITH v. WAL-MART STORES, 5038126 (2-26-14)

Defendants concede that while lay testimony can bolster a disability finding, they strongly assert that the facts of this case are insufficient for a disability finding of 50 percent loss of use. There is no convincing lay evidence upon which to increase claimant's loss of use of his right lower extremity beyond the two percent impairment rating already paid by defendant-employer and its insurance carrier - and certainly no evidence herein for a finding of a 50 percent loss of use of the extremity.

The presiding deputy commissioner discounted the severity of the prior injury and found that while Dr. Stoken assessed a five percent impairment rating the deputy noted the doctor "does not indicate what this rating is for." The finding of the deputy commissioner cannot be affirmed. Dr. Stoken cites to the specific tables of the AMA Guides used in the calculation of her impairment rating. Further, Dr. Stoken identified a history of direct trauma, complaint of patellofemoral pain, and crepitation as noted upon her physical examination. Minus some evidence to rebut the examination findings of Dr. Stoken, her well-reasoned and detailed opinion cannot be summarily rejected. Claimant has proven by a preponderance of the evidence that he sustained a first-qualifying injury for purposes of the Fund. REVERSED in part & REMANDED in part.

 

COURT OF APPEALS

CARE INITIATIVES v. HOFFMAN, 3-1119 / 13-0748 (2-19-14)

Care Initiatives appeals from a district court decision affirming the workers' compensation commissioner's ruling that Bonnie Hoffman is permanently and totally disabled. Care Initiatives contends there is not substantial evidence to support the commissioner's finding; the commissioner's decision was based upon an irrational, illogical, or wholly unjustifiable application of the law to the facts; and the commissioner's decision was an abuse of discretion. Care Initiatives also argues the deputy commissioner's findings of fact are entitled to consideration upon judicial review. OPINION HOLDS: We review the decision of the commissioner as a final decision of the agency. However, the deputy commissioner's factual findings are entitled to consideration upon judicial review. Accordingly, upon our review, we find the commissioner's decision was based up substantial evidence in the record and was not irrational, illogical, or wholly unjustifiable; nor was it an abuse of discretion.  Therefore we affirm the commissioner's decision awarding Hoffman permanent total disability benefits.

COURT OF APPEALS

PLUMROSE USA v. HATHAWAY, 3-1111 / 13-0495 (1-23-14)

Employer appeals the district court's affirmance of the Commissioner's decision awarding an employee temporary disability and permanent disability benefits. The employer argues the commissioner's finding that the employee's need for a total knee replacement arose out of and in the course of his employment is not supported by substantial evidence. OPINION HOLDS: Substantial evidence supports the commissioner's determination that a work injury aggravated a preexisting condition requiring a total knee replacement and that disability benefits were payable. AFFIRMED.

COURT OF APPEALS

WEITZ COMPANY v. SELIN, 3-1075 / 13-0939 (1-23-14)

Weitz appeals the district court order affirming the workers' compensation commissioner's award of additional medical expenses for a hip and back injury. Weitz argues the claimant failed to show the injuries were causally connected to the workplace, and as a result certain medical expenses were unauthorized. OPINION HOLDS: We find substantial evidence supports the decision of the commissioner concerning additional care of the hip. However, we find Weitz has failed to preserve error on authorization of additional care for the back injury. AFFIRMED.

COURT OF APPEALS

LARSON MANUFACTURING v. WANDER, 3-1069 / 13-0567 (1-23-14)

Defendants appeal from the denial of their petition for judicial review of the workers' compensation commissioner's award of benefits to Allen Wander. Defendants argue substantial evidence does not support a finding of medical causation and the acting commissioner's application of law to the facts was irrational, illogical, or wholly unjustifiable. OPINION HOLDS: The agency's findings of fact are supported by substantial evidence and the agency's application of law to the facts was not irrational, illogical, or wholly unjustifiable. AFFIRMED.

AGENCY APPEAL

CLARK v. PARKVIEW CARE CENTER, 5040296 (1-22-14)

Defendants' assertion that Dr. Neiman's opinion is flawed due to failing to review an actual MRI is rejected. As the presiding deputy noted, Dr. Neiman evaluated claimant and documented physical changes including foot drop symptoms consistent with spinal impairment. The restrictions of Dr. Neiman appear consistent with the diagnosis and significantly preclude claimant from her prior vocational pursuits. AFFIRMED.

AGENCY APPEAL

JACKSON v. UNITED PARCEL SERVICE, 5040135 (1-17-14)

The dispute herein is a legal determination of whether claimant's act of walking while performing his employment duties resulted in the left knee injury, or whether the left knee injury merely occurred at work without a connection to his employment duties. Defendants assert that claimant's injury occurred while he was merely walking across a level concrete surface and that his injury could have occurred while claimant was walking anywhere. Claimant asserts that he was walking for 45 minutes in a careful and deliberate manner on a snowy and uneven surface in inclement weather making his work duties an actual risk of employment resulting in his knee injury.

Having reviewed the evidence in this matter it is determined that the unrebutted medical opinions of Dr. Crites and Dr. Bansal support the conclusion that claimant's careful walking on his previously repaired left knee while being mobile as a part of his employment duties in the winter weather conditions in the paved truck lot directly resulted in his left patellar fracture. Defendants provided no medical opinion to rebut these opinions.

The denial letter sent by Gallagher Bassett fails to set forth facts upon which the commissioner could reasonably find that the claim was "fairly debatable." This letter was also sent some seven weeks after the injury. While it does appear that defendants investigated whether walking was a sufficient mechanism of injury to cause a patellar fracture, that inquiry occurred well after the form denial letter was sent. As such, it cannot be found that defendants' investigation of this matter was contemporaneous in nature. A penalty is in order. Deputy denial of benefits REVERSED.

SUPREME COURT

OSMIC v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, 12-1295 (1-10-14) (NOT a workers' compensation decision.)

We must decide whether a policy provision limiting the time to file an action to recover underinsured motorist's benefits is binding on a passenger who was injured while riding in the named insured's vehicle. The passenger brought this action approximately one month after the deadline set forth in the policy, which required suit to be commenced "within two years after the date of the accident."

We conclude the passenger, as an insured and a third-party beneficiary of the policy, does not have greater rights than the policyholder. Thus, the passenger cannot avoid the contractual time limitation unless the policyholder under similar circumstances would have been able to avoid it. Because the record, when viewed in the light most favorable to the passenger, does not demonstrate either that the policy's time limit was unreasonable or that the insurer should be equitably estopped from enforcing it, we hold the insurer's motion for summary judgment should have been granted. Accordingly, we vacate the decision of the court of appeals, reverse the order of the district court, and remand for entry of summary judgment in favor of the insurer.

AGENCY APPEAL

ZESCH v. FISHER CONTROLS/EMERSON PROCESS MANAGEMENT, 5039320 (1-10-14)

Defendants assert on appeal that the presiding deputy commissioner erred in failing to grant a credit of 25 weeks of PPD pursuant to §85.34(7). Claimant asserts an apparent due process claim that he would be prejudiced by consideration of the §85.34(7) claim as he would have presented his case differently had such issue been timely raised at arbitration.

Review of the hearing order signed by the deputy commissioner fails to show that defendants sought a credit pursuant to §85.34(7). Defendants' assertion that the hearing report and order does not provide a location to preserve the issue of such credit is rejected. The hearing report and order clearly provides sufficient space for all other disputed issues not otherwise specifically included on the form document. Review of the hearing transcript memorializes the deputy's exhaustive recitation of issues presented for consideration by the parties. Defendants were directly asked if they intended to present any issues not listed on the hearing report and order to which they failed to assert a credit claim pursuant to §85.34(7). The presiding deputy commissioner did not err in refusing defendants' application for rehearing for the reasons set forth herein. AFFIRMED.

COURT OF APPEALS

WAL-MART STORES v. HENLE, 3-913 / 13-0366 & 3-1071 / 13-0721 (1-9-14)

Wal-Mart contests the district court's entry of judgment under § 86.42 (2011) and its refusal to grant a stay of execution or enforcement of the commissioner's award of benefits during the pendency of the judicial review. Wal-Mart also seeks to reverse the judicial review order affirming the workers' compensation commissioner. OPINION HOLDS: Because the district court properly entered judgment under § 86.42 and substantial evidence supported the award of PTD, we affirm.

COURT OF APPEALS

GITS MFG. CO. v. FRANK, 3-1023 / 13-0665 (1-9-14)

Defendants appeal from the district court's judicial review decision, which affirmed the award of PTD to Frank. Defendants assert Frank failed to meet her burden of production when she failed to offer evidence of her efforts to find employment or other evidence of her inability to work. In addition, they assert Frank did not provide evidence to prove she repaid LTD benefits after she was awarded SSDI. Frank cross-appeals the district court's judicial review decision, asserting the court erred in reversing and remanding the case to the agency on the issue of the amount of the employer's credit for disability benefits paid. Frank asserts the employer did not properly preserve error for this claim and substantial evidence supports the agency's decision on this point. OPINION HOLDS: Because substantial evidence does not support the agency's award of PTD benefits based on the odd-lot doctrine, we reverse the district court's judicial review decision on this issue and remand the case to the agency for a determination of Frank's PPID based on the existing record. We conclude the defendants did not preserve error on its claims regarding the amount of credit it is entitled to receive as a result of Frank's repayment of LTD benefits and the amount of state and federal tax Frank paid on the benefits. We reverse the district court's judicial review decision on these issues and remand the case for the district court to enter an order affirming the agency's decision. (See, round one, Court of Appeals, and later Supreme Court.)

AGENCY APPEAL

DAHN v. TYSON FOODS, INC., 5038545 (1-2-14)

Claimant's request for leave for an unrelated right knee condition does not negate the restricted duty status as to those conditions that expert found to be work related. As the deputy correctly noted in a rehearing decision, claimant is entitled to TTD benefits for the period stated in the arbitration decision because claimant was also receiving active treatment for his degenerative spinal condition which was temporarily aggravated by his work injury.

The award of medical care is specifically limited &endash; as set forth by the presiding deputy &endash; to include only those medical bills incurred to treat claimant's low back and left wrist conditions. Such medicals bills are the responsibility of defendant and shall be promptly paid by defendant and claimant shall be held harmless from such medical costs. AFFIRMED.

AGENCY APPEAL

ROWE v. JC PENNEY COMPANY, 5039636 (12-27-13)

It is concluded that the manifestation date of December 24, 2011 is incorrect. On April 6, 2010, claimant underwent the invasive Topaz procedure and was not returned to any work until May 27, 2010. These missed days of employment were subsequent to Dr. Henrich informing claimant that it was her workplace duties on her feet all day at J.C. Penny which were causing her pain and producing an aggravation of her condition. Therefore, as of April 6, 2010 claimant reasonably knew that her condition was serious, that it produced an extended HP (Not, PPD!) following invasive treatment, and that it resulted from her work duties. It is therefore concluded that claimant's injury manifested on April 6, 2010.

Claimant as a reasonable person should have recognized the seriousness and probable compensable character of her left foot injury at the time of her Topaz procedure when she missed approximately six weeks of work for a condition she had already been told by her physician was a work related condition. It is concluded, therefore, that claimant has failed to provide notice. REVERSED.

AGENCY APPEAL

THOMPSON v. MAIL CONTRACTORS OF AMERICA, 5039421 (12-26-13)

The finding as to the extent of claimant's loss of earning capacity is affirmed as claimant has sustained a significant, but not total loss of his earning capacity. At the time of the arbitration hearing in this matter claimant was employed in a driver position on an as needed basis for Karl Chevrolet. The employment position was a position he obtained in the competitive labor market, perhaps with assistance from his son. Regardless, claimant obtained and was capable of performing the driver position on the date of the arbitration hearing. The sporadic nature of that position is inherent in the position, not in claimant's ability to perform the work. There is no evidence that claimant would not be able to perform his driver duties on a daily basis if such work became available.

AGENCY APPEAL

ZARIFOVIC v. TYSON FRESH MEATS, INC., 5039423 (12-19-13)

The deputy found that a penalty was warranted as claimant was "issued a permanent restriction card, and that has not been revoked . . . given that claimant was given permanent restrictions, the delay and/or nonpayment of permanent benefits is not reasonable." While it is factual that claimant was issued a restriction card, three physicians opined that claimant had no ratable functional impairment pursuant to the AMA Guides, Fifth Edition. Moreover, claimant has consistently remained employed by defendant without a loss of actual income. While the preponderance of the evidence clearly establishes that claimant has a significant loss of her earning capacity, it was not unreasonable under the facts of this particular case for defendant to consider claimant's injury to have not resulted in a permanent disability. As such, the assessment of a penalty is stricken on appeal. The findings as to the extent of claimant's disability are affirmed.

AGENCY APPEAL

WORTHINGTON v. WESLEY HEARTHSTONE/WESLEY ACRES THE VILLAGE, 5037754/5037755 (12-19-13)

Claimant seriously injured her back just days prior to her alleged date of injury in the pending matter and this prior injury resulted in claimant missing several days of work and requesting a change in her job duties upon her return to work. The supportive medical opinions upon which claimant relies fail to acknowledge this significant prior event in addition to much of claimant's well-documented medical treatment for back and neck problems prior to her alleged injury date. DENIAL AFFIRMED.

AGENCY APPEAL

RAYMOND v. MENARD, INC. d/b/a MENARDS, 5039009 (12-18-13)

Defendants' assertion on appeal that claimant's deep vein thrombosis (DVT) is confined to the left lower extremity is specifically denied. The legal precedent and the factual findings in this record both support the presiding deputy commissioner's finding that claimant's injury extends into the whole body. The Iowa Supreme Court has long considered veinous injuries ("thrombophlebitis") to be whole body injuries compensated industrially. See Blacksmith v. All-American, Inc., 290 N.W.2d 248 (Iowa 1980). The division has likewise considered DVT to be a whole body injury. See Briggs v. Second Injury Fund, File no. 5024615 (App. December 4, 2009) citing Andrade v. IBP, Inc., File no. 5013872 (App. August 29, 2006). The division noted in Andrade:

Although claimant's current difficulties lie in the lower extremity, deep venous thrombosis is a disease of the vascular system which extends throughout the body as explained by Dr. Olivencia in his deposition as the formation of a clot in the deeper veins of the lower leg that can extend into the upper leg and even to the lungs, which could result in death. This is similar to regional sympathetic dystrophy, or what is now termed complex regional pain syndrome or phlebitis. Although the symptoms are located in an extremity, it involves the sympathetic system which extends into the whole body and as such it is a body as a whole injury. Collins v. Department of Human Services, 529 N.W.2d 627, 629 (Iowa App. 1995); Barton v. Nevada Poultry Co., 253 Iowa 285, 110 N.W.2d 660-664 (1961); (regional pain syndrome formerly called Sudeck's atrophy, causalgia or reflex sympathetic dystrophy (RSD); Blacksmith v. All-American, Inc., 290 N.W.2d 248 (Iowa 1980) (phlebitis). PTD AFFIRMED.

COURT OF APPEALS

MCCARTHY v. JELD-WEN, INC., 3-876 / 13-0636 (12-18-13)

McCarthy appeals from the Iowa Commissioner's finding that he is not PTD due to a respiratory injury and that his tinnitus did not arise out of his employment. Jeld-Wen, Inc. cross-appeals from the commissioner's decision, claiming McCarthy was not entitled to HP benefits, and the evidence does not support the commissioner's finding that he had an 80% PPID due to the respiratory injury. OPINION HOLDS: We AFFIRM the decision of the commissioner on the appeal and the cross-appeal. PARTIAL DISSENT ASSERTS: While I agree with the rest of the majority's conclusions, I do not believe substantial evidence supports the commissioner's finding of healing period benefits, and would reverse the award. (See, also, Deckert.)

AGENCY APPEAL

BURKHOLDER v. CITY OF DAVENPORT, 5032613 (12-13-13)

By failing to appropriately and promptly pay for the pain management which was purported to be authorized and by having such liability fall to claimant's private health insurance, defendant abandoned its authorized pain management treatment. Claimant has proven by a preponderance of the evidence that his authorized treatment provided by defendant was unreasonable. As defendant abandoned necessary diagnostic care and pain management medical care and billed claimant's private health insurance for care which was purported to be authorized, claimant was reasonable in obtaining his own necessary care. The care obtained by claimant was beneficial to his health and his pain management and therefore the findings of the presiding deputy commissioner as to the award of medical care costs and alternate medical care are affirmed.

COURT OF APPEALS

SEARLE PETROLEUM, INC. v. MLADY, 3-480 / 12-2008 (12-5-13)

Defendants appeal the district court's ruling denying its petition for judicial review filed after the workers' compensation commissioner awarded Gail Mlady PTD (up from 80% PPID) benefits based on Mlady's review reopening petition. The employer asserts on appeal the district court erred in a number of ways when it affirmed the agency's award. OPINION HOLDS: As we find substantial evidence supports the agency's decision that Mlady suffered an economic change in his condition and that this change has rendered him permanently and totally disabled, we affirm the district court's judicial review order affirming the agency's decision.  However, we reverse the district court's decision with respect to the awarding of the costs associated with Mlady's IME under § 85.39 (2011) because the statutory requirements (employer did not obtain rating during the review-reopening) for such an order were not satisfied, and we also reverse the agency's order that the PTD benefits are to commence as of the date of the injury. We remand the case to the district court to remand back to the agency for the entry of an order providing that the benefits should commence as of the date the review-reopening petition was filed

AGENCY APPEAL

KLINE v. ALLIANCE CONCRETE, 5034898 (11-27-13)

The deputy found that as a result of a work injury claimant sustained permanent impairment to his lower extremity, back, and neck and that claimant suffered from depression, anxiety, and CRPS causing a PTD.

Claimant asserts that the nature and extent of permanent disability as found by the presiding deputy should be affirmed on appeal. Claimant has cross-appealed to preserve the legal argument that he is an odd-lot worker if the finding of permanent and total disability is reversed on appeal. AFFIRMED.

AGENCY APPEAL

HARPER v. IOWA WORKFORCE DEVELOPMENT, 5040879 (11-26-13)

Defendants appeal from an arbitration decision, in which claimant was awarded 50% PPID for a right shoulder injury. Claimant has cross appealed that portion of the decision that denied benefits for an alleged back injury.

Although the arbitration decision does not specifically mention such facts as claimant not having a driver's license, claimant not showing good motivation to find work, and the fact claimant was found able to work in the medium category of work and not the light category of work, those facts are noted in this appeal decision and the award of 50% PPID is still found to be appropriate. Claimant has a significant rating of impairment, his education is limited, and he has work restrictions that would inhibit his ability to find employment.

Claimant has a significant intervening non-work injury to his back, which required an emergency room visit, and where claimant reported extreme pain. Although claimant does not have to show his current back condition is caused solely by his work injury, he bears the burden of proof to show by a preponderance of the evidence his current back condition is at least substantially caused by his work injury, and he has not done so.

The medical opinions supporting claimant are substantially diminished by the fact claimant did not report the intervening back injury to them. Claimant's dishonesty in not reporting the later back injury in interrogatories and at his deposition also contributes to the conclusion he has failed to show his current back complaints are caused by the work injury and not the later fall injury at the convenience store. Claimant has defeated his own case in this regard by withholding information that was necessary for his doctors to have. The greater weight of the evidence shows claimant's current back complaints are more likely caused by his later fall and back injury, and not the work injury.

AGENCY APPEAL

CROUSE v. FARMERS COOPERATIVE COMPANY, 5040184 (11-26-13)

Defendants assert on appeal that the deputy erred in finding claimant sustained a PTID, asserting that claimant has a retained earning capacity as set forth by defendants' vocational expert.

The deputy correctly found that although defendant-employer provides 4 hours of work per day for claimant, such work is not gainful employment and the limited duties performed by claimant would be subsumed by other employees as noted in the testimony that no other employee would be hired to fill the job duties performed by claimant should claimant cease employment.

The preponderance of the evidence supports a finding that claimant has sustained an injury which permanently disables him from performing work within his experience, training, education and physical capacities. AFFIRMED.

AGENCY APPEAL

RENN v. JOHN DEERE WATERLOO WORKS, 5037946 (11-25-13)

Defendant questions the objectivity of, as well as the accuracy of, the review of evidence performed by the deputy who rejected the medical opinions of Dr. Broghammer who asserts that disc herniations are generally chronic in nature and not likely to be acutely produced or substantially aggravated.

The deputy appropriately recognized and discounted the uncustomary medical opinions of Dr. Broghammer on the issue of causation. The deputy did not step into the role of a medical expert witness, as opposed to the proper role of an objective and impartial fact finder, merely due to her observation that the medical opinion diverged from the longstanding and well-accepted understanding of back injury workers' compensation claims. It was not improper for the deputy to note the deficiency of any supportive medical literature cited in the opinions of Dr. Broghammer, when judging the weight to afford his opinions. For the deputy to have accepted Dr. Broghammer's medical opinion as to causation of disc herniations, the deputy would not only have had to ignore the medical opinion of the board-certified, treating neurosurgeon but also overturn the decades of decisions of this division and the judiciary of Iowa who have recognized traumatically induced disc herniations and flare-up aggravations of pre-existing back injuries. AFFIRMED

AGENCY APPEAL

THOMAS v. MENARD, INC., 5039347 (11-25-13)

Defendants assert on appeal that the deputy erred in the calculation of claimant's AWW due to the inclusion of weeks into the benefit calculation which include both holiday and work hours.

The rate of compensation which is modified as set forth by defendants in summary of the actual wage records, which accurately utilizes representative weeks of claimant's earnings for a period of 13 weeks prior to her work injury without including weeks in which claimant's earnings were fully or partially comprised of holiday or vacation pay. The rate found by the deputy utilized weeks which were clearly not representative. MODIFIED as to RATE.

AGENCY APPEAL

BRANDT v. SIGNATURE PROPERTIES OF ESTHERVILLE, 5039224 (11-22-13)

While the facts on the question of whether claimant sustained a permanent disability prior to the report of Dr. Kuhnlein were limited and were unlikely to overcome the medical opinion of Dr. Hines, there were facts available upon which defendants could reasonably rely while continuing to investigate this matter. Once defendants' further investigation determined that permanent disability existed, payment for such disability was reasonably commenced. It is therefore concluded that the penalty assessment in the arbitration decision shall be stricken. On all other issues the arbitration decision is affirmed.

AGENCY APPEAL

JOSHUA v. JACOBSON STAFFING COMPANY, L.C., 5038877 (11-21-13)

The sole issue for consideration is the extent of claimant's loss of earning capacity - namely whether the 60% PPID award was excessive or insufficient.

Claimant has a significant, but not total loss of his earning capacity. Claimant can perform limited activities with the use of his non-dominant upper extremity to perform general maintenance work and it is also quite likely that claimant can return to a telemarketing type of position, if his concentration will allow such work. It appears on this record that it would. Claimant's lack of education is a hindrance to non-physical labor positions. Claimant's work injury greatly impacted claimant's physical abilities which had a devastating impact on the jobs for which claimant can compete, leaving only those few light demand level positions and those positions which do not require physical labor, a high school diploma, or other training. Based upon the factors of industrial disability set forth herein it is concluded that claimant has sustained an 80% PPID.

COURT OF APPEALS

SMITHWAY MOTOR XPRESS, INC. v. MCDERMOTT, 3-805 / 12-2296 (11-20-13)

Smithway appeals the district court ruling affirming the commissioner's decision that found McDermott had suffered a compensable injury resulting in a 40% PPID.  Smithway argues the commissioner's decision is not supported by substantial evidence; is the product of a process that failed to consider important evidence; and is the product of an irrational, illogical, or otherwise unreasonable decision making process. OPINION HOLDS: We find the commissioner considered all relevant evidence, the decision is supported by substantial evidence, and the commissioner engaged in a rational decision-making process. AFFIRMED.

Though McDermott's failure to seek treatment immediately, failure to follow up on recommendations by his first treating physician, and a change in his symptoms from the left to the right side SI joint could lead a rational observer to conclude there is no causal connection between his current symptoms and the workplace injury, the only doctor's opinion on causation states the workplace injury is the cause of his ongoing condition. No doctor concluded McDermott's symptoms were unrelated to the workplace injury, and the commissioner is entitled to rely upon the one expert opinion provided. It is within the discretion of the commissioner to accept or reject opinion testimony, and the commissioner is to decide how much weight the expert opinion should be given based, in part, upon the accuracy of facts presented to the expert.  

SUPREME COURT

STAFF MANAGEMENT v. JIMENEZ, 12-1645 (11-15-13)

Employer appeals a district court judgment affirming the Iowa Workers' Compensation Commissioner's decision awarding benefits. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

We affirm the district court judgment that an undocumented worker is entitled to HP benefits under the Iowa Workers' Compensation Act.

Upon holding an undocumented worker is entitled to these benefits under the Iowa Workers' Compensation Act, we must also decide (1) whether substantial evidence supports the running award of healing period benefits, (2) whether the commissioner can award healing period benefits starting from a date preceding the parties' stipulation as to when the healing period should begin, and (3) whether the commissioner can award healing period benefits to the claimant during the time period she was working. The district court held substantial evidence supported the running award of healing period benefits, the commissioner was correct in starting healing period benefits at a date prior to the parties' stipulated date, and the claimant's return to work did not cut off any of her benefits. On appeal, we affirm the district court on the issues of substantial evidence and the starting date of benefits. However, we disagree with the district court judgment on the last issue and find the claimant is not entitled to healing period benefits while she was working.

AGENCY APPEAL

SEAMAN v. BURGESS HEALTH CENTER, 5031994 (11-12-13)

Defendants appeal from an arbitration decision, in which the deputy found that the tragic and untimely death of Candace Seaman in a motor vehicle accident while traveling from her home to her employer's premises arose out of and in the course of her employment.

Defendants specifically assert on appeal that the presiding deputy erred as the facts of the case fall squarely within the "going and coming rule" without exceptions.

The deputy determined that the benefit to the employer in having Mrs. Seaman perform her administrative work and dictation in her home was sufficient to create dual workplaces between which Mrs. Seaman was traveling at the time of her tragic death. The administrative work performed by Mrs. Seaman was not required to be performed at her home. The dictation module could be used in her work location, or at any other location where she would choose to perform the work remotely. Mrs. Seaman did not interact with her patients, hold meetings, or perform any other work activities in her home or elsewhere. There is insufficient factual support to conclude that Mrs. Seaman's dictation or administrative work necessitated a secondary workplace. Catching up on occasional work at home or completing tasks at home that could be completed at the employer's premises is an insufficient basis to find that claimant had dual employment premises. In an increasingly mobile, technological environment the workplace cannot be found to be every location that an employee has occasion to temporarily observe an email, take a phone call, or sit down with a laptop to catch up on small tasks best left for the office or other workplace. It is concluded that claimant has not proven by a preponderance of the evidence that Mrs. Seaman had dual employment premises comprised of her office in Onawa, Iowa and her home in Sioux City, Iowa. REVERSED.

COURT OF APPEALS

HORN v. CUMMINS FILTRATION-LAKE MILL, 3-912 / 13-0351 (11-6-13)

Horn appeals the ruling on judicial review affirming the workers' compensation commissioner's award of permanent partial disability benefits. On appeal, Horn contends the agency failed to adequately explain its impairment determination. OPINION HOLDS: We find no error of law or misapplication of law to fact. We therefore affirm.

The District Court noted, the Commissioner stated that, Dr. Kuhnlein opined that the claimant had a permanent impairment of six percent of the right upper extremity, and restriction of occasion lifting of up to five pounds with the right arm and to lift with palm up and be cautious with the other arm. Given Dr. Kuhnlein's greater familiarity with the AMA Guides and ratings, given his nearly exclusive practice of providing such ratings, and that this is a scheduled member case where the rating has more significance than a body as the whole industrial loss case, Dr. Kuhnlein's opinion that the proper rating is six percent will be accepted.

Upon our review of the record before us, we conclude that the commissioner did consider all the evidence and found six percent disability, relying primarily on Dr. Kuhnlein's opinion.

AGENCY APPEAL

McBRIDE v. CASEY'S GENERAL STORE, 5037617 (10-7-13)

Defendants assert on appeal the division has broadened the Supreme Court's holding in Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010) in denying a credit for overpayment of temporary disability benefits. Defendants' assertion has previously been addressed and rejected in the recent remand decision of Elmer v. Clayton County Recycling, File No. 5030948 (Remand Dec., Filed September 27, 2013). Defendants' arguments are noted to be consistent with the division's routine credit allowances prior to the Supreme Court's holding in Swiss Colony, Inc. v. Deutmeyer. The credits awarded to Swiss Colony and its insurer against further liability for permanent partial disability to Mr. Deutmeyer, by the division, were rejected by the Iowa Supreme Court. Therefore, defendants cannot be awarded the form of credits that the Supreme Court has expressly determined the division erred in previously granting in situations where employers and insurers overpaid temporary or permanent partial disability benefits. Defendants' argument on appeal would require the division to award a credit against further permanent partial disability liability when the same credit was expressly overturned by the Iowa Supreme Court in Swiss Colony, Inc. v. Deutmeyer. As the Supreme Court has held, defendants are entitled to a credit, but the credit is limited to a credit against liability for any future work injury that claimant may suffer. As such, defendants' argument as to the proper form of its credit is denied. AFFIRMED

AGENCY APPEAL

LEWIS v. WEST SIDE TRANSPORT, INC., 5035843 (10-3-13)

Defendants assert on appeal that the deputy erred in finding claimant sustained any PPD resulting from the stipulated work injury or in the alternative if claimant has sustained a permanent disability that the finding of a 30% is excessive. Defendants further assert the deputy erred in requiring authorization of a treating physician for further medical treatment. AFFIRMED.

AGENCY APPEAL

CREES v. HY-VEE, INC., 5039154 (10-3-13)

Defendant-employer had actual notice of claimant's fall at work on May 9, 2010 and therefore claimant has provided sufficient notice to her employer that the affirmative defense under § 85.23 must fail. The preponderance of the evidence also supports the findings of the Deputy that claimant's disability resulted substantially from her fall on May 9, 2010. The deputy correctly relied upon the opinion of Dr. Sunil Bansal who noted claimant had a reported injury, pain, and required medical attention prior to the acknowledged incident where she slipped down the side of her pool. Following a de novo review of the conflicting medical opinions, the preponderance of the evidence supports the finding that claimant's injury results from the fall in the cooler on May 9, 2010. AFFIRMED.

COURT OF APPEALS

COOKSEY v. CARGILL, INC., 3-615 / 12-1729 (10-2-13)

Cooksey appeals the district court's decision affirming the agency's dismissal, without a hearing, of his application for alternate medical care pursuant to IAC 876-4.48(7). He contends that his employer, Cargill, was judicially estopped from denying its liability after failing to dispute it in previous alternate care hearings. Cooksey moved to dismiss both of his first two applications for alternate medical after Cargill agreed to the medical treatment he had requested. He also claims the dismissal of his application without a hearing to determine liability was an interpretation of the rule which was arbitrary, capricious, and an abuse of discretion, and violated his right to due process. OPINION HOLDS: Because we conclude that Cargill was not judicially estopped from denying liability and there was no due process violation, we affirm.

COURT OF APPEALS

JBS SWIFT & CO. v. CONTRERAS, 3-690 / 13-0172 (10-2-13)

Defendants appeal the district court's ruling affirming the Workers' Compensation Commissioner's award of benefits to Claimant. Swift contends the commissioner's finding of a 60% loss of PPID prejudices its substantial rights. Swift asks that we reverse the commissioner's findings and instead reinstate the deputy commissioner's award of 20% PPID. OPINION HOLDS: Because we find the commissioner's award is the result of a decision-process in which the important and relevant matters were considered, and because we find it is supported by substantial evidence in the record when the record is viewed as a whole, we affirm

AGENCY APPEAL

TURKOVIC v. WAL-MART STORES, INC., 5037110 (9-26-13)

Claimant's counsel has asserted in the appellate arguments that counsel for defendants violated the alternate medical care order by altering the limited purpose of the examination pursuant to the order and in seeking a full independent medical examination from Dr. Kuhnlein including questions about causation, impairment, and restrictions. Claimant's counsel did not object to the admissibility of Dr. Kuhnlein's report at the commencement of the arbitration hearing. As such, claimant cannot argue herein that the presiding deputy commissioner erred in relying upon the evidence contained with the report. However, it is noted that when a deputy provides a directive to counsel in the order of an alternate medical care ruling that such order shall be specifically followed. In this matter counsel for defendant clearly violated the terms of the limited appointment with Dr. Kuhnlein, as ordered by the presiding deputy. Such violation thwarts the intention of the deputy commissioner and alters the course of treatment as not envisioned at the time of the alternate care hearing. Such conduct is a violation of an order of the division and may result in sanctions.

Although no sanction is imposed herein, at this juncture of the litigation, it is noted that such deliberate violations of alternate medical care or other orders of the division is not tolerable and upon motion may result in significant sanctions. Repeated violations of alternate medical care orders undermines the authority of the Iowa Division of Workers' Compensation to order appropriate medical care pursuant to the Iowa Code. Alleged violations of an alternate medical care order should be promptly directed to the deputy commissioner staff by way of a motion for sanctions so that such conduct may be discouraged pursuant to 876 IAC 4.36. AFFIRMED.

AGENCY APPEAL

SCHARFENBERG v. BEMIS COMPANY, INC., 5039579 (9-25-13)

Defendants assert that the presiding deputy commissioner erred in finding that defendants unreasonably delayed payment of PPD benefits in this case. The record establishes that defendants did not make payment of PPD benefits in this matter until contacted by claimant's attorney. Defendants assert that its subsequent payment was a voluntary payment of permanent partial disability benefits which was not required by law. They further assert that they inquired of the physicians on a timely basis as to PPI ratings and return to work status for claimant and served such medical records on claimant's attorney in a timely manner. Claimant asserts that the imposition of restrictions by the medical experts in this matter requires that a penalty be assessed. It is concluded that defendants did not unreasonably delay PPD benefit payments based upon claimant's work status and his lack of a PPI rating under the Guides. While defendants' determination that claimant sustained no PPD was not adopted, defendants have proven a reasonable basis for not paying disability benefits until voluntary payment was made. REVERSED as to PENALTY.

COURT OF APPEALS

DECKERT v. JELD-WEN, 3-782 / 13-0288 (9-18-13)

Claimant exposed to certain chemicals while working and who developed a sensitivity to those chemicals, which prevented him from continuing to work in an environment that contained them, contends that the commissioner erred in awarding only 25% PPID, and concluding that he was not permanently and totally disabled, and the employer cross-appeals, asserting the claimant should not have been afforded healing period benefits. OPINION HOLDS: The commissioner's findings of fact are supported by substantial evidence, and the commissioner did not err in concluding that the claimant was not permanently and totally disabled or that the claimant was entitled to healing period benefits. AFFIRMED.

COURT OF APPEALS

ZAGLAUER v. MERCY MEDICAL CENTER, 3-780 / 13-0160 (9-18-13)

Claimant appeals from the Iowa Workers' Compensation Commissioner's finding her depression and complex regional pain syndrome were not causally related to her work injury. OPINION HOLDS: Although some medical professionals linked her symptoms to her work injury, they did not have her full history to inform their opinions. The physician who had her complete record found neither Zaglauer's depression nor CRPS were causally related to her work injury. As such, substantial evidence supports this finding, in addition to the commissioner's determination that Zaglauer was not credible. We therefore affirm the decision. 

COURT OF APPEALS

SHARP v. UNIVERSITY OF NORTHERN IOWA, 3-768 / 12-2326 (9-18-13)

Claimant appeals a district court ruling of a final agency action denying her workers' compensation benefits. OPINION HOLDS: Because she failed to prove medical causation, legal causation, and failed to give notice, we affirm. AFFIRMED W/O OPINION.

POLK COUNTY DISTRICT COURT

DECLARATORY RULING ON SURVEILLANCE - AFFIRMED in its entirety, Polk County District Court CVCV09482 (9-16-13)

AGENCY APPEAL

CALLES v. QUALITY EGG, LLC, 5032413, 5032414 (9-5-13)

Claimant appeals from the award of 20% PPID. Claimant raises concerns with the significance the presiding deputy gave to claimant's activities when under surveillance.

The deputy, however, did not rely wholly on his lay judgment as regards the significance to be given the surveyed activities in determining what claimant could or could not do. Instead, he expressly adopted the opinion of Dr. Nepola, an experienced treating orthopedic physician and professor of medicine, who expressly had stated that the actions claimant performed when recorded were inconsistent with her complaints and clinical presentation to him. Furthermore, another experienced orthopedic evaluator, Dr. Neff, also had reviewed the surveillance tape and made observations consistent with Dr. Nepola's. The deputy properly found the physicians' opinions more convincing than the assignment of restrictions by a physical therapist after a functional capacity evaluation. AFFIRMED.

AGENCY APPEAL

MEEK v. JOHN DEERE DAVENPORT WORKS, 5029817 (9-4-13)

Penalty of $21,000.00 pursuant to §86.13 for an unreasonable denial of the claim as defendant relied upon the opinion of a safety manager who has no medical training to deny the claim and moreover that defendant had failed to contemporaneously convey the basis of its denial to claimant. AFFIRMED.

COURT OF APPEALS

IOWA NEWSPAPERS v. WATSON, 3-783 / 13-0334 (9-5-13)

Watson slipped on ice while traveling to sell advertisements for Iowa Newspapers, Inc. She fell onto her left side and was injured. Though initially Watson thought her injury was just bruising, she soon realized the injury was worse than she thought. Over time, the injury led to back pain, burning and numbness, headaches, interrupted sleep, and depression. Watson had a lump under her left shoulder blade removed. The lump on her shoulder had been growing for several years. Watson ended her employment with Iowa Newspapers after it became too difficult to work. Watson filed a petition for workers' compensation benefits.  

Iowa Newspapers, Inc. and AIG appeal from the district court's affirmance of the workers' compensation commissioner's award of PTID to Watson. They argue the agency erred in finding Watson's injury was related to her employment, in finding the healing period for her injuries had ended with no indication of significant medical improvement, in finding she was permanently disabled, and in awarding certain medical expenses. OPINION HOLDS: The agency's causation, healing period, and medical expense awards are supported by substantial evidence, and the agency's application of the law to the facts regarding the extent of her disability was not irrational, illogical, or wholly unjustifiable. AFFIRMED.

COURT OF APPEALS

LOPAREX v. BATES, 3-593 / 13-0121 (9-5-13)

An employer and its insurer ask us to review a workers' compensation decision in favor of an injured employee.

Bates was injured when his left hand got caught in a machine. He underwent several surgeries that resulted in the amputation of two fingers. He developed "complex regional pain syndrome," characterized by temperature changes in his hand and muscle wasting. He also experienced abnormal sensations and sensitivity to touch. A byproduct of his hand injury was severe depression. Physicians prescribed a variety of medications for these conditions. Bates contended these medications made him drowsy.

The Deputy found that Bates had "severe problems with . . . somnolence" and, "according to the medical experts, [the condition] may relate to sleep apnea, obesity, or alcohol abuse, but the weight of that opinion convinces that Bates's extensive medication regimen is a substantial contributing factor." The deputy emphasized that the medication "need not be the sole factor in order to trigger liability." He also noted that despite Bates's lack of credibility in some of his testimony, he "did not have somnolence prior to his injury . . . and [he] does now." These findings were affirmed on intra-agency review.

Bates filed a petition for workers' compensation benefits. Following an evidentiary hearing, a deputy concluded that Bates was entitled to PTID. OPINION HOLDS: The record contains substantial evidence to support the commissioner's finding of a causal connection between the employee's drowsiness and his work-related injury, and the commissioner's determination of industrial disability is supported by the record and is not irrational, illogical, or wholly unjustifiable. AFFIRMED.

AGENCY APPEAL

BRUCE v. HYDECKER WHEATLAKE COMPANY, 5036473 (9-3-13)

Defendants, appeal from an arbitration award, for injuries resulting from claimant's bucket lift coming into contact with a live 7200 V electric wire, resulting in PTID.

Defendants assert that claimant is not a credible witness on his own behalf as to his disability on numerous bases. Claimant asserts that defendants' allegations against claimant are nothing more than an attempt to "dirty up" a severely injured worker in an attempt to avoid paying compensation.

The deputy's finding that claimant sustained neuropathic hand pain in his bilateral hands which both required partial amputation and that claimant's complaints of phantom pain is well-supported. Claimant further testified to nightmares and cognitive difficulties for which further medical treatment is likely necessary.

Claimant had been a laborer in the heavy work position of running electrical lines for nearly 30 years prior to his injury. Since that injury claimant has been unable to return to any work for defendant-employer and had only a limited, accommodated period of employment helping locate downed power lines following a major storm upon a call from a friend in the industry. There is no persuasive evidence that claimant could return to such a position in a full-time capacity. As such, claimant has proven that he has sustained an injury which permanently disables him from performing work within his experience, training, education, and physical capacities.

AGENCY APPEAL

PRICE v. DES MOINES PUBLIC SCHOOLS, 5037864 (8-26-13)

Defendants argue that the presiding deputy relied upon the wrong expert's opinion. However, the deputy provided justification for relying on Dr. Stoken instead of Dr. Honkamp. Dr. Honkamp issued a 0% impairment rating and no work restrictions based upon radiographic evidence that claimant's rotator cuff and shoulder muscles on the right side appeared normal and that the left side had only minor tendinopathy. Dr. Honkamp did not find that the work caused the shoulder and neck pain but that it stemmed from previous injuries. 

There was some dispute over whether claimant actually suffered a rotator cuff tear. From the MRI, Dr. Honkamp believed claimant sustained bilateral rotator cuff tears. During surgery, there was no evidence of those tears. The claimant's rotator cuff looked normal as did her labrum, the bursal side of the cuff, and the glenohumeral joint. She had only a mild amount of bursitis.

The defendants assert that Dr. Stoken's impairment ratings are suspect because she bases them, in part, on a torn rotator cuff when the surgical examination showed none. Even setting aside Dr. Stoken's impairment ratings, the evidence supports the presiding deputy's findings of 40% PPID. ADOPTED and AFFIRMED. GERRISH-LAMPE

COURT OF APPEALS

MIKE BROOKS, INC. v. HOUSE, 3-624 / 13-0303 (8-21-13)

Mike Brooks, Inc. and Great West Casualty Insurance Company appeal from the district court's affirmance of the Iowa Workers' Compensation Commissioner's award of permanent total disability benefits to James House. OPINION HOLDS: The agency's finding that House's March 7, 2007 injury was causally related to his disability was not supported by substantial evidence. Reversed and remanded. DISSENT ASSERTS: Based on this interpretation of the standard of review set forth in §17A.19(10)(f) (2011), I would find substantial evidence to support the commissioner's determination of causation, and I would affirm.

COURT OF APPEALS

SMITH v. IOWA STATE UNIVERSITY, 3-468 / 12-1182 (8-21-13)

ISU appeal from the trial court's denial of their motion for judgment notwithstanding the verdict and for new trial after a jury returned a verdict in favor of Smith on his claim of intentional infliction of emotional distress and the trial court ruled in Smith's favor on his whistleblower claim. ISU contends the whistleblower claim fails because there was no protected conduct, no reprisal taken as a result of any report to a public official, and the damages are beyond the scope of relief allowed by the statute. ISU, in its appellate brief, contends the intentional-infliction-of-emotional-distress claim fails because ISU is immune from claims functionally equivalent to defamation and there was no outrageous conduct; however, at oral argument it contended this court and the trial court lacked subject matter jurisdiction because any injuries Smith may have suffered were work-related injuries subject to the exclusivity provisions of Iowa's Workers' Compensation Act. We ordered additional briefing on the jurisdiction issue. OPINION HOLDS: We conclude we have jurisdiction. Whistleblower Claim. The only relationship Smith demonstrated between the actions taken against him and his report to a public official is a temporal relationship, not a causal relationship. Consequently, this claim fails and we reverse the judgment of the district court on this issue. Intentional Infliction of Emotional Distress. Smith's claims are not functionally equivalent to defamation, so ISU is not immune. The intentional actions taken against Smith were outrageous and caused severe emotional distress. The damages awarded were not excessive. We affirm on this issue.

AGENCY APPEAL

ALIC v. TYSON FRESH MEATS, INC., 5038307 (8-21-13)

Claimant obtained employment with defendant-employer despite her limited education and lack of fluency in the English language. Most importantly, claimant has returned to work without significant restrictions on her functional abilities. Dr. Delbridge limited claimant from a return to the boxing position she held pre-injury due to a 60-70 pound lifting requirement. No other formal restrictions exist, should claimant seek alternate employment in the future. That is not to say that claimant is the same worker that she was prior to her injury to her low back. While claimant may experience pain after working for a period of time in the boxing position, it is undisputed that she is presently functionally capable of performing that job when called upon to do so. As such, it is concluded following a de novo review of the evidence that claimant has sustained a 25% of her earning capacity, as opposed to the 40% awarded by the Deputy.

AGENCY APPEAL

PETERS v. CATFISH BEND CASINO, 5037340, 5037341 (8-20-13)

Claimant presented several medical records which are irrelevant to the present causes of action. Such materials are unnecessary and result in a substantial waste of resources of the division. Second, it is noted that both parties failed to redact confidential personal information which is considered "protected information" under Iowa Rule of Evidence 1.422(1)(a)(b).

Despite the provisions of Rule 1.422, the parties failed to omit or redact claimant's protected information in submissions to the division. All counsel practicing before this division must endeavor to follow rule 1.422, due to the severity of harm that may arise from a failure to do so.

AGENCY APPEAL

TRUE v. HERITAGE CARE AND REHABILITATION, 5035753 (8-12-13)

Defendants assert on appeal that the presiding deputy commissioner erred in finding that claimant substantially complied with the administrative rules of the division requiring payment of the $100.00 filing fee when filing an amendment to the prior medical benefits petition and the finding that claimant timely filed her petition in arbitration.

Claimant fully, as opposed to substantially, complied with the administrative rules relating to the timeliness of her petition and the payment of the applicable filing fee. Claimant filed an original notice and petition (Form 100) on March 1, 2011 seeking benefits pursuant to § 85.27. No filing fee was required for such filing. Prior to the statute of limitations applicable to this date of injury, claimant filed a motion to amend the pending petition (Form 100) to include new issues for arbitration pursuant to § 86.14. At that time 876 IAC 4.8(2)(a) required the payment of a filing fee of $100.00. Claimant paid that filing fee on January 20, 2012, prior to the statute of limitations. The division accepted the filing fee and the petition as amended by motion was properly filed. The administrative rules require no further action in order to timely file a petition for arbitration with the division when an existing petition for the same date of injury is already on file. Had claimant not timely paid the filing fee, the administrative rules grant the division authority to toll the statute of limitations to order payment of the filing fee within a limited time. Herein claimant timely filed her amended petition and paid the correct filing fee. The amendment and filing fee were timely and therefore claimant complied with the administrative rules relating to the timeliness of her petition and the payment of the applicable filing fee.

COURT OF APPEALS

LEDEZMA v. PROCTER & GAMBLE HAIR CARE, L.L.C, 3-587 / 12-2103 (8-7-13)

Ledezma settled his workers' compensation claim through an agreement for settlement approved by the workers' compensation commissioner. Subsequently, he sued Cambridge Integrated Services alleging bad faith denial and delay of payment of workers' compensation benefits. Cambridge filed a motion for summary judgment, asserting Ledezma's claim was governed by contract law and Iowa does not recognize a bad faith claim based on the breach of a contract pursuant to White v. Northwestern Bell Telephone Co., 514 N.W.2d 70 (Iowa 1994). The district court agreed and dismissed Ledezma's lawsuit. He appeals. OPINION HOLDS: Ledezma failed to preserve error on the issue of whether a bad faith claim pre-existed the settlement and survived the settlement agreement because the district court did not address it, and Ledezma failed to file a IRCP 1.904(2) motion seeking to obtain a ruling on that issue. We also conclude the holding in White is settled law and clearly controlling. We therefore affirm pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e). AFFIRMED.

AGENCY APPEAL

McCARTER v. AMERICAN HEALTHWAYS, INC., 5037875 (8-6-13)

While claimant had proven medical causation, claimant had failed to prove legal causation of mental/mental workers' compensation claim and was denied a recovery. The evidence presented by claimant is sparse and the evidence strongly supports the finding of the presiding deputy commissioner that claimant is a disgruntled employee who did not accept changing work rules of her employer. AFFIRMED.

AGENCY APPEAL

KNEEDLER v. FAREWAY STORES, INC., 5032884; 5038372 (8-6-13)

The deputy correctly found, for purposes of considering TTD, that claimant refused a make-work position in which she would perform very light functions to clean and dust shelves and to face product. However, such accommodated work cannot be factored into an award of PPID unless the employer can establish that the worker has a discerned earning capacity by showing that the present work is available in the competitive labor market. The deputy found that defendants failed to establish such work was available in the competitive labor market - rather the position was make work to admirably return claimant to work despite her significant limitations as to function. To qualify as discernible, it must appear that the new job is not just "make work" provided by the employer, but is also available to the injured worker in the competitive market. AFFIRMED.

AGENCY APPEAL

VAN CLEAVE v. CITY OF DES MOINES, 5019319/5033761 (7-31-13)

The preponderance of the evidence establishes that claimant has sustained significant permanent impairment and disability resulting from his work injuries which permanently disables him from performing work within his experience, training, education, and physical capacities (PTID). Claimant's sporadic work subsequent to his employment with defendant does not establish that claimant has a present ability to compete for employment in the competitive labor market as the work at issue is of short duration, is seasonal, and can be completed on claimant's own schedule and to his own tolerances.

AGENCY APPEAL

METZ v. QUARRY SERVICES, INC., 5037288/5037289 (7-30-13)

The post-hearing brief of claimant set forth argument as to a penalty. There was no argument or pleading from defendants disputing the claim for a penalty, although defendants post-hearing brief sets forth payment dates from disability benefit payments asserting all benefits were timely paid. Upon cross-appeal claimant asserts it is prejudicial to deny a penalty claim due to its failure to be included on the hearing report as an "other issue," when the issue had been pled on the petition and evidence was taken at hearing on the issue. It is noted that the pre-hearing discussion on the record merely adopts the hearing report without a full discussion of the issues to considered. Claimant did not file an application for rehearing from the arbitration decision seeking consideration of the issue after the issue was denied as a hearing issue in the decision. As claimant has been awarded PTID benefits, claimant can cure the pleading deficiency in this matter by filing a new petition on the issue of penalty benefits pursuant to § 86.13. Under the circumstances presented, it is concluded that this matter need not be remanded for consideration of penalty \ as claimant may file a petition for new consideration of that contested issue.

AGENCY APPEAL

BOHLEN v. EATON CORPORATION, 5039222/5039223/ 5036901 (7-29-13)

While the deputy refused to specify a date of injury other than December 2010, it is possible to provide a more specific finding. While the presiding deputy properly cited to the conversation between claimant and Stephen Letson at the plant at some point in December 2010, it appears from the record that the last day on which claimant physically performed work duties for defendant-employer was on December 22, 2010, prior to a holiday shut-down. As such, the arbitration decision is modified to provide a more specific date of work injury - December 22, 2010.

AGENCY APPEAL

MITTAG v. FOODS, INC. d/b/a DAHL'S, 5037157 (7-26-13)

It is concluded that based upon the facts of this particular case that the bonus for 2009 was a part of a regular bonus program and was therefore not irregular. While there was discretion of whether the bonus would be paid based primarily upon sufficient profitability, the compensation had been distributed for each of the final four years of claimant's employment and was a significant portion of his overall compensation package as a management-level employee for defendant-employer. As such, it is concluded that claimant's average weekly wage and weekly compensation rate must be modified.

AGENCY APPEAL

KING v. BIOMAT USA, 5038089 (7-24-13)

Defendants have raised the issue of a credit, or what is labeled "apportionment", as an issue in the matter. The deputy found that the award was solely based on claimant's current injury and not prior injuries. The deputy failed to discuss the fresh start rule which was adopted by the legislature and cite to the applicable precedent regarding an employer's entitlement to a credit in successive disability matters pursuant to §85.34(7). The modified fresh start rule precludes an employer from taking credit for permanent disability paid by a prior employer as any impact of the prior disability is factored into the employee's hourly compensation or salary at the time of hire.

AGENCY APPEAL

HEDBERG v. JBS SWIFT & COMPANY, 5036162 (7-24-13)

The deputy found that claimant sustained an 80% PPID following a stipulated work injury. Claimant asserts that the deputy erred in failing to find claimant was PTID or, in the alternative, that he is an odd-lot worker. Defendants assert that the finding of the presiding deputy commissioner should be affirmed on appeal.

The credible and substantial evidence supports a finding that claimant has significant impairments in his hearing, speech, learning, and functional ability. Despite his disabilities, claimant was able to find and keep gainful employment for over 20 years and provide for his family. After his significant work injury, claimant was limited to light duty work and even possibly sedentary work.

There was no competitive employment that the claimant could believably work following his shoulder injury. Despite the offers made by the defendants, none of them had any detail even when both Dr. Neff and the counsel for the claimant requested it. The lack of response by the defendants suggests the positions were make work at best.

Having considered the various factors of industrial disability it is 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 PTID. Such benefits shall commence on the first day of claimant's disability. GERRISH-LAMPE

COURT OF APPEALS

WHIRLPOOL v. DAVIS, 3-582 / 12-1962 (7-24-13)

Whirlpool appeals the district court's affirmance of the workers' compensation commissioner's award of permanent total disability benefits, medical expenses, and costs to Danny Davis. OPINION HOLDS: We conclude there is substantial evidence supporting the commissioner's findings that Davis's physical and mental conditions are causally related to the incident; the extent of Davis's disability; and that some of the medical expenses associated with Dr. Buresh were work-related and reasonable.  The district court did not abuse its discretion in denying Whirlpool's motion to stay judgment. However, the agency erred in awarding as costs $330 for expert deposition fee, which fee is statutorily capped at $150. We adjust the costs ordered accordingly, but otherwise affirm. 

COURT OF APPEALS

LYNN v. PELLA CORP., 3-267 / 12-1506 (7-24-13)

After Lynn's worker's compensation petition was denied, she petitioned the district court for judicial review. The court found the agency erroneously applied the law regarding requests for admission and remanded the case for further proceedings. The question on appeal is whether the district court properly interpreted IRCP 1.510 when it concluded Pella Corporation's objection to the requests as untimely, without further admitting or denying the requests, was deemed an admission under the rule. OPINION HOLDS: We find IRCP 1.510 only requires an objecting party to state its reason for objection to a request for admission and nothing more. The district court erred in finding Pella Corporation was also required to admit or deny the requests. Accordingly, we reverse the order of the district court reversing the agency decision and remanding for further proceedings.

AGENCY APPEAL

NIEMEYER v. OTTUMWA GOOD SAMARITAN, 5020338 (7-24-13)

Claimant has clearly suffered a physical change of condition since the arbitration decision. She now has adjacent segment disease, resulting from her fusion surgery, which was not present at the time of the prior decision. She also now has an increase in her symptoms, including increased neck pain, and radiation of that pain into her hands and arm. She now has more difficulty with everyday tasks at home. She also now has had to increase the dosage of her pain medication over what it was at the time of the prior decision. However, she has not shown an increase in the rating of her permanent physical impairment.

Now, claimant has testified she has had an increase in her neck symptoms. She offers a vocational report that concludes she is only capable of doing sedentary work. Her evaluators for her Social Security Disability application also concluded she could only do sedentary work. He concluded she could not return to her work at Good Samaritan, itself a significant change from the time of the arbitration decision. He also concluded she could only lift five pounds from floor to waist, five pounds from floor to crown, and only occasionally front carry ten pound.

Based on these and all other appropriate factors of industrial disability, it is found claimant has experienced an increase of another 25% industrial disability over and beyond the 35% previously awarded.

§85.39 speaks in terms of a claimant being dissatisfied with the employer-provided evaluation. That was impossible in this case where claimant obtained her evaluation first, before the employer's evaluation existed. Claimant asserts the need to schedule such evaluations early but that does not change the clear language of the statute. It is concluded the deputy was correct in ruling the claimant is not entitled to reimbursement under §85.39.

Claimant alternatively argues the cost of her IME can be taxed as a cost under 876 IAC 4.33(6), which provides for reimbursement for the costs of up to two "practitioner's reports". This agency has recognized that the cost of an IME can be compensated as a cost as a practitioner's report. The IME will be awarded as a cost under 876 IAC 4.33(6).

Here, claimant never bothered to find out what care was being offered by defendants, but instead sought care on her own. She was entitled to do so but cannot now ask defendants to pay for that care when she failed to first avail herself of the care available from them. It is concluded that the deputy's conclusion that claimant will not be awarded medical expenses was correct and is affirmed. HEITLAND

AGENCY APPEAL

DEVRIES v. WAL-MART STORES, INC., 5040128 (7-12-13)

The arbitration decision does not provide a pathway to an award of permanent total disability and penalty benefits. While the undersigned is likely in agreement with the presiding deputy as to the extent of claimant's industrial loss, the arbitration decision is deficient in its factual findings. The award of penalty benefits appears deficient and in need of modification. While the undersigned could provide the appropriate analysis of the nature of claimant's present employment duties for employer along with claimant's permanent impairment and restrictions, such analysis is best completed at the deputy commissioner level.

If the deputy believes that the current restrictions are not correct, the deputy should make such a finding along with appropriate explanation. It is noted that claimant's testimony of ongoing pain with her limited duty work would appear to support a very severe restriction.

While it was not in error to accept the opinions of claimant's vocational expert, it is not possible to reject the views of defendants' expert without explanation as to why the opinion was rejected. It must be noted that it is nearly impossible to review an industrial award that does not contain accurate or sufficient factual findings and which fails to discuss or analyze critical, relevant evidence.

Next, as pointed out by defendants, the presiding deputy needs to explain why a penalty should be imposed for failing to pay benefits prior to hearing upon a vocational report that was not authored until after the hearing. This is clearly in error and requires modification. Further, the presiding deputy failed to explain why payment of a body as a whole rating as done by defendants in this case would not be sufficient to avoid a penalty. The deputy also did not explain why defendants are responsible for a delay in payment of such a rating caused by a delay in obtaining a necessary FCE. Such matters require further findings and analysis and this matter shall be remanded.

Finally, the presiding deputy should explain why treatment was ordered herein when no doctor has recommended treatment. Obviously claimant is entitled to lifetime medical care for her work injuries, but an order for care appears lacking in this matter.

AGENCY APPEAL

WINN v. PELLA CORPORATION, 5035646 & 5035647 (7-1-13)

Defendant challenges the deputy's assessment of claimant as a credible witness overall. Even on de novo review, considerable deference is due to findings of fact that the express or implied credibility findings of the deputy impact. See § 17 A.19 (10) (f) (3). That deputy had the opportunity to evaluate the demeanor of the persons who testified and was able to include witness demeanor when weighing credibility. This appellate reviewer's ability to find the true facts that are affected by witness demeanor and credibility cannot be expected to be superior to that of the deputy who presided at the hearing.

It is true that Dr. Kuhnlein expressed concerns about claimant's credibility. These concerns were largely based on claimant's actions, demeanor, and her life and medical care choices at times, which the doctor felt were either inconsistent or at variance with normal expectations. That an individual behaves emotionally in one context and not in another is not per se unusual. Similarly, financial choices that appear unreasonable to one person may be justified in the overall context of another's lifestyle and obligations. Likewise, an individual may be able to modify their means of performing an activity while engaging in it recreationally in a matter that is not possible in an industrial setting. The undersigned's review of the surveillance in evidence was consistent with that of the deputy; that is, claimant appeared to be an individual in late middle age with substantial limitations on the use of her upper extremities, who nonetheless was attempting to live as fully as possible despite her functional losses.

COURT OF APPEALS

LANE v. SPENCER MUNICIPAL HOSPITAL, 3-226 / 12-1358 (6-26-13) NOT a workers' compensation claim.

A defendant contends that the court erred in overruling its motion to dismiss the plaintiff's petition on statute of limitations grounds. OPINION HOLDS: The plaintiff's petition, which was filed on February 29, 2012, alleging an injury the occurred on February 28, 2010, was untimely, by ONE DAY, and the district court should have therefore dismissed the petition. An intervening leap year would not have added a day to the calculation; a year is a year with or without the added day. DISSENT HOLDS: I would find the Lanes' leap day filing to be timely. Rather than applying the anniversary-date rule, our legislature defines a year as twelve consecutive calendar months. While our statutes do not definitively address whether twenty-four calendar months forward from February 28, 2010, would be February 28 or February 29 of 2012, common law regards February 28 and February 29 as a single day. Even if the majority's interpretation is equally plausible, our courts adhere to the bedrock principle that when two statute-of-limitations interpretations are possible, we apply the longer period. I would apply this principle, affirm the district court, and remand for further proceedings.

AGENCY APPEAL

KRAMER v. MOHAWK INDUSTRIES, INC., 5036114 (6-25-13)

Claimant on appeal asserts that the difference in claimant's stories as to when his back pain occurred is insignificant as he was doing repetitive, heavy lifting. However, given his long history of waxing and waning back and leg problems before this injury; a significant exacerbation only a couple of weeks before this claimed work injury; and claimant's apparent willingness to alter his story to improve his worker's compensation claim, the denial by the deputy commissioner shall be affirmed. No medical expert in this matter has opined that claimant's act of walking to his delivery vehicle was sufficient to establish a work injury. Claimant's later assertion that his pain began the day before, after unloading heavy lifting carpet rolls, is not credible because he specifically denied any pain the day before injury in his recorded statement taken shortly after the report of injury.

AGENCY APPEAL

REZA v. LOMONT MOLDING, INC., 5037018 (6-20-13)

The record medical evidence in its entirety is more consistent with Dr. Chen's assignment of permanent impairment under DRE cervical category II than with Dr. Epp's assignment of permanent impairment under DRE cervical category III, as the medical record overall does not demonstrate significant upper extremity radicular symptoms. Nevertheless, the permanent restriction of lifting no more than 10 pounds that Dr. Epp recommends is reasonable for an individual with claimant's persisting pain.

Claimant twice has found subsequent employment consistent with that recommendation and therefore has been able to work without accommodation for those employers. Claimant had access to manual labor jobs requiring lifting greater than 10 pounds prior to her injury. She now is precluded from them. Her education is limited and she lacks English-language proficiency. Thus, the universe of jobs available to her has always been limited to largely unskilled manual labor. Her work injury and her related lifting restriction leave her with access to even fewer such jobs. Claimant has demonstrated that her overall loss of earning capacity exceeds the permanent impairment Dr. Chen assigned. A 20% PPID is is found. WALLESER

AGENCY APPEAL

MOES v. WHIRLPOOL CORPORATION, 5035115, 5035985 (6-20-13)

Loss of earning capacity is to be assessed relative to the claimant's ability to compete in the general labor market. In this case, the 50-year-old claimant received a bachelor's degree in 2006 but has not utilized it for income earning purposes. Additionally, objective testing has suggested she has some difficulty with abstract thinking despite having been awarded that degree. Her past relevant work history is in manufacturing; her injury related restrictions do diminish the manufacturing employment opportunities available to her. Her job change within the employer's plant to a position within her restrictions is consistent with that diminishment. Nevertheless, claimant's ability to work the inspector job does evidence residual industrial capacity, including the ability to exercise a degree of reasoned judgment. The award of 50% PPID is warranted.

Requiring a claimant to go 25 days without the weekly temporary benefits that are to be her wage substitute while undergoing and healing from a work related surgery is wholly inconsistent with proper administration of a workers' compensation claim.

When defendant denied liability for the care claimant sought with Dr. Pilcher in November 2010, they lost the ability to raise lack of authorization as a defense regarding the costs of such care. WALLESER

AGENCY APPEAL

HARRISON v. GREENFIELD MANOR, INC., 5030676; 5038057 (6-19-13)

Claimant argues that the defendants' previous admissions of liability for care that claimant requested in her prior applications for alternate care precluded the deputy's finding that the symptoms for which claimant was seeking medical care at the time of hearing were related to the April 6, 2009. That is an overbroad interpretation of the constraints of the principal of judicial estoppel in the context of an alternate medical care proceeding. Even when claimant's application for alternate care is granted, defendants obligation to provide care does not exist indefinitely; rather the obligation continues only so long as continuing care is reasonable and necessary care that claimant can establish relates back to the original condition for which defendants admitted liability. WALLESER

AGENCY APPEAL

BECK v. QUAKER OATS COMPANY, 5038102 (6-18-13)

The hearing deputy was correct in giving more weight to the views of Drs. Mouw and Boddicker. In addition to his greater clinical knowledge of claimant before and after this injury, Dr. Mouw's specialized training and experience in neurosurgery provides him with a greater understanding of the cause of neurological symptoms from disc herniations than Dr. Westpheling, an occupational medicine physician, who was not shown to possess specialized knowledge in vertebral disc problems. Indeed, Dr. Mouw's greater expertise in these matters is the reason Dr. Westpheling referred claimant for treatment of his disc problems. Similarly, Dr. Boddicker as an internist, has specialized experience in blood clotting problems.

The facts in this case indicate that claimant routinely, but not always, worked overtime. The payment of vacation and holiday pay for an absence from work would not take into account claimant's typical practice of working overtime. Consequently it would not be an amount the employee would have earned if he had actually been at work. The best method is to exclude that week and include another weeks where he did work a full week as was done by claimant and the hearing deputy. Defendants' argument could be valid if the worker did not have overtime pay and would only receive the same earnings with or without vacation or holiday pay. WALSHIRE

AGENCY APPEAL

ENGEL v. SUNOPTA INGREDIENTS, INC., 5036000 (6-18-13)

Clearly, not all of the experts relied upon by claimant were unaware of claimant's condition before the work injury. The deputy did not explain why he rejected the apparent causation views of this doctor. This is a critical error as defendants did not offer any expert testimony for their assertion that the work injury did not aggravate or precipitate claimant's problems. Consequently, this matter is remanded back to the presiding deputy to clarify his decision. WALSHIRE

AGENCY APPEAL

WATTS v. HY-VEE, INC., 5036397 (6-18-13)

The issues presented on appeal and cross-appeal were adequately dealt with in the arbitration decision and I have nothing to add. While claimant may honestly believe she was the object of an unusually stressful verbal attack by her supervisor, the objective evidence fails to show that this type of stress is compensable in Iowa for the reasons stated in the arbitration decision. WALSHIRE

COURT OF APPEALS

MARTINEZ CONSTRUCTION v. CEBALLOS, 3-152 / 12-1514 (6-12-13)

Ceballos was awarded workers' compensation benefits after falling from a roof while at work. His former employer, Martinez Construction, appeals from the commissioner's award of benefits, arguing the commissioner improperly interpreted Iowa law to award benefits solely on lay testimony regarding causation. The employer also contends the commissioner violated a valid agency rule in taxing to it the cost of Ceballos's international phone call to participate in the hearing. OPINION HOLDS: We find expert medical opinion testimony was not required to establish causation under the facts of this case, where claimant was denied proper medical treatment. Because substantial evidence supports the commissioner's finding that Ceballos's injuries were caused by his fall, we affirm the award of workers' compensation benefits. We reverse the portion of the commissioner's decision taxing the cost of Ceballos's telephonic testimony to Martinez Construction, as he was a party to the matter.

AGENCY APPEAL

BISBEE v. SCHENKER LOGISTICS, 5030896 (6-12-13)

Defendants' assertion that claimant is not entitled to healing period benefits for her time off work after the injury, even if the shoulder complaints are work related, is not convincing. A letter from defendant insurer that she was off work due to treatment of a shoulder injury and they would not be providing benefits for such an injury. Defendants acknowledge that she was receiving unemployment benefits during this time so claimant was not off work by her own choosing. Claimant clearly testified that she was not allowed to return to work during this time with her restrictions imposed for her shoulder injury regardless of whether or not she was technically terminated. WALSHIRE

AGENCY APPEAL

NSHIMIRIMANA v. SWIFT & COMPANY, 5037039 (6-11-13)

Claimant has been physically unable to return to his job at Swift or any other similar job since the time of his termination. When he was terminated, he had not been released to full duty. Claimant testified that his job at Swift was much more difficult physically than his current job at McDonald's and there is no evidence to the contrary in this record. WALSHIRE

AGENCY APPEAL

BARR v. SHAW INDUSTRIES, INC., 5026780 (6-11-13)

§86.13's penalty assessment provisions are not so broad as to allow additional penalty for failure to timely pay a previously assessed penalty. Claimant is not without a remedy where defendants do not timely tender payment of an assessed penalty, however. In that situation, claimant's appropriate course is to move for judgment by the appropriate district court on the award of additional benefits. See § 86.42. WALLESER

AGENCY APPEAL

JORDAN v. IOWA 80 TRUCK STOP, 5038618 (6-10-13)

Defendants appeal from the arbitration decision, contending the finding of permanent injury and the award of 15% PPID and 30% penalty was error. Claimant cross-appeals, contending that award is too low. REVERSED.

Unfortunately, claimant had not given Dr. Collins an accurate history; claimant had told Dr. Collins that his neck, shoulder and arm pain were new [conditions] that came on only after the fall at work. Claimant had competed professionally in mixed martial arts. Exhibits A, C, G, and N, all record instances of claimant receiving care for neck, shoulder, arm, and back complaints prior to his fall at work. Indeed, he received chiropractic care for his neck and back shortly before his fall at work. Claimant had sought care for close head injuries in 2005.

There are fairly polarizing opinions regarding claimant's mental and physical injuries. Dr. Tranel believes that claimant's mental injury has resolved itself and that it is abnormal for a minor concussive incident as claimant suffered to result in the extensive brain trauma Dr. Kent ascribes. Dr. Cullen and Dr. Johnson, finding Dr. Tranel's opinions more plausible, agree that claimant is fully functional and able to return to work without restrictions.

Claimant's cognitive rehabilitation records are helpful in weighing the experts' opinions regarding whether claimant has permanent residuals from concussion or head injury. His performance is more consistent with Dr. Tranel's conclusions than those of Dr. Kent and supports the opinions of Dr. Tranel, Dr. Cullen and Dr. Johnson that claimant has no permanent residuals as a result of any concussion sustained as a result of his fall at work. WALLESER

AGENCY APPEAL

WEGNER v. HORMEL FOODS CORPORATION, 5037216, 5037217, 5033742 (6-6-13)

The deputy accepted the employer's stipulation that claimant had sustained a single bilateral shoulder injury, but the deputy did so without expressly restating the stipulation that that single injury consisted of an initial traumatic injury to the left shoulder and a subsequent overuse injury to the right shoulder. That the employer stipulated to an initial injury to one shoulder with a resulting overuse injury to the other is clear from the record. Where a stipulation is expressed clearly in the record, a deputy is not required to expressly restate the parties' stipulation in exactly the language that one party wants. Indeed, the clearest understanding of a stipulation all parties' have reached is the language the parties used to state their agreement. A deputy's restating that stipulation as one party wishes might result in a misstatement of what was the common understanding of the parties.

Claimant also takes exception to the deputy not awarding costs with Dr. Kuhnlein as reimbursement for an IME. After an initial left shoulder surgery, the treating surgeon opined as to impairment and defendant paid that rating. It then became clear that claimant was not at MMI and he underwent further treatment. After examining claimant, Dr. Kuhnlein did not assign impairment for that reason. Claimant argues that once some employer retained doctor has assigned any impairment, the claimant can get an IME even if that IME does not address PPD. That is an overbroad reading of § 85.39. WALLESER

AGENCY APPEAL

DEARBORN v. CARE INITIATIVES, INC., 5034428 (6-5-13)

Defendant does assert that the passage of time between the actual hearing and the date of filing the arbitration decision was such that the presiding deputy could not properly remember and appropriately assess credibility of witnesses in the decision. Initially, the presiding deputy's assessment of claimant's credibility is based in large part on the consistency over time of claimant's account of the incident of injury and his symptoms before and after the injury. Secondly, a reasonably competent fact finder is well aware that a period may pass between the taking of testimonial evidence and the drafting of a proposed decision. Therefore, demeanor observations that impact on credibility assessments likely are noted and recorded at the time of hearing and only memorialized in the proposed decision. AFFIRMED. WALLESER

AGENCY APPEAL

BEGANOVIC v. TITAN TIRE, 5036517, 5036363, 5036364 (6-5-13)

Defendants assert that care claimant received with or under the direction of doctors Fehrle, Carlstrom, McGuire, and Ransdell was unauthorized and received after doctors Ash and Igram had placed claimant at maximum medical improvement for his shoulder and low back conditions, respectively. The evidence supports the deputy's finding of abandonment of care, especially in light of Dr. Ash's having directed claimant to seek left shoulder evaluation and care outside the workers' compensation system and given claimant's continuing shoulder and low back symptoms after the authorized providers found him at maximum medical improvement. AFFIRMED. WALLESER

AGENCY APPEAL

LAMPMAN v. CRYSTAL, INC., 5031818 (6-3-13)

Although the hearing deputy did not make a specific credibility finding concerning claimant, it is clear from reading the arbitration decision that the hearing deputy did not believe claimant's assertions that she is totally disabled and unable to perform any significant physical activity without significant pain. The hearing deputy found her to be only slightly impaired, physically and industrially.

Certainly, a worker can claim a cumulative trauma from work over many years, but this is not the time frame plead by claimant in this case. The cumulative injury asserted here is for the time period from April to May 2009.

Claimant has a credible problem that was apparently recognized by the hearing deputy. In addition to not providing correct histories of her past back problems to treating and examining physicians as discussed above, she has not been credible in her testimony in this proceeding. WALSHIRE

AGENCY APPEAL

HAYNES v. LENNOX INDUSTRIES, INC., 5034737 (5-31-13)

In order to find a worker "odd lot" there must a prima facia showing that claimant is permanently and totally disabled using the Diederich factors. In fact, the deputy used the Diederich factors twice: first, in determining that claimant was not permanently and totally disabled under § 85.34(2)(s); and, second, in determining the industrial disability caused by the first and second scheduled injuries for the claim against the Second Injury Fund of Iowa. In both analyses, the claimant was not found totally disabled. I agree with these industrial assessments given claimant's age, education, work experience and functional limitations, expressed by Dr. Cherny. As pointed out by the hearing deputy, vocational expert, Susan McBloom, in her report and deposition testimony, opined that claimant has significant residual earning capacity under the restrictions of Dr. Cherny. WALSHIRE

AGENCY APPEAL

ZEARLEY v. EXIDE TECHNOLOGIES, INC., 5035923 - 5035927 (5-31-13)

When Dr. McMains' explanation of the biomechanical stresses on claimant while performing his work tasks is coupled with Dr. Stoken opinion overall a more reasonable conclusion is that claimant's performing those activities over 16 years significantly contributed to the degenerative lumbar condition for which he has treated since November 2009.

It does not follow that the appropriate cumulative date of injury is November 23, 2009, however. While claimant did seek medical care for his low back and legs symptoms from that date onward, it was only after his pain did not resolve with conservative care and he underwent surgery on January 27, 2010, that claimant as a reasonable person would have known the seriousness of his back and leg symptomology. January 27, 2010 is found to be the appropriate manifestation date for claimant's cumulative injury. With the exception of his specific slip and fall incident on May 27, 2010, other pled dates of injury, including July 6, 2010, while recording events that demonstrated the seriousness of claimant's overall injury, properly are dismissed.

Claimant's entitlement to permanent total disability properly commences on the first day he was actually off work as a result of his disabling condition. The record is unclear as to that date. Additionally, permanent total disability benefits are payable for any time when claimant actually missed work as a result of his cumulative injury from January 27, 2010 through September 23, 2010 and from then onward while claimant remains permanently and totally disabled. WALLESER

AGENCY APPEAL

LAUBE v. BOB LENC LANDSCAPING, 5036399 (5-31-13)

Defendants filed a motion to exclude a medical report that claimant attached to his reply brief. The motion to exclude is granted. The attached medical report would constitute additional evidence admitted on appeal. No motion to admit additional evidence has ever been filed. Under 876 IAC 4.27, a party must file a request for taking additional evidence within 20 days of the filing of the notice of appeal.

Additionally, under the rule, and appeal shall be decided on the record submitted to the deputy Commissioner unless the Commissioner is satisfied that additional material evidence exists which is newly discovered and could not have been both discovered and produced at hearing with reasonable diligence. The independent medical examination report regarding claimant's back and hip complaints was available at the time of hearing. Either party could have included it as part of the evidentiary record then.

During his long recuperation, claimant complained bitterly about the knee; yet he never complained to Dr. Dewall about back or hip pain. While claimant testified that pain only developed after Dr. DeWall released him, complaints related to gait derangement reasonably would be expected to manifest when the underlying condition was most severe and not after a release for medical treatment.

Claimant is a longtime smoker. Dr. Cooper, who like Dr. Dewall is an orthopedic surgeon, has stated that smoking may produce spinal degenerative change with associated pain complaints. Given the doctor's expertise, that statement is authoritative even if Dr. Cooper did not examine claimant's back and hip and may well explain why claimant's back in hip complaints did not develop contemporaneously with his most severe knee condition.

It is claimant's burden to specifically set forth the benefits claimant believes were unreasonably delayed and denied and then prove both the delay or denial and that it was unreasonable. Claimant's allegation of biweekly benefit payment without more is insufficient to carry that burden. WALLESER

AGENCY APPEAL

BOLTON v. SUBURBAN LUMBER CO., INC., 5036509 (5-31-13)

The Deputy noted that claimant's mental health provider released him from treatment without permanent restrictions or permanent impairment. Neither is necessarily required to establish a permanent mental injury. The difficulty with claimant's mental health claim is one of causation. The limited mental health treatment records and notes in evidence focus on claimant's long-term familial relationship difficulties and not on his work injury and its consequences. Claimant acknowledged to his mental health care provider that these difficulties preexisted his amputation injury.

Wherefore, the arbitration decision is affirmed and modified by correcting the rate of weekly compensation. WALLESER

COURT OF APPEALS

FRIDLEY v. BLACKHAWK AUTOMATIC SPRINKLER SYSTEMS, INC., 3-314 / 12-1954 (5-30-13)

Frederick Fridley appeals from the district court's ruling on judicial review and argues the district court erred in affirming the workers' compensation commissioner's denial of benefits. OPINION HOLDS: We affirm without opinion.

COURT OF APPEALS

PMX INDUSTRIES v. REICH, 3-313 / 12-1824 (5-30-13)

An employer, PMX Industries, and its insurer, Liberty Mutual Insurance, appeal from the district court's affirmance of an award of workers' compensation benefits for hearing loss and tinnitus to Reich. OPINION HOLDS: PMX failed to carry its burden of proving lack of timely notice pursuant to § 85.23 (2007). There is substantial evidence to support the finding of causation. The commissioner did not err in compensating the scheduled and unscheduled injuries as industrial disability. The finding of 30% PPID was not irrational, illogical, or wholly unjustifiable. We therefore affirm the district court's ruling on judicial review upholding the commissioner's ruling.

AGENCY APPEAL

MACE v. BRIDGESTONE / FIRESTONE, 5035580, 5035581 (5-22-13)

The presiding deputy characterized claimant as having little if any education. It is true that claimant only completed seventh grade. He did obtain his GED in 1974 and did attend two courses of occupational training, one in welding, the other in computer assisted drafting (CAD). He used the welding occupationally many years ago; he has never used the CAD training vocationally since taking that course in 1994. Therefore, any skill set acquired from either his welding or CAD training is likely to be stale and not vocationally marketable without additional training. Claimant is an older worker whom the presiding deputy correctly found to now be an unlikely candidate for retraining. WALLESER

AGENCY APPEAL

SOVDE v. POLARIS INDUSTRIES, INC., 5029881 (5-20-13)

Claimant's prior statements concerning her headaches and anxiety issue have little bearing on the wholesale denial of this injury claim by defendants. None of the doctors involved in this case raised questions concerning the authenticity of the shoulder injury. Also defendant's reliance upon the side comments of Dr. Stone who was treating claimant for problems unrelated to this injury and not retained to evaluate the shoulder is insufficient to form a rational basis to deny permanency from this injury.

I agree with the hearing deputy that there is no fairly debatable issue concerning inclusion of the regular profitability bonus. Claimant received this bonus every year of her employment since 2001.

However, given claimant's return to work without accommodation for her permanent restrictions and without loss of income, it is fairly debatable that claimant's industrial disability exceeds 10%, not 20%. Therefore, the penalty provision shall be lowered to $10,000. However, costs shall still be assessed to defendants for this appeal as there would be no penalty had they acted reasonably in this claim. WALSHIRE

SUPREME COURT

CHARTIS INSURANCE v. IOWA INSURANCE COMMISSIONER, 12-0383 (5-17-13)

In this case, Chartis, formerly known as AIG, urges us to consider whether the Iowa Insurance Commissioner has the authority under §515A.1 to consider an as-applied challenge to a workers' compensation liability insurance rating schedule approved for use in accordance with Iowa law. We conclude the Commissioner does not have the authority under §515A.1 to reject a faithful application of a plan previously approved under §515A.4, despite the perceived unfairness of that application. We conclude this to be true even if, in the Commissioner's judgment, this individual application results in a premium that is excessive or unfairly discriminatory under §515A.1. Further, the legislature intended a §515A.9 hearing to be limited to a review of the manner in which an approved rating system has been applied to an insured. Therefore, for the reasons set forth below, we reverse.

SUPREME COURT

MOAD v. DAKOTA TRUCK UNDERWRITERS, 12-0126 (5-17-13)

On review from the Iowa Court of Appeals. A workers' compensation carrier appeals orders extinguishing its subrogation lien and denying its motion to vacate an order approving settlement. DECISION OF COURT OF APPEALS VACATED, JUDGMENT OF DISTRICT COURT REVERSED, AND CASE REMANDED WITH INSTRUCTIONS.

The question in this case is whether the law of Iowa or South Dakota should apply to determine whether a South Dakota workers' compensation carrier is entitled to subrogation for payments made to its insured by underinsured and uninsured insurance carriers arising out of a settlement resulting from third-party litigation in Iowa. Because we determine that the district court utilized the wrong standard in resolving the conflict of laws question, we reverse the judgment of the district court and remand for further proceedings.

Based on our review of the applicable provisions of the Restatement (Second) and the conflict of laws caselaw, we conclude there are sound reasons for applying §185 to this case. Although conflict rules are rarely perfect, §185 in most cases will provide a clear rule of decision for workers' compensation carriers and claimants alike. Because workers' compensation is designed to be an efficient method for dealing with workplace injuries, we view the application of §185 as superior to the more open-ended considerations of the most-significant-relationship tests.

Because the district court did not apply §185, we remand the case for further proceedings. We note, however, that upon remand §185 may apply to all, part, or none of the lien asserted by DTU. To the extent DTU's lien is not within the scope of § 185, we conclude the conflict issue is controlled by §145. To the extent Restatement (Second) §185 does not apply, we adopt the majority view that Restatement (Second) §145 provides the proper approach to determining subrogation rules in a cause of action for personal injuries.

AGENCY APPEAL

BLOOMHUFF v. MUSCATINE COMMUNITY SCHOOL DISTRICT, 5036143 (5-16-13)

Claimant's mental health impairment and disability was completely neglected in the arbitration decision, despite being specifically pled and discussed extensively in the hearing transcript.

The mental health issues were raised in an amendment to the original notice and petition and were also addressed in claimant's post-hearing brief. While the undersigned could address the mental health claims upon this de novo review, the undersigned chooses to remand this matter to the deputy to consider the mental health issues which he should have addressed in the proposed decision. REMANDED

AGENCY APPEAL

DOBBE v. QUAKER OATS COMPANY, 5022347 & 5026063 (5-15-13)

Claimant states that the presiding deputy improperly characterized the use of $160,000 to set up college accounts as 26 U.S. C. § 529 provides as gifting that sum away. He explains that he would retain ownership of any funds so invested and could withdraw all or part of the assets at will. If true, this use of commuted funds is not an investment that reasonably assures claimant will have a wage substitute consistent with ongoing receipt of workers' compensation indemnity payments throughout his life expectancy, a fact that further supports the denial of the requested partial commutation on this record.

AGENCY APPEAL

HINEGARDNER v. IMON COMMUNICATIONS, 5034476 (5-15-13)

Claimant argues the presiding deputy ignored or did not give sufficient weight to independent evaluating physician opining that differences between the lumbar MRI performed in 2000 and that performed in 2008 related to claimant's purported work incident. Dr. Epp provided no medical rationale supporting that conclusion. In contrast, both Dr. Gordon and Dr. VanFleet fully explained their reasons for not attributing differences on reports of the MRIs performed eight years apart and interpreted by different radiologists to a particular incident. Furthermore, Dr. VanFleet has expertise on lumbar spinal conditions that Dr. Epp cannot claim.

Claimant offered no explanation for being able to perform job tasks in Iowa without taking medication when he believed that he could only perform similar job tasks in Nevada by using significant quantities of narcotic medication. An explanation is not otherwise discernible on the record made. WALLESER

AGENCY APPEAL

KNIE v. DIEBOLD, INC., 5036675 (5-15-13)

Without documentary support, claimant's lay recollection alone is not the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs and does not establish as fact defendants' assertion that a prior employer of which this employer properly is considered the successor under § 35.34 (7) (c) has paid seven percent permanent partial disability under § 85.34 (2) (u) and thereby partially satisfied defendants' overall liability to claimant. See § 17A.14 (1). WALLESER

AGENCY APPEAL

COLTRIN v. BETHANY LUTHERAN HOME, 5036914 (5-15-13)

I agree with the hearing deputy that the claimant failed to show by the greater weight of the evidence that her work injury resulted in permanent disability or need for additional medical treatment. In additional to the analysis of the hearing deputy, I find the causation views of the occupational medicine specialist, James Kalar, M.D., and the physical medicine specialist, James Devney, D.O., more convincing than those of D.M. Gammel, M.D., a disability evaluator, who has not been shown to possess specialized experience or knowledge in occupational medicine, physical medicine or orthopedic medicine. WALSHIRE

AGENCY APPEAL

SIGLER v. IOWA MOLD TOOLING CO., INC., 5037125 (5-15-13)

I agree with the hearing deputy that the time when claimant first became aware of the seriousness of her injury was when she reported the injury to her supervisor because this is the time she realized that a prior requested change of jobs did not improve her condition. This is also the time when she realized that her injury was going to adversely impact her ability to continue working at Iowa Mold Tooling.

As the manifestation/injury date is the same as the date the employer knew of the injury, there is no valid notice defense.

The doctor or practitioner's report reimbursement provision in our rule 876 IAC 4.33(6) is not limited to only reports from treating doctors or practitioners. I don't see the word "treating" in that provision and defendants did not cite any authority for its assertions. WALSHIRE

AGENCY APPEAL

REINSBACH v. GREAT LAKES COOPERATIVE, 5021493 (5-15-13)

Defendants assert on appeal that it was improper to reject the views of four orthopedic surgeons in accepting the single view of Dr. Kuhnlein, an occupational medicine physician. I disagree because there were problems with the four opinions relied upon by defendants in addition to the shortcomings stated by the hearing deputy.

The opinions offered by defendants are less convincing from the onset in that their views were drafted by defense counsel after a private conversation with the doctors that is not a part of the record of this case. These elicited opinions are no different than asking a leading question at hearing which likely would not be allowed. To be convincing, an expert must find his own words to express his views. Furthermore, both Drs. Blow and Donohue opine that the current condition is or could be in part attributable to claimant's post settlement activities. Their views as to whether the original injury rendered claimant more susceptible to such injury are unknown.

The extensive report of Scott Neff, D.O, was drafted by the doctor. However, the doctor stated that the claimant needs no further treatment as a direct result of his alleged work injury. The doctor chose to underline the words "as a direct result of his alleged work injury." Although the doctor goes on to state that anything after July 5, 2009 could not be attributed to the original injury, his emphasis on the prior statement suggests that the doctor may very well believe that the original work injury was an indirect, but still proximate cause, of the current problems. Without explanation, which is not contained in this record, the views of Dr. Neff are unclear.

Finally, we have the views of Cassim Igram, M.D. This doctor likewise could attribute claimant's post settlement activities such as riding in a pickup as a cause of an "intervening injury or change in condition." He then states that if the original injury was just a strain, then it would not have caused claimant's current arthrodesis. The record is quite clear that claimant suffered more than a simple, temporary strain, at the time of the original injury. In fact, he suffered a permanent disability as agreed in the settlement documents. WALSHIRE

COURT OF APPEALS

AARP v. WHITACRE, 3-082 / 12-1519 (5-15-13)

A workers' compensation claimant contends that the district court erred in reversing an agency decision awarding him benefits. OPINION HOLDS: The commissioner did not err in concluding the claimant's injury arose out of his employment, and we further conclude the commissioner's application of law to fact was not irrational, illogical, or wholly unjustifiable. Accordingly, we reverse the district court's decision on judicial review and remand for entry of judgment affirming the commissioner's decision.

The essentially-undisputed facts of this case, the deputy found the fall took place in a "small office." The deputy further found Whitacre first hit the corner of the desk, then hit the wall, and then fell to the floor. No expert was required to conclude that these office conditions aggravated the effects of Whitacre's idiopathic fall.

COURT OF APPEALS

SECURITY NATIONAL BANK v. AMERICAN PIPING GROUP, INC., 3-230 / 12-1466 (5-15-13)

An injured worker, through his conservator, appeals a summary judgment ruling that Gethmann Construction Company, Inc.-as the general contractor-could not be held liable for the negligence of its subcontractor. Wheeler was performing iron work for subcontractor American Piping Group (APG) when he fell and suffered severe injuries at an ethanol plant construction site.

Wheeler urges two exceptions to the common law rule that the general contractor is not liable: (1) Gethmann contractually assumed a non-delegable duty to provide a safe worksite and (2) Gethmann retained sufficient control over the worksite to be liable for Wheeler's injuries. OPINION HOLDS: Because we read Gethmann's contract with project owner, Badger State Ethanol, LLC (Badger), to place a nondelegable duty on Gethmann to provide a safe worksite, we find the first exception applies. Once Gethmann contractually assumed that duty, under Iowa law it could not delegate it to APG. The contract also manifested an intent to benefit third-party employees, like Wheeler. We do not decide whether Gethmann retained control over the worksite. (Not a work. comp. case, but, think subro. &/or exclusive remedy.)

COURT OF APPEALS

ESTATE OF HERMAN v. OVERHEAD DOOR CO. OF DES MOINES, INC., 3-110 / 12-0892 (5-15-13)

The Estate appeals a district court decision upholding the workers' compensation commissioner's denial of benefits for Herman's right foot injury. OPINION HOLDS: 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.

SUPREME COURT

COFFEY v. MID SEVEN TRANSPORTATION, 12&endash;0897 (5-10-13)

An employee appeals a district court decision refusing to interpret an arbitration decision under § 86.42 (2011). DECISION REVERSED AND CASE REMANDED WITH DIRECTIONS.

The district court issued a decision stating it was unable to address several issues raised in Coffey's petition because doing so required the district court to make factual findings and to engage in statutory analysis. The court held these tasks are beyond its authority under § 86.42. The court then issued a judgment, which simply restated the language in the arbitration decision. Accordingly, the district court did not answer the issues raised by the parties or determine the amount still owed to Coffey under the arbitration decision. Coffey timely filed a notice of appeal.

In Coffey I, we remanded the case to the district court for it to remand the matter to the commissioner with directions to decide the very issues Coffey raised in his petition for judgment. Therefore, we reverse the decision of the district court and remand this case for further proceedings after the commissioner determines the issues set forth in Coffey I.

SUPREME COURT

COFFEY v. MID SEVEN TRANSPORTATION, 11-1106 (5-10-13)

An employee appeals an adverse ruling by the district court dismissing his review-reopening petition because it was untimely filed. AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.

We hold, 1) where an injured employee receives a third-party settlement completely satisfying the employer's obligation to pay weekly benefits before the commissioner files the arbitration award, the three-year statute of limitations in § 85.26(2) commences from the date of the arbitration award. Consistent with our opinion in this matter, the agency shall, on remand, make findings necessary for its determination of whether Mid Seven's obligation to pay weekly benefits was completely satisfied by Coffey's recoveries from the third parties. If the commissioner determines on remand that Mid Seven's obligation to pay weekly benefits under the arbitration award was not completely satisfied by the recoveries from the third parties, the statute of limitations on Coffey's review-reopening petition will commence running on the date Mid Seven makes its last payment of weekly benefits under the arbitration award.

As to the medical expense issue, 2) although we may not agree with the commissioner's findings, the record supports the conclusion that there was insufficient evidence to establish a causal connection between Coffey's daytime somnolence and osteoarthritis in relation to his PPS. Accordingly, we affirm the commissioner's finding.

The district court should direct the commissioner first to determine the unpaid amounts under the arbitration award and the review-reopening decisions for medical expenses, mileage, healing period, permanent partial disability, interest, and other amounts due under these decisions. Next, the commissioner should determine the credit due Mid Seven because of the third-party settlements. The district court should direct the commissioner in making the calculations to identify the date of the last payment of weekly benefits made under the award. If the actual date of the last payment of weekly benefits made under the award is after the date of the arbitration decision, the three-year limitations period commences from the date of that payment. If the actual date of the last payment of weekly benefits made under the award is before the date of the arbitration decision, the three-year limitations period will commence from the date of the arbitration decision. If the commissioner finds Mid Seven has not paid all of the weekly benefits because the credit from the third-party settlement is inadequate to cover the weekly benefits due under the award, the three-year limitations period shall commence on the date Mid Seven's weekly benefit obligation is fully paid.

AGENCY APPEAL

ATKINSON v. TOYOTA MOTOR CREDIT CORP., 5036606 (5-9-13)

I concur with the Ruling on Motion for Summary Judgment.

Claimant agreed to settle all of her potential claims from an incident on May 4, 2010 in which she was excluded from a meeting by defendant-employer and allegedly suffered an aggravation of her mental condition. The settlement agreement only specifically discussed her claims under ADEA, but the agreement also contains a global release of all other claims against this employer.

The agreement and her discrimination claim under the ADEA and the petition for worker's compensation benefits she has filed with this agency is based on the same alleged actionable conduct. Pursuant to the holding in Ottumwa Housing Authority v. State Farm Fire & Cas. Co., 495 N.W. 2d 723 (Iowa 1993), this agency does not have subject matter jurisdiction over such a claim and the approval of any settlement of such a claim by this agency is not required. I cannot agree that this case presents the exception as set forth in Cargill Inc, v. Conley, 620 N.W. 2d 496 (Iowa 2000). In Cargill, the claim was based on a separate injury due to injurious work activity, not any discriminatory conduct. How the settlement proceeds are to be paid out is not relevant to the subject matter jurisdiction issue. WALSHIRE

AGENCY APPEAL

BUDDE v. TRINITY HEALTH CORPORATION and CATHOLIC HEALTH INITIATIVES A/K/A MERCY MEDICAL CENTER - DUBUQUE, 5034991 (5-9-13)

I adopt the ultimate determination in the arbitration decision, that claimant is not entitled to additional healing period benefits or permanent disability benefits. However, I arrive at this determination differently. AFFIRMED

The deputy found that claimant did not suffer a work injury primarily because of her lack of credibility, the delay of two months in seeking treatment, and the views of her family doctor that claimant's current complaints are not the result of any work injury. The deputy asserts that claimant's testimony was inconsistent and conflicts with medical records. However, the deputy did not delineate these inconsistencies in the decision.

Blanket statements by a deputy concerning lack of credibility are no longer acceptable. Findings of a lack of credibility must be thorough and specific so they can be adequately reviewed on appeal. (See, Eaton.)

Claimant timely reported the injury and apparently adequately explained to these doctors that her initial delay in seeking treatment was to wait to see if her pain subsided as it had done in the past and fear of retaliation by the employer. I find claimant's explanations plausible.

The somewhat supportive views of Dr. Kuhnlein concerning this claim are insufficient alone to overcome the views of the other physicians. The most convincing of all of the opinions comes from her family doctor, who has extensively treated claimant for her many health complaints for several years, both before and after the work injury. His lack of support for this claim is quite significant.

Claimant may honestly believe her current complaints are due to the work injury, but the expert medical evidence is insufficient to demonstrate that her current complaints are work related. WALSHIRE

AGENCY APPEAL

MEANS v. POET BIOREFINING, 5037023 (5-9-13)

Both Dr's Neff and Atteberry suggest that there must have been a second intervening injury to the left knee. However, no such injury was shown and claimant's testimony that there was no such intervening injury is uncontroverted. Even Dr. Atteberry admits that the initial work injury rendered claimant more susceptible to re-injury without any intervening traumatic event.

I also agree the rating of Dr. Bansal is more indicative of claimant's true loss of use to this leg, given claimant's testimony concerning his limitations and the recommended permanent restrictions imposed by his physicians. Credible lay testimony from claimant must be considered in determining the actual loss of use in assessing scheduled member disabilities so long as loss of earning capacity is not considered. WALSHIRE

AGENCY APPEAL

BROWN v. CAMANCHE COMMUNITY SCHOOL DISTRICT, 5034722 (5-9-13)

If defendants assert that this claim is to be treated as an occupational disease as a defense, then it bears the burden to show that it is such a disease. They have not carried that burden in this record.

Defendants complain that no scientific cause for claimant's lung problems has been shown. However, it is not necessary to show a precise scientific cause to support a finding that exposure to agents in the workplace is a cause of a disabling medical condition. As Dr. Kline analogized in a similar case where the precise cause of the lung problems was uncertain, we still do not know the exact mix of chemical irritants that caused the lung problems experienced by workers at the post 911 World Trade Center site, but no one doubts that the site was the cause of their problems. As long as the cause is possible, a temporal relationship between exposure and the onset of symptomology is sufficient to support an award of workers' compensation benefits. Also, the fact that the amount of dust or mold would normally not be harmful to the general population is largely irrelevant in workers' compensation claims. An employer takes an employee as is with all his frailties and susceptibilities, including sensitivities to certain agents in the workplace that is not typical of other workers. WALSHIRE

AGENCY APPEAL

JOYA v. JB SWIFT AND COMPANY, 5032935 (5-8-13)

Although the evidence shows claimant had noted shoulder problems while at work which resulted in the need for pain pills and creams from the employer's dispensary, it was not until December 11, 2009, when claimant was placed into the labor market due to his numerous other health issues.

As it relates to the extent of permanent disability, defendants present a very compelling argument that claimant has sustained no permanent disability as a result of his bilateral shoulder injuries due to his non-occupational disabilities. Claimant was found totally disabled and entitled to benefits from Social Security primarily due to his renal failure, respiratory failure, diabetes, and hypertension. Claimant's bilateral shoulder conditions were not included in the analysis of the Social Security Administration in finding claimant totally disabled. Although not precisely the appellate argument by defendants, it could be reasonably concluded upon appeal that as of December 11, 2009, claimant had no retained earning capacity due to his non-occupational impairments. It is claimant's burden to prove that he has sustained a loss of his earning capacity solely related to work-related impairments to his shoulder. Upon a de novo review of the record it is concluded that claimant has proven that his bilateral shoulder injuries - standing alone - result in permanent and total disability.

AGENCY APPEAL

TEAGUE v. YELL ADWORKS, INC., 5035180 (5-7-13)

Payment under §85.21(1) does not establish the fact that a work injury occurred. The Hartford's agreement to pay claimant benefits was not binding on XL and XL was free to challenge the fact of injury. Once XL did so, the Hartford essentially assumed the worker's burden of proving a compensable work injury occurred, which included the obligation to produce medical evidence supporting a nexus between the work obligations and the claimed injury, which they failed to do. WALLESER

AGENCY APPEAL

ANDERSON v. CARE INITIATIVES, INC. d/b/a WESTRIDGE NURSING & REHAB CENTER, 5036484 (5-7-13)

That claimant has difficulties with honesty and truthfulness is not disputed. Acknowledgment of that fact does not end the fact finder's task, however. The duty to examine the overall record evidence remains.

In this case, the evidence of any pre-existing back condition is slight.

The findings of all providers after the claimed injury are remarkably consistent and strongly suggest a persistent change in claimant's back condition thereafter. That fact supports Dr. Bansal's opinion that claimant has permanent impairment and the need for a permanent lifting restriction as a result of her work injury. WALLESER

AGENCY APPEAL

KLAR v. WAL-MART STORES, INC., 5036670 (5-7-13)

While it is possible that claimant had a non-witnessed work incident where a box weighing 15 to 20 pounds fell 4 to 5 feet from a shelf and hit him directly on the head on approximately December 27, 2009 and that he suffered no trauma that required immediate medical attention from the incident. That a need for medical care would arise approximately one week later and result in symptoms that also are consistent with his pre-existing diagnoses and complaints is not probable, however. Doctors Abernathey, Rondinelli, and Suh, all have so opined. Dr. Christiansen acknowledges that claimant's displayed behaviors relate to his self-identity and set of beliefs about the disorders that claimant believes he possesses. That fact also is consistent with claimant's symptoms and behaviors originating in something other than the asserted work event.

The record evidence when considered in its entirety does not establish that any work incident claimant may have had in late December 2009 resulted in his asserted medical and mental health conditions. WALLESER

AGENCY APPEAL

HUNTER v. STINNES CORP., 5034623 (5-6-13)

The deputy found that claimant had sustained a 50% loss of use to the right leg, but had failed to prove by a preponderance of the evidence that he had sustained a permanent sequelae mental injury as no permanent impairment or restrictions had been imposed as a result of his mental health issues. Claimant asserts that the presiding deputy commissioner erred in failing to find a whole person permanent disability related to claimant's continuing symptoms of major depressive disorder with resulting loss of earning capacity compensable under § 85.34 (2) (u).

While no examiner or treatment provider has specifically assigned permanent functional impairment related to the mental condition, actual assignment of a rating of impairment is not necessary to establish that a condition is impairing and likely to permanently impact an individual's psychological functioning. Both of claimant's treating mental health care providers opine that he is likely to have persistent emotional limitations that will impact his employability into the indefinite future, that is, permanently. REVERSED and REMANDED.

AGENCY APPEAL

MURPHY v. D.A. TRANSPORTATION, INC., 5033011 (5-1-13)

The hearing deputy correctly rejected the vocational expert's opinions that were based on permanent activity restrictions recommended by a physical therapist following functional capacities evaluations. This agency gives little weight to functional capacity evaluations by physical therapists that are not adopted by a licensed physician and conflict with activity restrictions imposed by licensed physicians. Such therapists simply lack the medical qualifications to make such medical assessments and causally relate their findings to a work injury.

Claimant complains on appeal that the hearing deputy failed to assess the credibility of claimant's testimony concerning the extent of his disability. Admittedly, no specific finding was made, but clearly the hearing deputy impliedly rejected portions of claimant's testimony that his disability is consistent with the functional capacity evaluations when the deputy found that the evaluations were not representative of claimant's disability. Also, it is quite apparent from reading the arbitration decision that the hearing deputy was not impressed with claimant's testimony that he wanted to return to work after he rejected an offer to return to his job with defendant-employer and declined multiple offers of free vocational assistance in securing suitable work. WALSHIRE

 

AGENCY APPEAL

GROSZ v. STEIN HEATING AND COOLING, 5036273 (4-30-13)

The assertion on appeal that claimant has no permanent work activity restrictions overlooks the 50 pound limit recommended by Dr. Stoken, as discussed by the hearing deputy in his decision. WALSHIRE

AGENCY APPEAL

RINCON v. IOWA SELECT FARMS, 5037016, 5037017 (4-30-13)

Claimant appeals denial of benefits. AFFIRMED.

It is not clear from reading Dr. Kuhnlein's views, whether he attributes Claimant's pain behavior and the non-objective findings to the work injury or some other cause.

After describing his examination and findings concerning the lumbar spine, he concludes as follows: "I do not think that this was related to the back, I think it was related to her pain behaviors."

The doctor did not explain what he meant by pain behaviors, non-objective findings or nonphysiologic findings or whether these conditions are attributable to an injury that Dr. Igram opined was only temporary. WALSHIRE

AGENCY APPEAL

HOOVER v. UNITED STATES GYPSUM CO., 5034884 (4-25-13)

Claimant testified that she knew her foot injury was work related prior to undergoing surgery in December 2008. A reasonable person of claimant's education and intelligence should have known that the bilateral condition was serious and likely to adversely impact employability when surgery was required. At that time, claimant expressly denied the condition was work related on her associated application for short term disability. Under that circumstance, notice of the claimed work injury given to the employer by way of a petition filed some two years later clearly is inadequate to meet the requirements of § 85.23. WALLESER

AGENCY APPEAL

RAMIREZ-TRUJILLO v. QUALITY EGG, L.L.C., WRIGHT COUNTY EGG DIVISION, 5035031 (4-25-13)

Although I agree with the hearing deputy that the medical expenses incurred after September 30, 2009 are not causally related to the work injury, I find that defendants failed to notify claimant pursuant to § 85.27(4) that further treatment of her back by these previously authorized providers would not be authorized. The office notation of the authorized provider specifically stated that if further problems should arise, she may return to the clinic. All of the expenses were incurred by claimant for medical care by either an originally authorized provider or upon referral by an authorized provider. Defendants apparently concede they provided no notice of non-authorization as required by § 85.27(4). Defendants are obligated to monitor the care they authorized and to pay for the authorized care, even if the care is ultimately not found work related. WALSHIRE

AGENCY APPEAL

RILEY v. EATON CORP., 5037054, 5037055 (4-25-13)

In this case, the only physician to provide loss of use ratings simply opined that the loss of use is 2.5% for each arm. There was no reference to any use of the AMA Guides and no conversion to single body as a whole rating. The hearing deputy found that claimant's disability was less than total, measured industrially, and that claimant suffered a total 15% loss of use due to the impairments to each arm after considering claimant's testimony that claimant has lost 30% of his grip strength. The hearing deputy unfortunately did not explain how she arrived at the 15% finding.

I fail to understand defendants claim on appeal that the hearing deputy improperly used an industrial loss analysis in arriving at the award. An industrial loss analysis was made to find that it was less than total, but then the award was based only on a finding of a 15% permanent impairment. Any reference to the body as a whole in the decision was to explain how §85.34(2)(s) is to be applied under the Simbro case and that the combined percentage loss is to be multiplied by 500 weeks, the same number of weeks used to compensation body as a whole industrial injuries.

Clearly, the hearing deputy found claimant's testimony about his loss of grip strength credible. WALSHIRE

COURT OF APPEALS

HERNANDEZ v. OSCEOLA FOODS, 3-269 / 12-1658 (4-24-13)

The only issue properly before us on review is whether Claimant suffered from a change in economic condition sufficient to reopen her workers' compensation settlement.

Claimant's initial job loss with Osceola Foods had nothing to do with her physical impairment but rather her dishonesty with the company. She improperly filled out an employment application for her husband and intentionally misrepresented his employment history. She testified she believes she would still be working at Osceola Foods but for her dishonesty and misconduct. Her subsequent job loss with Farley's and Sathers was not because she had a lifting restriction, it was because she was dishonest in obtaining the employment when she answered affirmatively she was able to lift fifty pounds though she thought she was restricted at twenty pounds less than that. She was told by Farley's and Sathers had she been honest about her work restrictions she would not have been offered the job. The agency was correct in finding that, "Any loss of access to the labor market she now has is no different than the loss of access she had when the agreement for settlement was approved."

No facts about Claimant's employability attributable to her injury have changed subsequent to her injury and settlement. The substantial evidence in the record supports finding her earning capacity at the time of the review-reopening hearing remained as it was the day the settlement was reached, even if her actual earnings have decreased due to other circumstances.

AGENCY APPEAL

VIDAL-SANCHEZ v. TYSON FOODS, INC., 5035385 (4-23-13)

Defendant argues that the deputy adopted Dr. Bansal's diagnosis of rotator cuff or labral tear. That is not the case. Instead, the deputy found that Dr. Bansal's opinion that the work claimant performed for approximately two years could result in a rotator cuff tear was consistent with the findings of shoulder abnormality that Dr. Emerson, Dr. Dehner and Dr. Archer as well as Dr. Bansal made. She also found that Dr. Bansal's medical opinion relating to causation of claimant's shoulder symptoms, the objective findings on multiple shoulder examinations by multiple physicians, and claimant's subjective shoulder complaints, all supported the conclusion that claimant has right shoulder pathology that results from his work activities. That the exact nature of that pathology cannot be determined without further objective medical testing and treatment does not preclude of finding that some pathology exists and is disabling to claimant. Indeed, the greater weight of the evidence supports such a finding of this claim. AFFIRMED. WALLESER

AGENCY APPEAL

HESBY v. POLARIS INDUSTRIES, INC., 5035340, 5035341 (4-17-13)

Defendant asserts that there was insufficient medical opinion to support a finding that the right hip replacement was due to the alleged injury. Although there were chiropractic records showing some intermittent complaints to the right hip between 2002 and 2007, there were no such records in the two year period prior to the December 2009 injury. There is no evidence that claimant suffered from any chronic hip pain prior to the work injury. The view of the treating orthopedist, that despite his prior limping, the work injury significantly aggravated a prior arthritic hip condition and accelerated the need for surgery is convincing. WALSHIRE

AGENCY APPEAL

KAYSER v. FARMERS COOPERATIVE SOCIETY, 5034699 (4-17-13)

I disagree with the hearing deputy that claimant's gross weekly rate of compensation must be calculated pursuant to § 85.36(9).

Because they wish to apply and benefit from application of § 85.36(9), defendants have the burden of proof to show that that subsection is applicable.

What may or may not be the earnings of a "full time" worker in the line of industry involved in this case, i.e. grain elevator/processing/storage, has not been established in this case. Defendants must show the injured worker either (1) earns no wages or (2) earns "`less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality.'" Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129, 134 (Iowa 2010). A feed mill operator for this employer, who has done little or no research on the issue, has not been shown to be qualified to make any opinion as to what is or is not customary practice in hiring part or full time workers in this line of industry for any locality.

I find that claimant's gross weekly earnings at the time of his injury is to be calculated pursuant to § 85.36(6) as an average over a 13 week period prior to the work injury. Claimant desires to exclude certain weeks as unrepresentative, on the basis that weather and employer needs varied, but it is readily apparent that claimant's hours varied greatly. We only exclude weeks as unrepresentative if they are short due to illness or vacations. Weather difficulties are not factored into calculations made for construction workers and should not be factored in in this case. WALSHIRE

AGENCY APPEAL

FRY v. WEST DES MOINES COMMUNITY SCHOOLS, 5032198 (4-17-13)

The first issue is whether claimant suffered any permanent disability or functional loss of use of his body. Defendant relies upon the views of Drs. Nelson, Troll and Kuhnlein. Claimant relies on the views of the family doctor, Dr. Honsey and Dr. Stoken. Also, there is an assertion that claimant's testimony at hearing concerning the effort used to operate the power sweeper prior to the left hip popping incident.

Dr. Honsey, the family physician. Although he is not a specialist, he has the unique vantage point of having treated claimant's back since 2001. Dr. Honsey and Dr. Stoken are more convincing than the views of Drs. Nelson and Troll, who place blame on a relatively asymptomatic arthritis condition until the 2007 injury.

The only physician to opine as to the extent of claimant's functional loss and activity restrictions was Dr. Stoken as the other doctors refused to do so because in their opinion it would not be work related. Dr. Stoken finds that claimant has reached MMI and suffered an 8% PPI to the whole person and that claimant should be restricted to lifting no more than 30 pounds and to avoid bending, lifting, and twisting. I find that the cumulative work injury beginning in January 2007 as manifested on October 6, 2008 is a cause the PPI and activity restrictions delineated by Dr. Stoken.

In this case, claimant has not suffered a major loss of his earning capacity at least at this time. Due to his supervisory type of position, he is able to avoid tasks that would exceed his limitations and is able to work at his own pace. Claimant is in his mid 50's and is a high school graduate. His work experience has been in semi-skilled manual labor and this current physical limitations from his work injury will undoubtedly reduce his job opportunities should he loose his current job. He has permanently lost a significant amount of access to the labor market. However, his job at present appears suitable and stable

I find that claimant has suffered a mild 25% loss of his/her earning capacity as a result of the work injury. WALSHIRE

AGENCY APPEAL

WOODSIDE v. LINN STAR TRANSFER, 5031208 (4-16-13)

The employer could not accommodate those restrictions and took claimant off work, apparently advising her to apply for unemployment and to continue to inform the employer of her work status. Claimant stopped informing the employer of her work status. The employer subsequently terminated her.

As her restrictions were never lifted, she was never capable of returning to work for the employer or returning to substantially similar work prior to her achieving maximum improvement after her fusion surgery. She is entitled to healing period benefits. WALLESER

AGENCY APPEAL

HALLETT v. BETHANY LIFE COMMUNITIES, 5026888 (4-16-13)

Claimant contends the deputy erred in finding she has had neither a physical nor an economic change of condition that is causally related to her injury since the arbitration hearing.

A mere change in treatment regimen does not equal to a worsened overall condition, however. If anything stronger medication would be expected to improve overall functioning.

Claimant argues her economic prospects also are worse because she has not continued her schooling. Claimant now is precluded from returning to college because she has not paid past tuition owed for courses she had dropped out of before her arbitration hearing. Her failure to pay the tuition is not attributable to her work injury. Her intellectual capacity for retraining or further education remains.

Claimant asserts the deputy's considering facts that existed at the time of arbitration hearing was improper. The deputy also considered evidence presented at the review-reopening proceeding and found facts from that evidence. She then compared the facts extant at the time of both proceeding. This process of comparison is required to determine whether review-reopening is appropriate. WALLESER

AGENCY APPEAL

GORDON v. PENFORD PRODUCTS, 5034933 (4-16-13)

Defendants appeal from the presiding deputy commissioner's findings that claimant sustained a sequela injury to her low back as a result of a functional capacity evaluation (FCE) she underwent for her admitted right shoulder injury and that she is permanently totally disabled as a result of her shoulder and low back conditions. AFFIRMED

Claimant underwent a FCE for the right shoulder injury. After that evaluation, she began to complain of low back pain that she believed the FCE had produced. A lumbar MRI showed age-appropriate degenerative changes only; nevertheless, claimant has continuing low back symptoms. Two physicians relate the continuing low back symptoms and claimant's need for low back related restrictions to the FCE. Defendant's IME physician relied on an inaccurate history.

Claimant had had episodes of low back pain intermittently over her work life. Yet nothing in this record suggests that she was experiencing significant low back pain prior to the FCE or that her previous episodes of low back discomfort were anything other than the lumbar complaints that many heavy industrial laborers experience on occasion.

Claimant is an older worker with a history of manual labor whose formal education ended with high school. Her capacities for retraining and further education are likely limited. Her own limited job search was not successful and job possibilities defendants' vocational expert set forth appear less than viable. In short, while claimant is not absolutely helpless and certainly can occasionally engage in some activities, as the surveillance video demonstrates, her work injury and its sequela have wholly disabled her from performing work that her experience, training, education, intelligence, and physical capacities would otherwise permit.

The deputy correctly found her PTID under a traditional analysis of what constitutes PTID. WALLESER

AGENCY APPEAL

BAJRAMOVIC v. DEERFIELD RETIREMENT, 5026550 (4-15-13)

The deputy commissioner found that defendants had failed to prove review-reopening was warranted from the prior division finding that claimant was permanently and totally disabled and further found that partial commutation of benefits was not in claimant's best interest. REVERSED

The sole issue to be resolved on appeal is whether a partial commutation of 1,600 weeks of permanent total disability benefits, with benefits to resume if the claimant is still living at the end of this period, is in the best interest of claimant.

The sole basis for the presiding deputy's denial of partial commutation was the risk of claimant being a poor financial planner. Claimant has hired a financial planner and it is a reasonable expectation that claimant will follow the advice of the planner hired to work on her behalf.

Following a de novo review of the record it is concluded that the potential detriments to the worker do not outweigh the expressed preference and the demonstrated benefits of commutation.

AGENCY APPEAL

KAUFFMAN v. FAIRFIELD ALUMINUM CASTING, 5034376 (4-15-13)

Claimant's testimony regarding the incident at hearing was consistent with the undated employer work injury report that he completed, with the history he gave the doctor to whom the employer initially directed him, with the statement he gave to the insurer's claims adjuster, and with medical histories he gave to subsequent providers.

Defendants challenge the occurrence of the injury both because the lead worker later could not recall the incident claimant reported and for which the employer immediately provided him care with its company doctor, and because claimant's computer work log does not record his working in prototype on the date of injury. That the lead worker simply forgot about the incident and that claimant simply forgot to properly log his work activities is more probable than assuming that claimant would have wholly invented the injury he reported on or near the day it allegedly occurred, especially when early employer investigation of the described incident could have determined the veracity of claimant's report. AFFIRMED. WALLESER

COURT OF APPEALS

MILLENKAMP v. MILLENKAMP CATTLE, INC., 3-047 / 11-2068 (4-10-13)

Millenkamp appeals the district court's judicial review decision, which affirmed the agency's denial of his petition for alternate medical care. Millenkamp asserts the agency and the district court erred in (1) concluding the employer has the absolute right to change his medical care, (2) failing to apply the agency precedent regarding his employer's ability to change his medical care, (3) failing to properly explain why it did not follow the agency precedent, (4) denying him due process by failing to follow agency precedent, (5) failing to require the employer to affirmatively monitor his medical care, and (6) concluding that the employer did not interfere with or abandon his medical care. OPINION HOLDS: Upon our review of the agency record on appeal, we see no error in either the district court's or the agency's recitation of the applicable law regarding the employer's ability to select medical care. There is no independent requirement that requires the agency to explain possible inconsistency between agency decisions in a case not reviewable under an abuse-of-discretion standard. We find no substantive or procedural due process violations in this case, and substantial evidence supports the agency's conclusions that the employer monitored and did not interfere with nor abandon medical care.

AGENCY APPEAL

WESTLING v. HORMEL FOODS CORPORATION, 5019700 (4-9-13)

Claimant seeks alternate care the authorized physician has evaluated claimant and does not presently recommend surgery - suggesting claimant return in approximately two years for further evaluation. Claimant seeks care from an alternate surgeon.

There is no limitation on claimant's ability to seek reasonable and necessary medical treatment with the authorized physician. Should such treatment be denied, claimant is urged to file a petition for alternate medical care as an expedited procedure so that such issues can be considered. Further, claimant has testified that he resides approximately five months each year in the state of Florida and in the past has been required to seek emergency medical treatment for his injured knee. Defendants have been shown to have not authorized a physician for treatment in the state of Florida. Claimant is entitled to such treatment, if needed in the future.

AGENCY APPEAL

PAULSEN v. CITY OF DAVENPORT, 5033124 (4-9-13)

Claimant generally asserts that the presiding deputy commissioner erred in granting summary judgment to defendant. REVERSED

Claimant was hired and was thereafter required to attend the Iowa Law Enforcement Academy. Defendant states that all injuries to sworn police and fire employees are handled according to chapters 410 and 411.

Claimant was provided two options: to resign in two days or to be terminated in two days. This limited record establishes that claimant resigned because she was concerned about a termination on her record, but quickly sought to withdraw her resignation. Claimant presents that her attempt to withdraw her resignation occurred "when she realized what defendant was trying to do."The retirement system received her application for disability and because the system's records show a termination, her application for benefits was denied.

The general dispute in this pending matter is whether the Iowa workers' compensation act is available to a disabled police officer who has been denied entitlement to compensation benefits from the disability retirement system due to no longer being a "member in service". The presiding deputy commissioner found that claimant's receipt of medical care pursuant to chapters 410 and 411 made it preclusive that claimant was entitled to benefits pursuant to chapters 410 and 411. However, claimant was expressly found to be not entitled to disability benefits upon her proper and prompt application. Claimant was denied disability retirement benefits because she is no longer a "member in service". Claimant has never been compensated for a permanent disability benefit of any kind pursuant to chapters 410 and 411 - nor was she compensated for her healing period benefit under those chapters. Rather, the self-insured defendant paid claimant her regular wages which is an allowable act under the workers' compensation act. § 85.1(4) states that only persons "entitled" to benefits pursuant to chapters 410 and 411 are precluded from entitlement to workers' compensation disability benefits. Claimant was notified upon proper application for disability benefits that she was not "entitled" to such monetary disability compensation from the police disability fund. Claimant seeking benefits under the Iowa workers' compensation act will not result in a double recovery or in an improper election of remedies on her part. Claimant made proper application pursuant to chapters 410 and 411 and was found not "entitled" to any form of disability benefits. The Iowa workers' compensation act is therefore her only appropriate and remaining remedy, other than potential claims outside of the compensation systems as identified by the presiding deputy commissioner. It would be an absurd result to deny a disabled law enforcement officer any form of compensation due to the legal crevasse into which this claimant has fallen - especially in light of the path upon which defendant sent her down by meeting with her regarding her future as a police officer and the lack of notice as to the implications as to her rights to compensation for a non-disputed work-related injury.

AGENCY APPEAL

BRANCHCOMB v. MAIL CONTRACTORS OF AMERICA, 5032720 (4-9-13)

Claimant's asserts that the odd lot doctrine was not properly applied in this case. However, before any burden shifting can occur under such a doctrine, claimant must first present a prima facie case for permanent total disability. This was not done in this case. No doctor has opined that claimant is unable to work. No reasonable unsuccessful attempt to find suitable work was presented. No vocational expert opined that suitable work was not available to claimant.

I agree with the analysis of the hearing deputy that claimant's work injury in this case is a cause of a 60% loss of earning capacity. He could not return to truck driving activity that required more than occasional lifting of 15 pounds and he likely would not be able to crank up a trailer dolly. WALSHIRE

AGENCY APPEAL

ZAVALA v. TYSON FRESH MEATS, 5033035 (4-9-13)

Claimant's treating physicians state claimant has no ratable impairment, apparently under the AMA Guides, 5th Edition. Even if their opinions in this regard were accepted, the absence of ratable impairment under the Guides is not dispositive on the issue of loss of earning capacity. Claimant had a valid functional capacity evaluation after the work injury, with a resulting recommendation that he rarely lift 25 pounds and occasionally lift 15 pounds. Those recommended restrictions are substantially more stringent than the restrictions of a 35 pound maximum lift and a 25 pound frequent lift imposed after claimant's prior low back injury with this employer.

Additionally, claimant's restrictions definitely preclude his doing two of the four jobs he has held in the plant. He had difficulty performing a third job and voluntarily returned to his fourth plant job, which apparently is the only one of his past jobs for the employer that he can comfortably continue to perform with his injury related symptoms. The record contains no evidence of other plant jobs that might be available to claimant. This substantial loss of jobs within the plant is direct evidence that claimant has significant industrial loss as a result of his present injury that significantly hinders his ability to compete for work in the general labor market. WALLESER

AGENCY APPEAL

ROURKE v. VT INDUSTRIES, INC., 5027509 (4-9-13)

Deputy adequately explained the award and I agree that claimant has not shown entitlement to permanent total disability. Claimant failed to show that he is incapable of work in any capacity. Claimant made no effort to seek suitable employment elsewhere. No vocational expert opines that claimant is not employable. Consequently, there is no showing that suitable and stable work is not available to claimant outside of defendant-employer and, in fact, claimant has a suitable and stable job with this defendant-employer. WALSHIRE

AGENCY APPEAL

PATTON v. TCG, INC., 5020707 (4-8-13)

Claimant testified that he provided the laborers union with Dr. Piper's full medical release to full duty work but the union would not place him on any job because it did not believe he was "100 percent". He argues that his injury related industrial disability is substantial, as the union perceived him to be disabled and, therefore, would not provide him work. When deposed, the union business manager's deposition testimony contradicted claimant's testimony, however. The manager denied having ever received a medical release from claimant; he stated claimant probably has not been given jobs because claimant said he could not work. While claimant has multiple health problems that have entitled him to SSDI benefits and might preclude his return to work as a construction laborer, neither his rheumatoid arthritis nor his shoulder condition are work related. Industrial loss attributable to those conditions is not defendants' liability. WALLESER

AGENCY APPEAL

MCNAMARA v. HI CREST INCORPORATED, 5033540 (4-8-13)

Defendants complain the hearing deputy failed to fully consider a decision of an unemployment ALJ who found that claimant was terminated for misconduct and improperly found that claimant's loss of his employment for defendant-employer was due to restrictions imposed for his work injury. First, unemployment decisions are not binding on this agency. § 96.6(4). Second, there are good reasons for not applying the doctrines of issue or claim preclusion to such proceedings, given their rather summary nature with little opportunity afford to litigants to discover and analyze relevant evidence as compared to our extensive proceedings in which discovery occurs on average for more than a year before hearing. Finally, the hearing deputy's findings were based in part on her assessment of claimant's credibility

The deputy found the views of Dr. Bansal more convincing on the issue of the causal connection of the shoulder problem to the work injury given claimant's explanation as to the reason for any delay in expressing shoulder pain. Both Dr. Trihn and Bansal agreed that a restriction against over-head work was necessary for his shoulder condition. Such a restriction would not allow claimant to return to his job which primarily involved overhead work under a vehicle while the vehicle is on a lift. Clearly, he was not able to return to this job due to the work injury regardless of any finding by an unemployment hearing officer that claimant was not eligible for unemployment benefits.

Finally, the deputy correctly applied the fresh start rule given claimant's past low back problems. The fresh start rule is based upon the premise that a workers' earnings in the competitive labor market at the time of a work injury are reflective of that workers' earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his or her employment prior to a work injury, the impact of that impairment or impediment upon that workers earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury. Industrial loss now is no longer a measure of claimant's disability from all causes after which we then apportion out non-work causes and leave in work related causes under the full responsibility rule. An already severely disabled person before a work injury can have a high industrial loss because the loss is calculated in all cases from whatever his earning capacity was just before the injury and what it was after the injury, not the loss as compared to a healthy non-disabled person. In other words, all persons, start with a 100% earning capacity, regardless of any prior health conditions. WALSHIRE

AGENCY APPEAL

ELVERT v. CITY OF DAVENPORT, 5032804 (4-8-13)

Claimant's decedent suffered an injury to his lungs and developed the disease of histoplasmosis from his exposure to bird and bat feces and fungus while working as a park custodian during the summer of 2008 and that disease was a cause of his death. Claimant's surviving spouse is one of the claimant's in this case.

In the wake of widespread flood damage in 2008, decedent was assigned to clean park shelters of accumulated filth, including droppings from nesting bats or birds. His wife testified that he was also concerned about the droppings due to the frequent usage of shelters by local families and routinely cleaned these shelters with a leaf blower that apparently caused the droppings material to become airborne and inhaled.

The rate dispute involves a number of absences from work in October 2008 when he began to experience a worsening of his lung problems. Clearly, the most representative weeks involve the time when he was not suffering from the debilitating effects of his work injury.

The injury date is a bit odd as there is no evidence advanced for why that date was chosen. However, no statute of limitation or notice defense as raised and given the manner in which I found the correct rate of compensation, the precise injury date is not particular important to the issues in this case.

His Estate is entitled to accrued weekly benefits for healing period. Claimant was off work after July 1, 2009 and I found that he was not capable of returning to work in any capacity at that time. He never improved after than time. Defendant asserts that he was offered suitable work and should not be liable for any weekly benefits. However, as I found he was not capable of any work, that defense is rendered moot.

Finally, the employer is to pay weekly benefits to surviving dependents of a deceased employee.

In this case there is no claim for medical benefits. The funeral expenses were not submitted into evidence, so only a general award can be made. WALSHIRE

AGENCY APPEAL

HOBART v. B.G. BRECKE, INC., 5032561 (4-4-13)

§ 86.13 (4) (c) sets forth three criteria that must be satisfied for an excuse from commencement or continuation of benefits to be considered reasonable to avoid penalty. First, the excuse must be perceived by a reasonable investigation and evaluation of whether benefits are owed. Defendants offered no evidence of having done so prior to their answer or otherwise. Second, the investigation and evaluation must have been the actual basis for the denial of benefits. Where an investigation and evaluation have not been made, such cannot be the actual basis for denial.

The third criterion is that the basis for the denial must be contemporaneously conveyed to the employee at the time of the denial. The general denial of whether the injury arose out of and in the course of the employment in the answer does not do that. That general denial is couched in the language of legal conclusion. It provides claimant with no specific facts from which claimant could derive an actual understanding of why the claim of a work injury was denied.

An employee with an actual understanding of why an employer has denied a claim for benefits may be able to provide the employer with additional or corrected information that supports the employee's claim for benefits. Contemporaneous dialogue between the parties about the facts underlying the claim assures that both parties have all relevant information about the claimed injury in its immediate aftermath. That, in turn, both assures that legitimately claimed benefits are timely paid and promotes early resolution of disputed claims.

Claimant has given a consistent history of the work incident. He acknowledged having not expressly informed the employer representatives of the incident prior to or at his termination and acknowledged having had a preexisting low back injury. That a worker with previous back problems would self-treat for pain for an interval after an incident before realizing the incident had produced more than a temporary flare up of their baseline problem is not so unreasonable as to be incredible. WALLESER

AGENCY APPEAL

EATON v. CARGILL MEAT SOLUTIONS CORPORATION, 5032323 (4-2-13)

The preponderance of the evidence does not support claimant's claim of a permanent disability resulting from his work injury. It is further noted that the evidentiary finding on appeal is not dependent upon a credibility determination in this particular case, as the record as a whole does not support claimant's assertions of permanent disability. It is noted that a demeanor assessment was made by the presiding deputy which was adverse to claimant. Claimant specifically appeals that the demeanor assessment was in error. The demeanor assessment cites to claimant's "body language, vocal expression, eye contact or lack thereof, directness or evasiveness of responses to questions, and overall interaction with counsel on both direct and cross-examination." Such boilerplate demeanor assessments, without explanation and citation to specific observations, are insufficient to provide a pathway for appellate review. Further, caution is warranted in making a credibility assessment based upon demeanor observations as the demeanor of a person testifying before a hearing deputy may be significantly influenced by many factors that will not be known by the deputy. While demeanor findings are likely to be rare in arbitration matters, demeanor findings of a deputy shall require, if to be found persuasive on appeal, some evidence as to the basis for the demeanor finding. When a troubling or endearing characteristic of any witness is apparent to a deputy commissioner, the characteristic or other observation can be memorialized in detail within the written decision. Credibility of a witness is best determined by examining the whole record and comparing the testimony provided at hearing with the material facts in the record as a whole. In this case the presiding deputy provided a well-reasoned opinion as to the issue of permanent disability and demeanor findings were unnecessary.

AGENCY APPEAL

MUHIZI v. TYSON FOODS, INC., 5033463 (4-2-13)

Admittedly, claimant's physical problems today are worse than when he began at Tyson, but the greater weight of the evidence fails to show that his work duties at Tyson rather than his degenerative shoulder condition, is a cause of this deterioration in his physical condition.

Regardless of any other medical opinion obtained by claimant, the prior views of Dr. Gorsche were sufficient alone to qualify claimant for reimbursement of the IME by Dr. Manshadi pursuant to § 85.39. WALSHIRE

AGENCY APPEAL

PAPPAS v. RED OAK REHAB, 5027920 (4-2-13)

The proposed review reopening decision is adopted, except for the analysis and award of industrial disability and the analysis and failure to impose a penalty pursuant to § 86.13.

Claimant's motivation to obtain her GED was attacked, but the finding of the deputy that she is fully capable of obtaining her GED in a timely fashion is not based on any evidence in the record concerning her intellectual abilities. There is a prior bipolar mental condition which apparently qualifies her for special governmental assistance in seeking retraining. Clearly, government officials believe her mental problems contribute to her disability. The work injury is a cause of a 60 percent loss of earning capacity

Defendants generally assert in the appeal brief that after the surgery claimant was allowed to return to work without restrictions and this did not change until she experienced additional pain after working as a waitress for another employer. They claim this to be an intervening event allowing more investigation time. They also claim that claimant's attorney only demanded initially 10 percent and this was want they paid.

Regardless of the delay or insufficiency in the payments made, there was no contemporaneous notice on or after, the date of the appeal decision, that affirmed the arbitration award for the reasons for not continuing weekly benefits. There was also no reasonable notice to explain the payment of benefits, which were labeled for a period of time already compensated. If such a payment was to compensate permanent disability, defendants should have provided reasons for their determination of the extent of permanency at that time. A reasonable penalty for such a violation of our statue is the sum of $2,000.00 for the two instances of non-compliance. WALSHIRE

AGENCY APPEAL

LOPEZ v. TYSON FOODS, 5035005 (3-28-13)

Claimant contends the presiding deputy erred in finding no causal connection between stipulated work injury and temporary and permanent disability.

Claimant alleged bilateral shoulder, bilateral arm, bilateral hand, neck and whole body injury, with a proposed injury date of either April 8, 2009 or September 8, 2009. At hearing she also asserted a low back injury. Claimant had visited the employer's health services on a number of occasions making complaints regarding each of the aforementioned body regions. However, shortly after each of the named injury dates, she advised health services that the complained of symptoms had resolved.

She did then continue intermittently to report diffuse complaints to employer health services, but the origin of her discomfort has never been readily identifiable. Physical examinations by multiple care providers revealed few objective findings. Treatment modalities, including physical therapy, injection therapy, and medication, have not been successful. Per her report, the symptoms persisted for eight months when she was off work, a time during which her physicians believe work activity related complaints should have abated. Doctors have advised that claimant undergo rheumatologic workup. All of these facts suggest that claimant's discomfort has a source other than her work activities. WALLESER

AGENCY APPEAL

HORNADAY v. JIMARI CORP. d/b/a TACO JOHNS, 5035343 (3-28-13)

Defendants assert on appeal that the presiding deputy commissioner erred in finding that claimant sustained a work-related CRPS condition and further erred as to the extent of claimant's disability.

While defendants cite to other cases where this division held that a preponderance of the evidence did not support a finding of work related CRPS, those cases were based upon their own facts and medical records. It is concluded that in this case the preponderance of the evidence does show the development of CRPS following claimant's injury.

Also, in this case, the deputy accepted the diagnosis of a physician which may not be consistent with diagnostic criteria set forth in the AMA Guides, 5th Edition. While IAC 876-2.4 recognizes that the AMA Guides, 5th edition is a useful tool in evaluating loss of use, i.e. impairment, it is merely a guide and is not binding on this agency, especially where the Guides attempt to limit diagnoses of licensed Iowa physicians. The Guides were not adopted as a diagnosis guide and they were not meant to replace Iowa law on causation. Medical professionals are free to diagnose based on the condition and its physical impact, not on a non-legislatively adopted publication that is derived from a "consensus" of a few. This division is then free to adopt such a diagnosis and its physical impact of disability should the facts of a case so warrant

AGENCY APPEAL

JOHNSON v. MAXIM HEALTHCARE, 5034745 (3-28-13)

The deputy expressly found credible claimant's testimony that his pain was more intense and of a different type after a work connected assault than it had been prior to that injury. Additionally, the record evidence demonstrates that claimant's medical treatment after the assault was less sporadic and more aggressive than his low back care prior to being assaulted. Both claimant's testimony and his objective need for sustained low back care after his injury are consistent with Dr. Stoken's opinion that the claimed injury substantially aggravated claimant's preexisting low back condition. The deputy correctly accepted that opinion in finding the injury resulted in permanent disability. WALLESER

AGENCY APPEAL

VASQUEZ v. WEST LIBERTY FOODS, 5035213 (3-28-13)

Even after considering claimant's testimony as to his ongoing pain and resulting impact on his activities of daily living, claimant has not shown permanency by the greater weight of the evidence. Claimant complains that deputy improperly gave more weight to Dr. Jochims simply because he was the treating physician. This is not the case. He gave that doctor more weight because he had more opportunity to observe claimant's clinical presentations than Dr. Stoken. More importantly, Dr. Jochims convincingly questioned claimant's pain complaints. He opined that he is unable to ascribe any evidence of permanent impairment because of his pain behaviors, litigious activity and the lack of atrophy in his left arm. He criticized the findings of Dr. Stoken based on use of a dynameter which can fluctuate greatly in cases of hysteria and he would expect different findings in a case of neuralgia.

The essential basis of Dr. Stoken's opinion is that claimant's complaints are real. I can see no convincing argument to give Dr. Stoken's views more weight than the views of Dr. Jochims. One is an orthopedist and the other is a physiatrist. Both are equally able to evaluate an injured workers' disability.

Although the hearing deputy did not make a specific finding concerning claimant's credibility, he did so impliedly by adopting the views of Dr. Jochims who questioned his pain complaints.

AGENCY APPEAL

HUNTER v. GENERAL MILLS, INC., 5028894 (3-27-13)

Claimant appeals from an arbitration decision, in which the deputy found that he had failed to prove that he sustained a cumulative injury to his spine on the date he last worked for defendant-employer.

There is conflicting medical evidence in the record as to whether claimant's current lumbar spine condition is a result only of his prior lumbar fusion for his December 2005 work injury or whether claimant's work duties resulted in a new, cumulative work injury to his lumbar spine in December 2008. The medical evidence generally is divided between those physicians who recognize a new injury brought forth by claimant's work duties and those physicians who opine that claimant's prior fusion alone, regardless of his work duties, has caused instability in claimant's lumbar spine causing new impairment and symptoms.

Rejection of the numerous medical records which are supportive of a cumulative injury based upon an "inaccurate medical history" is in error. Simply stated, there is not sufficient support in this record to find that the medical records have been based upon an inaccurate history. The finding of an inaccurate medical history that is so flawed as to require such medical evidence to be given no weight cannot be affirmed on appeal.

it is concluded that claimant has proven by a preponderance of the medical and other evidence that he sustained a new work injury that was brought forth by his work duties for defendant-employer and that injury manifested itself on December 29, 2008 when claimant was no longer capable of performing his work duties for defendant.

AGENCY APPEAL

SCHLEMMER v. ARAMARK NORTH AMERICAN FOOD, 5035605, 5035606 (3-26-13)

The hearing deputy adequately explained that there was a minimal impact of claimant's use of her right arm. Lay testimony is considered not only to increase a rating when appropriate, but to lower it as well in appropriate situations.

The throat injury was also shown to have a minimal impact on earning capacity. She was able to return to her job with only the restriction against one of the pizza cutters. There is nothing in the evidence that would prevent a return to any of her past jobs. WALSHIRE

AGENCY APPEAL

SAMPLE v. GOOKIN FORD SALES, 5000932 (3-26-13)

On appeal claimant asserts that the hearing deputy did not adequately consider the views of Dr. Kuhnlein by only mentioning his impairment ratings. Claimant's reliance on the views of Dr. Kuhnlein is unfounded. Although the doctor appears to adopt the limitations outlined by the most recent functional capacity evaluation by physical therapist, Mark Blankespoor, P.T., D.P.T., he qualified this.

I interpret this to mean that the FCE results are essentially invalid as a true measure of his functional limitations because claimant is self-limiting his physical activities. There is no physician that opines that this self-limiting behavior is related to or a consequence of the work injury. If anything, Dr. Kuhnlein's views appear more consistent with the invalid FCE performed by John Kruzich. M.S. WALSHIRE

AGENCY APPEAL

PEMBERTON v. JOHN DEERE DAVENPORT WORKS, 5033771 (3-21-13)

Basing a denial of a claim solely upon a medical opinion from a lay person who is not qualified to render a medical opinion is an invitation to a significant penalty and perhaps compliance proceedings pursuant to IAC 876-4.3 should such conduct continue into other contested workers' compensation cases.

Likewise, it is unreasonable for defendant to assert on appeal that the presiding deputy erred by imposing a maximum penalty when the deputy precluded defendant from presenting testimony post-hearing from its in-house physician. § 86.13 requires a reasonable basis for the denial of a claim at the time a denial is made and moreover the basis must be contemporaneously provided to the injured worker at the time of the denial. There is no evidence that defendant relied upon a medical opinion to deny this claim. If defendant had relied upon a medical opinion, the opinion was required to have been provided to claimant pursuant to § 86.13 and this division's rules regarding the exchange of medical evidence. Further, there is no evidence that the doctor was unavailable to defendant to submit a written statement of his views or submit to a deposition to discuss his medical opinions during any of the 14 months that elapsed between claimant's filing of his petition and the hearing. The decision of the presiding deputy to exclude post-hearing testimony is affirmed, as is the entirety of the arbitration decision.

AGENCY APPEAL

KARNS v. FIELD OF DREAMS LEARNING CENTER, 5034144 (3-21-13)

Defendants contend the deputy erred in finding the work incident produced a lumbar disc herniation as well as the stipulated to left knee meniscus tear. They argue greater weight should be given to the opinion of the examining occupational doctor who opined the mechanism of the injury, stepping over a child safety gate, would not have resulted in disc herniation. However, the overall record demonstrates that the deputy correctly gave greater weight to the opinions of the three orthopedic surgeons who actually treated claimant after the injury. Each related the lumbar condition to the work injury; two directly; one indirectly. An orthopedic specialist's expertise as to the source of a lumbar disc condition is likely to be greater than that of an occupational physician. WALLESER

AGENCY APPEAL

BURNETT v. WAL-MART STORES, INC., 5017502 (3-20-13)

I cannot agree that Dr. Abernathy's failure to mention what records he reviewed in rendering his opinions on whether claimant's condition has changed wholly negates the credibility of his views. He still had access to his prior records. He was the only physician to have evaluated claimant both at the time of the prior arbitration proceedings and in these proceedings. What defense counsel may believe to be significant differences in his findings is not very convincing when the doctor obviously did not believe these differences, if any, to be significant. Also, if defense counsel felt that the new evaluations by other doctors and the FCE would change this doctor's views, they should have specifically provided them to the doctor. At any rate, I cannot infer that this doctor would change his opinion based on new information that he may or may not have possessed. WALSHIRE

AGENCY APPEAL

ALBERS v. VENERTS HOTEL MANAGEMENT, INC., 5034889 (3-20-13)

Defendants appeal from an arbitration decision awarding PTID, reimbursement for the costs of an IME, and medical expenses. AFFIRMED except as to PTID, reduced to 70% PPID.

The case at issue is far more complex than presented by the deputy as to the issue of whether claimant's preexisting medical condition was aggravated or lit up as a result of his traumatic injury which occurred as a result of a motor vehicle accident. There is conflicting medical evidence from the physicians who have evaluated claimant's medical condition - and several of those opinions are also internally contradictory.

Prior to the work-related motor vehicle accident claimant was a full-time employee for defendant performing numerous physical work duties in the role of a hotel handyman. He worked lifting significant weights, he pushed and pulled and carried significant weights, and he worked with his body in many different positions. Claimant performed those duties without apparent difficulty or complaint. Claimant had prior physical complaints for which he sought chiropractic care prior to injury, but those prior complaints did not impact his ability to perform all work duties assigned. Claimant testified that following the work injury he had significant pain develop which precluded his ability to perform many of the duties he performed pre-injury - and this was documented by the physicians then evaluating his condition. Claimant ultimately determined that he could no longer perform the duties of his job and left his position, remaining on to train his replacement.

Claimant's ability to perform work in the competitive labor market was appreciably impacted by the motor vehicle accident and the resulting injuries to his neck and low back. Claimant has sustained a 10 % permanent functional impairment as a result of the work injury. Further, claimant has significant restrictions. It is concluded that claimant's current restrictions are: no lifting greater than 30 pounds on a frequent basis with no lifting greater than 10 pounds above shoulder level; periodic breaks as needed during a 5 hour work day; avoiding repetitive bending, twisting, and prolonged looking up or down.

Claimant is an older worker - 71 years of age when injured and 73 years of age at the time of the arbitration hearing. Claimant has a limited education having obtained a GED, but he has had a successful and proficient career. Claimant is a worker who retired after a long career, but reentered the labor market to remain active and to earn a wage. Claimant is clearly a motivated and a hard worker. Claimant's work injury has resulted in both permanent impairment and permanent work restrictions. The work restrictions obviously prohibit claimant from some of the tasks that he performed in his position with defendant-employer. The restrictions would also impact claimant's past work assignments. Claimant could still perform several of the handyman duties within his restrictions and claimant could still perform other duties in a hotel, such as working the front desk - a duty for which he has training and past experience. It has also been shown that claimant has the ability to work as a driver. Claimant's restrictions do not appear to inhibit claimant from such driving work that he performed in the past.

Defendants assert that they did not "retain" the medical care providers for claimant and that claimant self-directed his own care and therefore, as in IBP Inc. v. Harker, 633 N.W.2d 322 (Iowa 2001), claimant is not entitled to an IME. The Harker case is distinguishable from this present matter. Claimant was in a traumatic motor vehicle accident and he timely reported his injuries to his employer and was instructed to go to his own doctor. After involvement of a claims adjuster and a nurse case manager, claimant was referred to other physicians. Claimant had no prior interaction with the physicians to whom he was referred. The claims adjuster and nurse case manager worked directly with the specialists to whom claimant was referred. Defendants consistently retained and controlled the medical care in this claim - such actions show that defendants not only retained the services of the doctors in this matter, they also worked directly with the doctors they had retained. § 85.39 was triggered in this stipulated work injury claim when Dr. Neff declined to prove a rating of permanent functional impairment. The costs associated with Dr. Stoken's report are properly reimbursed pursuant to § 85.39.

AGENCY APPEAL

DILLAVOU v. PLASTIC INJECTION MOLDERS, 5034244 (3-19-13)

Defendants established by a preponderance of the evidence the affirmative defense that the asserted work injury was caused by the willful act of a third party for reasons personal to such employee. Given the history of animosity between claimant and her brother over the years, claimant's unequivocal statements to law enforcement officers and prosecutors contemporaneous with the injury which prosecutors apparently felt were credible enough to commence prosecution, and the seriousness of the asserted injuries which are not consistent with an accidental bump, this injury most likely was intentional and did not arise from employment. WALSHIRE

AGENCY APPEAL

MENDENHALL v. DAHL'S FOODS, INC., 5035391 (3-19-13)

Defendants carried their burden of proof and demonstrated by the preponderance of the evidence that claimant had knowledge that his leg and back conditions would permanently adversely impact his employment more than 90 days prior to his notice of this injury to defendants.

When he applied for unemployment benefits after his termination, claimant submitted a written statement informing unemployment officials that his physical problems were the cause of the loss of a job that he had held for over 30 years and that he hid his physical problems from his employer in order to remain employed. The expression in this statement that he wanted to rehabilitate himself to return to employment appears to be simply an expression of hope. Claimant admitted in his deposition that when he was terminated, he decided to retire, and he has not looked for employment elsewhere since his termination.

Claimant argues that defense witnesses admitted to observing claimant having physical problems at work. That may be so, but that is not evidence that this employer had knowledge that claimant was asserting a work injury as a cause of these problems, which he has had for many years. WALSHIRE

AGENCY APPEAL

LATHRUM v. OPPORTUNITY LIVING, INC., 5033995 (3-18-13)

Defendants did raise serious issues concerning claimant's credibility. The hearing deputy apparently believed claimant and I must agree. The initial doctors could have been in error. It is not usual for lay person to not realize the seriousness of any particular incident at the time it occurs.

The unemployment judge did not explain the basis of her finding which really was unnecessary to her conclusion that claimant was not entitled to unemployment benefits due to her inability to work as a result of her foot injury. As pointed out by the hearing deputy, there is no transcript or other evidence to review concerning that finding and such a finding is not binding on this agency pursuant to § 95.6(4).

While claimant may not have filled out an accident report for this injury as she had done in the past, defendants at hearing agreed that claimant reported the injury to her supervisor. WALSHIRE

AGENCY APPEAL

MARTIN v. WAL-MART LOGISTICS, 5031773 (3-18-13)

The doctor upon which defendants rely so heavily due to his release of claimant to full duty because claimant only has subjective complaints, also stated on that same page of the deposition transcript that he tells his patient's "let pain be your guide..." when it comes to returning to work. He failed to explain why he did not similarly appreciate claimant's pain complaints in his reports.

Defendants complain that it was improper for the deputy not to consider that claimant repeatedly sought treatment from a hospital emergency department (ED) in non-emergency situations and claims they are supported in this assertion by the ED doctor. Defendants believe this is unjustified doctor shopping. Defendants misrepresent the record. These ED visits typically occurred when his work tasks precipitated significant pain at times when a doctor's appointment was not possible as they occurred in the late night or early morning. The visits repeatedly occurred when his authorized doctor repeatedly released him to return to the full duty work that was causing his pain. At times, the employer is the one that gave claimant the option to either go home or to the ED department.

Defendants ask in the appeal brief why did claimant stop working and how is that important? The simple answer, as explained extensively by the hearing deputy, is that defendants failed to accommodate the physician imposed work related restrictions found to be the most credible in this case. Claimant cannot and should not be penalized by reducing his workers' compensation benefits for refusing work that did not fit within these restrictions. The obvious reason this is important is the fact that claimant, due to his work injury, cannot now return to the work for which he is best suited given his lack of education and work experience consisting almost solely of heavy warehouse and truck mechanic work for this employer since 1994. WALSHIRE

AGENCY APPEAL

WHEELER v. WAL-MART STORES, INC., 5033104 (3-18-13)

Defendants' complaint on appeal that Dr. Abernathy did not have sufficient information about claimant's prior neck problems are not convincing. Defense counsel herself provided the doctor with the information she now complains the doctor did not have. All of the other doctors' opining in this case were well aware of claimant's prior problems. WALSHIRE

COURT OF APPEALS

KRAMER v. KOERIGN CRANES, 3-146 / 12-1370 (3-13-13)

Claimant appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's review-reopening decision denying him additional worker's compensation benefits. The deputy determined Claimant did not meet his burden of proof regarding changing economic circumstances. Claimant appealed the deputy's decision to the commissioner, who affirmed. he then filed a petition for judicial review, and the district court also affirmed. OPINION HOLDS: After a careful review of the record, the briefs of the parties, and the district court's well-reasoned opinion, we conclude the district court's ruling should be affirmed without opinion pursuant to IRAP 6.1203 subsections (a), (c), and (d)

COURT OF APPEALS

GALLO v. PENFORD PRODUCTS CO., 3-081 / 12-1472 (3-13-13)

Claimant appeals from the district court's decision affirming the agency's determination that he suffered a 60% PPID as a result of a low back injury and the denial of his claim that the work injury caused his depression.  OPINION HOLDS: Substantial evidence in the record supports the workers' compensation commissioner's decision. The commissioner considered all of the evidence, not merely the evidence Gallo urged. The record "when viewed as a whole" provides substantial evidence to support the commissioner's 60% PPID award and the conclusion that his work injury did not cause his depression.

AGENCY APPEAL

OSTERGAARD v. LEWTON CONSTRUCTION COMPANY, 5033370, 5033371 (3-8-13)

I affirm and adopt, with the exception of the failure to suspend weekly benefits for a refusal to submit to an IME as requested by defendants. Claimant's only excuse was that he did so on advice of his attorney.

§ 85.39 states that a refusal of an employee to submit to the examination shall suspend the employee's right to any compensation for the period of the refusal. The hearing deputy refused to suspend the weekly benefits because defendants had denied liability for the condition sought to be evaluated. This was consistent with agency policy at the time. However, the Iowa Court of Appeals last year held that employer requested examinations are required under § 85.39, even if an employer has denied liability for the condition sought to be examined. City of Davenport v. Newcomb, 820 N.W.2d 882 (Iowa App. 2012).

Claimant's weekly benefits are suspended until claimant submits to an IME as designated by defendants. The examination must be scheduled by defendants within ten days after this decision and shall occur no later than 30 days after this decision. Upon claimant's attendance at such a scheduled examination, or defendants' failure to schedule an examination as ordered, claimant's suspended benefits shall be restored and he shall be immediately paid in full for the suspended benefits. No interest shall accrue on the suspended benefits until the date claimant submits to the examination. WALSHIRE

AGENCY APPEAL

BACHMAN v. HARVESTER GENERAL STORE, 5034179 (2-27-13)

The hearing deputy found claimant to have suffered a 10% PPID from a stipulated work injury, and denied claimant's application for alternate care.

I find that the work injury is a cause of a 20% PPD to the body as a whole. Dr. Bansal's ratings are not disputed by any other physician in this record. The hearing deputy's rejection of Dr. Bansal's rating for cognitive loss and apparent rejection that there is memory loss attributable to the work injury is inconsistent with the opinion of Dr. Carfrae that Shirley does have short term memory loss. No doctor has opined that Shirley does not have short term memory loss. Dr. Bansal, as an occupational medicine physician, is the best qualified doctor to determine the impact of her memory loss upon her ability to obtain suitable employment.

While Shirley testified that she could not return to her past work, she has not attempted to do so and has not looked for suitable work. She apparently has withdrawn from the labor market, so her current unemployed status is not evidence that she is unemployable. Since before the work injury, she left her Iowa employment for a few months in the wintertime to be in a warmer climate, but it was not until after this work injury that she failed to return to Iowa employment when she returned to Iowa in the spring. Clearly, this work injury was a significant cause of her decision to retire.

Given her work restrictions, her age, her education, her work experience, I find that the work injury is a cause of a 50% PPID.

I find that the change of care request that her vestibular imbalance medications be managed by her family doctor reasonable as did Dr. Carfrae. WALSHIRE

COURT OF APPEALS

TALTON v. FLEUR DELIS MOTOR INNS, INC., 2-1095 / 12-0999 (2/27/13)

Employee appeals denial of claims that a work injury caused arthritis and pain in her knee and back, and denial of alternate medical care and additional temporary disability or healing period benefits. OPINION HOLDS: Substantial evidence supports the final decision of the workers' compensation commissioner. We affirm.

COURT OF APPEALS

BIG TOMATO PIZZA v. CLOUD, 2-1199 / 12-1291 (2/27/13)

Claimant filed a claim seeking workers' compensation benefits after he was struck near Big Tomato Pizza when he was returning to the restaurant after delivering a pizza as part of his job as a pizza delivery driver. Cloud was injured in the incident. The workers' compensation commissioner concluded Cloud had established an injury that arose out of and in the course of his employment. The commissioner also found Cloud was not precluded from compensation by § 85.16 (2009). The commissioner found Cloud had a 10% PPID. The commissioner also found Cloud was entitled to have a mental health evaluation, and possibly treatment. The commissioner's decision was affirmed by the district court. The employer appeals the decision of the commissioner and the district court. OPINION HOLDS: I. We conclude there is substantial evidence in the record to support the commissioner's finding that Cloud's injury arose out of and in the course of his employment with Big Tomato Pizza. II. Substantial evidence to support the commissioner's determination that § 85.16 does not apply is found in Cloud's testimony that he happened to get in Evans's way as Evans was leaving Big Tomato Pizza. III. We conclude there is substantial evidence in the record to support the commissioner's finding that Cloud has a 10% PPID. IV. We conclude there is substantial evidence in the record to support the commissioner's conclusion that Cloud should have an evaluation of his mental health condition, and then treatment if recommended by a mental health professional.

COURT OF APPEALS

HANSEN v. SNAP-ON TOOLS, 3-031 / 12-1038 (2-27-13)

Claimant appeals the district court's ruling on her petition for judicial review affirming the Commission's determination of permanent partial disability benefits. Her employer cross-appeals arguing the district court erred in remanding to the commission to redetermine temporary benefits. Both parties appeal the determination of costs. OPINION HOLDS: Because the clear legislative intent mandates § 85.34(7)(b)(1) (2011), the successive-disability statute, is not applicable to "unscheduled permanent partial disability" cases, we affirm on that issue. There is also substantial evidence in the record to support the agency's determination of industrial disability and we affirm there as well. However, contrary to the district court's determination, we find the agency did not abuse its discretion in its determinations of costs-whether made under § 85.39 or IAC 876-4.33(6). In that same accord, because the district court did not abuse its discretion in ordering the parties evenly split the cost of judicial review, we affirm on that issue. Finally, because a portion of the agency decision is not sufficiently explained under § 17A.16(1), we affirm the district court's remand of the determination of healing period benefits and temporary partial benefits.

AGENCY APPEAL

TERHARK v. HOPE HAVEN, 5031853 (2-26-13)

The hearing deputy correctly gave greater weight to the views of Dr. Hurd, the authorized treating orthopedic surgeon. Although defendants complain that we do not have any recent views from this doctor concerning the need for surgery, the hearing deputy's order is simply to continue with the previous authorized care, including surgery if recommended.

Also, I agree with hearing deputy's rejection of the misconduct defense. The argument that claimant's termination for cause constitutes an intentional refusal of suitable work which bars any recovery for healing period benefits under § 85.33(3) is not current agency precedent. The employer must show by the preponderance of the evidence that the work was offered; that the work was suitable, that is, having a physical or mental demand level that does not exceed claimant's capacities; and, that the refusal was an intentional act.

The hearing deputy correctly imposed the penalty pursuant to § 86.13 for defendants' unreasonable conduct in terminating his benefits. There is a clear failure to provide to claimant the basis for its denial of benefits contemporaneously when his benefits were terminated. As to the date claimant achieved MMI issue, defendants cannot rely on the original release to full duty by the PA because they were later informed by Dr. Hurd that this release was made in error. Also, the hearing deputy correctly ended the penalty period at the time of Dr. Cho's evaluation because his views could be relied upon by defendants to avoid penalty.

As further grounds for penalty, it was not reasonable to rely upon old, invalid agency precedent to deny benefits due to misconduct. There is no statute or court opinion that disallows work comp benefits to persons discharged for misconduct.

Finally, the change of care ordered by the hearing deputy was appropriate. Defendants' assertion that they lack notice of an issue regarding a change of medical care is unconvincing. There is no dispute that claimant was seeking a running award on the basis of Dr. Hurd's views that claimant requires additional treatment, including surgery. Therefore, defendant had to know that there would be a determination whether continued care with Dr. Hurd, including his proposed surgery, is reasonable and necessary. This is the same issue that would be dealt with in any future alternate medical care proceeding. It would be absurd for this agency to provide for a running award of healing period benefits because of the need for reasonable and necessary medical treatment, including surgery, and then not order defendants to provide such care. Defendants repeatedly were asked for continuation of the authorized care prior to hearing and did not do so. WALSHIRE

AGENCY APPEAL

STARNER v. O'BRIEN'S AUTO REPAIR, 5033506 (2-26-13)

Being terminated for not meeting an employers' expectations and disputes over time off, are not stresses, which when viewed objectively and not as perceived by claimant, were not of greater magnitude that the day to day mental stresses workers employed in the same or similar jobs experience, regardless of their employer.

Seeing drug paraphernalia and being around a drug abuser at work, could be unusually stressful for any worker. The problem is that claimant's self-serving statements were not found credible by the deputy. We must give deference to the deputy on this.

Lastly, I would state that the audio tapes were reviewed and even if admitted to evidence, they do not change this decision. What appeared to be claimant's voice was the only voice that could be heard clearly. The other voices were too faint to be understood. The claimant is depicted as upset. He was loud and used profanity in his conversations about the incident involving his boss's call back to work during his absence to attend funeral activities. This shows only unusual stress placed on co-workers, not on claimant. WALSHIRE

AGENCY APPEAL

STANFORD v. CHICAGO CUBS, 5029976 (2-26-13)

While claimant's explanations why he delayed reporting his injury to his managers are possible explanations, the hearing deputy did not believe him. If he did not believe that his injury was serious, why then was he fearful of reporting the injury to his managers because his contract was coming to an end. Clearly, he felt early on that this injury would have an adverse impact on this employability as a ball player. WALSHIRE

AGENCY APPEAL

OLIVER v. JOHN MORRELL & CO., 5027964, 5035762 (2-22-13)

Defendants assert on appeal that the deputy commissioner erred in finding that claimant sustained a permanent and total disability and in her findings as to the commencement date for permanent and total disability benefits. Claimant asserts that the presiding deputy erred in finding claimant's permanent and total disability occurred as a result of the September 29, 2008 injury as opposed to the subsequent June 25, 2009 work injury.

The arbitration decision is modified so as to find that claimant's work injury of September 29, 2008 resulted in permanent partial disability and claimant's June 25, 2009 work injury resulted in permanent and total disability. These modifications require further findings as to the credit to which defendant has proven in this matter. As a result of claimant's work injury on September 29, 2008, claimant sustained a significant, but not a total, permanent disability as a result of his left shoulder injury. It is further concluded that as a result of claimant's work injury on June 25, 2009 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 for his second date of injury.

The Iowa Supreme Court has held PTID benefits are not subject to apportionment under § 85.34(7). Drake University v. Davis, 769 N.W.2d 176, 184. As claimant has been awarded permanent total disability benefits pursuant to § 85.34(3), defendant is not entitled to credit for benefits previously paid resultant from prior whole body injuries which were permanent partial disabilities compensated pursuant to § 85.34(2).

AGENCY APPEAL

VICK v. HY-VEE, INC., 5035333 (2-21-13)

A showing that claimant had no loss of his job or actual earnings does not preclude a finding of PPID. Loss of access to the labor market is often of paramount importance in determining loss of earning capacity, although income from continued employment should not be overlooked in assessing overall disability.

Claimant now has permanent activity restrictions and a history of back surgery that she did not have before. Claimant testified that she had difficulty performing her old job at Hy-Vee and doing bartending work after leaving Hy-Vee as a result of her injury. This is uncontroverted and apparently believed by the presiding deputy. WALSHIRE

AGENCY APPEAL

MOORE v. FANSTEEL, INC., 5035525 (2-18-13)

A showing that a work injury will cause of loss of access to the labor market is insufficient by itself to establish PPID. The injury must extend beyond a leg or arm and into the body as a whole. The only injury shown in this case was an injury limited to the right wrist. Such an injury is a scheduled member disability to the arm.

Claimant provided no expert medical opinion to support his assertion that his shoulder and upper back pain was related to the injury. Also as stated by the hearing deputy, there was no expert opinion causally relating his post injury depression to the work injury. Claimant had a history of depression before the injury. DEPUTY (?)

AGENCY APPEAL

HADACEK v. UNITED PARCEL SERVICE, 5034431 (2-13-13)

I agree with the finding of a 40 % PPID. Defendants claim that claimant is medically able to return to full duty without restrictions and has done so for the last two - three years is not accurate.

Although the treating doctor did not impose specific restrictions, he states that claimant is physically capable of continuing to perform all of the duties of a UPS Delivery Driver, but only as long as he listens to his body and works at a steady pace which does not precipitate discomfort in his chest area. He also recommended claimant do everything he can to avoid emotional stress from his job because such stress can tax the heart muscle as much or more than exertional stress. The hearing deputy found claimant's testimony credible when he stated that he is unable to follow the advice of his doctor. He reports that his work causes him frequent heart pain and that he is incapable of avoiding emotional stress from being scrutinized by his supervisor for his slower pace of work. Claimant has bid and moved to two lighter duty routes. This is not a return to full duty without limitations. Being unable to follow his cardiologist's recommendations is clearly placing him at risk. Also, a work limitation that claimant must pace himself physically to avoid heart pain and stress, is certainly going to complicate any effort to find similar work outside of UPS. He has lost access to manual labor work. A showing that claimant had no loss of his job or actual earnings does not preclude a finding of PPID.

I also agree with the assessment of a 25 % penalty on the weekly benefits delayed in this case. It is unnecessary to determine whether the new or old penalty statute (§ 86.13) is applicable, because, the claims practices in this case were unreasonable under either version of the statute. Defendants had the burden to show their denial was reasonable and they failed. Essentially, it is unreasonable and not fairly debatable to simply deny a heart attack claim based on medical opinions that it is not caused by work, when it has been the law since 1984 that continued work after the onset of symptoms that damages the heart renders the claim compensable. Varied Enterprises v. Sumner, 353 N.W. 2d 407 (Iowa 1984). Clearly, there was neither a proper investigation into the facts, nor a proper inquiry to the doctors. The denial was not fairly debatable. WALSHIRE

COURT OF APPEALS

COOPER v. KIRKWOOD COMMUNITY COLLEGE, 2-1080 / 11-1755 (2-13-13)

Claimant appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's determination that she is ineligible for workers' compensation benefits. She contends the agency and district court (by way of affirmation) erred in applying the wrong legal standard in finding her injury did not arise out of and in the course of her employment, in declining to accept her expert's testimony, and in finding she provided her employer with inadequate notice of her injuries. Kirkwood argues we do not have subject matter jurisdiction over Cooper's claims as her petition for judicial review was untimely. OPINION HOLDS: Cooper's petition for judicial review was timely, the agency did not err in finding Cooper's injuries did not arise out of her employment, and we therefore do not reach the notice issue. See, also, Cooper (2-10-10).

COURT OF APPEALS

ANDERSON v. BUSHONG, 2-1123 / 12-0640 (2-13-13)

This action involves Anderson's claims of co-employee gross negligence under § 85.20 (2009). Anderson shattered his heel bones after falling eleven feet from the deck of a construction site onto a concrete basement floor. He alleges his coworkers were liable for not following federal regulations or the construction company manual regarding safe practices for covering stairwell holes. On appeal, Anderson contends the district court erred by granting summary judgment in favor of two coworkers, where material fact questions existed that would allow a jury to find each was grossly negligent. As for the trial of the sole remaining defendant, foreman, Anderson challenges the court's submission of comparative fault instructions to the jury. Last, Anderson argues the court improperly excluded the foreman's statements regarding his post-accident conduct. OPINION HOLDS: I. Because we find the two coworkers could not have known Anderson's injuries would be a probable, as opposed to a possible, result of the unmarked plywood hole covering-even when taking each contested fact in the light most favorable to Anderson&emdash;we affirm the summary judgment ruling. II. We also conclude the district court's submission of comparative fault instructions did not cause Anderson prejudice. III. Finally, because the foreman's statements that he would not change the manner in which he covered holes was not relevant to Anderson's co-employee gross negligence claim, the district court did not err in excluding them from the record. Finding no error, we decline to order a new trial.

COURT OF APPEALS

SANCHEZ v. CELADON TRUCKING SERVICES, 2-1091 / 12-0895 (2-13-13)

Sanchez appeals the district court's judicial review ruling, which affirmed the workers' compensation commissioner's decision, asserting he is entitled to additional workers' compensation benefits in his review-reopening proceeding and the employer is entitled to a smaller lien on the proceeds from his third-party settlement. OPINION HOLDS: We find substantial evidence supports the agency's decision that Sanchez has not suffered a worsening of his condition or a decrease in his earning capacity. In addition, we affirm the agency's decision finding Celadon's properly calculated its lien from the third-party settlement. As future benefits to Sanchez become payable, Celadon is responsible for reimbursing Sanchez an amount equal to the attorney fees and litigation costs Sanchez incurred in the third-party settlement, which are applicable to that payment. § 85.22(1).

COURT OF APPEALS

PELLA CORP. v. WINN, 2-1009 / 12-0592 (2-13-13)

Pella Corporation appeals the district court's judicial review ruling, which affirmed the decision of the workers' compensation commissioner awarding benefits to Winn. OPINION HOLDS: Having reviewed the evidence, the agency's decision, and the parties' briefs, we affirm the district court's decision pursuant to Iowa Court Rule 21.29(1)(b) and (d). The District Court concluded Winn's description of her fall from a flatbed trailer, while improbable, was not so outrageous as to be unbelievable. It found the agency was entitled to find Winn's testimony credible, especially in light of the supporting medical evidence. It also found the agency acted properly in rejecting the opinions of Dr. Neff. There were three other physicians who offered causation opinions, though they did not address the specific issue of tendon retraction.

AGENCY APPEAL

LUNDY v. VITRAN EXPRESS, INC., 5033107 (2-12-13)

Claimant asserts the award of 10% PPID was premised on a finding that claimant had no work injury related restrictions and contends the deputy did not consider claimant's ability to earn in the general labor market in assessing loss of earning capacity. Claimant also avers the deputy erred by not assessing claimant's vocational report as a cost and erred in not awarding claimant costs for medical care he received prior to reporting his injury.

Compensation is awarded for permanent disability because its adverse impact on the employee's ability to work and earn will continue indefinitely into the future. It is not limited to the point in time when the degree of disability is assessed. Claimant is an older worker with neither a GED nor a high school diploma. Nevertheless, he has had a successful long-term career as a long haul truck driver and continues to work for his pre-injury employer. Fortunately, he successfully sought and received his current route, which does not require the loading and unloading required in the routes he held when injured and immediately after time of his injury.

At the time of hearing, claimant had not treated for his nonsurgical back condition for over two years. His 7% functional rating is modest. Both the examining occupational physician and the examining orthopedic surgeon have encouraged him to continue with normal work activities.

Nevertheless, a valid FCE placed claimant in the medium work category and, the examining orthopedic surgeon opined that, if again required to load and unload materials as part of his driving duties, claimant should not repetitively lift more than 50 pounds. That material handling limitation is consistent with claimant having some loss of labor market access and loss of earning capacity as a result of his injury that restricts his trucking employment to jobs that do not require loading and unloading and also limits his access to jobs in heavy and very heavy jobs within the broader economy. Claimant's loss of earning capacity, however, neither is as great as Mr. Ostrander has opined nor as limited as Ms. Oppedal has opined. It is expressly found to be 30% PPID.

In the absence of claimant having timely informed defendants of his need for medical care related to the injury, the care the employer might have authorized is unknown. Wherefore, it is concluded that claimant has not established that defendants are liable for medical care and related mileage that occurred before notice was given.

Defendants dispute the reasonableness of the Claimant's $1,740.50 vocational report cost. Claimant offered little evidence tending to establish the cost was reasonable.

As the prevailing party, claimant is entitled to reasonable costs associated with obtaining a vocational expert's report. Nothing in the record suggests that assessment of claimant's vocational situation would have required greater that typical expertise or effort from a vocational professional. In that light, the charged amount is unreasonable. In the undersigned's experience a reasonable charge in similar claims is $1000.00. Defendants are assessed that amount. WALLESER

AGENCY APPEAL

O'BOYLE v. RIVER VALLEY CAPITAL CORPORATION, 5033464 (2-5-13)

The deputy correctly concluded claimant failed to carry his burden of proof to show a causal connection between his work injury and an injury to his lumbar spine. The greater weight of the evidence shows claimant suffered a work injury, which caused permanent impairment of claimant's neck. MODIFIED as to % PPID.

The deputy awarded claimant industrial disability of 25% PPID. However, claimant's age of 62 at the time of the hearing works against him in competing against younger workers in the job market. His restrictions do not preclude him from working in the insurance industry per se, where he was working when he was injured, in terms of restricting his ability to travel, for example. But he does have a lifting restriction not to lift over 20 pounds on an occasional basis, which does conflict with the employer's job description indicating he might have to lift up to 24 pounds on occasion, when moving files. Claimant would require some accommodation to return to his past profession.

Claimant is well educated. But, significantly, claimant has applied for numerous jobs in the field in which he has worked for most of his working life, and even with his education and his years of experience, he has not been successful in finding a job. The employer also did not return claimant to work, but there is evidence claimant was terminated in part due to a failure to meet production quotas.

Claimant has a substantial permanent physical impairment of the body as a whole for his neck injury, which alone indicates a significant degree of industrial disability.

Based on these and all other appropriate factors of industrial disability, it is found claimant has, as a result of his work injury, an industrial disability of 50%. HEITLAND

AGENCY APPEAL

SWANSON v. QUAKER OATS COMPANY, 5029738 (2-5-13)

Claimant's ability to continue in the job is strong evidence that she has significant residual earning capacity despite her work injury and that the injury has not significantly hampered claimant's ability to engage in employment for which she is otherwise suited.

Exhibit 8 details 13 times prior to the commencement date for permanent benefits when weekly benefits were paid some days after the end of the compensation week. The total late payments equal $4710.88. Late payment of weekly benefits even if only by days can work a substantial hardship on workers' in need of timely wage replacement to financial obligations. Defendants have offered no explanation or no basis for the late payments. An additional $1,500.00 penalty for late payment of temporary benefits is appropriate. MODIFIED on penalty issue. WALLESER

AGENCY APPEAL

ROBINSON v. CITY OF DES MOINES, 5035076 (1-25-13)

Claimant appeals from an arbitration decision, in which the deputy found that claimant had failed to prove by a preponderance of the evidence that he sustained a PPD as a result of a stipulated work injury. Defendant asserts that the stipulation that "claimant sustained a permanent disability" did not excuse claimant from proving a PPD.

The arbitration decision lists the disputed issue for resolution as the extent of claimant's PPD. The hearing order stipulates that claimant sustained an injury and that the alleged injury is a cause of PPD. The hearing order does evince that there is a dispute as to the extent of claimant's PPD. The deputy did reject the parties' hearing order stipulation that the "alleged injury was a cause of permanent disability" and thereafter found no causation. Review of the hearing transcript and the overall record of the case establishes that the deputy did not provide notice that the parties' stipulation would not be honored.

Unless prior notice is provided, the stipulations entered into by parties should be binding so long as they are not erroneous as a matter of law.

As claimant has established a violation of due process in the arbitration hearing proceedings it is necessary to strike the arbitration decision and to remand this matter to the presiding deputy commissioner for a finding as to the extent of claimant's PPD or to provide notice to the parties that the stipulation as to PPD is erroneous as a matter of law and provide an opportunity for further evidence and argument. REMANDED. (Could the Deputy have found the extent of PPD to be 0%?)

AGENCY APPEAL

SANDERS v. AMSTED RAIL COMPANY, INC., 5033543 (1-25-13)

Defendant asserts on appeal that the deputy erred in awarding PPD benefits above functional impairment. While defendant is correct that claimant's loss of job opportunities and overtime income with defendant-employer is also due to restrictions imposed for the prior right shoulder injury for which compensation has been paid by defendant, it is apparent following a de novo review of the evidence that claimant has a combined disability resulting from the bilateral shoulder injuries incurred with this defendant-employer.

Given chronic bilateral pain, daily use of a narcotic medication, and the added restrictions, a finding of a 35% PPID for the combined disability from the two work injuries, as required in § 85.34(7)(b)(2), is appropriate and therefore affirmed. It is also well-settled in Iowa that a showing that claimant had no loss of his job, or actual earnings, does not preclude a finding of industrial disability. Loss of access to the labor market is often of paramount importance in determining loss of earning capacity, although income from continued employment should not be overlooked in assessing overall disability. AFFIRMED.

COURT OF APPEALS

PODGORNIAK v. ASPLUNDH TREE EXPERT, 2-943 / 12-0644 (1-24-13)

An employee appeals the denial of penalty benefits in a review-reopening proceeding. OPINION HOLDS: Upon our review, we affirm the district court's affirmance of the commissioner's decision denying the employee's penalty claim.

Claimant filed workers' compensation petitions, which culminated in an order requiring the provision of alternate medical care and the payment of "running healing period benefits."

Asplundh referred Podgorniak to certain physicians, who opined he had reached MMI. Based on these opinions, Asplundh terminated healing period benefits.

In accepting these medical opinions as substantial evidentiary support for the finding, we have considered Podgorniak's contention that the opinions carried no weight because they were rendered before he completed alternate care. The commissioner required the employer to pay for alternate care under the auspices of § 86.27(4), but did not preclude the employer from exercising its statutory right to other medical examinations. AFFIRMED.

COURT OF APPEALS

PILGRIM'S PRIDE CORP. v. EAKINS, 2-1016 / 12-0901 (1-24-13)

Pilgrim's Pride Corporation and Zurich North American (the employer) appeal the district court's ruling, which affirmed the commutation decision of the workers' compensation commissioner. The employer sought judicial review asserting (1) substantial evidence does not support the agency's decision in light of Eakins's lack of investment experience or success, and (2) the agency erred in holding the proposed commutation should be revised to the values as of the filing of the commutation decision. The district court denied the judicial review petition, affirming the agency's decision. OPINION HOLDS: We affirm the district court's judicial review decision with respect to affirming the agency's decision approving the partial commutation as we find no error in the agency's application of the law to the facts and also find substantial evidence supports the agency's decision. However, we reverse the district court's decision with respect to the date to be used to calculate the discount rate. We conclude the proper date to be used is the date of the commissioner's intra-agency appeal decision as this was the final agency action.  We remand this case to the agency for the purpose of entering an order calculating the commutation as of the date of the commissioner's decision.

COURT OF APPEALS

OTTUMWA MANUFACTURING v. BOYD, 2-813 / 12-0889 (1-24-13)

Cadbury Schweppes Holding, Inc. appeals, and Carly Boyd Sr. cross-appeals, the judicial review ruling that affirmed the workers' compensation commissioner's award of benefits to Boyd. The employer contends the evidence does not support the commissioner's finding that Boyd suffered a whole-body injury extending to the right hip and award of eighty-percent industrial disability. Boyd contends he is entitled to a permanent total disability award. OPINION HOLDS: We find substantial evidence supports the agency's finding that Boyd suffered an injury to the body as a whole. We further find the evidence supports the award of 80% PPID. Although Boyd's treating physicians did not assign work restrictions as a result of his injuries, Boyd suffered a substantial loss of earning capacity as a result. However, because he is able to perform some sedentary work, the agency determined an award of permanent total disability is not appropriate. Only Dr. Stoken, who provided an independent medical examination, assigned restrictions. We affirm. 

AGENCY APPEAL

ARRIAGA v. CARGILL MEAT SOLUTIONS, a/k/a EXCEL CORPORATION, 5032427 (1-24-13)

Claimant appeals from the deputy's findings (1) that claimant's February 2009 injury resulted in 2% scheduled disability to the right arm; (2) that the injury did not produce whole person permanent impairment or injury; (3) that the injury to the right upper extremity and trunk did not result in a sequela injury on the left side; and (4) that claimant was not entitled to reimbursement of the costs of Dr. Kuhnlein's January 2011 evaluation.

Defendants cross appeal from the deputy's finding of two percent right arm disability and contend that any impairment in the right arm had resolved by December 2009 and, therefore, they should receive credit under Iowa Code section 85.34 (5) for the five weeks of benefits previously paid claimant. MODIFIED IN PART and REVERSED IN PART.

Claimant's initial treatment after her injury was for her right sided complaints only. As a result of those complaints, she was permanently restricted from right hand knife use in August 2009 and was assigned a job involving greater left sided work in fall 2009. Her left-sided complaints developed shortly afterward, a fact evidenced by claimant's reporting them to Dr. Kuhnlein on December 3, 2009 and reporting them to the employer on December 7, 2009. These facts are consistent with Dr. Kuhnlein's opinion that claimant's left cervical spine, shoulder, and upper extremity complaints are a sequelae to claimant's right-sided complaints.

Dr. Kuhnlein evaluated claimant for both her left and right sided complaints, including her neck complaints. He assigned 5% whole person permanent impairment for claimant' s cervical spine complaints but no impairment for her other left or right sided complaints.

Defendants have argued that Dr. Kuhnlein improperly used Table 15-5, DRE Cervical Category II, to assess claimant's impairment. They contend that the DRE method is only appropriately used to assess impairment when claimant has a "specific" or "distinct" injury and, therefore, cannot be used when claimant claims a cumulative trauma injury that has resulted from repetitive micro trauma. Defendants' reading of the Guides is too narrow. Initially, a cumulative injury process can produce a diagnosis that is specific, distinct, and injurious. Secondly, the Guides, Fifth Edition, provide at page 379, section 15.2, that even when the cause of the impairment is not easily determined, the evaluator should use the DRE method if the impairment can be well characterized by the that method. Dr. Kuhnlein, an experienced and certified independent medical evaluator, apparently judged that to be the case with claimant's condition and appropriately assigned claimant 5% whole person impairment under Table 15-5. Claimant's restrictions from knife work with either hand demonstrate PPD from her shoulder and arm pain even in the absence of assigned impairment.

The only accommodation she needs for the general laborer job is that she not be required to lift box materials weighing 30 pounds. This suggests that, despite her injury and restrictions, claimant retains the capacity to handle a significant number of the packing house and light industrial jobs, for which she is best suited given her past work experience and limited education. Claimant has 35% work injury related PPID. This makes defendants' claim of entitlement to credit for overpayment of five weeks of PPD benefits moot.

Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 394-395 (Iowa 2009) provides that a claimant is not entitled to reimbursement for a second IME in the same case. Defendants paid for Dr. Kuhnlein's December 3, 2009 IME under § 85.39. Pursuant to Caven v. John Deere Dubuque Works, 5023051 (App. Dec. July 21, 2009), expenses related to obtaining the February 8, 2011 report that followed the January 24, 2011 examination are appropriately assessed as a cost under 876 IAC 4.33(6).

AGENCY APPEAL

WILLIAMS v. CHUNKEE, INC. a/k/a CATCH-UP LOGISTICS, 5033820 (1-23-13)

Claimant contends that he is entitled to healing period benefits through March 29, 2007 and not January 5, 2007 as the presiding deputy found. Treating orthopedic surgeon saw claimant on January 4, 2007 and opined no additional evaluation was needed while also agreeing to provide a PPI rating if requested. The doctor provided that rating on March 29, 2007. While claimant contends the HP did not end until the latter date, claimant's condition did not change or improve between January 4, 2007 and March 29, 2007. Claimant has never returned to work for the employer after his surgeries. Pursuant to § 85.34(1), the deputy properly found claimant reached MMI on January 5, 2007, such that he was no longer entitled to HP benefits.

Defendants assert that claimant's intervening July 2007 fall broke the chain of causation from his February 2004 injury, and that, therefore, his current symptoms and his need for medical care in 2009 do not relate to the 2004 injury. The record does not support those assertions, as claimant did not have new on-going shoulder symptoms until substantially after that fall and has never had findings on diagnostic studies evidencing new problems with his shoulder.

Defendants challenge the deputy's denial of their motion to admit additional evidence filed on August 12, 2011, three days after the August 9 hearing, in which motion they requested that records related to claimant's treatment for personal medical issues from May 2010 onward be admitted. While defendants had discovered the existence of the records on August 1 and immediately requested them from the provider, defendants did not raise the issue of the treatment records at hearing. Had they done so, the deputy might well have recessed the hearing until the records were obtained. In their failure to do, the hearing ended and the record closed after testimony was completed. Pursuant to 876 IAC 4.31, the deputy properly denied the motion to admit evidence after hearing. WALLESER

AGENCY APPEAL

NORTON v. LEONARD EXPRESS, INC., 5027578 (1-23-13)

I affirm and adopt as the final agency decision those portions of the proposed arbitration decision filed in this matter with the exception of the finding that claimant's treatment for his back condition after a fall on January 30, 2009, and his mental condition, are causally related to the work injury of September 17, 2005 and the PPID award of only 20 percent. MODIFIED.

I agree with the hearing deputy that claimant failed to show any entitlement to additional healing period benefits after June 5, 2007. Both the treating, and claimant's IME physician, agreed that MMI had been reached at about this time. No physicians after that time that opined he was unable to work due to the work injury. He clearly had significant treatment, including multiple surgeries, after that time, due to his physical complaints, but I do not find any of that treatment causally related to the injury. The hearing deputy was correct to state that there were no physicians that opined the care was not related to the injury. However, there were also no physicians that opined that it was related to the injury.

The deputy found the treatment after 2009 was authorized by defendants, but this was due to a failure to provide a written notice to claimant that referring physicians were no longer authorized. Treatment received by a provider, referred by an authorized provider, generally constitutes authorized treatment. The fact that treatment for a condition was authorized does not change the burden of proof requiring clamant to show that the work injury was a cause of the condition treated in order to obtain disability benefits. The record is wholly absent of any medical opinion on causation of his back condition after a fall in January 2009, which even claimant admits increased his symptoms. The only mention of a work injury was in office notes of this surgeon in which he noted the onset of back pain five years earlier from a fall from a truck.

I am also unable to find that claimant's mental condition is due to the work injury. The only specific causation opinion in this record concerning claimant's mental difficulties comes from Eli Sagan Chesen, M.D., who specifically opines as follows: Causation of diagnoses: Antisocial personality disorder is a lifelong pattern of maladaptation. It is not caused by physical or mental trauma and in this case even pre-existed the accident.

Employer must pay for the care they authorize, even if that care was later on determined unrelated to the work injury.

An FCE by itself is given little weight if not adopted by a licensed medical doctor.

Despite claimant's lack of credibility as discussed by the hearing deputy, given the views of Dr. Neiman, claimant has been rendered incapable of returning to his chosen occupation as a truck driver and heavy work before his latest round of surgeries. Given his lack of formal education, a work history of mostly the type of work he cannot perform and the views of Dr. Neiman, I find that the work injury of 2005 is a cause of a 60 % PPID. WALLESER

AGENCY APPEAL

MAYHEW v. TRI COUNTRY, INC., 5035006 (1-15-13)

Admittedly, the hearing deputy found claimant credible concerning his complaints of problems in his neck, both shoulders, both arms and constant headaches and that finding should not change. Claimant does have bilateral problems. However, the evidence does not show that the left sided condition is work related. Although claimant honestly believes that his bilateral problems are work related, his beliefs are insufficient without supportive medical evidence. WALSHIRE

AGENCY APPEAL

NEAL v. WAL-MART STORES, 5031975 (1-9-13)

Claimant was able to perform the people greeter job for which the employer had initially hired him even with his post injury restrictions. That employment ended for reasons unrelated to the work injury. Claimant then was able to secure a job as a restaurant order taker. His testimony that this job was too confusing for him seems somewhat at odds with his ability to work as a sales associate for Wal-Mart. Claimant's perception of the disablement his injury produces might well be impacting his motivation to seek and secure employment.

As to that perception of extreme loss of function, the presiding deputy properly granted claimant's request for alternate medical care while also awarding claimant PPID. That claimant participate in the University of Iowa Spine Rehabilitation Program was a treatment recommendation of claimant's authorized treating surgeon. When deposed, that surgeon expressly stated the program would not actually improve claimant's physical functioning but might well assist him in coping with his residual pain, a goal not inconsistent with claimant's having already achieved MMI and consistent with defendants' obligation to provide claimant with reasonable and necessary medical care even after he had achieved maximum medical improvement.

Defendants' argument that claimant cannot be granted alternate medical care that may in any way assist him in functioning with his impairment while also receiving an award of permanent disability benefits is disingenuous, especially in light of the fact that defendants do not argue that claimant should get a running award of temporary benefits until he has completed the rehabilitation program.

Defendants have objected to the presiding deputy's 2009 of the full cost of Dr. Stoken's independent medical examination and the award of the cost of Ms. Laughlin's vocational opinion. Issues regarding the fairness, reasonableness, and appropriateness of any costs were not raised in the hearing report. No evidence was presented regarding those issues at hearing. Policy arguments even were they persuasive are insufficient to overturn a deputy's award of costs that is consistent with the controlling law, which is Caven v. John Deere Dubuque Works, 5023051(App. Dec. July 21, 2009). WALLESER

COURT OF APPEALS

MERCY HOSPITAL v. GOODNER, 2-933 / 12-0186 (1-9-13)

Mercy Hospital Iowa City and Cambridge Integrated Services (Mercy Hospital) appeal the district court's ruling that affirmed the workers' compensation commission decision finding Goodner to be permanently and totally disabled as a result of a work injury. Mercy Hospital asserts the district court erred in finding (1) it was judicially estopped from contesting liability for the injury, (2) Goodner's medical evidence was reliable, (3) Goodner is permanently and totally disabled, and (4) it is responsible for the cost of Goodner's bariatric surgery and one-half of the cost of the family therapy sessions. Mercy Hospital also contests the district court's finding that it failed to preserve error on two issues. OPINION HOLDS: We find the case of Winnebago Industries, Inc. v. Haverly, 727 N.W.2d 567 (Iowa 2006), was appropriately applied by the agency to judicially estop Mercy Hospital from contesting liability in this case. There was substantial reliable medical evidence to support the agency's conclusion that Goodner's mononucleosis and subsequent chronic fatigue syndrome arose out of and in the course of her employment. There is also substantial evidence supporting the agency's conclusion that Goodner is permanently and totally disabled as an odd-lot employee. We affirm the agency's decision ordering Mercy Hospital to pay one-half of the cost of the family therapy sessions. However, we reverse the agency's decision ordering Mercy Hospital to pay for Goodner's bariatric surgery as there is not substantial evidence to support the conclusion that the surgery was reasonable and beneficial. AFFIRMED IN PART AND REVERSED IN PART. 

COURT OF APPEALS

RICHARDS v. CRESTON NURSING & REHABILITATION CENTER, 2-1017 / 12-1120 (1-9-13)

Richards appeals a judicial review order affirming a decision from the workers' compensation commissioner that she did not sustain a permanent injury while working for the Creston Nursing and Rehabilitation Center in October 2006. She argues the commissioner's causation determination hinged on erroneous factual findings. OPINION HOLDS: Like the district court, we conclude substantial evidence supports the agency's decision that Richards failed to meet her burden to prove by a preponderance of the evidence that her work injury caused permanent impairment or disability. The deputy commissioner cited Richards's inconsistent and incredible accounts of her back injury as the primary reason for denying benefits. In turn, the deputy discounted a medical opinion based on "a very suspect history" of the injury offered by Richards. Because assigning credibility is a function we leave to the fact finder, we defer to the agency's determination. AFFIRMED.

AGENCY APPEAL

AOSSEY v. SECOND INJURY FUND OF IOWA, 5022491 (12-27-12)

If there was an increase in narcotic medications, this would be due to an aggravation of claimant's preexisting neurotic "windup syndrome," which arose from prior injury to the back, neck, arm and legs. Such an aggravation would take the 2005 wrist injuries into the body as a whole for the second injury which would preclude recovery from the Second Injury Fund of Iowa. WALSHIRE

AGENCY APPEAL

LULL-GUMBUSKY v. GREAT PLAINS COMMUNICATION, 5011034, 5031667 (12-26-12)

The first issue for consideration on appeal is whether the deputy erred in excluding much of claimant's medical evidence due to a violation of the hearing assignment order. It is found that the deputy had given prior admonition to claimant's attorney about the compilation of his exhibits in prior cases. Such admonition was warranted as claimant's counsel has chosen to prepare and enter evidence in a manner that the division and its professional staff have determined is unhelpful and unwanted.

Claimant's counsel of record did not comply with the prior order and admonition of the deputy commissioner. Accordingly, the deputy was well within his discretion to sanction claimant's counsel, including through the exclusion of evidence. Therefore it is concluded that there was no abuse of the deputy commissioner's discretion. Far less drastic sanctions which impact the offending counsel - as opposed to the party and those who may subsequently review the record of evidence - are clearly available and are preferred.

While claimant's appellate briefs discuss the evidence she desired to be admitted, claimant did not make an offer or proof or otherwise explain in any detail at the arbitration hearing why the exclusion of the evidence was prejudicial to claimant. The deputy did not have the advantage of reconsidering his exclusion of the evidence or the claim of prejudice now asserted. Given that an offer of proof was not made by claimant, there is no evidence (or an offer of proof) before the agency for consideration on appellate review. It is therefore concluded that claimant failed to preserve error on her challenge of the deputy's ruling.

Finally, as requested by defendants, those portions of claimant's appellate briefs which discuss evidence which is not included in the record of the case must be and are stricken.

AGENCY APPEAL

LAVALLEE v. STAFF MANAGEMENT, 5031737 (12-18-12)

Claimant appeals a denial of benefits.

The fact that his fellow workers observed him holding his hip after their shift and did not do so before does not sufficiently explain why he denied an injury at work to his friend and to his supervisor. While a reluctance to report an injury may be an explanation for such behavior, another explanation that is equally plausible is that the injury did not occur at work.

Claimant asserts that the doctor meant that the lifting caused the injury and the running aggravated the injury. I disagree. I find that defendants' interpretation that the doctor meant either event could cause the back difficulties is a more likely interpretation.

On the whole record, claimant has not carried his burden of proof and persuasion. The hearing deputy based his decision primarily on claimant's lack of credibility. While I performed a de novo review, I must give considerable deference to findings of fact that are impacted by the credibility findings, expressly or impliedly, made by the deputy who presided at the hearing. AFFIRMED. WALLSHIRE

AGENCY APPEAL

WINN v. SUNOPTA FOOD INGREDIENTS, 5031715 (12-12-12)

As the nurse case manager in this matter has information concerning claimant's physical and mental condition relative to this claim, the discovery rulings upholding a work product objection to production, erred in denying claimant access to all such information. The nurse case manager notes and other records sought by claimant in this claim are governed by § 85.27(2) and rules 876 IAC 4.17 and 4.18 and should have been provided.

In finding that claimant failed to prove by a preponderance of the evidence that his preexisting mental health conditions were aggravated, the presiding deputy commissioner stated that claimant had failed in his burden to establish that the work injury was a substantial factor in causing a permanent psychological disability &endash; noting that "aggravation being the legal standard for determining if an injury occurred." The presiding deputy appears to make a semantic distinction that is not contemplated by the well-established precedent. To recover, claimant had the burden to prove that his preexisting condition was materially aggravated, accelerated, worsened, or lighted up. Claimant's mental health condition was already permanent, thus claimant needed to prove only the material aggravation of the already permanent condition by the legal standard set forth.

Having considered the record de novo it is concluded that claimant has proven by a preponderance of the evidence that his injury of September 7, 2006, materially aggravated and substantially worsened his preexisting mental health condition. Claimant is therefore entitled to recover not only for his physical disability, but also his mental disability. PTID awarded.

AGENCY APPEAL

SMALL v. POMEROY CARE CENTER, 5031956 (11-26-12)

Claimant, appeals from an arbitration decision in which the deputy found that claimant had failed to prove by a preponderance of the evidence that she had sustained a permanent disability as a result of an injury while assisting a patient.

There is no dispute that claimant had preexisting episodes of considerable back and leg pain and that prior to the stipulated work injury in this matter that claimant had a prior fall at work from which she recovered and returned to full duty employment at 36 hours per week. The inquiry in this matter is whether claimant has sustained a permanent disability as a result of her injury, or whether she returned to a level of physical ability equal to that prior to her injury. In other words, is claimant the same worker with the same physical and vocational abilities as when she reported to work at Pomeroy Care Center on the morning of October 15, 2009, before sustaining her injury?

The preponderance of the evidence does support the conclusion that claimant has sustained a permanent impairment and resulting disability due to her work injury. The arbitration decision is REVERSED as to claimant's permanent disability and AFFIRMED in all other respects

COURT OF APPEALS

NKANTA v. WAL-MART STORES, INC., 2-871 / 12-0475 (11-29-12)

Claimant appeals from the denial of workers' compensation benefits. The employer cross-appeals from the commissioner's rejection of its offer to confess judgment and the commissioner's assessment of costs. OPINION HOLDS: Substantial evidence supports the commissioner's finding that Claimant failed to prove he sustained a permanent injury as a result of the work injury. The commissioner did not err in concluding Iowa Code chapter 677 (2009) is inapplicable to workers' compensation proceedings. And the commissioner did not abuse his discretion in requiring each party to bear their own costs. We affirm on both appeals.

COURT OF APPEALS

MERIVIC, INC. v. GUTIERREZ, 2-722 / 12-0240 (11-15-12)

Defendants appeal the deputy's rejected the employer's contention that Gutierrez's award of benefits should be reduced based on an alleged lack of motivation to learn English. Stating that," This agency . . . no longer penalizes injured workers who fail to learn the English language while working for employers in this country." Citing Lovic v. Construction Products, Inc., 5015390 (12-27-07).

The commissioner affirmed the deputy's decision but added a sentence clarifying that the disability determination was primarily based on factors other than Gutierrez's lack of fluency in English.

The district court found it unnecessary to reach the issue because, in the court's view, there was "substantial evidence in the record to support the commissioner's determination" of a "permanent and total disability even without considering his language deficiency."

We turn to the deputy's finding concerning Gutierrez's lack of fluency in English, a factor that, according to the deputy, contributed to his inability to find employment. On intra-agency review, the commissioner determined this was not the salient factor in the earning capacity analysis. Nonetheless, the commissioner did not entirely discount Gutierrez's limited knowledge of English as a factor that reduced his earning capacity.

Defendants essentially seek to turn back the clock to the pre-Lovic era when the commissioner accepted a claimant's failure to learn English as a basis for reducing the claimant's award. That ship has sailed. Contrary to Merivic's assertion, Lovic was the agency precedent in effect at the time Gutierrez's case was decided, and the commissioner's decision was entirely consistent with that agency precedent. Accordingly, the judicial review standard set forth in § 17A.19(10)(h) is not implicated.

The commissioner's consideration of this factor was entirely appropriate. AFFIRMED. (Dicta?)

AGENCY APPEAL

FRIMML v. MANATT'S INC., 5028230 (11-8-12)

Claimant contends that he reasonably expected that the employer in spring 2010 would rehire him to continue to perform the dump truck driving only job in its readi-mix division, with which it had accommodated him through his recovery from the work injury and until his fall 2009 seasonal lay-off. He asserts the employer's failure to rehire him represents an economic change of condition that entitles him to review-reopening of an agreement the parties entered in January 2010. The presiding deputy properly concluded that claimant's argument fails.

Even if the failure to rehire were a change of condition proximately caused by the original injury, claimant's condition does not warrant an increase in the compensation to which the parties agreed in January 2010. Claimant remains capable of substantial commercial driving, albeit not readi-mix truck driving. He has demonstrated an intellectual capacity for job retraining. The 35% PPID agreement the parties entered in January 2010 was consistent with these and other PPID factors bearing on claimant's post injury ability to earn in the general labor market. Nothing in the agreement suggests that claimant's earning capacity in January 2010 was incorrectly measured by any largess of the employer in having provided him work within his physical capacities, albeit not within its long term job requirements.

AGENCY APPEAL

MYERS v. ABF NORTH AMERICA, INC. a/k/a, TONE BROTHERS, INC., 5029344, 5029345 (11-5-12)

Claimant appeals from an arbitration decision, in which the deputy found both that claimant's specific low back incident of January 29, 2009 had not produced permanent impairment and that her hip pain was not a cumulative injury that arose out of and in the course of her employment.

The record evidence amply supports the finding that the January 29, 2009 low back incident did not result in permanent disability, and the conclusions related to the claimed hip injury as well. Claimant alleged that her work duties for Tone's caused or produced her bilateral hip and leg pain and resulted in a cumulative trauma injury that manifested on April 9, 2009, her last day of work. The record, on the other hand, clearly demonstrates that her hip complaints began after she fell down steps at home while carrying a basket of laundry on February 29, 2008.

The deputy's denial of a motion to amend was correct. Allowing the amendment would have prejudiced defendants. Nothing in the medical evidence or otherwise suggests that defendants should have been aware that claimant was claiming a cumulative back injury prior to the motion to amend being filed. Discovery was closed prior to claimant's filing the amendment. Case preparation required to defend a claimed cumulative low back injury would have differed significantly from that required to defend the claimed January 29, 2009 specific injury claim.

Claimant's argument that she had no option but to untimely file the amendment is ill founded. Claimant did not have a statute problem as regards her claim of a cumulative low back injury that manifested on her last day of work. She could have filed a separate original notice and petition for the low back claim to be heard at a later date. She could have sought continuance of the April 9, 2009 injury date hip claim along with her request to amend. She could have asked for a second dismissal without prejudice as to the April 9, 2009 injury date in order to refile an original notice and petition for that date, in which she alleged cumulative injuries to both her low back and hips, again with a later hearing date. While none of these remedies necessarily promotes administrative efficiency, they would have prevented the unfair prejudice to defendants, which granting the late amendment would have created. WALLESER

SUPREME COURT

JACK v. P AND A FARMS, LTD., d/b/a CROOKED CREEK SHOOTING PRESERVE, 11-0877 (11-2-12)

Plaintiff seeks further review of court of appeals decision affirming district court's entry of default judgment when he failed to personally appear for trial but his counsel was present to proceed on his behalf. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

Jack, an employee of Crooked Creek, slipped on the ice and fell while carrying two five-gallon buckets of grain. As a result, he sustained a shoulder injury. Jack received extensive treatment for the injury including surgery. Crooked Creek did not have workers' compensation insurance as required by law. Under § 87.21, it was presumed that his injuries were the direct result of, and grew out of, the negligence of Crooked Creek and that such negligence was the proximate cause of his injuries.

Jack failed to appear personally for trial. After the court denied the motion to continue, Jack's counsel resisted the dismissal and argued in the alternative that based on the statutory presumptions contained in § 87.21, and the admissions made by Crooked Creek, Jack had already made a prima facie case of negligence.

Crooked Creek concedes that Jack had made a prima facie case on his negligence claim but contends that it was entitled to rebut the presumption of negligence established under § 87.21 by cross-examining Jack at trial. However, a party is not denied a fair trial by the denial of the opportunity to cross-examine a witness who does not give any testimony. The very definition of cross-examination requires that the witness first be examined on direct. Crooked Creek did not subpoena Jack and was required to resort to other evidence to rebut the presumption of negligence arising under section 87.21.

The district court did not abuse its discretion when it denied Jack's motion to continue the trial. However, the district court's decision to enter a default judgment against Jack rested on an erroneous interpretation of IRCP 1.971(3). Because rule 1.971(3) does not require a party to appear personally for trial, it was an abuse of discretion to enter a default judgment against Jack when his counsel was present and able to proceed to trial on his behalf. (Note, neither does § 17A.12.)

COURT OF APPEALS

KELLY v. RISER, 2-835 / 11-1898 (10-31-12)

Before the plaintiff began working for a temporary workers' agency, he signed a release that if he were injured on the job, his exclusive remedy would be through the agency's workers' compensation carrier. He was later injured and collected workers' compensation benefits from the agency's insurance carrier. He also filed suit against three defendants: the property owner, the general contractor, and the subcontractor. The district court, on the defendants' motions, entered summary judgment rulings, finding in their favor. The plaintiff appeals. OPINION HOLDS: Regarding the order granting summary judgment to the subcontractor, the district court was correct in finding the plaintiff cannot recover on either his tort or contract claims. The release covered all claims, and was enforceable by the subcontractor as a third-party beneficiary, precluding the plaintiff from recovery on his tort claim.  Regarding his contract claim, plaintiff was not a third-party beneficiary of the contract between the subcontractor and the agency and therefore not able to survive a summary judgment motion on that claim either. Regarding the order granting summary judgment to the property owner and the general contractor, the plaintiff's contract and tort claims fail here as well. The contract between the property owner and the general contractor did not create an obligation on the general contractor to maintain a safe work place for the plaintiff, as he was not a third-party beneficiary to this contract. The district court was also correct in applying Jones v. Schneider, 797 N.W.2d 611 (Iowa Ct. App. 2011) precluding plaintiff from recovering under Restatement (Second) of Torts section 411 for negligent hiring. We therefore affirm on all grounds.

COURT OF APPEALS

MOAD v. LIBBY, 2-721 / 12-0126 (10-31-12)

Moad, an over-the-road trucker, died following a motor vehicle accident that occurred while he was working in Iowa. In this appeal we review the district court's decision finding Iowa law applies to the question of whether a workers' compensation lien can be asserted against an employer's uninsured motorist policy. Dakota Truck Underwriters, Risk Administrative Services, Inc. (DTU), Moad's employer's workers' compensation carrier, asserts the district court erred in finding Iowa law applied to the question of whether DTU could recover the workers' compensation benefits provided to Moad and his family from the money received from Moad's employer's uninsured motorist carrier, Northland Insurance Company. DTU also asserts the district court erred in denying its motion to set aside the order approving the settlement of the uninsured motorist claims. OPINION HOLDS: Because we find the district court applied the incorrect Restatement (Second) of Conflict of Laws section to the question of which state's law applies to the recovery rights of a workers' compensation carrier from the uninsured motorist policy of an employer, we must reverse the district court's decision. A remand is necessary in this case for the district court to conduct further proceedings to develop the record to include the facts necessary to apply the correct Conflict of Laws section.

COURT OF APPEALS

O'REILLY AUTO PARTS v. ALEXANDER, 2-711 / 11-1864 (10-31-12)

O'Reilly appeals a district court order upholding the workers' compensation commissioner's decision awarding benefits to Alexander. O'Reilly challenges the commissioner's finding that Alexander sustained injuries arising out of and in the course of his employment, and argues his sua sponte addition of an insurance carrier into the proceedings reflected bias and was reversible error. OPINION HOLDS: Because substantial evidence supports the commissioner's finding that Alexander sustained injuries arising out of and in the course of his employment, and the commissioner's action in adding the correct insurance carrier was within the authority granted to him by the legislature and was not indicative of bias, we affirm.

AGENCY DECLARATORY

IN RE PETITION FOR DECLARATORY ORDER ON IOWA CODE § 85.27(2) (10-23-12) (AFFIRMED in its entirety, Polk County District Court 9-16-13)

Petitioners, members of the Workers' Compensation Core Group of the Iowa Association for Justice f/k/a Iowa Trial Lawyers Association filed a petition for a declaratory order regarding surveillance. Interveniors include the Iowa Insurance Institute, Iowa Defense CounselAssociation, and Iowa Self Insurers Association, as well as the Property Casualty Insurance Association of America.

The issue presented is whether surveillance recordings and reports are evidence of a claimant's physical or mental condition which is required to be released without privilege if requested under § 85.27(2).

While § 85.27(2) does apply to medical evidenceand information held by third parties, it is not so limited. The law requires release of all information concerning a claimant's physical or mental condition. The section of the law references all information an employee, employer, or insurance carrier has access to concerning a claimant's physical or mental condition. This is not limited to evidence held by third parties.

Nothing in this declaratory order will prevent defendants from undertaking surveillance to assist in their defense against claims made by an injured employee for workers' compensation benefits. Further, the surveillance materials relating to a claimant can still be provided to health care providers to show what activities a claimant is engaging in and whether the activities are consistent with claimant's subjective complaints or limitations. A claimant's testimony may be impeached in deposition or at hearing using the surveillance materials. Surveillance can be undertaken either before or after a deposition and used to impeach a claimant.

Intervener Iowa states that if it is required to release surveillance materials before a deposition, the surveillance loses its impeachment value. That is not accurate. While the element of "surprise" is lost with pre-deposition disclosure of surveillance materials, the impeachment value is not lost. Modern rules of discovery seek to avoid surprise as a tactic in litigation. The purpose of discovery rules in litigation is to remove the element of surprise by letting each side know the available evidence. Such policy drives parties to resolution of their matters sooner rather than later based upon information readily available to all parties - as opposed to non-disclosure and later seeking surprise. A claimant can be questioned about her or his activities and how it compares to the activities shown in surveillance materials. An implausible answer as to why a claimant was shown in surveillance performing certain physical activities will still impeach a claimant's testimony. Surveillance of a claimant limping into a doctor's office, but walking normally at the mall or perhaps engaged in a sporting event still makes surveillance an effective tool in defending a claim. The probative value of such evidence is not lost due to the disclosure required pursuant to § 85.27(2).

The mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation are not waived by § 85.27(2). A party may request that that information not be disclosed by following the procedures of § 85.27(2) or IRCP 1.503(5)(a).

Petitioners set forth the following questions they want answered in a declaratory order.

a) Is § 85.27(2) applicable to surveillance in workers' compensation claims?

Answer: Yes.

b) Pursuant to § 85.27, are all privileges waived with respect to surveillance videos and photographs showing the injured worker?

Answer: Yes, as to attorney-client work product privileged.

No, as to mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

c) Pursuant to § 85.27, are all privileges waived with respect to surveillance reports concerning the injured worker?

Answer: Yes, as to attorney-client work product privileged.

No, as to mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

d) Pursuant to § 85.27, are Defendants required to produce surveillance videos, photos, and/or reports when asked for in appropriate discovery requests?

Answer: Yes. Pursuant to § 85.27(2) defendants may request the commissioner, or commissioner's designee, to review the request and issue an order accordingly.

e) Pursuant to § 85.27, are Defendants permitted to withhold surveillance videos, photos, and/or reports until after deposing the injured worker?

Answer: No. Pursuant to § 85.27(2) defendants may request the commissioner, or commissioner's designee, to review the request and issue an order accordingly.

f) Pursuant to § 85.27, when are Defendants required to produce surveillance videos, photos and/or reports?

Answer: § 85.27(2) states, "The information shall be made available to any party or the party's representative upon request." If a request is made pursuant to § 85.27, rather than through formal discovery, the period found in rule 876 lAC 4.17 shall apply. The report must be served upon the opposing party within 20 day of filing an answer or if not then in possession within 10 days of receipt, if requested by claimant or claimant's representative. If the request is made as a discovery request pursuant to the IRCP, the periods set forth within the discovery rules shall apply.

g) Pursuant to § 85.27, if the information is requested in an interrogatory, is there any privilege against or valid objection to identifying the fact that surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

Answer: Yes. § 85.27 (2) states, in part: If release of information is refused, the party requesting the information may apply to the workers' compensation commissioner for relief. The information requested shall be submitted to the workers' compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly. The law provides that the commissioner may determine both the relevance and materiality of the information and enter an order accordingly. An objection to release of this information could be sustained under § 85.27(2), upon proper showing.

h) Pursuant to § 85.27, if the information is requested in an interrogatory, when must Defendants identify the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

Answer: Defendants are required to timely answer discovery and supplement discovery by rule 876 lAC 4.19(3)(c). If a request is made under § 85.27, rather than through formal discovery, the period found in rule 876 lAC 4.17 shall apply. The items must be served upon opposing party within 20 days of filing an answer or if not then in possession within 10 days of receipt, if requested by a claimant or claimant's representative. If the request is made as a discovery request pursuant to the IRCP, those periods shall apply.

i) In the event that (3)(a) or (3)(b) above are answered "NO," if Defendants assert a privilege in response to a request for production of surveillance, are they also required to provide a privilege log under IRCP 1.503(5) which identifies the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

Answer: Not applicable

j) Pursuant to § 85.27, can an injured worker move to compel production of surveillance videos, photos, and/or reports, and for appropriate sanctions, under IRCP 1.517?

Answer: Yes. Additionally, the Agency has authority under 876 lAC 4.36 to impose sanctions if a party fails to comply with an order.

COURT OF APPEALS

VERIZON BUSINESS NETWORK SERV., INC. v. MCKENZIE, 2-394 / 11-1845 (10-17-12)

Verizon Business Network Services, Inc. (MCI) appeals the district court's judicial review ruling of a workers' compensation decision asserting the district court erred in holding it responsible to pay for the unauthorized weight-loss surgery of the injured worker, Melinda McKenzie. McKenzie cross-appeals asserting the district court erred in finding the commissioner (1) improperly applied the review-reopening standard articulated by the supreme court in Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387 (Iowa 2009), and (2) incorrectly determined the commencement date for the benefits awarded in the review-reopening decision. OPINION HOLDS: We find the district court correctly found the commissioner failed to properly apply the Kohlhaas analysis in the remand decision. Therefore, we affirm the district court's decision remanding this case once again back to the agency. We also agree with the district court's decision that the correct commencement date for any new benefits awarded on remand is the date the review-reopening petition was filed. However, we disagree with the district court's finding that the employer is responsible to pay for McKenzie's weight-loss surgery. This surgery was to correct a condition not caused by her work-related injury, and we find there was no substantial evidence to support a finding that the surgery was beneficial to the work-related injury. PARTIAL DISSENT ASSERTS: I concur in all respects except I dissent in regard to the majority's conclusion that McKenzie has failed to meet her burden to reopen her claim. Contrary to the majority, I do not believe the agency has relied on the same facts as the original action. Facts in the review reopening not existing in the original proceeding demonstrate increased incapacity of the employee due to the original injury, that was not initially contemplated nor premised upon the same evidence. Accordingly, there is substantial evidence for the commissioner's award and I would reverse the district court on this issue. See, prior Court of Appeals decision.

COURT OF APPEALS

DUNLAP v. ACTION WAREHOUSE, 2-568 / 11-1451 (10-17-12)

Action Warehouse and its insurer appeal the district court's ruling affirming the award of workers' compensation benefits to claimant and remanding for determination of penalty benefits. The claimant cross-appeals. OPINION HOLDS: Following our review of the whole record, we agree with the district court that there is substantial evidence in the record to support the commissioner's finding that Dunlap's physical condition was causally related to his work injury in July 2007. Additionally, we find no error in the district court's affirmation of the agency's award of temporary disability/healing period benefits and agency's decision not to impose further sanctions or find the employer in contempt. However, because we agree with the agency that there was a reasonable basis for Warehouse's position that no benefits were owing to Dunlap, we conclude the district court erred in reversing the agency's denial of penalty benefits. Accordingly, we reverse the district court reversal of the agency's denial of penalty benefits, and we affirm the district court's ruling in all other respects, including the cross-appeal.

COURT OF APPEALS

CARTER v. ALTER TRADING CORP., 2-740 / 11-1697 (10-17-12)

Jeff Carter, conservator for Sandra Paniagua, dependent of deceased employee, and employer Alter separately appeal from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner apportioning benefits and awarding penalty benefits following the death of Yobany Sabillon Moreno. Carter raises claims in regard to the commissioner's apportionment of death benefits, and the amount and apportionment of the penalty benefit award. Alter raises claims in regard to the commissioner's award of penalty benefits, and the district court's remand to the agency on the issue of discovery sanctions. OPINION HOLDS: Upon our review, we find the commissioner considered the facts, circumstances, and needs of the dependents in reaching an equitable apportionment of benefits. Substantial evidence supports the commissioner's award of penalty benefits, as well as the amount and apportionment of such benefits. We therefore affirm the district court's judgment on those issues. However, we find the district court should not have ordered a remand on the issue of discovery sanctions, and we reverse that directive by the district court.

COURT OF APPEALS

ANNETT HOLDINGS v. ALLEN, 2-691 / 12-0388 (10-17-12)

An injured employee appeals the denial of temporary disability benefits and a finding of fifty percent industrial disability. Employee contends employer did not offer suitable work because the work was located almost 850 miles from his home, and argues he is permanently and totally disabled. Employer cross-appeals asserting the employee's disability is less than fifty percent. OPINION HOLDS: We find the commissioner did not err in finding the employer failed to offer suitable work for purposes of § 85.33(3) (2005). See, Neal. We also find substantial evidence supports the commissioner's findings of fact with respect to the extent of the employee's industrial disability. The commissioner's application of those facts in holding the employee suffered a fifty percent industrial disability is not irrational, illogical, or wholly unjustifiable. Accordingly, we reverse in part, and affirm in part. 

COURT OF APPEALS

TYSON FOODS, INC. v. SHAW, 2-692 / 12-0432 (10-3-12)

Tyson challenges a district court ruling that affirmed a decision of the workers' compensation commissioner to award Shaw benefits for a cumulative workplace injury. The employer contends the commissioner applied an incorrect legal standard in determining the manifestation date, and when the correct legal standard is applied, Shaw is barred from receiving compensation by the ninety-day notice requirement in § 85.23 (2009). OPINION HOLDS: I. We interpret the commissioner's challenged statements to be his considering which alternative measurement would properly determine a manifestation date where so many dates could be used, rather than creating a new standard of law-as Tyson suggests. Because the manifestation of a cumulative injury is an inherently fact-based determination, we afford the commissioner substantial latitude and review to determine whether his finding is supported by substantial evidence. II. Even if substantial evidence could support an earlier date of injury, the commissioner was entitled to choose the first day of work missed after Shaw became aware of the injury, a date supported by substantial evidence. III. We also find no legal error in the commissioner's application of the discovery rule as a second option (Dicta?) for determining when the ninety-day notice period commenced. Accordingly, we affirm the district court's ruling approving of the commissioner's decision.

COURT OF APPEALS

ESTATE OF BREHM v. DUBUQUE COMMUNITY SCHOOL DIST., 2-473 / 12-0176 (10-3-12)

After Lawrence Brehm Jr. died in a work-related injury, his estate began receiving workers' compensation benefits. Those benefits compensate his estate for only one of the two full-time jobs he held. The estate filed a petition for declaratory judgment, seeking a ruling that would allow it to sue his employer for the damages not covered under the Workers' Compensation Act. The district court granted summary judgment in favor of Brehm's employer. On appeal, the estate contends because Iowa Code chapter 85 (2011) does not compensate for additional jobs a worker may have been performing at the time of the injury, the workers' compensation remedy is inadequate. It argues the case should be removed from the jurisdiction of the workers' compensation commissioner to allow the pursuit of tort claims against Brehm's employer.OPINION HOLDS: Although the chapter 85 benefits do not fully compensate the estate for Brehm's death, the damages sought by the estate arose from Brehm's work-related injury and the Workers' Compensation Act provides compensation for such injury. We therefore conclude the workers' compensation remedy is "adequate" as that term is used in Iowa case law. Accordingly, we affirm the district court's order.

AGENCY APPEAL

ARNOLD v. PEPSI-COLA BOTTLING COMPANY, 5030453/5030364 (9-27-12)

Defendants assert on appeal that the deputy erred in finding a BAW injury as claimant pled only a scheduled injury to his right knee and because claimant has failed to prove by a preponderance of the evidence that he sustained a body as a whole injury.

Defendants, Pepsi-Cola Bottling Company and Old Republic Insurance, assert that they have been severely prejudiced by the fact that they were never provided notice that claimant's injury could or would be considered an injury to the BAW and thus were prejudiced by the deputy commissioner's finding that claimant's injury to his right knee progressed into a BAW injury due to gait derangement.

The petition filed by claimant provided defendants with actual notice that the nature of the disability benefits sought by claimant was at issue in the claim. Further, defendants were provided with medical documents which contained evidence of a gait derangement which could be supportive of an industrial disability claim. It is therefore concluded that defendants' due process challenge must fail as defendants were provided with actual notice that the nature of claimant's workers' compensation benefit entitlement was preserved for hearing. There is therefore no prejudice which resulted from the industrial disability analysis.

The next issue for consideration on appeal is whether the presiding deputy commissioner erred in finding that claimant's injury to his right knee extended into the BAW due to gait derangement. Defendants assert that there is no evidence in the record to support the finding of the presiding deputy that claimant sustained a permanent impairment to his body as a whole and that claimant's alleged gait derangement was proximately caused by claimant's stipulated injury to his right knee.

Claimant has failed to prove by a preponderance of the evidence that his right knee injury has extended into the body as a whole due to gait derangement. Therefore claimant's award of PPID benefits must be reversed.

AGENCY APPEAL

JENSON v. CUMMINS FILTRATION-LAKE MILLS, 5032401/5032402 (9-25-12)

In calculating average gross weekly earnings over the previous 13 weeks, weeks should be excluded from the calculations which are not representative of hours typically or customarily worked during a typical or customary full week of work, not whether a particular absence from work was anticipated. The calculations set forth by claimant of her gross weekly rate properly exclude weeks where she used vacation pay or funeral leave to be more representative of her customary weekly earnings. Such exclusions have consistently been made by this division in calculating an injured worker's average weekly wage. Those weeks in which such leave was used by claimant reduced the typical overtime pay she was receiving. The arbitration decision shall be modified to amend claimant's weekly compensation rate.

Defendant has the burden to show compliance with this statutory provision in order to avoid the mandatory assessment of a penalty. In this case, by the time of hearing, defendant did establish that compensability of the back injury claim was fairly debatable given the medical opinions obtained. However, the inquiry under the current provision of §86.13 requires more than a reasonable or probable cause or excuse at the time the case comes to hearing. The law requires proof of a prompt investigation and that factual basis be provided to the injured worker at the time of the denial, delay, or termination of benefits. Herein, defendant must show a timely investigation of claimant's report of a back injury, that the denial of the back claim is based on the results of that timely investigation, and that there was a timely communication to claimant of the reasons for the denial.

There is no showing that any investigation was actually conducted, no showing that the denial of benefits was based on that investigation, and no showing that the reasons for the denial were contemporaneously communicated to claimant or her legal counsel. Quite later on in the course of litigation the employer's basis for the denial of the claim was provided to claimant in discovery, but not earlier as expressly required by statute. Therefore, due to the failure of defendant to make any attempt to provide evidence of compliance with §86.13, a 50 percent penalty shall be assessed.

AGENCY APPEAL

ELMER v. CLAYTON COUNTY RECYCLING, 5030948 (9-24-12)

Claimant asserts on appeal that the presiding deputy commissioner erred in failing to find claimant proved a first-qualifying injury for purposes of the Second Injury Fund and that significant benefits should be awarded against the Fund. MODIFIED

The issue is rendered moot because the combined effect of both the right arm and left leg injuries do not result in an industrial disability of greater than 10 percent which would entitle claimant to only 50 weeks of permanent partial disability benefits. Claimant has no permanent restrictions from either injury. Claimant returned to work at Clayton County Recycling to his same job without accommodations and only lost that job when he was terminated for not showing up for work. He is currently working in a strenuous labor job and receiving weekly earnings that are as much, if not more, than his earnings at Clayton County Recycling. The Iowa Second Injury Fund's credit against such an award for the first and second injuries exceeds 50 weeks (10 percent of the right arm is 25 weeks and 12 percent of the left leg is 26.40 weeks). §85.34(m); 85.34(o); 85.64. Consequently, claimant has failed to prove by a preponderance of the evidence that he is entitled to benefits from the Fund.

COURT OF APPEALS

MENARD, INC. v. JONES, 2-579 / 12-0027 (9-6-12)

Menard, Inc., its insurer, Zurich American Insurance (collectively Menards), and Menards's employee, James Jones Jr., seek further judicial review of a workers' compensation decision.  Menards contends the district court erred in affirming the agency's determination that Jones had yet to reach maximum medical improvement. Jones contends the district court erred in reversing the agency's calculation of his weekly compensation rate. OPINION HOLDS: We conclude substantial evidence supports the agency's finding on the issue of maximum medical improvement, but agree with the district court that the agency's rate calculation is not supported by substantial evidence. We accordingly affirm the district court's decision, which affirmed the agency in part, reversed the agency in part, and remanded for a recalculation of Jones's healing period benefits under § 85.36(7) (2009). PARTIAL DISSENT ASSERTS: I respectfully dissent from the majority's affirmance of the district court's reversal of the agency's rate calculation under § 85.36(9) (2009). I concur with the majority's affirmance in all other respects. The majority's reliance upon Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129 (Iowa 2010), is misplaced because it is factually distinguishable from the case at hand. King v. City of Mt. Pleasant, 474 N.W.2d 564, 566 (Iowa 1991), which was not overruled Swiss Colony, provides that a preliminary factual finding of lower earnings is not necessary in cases in which a claimant is a "prototypical part-time employee." Here, there is substantial evidence in the record to establish Jones was a "prototypical part-time employee." I would therefore reverse the district court's ruling that § 85.36(9) cannot not apply in this case.

AGENCY APPEAL

HABERKORN v. DICK'S AUTO SALES, 5026085 (8-21-12)

The deputy found that claimant's spinal condition was not proven to have been caused by an ATV incident that occurred at work. It is from the findings relating to the spinal condition that claimant has appealed.

The opinion of defendants' IME Physician is discounted as he is not a treating physician, has not personally evaluated claimant, and fails to account for a progression of claimant's back complaints following the injury and significant head trauma. Claimant's burden is to prove by a preponderance of the evidence that the low back injury is a result of the work injury. It is concluded that claimant has met that burden based upon the expert medical opinion of Dr. Stenberg and the supporting opinions of Drs. Mendoza and Chen from the University of Iowa and of Dr. Neiman.

Claimant is not at maximum medical improvement as a result of his low back injury resulting from the work injury. While claimant is at maximum medical improvement from his neuropsychological injury, any award of permanent disability is premature due to his ongoing healing from his low back injury. Claimant is entitled to a running award of temporary disability benefits until the end of his healing period. The prior award of permanent partial disability is therefore stricken.

It is concluded that the deputy correctly found that the issue of whether claimant was entitled to permanency benefits was fairly debatable. No penalty was awarded. While the arguments of defendants were not adopted in the arbitration decision or on appeal, those arguments were none the less a reasonable basis for having denied payment prior to the arbitration hearing.

AGENCY APPEAL

VITZTHUM v. KLM ACQUISITION CORPORATION, d/b/a ALUMA, LTD., 5033480 (8-21-12)

The hearing deputy's rate computations which included earnings during short hour weeks claimant took vacation pay and took unpaid personal days off is not consistent with case law. Also, the hearing deputy improperly included premium overtime pay in the computations which is to be excluded pursuant to § 85.36(6). By agency rule, overtime hours are to be included, but only at the regular hourly rate of pay.

The first compensation payment week begins with the first day of entitlement and weekly benefits are to be paid by the end of a compensation payment week composed of seven calendar days. Claimant has correctly computed the additional entitlement to healing period and temporary partial disability benefits and interest

I do not see the use of the short weeks as an unreasonable argument under the facts of this case, although I do not find such computations appropriate in this case. Defendants contend that KLM is an unusual employer in customarily allowing its employees to routinely take unpaid time off if approved in advance. I do not see much evidence in the record to show that KLM's practice is all that unusual. However, the argument is rational and there is some agency precedent which holds that where the earnings customarily fluctuate, the earnings used to determine the rate of compensation are those within the customary range of fluctuation.

I conclude that the defendants had a fairly debatable basis for its calculations of rate. I also do not see where defendants untimely paid its version of the weekly benefits and due dates. Consequently, no penalty will be imposed upon the defendants.

AGENCY APPEAL

RODER v. SARA LEE FOODS, INC., 5031185 (8-3-11)

Defendants expressly assert on appeal that the deputy was unfair and biased in viewing the evidence and in finding that claimant sustained a permanent partial impairment and subsequent disability.

An independent examining physician, has found that claimant has a permanent functional loss of 8% pursuant to the AMA Guides, 5th Edition, noting claimant's ongoing pain and thoracic spine condition. The IME examiner has also assigned permanent work restrictions which are not unreasonable based upon claimant's condition. As was noted in the conclusions of law within the arbitration decision, supportive lay testimony may be used to buttress expert testimony and, therefore, is also relevant and material to a claim. Defendants assert that because the two treating doctors have not found a permanent impairment, that claimant is precluded from an award of permanent disability. That is not the law.

Although this is a closely-contested case in which there is conflicting evidence on the issue of permanent impairment, the preponderance of the evidence is found to support the findings of the presiding deputy. It is lastly concluded that there is no evidence of bias presented by defendants, merely evidence of dissatisfaction with the findings contained in the deputy's decision. 25% PPID AFFIRMED.

AGENCY APPEAL

BUSER v. SECOND INJURY FUND OF IOWA, 5021259 (7-18-12)

On appeal claimant asserts that the presiding deputy commissioner erred assigning the date for commencement of benefits. Claimant notes that in cases of permanent total disability against the Fund, the agency has generally found that the time for beginning credits allowed to the Fund begins with the date on which the injured worker is at maximum medical improvement and the employer commences permanent partial disability benefit payments.

As claimant has been determined to be permanently and totally disabled, such prior permanent partial disability benefits are considered to be in lieu of permanent and total disability benefits owed by the Fund when the combined effects of claimant's two scheduled injuries are considered. It is therefore concluded that The Fund is entitled to its additional credit resulting from claimant's first-qualifying injury.

AGENCY APPEAL

THOMAS v. McKESSON, 5033140 (7-17-12)

While the question of claimant's permanent and total disability is a close question, the undersigned agrees with the presiding deputy that the preponderance of the evidence supports the award of permanent and total disability. Claimant is physically unable to compete for an employment position in the positions for which she has training and work experience for the reasons articulated by the presiding deputy. Claimant's retraining efforts are too speculative, at the time of the hearing, to establish an actual earning capacity from those efforts. If claimant is successful in her educational pursuits it is likely that she will be capable of obtaining employment within her new qualifications, but at the current time she has proven that she does not have a retained earning capacity.

The finding that claimant sustained a knee injury cannot be affirmed. Only Dr. Horowitz provided an expert medical opinion as to the cause of claimant's knee injury and that opinion was that the etiology was unclear and not explained. It is therefore concluded that claimant has not proven by a preponderance of the evidence that she sustained a knee injury resulting from her work injury. The modification as to liability for the knee injury does not impact the finding that claimant has sustained a permanent and total disability.

AGENCY APPEAL

SHAW v. KEIM FARM EQUIPMENT, 5031992 (7-13-12)

Denial of benefits affirmed with additional analysis.

Claimant's assertion on appeal that the Veterans Administration Hospital records only show asymptomatic prior arthritis is simply incorrect. Many of records which were generated in the summer and fall of 2009 prior to the October 2009 work injury indicate a history of bilateral knee pain. Consequently, claimant's reliance upon an earlier view of Dr. Abraham that the left total knee replacement was the result of the work injury would not be appropriate as it was based on his misunderstanding that claimant's left knee was not symptomatic prior to the work injury. Upon learning the correct history as reflected in the VA records, Dr. Abraham changed his opinion. WALSHIRE

AGENCY APPEAL

BATES v. LOPAREX LLC, 5031388 (7-13-12)

The deputy was incorrect in stating that the credits for overpayment of healing period benefits and the payment of short term disability benefits was sufficient to moot the issue of a denial and delay of permanent partial disability benefits.

Even if we consider an overpayment credit of $59.12 per week for paying a higher weekly rate, (including an additional credit of $8.14 per week for the exemption issue found fairly debatable by the hearing deputy) the total credit would be $5,498.16.

There would also be a credit pursuant to § 85.38(2) for the payment of short term disability benefits, a program funded by the employer, in the amount of $317.50 per week ($635.00 every two weeks). This credit at the time of hearing totals, $6,531.43. Defendant usually is not entitled to all of this type of credit as such benefits are taxable and worker's compensation benefits are not. However, I am unable to determine from the evidence submitted the amount of the income tax, if any, claimant had to pay on such benefits.

Therefore, the total credit against permanency would only be $12,029.59, far short of the $17,963.28 pre-hearing permanent disability entitlements. There would be no additional credit of 15 weeks even if we consider an earlier maximum medical improvement date as argued by defendants on a penalty issue because this would only move the commencement date for permanent disability benefits back to that date and simply add the same number of weeks to claimant's pre-hearing permanent disability benefit entitlement.

Therefore, claimant was unreasonably denied payment of permanent disability benefits in the amount of $5,933.69, the appropriate penalty for this denial of benefits prior to hearing is 50 percent or $2,966.85. This likely will increase if the delay continues after hearing, but that will be the subject of a new claim which apparently already has been filed by claimant.

There should be an additional penalty for a delay in benefits. Claimant was not paid any weekly benefits, permanency or short term disability, for a period of 15.571 weeks. This is a delay in paying permanent disability benefits in the amount of $7,444.65. The appropriate penalty for this delay is 50 percent or $3,722.33.

The maximum penalty is appropriate for the denial and delay because there was no showing in this record that there had been any reasonable attempt to comply with Iowa worker's compensation law and pay permanency benefits as prescribed by that law, rather than some other program, such as a group disability benefits. Neither the employer nor the insurer can use some other system to pay worker's compensation benefits without providing a reasonable and rational basis for doing so. WALSHIRE

AGENCY APPEAL

CROZIER v. CARDINAL IG COMPANY, 5032987 (7-12-12)

Affirmed with additional analysis.

The hearing deputy did not make a clear finding for the date of injury. I find that the date of this cumulative trauma injury to be May 5, 2009 when he was terminated for failing to report to work due to an inability to work a 10 hour shift. This is the time the injury manifested itself by a loss of his employment and the time when the impact of the injury began to impact his employment. I agree with the hearing deputy that via an unemployment compensation fact-finding interview, defendants were placed on notice of his injury, within 90 days of the date of injury.

While I am not convinced that a gait derangement alone would take a leg or foot injury into the body as a whole, the hearing deputy found a hip condition caused by the derangement resulting in hip pain.

It is clear that the deputy did not accept all the evidence that came from the claimant nor did he accept all the evidence that was introduced by defendants. WALSHIRE

AGENCY APPEAL

REED v. HEYL TRUCK LINES, INC., 5031752 (7-11-12)

Affirmed with additional analysis.

The hearing deputy's findings as to the injury, notice and extent of disability are based in part on the hearing deputy's assessment that claimant was credible on the disputed factual issues. Defendants argue on appeal that this finding should not be given deference as the only testimony from claimant comes in the form of a DVD recorded deposition submitted after hearing and the hearing deputy is not in a better position than I to assess the claimant's demeanor. First, from my review of the video deposition, claimant's demeanor appears credible. However, what I do lack on appeal is observation of the defense witnesses who testified at hearing to matters which conflict with claimant's testimony. While the hearing deputy did not specifically find these defense witnesses incredible, the deputy impliedly did so by finding claimant credible on the matters that conflict with their testimony. Therefore, I must defer to the credibility findings.

I do not find convincing the argument that the procedure of taking the video deposition after hearing was unfairly prejudicial to defendants. Admittedly, this procedure prevented defense witnesses from hearing claimant's testimony before they testified. However, this procedure is no different than the witness sequestration procedure this agency routinely utilizes at hearing. Also, I did not find claimant's testimony in the video deposition significantly different than his earlier deposition testimony, and defendants have not claimed that they were surprised by anything he said in the video deposition. The only new testimony concerned his residual stiffness, which I do not find to be unfairly prejudicial as defendants were able to cross-examine claimant on this point with the earlier deposition testimony. WALSHIRE

SUPREME COURT

THE WALDINGER CORPORATION v. METTLER, 10-0502 (7-6-12)

On further review, we are asked to determine whether Iowa's workers' compensation statute allows a claimant to recover HP benefits-after he has reached MMI and returned to substantially similar work following a work-related injury-for a period of approximately thirteen weeks of postsurgical convalescence during which he was unable to work. We conclude the statute does authorize an award of HP benefits in this case. Accordingly, we vacate that portion of the decision of the court of appeals, affirm the district court's judgment affirming the award, and remand for further proceedings consistent with this opinion.

Mettler's claim for healing period benefits turns on whether the commissioner properly interpreted § 85.34(1). This court has previously concluded in several cases that the legislature did not grant the commissioner authority to interpret chapter 85. However, we recently explored the analytical framework for determining on judicial review the extent to which we give deference to an agency's interpretations of law. See Renda v. Iowa Civil Rights Comm'n, 784 N.W.2d 8, 10 (Iowa 2010). Under the Renda framework, our review of an agency's interpretation of a statutory provision depends on whether the legislature has clearly vested the agency with discretionary authority to interpret the particular statutory provision. As we have not yet applied to § 85.34(1) the analytical framework announced in Renda, we must consider the question of the extent to which, if at all, the commissioner's interpretation of § 85.34(1) is entitled to deference on judicial review.

Having reviewed the language of the statute and considered the specific duties and authority given to the commissioner under the provision, we are not persuaded that the legislature clearly vested in the commissioner interpretive authority for § 85.34(1). Accordingly, our review of the commissioner's interpretation of § 85.34(1) is for correction of errors at law.

We now conclude our interpretation in Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999), of § 85.34(1) as a categorical prohibition of an award of healing period benefits for disability from work occurring after the date MMI has been achieved was erroneous, and we therefore overrule it.

When, after achieving MMI, a claimant is rendered temporarily disabled from work, as a consequence of surgical treatment provided under § 85.27 for a work-related injury, a new healing period begins under § 85.34(1). Our suggestion to the contrary in Ellingson was flawed for two reasons. First, it diminished the promise of continuing medical care for work-related injuries under § 85.27 by eliminating the healing period remedy intended to replace wages lost during convalescence from ordinary and necessary treatment in scenarios presenting more than one period of temporary disability from work following a single injury. Further, it ignored the fact that a single injury can cause a new period of temporary disability even after a claimant has achieved MMI.

Our interpretation of § 85.34(1) announced today avoids the absurd and unjust result that would arise if the statute were interpreted to allow only one course of healing period benefits for a single injury. We cannot conclude the legislature intended to deny additional HP benefits when an injured employee's return to work proves unsuccessful and a new period of temporary disability from work begins or-as in Mettler's case-invasive medical treatment for the work-related injury again renders him temporarily disabled from work.

The court of appeals also concluded the commissioner's award of HP benefits must fail because the record contained no evidence supporting a finding that Mettler's "doctors anticipated reasonable improvement from the [2007 surgery]." As we affirm in this case the commissioner's interpretation of § 85.34(1) allowing an award of healing period benefits for a new period of disability beginning after the claimant reached MMI under the circumstances presented here, we need not address whether the record supports a finding that significant improvement was anticipated from the 2007 surgery. The dispositive question is whether the treatment provided to Mettler under § 85.27 resulted in a new period of disability from work during the period of convalescence at a time before the claim for benefits for the injury of August 9, 2001, was time-barred. It clearly did.

Special concurrence by Waterman:

The majority interprets that language itself without acknowledging the agency's interpretive authority or the deference owed to its interpretation of that specialized term within its expertise. I would apply Renda and defer to the agency's interpretation of the healing-period provision to reach the same result.

AGENCY APPEAL

FITZGERALD v. SECOND INJURY FUND OF IOWA, 5028294 (6-28-12)

Defendant appeals on the sole basis that the presiding deputy commissioner erred in taxing the costs of the matter against the Second Injury Fund. The Fund argues that Solland applies only to the costs of judicial review actions.

The presiding deputy commissioner's analysis in his Ruling on the Application for Rehearing is affirmed. There is little distinction between an award of appellant costs and the costs of litigation before this agency when consideration is given to § 85.66.

AGENCY APPEAL

MINAR v. PELLA CORPORATION, 5022947 (6-27-12)

As in Burton, the bonuses in this case were also allegedly contingent and not guaranteed in an employee handbook, but the bonuses had in fact been consistently paid for years. The deputy considered the testimony of both claimant and a representative of defendant, Myron Linn. The deputy found the bonuses to be regular based on claimant's testimony that despite the wording in defendant's employee manual she qualified for and received these bonuses every year she worked there, a fact not disputed by defendant's representative. The deputy also found that these bonuses constituted a regular part of claimant's expected compensation for the services she performed for defendant and upon which she was taxed. It is concluded that the rate calculation of the presiding deputy commissioner is affirmed.

There clearly were many evaluations of claimant's permanent impairment by employer-retained physicians prior to the examination by Dr. Kuhnlein. Therefore the cost of the examination by Dr. Kuhnlein is to be reimbursed by defendant pursuant to § 85.39.

Also at issue are the reimbursable costs pursuant to § 85.39. The reimbursable expenses for an independent medical examination include not only the fees for the limited time expended in physically examining claimant, but fees for the time the physician and support staff expend in reviewing or abstracting past medical reports, the costs of necessary testing, the fees for the time of the physician and staff expended in preparing a written report of actual findings and conclusions, and any other incidental charges reasonably necessary for such an examination. This has been the long standing agency precedent. There would be little utility from § 85.39 if it were to only allow reimbursement for the time expended in performing a physical examination, but did not include any costs of informing a claimant of the results of that examination in a manner that would be complete and useful to claimant, defendant, this agency, and the reviewing courts should litigation occur. The costs of the § 85.39 report, if awarded, do not constitute a cost of a proceeding and consequently one of the reports in our agency rule 876 IAC 4.33(6) so as to limit the claimant to reimbursement for only one other report.

AGENCY APPEAL

MARSH v. HY-LINE INTERNATIONAL, 5033844, 5033845 (6-27-12)

Claimant that he has shown that his bilateral carpal tunnel syndrome should be compensated pursuant to § 85.34(2)(s). As correctly found by the hearing deputy, claimant's initial complaints involved symptoms in both extremities and these complaints were treated simultaneously, except for the two surgeries. The bilateral overuse complaints arose during the same time period.

Claimant's testimony that he is unable to work in any capacity were not found credible by the hearing deputy and no doctor has stated that claimant is unable to work. The vocational rehabilitation experts provided conflicting views as to employability. Claimant made no effort to seek employment after his termination.

Claimant did, also, suffer a work injury to his back, but again I also agree with the hearing deputy that claimant failed to show that this injury was a cause of permanent impairment or disability. The treating physician diagnosed only a temporary back strain and released claimant back to work without restrictions. Claimant has not sought further treatment for his back since this release as pointed out by the hearing deputy despite claims that he has significant back problems. The hearing deputy rejected the views of Dr. Stoken who causally related permanency to the back injury based on claimant's current complaints because she failed to explain how claimant's complaints differed from his admitted prior back complaints over the past 40 years. Claimant's attorney then points out in the appeal brief how the complaints differ, but the significance of these different complaints is a medical question that was not addressed by Dr. Stoken. Additionally, the views of Dr. Igram as a specialist in spine injuries is more convincing. Affirmed. WALSHIRE

COURT OF APPEALS

LEAVENS v. SECOND INJURY FUND, 2-376 / 11-1636 (6-27-12)

Wendy Leavens appeals from the district court's ruling on judicial review, affirming the denial of benefits under the Second Injury Fund. OPINION HOLDS: We agree with the Fund that:  (1) the May 2008 settlement agreement entered between Leavens and her employer, Maytag, would not be given preclusive effect in establishing whether Leavens sustained a second injury because the Second Injury Fund did not have an opportunity to fully and fairly litigate the issue; (2) the agency did not act in an unreasonable, arbitrary, or capricious manner, or abuse its discretion, when the application for rehearing was deemed denied under IAC 876-4.24, because the commissioner's affirmance of Leavens's appeal to the commissioner met the requirements of § 17A.16(1) (2011); and (3) substantial evidence supports the agency's determination that Leavens did not sustain a permanent disability as a result of her December 20, 2006 injury. We therefore affirm.

COURT OF APPEALS

VILLAFANA v. BLACKHAWK FOUNDRY, 2-441 / 11-1781 (6-27-12)

Benito Villafana challenges the conclusion of the workers' compensation commissioner that his carpal tunnel and neck injuries were not caused by his work as a scale operator at Blackhawk Foundry & Machine Company. He argues the agency findings are not supported by substantial evidence. OPINION HOLDS: The deputy commissioner found the views of the employer's medical expert to be more convincing than the opinion of the neurosurgeon who evaluated Villafana. The district court deferred to the agency's fact finding, as do we. Because the denial of benefits is supported by substantial evidence, we affirm. 

COURT OF APPEALS

COLLEGE CMTY. SCH. DIST. v. ORRIS, 2-280 / 11-1848 (6-27-12)

College Community School District and its workers' compensation insurance carrier, EMC Insurance Company, appeal from the judicial review order remanding claimant April Orris's claim for workers' compensation benefits to the workers' compensation commissioner. They contend the district court erred in determining that the agency improperly relied on anticipated future improvement in determining Orris suffered a thirty-percent permanent partial disability. OPINION HOLDS: Because there was sufficient evidence in the record regarding Orris's current physical condition to support the commissioner's findings, we reverse the district court and affirm the agency's decision.

AGENCY APPEAL

HANCOCK v. WAL-MART STORES INC., 5034064 (6-25-12)

Claimant's mental health condition was permanently aggravated by her stipulated work injuries. It is not disputed by claimant that she has had mental health issues dating back to childhood or that those issues had been pervasive in her life prior to her injuries. Clearly they were. The issue is whether claimant's mental health condition has been substantially aggravated due to her work injury and ultimately whether any aggravation has impacted her ability to perform work in the competitive labor market. There is only one expert opinion in the record relating to the issue of a permanent and substantial aggravation of claimant's mental health status. The opinion regarding aggravation of claimant's underlying mental health condition by Dr. Barloon is unrebutted and is supportive of claimant's assertions. Claimant's testimony is also persuasive evidence as to the aggravation of her preexisting mental health issues. Likewise, a preponderance of the evidence supports a finding that claimant's addiction to narcotic medications was significantly aggravated as a result of the prescriptions she was provided by authorized care providers due to her stipulated injuries.

It is further concluded that claimant does have severe permanent restrictions on her functional capabilities resulting from her work injuries. The finding that claimant's restrictions are self-imposed is without support and is overturned.

Based upon claimant's age, her ongoing pain and loss of physical capability, her severe mental impairment, and her lack of education, it is concluded that claimant has sustained stipulated injuries which permanently disable her from performing work within her experience, training, education, and physical capacities. Therefore, claimant is entitled to an award of permanent total disability benefits.

Based upon the previous findings it is concluded that defendants are responsible for all such mental health treatment costs and transportation expenses as set forth in claimant's itemization attached to the hearing order. It is further concluded that, defendants have abandoned medical care. Claimant has proven that due to her abandoned medical treatment, including mental health treatment, that she is entitled to an award of alternate medical care.

Claimant has asserted on appeal that defendants should be assessed a penalty pursuant to § 86.13 resulting from defendants failure to pay any temporary or permanent disability benefits. The finding of the presiding deputy on this issue is affirmed. Clear questions of fact were present in this record until defendants stipulated to causation for temporary and permanent disability benefits on the date of hearing. Any delay or failure to timely commence and pay benefits may be an issue for a later penalty claim. However, as of the date of hearing there is no basis for a penalty.

Defendants' willingness to continue to assert the merits of the motion in limine on appeal, despite the terse findings of the presiding deputy, is certainly questionable and ill-advised but it is not found to be a new basis for sanctions.

AGENCY APPEAL

DEWITT v. ELECTROLUX, 5032343 (6-15 -12)

Where alternate medical care intended to improve claimant's earning ability has been awarded, it is premature at this time to make any finding as to permanent restrictions, permanent functional impairment, or PPID as claimant's medical condition is not stabilized and will likely be impacted by the alternate medical care as ordered in this claim. The award of PPID benefits at this time must be denied as untimely as claimant remains in a healing period. Claimant may file a new petition for review-reopening when she attains maximum medical improvement after completion of her medical treatment as ordered in the arbitration decision.

AGENCY APPEAL

MANNING v. ABCM CORPORATION, 5025391 (6-14-12)

Claimant asserts on appeal that the presiding deputy commissioner erred in failing to approve a partial commutation as not being in the best interest of claimant. REVERSED.

Claimant's current debts, while not precisely defined, are not unreasonable considering claimant's loss of income. Claimant has guaranteed income from Social Security in addition to a supportive daughter. There is inherent risk in any investment and it is not unreasonable for an injured worker to pay a financial consultant a reasonable sum to make wise investment choices, as claimant testified that she would do upon receipt of commuted benefits. One would presume that payments to a financial investor would be a wise choice and a worthwhile cost as opposed to investment choices made individually without professional assistance. Real estate and transportation investments would also be a source of future income as those assets retain some value, and in the case of real estate would hopefully grow in value over time.

COURT OF APPEALS

FINLEY HOSPITAL v. STOKES, 2-381 / 11-2024 (6-13-12)

Employer appeals the district court decision affirming the deputy workers' compensation commissioner's ruling authorizing alternate medical care for Stokes. OPINION HOLDS: Because the deputy's finding that the employer failed to timely provide medical care was supported by substantial evidence, we affirm.

AGENCY APPEAL

SPAETE v. JOHN DEERE DAVENPORT WORKS, 5031216 (6-12-12)

Since the date of the arbitration decision the Iowa Supreme Court has provided further guidance on the issue of whether a bonus should be included in the calculation of an injured worker's average weekly wage. See Burton v. Hilltop Care Center, No. 09-1633 (Iowa Filed May 4, 2012) The court's discussion of whether a bonus is an irregular bonus under section 85.61(3) supports the presiding deputy commissioner's finding that claimant's bonus earnings were regular and were properly included in claimant's gross earnings.

AGENCY APPEAL

ISLAMOVIC v. BISHOP DRUMM CARE CENTER, 5030842 (6-11-12)

Claimant has proven by a preponderance of the evidence that she sustained a fall that arose out of and occurred in the course of her employment duties which resulted in a physical injuries including a vestibular injury as well as an injury to her neck, back, and left shoulder.

As the presiding deputy found that claimant had not sufficiently proven that she sustained a physical injury due to the fall, no finding was made as to whether claimant sustained a mental sequelae resulting from her fall.

The opinions of the various experts who have been asked to opine as to whether claimant has a mental injury are split.

Both Dr. Jennisch and Dr. Andrikopoulos are well-known to the division for their involvement in contested cases. Dr. Jennisch's opinions are frequently found persuasive and well-supported by this division and he appears to work equally on behalf of injured workers and employers/insurance carriers. His opinions are detailed, thorough, and well-documented. Dr. Andrikopoulos is also well-known to the division, but his work on behalf of employers/insurance carriers is considered predictable and has long been considered less convincing. Claimant presents the opinions of Dr. Eva Christiansen, Dr. Laughlin, Dr. Horvath, and LISW Scott Kloberdanz. Only Dr. Christiansen is known to the division and her opinions are frequently found persuasive and well-supported, but it must be mentioned that her work is primarily on behalf of claimants seeking workers' compensation benefits.

While Dr. Jennisch presents a credible opinion, his opinion conflicts with all of the other credible reports which are found to be consistent with the underlying medical records. It is therefore concluded that claimant has sustained a mental injury as a sequelae of her physical injury

The medical evidence supports that claimant has sustained a 30% whole person impairment due to the vestibular dysfunction. Claimant also has impairment of 8% of the whole person for her neck injury, 13% of the whole person for the left shoulder injury, and 8% of the whole person for the back injury. These impairments and resulting restrictions impair and preclude claimant from a return to any competitive employment.

It is further concluded that claimant has moderate to severe permanent impairment resulting from her mental health diagnoses. Claimant's mental health condition further restricts claimant from a return to any competitive employment at this time.

It is concluded that claimant has sustained a permanent and total disability as a result of her fall.

Defendants have sufficiently established a good faith basis upon which they could deny claimant further benefits subsequent to November 17, 2009. While it was not determined in this appeal decision that claimant failed to sustain a work injury, defendants had sufficient evidence, which was provided to claimant, to have a reasonable belief that no further disability benefits should be paid. Therefore no penalty shall be assessed pursuant to § 86.13.

AGENCY APPEAL

GLAVAS v. TYSON FOODS, INC., 5032715 (5-18-12)

When determining whether a preexisting medical condition or a work injury is the cause of disability, this agency must heavily rely upon expert opinion and when opinions differ, the clamant has the burden of showing a rational basis for rejecting the opinions offered against his claim and accepting the opinions offered in support of the claim. Claimant failed in this case. The view of defendant's experts that claimant's prior condition simply progressed to the point of causing disability regardless of the work injury was not shown irrational or unconvincing. Claimant's expert was not shown to be more convincing. WALSHIRE

COURT OF APPEALS

ABF FREIGHT SYSTEM, INC. v. VEENENDAAL, 2-243 / 11-1862 (5-23-12)

Veenendaal is employed by ABF as a truck driver. He injured his back during the course of his employment in 2006. Veenendaal filed a petition. The workers' compensation commissioner determined Veenendaal's back problems were caused by his employment and he had sustained a twenty percent industrial disability. The district court affirmed the commissioner. The employer now appeals. OPINION HOLDS: I. There is substantial evidence in the record to show Veenendaal's current back problems were related to the 2006 injury, rather than his pre-existing back problems. We also conclude there is substantial evidence to support a finding Veenendaal's back problems were not fully resolved in 2007, when he returned to work. II. We determine there is substantial evidence in the record to support the commissioner's finding that Veenendaal had a twenty percent industrial disability. Although Veenendaal is performing the same job that he had at the time of the injury, his testimony was that he had to approach his job in a more cautious manner. We affirm the district court and the commissioner.

COURT OF APPEALS

EMCO v. SAMARDZIC, 2-269 / 11-1375 (5-23-12)

In 2007, Samardzic was injured during his employment at Emco. Dr. Formanek performed surgery on Samardzic's left wrist. Samardzic continued to have pain in his wrist, and Dr. Formanek recommended reconstructive surgery. Dr. Gainer gave the opinion that Samardzic's current wrist problems were the result of progressive arthritis of the wrist resulting from an earlier injury, and as a result, the claims representative denied coverage for further surgery. A deputy workers' compensation commissioner found Samardzic had failed to show that the injury of 2007 was a substantial factor in the need for the surgery recommended by Dr. Formanek. The workers' compensation commissioner, however, reversed the deputy and found Samardzic had proven his request for medical care. The commissioner's decision was affirmed by the district court. The employer now appeals. OPINION HOLDS: I. There is substantial evidence in the record to support the commissioner's finding Samardzic's injury in 2007, was a substantial factor in the need for the surgery recommended by Dr. Formanek. II. The commissioner did not abuse its discretion by assessing the costs of two reports by Dr. Formanek in amounts of $250 and $325 to the employer.

COURT OF APPEALS

VILLAGE CREDIT UNION v. BRYANT, 2-276 / 11-1499 (5-23-12)

Bryant was employed as a teller/loan officer with Village Credit Union in Des Moines. Bryant was working as a teller when the credit union was robbed on February 7 and April 24, 2007. Bryant developed post-traumatic stress disorder. A deputy workers' compensation commissioner found Bryant had shown legal causation because she had been subjected to an event of a sudden, traumatic nature, that caused unexpected or unusual stress. The deputy determined Bryant was entitled to a running award of temporary total benefits under § 85.33(1) (2007). The workers' compensation commissioner affirmed and adopted the deputy's decision. On judicial review the district court affirmed the commissioner. The employer appeals. OPINION HOLDS: I. We conclude there is substantial evidence in the record to support a finding that Bryant established legal causation for her claim of mental injury. Bryant was subjected to two incidents which were of a sudden, traumatic nature, and were from an unexpected cause. II. Because Bryant had not yet reached MMI, it would be premature to attempt to assess whether she had a permanent disability. For this reason, we find no error in the commissioner's determination, "healing period benefits under § 85.34(1) are not appropriate, at this point, in this case." We conclude Bryant was properly given a running award of temporary total disability benefits under § 85.33(1).

AGENCY APPEAL

SULLIVAN v. CUMMINS FILTRATION-LAKE MILLS, 5025811, 5029419 (5-18-12)

Expert medical opinion in this case is insufficient to find that any of claimant's current complaints for which she seeks disability benefits and alternate medical care are causally related to the work injuries in this case. Claimant appeals. MODIFIED.

Claimant claims that the defendant's rate computations did not include the pro-rated annual bonus; included incorrect hourly rates which were corrected by the employer at a later date; included two unrepresentative weeks where claimant took two hours of personal leave; and excluded a representative week. I agree with claimant that her rate calculations are more representative of her customary weekly earnings.

Claimant's testimony and personal logs indicate that she was taken off work due to alleged disciplinary/performance problems which she says later proved unsubstantiated. Claimant's attorney speculates that this was a ruse to avoid paying benefits in that work restrictions were reimposed during these periods of time. The hearing deputy apparently did not believe claimant on these matters. Again, while I performed a de novo review, I must give considerable deference to findings of fact that are impacted by the credibility findings, expressly or impliedly, made by the deputy who presided at the hearing.

Claimant has not worked at Cummins since March 4, 2009 due to the unavailability of work within her permanent restrictions that are not found related to the work injuries in this case.

The hearing deputy found that a 13 day delay in deciding to pay weekly temporary total disability benefits was caused by confusion the proper wage rate was not unreasonable. I don't disagree with this as this is again a credibility assessment in part. However, as pointed out by claimant, there was an additional 11 day delay in issuing the first and subsequent checks. There was no evidence offered why the checks were not issued weekly as required by statute. I find this delay in issuing benefit payments unreasonable and not fairly debatable. I find that a penalty in the amount of $500.00 is reasonable given the amounts involved.

The issue of which weeks to use in rate computations; the issue of inclusion of an annual bonus; and, the issue of whether or not to use the retroactive pay changes are all fairly debatable in this case. Defendants' approach although not adopted by me was adopted by the hearing deputy. Also, the two day delay in paying these benefits is not found unreasonable. Penalty benefits are denied as to this matter. WALSHIRE

AGENCY APPEAL

SHARP v. UNIVERSITY OF NORTHERN IOWA, 5027941 (5-14-12)

Claimant appeals from a proposed arbitration decision that concluded she had established neither medical nor legal causation as regards her claim of a mental/mental injury that arose out of and in the course of her employment. Defendant cross appeals asserting that the workers' compensation commissioner lacks subject matter jurisdiction over claimant's claim; that claimant failed to provide timely notice of her claimed injury under § 85.23; and, that the deputy erred in denying defendants' motion to reopen the record after the hearing to allow evidence of claimant's settlement with the employer concerning her employment and discrimination claims.

Claimant has not established that her work environment was in fact a cause of the mental injury she claims.

Although claimant has failed to establish medical causation, legal causation will be addressed in the interests of thoroughness.

Claimant has the burden of proof to show that her workplace stress was more than that commonly experienced in similar jobs and occupations.

Certainly, stresses and difficulties existed at PLS. The school had budget problems and came close to closing. All faculty were required to reassess their career choices or face lay-off. These are common difficulties in public employment and their presence in any particular public work place cannot be considered unusual.

Claimant has not established that her work stress exceeded the daily work stressors to which other public educators are subject.

Wherefore, it is concluded that claimant has not established that she sustained an injury that arose out and in the course of employment as a result of workplace stress.

Because claimant has failed to prove she sustained an injury that arose out of and in the course of employment, all other issues are moot, and the affirmative defense of lack of notice need not be fully addressed. It is fair to say, however, that the employer did not have notice of the claimed work injury until claimant filed her original notice and petition. Furthermore, on this record, earlier actual knowledge of the potential for a claim of a stress-related work injury cannot be impugned to the employer. AFFIRMED. WALLESER

AGENCY APPEAL

RODRIGUEZ- CONTRERAS v. JBS SWIFT & COMPANY, 5029197 (5-8-12)

Affirmed with the exception of the award of PPID which is modified from 20% to 60%, and with a limited comment on the issue of 876 IAC 4.33(6).

It is the determination of the division that the presiding deputy commissioner's award of the full costs associated with preparation of the vocational report is a reasonable cost. The division's rule, 876 IAC 4.33(6), specifies that the costs included are those incurred for "obtaining" a report, not merely the writing of the report. It is therefore concluded that the taxation of costs as set forth by the presiding deputy is affirmed. These may include traveling to meet with the client, interviewing the client, reviewing the file, and performing vocational research or other analysis.

There are two vocational reports contained within the record. Both reports, giving consideration to the restrictions adopted by the division, find that claimant has a significant loss of earning capacity. Claimant is certainly not close to a point of total disability as asserted by Barbara Laughlin. Claimant remains gainfully employed in a bid position with defendant-employer and therefore has a retained earning capacity. However, Barbara Laughlin does credibly report that the restrictions imposed on claimant are quite significant for a worker with no English language skills, a sixth grade education obtained in Mexico, and a history of only physically demanding labor. Even the vocational rehabilitation expert retained by defendants agreed that with the restrictions imposed by Dr. Stoken that claimant is permanently disqualified from returning to approximately 45-50 percent of her pre-injury occupations.

Having considered the various factors of industrial disability it is concluded that the work injury, is a cause of a 60 percent loss of earning capacity.

COURT OF APPEALS

QUAKER OATS COMPANY v. PATTISON, 2-380 / 11-1974 (5-9-12)

The employer and its insurer appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision, contending the district court erred in affirming the commissioner's finding that Pattison is permanently and totally disabled. OPINION HOLDS: Because we agree with the district court's reasoning, its conclusions, and its application of the law, we affirm pursuant to IRAP 6.1203(a), (c), and (d).

COURT OF APPEALS

COOKSEY v. CARGILL MEAT SOLUTIONS, 2-150 / 11-1630 (5-9-12) NOT a workers' compensation claim.

Cooksey appeals the district court's dismissal of his petition for judicial review based on his failure to name the Employment Appeal Board as a respondent in his appeal from the Board's denial of his claim for unemployment benefits. Cooksey contends the district court should not have dismissed his petition as he substantially complied with § 17A.19(4) (2011) by identifying the Board in the petition and then mailing the Board a copy of his petition. Cooksey also asserts § 17A.19(4) is unconstitutional on its face and as applied, as it places different procedural requirements on claimants appealing the denial of unemployment benefits than those appealing the denial of workers' compensation benefits. OPINION HOLDS: We find because Cooksey did not comply&emdash;substantially or otherwise&emdash;with the requirements of § 17A.19(4), the district court properly dismissed his petition for judicial review. In addition, we find Cooksey has failed to sustain his heavy burden to prove § 17A.19(4) is unconstitutional. DISSENT ASSERTS: I respectfully dissent, and believe that Buchholtz v. Iowa Department of Public Instruction, 315 N.W.2d 789, 792-93 (Iowa 1982) dictates the result in this case. While the majority characterizes the issue in Buchholtz as "misnaming" agencies, in contrast with Cooksey's failure to name any agency in the caption, I do not find the distinction to be persuasive because by naming an incorrect agency, a petitioner fails to name the correct agency. The critical questions instead are whether the agency had proper notice, was misled, or suffered any prejudice from not being named as a respondent. Because the Board received service of Cooksey's petition, which identified the Board in the first paragraph, it was not prejudiced by the omission. I do not think that we should impose hypertechnical requirements on citizens trying to challenge the decision of a state agency.

AGENCY APPEAL

McDERMOTT v. SMITHWAY MOTOR XPRESS, INC., 5031125 (5-7-12)

Claimant appeals from an arbitration decision, wherein the presiding deputy commissioner determined that claimant failed to show that his stipulated work injury resulted in a permanent partial disability. REVERSED.

The presiding deputy commissioner found that the work injury was not a substantial factor in claimant's present disability. The deputy's finding is in opposition to the unrebutted medical opinions contained within the record of the case - there is no medical opinion in this matter supporting the finding that the stipulated injury is not a substantial factor resulting in claimant's disability. In providing a rationale for the finding that claimant did not sustain a permanent disability the deputy noted that claimant has a long history of low back problems, that he sought minimal medical treatment for his work injury, and that that he initially reported left-sided SI joint symptoms and later had right-sided symptoms after working for AmHof Trucking. As a result the deputy found that "fair questions" remain as to whether the right-sided symptoms are related to the December 29, 2008 work injury.

Although the legal standard is not whether claimant's injury is beyond any question, it is proper to provide analysis as to why the findings of the presiding deputy commissioner are overturned in this matter when considering whether claimant has presented sufficient evidence to prove his disability is work-related.

First, it is improper to deny causation in this matter due to claimant's admitted preexisting low back problems. Rather, it must be determined whether there is a preponderance of the evidence to support a finding that claimant's low back problems were materially aggravated, accelerated, worsened, or lighted up. Second, while it is true that claimant received minimal medical care resulting from his work injury it is noted that the treating physician was informed that because claimant quit his employment position that his medical treatment was also to end. Claimant then treated with his own medical care providers and filed a petition for alternate medical care with this division. The extent of treatment has minimal bearing on whether claimant's injury resulted in a disability as the lack of ongoing treatment was largely out of claimant's control. Last, it is undisputed that claimant complained of left-sided low back pain and his present pain is primarily right-sided. However, the presiding deputy's reading of the evidence is far too narrow and fails to provide a rational basis to undercut the medical opinion of Dr. Neiman. Claimant localized his pain with a report of pain in the left SI joint when evaluated by the authorized treating physician, but the same report documents generalized low back pain. When claimant was first evaluated by his family physician he noted pain in the lower back, not merely on the left side. The location of claimant's pain has consistently been noted to be in his low back. Only as claimant continued to function without medical intervention has right-sided radiculopathy increased.

Upon de novo review of the record it is concluded that the presiding deputy commissioner failed to provide a rational basis for discounting the unrebutted expert opinion on the issue of whether claimant's preexisting low back problems were materially aggravated by claimant's stipulated work injury. There is an overwhelming preponderance of the evidence in support of a finding that claimant's work injury was a substantial factor in claimant's present disability and need for medical care.

SUPREME COURT

BURTON v. HILLTOP CARE CENTER, 09-1633 (5-4-12)

Since Hilltop has not presented any new arguments, or pointed to any errors in the court of appeals decision which affirmed the district court's decision affirming the commissioner's findings as to the extent, notice, or cause of Burton's foot or abdominal injuries, we will let the district court's decision stand as the final decision on these issues. We will, however, address the compensation rate and penalty issues. REMANDED.

The commissioner ultimately concluded that compensation should be based on the salary actually received. However, the findings of fact, conclusions of law, and application of law to fact are so interconnected that we are unable to determine whether the commissioner's final decision was based on his legal conclusion that a mistake on Hilltop's part was irrelevant or a factual determination that the pay raise was not in fact the result of an accounting error. Accordingly, we find it necessary to remand this case to the commissioner with instructions to make a factual determination as to whether Burton's $1000 per month raise was, as Hilltop claims, the result of an accounting error. If the commissioner determines the $1000 per month increase in Burton's paychecks was the result of an accounting error, then the increase was not a payment given to Burton "for employment" but was instead a payment given to her by accident. As such, it would not meet the definition of "gross earnings" under § 85.61(3) and could not, therefore, be included in her weekly gross earnings under § 85.36. However, if the commissioner finds that the $1000 per month raise was not the result of an accounting error, then it would be money given "for employment" and should be included in gross earnings under § 85.61(3), and weekly gross earning under § 85.36.

The factors listed in Noel were relevant to the commissioner's conclusion in that case. However, their relevance depends solely on the facts of the case at hand. The true nature of the inquiry requires a reviewing court to look at those facts that were and were not considered and then to determine whether, on the whole, the agency's application of law to fact was irrational, illogical, or wholly unjustified. Since no two cases present the same set of facts, we will not handcuff the agency by limiting its inquiry.

Every full year Burton worked at Hilltop, she received a bonus. This bonus was paid despite the fact that Burton's supervisor had to have discussions about her work with her. It was also paid to Burton for being "a part of the operation." Burton's supervisor also testified that Burton was entitled to the bonus. These are all logical reasons that would justify the commissioner's determination that Burton's bonus was not irregular. Since the decision to include Burton's bonus in her gross earnings has a factual foundation, was governed by reason, and was not devoid of logic, the district court should have affirmed the commissioner on this issue.

Hilltop believed Burton's salary had been artificially inflated by an accounting error. The commissioner never made a factual finding on this issue. Without such a finding, we are unable to determine whether Hilltop had a "reasonable basis" to deny Burton her benefits. Resolution of the penalty issue hinges on the factual finding of the commissioner on remand. Accordingly, we reverse the decision of the district court and remand to the district court with instructions to remand the case to the commissioner. On remand, we ask the commissioner to reconsider the penalty benefits issue in light of whatever factual findings the commissioner makes regarding Hilltop's belief that Burton was overpaid due to an accounting error.

HECHT, Justice (concurring specially).

The court has concluded the less demanding Accordino standard should not be applied for very sound reasons. Foremost among them is the reality that the enterprise of "working backward" to divine facts the agency must have found and conclusions of law the agency likely made is, at best, problematic for courts exercising judicial review. I would strongly prefer to expressly disavow the Accordino standard to ensure this court consistently applies the more demanding standard announced in this case and eliminate the temptation to apply the more lenient Accordino standard when the agency has reached an outcome preferred by a majority of the court while applying the more demanding standard when the agency has reached an outcome not favored by the majority.

AGENCY APPEAL

HOLMES v. TYSON FRESH MEATS, 5032655 (5-1-12)

Tyson, appeals from an arbitration decision, in which the presiding deputy commissioner found that as a result of a stipulated injury, claimant had sustained an intermittent healing period, a scheduled permanent partial disability, and that a penalty should be assessed pursuant to §86.13 for defendant's unreasonable denial of payment of temporary disability benefits. REVERSED as to penalty only.

Defendant cites to the medical opinion of Dr. McMains, which states that claimant reports continued weakness in her upper extremity but is at maximum medical improvement and released to full work, as its reasonable basis for not commencing temporary disability benefits.

Following a de novo review of the record it is concluded that defendant had a reasonable basis for not commencing temporary disability benefits. That basis is found in the medical opinion of Dr. McMains of March 15, 2010. While that medical opinion was not found to be at all persuasive by the presiding deputy nor the undersigned, defendant was not unreasonable in relying upon the medical record when evaluating the compensability of this particular claim.

COURT OF APPEALS

KENT v. DIAMOND SHINE MANAGEMENT SERVICES, INC., 2-064 / 11-1041 (4-25-12)

An employer and its insurer ask us to reinstate a decision by the workers' compensation commissioner finding that its former employee suffered a seventy percent loss in his earning capacity based on work-related injuries to his shoulders and arms. The district court reversed the commissioner and concluded that Kent was permanently, totally disabled by applying both a traditional analysis and the odd-lot doctrine. OPINION HOLDS: Given the level of deference we owe to the fact finder's credibility determinations in workers' compensation cases, we hold the commissioner's findings were supported by substantial evidence with regard to Kent's seventy percent disability rating and the inapplicability of the odd-lot doctrine. Moreover, the commissioner did not abuse his discretion by refusing to award Kent the costs incurred in retaining his vocational expert. REVERSED.

COURT OF APPEALS

SERRATOS v. TYSON FOODS, 2-103 / 11-1186 (4-25-12)

Claimant held various positions at a meat packing facility now owned by Tyson Foods. While working for Tyson, he developed chronic obstructive pulmonary disease (COPD), which he argues was caused by his work environment. The deputy commissioner denied Claimant's workers' compensation claim, concluding Claimant failed to show a connection between his job and his condition. OPINION HOLDS: I. Because substantial evidence supports the commissioner's holding, we affirm the agency. II. Because the commissioner independently analyzed the claim as an occupational disease, subsequently incorporating the deputy's improper analysis of Claimant's condition as an injury did not cause prejudice. III. The deputy applied the proper causation standard to the claim. AFFIRMED.

AGENCY APPEAL

HAUSER v. ALL IOWA CONTRACTING, 5030766 (4-16-12)

Claimant asserts on appeal that the presiding deputy commissioner erred in failing to find that he sustained a permanent disability, in failing to consider whether his pre-existing spine condition had been exacerbated, in failing to find him permanently and totally disabled, and in failing to correct the weekly compensation rate. AFFIRMED.

Although the proper citation was not provided by the presiding deputy, it is clear that the deputy considered and ruled upon the issue of whether claimant's pre-existing spinal condition had been made materially worse as a result of the work injury. It is concluded that although there is persuasive evidence in support of claimant's position, the greater weight of the evidence is that claimant did not sustain a permanent disability resulting from his work injury. While it is true that claimant was unable to return to his employment with All Iowa Contracting following this work injury, it appears from the record that inability has more to do with claimant's heart treatment and other external factors. The more persuasive evidence is that while claimant was stiff and sore from his accident, he ultimately did not sustain a material change of condition causing permanent disability.

COURT OF APPEALS

HAWKEYE WOOD SHAVINGS v. PARRISH, 2-209 / 11-1546 (4-11-12)

Petitioners appeal the entry of a nunc pro tunc order in a workers' compensation decision. OPINION HOLDS: After our review of the record, we conclude the issues were thoroughly discussed and resolved by the well-written district court opinion. Because we agree with the district court's reasoning, it conclusions, and its application of the law, we affirm pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (d).

COURT OF APPEALS

CITY OF DAVENPORT v. NEWCOMB, 2-032 / 11-1035 (4-11-12)

The City of Davenport appeals from the district court's ruling on judicial review, affirming the award of workers' compensation benefits to former employee, Dick Newcomb. Newcomb cross-appeals the denial of penalty benefits under § 86.13 (2007). OPINION HOLDS: We affirm the district court regarding the agency's denial of additional testimony from the City's doctor at the follow-up/credibility hearing, as his credibility was not in question. We also affirm the district court's initial denial of penalty benefits as Newcomb's claim was "fairly debatable." We, however, reverse and remand as the district court erred in affirming the agency's denial of the City's August 7 motion to compel an independent medical examination. and in concluding that §85.39 was only applicable when liability for the injury was accepted. We decline to rule on the remaining issues that may subsequently be affected by our decision to remand. We therefore affirm in part, reverse in part, and remand with directions.

AGENCY APPEAL

WALSTON v. JACKIE SPENCER FARMS, 5031210; 5031211 (4-9-12)

Claimant asserts that the presiding deputy commissioner erred in failing to find that he sustained intermittent periods of permanent partial disability. The presiding deputy, having already awarded intermittent healing period, found that permanent partial disability payments commenced following claimant's return to work following shoulder surgery. AFFIRMED except as to failure to award intermittent PPD.

Prior to a right knee surgery, there was a reasonable argument that no permanent partial disability benefits would be owed in this matter. Therefore, there was more than a question of extent of disability benefits owed to claimant. Following return to work from knee surgery, there was no longer a question of whether claimant would have a permanent disability, but the question evolved into a question of the ultimate extent of his permanent disability. It is at this point, where the question turns to the extent of an injured workers' permanent disability, that some level of permanent disability benefits should commence. It is therefore concluded that the appropriate commencement date for permanent partial disability benefits for claimant's June 2006 injury is his rtw date from the knee surgery. As it was clear that claimant had significant right knee impairment and required further surgical intervention on his right shoulder, it is further concluded that permanent partial disability benefits should have been paid from his rtw date until claimant was again off of work. Permanent partial disability benefits would recommence following claimant's return to work from shoulder surgery.

AGENCY APPEAL

ANDERSON v. JACOBSON STAFFING COMPANY, 5026798 (4-3-12)

Defendants appealed from an arbitration decision, in which the presiding deputy found that claimant's work for Jacobson at Agriprocessors in 2008 resulted in right carpal tunnel syndrome, right cubital tunnel syndrome, and right upper extremity tendinitis. The deputy ordered a running award of healing period. The deputy also granted claimant's request for alternate medical care to treat non-specific right elbow and forearm complaints. Reversed, affirmed and modified, in part.

The entirety of the record evidence does not support the one expert opinion causally relating claimant's asserted continuing cubital tunnel and tendonitis symptoms to his work for Jacobson at Agriprocessors and a finding of a causal relationship between the June 2008 injury and those conditions cannot be made.

As the conditions are not found causally related to the stipulated work injury, defendants have no liability to provide medical care for those conditions. Likewise, as claimant sustained injury by way of development of right carpal tunnel syndrome only, his period of healing from his June 2008 injury ended when Dr. Field found him at maximum medical improvement on July 27, 2008.

Defendants concede that Dr. Field took claimant off work on January 8, 2009. They did not begin to pay weekly indemnity benefits until May 20, 2009, however. Defendants offer no excuse for their failure to pay temporary benefits during this period in which their authorized doctor was opining claimant could not work. Additional benefits in the monetary amount of $2500.00 are awarded claimant pursuant to § 86.13.

The record evidence does not support a finding that claimant's loss of use to his right arm related to his carpal tunnel release exceeds the impairment rating Dr. Field assigned. WALLESER

COURT OF APPEALS

SPENCER v. ANNETT HOLDINGS, INC., 2-031 / 11-1032 (3-28-12)

Our workers' compensation statute requires an employer to "furnish reasonable services and supplies to treat an injured employee." § 85.27(4) (2009). The statute gives the employer "the right to choose the care," subject to the employee's right to apply for alternate care under certain circumstances. Here, the deputy determined the employer is entitled to choose an alternate provider upon the retirement of its chosen treating physician. The district court reversed, concluding the retiring physician's referral did not require the employer's permission. OPINION HOLDS: Because the employer is entitled to choose the provider in the first instance, and the worker did not prove that care was unreasonable, we reverse the district court's ruling reversing the deputy's denial of the alternate care petition.

COURT OF APPEALS

MIRON CONSTRUCTION v. POULA, 2-065 / 11-1165 (3-28-12)

Poula appeals a district court ruling reversing the decision of the workers' compensation commissioner. He contends the district court improperly reweighed the evidence and substantial evidence supports the commissioner's award of benefits. OPINION HOLDS: Because we find the district court erred in not accepting the commissioner's explicit credibility finding, and because the commissioner's determination of a total permanent injury is supported by substantial evidence, we reverse and remand for entry of judgment affirming the commissioner's decision. DISSENT ASSERTS: I must dissent as I find the agency failed to give appropriate deference to the credibility findings of the presiding officer. If the credibility findings of the presiding officer are accepted, the medical evidence submitted by the claimant no longer constitutes substantial evidence to support the agency's decision. I would therefore affirm the district court's reversal of the agency's decision 

COURT OF APPEALS

KOHLHAAS v. HOG SLAT, INC., 2-035 / 11-1177 (3-28-12)

Kohlhaas entered into a workers' compensation settlement with his former employer and its insurer and later filed a petition for review-reopening of that settlement. The agency denied the petition, and on appeal from that ruling, our supreme court clarified the test for review-reopening proceedings and remanded the case to the commissioner for the limited purpose of determining whether Kohlhaas met his burden of proof under the proper standard. After applying the clarified test to the facts already in the record, the commissioner again denied Kohlhaas's petition and the district court affirmed on judicial review. Kohlhaas appeals. OPINION HOLDS: Kohlhaas does not argue he met his burden of proof for review-reopening, but contends the commissioner read the remand order too narrowly. Because we agree with the district court that the commissioner's decision on remand correctly applied the test for review-reopening as set forth by our supreme court, we affirm

AGENCY APPEAL

CROOK v. RENT-A-CENTER, INC., 5032294 (3-6-12)

Claimant sustained a permanent and total disability and that defendant was responsible for the costs associated with the purchase of a personal digital assistant in the form of an iPod Touch. AFFIRMED.

At hearing Specialty Risk Services was dismissed as a party based upon a statement that the employer was self-insured with a retention policy for purposes of workers' compensation insurance coverage. Following a review of the Iowa Division of Workers' Compensation verification of coverage program it is noted that for purposes of workers' compensation on June 17, 2007 that Rent-A-Center was not covered by workers' compensation insurance. It is further noted that Rent-A-Center is not self-insured in the State of Iowa for purposes of workers' compensation insurance according to the database maintained by the Iowa Insurance Commissioner.

Defendant-employer shall, within ten (10) days of the filing date of this appeal decision, notify the undersigned and all other parties of the correct insurance carrier at risk for the alleged date of injury with a policy number provided for the date of injury herein. If defendant was operating without workers' compensation insurance on the date of injury, that status should be admitted. Parties to a claim are required to provide accurate and truthful information in the pleadings filed with this division, including an answer to a petition and in filing a first report of injury form. Failure to comply with this requirement may result in sanctions under IAC 876- 4.36, which may include assessment of costs and expenses.

AGENCY APPEAL

HOUGLAND v. FIRST RESOURCES CORPORATION, 5028766, 5028767 (3-1-12)

Claimant did not refuse suitable light duty work after being offered work consistent with the restrictions of her initial medical providers. Claimant testified that she did not accept the offer to return to light duty work because it required a change in her work schedule which would have increased the hourly cost of her child care to an amount that exceeded her hourly wages. She added that her unemployed husband could not care for their children as he was attending college at these times to improve his chances for re-employment in this depressed economy.

Iowa Code § 85.33(3) provides that an injured worker cannot receive temporary total or healing period benefits if an injured employee refuses to accept "suitable work consistent with the employee's disability." I interpret this provision to mean that law makers felt that not all work consisted with the disability is suitable. Such a situation is presented in this case where the offered work due to the changes in scheduling after the injury would cost claimant more money than she would have earned.

The views of Dr. Kuhnlein are based on correct information and are consistent with the facts concerning her continued shoulder, neck and arm symptoms which began with the work injury. The hearing deputy found that Dr. Kuhnlein's restrictions were only "suggested" and that would not have the same weight as those "ordered." I do not share that interpretation. I fail to see a distinction between suggested restrictions or recommended restrictions from a doctor upon which the agency awards benefits every day.

There is dispute as to whether this is a shoulder or neck injury as Dr. Kuhnlein felt that the chronic pain problem was adjacent to the spine and cervical in nature. This is largely a moot issue because regardless of the location of the injury, the parties agreed in the hearing report that if the injury is found to be a cause of permanent disability, the disability is an industrial disability. Dr. Kuhnlein's views establish permanent disability. 30% PPID awarded.

This award of industrial benefits is based on her current ability to remain in her current type of employment. If that were to change in the future, such would represent a change of condition. WALSHIRE

SUPREME COURT

NEAL v. ANNETT HOLDINGS, INC., 10-2117 (3-2-12)

Workers' compensation claimant asserts the district court erred in holding the employer offered "suitable work" under §85.33(3) (2007). On cross-appeal, employer argues the commissioner's industrial disability determination is not supported by substantial evidence. AFFIRMED IN PART AND REVERSED IN PART.

We conclude the commissioner may consider distance of available work from the claimant's home in determining whether an employer has offered "suitable work" for purposes of §85.33(3).

We acknowledge that the evidence in the record could have led a reasonable fact finder to come to a conclusion different than that reached by the commission. The issue before us, however, is not whether the employer had a substantial basis for asserting the offered job was, in fact, "suitable." The question is whether the determination of the commissioner should be affirmed.

We conclude that the commissioner committed no legal error and that substantial evidence supports the commissioner on the issue. The distance between the proffered work and Neal's residence was 387 miles. Although Neal was an over-the-road truck driver, which often required him to spend extended periods of time away from home, Neal testified that before the injury he ordinarily spent each weekend at home with his wife and three children, and occasionally he returned home during the week. Had Neal accepted the work in Des Moines, he would have only been able to return home every other weekend&emdash;cutting his time at home in half. As observed by the commissioner, "Being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter." Further, there is no evidence in the record establishing that Neal agreed as a condition of employment to any relocation that Annett Holdings might require.

The commissioner did not error in considering age to be a factor in determining industrial disability in this case. The commissioner could properly consider his high school education and lack of specialized training as a factor that could lessen his earning ability. A reasonable commissioner could conclude that many months absence from the job could be looked at with skepticism by potential employers. Earning capacity contemplates more than a determination of what the employee "can or cannot do."

The inquiry requires a consideration of the employee's actual employability, namely, the extent to which jobs are available for which Neal can realistically compete as a forty-seven year old, high school educated person with work experience generally limited to truck driving, construction, and oil pumping when he suffers from a functional impairment of the upper extremity that restricts his employability to light-medium and medium categories of work.

SUPREME COURT

WESTLING v. HORMEL FOODS CORPORATION, 10-0795 (2-10-12) 810 NW2d 212

A worker appeals a decision of the workers' compensation commissioner finding that the worker's claimed disability was not caused by a work-related injury. DECISION OF COURT OF APPEALS AND JUDGMENT OF THE DISTRICT COURT AFFIRMED.

Westling's arguments on appeal fail for two reasons. First, the record did not conclusively establish that the shoulder surgery caused permanent physical impairment. The evidence on this issue was mixed. Although the surgeon's surgical note provides evidence that structures in Westling's shoulder were removed and permanently altered, this evidence did not stand alone. The record also contains the surgeon's opinion that Westling did not suffer any permanent physical impairment because of the surgery and the opinion of the physician who performed the independent medical examination who opined Westling did not suffer any permanent impairment because of overuse while working for Hormel. As the Guides are not conclusive evidence as to the definition of permanent physical impairment or the extent of impairment, the commissioner did not err in finding on this record that Westling failed to prove permanent physical impairment resulting from the injury.

The second reason Westling's argument on appeal must fail is that he failed to establish that the commissioner erred in finding the work-related injury caused industrial disability. Even if Westling had proved to the satisfaction of the commissioner that the structural derangement of the shoulder resulting from the surgery caused a permanent physical impairment, it would have been to no avail. The commissioner's separate determination that the work-related injury produced no loss of earning capacity was supported by substantial evidence.

AGENCY APPEAL

LOZA v. JOHN MORRELL & CO., 5025192 (1-31-12)

Claimant asserts on appeal that she is entitled to alternate medical care in the form of diagnostic testing and surgical intervention. Defendants have authorized care for the stipulated work injury. Claimant last sought authorized medical treatment in September 2008. The authorized physician had provided treatment in the form of injections and other conservative care prior to September 2008. He did not recommend surgery as reasonable medical treatment. Claimant has ongoing complaints of pain and loss of function that have been found to be related to her work injury of September 26, 2007. Claimant continues to utilize medications for her pain. Claimant has obtained opinions from her own selected physicians recommending further medical treatment. Claimant has not requested, nor has she returned for further evaluation with her authorized medical care provider. Defendants have not abandoned medical care. Defendants remain liable for further medical treatment for evaluation and treatment. Claimant may return to the authorized physician for evaluation of whether further conservative or invasive treatment is reasonable to address claimant's ongoing pain and functional losses. It is therefore concluded the presiding deputy's denial of alternate medical care should be affirmed.

AGENCY APPEAL

DePENNING v. RESCARE, INC., 5030902 (1-18-12)

Defendants assert on appeal that the presiding deputy erred in his application of the "dual purpose" exception to the going and coming rule, in finding claimant was permanently and totally disabled, and in calculating claimant's weekly compensation rate. Claimant asserts on cross-appeal that the presiding deputy erred in calculating the weekly compensation rate and in failing to assess a penalty pursuant to §86.13.

The presiding deputy found claimant's rate of compensation was calculated as a full-time employee resulting in a weekly compensation rate of $277.34.

The deputy correctly found that claimant's average weekly wage was $398.85, but erred in converting that weekly wage to the proper weekly rate of compensation. Based upon claimant's status as single and entitled to one exemption, the proper weekly compensation rate is $256.65. AFFIRMED as MODIFIED.

 

AGENCY APPEAL

CLARK v. WAL-MART STORES, INC., 5026987 (1-10-12)

The deputy commissioner found that claimant had failed to prove that she sustained either a temporary or permanent disability as a result of her bilateral upper extremity injury and that she had failed in her claim for benefits from the Second Injury Fund of Iowa. REVERSED.

Claimant provided compelling testimony as to the loss of use of her upper extremities as a result of her stipulated work injury. Claimant has expressed ongoing complaints of pain, loss of grip strength, and an inability to perform various tasks in her activities of daily living. While there are competing medical opinions the opinion of Dr. Hughes is granted more weight as his findings correspond to the testimony of claimant's complaints of ongoing pain and loss of function. Dr. Castaneda's opinions were provided very close in time to claimant's carpal tunnel surgery therefore not accounting for claimant's actual functioning once she returned to her work and attempted to function without restrictions. Dr. Castaneda's opinions do not account for claimant's pain or her loss of function once she returned to employment duties.

Based upon the limited work restrictions provided, coupled with claimant's testimony and the impairment ratings of Dr. Hughes, it is concluded that claimant has sustained six percent whole person impairment as a result of her bilateral carpal tunnel injury.

Claimant is entitled to healing period benefits for the six days that claimant was unable to return to work as a result of her surgical procedures necessitated by her work injury

Claimant has proven that she sustained a first-qualifying injury to her right leg as a result of an injury to her right knee. Claimant has also proven that she sustained a second-qualifying injury as a result of her bilateral carpal tunnel injury. Claimant has not proven by a preponderance of the evidence that she sustained any restrictions against the use of her right leg, however, she has sustained functional impairment to her right leg and her bilateral upper extremities.

AGENCY APPEAL

HUTCHINSON v. XL SPECIALIZED TRAILERS, INC., 5032290 (1-6-12)

The deputy commissioner found that claimant had failed to prove that her work injury resulted in either temporary or permanent disability. AFFIRMED

It is undisputed that claimant suffered from a traumatic injury to her upper body. It would have been helpful if, in close proximity to the date of her injury, claimant had been provided further diagnostic testing including an MRI. However no petition for alternate medical care or other action was taken at that time to compel such testing. It cannot be determined from the record whether claimant's additional physical therapy, which was recommended by her treating doctor, was not authorized by defendants or whether claimant simply neglected to schedule and attend the therapy.

AGENCY APPEAL

LAVALLE v. POOL TECH MIDWEST, INC., 5031469 (1-5-12)

While defendants assert in their appellate brief that claimant had "an alleged" mental injury, the record supports a finding that defendants admitted the mental injury claim and thereafter failed to provide mental health treatment, pay disability benefits on the mental health claim, or even nominally investigate the severity of the disability.

Defendants admitted to the mental injury, but thereafter failed to provide any evidence that the mental injury had resolved. Claimant provided unrebutted testimony that he had ongoing, significant mental health issues relating to his work injury. It is therefore concluded that the penalty assessed by the presiding deputy commissioner should be AFFIRMED.

COURT OF APPEALS

FINLEY HOSP. v. HOLLAND, 1-946 / 11-0879 (1-19-12)

Employer appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's finding claimant suffered a "body as a whole" injury and sixty percent industrial disability. OPINION HOLDS: Because the commissioner's findings are supported by substantial evidence we affirm.

COURT OF APPEALS

COZAD v. RUSSELL CORP., 1-864 / 11-0438 (1-19-12)

Employer and insurer appeal from the district court's decision reversing the agency's denial of workers' compensation benefits to Grace Cozad. OPINION HOLDS: The evidence does not support the commissioner's finding that Cozad's injury was only a temporary aggravation. The evidence on medical causation is uncontroverted, and the commissioner did not provide any valid reasons for discounting it, and substituting in his own opinion.  Further, his independent conclusions are not supported by substantial evidence. We affirm. SPECIAL CONCURRENCE HOLDS: Without treading upon the agency's duties but not abdicating our own, the agency decision lacks substantial evidence in view of the medical evidence supporting causation on the issue of permanent impairment.

COURT OF APPEALS

KREMENAK v. STEINER CONSTRUCTION, 1-875 / 11-0792 (1-19-12)

Ben Kremenak appeals from a review-reopening decision denying additional permanent partial disability benefits following a remand to allow the workers' compensation commissioner to clarify whether the claimant met his burden of proof under the standard articulated by our supreme court in Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009).  OPINION HOLDS: After applying the Kohlhaas standard on remand, the deputy commissioner again determined that Kremenak failed to prove a deterioration of his physical or economic condition proximately caused by his original back injury. Because we find substantial evidence in the record to support the deputy commissioner's determination, we affirm.

COURT OF APPEALS

CANNON v. WHITED, 1-878 / 11-0890 (1-19-12)

The employer, Tomlinson Cannon, and its insurer appeal from a district court judicial review ruling affirming the decision of the workers' compensation commissioner in an alternate care proceeding brought by Antoine Whited under § 85.27(4) (2009). OPINION HOLDS: We conclude substantial evidence supports the agency's implicit finding that the care offered by Tomlinson was not reasonably suited to treat Whited's injury. Accordingly, we affirm the commissioner's decision to grant the alternate care petition.

AGENCY APPEAL

BIGGLES v. TYSON FOODS, 5030872 (1-5-12)

Claimant appeals from an arbitration decision in which the deputy found that claimant had failed to prove, by a preponderance of the evidence, an injury arising out of and in the course of employment. AFFIRMED and MODIFIED.

Claimant had multiple prior injuries and non-work conditions involving the same parts of the body. The greater weight of the evidence does not indicate a new work injury, or an aggravation of a prior work injury. Rather, as the deputy found, the record merely shows claimant did indeed experience difficulty and pain in her job, but as a result of prior injuries and conditions, just as it was predicted she would. Claimant has failed to carry her burden of proof to show by a preponderance of the evidence a new work injury or an aggravation of a prior work injury.

In regards to the costs of an IME, claimant is entitled to reimbursement for those costs even though it has been determined her injury did not arise out of and in the course of her employment. Defendants are ordered to reimburse those costs to claimant. HEITLAND

AGENCY APPEAL

DIRKS v. CRETE CARRIER, 5030564 (12-23-11)

Claimant appeals from an arbitration decision, in which the deputy awarded claimant 40% PPID. On cross-appeal, defendants urge that no worse than restrictions from previous injuries, and that the Agency should apportion the claimant's pre-existing disability under §85.34(7)(a). AFFIRMED and MODIFIED.

The parties stipulated an injury to claimant's neck, but defendants disputed the injury had resulted in impairment to claimant's back.

The greater weight of the evidence shows that claimant's back was at most only temporarily aggravated by his work injury, if at all, and no permanent impairment of the back can be attributed to this work injury. Any back pain he experiences today is a continuation of his pre-existing back condition which has caused him problems for many years. The deputy's decision on this issue is affirmed.

As a result, however, of his stipulated neck injury, claimant still retains the ability to do other jobs such as short haul driving, working at non-driving jobs, etc. He is not permanently and totally disabled. But his age of 67 puts him at a disadvantage to other workers. He would not realistically be able to retrain for another line of work. His restriction requiring frequent breaks does preclude him from returning to truck driving. The vocational report concluded he has lost access to 90 to 100 percent of jobs for which he was previously qualified.

Claimant's PPID is found to be 60%.

Claimant also seeks an order compelling defendants to pay the unpaid portion of an IME, in the amount of $300.00. Defendants declined to pay because this part of her fee was for a later supplemental report, and defendants argue claimant is only entitled to one IME report. As this is a supplement to a report already issued, and not a new report from a new doctor, both charges are part of one fee for one doctor's opinion. Defendants are ordered to pay the remainder of the IME fee, pursuant to §85.39, not 876 IAC 4.33.

Claimant also seeks as a cost reimbursement for the costs of an FCE. Pursuant to Rose v. Menards, File No. 5024837, Arb. Dec., Feb. 20, 2009. Aff'd App. Oct. 29, 2009, defendants are ordered to pay that fee. Defendants are also ordered to pay for a medical report that remains unpaid.

Claimant also seeks payment by defendants of the costs of a deposition. Defendants correctly point out unless the deposition is offered into evidence, those costs must be borne by claimant. Defendants will not be ordered to pay those costs.

For purposes of rate, the deputy correctly looked to claimant's marital status for purposes of income taxation to determine his status for purposes of his workers' compensation rate. However, claimant's tax returns are not in evidence. The deputy did have claimant's testimony that although he and his wife were separated, they were still legally married on the day of the injury, and that is controlling. HEITLAND

AGENCY APPEAL

SALKELD v. GRIFFIN PIPE, 5029410 (12-23-11)

Defendant argued that the award of 75% PPID benefits was excessive and not supported by the evidence. Claimant argued that claimant was permanently and totally disabled. AFFIRMED.

Claimant had applied for three different positions with the employer after receiving his management degree and was turned down for each one. Defendant terminated claimant on the basis that "even with reasonable accommodation, his permanent restrictions did not allow him to perform the essential functions of his mold reconditioning job. The employer believed the restrictions also precluded claimant from performing any other Griffin Pipe bid job."

The positions that Defendant's vocational expert suggests would fit claimant's work restrictions involve much lower paying jobs as well as jobs that require work experience of which claimant has none, such as operating a van or being a telephone interviewer or a customer service representative. While claimant had a management degree, he had not used his management degree in any previous position, as noted by the deputy. GERRISH-LAMPE

COURT OF APPEALS

SQUARE D COMPANY v. PLAGMANN, 1-869 / 11-0655 (12-21-11)

Employer appeals from the district court's ruling on judicial review affirming the award of workers' compensation benefits to Claimant. AFFIRMED.

Square D asserts the agency erred in: (1) concluding Plagmann's tinnitus arose out of his employment with Square D, given that the opinion of the expert retained by Plagmann was based on incorrect assumptions; (2) assigning a ten percent industrial disability rating when Plagmann voluntarily retired; and (3) excluding a report authored by an expert retained by Square D. OPINION HOLDS: I. The agency's fact findings are supported by substantial evidence, and the agency's determination that Plagmann's injury arose out of and in the course of his employment was not irrational, illogical, or wholly unjustifiable. II. The agency's assignment of a ten percent industrial disability rating is supported by substantial evidence and is not based upon illogical, irrational, or wholly unjustifiable reasoning. III. The deputy did not abuse his discretion in excluding Square D's late exhibit.

AGENCY APPEAL

CLOUD v. BIG TOMATO PIZZA, 5030143 (12-21-11)

The employer appeals from an arbitration decision finding that claimant had sustained an injury that arose out of and in the course of his employment, awarded claimant 15% PPID, found the employer liable for medical costs claimant had incurred, and ordered alternative medical care. The employer contends that claimant's injury resulted from his willful intent to injury himself or another and occurred after he had abandoned his employment duties. AFFIRMED AND MODIFIED.

Claimant was assaulted by a panhandler as he returned to the Big Tomato restaurant as his work duties required and because he was present when an incident occurred between the panhandler and two coworkers, at which at times some such incidents are to be anticipated. In other words, claimant's assault was a rational consequence of a hazard of his employment. It was not merely incidental to the employment.

There is no credible evidence that claimant wanted to willfully injure the individual, or that he assaulted claimant for reasons personal to claimant. The convincing evidence is that claimant happened upon the confrontation between other workers and a panhandler, and was assaulted because he was in the way as his assailant fled.

Claimant has a very modest permanent impairment and his only medical restriction is to lift at or above shoulder level only on an occasional basis. He has limited education and does not appear to be a good candidate for retraining. He has worked most of his adult life as a pizza delivery driver who receives wages only a few dollars an hour above minimum wage. Fortunately, he can continue that work. Nevertheless, he must make some modifications in how he carries pizzas and other items because of his injury and its sequela. Claimant does have some mild loss of earnings capacity related to his injury and has sustained 10% PPID. WALLESER

AGENCY APPEAL

JECK v. LINN STAR TRANSFER, INC., 5030231 (12-19-11)

The deputy found that claimant had proven that he sustained an injury arising out of and in the course of his employment, that he sustained temporary disability and a 35% PPID, that he was entitled to reimbursement for various medical and other costs, and that a penalty of $15,000.00 should be assessed against defendants for an unreasonable denial of claimant's claim for benefits. AFFIRMED except as to PENALTY.

On the issue of penalty, Claimant asserts that defendants' basis for a denial is unreasonable as William McDevitt has not been shown to be a medical doctor and he merely conducted a records review as opposed to having examined claimant.

After discussion of the differences between the bad faith standard of "fairly debatable" and the, earlier adopted penalty statutory standard of "reasonable or probable cause or excuse," and how the statutory standard has had the common law standard grafted on to it, by the Court, the Commissioner finds that he is bound by the Court's interpretation.

While denying a workers' compensation claim on evidence as tenuous as a cursory report following an in-house medical records review may be "unreasonable" in the plain-meaning of that word it cannot be held under the "fairly debatable" standard that the report did not provide a logical basis for denial. That logical basis for a denial continued despite the opinions provided by the surgeon, Dr. Abernathy and the examining physician Dr. Manshadi. As such, it must be concluded that the presiding deputy commissioner's assessment of a $15,000.00 penalty is reversed.

AGENCY APPEAL

RIXEN v. SECOND INJURY FUND OF IOWA, 5025519 (12-19-11)

Claimant appeals from a ruling on a motion for summary judgment, in which a deputy found claimant's prior compromise settlement agreement pursuant to §85.35(3) precluded claimant's petition for benefits from the Second Injury Fund of Iowa. Claimant asserts on appeal that the agency did not judicially accept a prior inconsistent statement and that the present claim for Second Injury Fund benefits is not precluded under the holding of Eaton v. Second Injury Fund, 723 N.W.2d 456, 2006 WL 2560854 (Iowa Ct. App. 2006)(unpublished decision). AFFIRMED.

AGENCY APPEAL

MLADY v. SEARLE PETROLEUM, INC., 5024091 (12-15-11)

Defendants appeal from a review-reopening decision in which the deputy found that claimant had sustained an economic change of condition from the time of the arbitration hearing warranting an increase of permanent disability such that claimant is currently permanently and totally disabled. AFFIRMED.

The primary issues for consideration on appeal are whether the presiding deputy commissioner erred in finding that claimant had proved entitlement to additional permanent disability benefits pursuant to a review-reopening of his claim and whether claimant's petition is barred by the doctrine of res judicata.

The deputy noted that given claimant's physical condition caused by the work injury he is unable to secure gainful employment. The deputy noted claimant's attempt to find alternate employment after learning that his employment with defendant-employer had been terminated. It is also noted on appeal that claimant has provided convincing evidence that his physical condition has also deteriorated since the arbitration hearing. Claimant has provided examples of activities of daily living which are impacted by his pain and he has also developed debilitating headaches and increasing back pain with radiculopathy. As noted in Kohlhaas, while issues of res judicata still apply in a claim for review-reopening, the agency is charged with determining if the facts and circumstances of claimant's disability have changed since the time of the arbitration hearing. Herein they have clearly substantially changed. The presiding deputy commissioner properly found that claimant cannot obtain employment in the competitive labor market and has sustained a 100 percent loss of earning capacity.

SUPREME COURT

CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT v. PEASE, 09-0724 (12-16-11) 807 NW2d 839

We conclude substantial evidence supports the commissioner's findings. As a result, we vacate the decision of the court of appeals and affirm the judgment of the district court. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

The District challenges the commissioner's medical causation findings relating to claimant's left ankle and lower back as well as her postaccident level of depression.

The court of appeals regarded claimant's medical expert opinions unreliable because the doctor relied upon a "questionable" history. The court noted that the evidence, including video surveillance footage, directly contradicted claimant's testimony and undermined her credibility. As we have stated before, however, credibility determinations in workers' compensation claims are within the domain of the commissioner as trier of fact.

First, claimant's medical expert did not rely solely upon the history provided by her in his evaluation.

Second, claimant's medical expert's conclusions did not change after he viewed the video surveillance footage.

Third, video surveillance footage depicting a claimant performing tasks inconsistent with the claimed disability is hardly a smoking gun.

Viewing the record as a whole, the commissioner may have reasonably concluded the fragmented video surveillance footage did not entirely undercut claimant's credibility or the opinions of her medical expert.

COURT OF APPEALS

ESTNESS v. PRAIRIE MEADOWS RACETRACK AND CASINO, 1-832 / 11-0783 (12-7-11)

Estness is employed by Prairie Meadows Racetrack and Casino as a casino floor attendant. She filed a claim for workers' compensation benefits, claiming she had a cumulative left shoulder injury. The hearing Deputy agreed. The commissioner found, "the record evidence in its entirety does not support a finding that claimant performs any work for Prairie Meadows repetitively. Her duties are widely varied and do not involve sustained shoulder use." The district court found there was substantial evidence in the record to support the commissioner's finding that "Estness's work was not a cause of or substantial contributor toward her shoulder pain." Finally, the court found the deputy did not violate the due process rights of the employer or its insurance carrier by questioning the witnesses. Estness appealed and Prairie Meadows cross-appealed the decision of the district court. OPINION HOLDS: I. We conclude the district court did not err in its determination that the commissioner had not abused her discretion by ignoring important and relevant evidence. II. We find the district court did not err in concluding the commissioner's decision was supported by substantial evidence. III. Because we have affirmed the commissioner's decision that Estness did not suffer a work-related injury, we conclude that we do not need to address the issue of whether the deputy had not violated the employer's due process rights by becoming an advocate for Estness through questions asked at the administrative hearing. AFFIRMED.

AGENCY APPEAL

WHITACRE v. AARP, 5029751 (12-5-11)

Defendants appeal from an arbitration decision, in which the deputy found that claimant's injury arose out of and occurred in the course of his employment, and that he was permanently and totally disabled as a result of his injury. AFFIRMED.

Defendants' assertion that any precedent of the Albertson decision was overruled by the Supreme Court's decision in Blue is incorrect. In a judicial review decision of Albertson filed February 4, 2009, the Iowa Court of Appeals upheld the agency's conclusion, relying upon Koehler Elec. v. Wills, 608 N.W.2d 1 (Iowa 2000) wherein an injury arises out of employment "for injuries resulting from risks personal to the claimant . . . where the employment . . . aggravates the injury." The court of appeals fully considered the analysis provided in Blue.

AGENCY APPEAL

SCHULTZ v. ELECTROLUX HOME PRODUCTS, 5024807 (11-30-11)

Defendants appeal and claimant cross-appeals from the deputy's award of 50% PPID under §85.34(2)(u). Additionally, claimant contends that the Deputy erred by admitting into the record an March 30, 2010 report, that defendants filed on April 9, 2010; further erred by denying claimant's request to provide responsive evidence; and that these errors were to claimant's prejudice. REVERSED as to admission of late offered report & AFFIRMED as to PPID awarded.

The contested case record cannot be kept open after the completion of a hearing before the workers' compensation commissioner. 876 IAC 4.31 clearly and succinctly states that no evidence may be taken in a contested case after the hearing. The hearing, however, may be recessed until a date certain in order to receive specific evidence that is identified but not available on the initial hearing date. That is what the presiding deputy appropriately did in this case, to March 12, 2010.

While the case was in recess, claimant requested an additional office visit with the treating orthopedic surgeon. At the office visit, claimant acknowledged to the doctor that she had abandoned her home exercise program the previous September. Claimant had testified at hearing that she did her back exercises daily.

The deputy admitted the March 30, 2010 report as defendants' rebuttal Exhibit Q but declined to allow claimant to provide surrebuttal evidence.

As the report was not filed until after the recess, it was an error to receive the report in violation of 876 IAC 4.31. Furthermore, defendants are not prejudiced by the report's exclusion. They amply impeached claimant's credibility at hearing.

Neither party asked in the alternative that under 876 IAC 4.28 the report be received as newly discovered additional material evidence, which was not producible at hearing. Had either done so, the March 30, 2010 report would not have been admitted because the report does not change this substantive outcome in this claim.

The objective record evidence supports the PPID awarded, given the combination of claimant's lack of motivation and her physical, educational, and intellectual limitations. WALLESER

AGENCY APPEAL

FREEMAN v. SWIFT & COMPANY, 5021273 (11-23-11)

Claimant asserts on appeal that the presiding deputy erred in failing to approve the partial commutation as the partial commutation is in the best interest of claimant. REVERSED.

The sole issue to be resolved on appeal is whether a partial commutation of all but the final week of permanent total disability benefits, with benefits to resume if the claimant is still living at the end of his life expectancy per the life expectancy tables, is in the best interest of claimant.

In determining whether the partial commutation is in the best interest of claimant, this agency cannot act as a conservator and disregard claimant's desires and reasonable plans just because success of the plans is not assured.

The Iowa Supreme Court in Dameron v. Neumann Bros. Inc., 339 N.W.2d 160, 165 (Iowa 1983) has held that this agency should examine the following in determining whether to allow a commutation:

The worker's age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables).

The worker's family circumstances, living arrangements, and responsibilities to dependents.

The worker's financial condition, including all sources of income, debts, and living expenses.

The reasonableness of the worker's plan for investing the lump sum proceeds and the worker's ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator).

The Dameron court went on to state that a request for commutation should be approved unless the potential detriments to the worker outweigh the worker's expressed preference and the demonstrated benefits of commutation.

Following a de novo review of the record it is concluded that the potential detriments to the worker do not outweigh the expressed preference and the demonstrated benefits of commutation. It is therefore concluded that claimant's petition for partial commutation is in the best interest of claimant and should be granted.

AGENCY APPEAL

FLYNN v. JOHN DEERE DAVENPORT WORKS, 5030928/5030940 (11-21-11)

Claimant asserts on appeal that the presiding deputy commissioner erred in finding that the alleged injuries did not arise out of and in the course of employment, in denying medical care cost reimbursements, and in failing to tax the cost of the independent medical examination to defendant. AFFIRMED except as to denial of IME expense, which is REVERSED.

There is no evidence that defendant requested a rating of impairment following claimant's cessation of treatment, or upon the release to return to work or release of claimant to full-duty work coupled with the failure to expressly opine as to impairment produced an inference that the employer-retained physician did not believe claimant had permanent impairment related to the injury. That inference is sufficient to permit claimant's being reimbursed for the reasonable cost incurred for his IME.

AGENCY APPEAL

MCCARL v. LARSON & LARSON, 5029914 (11-14-11)

Defendants' place great stress on claimant's continuing employment with the employer in arguing that the deputy's industrial benefit award was too great. They forget that actual earnings are only one factor to be considered in assessing earning capacity after an injury. The law clearly requires that the worker's ability to compete for jobs in the general labor market be weighed as well. As a result of the injury, claimant requires opioid medication daily to function in his job as a construction superintendent. He is restricted to medium work. His access to the full range of jobs for which his training as a journeyman carpenter otherwise qualifies him clearly is diminished. 25% PPID AFFIRMED. WALLESER

AGENCY APPEAL

KIRK v. L.L. PELLING CO., 5028676 (11-9-11)

The hearing deputy concluded that the slapping video indicates that claimant was attempting to magnify his symptoms, and his testimony as to those symptoms lacks credibility. I find that defendants had a fairly debatable issue as to whether he suffered any injury at all due to the slapping video and the resulting credibility problems for claimant. Consequently, a penalty for underpayment of benefits is not appropriate in this case. AFFIRMED.

AGENCY APPEAL

TALTON v. FLEUR DE LIS MOTOR INNS, INC., 5027678 (11-8-11)

Defendants appeal from an arbitration decision, in which the presiding deputy commissioner found that claimant had sustained injuries to her right knee and low back as a result of her injury to her left foot and awarded a running award of healing period benefits as well as requested alternate medical care.

The record, including the transcript of the hearing before the deputy and all exhibits admitted into the record, has been reviewed de novo on appeal. The undersigned observes that she has rarely found exhibits so arranged to obfuscate the record in its entirety as were claimant's in this matter.

Claimant wore the (CAM) boot against medical advice and long after her work related sesamoid condition had healed. She wore the boot to relieve her great toe osteoarthritis, a personal degenerative condition that preexisted the injury. Therefore, any symptoms in the right knee and the low back are personal to claimant and not results of the work injury. It is concluded that claimant has not established that her back and knee conditions are a result of the work injury to her great toe.

The work injury resulted in a left foot sesamoid fracture. Claimant achieved maximum medical improvement from that condition and without any related permanent disability or permanent work restrictions. It is concluded that claimant has not established that her injury is a cause of claimed permanent partial disability to her left great toe or foot.

Claimant's left toe stiffness and degenerative joint disease for which she seeks an exploratory arthroplasty is a personal and not a work injury related condition. Defendants are not liable for medical treatment for this personal condition.

Wherefore, it is concluded that claimant is not entitled to the alternate medical care she seeks. AFFIRMED AND MODIFIED. WALLESER

AGENCY APPEAL

SULJEVIC, V. DUDDEN FARMS, INC., 5031167 (11-8-11)

Defendants assert on appeal that the presiding deputy commissioner erred in finding that claimant's fall on the employer's premises arose out of and in the course of his employment.

There are two versions of the mechanism of claimant's injury which was caused by a fall on the employer's premises. Claimant's version of how his unwitnessed injury occurred is countered by a version described by his former supervisor who testified that claimant stated he had left the farm, realized he had forgotten his phone, came back to the premises of the farm, parked on the opposite side of the building from where he would normally park, and tripped while crossing the threshold into the building.

Regardless of the version of events, claimant did require medical treatment following a fall on the premises of defendant-employer.

The deputy's reasoning as to his factual finding as to the mechanism of fall was confusing and lacked detail. Claimant's testimony has been consistent that he did not leave his workplace and return prior to his fall. It is not disputed that claimant wore rubber boots and was required to enter and exit through the doorway where the fall occurred. Although his supervisor is a credible witness, her testimony relies upon a version told to her by claimant. It is questionable that claimant had the ability to provide significant details, in English, regarding his specific actions and items of clothing.

Even had his supervisor's version of claimant's injury had been adopted, it is clear that claimant was on the premises within a reasonable time after his scheduled work hours in an area where he was required to be for purposes of changing into and out of his work clothes. Claimant was in an area that the employer controlled and maintained and where the employer allowed him to enter and exit for purposes of employment. As such, even under the supervisor's alternate version of events, claimant has proven that his right thumb injury arose out of and in the course of his employment. AFFIRMED.

COURT OF APPEALS

WHITACRE v. BROWN, 1-509 / 11-0088 (10-19-11)

Whitacre appeals from the district court order granting summary judgment in favor of the defendants on his gross negligence claim. AFFIRMED.

Whitacre was cleaning a machine using a dry paper towel to remove dust from the rollers while the machine and its rollers were running. He was severely injured when the paper towel got stuck in the rollers and his hands and arms were pulled into the machine.

The cleaning procedure Whitacre was instructed to use had been utilized by EPS for some twenty years and produced no history of injuries. Whitacre himself cleaned the machine on a daily basis for almost six months with no report of injuries. Given this accident-free history, defendants had no reason to suspect injuries would probably occur under the prevailing work practices. Had these defendants known this method would probably result in injury, we doubt they would have used it themselves.

COURT OF APPEALS

LELIEFELD v. LIBERTY MUT. INS., 1-636 / 11-0047 (11-9-11)

Leliefeld filed a claim before the workers' compensation commission and while that claim was being litigated, he filed a civil suit against his employer's workers' compensation insurer in district court. The district court denied the insurer's request to stay the entirety of the proceedings pending the resolution of the administrative action. The insurer appeals and asserts that the district court should have stayed discovery and the setting of a trial date. OPINION HOLDS: The decision whether to issue a stay is left to the discretion of the district court. The workers' compensation case had been fully submitted to the administrative agency and the district court's ruling ensures that the extent of the insurer's liability would be determined in the administrative agency action before the bad-faith claim was tried. Because we find the district court did not abuse its discretion, we affirm.

AGENCY APPEAL

SAATHOFF v. TRANSPORT LOADING SERVICES INC., 5028365 (10-31-11)

I agree that it was reasonable for claimant to delay reporting the injury to see if symptoms would subside as they apparently had done before and he correctly reported the injury when they did not subside. I also agree with the hearing deputy that the validity of this claim is not fairly debatable. The delay of a few days in reporting an injury is not grounds for denial of a work injury.

Defendants attack the medical credentials of the same medical care providers they chose to satisfy their obligations to provide qualified medical treatment. They do this by relying upon the views of a onetime out-of-state evaluator who performed only a records review, that claimant's problems were degenerative and preexisting. To rely upon such an opinion, especially when it is contrary to the views of your own treating doctors, defendants are obligated to make sure that the records the physician reviewed were accurate and complete, and that they have been apprised of what constitutes an injury in Iowa. The record in this case fails to demonstrate this. Two of the records cited by the doctor in his two page opinion referred to inaccurate records. AFFIRMED. WALSHIRE

AGENCY APPEAL

SEHIC v. TYSON FRESH MEATS, INC., 5029153 (10-31-11)

I. Neck Injury Claim

I agree with the hearing deputy that the permanency and extent issues primarily involves an assessment of the causation opinions of three doctors, the authorized treating occupational medicine physician, and the two onetime evaluators. The views of Dr. Manshadi were the most convincing because they were the most consistent with the testimony from claimant and his wife as to the extent of his current disability.

While claimant admits that he was able to return to work without formal restrictions, he testified without contradiction that he had to change jobs at Tyson due to neck pain while continuously looking down to perform his work.

There was little dispute that the requested medical expenses were not authorized. Admittedly, defendant did not technically abandon care when the authorized physician stated that claimant had reached maximum medical improvement. Claimant could have returned to company doctors, but one could hardly criticize claimant for not doing so when he was told that he had nothing else to offer. In any event, as clearly stated by the hearing deputy, the expenses of unauthorized care can be awarded if such care benefited the defendant. The hearing deputy correctly found that the unauthorized care significantly improved claimant's neck condition, reduced claimant's disability, and consequently defendant's liability in this case. The award of the unauthorized care is appropriate.

II. Right Arm Claim

The deputy correctly ordered claimant to correct the misjoinder and file a new petition under the stipulated injury date so that claim could be properly be determined under our rules. However, claimant failed to file such a petition and failed to address this in his appeal brief. Pursuant to our rules 876 IAC 4.6 and 876 IAC 4.36, dismissal of the claim is appropriate. WALSHIRE

AGENCY APPEAL

KUHLE v. DUBUQUE VISITING NURSES, 1102516 (10-19-11)

Claimant appeals from a review-reopening decision filed September 10, 2010, in which the deputy found that claimant had not proven that she had sustained further loss of earning capacity subsequent to her first review-reopening decision filed March 29, 2005 wherein claimant was found to have a 60% loss. AFFIRMED IN PART and REVERSED IN PART.

Claimant asserts that the presiding deputy was prejudiced in the review of the evidence merely because she has sought benefits in a fourth hearing, which claimant notes is her legal right. Claimant's credibility cannot be questioned merely because she seeks to have her case heard anew in a timely review-reopening hearing. It must be concluded that the deputy's finding as to claimant's credibility is unsupported and does not play a part in the following decision.

Defendants rely upon the opinions provided by David S. Field, M.D., while claimant relies upon the opinions provided Thomas J. Hughes, M.D. Both physicians are well-known to this agency and are frequently called upon to provide medical opinions. Both physicians are known to possess sufficient skills to provide reliable and well-reasoned opinions that this agency can rely upon in making findings as to causation, impairment, and restrictions.

At the time of claimant's first review-reopening she was having significant low back pain with sporadic radiculopathy resulting in permanent impairment and restrictions on her lifting and her mobility. At the time of the present review-reopening hearing claimant testified that she has almost identical pain complaints, except she experiences leg tremors. The record establishes that her leg tremors result from her current work which requires standing in excess of the restrictions which were in place at that time. Dr. Field does not opine that claimant has greater permanent impairment presently than as compared to 2005. Dr. Hughes assigns greater impairment than the impairment he assigned in 2005, but that assignment is made by utilizing a different methodology. What is more convincing is Dr. Hughes' observation that there does not seem to be any clear evidence of any structural or anatomical condition that has substantially worsened since February 8, 2005 after reviewing her imaging studies. Following a de novo review of the records and after consideration of the arguments of the parties it is concluded that claimant has failed to prove by a preponderance of the evidence that she has sustained a requisite change in condition.

 

AGENCY APPEAL

HORNE v. CASE NEW HOLLAND, 5027707 (10-11-11)

Defendants assert on appeal that the delay in payments was minimal and that a 33 percent penalty on the present record is excessive. Defendants also assert that the presiding deputy erred in his taxation of costs. Claimant asserts on appeal that the presiding deputy made factual errors in evaluating the evidence and that a greater award of permanent partial disability benefits is necessary. AFFIRMED except as to PPD.

Dr. Jameson's opinion as to claimant's right sided impairment (6% of the right arm) is found to be supported by claimant's continued pain and loss of use complaints following three surgeries on the right upper extremity. However, Dr. Jameson's opinion that claimant has no left sided permanent impairment is rejected. Claimant has proven a left sided upper extremity impairment. The level of impairment suggested by Dr. Kuhnlein is excessive when compared to the 6% loss on the right side. Following review of claimant's complaints and the physical findings contained in the medical records, it is concluded that claimant has sustained a 6% loss to the left upper extremity.

The Combined Values Chart on page 604 of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, produces an overall nine percent upper extremity impairment. Table 16-3 of the Guides, page 439 converts a 9% upper extremity impairment to 5% of the whole person.

AGENCY APPEAL

HANIGAN-KINNEY v. COUNCIL BLUFFS COMMUNITY SCHOOL DISTRICT, 5030328 (10-10-11)

Claimant asserts that the deputy erred in failing to assess a penalty for failure to pay weekly benefits at the rate of compensation found applicable in the arbitration decision and that a higher award of industrial disability benefits is warranted. Defendants assert the deputy improperly included various sums within her calculation of gross earnings and the rate should be reduced, and the the PPID award was excessive.

It is concluded that the presiding deputy improperly calculated claimant's compensation rate, but for reasons other than those articulated by defendants. As in Area Educ. Agency 7 v. Bauch, 646 N.W.2d 398 (Iowa 2002), where an educator is paid monthly, the compensation rate is to be calculated pursuant to Iowa Code § 85.36(4). Application of this Code section first requires calculation of gross monthly earnings as set forth in § 85.61(3) and then taking into account the educator's earned compensation deferred into the non-school year months. It is noted that this compensation rate is less than the rate argued by both parties.

The deputy's credibility statement is unfair to claimant as the purported exaggeration relates to numbers assigned to a medical questionnaire. Claimant was confronted with her answers to those questionnaires at hearing and provided a satisfactory and logical explanation for her response. AFFIRMED and MODIFIED

AGENCY APPEAL

NIXON v. BETTENDORF VETERINARY HOSPITAL, 5027975 (10-7-11)

Claimant seeks additional PPID. AFFIRMED.

Dr. Neiman, a neurologist, who was the only physician that clearly opined that the surgery performed by Dr. Roski as a result of the work injury was a cause of defects in adjacent areas of the spine, rather than a degenerative condition unrelated to the injury as opined by Drs. Roski and Hitchon. Drs. Roski and Hitchon had the most experience with claimant clinically. The neurosurgeons possessed specialized skills and experience in neurosurgery and Dr. Neiman, while a well-qualified neurologist, was not shown to possess equal skills and experience in neurosurgery, a specialty which would be the most helpful in determining the impact of a surgery at one vertebral level upon adjacent areas of the spine.

Admittedly, the timing of the restriction suggests that it is due to the work injury. However, one could also state with equal validity that the restriction suggests only that this was a precautionary measure by Evans as a result of the discovery of non-work related degenerative problems in other areas of the back that will likely continue to bother claimant in the future.

Claimant's assertion that the work injury is a cause of all of her back and leg complaints on the basis that she did not have any back complaints prior to the work injury is also not convincing. Apart from the presiding deputy's finding that claimant lacks credibility, all of the doctors who provided opinions in this case were given this same history and only one supported this claim.

I agree with claimant that she is significantly disabled, but she failed to show that this was due to the work injury and not her non-work related back, neck, and asthma conditions as referenced in her social security award. WALSHIRE

AGENCY APPEAL

LIPP v. SECOND INJURY FUND OF IOWA, 5029511 (10-5-11)

While Dr. Stoken, who performed an independent medical examination of claimant, has proposed work restrictions, Dr. Cherny who treated claimant for an extended time has returned her to work without restrictions. At the time of hearing, claimant was working without bilateral arm restrictions, albeit with pain complaints.

Dr. Stoken relates the material handling and frequency restrictions, which she states are reasonable, to claimant's neck, bilateral shoulder, and left upper extremity conditions. She does not relate the restrictions to the right arm or right upper extremity conditions. Thus, those restrictions cannot be the basis for determining a loss of earning capacity resulting from the combined effect of claimant's first loss to her right arm and second loss to her left arm.

The previous 15 percent award against the Fund accurately reflects claimant's overall loss of earning capacity related to the scheduled member injuries to her arms that she has sustained during her employment with this employer or its predecessor in the same plant. AFFIRMED. WALLESER

AGENCY APPEAL

RICHARDSON v. MIDLAND MANAGEMENT COMPANY, 5029592 (9-29-11)

In finding that claimant sustained a 50 percent industrial loss the presiding deputy noted that claimant had significant limitations in the use of his right shoulder and that he had lost access to some of his prior employment. Those findings are supported by the record of evidence. However, in considering all of the factors of industrial disability it is concluded that a 50 percent loss is excessive.

Claimant's permanent functional restrictions as articulated by Dr. Kuhnlein and confirmed by way of a functional capacity evaluation are not excessive and would therefore not drastically impair claimant's ability to find some alternate employment. Following a consideration of all of the various industrial disability factors it is concluded that claimant has sustained a 30 percent loss of earning capacity.

AGENCY APPEAL

DAKOTA TRUCK UNDERWRITERS v. CONTINENTAL WESTERN, 5028722/5028738 (9-28-11)

On appeal Mid-Continent Trucking and its workers' compensation insurance carrier assert that the presiding deputy commissioner erred in finding them jointly liable as an employer and in failing to allocate the obligation for workers' compensation insurance.

This agency lacks authority to deal with the issue of whether or not there was an allocation of liability between the two employers in their lease agreement. This issue is a matter that involves interpretation of contract provisions between two private parties and this agency does not possess any specialized knowledge or expertise over those contractual matters. This is not a matter of coverage or of liability to an injured worker. Such issues properly belong in the appropriate district court where contractual disputes are routinely resolved.

This agency's authority to resolve the dispute in this case ended upon a determination that both employers were jointly and severally liable. The parties will have to resolve the issue of contribution themselves or in the Iowa District Court. AFFIRMED.

COURT OF APPEALS

BUTTREY v. SECOND INJURY FUND OF IOWA, 1-678 / 11-0205 (10-5-11)

Second Injury Fund appeals the district court's ruling on judicial review reversing the workers' compensation commissioner's denial of Fund benefits. AFFIRMED. 

The district court concluded the commissioner's election to give more weight to one of two competing expert opinions was based on facts that were "all incorrect and not supported by the record" and remanded to the commissioner. OPINION HOLDS: Because the facts upon which the commissioner relied are not supported by the record evidence, we affirm the district court's ruling reversing and remanding for further proceedings.

Just as an expert's opinion is not binding upon the commissioner if it is based upon an incomplete history, the commissioner's opinion grounded upon inaccurate facts does not warrant the deference normally accorded. We agree with the district court that substantial evidence does not support the commissioner's ruling; a reasonable mind would not accept as adequate a choice of one contradictory opinion over another when that choice is grounded upon inaccurate facts.

Because the facts upon which the commissioner relied are not supported by the record evidence, we affirm the district court's ruling reversing and remanding for further proceedings.

AGENCY APPEAL

MONTGOMERY v. C & C CYCLE, 5027892 & 5027893 (9-26-11)

Appellant's brief is an exact copy of claimant's post hearing brief and titled as such, except that the issues were labeled as issues on appeal. Although this was accepted as an appeal brief in this de novo appeal, it is not good appeal practice before this agency to not specifically address errors in the deputy decisions that are appealed.

The hearing deputy correctly found that claimant failed to demonstrate the employee-employer relationship by a preponderance of the evidence.

Claimant also has not shown entitlement to an independent medical evaluation under Iowa Code §85.39 of either his shoulder or finger due to a failure to show a prior evaluation of his disability by a physician retained by the employer. Claimant chose both of the doctors who released him to full duty. Acquiescence by the employer in the injured workers' choice of treating physician does not invoke the provisions of Iowa Code §85.39 providing for a second opinion from another physician chosen by the worker on the extent of impairment at employers' expense. WALSHIRE

AGENCY APPEAL

YOUNG v. LINCO SEEDS, INC., 5027840 (9-13-11)

Defendants assert on appeal that the presiding deputy commissioner erred in his findings as to the extent of claimant's permanent partial disability and his entitlement to any penalty benefits. Claimant asserts on cross-appeal that the deputy erred in failing to assess a greater penalty as defendants are alleged to have failed to timely commence permanent partial disability benefits and benefits were paid for a period of time on a biweekly basis.

The deputy found that "failure to pay weekly can result in a penalty", but rejected a penalty on this basis as other penalties were assessed for defendants' erroneous rate calculation. An additional penalty of $1,700.00 (34 weeks x $50.00/week) is appropriate to penalize the error defendants made in paying benefits on a biweekly basis for the period proven by claimant.

The extent of scheduled member disability benefits to which an injured worker is entitled is determined by using the functional method. Functional disability is "limited to the loss of the physiological capacity of the body or body part." A claimant's return to pre-injury employment with or without restrictions is not an element of consideration in determining permanent disability under § 85.34(2)(m) - the inquiry to be made by defendants in this matter. The inquiry to be made is limited merely the functional loss or loss of use of the scheduled member. The evidence that claimant sustained significant and demonstrable functional loss of his left upper extremity is not fairly debatable upon this record. Defendants have no reasonable basis for the delay as they have not established any reasonable argument that claimant has not lost functional use of his left upper extremity. An additional penalty of $3,800.00 shall be assessed for this delay. Craddock held that in an industrial disability claim, where loss of earning capacity was at issue, the fact that the worker could return to perform her pre-injury job without limitation made "the issue of industrial disability fairly debatable" is distinguishable.

AGENCY APPEAL

O'HARRA v. BISHOP DRUMM RETIREMENT CENTER, 5029308 & 5029309 (9-12-11)

Defendants assert on appeal that claimant failed to prove that she sustained a compensable work injury and in the alternative if a work injury is proven that it was in error to award ongoing temporary disability benefits. AFFIRMED IN PART and REVERSED IN PART.

As did the presiding deputy, it is determined that the medical opinions of Dr. John Kuhnlein are most persuasive on the general issues than the competing opinions of Dr. Kenneth Pollack. Dr. Kuhnlein's opinions more closely follow the medical records and claimant's presentation of pain than do the opinions of Dr. Pollack. Dr. Kuhnlein provides a logical and persuasive foundation for his opinions on causation and impairment which have previously been discussed. Dr. Pollack fails to provide any such foundation for his conclusory opinions which are contradicted by claimant's history of medical treatment following her work incident of January 23, 2008. Based upon claimant's presentation at hearing and as documented in the medical records, it is unreasonable to conclude as did Dr. Pollack that she is no impairment and no need for restrictions. Claimant has proven by a preponderance of the evidence that she sustained a work injury on January 23, 2008.

The presiding deputy commissioner determined that as a result of her work injury of January 23, 2008 that claimant was in need and had proven entitlement to alternate medical care. Defendants have not appealed from those alternate care findings which are therefore also affirmed.

The final issue for consideration is whether claimant has an ongoing temporary disability or a permanent disability. The presiding deputy found that claimant had not yet achieved maximum medical improvement and requires further medical treatment as recommended by Dr. Kuhnlein. The preponderance of the evidence is that claimant has the need for medical care to address her pain complaints, but that she has in fact reached maximum medical improvement - thus terminating her healing period. Dr. Kuhnlein has provided a prognosis for return to work that is optimistic even without further treatment as ordered by the presiding deputy. While claimant is entitled to that care, the preponderance of the evidence is that at the time of the hearing her formal healing period had ended.

Return to the workforce has certainly been hindered by her treatment by the employer following her injury. Rather than accommodate claimant with light duty and then a return to her position following a medical release, claimant's pre-injury position was not made available to her. Claimant was not provided any other position with defendant-employer upon her release. The employer's unwillingness to employ claimant has extended her period of time outside of the labor market which has been established to be an impediment to re-entry in the workforce. Claimant is not likely suited at this time, due to her physical condition and her restrictions, to return to work as a CNA. She cannot seek alternate positions that require extensive lifting and she may require frequent changes in position. Claimant has suffered a 35 percent loss of her earning capacity

SUPREME COURT

BERRY v. LIBERTY HOLDINGS, INC., 10-0094 (9-9-11)

An employer seeks further review of a decision by the court of appeals reinstating a wrongful discharge claim after the district court granted the employer's motion to dismiss. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

The sole issue in this appeal is whether Iowa Code chapter 668 (2007), Iowa's comparative fault statute, contains a clearly defined and well-recognized public policy of this state limiting an employer's discretion to discharge an at-will employee. The district court sustained an employer's motion to dismiss a wrongful discharge claim, where the employee based the wrongful discharge claim on the allegation that the employer discharged him for filing a personal injury lawsuit against a company under common ownership with his employer. Because chapter 668 does not express a clearly defined and well-recognized public policy of this state that would limit an employer's discretion to discharge an at-will employee, we vacate the decision of the court of appeals and affirm the judgment of the district court.

A concrete pumper truck owned by Premier struck and injured Berry, who was on his way home from work. Berry filed a personal injury lawsuit against Premier for the injuries he sustained in the collision. Berry ultimately settled this claim within the policy limits of Premier's insurance coverage. Approximately nine months after the settlement Liberty Holdings terminated Berry's employment.

COURT OF APPEALS

BENSLEY v. DEE ZEE MANUFACTURING, 1-638 / 11-0255 (9-8-11)

Claimant was employed by Dee Zee Manufacturing "deburring" running boards. She injured her elbow in 2007, and subsequently had surgery. After her elbow surgery, she became more aware of pain in her left shoulder. She had surgery on her left shoulder in 2008. Bensley filed workers' compensation claims for these injuries. The workers' compensation commissioner found Bentley had failed to show her left shoulder injury was caused by her employment. On judicial review, the district court reversed and remanded the commissioner's decision, finding expert medical evidence supported a finding of causation. The employer appeals the district court's reversal of the commissioner's decision denying benefits. OPINION HOLDS: Whether an injury has a direct casual connection with the employment or arose independently thereof is essentially within the domain of expert testimony. The commissioner summarily dismissed the three causative medical opinions, with no real specific reason for their rejection, such as based on an incomplete history, or as incredible, or the claimant's complaints were spurious, or were not based on a medical probability. Upon viewing the record as a whole, we conclude the evidence does not support the findings of the commissioner. We affirm the decision of the district court. SPECIAL CONCURRENCE ASSERTS: I specially concur noting the determination reached on judicial review may have been different had the appropriate credibility findings been made and the medical evidence explained in more detail by the agency.

COURT OF APPEALS

QUAKER OATS CO. v. DOBBE, 1-536 / 11-0171 (9-8-11)

Employer and its insurer appeal a ruling on judicial review affirming the workers' compensation commissioner's benefit award. OPINION HOLDS: The commissioner did not apply an erroneous legal causation standard to the facts. Substantial evidence supports the commissioner's causation findings and award of permanent total disability benefits

COURT OF APPEALS

BEEF PRODUCTS INC. v. RIZVIC, 1-442 / 10-2083 (8-24-11)

Claimant appeals the district court's ruling on a petition for judicial review that reversed the workers' compensation commissioner's award of sixty percent industrial disability. She contends it was error for the district court to remand her case to the agency for consideration of whether she sustained a permanent impairment as a result of her work-related injury. She also claims the district court erred in finding the commissioner's application of law to facts was irrational, illogical, or wholly unjustifiable under § 17A.19(10)(m) (2009). OPINION HOLDS: We reject the employer's claim it was not required to cross appeal, and it is conclusively established for purposes of these proceedings that Rizvic suffered a work-related rotator cuff on February 1, 2007. Although we do not question the commissioner's objectivity as did the district court, we are troubled by the commissioner's inaccuracy in the recitation of the facts and the commissioner's reliance on Dr. Manshadi's findings as to impairment. We do not find support for the commissioner's determination of permanency, and we affirm the district court's reversal as to that portion of the commissioner's decision. SPECIAL CONCURRENCE ASSERTS: I concur in result but write separately to convey I agree with the district court's criticism of the commissioner's lack of objectivity. After reviewing the record, I see the commissioner's lack of objectivity in three areas: the interpretation of the pain drawings, the finding regarding the reason for Rizvic's termination, and the credibility finding of Rizvic's supervisor. I otherwise agree with the majority affirming the district court's reversal of the commissioner's decision. (See, below, Rizvic for link to Agency appeal decision.)

AGENCY APPEAL

CARLSON v. SIOUX CITY COMMUNITY SCHOOL DISTRICT, 5028667 (8-15-11)

Defendants appeal from an arbitration decision in which the deputy found that claimant to have sustained a permanent and total disability resulting from her stipulated work injury. Defendants further challenge the "fresh start rule" as applied by the presiding deputy. AFFIRMED.

While claimant's continued employment with the Sioux City Community School District until her voluntary resignation could establish a retained earning capacity, the greater weight of the evidence supports the finding that claimant is permanently and totally disabled. Claimant's work in the Nodland Elementary School library following her injury was significantly restricted and is not the type of work that is available in the competitive labor market. Claimant's other attempts at employment in Mason City, Iowa further support a finding that she is not capable of gainful employment.

The presiding deputy found that claimant's prior work injury rendered her capable of only part-time employment while the injury in this case took away what was left of her earning capacity that existed just before her work injury. The deputy's application of the fresh start rule conforms to the rule.

AGENCY APPEAL

HOUSE v. C&C DISTRIBUTION SERVICES, INC., 5015795 (8-11-11)

Appeal by the claimant from a review-reopening decision. REVERSED. Additional 20% PPID awarded.

Claimant in his deposition did acknowledge that when driving for a later employer, he often experienced neck pain when having to turn his head to check his mirrors. But this does not represent a new injury while working for that employer; rather, it merely confirms that claimant's original neck injury when the tire fell on him continues to affect his ability to drive a truck.

The aggravation of his symptoms in 2008 is far more likely due to the original traumatic injury when the tire fell on his neck, and the resulting fusion surgery and the natural degenerative changes associated with cervical levels above and below a fusion procedure, as well as a natural progression of his original injury over time, than it is to some vague unidentified work duties for his later employer, especially when it has been shown that those work duties were not onerous or demanding. There was no intervening traumatic injury at the later employer.

On balance, claimant has carried his burden of proof to show by a preponderance of the evidence that a change of condition has occurred, in that his neck condition has worsened since the agreement for settlement, and that aggravation is causally related to his original 2004 work injury. It is not caused by any subsequent work activities.

Thus, claimant is entitled to medical benefits for his neck condition, including any treatment occurring between the agreement for settlement and the review-reopening hearing. Defendants will also be ordered to pay for any future treatment of his neck caused by his original work injury.

A causal connection opinion that any new impairment was caused not by the work injury, but by new and subsequent employment. If asked, Defendants' physician might well have assigned a rating of impairment occurring since the prior settlement, while still attributing it to the work claimant did for the later employer. But he gave no rating of impairment from any source. Thus, claimant cannot seek reimbursement for an independent medical examination under § 85.39 because that section first requires a rating by the employers' doctor with which claimant disagrees. HEITLAND

COURT OF APPEALS

ARROWOOD v. MAYTAG COMPANY, 1-445 / 11-0030 (8-10-11)

Claimant appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision, which found that he did not establish he sustained a work-related injury. The employer cross-appeals. OPINION HOLDS: Upon our review, we agree with the district court that the commissioner properly considered all of the available evidence, and we find no abuse of discretion. Additionally, we agree that substantial evidence supports the commission's finding that Arrowood failed to meet his burden of proof that his injury was work related. We accordingly affirm the decision of the district court. It is therefore not necessary to address Maytag's cross-appeal.

COURT OF APPEALS

WAL-MART STORES v. HENLE, 1-554 / 11-0052 (8-10-11)

Defendants appeal from a district court decision affirming a deputy industrial commissioner's decision that a second dismissal of Julie Henle's claim for workers' compensation benefits was not a dismissal with prejudice. OPINION HOLDS: We find the second petition was properly dismissed without prejudice as Henle did not dismiss her petition the second time as provided under Iowa Rule of Civil Procedure 1.943, but it was dismissed by the deputy commissioner. In addition, even applying rule 1.946 we find the dismissal without prejudice was proper as the deputy "specif[ied] otherwise." 

AGENCY APPEAL

NELSON v. CITY OF DAVENPORT, 5027474 (8-8-11)

Defendant argues that the conclusion of claimant's vocational expert, Lewis Vierling, that there are insufficient numbers of suitable work is impacted by the economic factors over the last few years and a finding that claimant is not employable cannot be based on economic downturns in the economy. AFFIRMED.

Claimant's vocational expert convincingly opined that although there are jobs Claimant could do in the area of his residence in the current economy, given his age (now 63), physical disability and work experience, he cannot compete in the labor market for those jobs with younger, healthier workers.

Assessment of future success of possible retraining is improper in an industrial disability case. Such an assessment is too speculative. It is only claimant's present not future earning capacity which is measured in awarding permanent disability benefits. WALSHIRE

AGENCY APPEAL

BJORNSON v. OLD DOMINION FREIGHT LINES, INC., 5030264 (8-4-11)

The presiding deputy determined that claimant's failure to provide payroll records to establish earnings during the period of light duty resulted in an inability to prove entitlement to temporary partial disability benefits.

Record evidence, showing when he was offered light duty work at a decreased hourly rate, claimant's testimony that he was limited to no more than 35 hours per week while on light duty, with medical evidence of when he was released for full duty, is sufficient, credible proof to establish claimant's entitlement to temporary partial disability benefits. There was no evidence presented to contradict either the documentation or testimony provided by claimant.

AGENCY APPEAL

ALLEN v. ANNETT HOLDINGS, 5024900 (7-28-11)

Claimant's attempt to show that he is odd-lot on the findings of his vocational rehabilitation expert, was not convincing. Jayne's assessment of claimant's functional incapacities from questionnaires beyond those imposed by the doctors in this case was no more convincing than the restriction to light duty in the functional capacities evaluation by the physical therapist. Neither assessment was supported by the medical experts in this case. Both Jayne and the physical therapist lack the medical expertise to give weight to their views on the appropriate medical activity restrictions absent supportive medical evidence.

Jayne's assessment that claimant cannot return to over-the-road truck driving at TCM and is significantly limited in doing so with other carriers is convincing due to the restrictions of the treating doctor limiting sitting to eight hours and driving to seven hours and the lifting restrictions of all of the doctors to 40-50 pounds. Jayne noted that even when drivers are not required to load or unload cargo, they still must crank a trailer dolly, open large heavy trailer doors, and pull kingpins which can require considerable physical effort. However, the medical consensus was claimant is capable of medium work and short range trucking and claimant has not sufficiently shown that such work is not available to him.

Also, the portion of the treating doctor's views drafted by defense counsel which indicates that despite the restrictions, workers like claimant can "typically or ordinarily" return to full duty has little meaning in a workers' compensation context. We do not make determinations on the basis of how a work injury may typically or ordinarily impact a worker. Our determinations are made on how a work injury actually impacts the specific worker making a worker's compensation claim. WALSHIRE

AGENCY APPEAL

HERNANDEZ v. NATURAL MILK PRODUCTION, 5028600 (7-27-11)

Defendants appeal from and claimant cross-appeals from an arbitration decision in which the presiding deputy found that claimant had sustained a 75 percent loss of earning capacity following a crush injury sustained in employment. AFFIRMED.

Defendants generally assert that claimant is not a credible witness and that the deputy erred in his assessment of permanent disability. Claimant asserts on cross-appeal that the deputy erred by failing to find him more significantly disabled and in denying the costs of an independent medical examination.

The arguments of the parties were filled with significant emotion. In the course of those arguments claimant was referred to as a "wetback" which The American Heritage Dictionary, Second Edition designates as "offensive slang" for a Mexican, especially a laborer who crosses the U.S. border illegally. The origin of the term in the record of this case does not diminish the clearly offensive nature of the term in the context of the appellate brief. There may be many descriptive terms that could identify the individual claimant in this case. Those which are ethnic slurs or otherwise offensive have no place within the arguments presented to the agency. Iowa Ct. R. 33.2(2).

AGENCY APPEAL

NGUYEN v. TYSON FOODS, INC., 5027460 (7-27-11)

Claimant asserts on appeal that the presiding deputy erred in failing to award a penalty. AFFIRMED.

Claimant states that the evidence defendant relies upon in making the claim that his injury is not work-related is premised upon grossly misrepresented facts. Defendant's witness at hearing provided information about lifting requirements that contradicted prior discovery responses and which formed the basis of some medical opinions.

The question is whether there is a fairly debatable issue, not which party is ultimately correct.

AGENCY APPEAL

AUSBORN v. CITY OF MOUNT PLEASANT, 5028555 (7-20-11)

Defendants assert on appeal that claimant has not proven an injury to her body as a whole, that claimant is not permanently and totally disabled, and that if claimant is not permanently and totally disabled that claimant is not entitled to healing period benefits after her return to work for defendant-employer.AFFIRMED IN PART and MODIFIED.

Claimant suffers from chronic regional pain syndrome (CRPS) in the right arm due to a sequelae from her carpal tunnel syndrome and surgery. Defendants' assert on appeal that the doctors who diagnosed CRPS were not following diagnostic guidelines for CRPS contained in the AMA Guides, fifth edition, which have been adopted by this agency. While our administrative rule, 876 IAC 2.4 recognizes that the AMA Guides, fifth edition is a useful tool in evaluating disability, it is only a guide and its use is not binding on this agency, especially where the Guides attempt to limit diagnoses of licensed physicians. These Guides were not adopted as a diagnosis guide and they were not meant to replace Iowa law on causation. The deputy commissioner did not err in finding that claimant's injury resulted in CRPS and a body as a whole injury.

The deputy found that claimant has significant work restrictions and substantial permanent impairment. Based upon claimant's vocational testing evidence the deputy found that claimant had sustained a permanent total disability. Claimant had returned to work for defendant-employer for a period of approximately three months before voluntarily resigning her position due to a family move to South Dakota. Dr. Kuhnlein recognized that claimant's prognosis to return to unrestricted work is fair. After a consideration of the factors of industrial disability set forth by the presiding deputy commissioner it is concluded that claimant is not permanently and totally disabled and that the extent of her disability is 40 percent.

The preponderance of the evidence supports a finding that claimant returned to work and that despite ongoing treatment she did not obtain significant improvement from her disabling condition. It is therefore concluded that claimant's healing period benefits shall terminate and permanent partial disability benefits shall commence when she returned to full time work with defendant-employer.

AGENCY APPEAL

SHAW v. TYSON FOODS, INC., 5029350/5025716 (7-14-11)

Appeal by Claimant, a diabetic, from denial based on failure to provide timely 90 day notice of his Charcot foot deformity, under §85.23. REVERSED

When the injury develops gradually over time, the cumulative injury rule applies. The date of injury for cumulative injury purposes is the date on which the disability manifests. Manifestation is best characterized as that date on which both the fact of injury and the causal relationship of the injury to the claimant's employment would be plainly apparent to a reasonable person. The date of manifestation inherently is a fact based determination. The fact-finder is entitled to substantial latitude in making this determination and may consider a variety of factors, none of which is necessarily dispositive in establishing a manifestation date. Among others, the factors may include missing work when the condition prevents performing the job, or receiving significant medical care for the condition. For time limitation purposes, the discovery rule then becomes pertinent so the statute of limitations does not begin to run until the employee, as a reasonable person, knows or should know, that the cumulative injury condition is serious enough to have a permanent, adverse impact on his or her employment.

The best approach when attempting to pinpoint when an injury is manifest is to choose the time when the injury most impacted Claimant's employment. He fully healed and returned to full duty work after a 2004 incident. He healed and returned to full duty after a February 2007 incident. However, after he left work to treat his ulcers on August 30, 2007, he only returned to his job for one day on June 2, 2008. After he left again on June 3, he never returned to full duty. Given the views of Dr. Ung, it is likely that the doctor will never return Claimant back to full duty again.

Therefore, Claimant suffered a cumulative Charcot work injury to both feet on or about August 30, 2007, the date alleged in his first petition. Consequently, the issue of notice is rendered moot because the injury date is also the date when he reported his injury to Tyson.

Pursuant to the discovery rule, the time period for notice of claim does not begin to run until claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease.

In this case, the issue of notice was rendered moot by the finding of an injury date on the same day the claimant notified the employer of his work injury. However, if an earlier injury date was chosen, even one more than 90 days prior to August 30, 2007, the notice on August 30, 2007 would still be timely because claimant did not become aware that his condition could have a "permanent" impact on his employment until June 30, 2007.

 

AGENCY APPEAL

CARRILLO v. SAM'S CLUB, 5028491 (7-13-11)

The deputy found that claimant refused suitable work during her healing period and has lost entitlement to healing period benefits pursuant to §85.33. The deputy also found that claimant could return to the employer to make an offer to return to suitable employment and if that offer was denied her benefits shall be reinstated.

The employer is not required to make work available to cure the workers' prior voluntary rejection of suitable work. It is therefore concluded that the arbitration decision shall be modified to reflect that claimant's rejection of suitable work cannot be cured by presently requesting a work assignment from her prior employer. Schutjer v. Algona Manor Care Center, 780 N.W.2d 549, 559 (Iowa 2010).

COURT OF APPEALS

MERCY MEDICAL v. HEALY, 1-338 / 10-1912 (6-29-11)

Appeal from the district court ruling on judicial review reversing the worker's compensation commissioner's calculation of weekly benefits. OPINION HOLDS: We agree with the workers' compensation commissioner's interpretation of Iowa Code §85.56(6) (2009), and find his decision that the employee's customary weekly earnings were to be based on a thirty-five-hour work week was not irrational, illogical, or wholly unjustifiable. REVERSED AND REMANDED.  

We agree with the commissioner (in affirming the deputy?s ruling) that "[t]he fact [Healy] used paid benefits to reach 35 hours per week instead of actually working all of those hours does not change the fact her earnings were normally based on 35 paid hours per week."

AGENCY APPEAL

STREIF v. REILLY CONSTRUCTION CO., INC., 5027259 (6-20-11)

Claimant appeals from an arbitration decision, in which the deputy found that claimant had failed to prove his stroke (a pontine lacunar infarct) arose out of and in the course of employment. AFFIRMED.

Claimant asserts on appeal that he has proven by a preponderance of the evidence that his stroke arose out of and in the course of his employment when considered under an amended legal causation standard set forth in P.D.S.I. v. Peterson, 685 N.W.2d 627 (Iowa 2004) which relaxed the requirement of when continued employment resulting in any aggravation of the heart attack is compensable. Claimant asserts that he continued to work following the start of his symptoms of a stroke rather than seeking medical care and thus sustained a compensable injury and resulting disability due to his stroke.

The preponderance of the evidence, however, supports a conclusion that claimant's stroke was fully independent from his work activities and that claimant has failed to provide any evidence that he would have sustained less stroke-related impairment if he had sooner recognized his onset of stroke symptoms and sought medical care by abandoning his work duties.

COURT OF APPEALS

BETHANY LUTHERAN HOME v. BONER, 1-217 / 10-1467 (6-15-11)

Bethany Lutheran Home appeals from the district court's ruling on judicial review affirming the award of workers' compensation benefits to Boner. OPINION HOLDS: The agency determined Claimant's testimony to be credible, and found she made a prima facie showing that she was both an odd-lot employee and suffered a 100 percent industrial disability, and the district court affirmed. With our limited scope of appellate review, we affirm. 

COURT OF APPEALS

JOHN DEERE v. CAVEN, 1-286 / 10-1830 (6-15-11) 804 NW2d 297

John Deere appeals and Caven cross-appeals from a ruling on judicial review by the district court. Deere claims the district court erred in affirming the agency's costs award under its administrative rules. Caven claims the district court erred in affirming the agency's statute of limitations determination. OPINION HOLDS: Although Deere is now willing to pay the entire costs of the doctor's/practitioner's report at issue, the costs issue is not moot because the issue currently lacks authoritative adjudication. We conclude 876 IAC 4.33(6) is clear and unambiguous. Accordingly, we agree with the commissioner and the district court that Caven's claim for reimbursement for the report can be awarded, in the commissioner's discretion, as a cost under Iowa Code § 86.40 (2007) and 876 IAC 4.33(6). We agree with the district court's affirmance of the agency's statute of limitations dismissal.

COURT OF APPEALS

MC AND R POOLS, INC. v. SHEA, 1-279 / 10-1671 (6-15-11)

MC & R Pools appeals the district court's ruling on its petition for judicial review affirming the workers' compensation commission's final agency decision awarding workers' compensation penalty benefits to Shea. MC & R argues the district court erred in affirming (1) the commissioner's award of $25,000 in penalty benefits and (2) the commissioner's award of healing period benefits from December 8, 2006, to April 1, 2007. OPINION HOLDS: Upon our review, we agree with the district court the record contains substantial evidence to support the commissioner's finding that Shea's claim for benefits was not fairly debatable after June 25, 2008, and we therefore affirm the award of penalty benefits to Shea. We further agree the record contains substantial evidence to support the commissioner's finding that Shea was not medically capable of returning to substantially similar employment from December 8, 2006, to April 1, 2007, and we therefore affirm the award of healing period benefits. DISSENT ASSERTS: I would reverse the penalty award made by the commissioner. I believe the February 21, 2006 opinion of orthopedic surgeon, Dr. Dowdle, that Shea only sustained a temporary aggravation of his preexisting underlying condition, which aggravation was not the cause of any disability or impairment, and that Shea reached pre-injury status on February 17, 2006, coupled with evidence of Shea's preexisting condition and prior surgery, created a fairly debatable issue and provided a reasonable basis for the employer to deny the claim.

AGENCY APPEAL

SHANKLE v. KEOKUK STEEL CASTINGS, 5000173 (6-15-11)

While a default against defendants can absolve claimant of her need to establish that the change in her current condition was proximately caused by the original injury, it cannot absolve her of the need to prove the current extent of loss of earning capacity. Otherwise there is no basis for the agency to determine an extent of loss. As such, the findings of the presiding deputy commissioner must be affirmed. Claimant must still prove up damages on a default.

AGENCY APPEAL

JAGER v. HIGH TECH ELECTRIC, 5026521 (6-15-11)

If any party has a compelling desire to place video surveillance into evidence, it should be done on the record at hearing. This can be done by watching the video during the course of a hearing and explaining the important aspects of the video as it occurs, or by using the relevant portions for the impeachment of a witness. What should not occur is what occurred here. That is the mere act of dumping five hours of meaningless video into the record with no explanation of why it is there, but asserting it is very important.

COURT OF APPEALS

BLUFF HARBOR MARINA v. WUNNENBERG, 1-095 / 10-1237 (5-25-11)

Bluff Harbor, and its insurer appeal from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner that awarded David Wunnenberg's surviving spouse death benefits. Bluff Harbor contends the federal Longshore and Harbor Workers' Compensation Act (LHWCA) rather than Iowa's Workers' Compensation Act governed this death and deprived the commissioner of subject matter jurisdiction. OPINION HOLDS: Because Claimant performed routine maintenance work rather than "construction, replacement, or expansion" of the marina, he was excluded from the LHWCA's definition of "employee" and was not covered by the LHWCA. Accordingly, the commissioner did not err in determining that Iowa's workers' compensation act governed the matter and concluding he had subject matter jurisdiction.

COURT OF APPEALS

SECOND INJURY FUND v. ARMSTRONG, 1-280 / 10-1689 (5-25-11)

The Fund appeals the district court's ruling on judicial review affirming the decision of the Commissioner that Claimant is entitled to total disability benefits from the Fund. The Fund argues: (1) the supreme court did not overrule the line of cases holding an injury that affects the body as a whole is not a qualifying injury; and (2) the commissioner impermissibly included non-qualifying injuries in finding Armstrong was permanently and totally disabled. OPINION HOLDS: (1) Because Armstrong's injury was not to his body as a whole, the line of cases on this subject are not applicable here. (2) Nothing in the record suggests Armstrong sustained injuries, other than the two scheduled injuries, that resulted in industrial disability. Further, the commissioner did not reference any other symptoms in its decision.

COURT OF APPEALS

CINCINNATI INSURANCE v. KIRK, 0-950 / 10-0460 (5-25-11) 801 NW2d 865

Plaintiff, Insurer, appeals the district court's dismissal of its lawsuit based on a lack of subject matter jurisdiction. Cincinnati claims the district court has authority to hear its claims against defendant, Kirk, for fraudulent misrepresentation, unjust enrichment, money had and received, and restitution because these claims are outside the jurisdiction of the Commissioner. We reverse and remand. OPINION HOLDS: We find because there is no adequate remedy for Cincinnati's claims under the Workers' Compensation Act, the district court had the jurisdiction to hear this case. Cincinnati's claims were based on conduct which occurred subsequent to and independent of the work injury. Further, we find the supreme court's holding in Zomer v. West River Farms, Inc., 666 N.W.2d 130, 135 (Iowa 2003), does not extend the Commissioner's jurisdiction to hear this case. The district court may employ issue preclusion and judicial stays where appropriate to avoid inconsistent or contradictory results.

When Kirk's recovery did not progress as anticipated, Cincinnati conducted surveillance of Kirk. On November 5 and 14, 2008, Kirk was filmed striking his left arm while in his vehicle immediately prior to an appointment with his workers' compensation physician. Cincinnati provided the video to Kirk's treating physicians who opined a portion of Kirk's medical care and recovery time was not related to the work injury, but was instead related to Kirk's own actions.

COURT OF APPEALS

ABCM CORP. v. MANNING, 1-225 / 10-1718 (5-25-11)

The employer and its insurer (jointly Harmony House) appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's award of benefits to Claimant. Harmony House raises three issues: (1) the commissioner erred in determining Manning timely filed her claim; (2) whether substantial evidence supports the commissioner's determination Manning's work activities caused her disability; and (3) whether substantial evidence supports the finding of permanent and total disability. Harmony House asks us to reweigh the evidence to reach contrary factual and credibility findings.  OPINION HOLDS:  Because we agree with the district court that the commissioner's ruling is supported by substantial evidence and its application of law to the facts was not irrational or illogical, we affirm.

A finding of permanent total disability does not require a showing that the claimant is completely helpless, but only that she would be unable to compete in the type of position she was trained for and previously performed.

AGENCY APPEAL

VALDEZ v. TASS ENTERPRISES, 5027740 (5-25-11)

The presiding deputy found that claimant had sustained a mental injury that arose out of and in the course of her employment following an armed-robbery during which claimant was bound with tape on her hands and feet, threatened, and hit on the head with the gun, but also found that claimant had not proven that her mental injury resulted in a permanent disability. AFFIRMED IN PART and REVERSED IN PART.

This agency has long looked at the opinions of Dr. Wadle as being quite predictable and at odds with the facts of the underlying case - as noted by the long litany of cases cited in claimant's appeal brief. This appears to be another such instance.

A de novo review of the record indicates that following the robbery claimant developed new and disabling symptoms that she did not exhibit previously. Those symptoms persist. Such symptoms were noted by Dr. Drake to be indicative of PTSD. Wanda Marshall, CPNP, ARNP documented worsening of claimant's symptoms of depression as well as insomnia, severe anxiety, difficulty with social interaction following the robbery. Claimant withdrew from others and her anxiety made it difficult for her to perform work at McDonald's and Adventureland and resulted in her inability to finish schoolwork at East High. Claimant's unwillingness to take significant medication or pursue more rigorous counseling is not supportive of a finding that her underlying mental health condition is non-existent as the medication and counseling would not have been prescribed other than for a medical necessity. Further, claimant's lack of treatment is not completely unexpected, especially in a denied workers' compensation claim where medical care is not being provided.

Claimant has proven by a preponderance of the evidence that she has sustained a permanent disability as a result of the trauma she was exposed to during the robbery

Claimant is generally restricted from situations where she might have to deal with large crowds, any environment where money is being exchanged and there is the possibility of robbery, or where there is a flux in people with whom she would work with or be exposed to. These restrictions should allow claimant the ability to perform nursing and other work in the future. Claimant will likely, however, be unable to return to work as a cashier or restraint worker due to her anxiety. Claimant's anxiety and depression remains, but allows claimant to function with occasional disruptions in daily activities.

After consideration of the record it is concluded that claimant has suffered a 20 percent loss of her earning capacity as a result of the work injury.

AGENCY APPEAL

BENNETT v. POTTAWATTAMIE COUNTY, 5023291 (5-23-11)

Defendants assert that claimant has not sustained a 60 percent industrial disability resulting from post-traumatic stress disorder after an accidental, self-inflicted gunshot wound to claimant's hand, while claimant asserts that that he has. AFFIRMED IN PART and MODIFIED IN PART.

As it relates to claimant's industrial loss due to the impairment to his hand and his PTSD condition, the presiding deputy accurately noted claimant's flare-ups and social interaction difficulties. However, I disagree with the extent to which claimant is affected by the residuals from his PTSD. Claimant has returned to his pre-injury employment position, is fit for duty, and carries his firearm. He continues to perform the mentally strenuous tasks presented by his employment position. Claimant is clearly highly intelligent, highly motivated, and a professional who is greatly valued by the county. He is a dedicated public servant who continues to perform excellent services despite his PTSD, loss of use of his hand, and pain complaints. After retirement claimant has a significant variety of potential employment positions he can explore with law enforcement agencies, insurance companies, and other private entities. After consideration is given to all of the industrial disability factors it is concluded that a 60 percent industrial disability award is excessive. The arbitration decision shall be modified such that claimant is found to have a 20 percent loss of his earning capacity. In all other respects the arbitration decision is affirmed.

AGENCY APPEAL

PALIC v. ARAMARK, 5022287 (5-20-11)

Claimant appeals from an arbitration decision that found that claimant had sustained a 50% industrial disability, awarded the costs of an independent medical evaluation, and denied alternate medical care and a penalty. AFFIRMED except as to denial of alternate care.

The greater weight of the evidence supports a finding that claimant's chronic pain complaints, right-sided radiculopathy, and need for ongoing medical treatment does relate to her work-injury. There is no credible indication that Dr. Carlstrom assigned MMI for any reason other than that claimant refused a repeat laminectomy. Her refusal of surgery did not resolve the underlying reason why the surgery had previously been recommended. After being placed at MMI claimant has sought alternate care with Broadlawns and Dr. Garner for her pain management. The independent examiner, Dr. Kuhnlein, opined that the ongoing pain would best be addressed by referral to a chronic pain specialist. There is no evidence contained within the record that defendants are offering claimant any medical care for her chronic pain. Claimant's treatment to date with Dr. Garner has been reasonable and beneficial treatment.

The overwhelming evidence is that claimant has significant, residual low back and right leg pain. Claimant has provided persuasive medical support for her request for reconsideration for laminectomy surgery or, in the alternative, pain management with a chronic pain specialist. Defendants have not shown that they are willing to offer any such care to claimant and have abandoned her care. As such, claimant is entitled to alternate care.

AGENCY APPEAL

SUMMERLIN v. TYSON FOODS, INC., 5025718/5025719 (5-19-11)

Following consideration of all industrial disability factors it is concluded that the presiding deputy's assessment of a 40% PPID for the right shoulder is affirmed. Such a finding entitles claimant to 200 weeks of PPID benefits under § 85.34(2)(u), which is 40% of 500 weeks.

Claimant has had a successive disability to the whole body due to his left shoulder injury. Both disabilities occurred with defendant-employer, Tyson. In cases of successive disability it is necessary to consider the combined disability.

Both the prior injury and the present injury are compensable injuries under the same paragraph of § 85.34(2). It is therefore required that the employer's liability for the "combined disability" be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer for the right sided injury.

The presiding deputy correctly found claimant's combined disability at the present time to be 75% due to his ongoing work activity. Such a finding entitles claimant to 375 weeks of PPID as a matter of law under § 85.34(2)(u), which is 75% of 500 weeks.

Defendant's assertion that any time an employee has had wage increases section 85.34(7)(b)(2) cannot apply ignores the purpose of the very section - the intent is to reduce the employer's credit in some manner because the employee was impacted in his wages due to the prior injury. While an employee may be impacted with a reduction in his wages, that impact continues to exist even if future annual salary increases occur. An earnings record from social security shows that as a result of his first injury, claimant's earnings were 16.14% less at the time of his present injury.

In application of § 85.34(7)(b)(2) the 16.14% reduction in earnings is subtracted from the "percentage of disability for which the employee was previously compensated by the employer," or 40%. The partial satisfaction, or credit, in this case must then be found to 40% minus 16.14%, or 23.86% or 119.3 weeks. (500 weeks x 23.86 = 119.3 weeks).

Based upon the above calculations, it is concluded that defendant is responsible for compensating claimant for 200 weeks of PPID at the weekly benefit rate of $323.26 for his first disability. For his second disability, defendant is responsible for compensating claimant for 375 weeks of PPID benefits weekly rate of $343.94. However, defendant is entitled to the afore-calculated credit of 119.3 weeks against the second award. As such, defendant is responsible for 255.7 weeks of PPID at the weekly rate of $343.94 from the date of commencement. (375 weeks - credit of 119.3 weeks = 255.7 weeks).

Due to the application of § 85.34(7)(b)(2) claimant is entitled to a total of 455.7 weeks of permanent partial disability benefits despite the finding of a combined PPID of 75%. This award accounts for a reduction in the credit to which defendant is entitled due to the loss of earnings claimant sustained as a result of his first disability. This award modifies the award of the presiding deputy commissioner.

The legislature chose to repeal § 85.36(9)(c) and provided no new subsection in § 85.34(7) to reinstate what they had just repealed. The legislative intent's discussion of a "double recovery" is not synonymous with overlapping period of disabilities payments as the payments are not recoveries on the same disability. As such, it is concluded that to the extent claimant's awards result in an overlapping of payments, that overlapping is no longer prohibited and must occur by operation of current law.

AGENCY APPEAL

SPORLEDER v. CROUSE CARTAGE COMPANY, 1254033 (5-5-11)

Defendants appeal partial commutation citing Mahaffey v. Cardinal Cleaners, (Iowa Industrial Commissioner, April 8, 1974). AFFIRMED.

Defendants assert on appeal, generally, that the partial commutation is not in claimant's best interest and that the partial commutation should be denied as his sole basis for requesting partial commutation is out of "some sort of moral obligation to protect his wife if he would die before her."

The precedent in Mahaffey is expressly rejected as legally unsupported and otherwise improper under the Iowa standard set by the Iowa Supreme Court for commutations. The factors for partial commutation are set forth in Dameron v. Neumann Bros., Inc., 339 N.W.2d 160 (Iowa 1983). The agency's analysis in Mahaffey is not legally sound under the Iowa Supreme Court's prior guidance in Diamond v. Parsons Co., 129 N.W.2d 608 (Iowa 1964) nor the later Dameron case.

AGENCY APPEAL

HEIMAN V. WALSH CHEVROLET, 5026108 & 5026109 (4-29-11)

Claimant asserts on appeal that the deputy erred in failing to find that the evidence supports his assertion that he injured his left knee on or about September 12, 2006 while working for defendant-employer. The deputy made a finding that claimant had concocted the story of working on a transmission only after Dr. Wampler had opined that claimant's prior right knee injury had not caused his subsequent left knee injury. For that reason the deputy found claimant not to be credible and discounted subsequent medical evidence.

Upon de novo review of the evidence of this case I completely reject the credibility determination made by the deputy. I do not share the deputy's belief or understanding that the transmission story was "concocted". Rather, it appears as though the deputy bought into the specious acts of the nurse case manager who required claimant to state the exact moment and mechanism of when his injury occurred. By shrewdly constructing her causation-request to Dr. Wampler and thereafter ignoring claimant's statements to Dr. Wampler of his work on the transmission, the nurse manager was able to get an opinion on which claimant's left knee injury and further medical care could be denied. REVERSED.

COURT OF APPEALS

LOVE'S ENTERPRISES v. LOVE, 1-092 / 10-1131 (4-27-11)

The employer, Love's Enterprises, Inc., and its insurer, Acuity (collectively LEI), appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's award of permanent disability benefits and medical expenses to David Love. The district court found substantial evidence supported the commissioner's findings that Love suffered work-related injuries to his left ankle, right knee, and cervical spine, and bilateral carpal tunnels, all of which manifested on November 23, 2004, the last date Love performed work for LEI. The district court affirmed the commissioner's finding LEI was responsible for medical expenses related to all those injuries and also found substantial evidence supported the commissioner's finding that Love was entitled to permanent total disability benefits as of that date. LEI contests all aspects of the district court's ruling, and asks us to reweigh the evidence to reach contrary factual and credibility findings. OPINION HOLDS: Because we agree with the district court that the commissioner's ruling is supported by substantial evidence and its application of law to the facts was not irrational or illogical, we affirm.

COURT OF APPEALS

SWIFT PORK CO. v. GARCIA-DIAZ, 1-228 / 10-1805

Swift Pork Company (employer) and Gallagher Bassett Services (insurance carrier) appeal from an adverse ruling on their petition for judicial review of the final agency decision of the Iowa Workers' Compensation Commissioner. They contend the district court erred in affirming the Commissioner's finding that Feliciano Garcia Diaz (Garcia) met his burden of proof that his injury extends into the body as a whole, and in affirming the Commissioner's finding that Garcia is permanently totally disabled. OPINION HOLDS: We have reviewed the thorough and well-reasoned decision of the district court and conclude the district court's ruling should be affirmed without opinion pursuant to Iowa Rule of Appellate Procedure 6.1203(a), (c), and (d). 

COURT OF APPEALS

JONES v. SCHNEIDER NATIONAL, INC., 0-938 / 09-1813 (3-30-11)

Jones was injured while working for Fehrle Trucking, an independent contractor, hired by Schneider National, Inc. She was struck by one of Fehrle's trucks driven by another of their employees, and now appeals from the summary judgment entered in favor of Schneider. Jones contends the district court erred in concluding an employer's liability for negligent hiring of an independent contractor does not extend to employees of the independent contractor. OPINION HOLDS: Jones filed a workers' compensation claim against her employer Fehrle Trucking. We believe it is appropriate to distinguish an employer of an independent contractor from other third parties subject to suit pursuant to §85.22. The circumstances are distinguishable because, in all likelihood, the cost of the workers' compensation insurance has been passed on to the employer in the contract with the independent contractor unlike other third parties. (Without using the term "exclusive remedy" the court, with respect to employees of an independent contractor, seems to have extended the exclusive remedy protection of §85.20 to the employer of the independent contractor.)

Although an employer may be liable for the negligent hiring of an independent contractor, we agree with the district court that liability should not extend to the contractor's employees. Even if liability was extended to injuries suffered by such employees, the facts in the summary judgment record are inadequate to render Schneider National liable for its selection of the independent contractor. Accordingly, we affirm the district court's dismissal of Jones's negligent hiring claim. 

AGENCY APPEAL

KERSLAKE v. ALLIANT ENERGY a/k/a INTERSTATE POWER AND LIGHT CO., 5028428 (3-22-11)

Defendant appeals arbitration decision in which the deputy found that claimant's right knee condition arose out of his employment and resulted in a 12 percent functional loss of the right leg. Defendant asserts on appeal that claimant's injury did not arise out of his employment as tying his shoes is merely an everyday "personal matter" for claimant which is comprised of an "innocuous physical task". AFFIRMED.

Claimant was preparing to climb a utility pole to be approved or certified for pole rescue. This is an annual certification claimant was required to have by defendant. Claimant had worn his work boots to work and had tied them when he put them on that morning. The boots were high boots with laces, steel-toed, and a special sole. Claimant testified that he needed to wear such boots to perform the act of climbing a utility pole. He explained that the laces of the boot were required to be tight to provide brace-like support of his lower extremity. In preparation for climbing the utility pole, claimant bent down on his right knee to re-tighten the laces. As he did so he twisted his knee on the ground and he felt it tighten up. He promptly informed defendants of his incident which was later confirmed as an injury.

This is not, as defendant depicts it, a matter of claimant innocuously bending over to tie his shoes coincidentally while at work. Rather, this is a worker who was wearing a pair of pole climbing boots as required by work demands who was making sure that they were securely supportive prior to climbing a utility pole and sustained an injury while doing so. As such, it is concluded that the injury occurred from the hazard of preparing his required safety boots prior to climbing a utility pole. The injury was correctly determined to have arisen out of his employment.

AGENCY APPEAL

BAARDA v. SECOND INJURY FUND OF IOWA, 5028922 (3-21-11)

The Fund asserts that claimant has not presented compelling evidence that she sustained a first qualifying injury, rather that she has had bilateral waxing and waning upper extremity conditions due to her repetitive employment. Claimant has failed to prove by a preponderance of the evidence that her right carpal tunnel condition resulted in the permanent loss of use of her right upper extremity. Affirmed.

AGENCY APPEAL

GOODNER v. MERCY HOSPITAL, 5022487 (3-21-11)

Defendants assert on appeal that the presiding deputy erred in applying Winnebago Industries, Inc. v. Haverly, 727 N.W.2d 567 (Iowa 2006). The Iowa Supreme Court held that under the principle of judicial estoppel, an employer's admission of liability in an alternate care proceeding precluded the employer from later asserting it was not liable. In seeking to persuade the agency on appeal, defendants have not distinguished the facts of the present case from those in the Haverly decision. Rather, defendants argue that the Supreme Court incorrectly decided Haverly.

Affirmed, except as to rate.

COURT OF APPEALS

FOX & ASSOCIATES v. O'BRIEN, 0-960 / 10-1026 (3-21-11)

Claimant appeals from the district court's ruling on judicial review reversing the workers' compensation commissioner's award of permanent disability benefits. She contends substantial evidence supports the commissioner's decision finding that her work-related injury, chronic obstructive pulmonary disease (COPD) with asthmatic components as a result of exposure to mold and allergens in her workplace, was a "substantial factor in causing her permanent disability." OPINION HOLDS: Upon our review, we find Claimant failed to present expert testimony establishing a causal connection between her injury and her claimed permanent impairment. We therefore agree with the district court's conclusion that, in the absence of such expert testimony, the commissioner's conclusion regarding causation of O'Brien's permanent disability must fail. Accordingly, we affirm the ruling of the district court.

COURT OF APPEALS

TRACY v. SOBLE, 1-060 / 10-1225 (3-21-11)

Tracy appeals from the district court's grant of summary judgment in favor of Soble, the attorney who represented her in a workers' compensation action against her former employer. Tracy filed suit against Soble seeking damages for "emotional distress and discomfort." The district court concluded that any claims seeking damages for emotional distress were time barred by §614.1(2).  OPINION HOLDS: The district court was correct in finding that the "actual nature" of Tracy's actions fell into the category of "injuries to the person" under §614.1(2). Because Tracy failed to bring her action within the two-year statute of limitations for injuries to the person, we affirm the district court's grant of summary judgment on the emotional distress claims

COURT OF APPEALS

TEKIPPE v. STATE, 0-803 / 10-0464 (3-7-11)

A former state employee claiming constructive discharge and wrongful termination in violation of public policy and in violation of whistleblower statute, appeals a summary judgment ruling in favor of the State on his wrongful termination claims. OPINION HOLDS: As genuine issues of material fact are present, the defendant's motion for summary judgment should have been denied. REVERSED AND REMANDED

COURT OF APPEALS

KONE, INC. v. HARRISON, 0-891 / 10-0872 (2-23-11)

A workers' compensation claimant appeals a district court ruling reversing a decision of the workers' compensation commissioner. OPINION HOLDS: Substantial evidence supports the commissioner's finding of a loss of earning capacity and his finding that the claimant is entitled to healing period benefits related to a surgery that was performed after the claimant retired. Additionally, as the defendants have not pointed to any evidence justifying a delay in the payment of benefits, a penalty award was appropriate.

COURT OF APPEALS

RUDE v. FARMERS AUTOMOBILE INS., 1-037 / 10-1176 (2-23-11)

Bryan Rude was struck by an uninsured motorist while walking to his vehicle after work, and he entered into a workers' compensation compromise settlement with his employer under § 85.35(3) (2009). Rude subsequently filed a petition for declaratory judgment against his insurer, Farmers Automobile Insurance Association, seeking coverage under the uninsured motorist provisions. The district court granted summary judgment to Farmers, finding that under the policy any amounts payable would be reduced by all sums paid due to bodily injury under workers' compensation law. OPINION HOLDS: We find no error in the district court decision and affirm.

COURT OF APPEALS

WESTLING v. HORMEL FOODS CORP., 0-816 / 10-0795 (2-9-11)

The issue presented for our review is whether the district court was correct in affirming the commissioner's determination that Claimant failed to prove his work-related injury resulted in permanent partial disability. OPINION HOLDS: We reject Claimant's argument that the commissioner erred in failing to adopt the definition of "impairment" set forth in the Fifth Edition of the AMA Guides and conclude substantial evidence supports the agency's finding that he did not suffer a permanent partial disability as a result of his work-related injury. The judgment of the district court affirming the commissioner's decision denying permanent partial disability benefits is affirmed.

COURT OF APPEALS

TRACO v. DUMLER, 0-892 / 10-0943 (2-9-11)

Claimant appeals from the district court's ruling on judicial review reversing the workers' compensation commissioner's award of permanent total disability benefits. REVERSED AND REMANDED.

The only expert opinion on record concluded Claimant suffered a work-related injury, and the injury and subsequent hip replacement surgery resulted in a fifteen percent permanent functional impairment. OPINION HOLDS: We conclude the district court improperly weighed the evidence in overruling the commissioner's finding that the work-related injury proximately caused Claimant's disability. Because Claimant also presented substantial evidence that he met the criteria of an odd-lot employee, we reverse the judgment of the district court and remand the case for the district court to enter judgment affirming the decision of the workers' compensation commissioner.

COURT OF APPEALS

JUAREZ v. HORSTMAN, 0-990 / 10-1275 (2-9-11)

Plaintiff appeals from the district court order granting summary judgment in favor of the defendants on her gross negligence claim under Iowa Code § 85.20(2) (2009). AFFIRMED.

OPINION HOLDS: Plaintiff is unable to prove as a matter of law that the defendants knew her injury was "a probable, as opposed to a possible" result of their actions, and nevertheless proceeded with indifference. Accordingly, the record cannot be reasonably construed to support a gross negligence claim under § 85.20(2). We conclude the district court properly entered summary judgment in Plaintiff's suit against her coworkers

AGENCY APPEAL

BEARDEN v. AL'S CORNER OIL COMPANY, 5028208 (2-7-11)

Claimant appeals denial of second injury fund benefits. Defendants appeal awarding claimant additional pain management medical care as alternate medical care. REVERSED.

Claimant has a congenital left eye cataract condition which resulted in her vision being limited to 20/400, which is a 65 percent visual impairment of her left eye. Her only restriction for that condition, however, is a DOT restriction requiring her to use a left rearview mirror. Claimant has proven a first qualifying loss of use for purposes of the Fund.

Claimant sustained a second injury, to her left upper extremity when she slipped and fell at work resulting in a left distal radius fracture. Claimant's injury resulted in 26 percent impairment to the left upper extremity, an award paid by defendant-employer.

The Deputy commissioner found that claimant's left upper extremity injury was not a qualifying injury for Fund purposes as the pain from the injury permanently aggravated claimant's preexisting depression which made the second injury an injury to the body as a whole.

Following consideration of the record of evidence that it was error to conclude the left upper extremity injury extended into the body as a whole. A finding that a scheduled injury has progressed into a body as a whole injury due to depression requires a greater showing than presented herein. The only "medical" evidence in the record supports the deputy's finding that claimant's underlying depression was "lit up" by her extremity pain, however, that opinion is unconvincing for many reasons. It is an opinion of a physician's assistant. There is no foundation to establish that the opinion is based upon any medical criteria or by a person with mental health training. There is no evidence that the physician's assistant had her opinion reviewed or approved by a medical doctor.

A review of the record establishes that claimant's suggestion of the need for additional pain management treatment is mere speculation. At most, claimant shall be able to return to defendants' authorized treating physician. If that doctor prescribes pain management, such care would be warranted. No such prescription for care is contained within the record so the finding which requires defendants to provide pain management care is reversed.

SUPREME COURT

MERRIAM v. FARM BUREAU INSURANCE, 08-1635 (2-4-11)

Plaintiffs appeal dismissal of their negligence claim against an insurance agent and the insurance companies represented by the agent. AFFIRMED.

Plaintiffs brought this action against their insurance agent, alleging he breached his duty of care to act as a reasonably prudent insurance agent when he failed to advise and recommend that Timothy Merriam, a self-employed over-the-road truck driver, procure self-employment workers compensation insurance. In addition, the plaintiffs contend defendants Farm Bureau Insurance and Farm Bureau Insurance Services are vicariously liable for the actions of the agent, an independent contractor with Farm Bureau. The district court granted the defendants motion for summary judgment, holding the evidence established the agent used reasonable care, diligence, and judgment in procuring the insurance requested by the Merriams and that, as a matter of law, there was no genuine issue of material fact for trial.

COURT OF APPEALS

DETERS v. USF INSURANCE COMPANY, 0-715 / 10-0442 (1-20-11)

Insurance company appeals bad faith and punitive damages judgment in favor of its insured. AFFIRMED.

Mary Deters, as Executor for the estate of her husband, Leo Deters, filed a declaratory judgment action against USF alleging USF breached the terms of an insurance contract and acted in bad faith. The issues were bifurcated. After an August 2009 trial on the coverage issue, the court ruled USF had a duty to defend and indemnify the Deters Estate against two co-employee gross negligence claims. After all evidence had been received in the November 2009 bad faith trial, the trial court directed a verdict for the Deters Estate on the objective element of the bad faith claim (USF had no reasonable basis for denying benefits under the commercial general liability policy). The jury then determined USF knew or had reason to know that its denial of coverage was without a reasonable basis and awarded $1,000,000 in punitive damages. USF appeals arguing: (1) it had an objectively reasonable basis for denying coverage; and (2) the jury's award of punitive damages is unconstitutionally excessive. OPINION HOLDS: The court did not err in directing a verdict for the Deters Estate. The jury's punitive damages award is not unconstitutionally excessive.

COURT OF APPEALS

WAL-MART v. JOHNSON, 10-799 / 10-0358 (1-20-11)

Claimant began experiencing pain in her right shoulder in May 2007, when she had more work while taking inventory at the store. Within a few months she attempted to pull on a pallet jack and stated she was injured when it did not move. She filed a claim for workers' compensation benefits. The deputy concluded Claimant had suffered a forty percent loss of earning capacity. The commissioner adopted and affirmed the deputy's decision. The district court affirmed. The Employer appeals. OPINION HOLDS: I. The employer contends the commissioner should have required Claimant to attend an independent medical examination as requested under Iowa Code § 85.39 (2007). The commissioner did not address this issue, and therefore there was no final agency action on it. The employer has failed to preserve error on this claim. II. The employer asserts there is not substantial evidence in the record to support the commissioner's finding that Claimant's condition was caused by her work. There is substantial evidence because Dr. Mary Hlavin examined her and gave the opinion her neck, shoulder, and arm problems were work related. III. The employer contends the commissioner erred by finding the date of injury was May 20, 2007, when Claimant was performing extra work for the store inventory. After considering all of these facts, the commissioner could properly conclude that the underlying cause of her condition was the extra work performed around May 20, 2007, and that this was the actual the date of injury.

AGENCY APPEAL

POULA v. MIRON CONSTRUCTION, 5025312 (1-13-11)

Claimant appeals Deputy's denial of benefits for cumulative trauma, chronic pain, the inability to work, and mental sequela, based credibility.

In addition to his physical problems from his injury, which include a rating of permanent impairment, work restrictions, and ongoing pain in his knees and back, claimant has been diagnosed to have a permanent major depressive disorder caused by his work injury, felt to be permanent as long as his chronic pain persists. The greater weight of the medical evidence indicates claimant is not currently able to work. If his leg pain subsides in the future, that may change, but the evidence in the record shows claimant's chronic pain makes him unable to focus enough to work. Combined with his physical work restrictions, he is unable to return to the work he did when injured, the kind of work he has done most of his life, or any other jobs for which he might reasonably be suited.

It is not necessary to find claimant to be an odd lot employee. In this case, the medical record clearly establishes he is not able to perform any job. He is permanently and totally disabled under traditional criteria. HEITLAND

SUPREME COURT

BROADLAWNS MEDICAL CENTER v. SANDERS, 08-1643 (12-23-10)

Appellee, Sanders, asks us to reinstate an award of PPD benefits made by the workers' compensation commissioner and affirmed by the district court, but reversed by the court of appeals for lack of substantial evidence. We agree with the district court that substantial evidence supports the award of PPD benefits.

Sanders was a certified nursing assistant who, while working at a group home for the mentally ill operated by Broadlawns, discovered a client who had hung herself. Later, she was required to clean the room in which the client had committed suicide.

As a result of this experience, she began having flashbacks, nightmares, and olfactory hallucinations. Three doctors diagnosed Sanders with post traumatic stress disorder (PTSD) caused by her involvement with the suicide. One permanently restricted Sanders from working at the particular facility.

The doctor's opinions that Sanders had reached maximum medical improvement and had "at best . . . a mild residual impairment" provide substantial evidence in support of the commissioner's finding of permanency. (Emphasis the Court's.)

SUPREME COURT

LAWSON v. KURTZHALS, 08-1766 (12-3-10)

NOT A WC case, but addresses voluntary dismissals sometimes used in them.

The defendant in a tort action appeals from the district court's ruling granting the plaintiff's request for voluntary dismissal without prejudice on the fourth day of a jury trial. Plaintiff cross-appealed. DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.

The rule for voluntary dismissal was amended in 1990. The drafters substituted "at any time before trial has begun"with "at any time up until ten days before the trial is scheduled to begin." Anytime after ten days before the trial is scheduled to begin the ability to seek a voluntary dismissal without prejudice is not absolute. It is within the discretion of the trial court. IRCP 1.943.

The Court held, that the district court erred in concluding it had no discretion to deny a motion for voluntary dismissal because a plaintiff has an absolute right to dismiss a case without prejudice. We further find that under the facts of this case, had the district court exercised its discretion in granting the voluntary dismissal, it would have been an abuse of discretion. We therefore remand this case to the district court with directions to reinstate the case and conduct a new trial subject to the court's prior ruling limiting Lawson's evidence of damages. We further order that this case be tried prior to the refiled case. Finally, we affirm the district court's ruling on defendant's motion in limine prohibiting the admission of evidence on damages not timely provided and its award of attorney fees.

AGENCY APPEAL

SPANGLER v. THE MILLARD GROUP, 5022608, 5022609 (11-24-10)

Defendants' base their assertion that claimant was not a credible witness primarily on evidence that she had not informed two subsequent employers that she had permanent shoulder restrictions and that she did not voice pain complaints during her subsequent employment. Claimant's subsequent employment positions were of short duration and were attempts to seek suitable employment following her involuntary termination from defendant-employer following her injury. Her actions were not unexpected or unreasonable for an individual needing employment during a period of time in which she was being denied reasonable medical care following an injury.

Dr. Hughes' opinions are consistent with claimant's onset of pain complaints in her right upper extremity and the necessity of diagnostic evaluation and probable treatment for her ongoing symptoms of loss of use of her upper extremity and her complaints of pain. The opinions of Dr. Yankey and Dr. Field are less persuasive as they attempt to attribute claimant's ongoing problems and need for permanent work restrictions and treatment to her preexisting conditions, while Defendants have presented no evidence of preexisting conditions affecting her right upper extremity or that she was working with restrictions prior to her present injury. As such, the presiding deputy did not err in providing greater weight to the medical opinions of Dr. Hughes.

COURT OF APPEALS

VERIZON BUSINESS NETWORK SERVS. v. McKENZIE, 0-685 / 10-0256 (11-24-10)

Verizon (MCI) appeals, and McKenzie cross-appeals, from a district court judicial review ruling affirming in part, reversing in part, and remanding the appeal decision of the workers' compensation commissioner on McKenzie's review-reopening petition. MCI claims that after the agency entered its decision, the Iowa Supreme Court issued an opinion clarifying a claimant's burden of proof in a review-reopening proceeding, which the district court failed to apply. See, Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 391-92 (Iowa 2009). McKenzie claims the district court erred in reversing the agency's order requiring MCI to pay for her gastric bypass surgeries and in remanding the case to the agency to determine whether the parties stipulated to the correct date for commencement of benefits. OPINION HOLDS: We reverse and remand the case to the district court for further remand to the workers' compensation commissioner to determine on the record already made (1) whether McKenzie's disability has increased since the original award using the standard set forth in Kohlhaas, (2) if she is entitled to benefits, the correct commencement date for benefits, and (3) whether the unauthorized medical expenses should be paid by MCI under the analysis recently adopted by our supreme court in Bell Brothers Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193 (Iowa 2010). The judgment of the district court is accordingly affirmed in part, reversed in part, and remanded. 

COURT OF APPEALS

DES MOINES PUBLIC SCHOOLS v. AULT, 0-753 / 10-0813 (11-24-10)

Des Moines Public School system, appeals from the district court decision affirming the workers' compensation commission's finding that the respondent, Ault, was permanently and totally disabled. The school contends, (1) the commission's finding of permanent and total disability is not supported by substantial evidence, and (2) Ault should not be entitled to permanent disability due to misconduct. OPINION HOLDS: We affirm the commissioner's finding that Ault is totally and permanently disabled and entitled to benefits. Substantial evidence supports the finding that Ault is not able to be gainfully employed. Ault is still entitled to benefits even though she missed several appointments, did not complete some medical evaluations, and has used drugs and been in physical fights. None of these matters rose to the level of willful refusal of treatment or became an intervening cause aggravating her injuries. 

COURT OF APPEALS

THE WALDINGER CORP. v. METTLER, 0-647 / 10-0502 (11-24-10)

The petitioners appeal from the district court order on judicial review, affirming the agency's grant of workers' compensation benefits to Mettler and remanding to the agency for recalculation of his industrial disability. OPINION HOLDS: A. The workers' compensation commissioner correctly held the employer responsible for the aggravation of any preexisting ankle condition Mettler may have developed during his military service. Without apportionment because it was "unclear" how the VA determined its disability benefits and that without more information it would not consider the preexisting impairment a "functional loss" for the purposes of Iowa workers' compensation benefits. B. Mettler was not entitled to healing period benefits from September 18, 2007, until December 17, 2007, because Mettler attained maximum improvement to his ankle in 2005. C. The agency's method of computing actual earnings does not detract from the substantial evidence supporting its final determination. Viewed as a whole, the evidence supports the agency's finding of fifteen percent industrial disability

COURT OF APPEALS

MYERS v. CRAWFORD HEATING & COOLING, 0-627 / 09-1849 (11-10-10)

Myers appeals an adverse jury verdict in her personal injury action. She argues the district court should have instructed jurors they could draw a negative inference against Crawford Heating & Cooling (Crawford) from its employee's act of discarding the tool bag that fell on her head. She also contends that she was entitled to a mistrial when Crawford's attorney asked prospective jurors about workers' compensation benefits and told the jury during opening statements that Myers had been injured at work. OPINION HOLDS: Because the district court correctly determined the employee did not intentionally destroy relevant evidence, we affirm the decision not to give a spoliation instruction.  Moreover, because counsel's alleged misconduct was not so prejudicial that a different verdict was probable absent the contested references, we also affirm the district court's denial of a mistrial.     

SUPREME COURT

McGILL v.. FISH, et. al., 08-1890 (10-29-10)

Interlocutory appeal from the district court's denial of a motion to dismiss for lack of subject matter jurisdiction. REVERSED AND REMANDED.

We must decide whether a personal injury claim based on gross negligence brought by a state employee against coemployees is a common law action subject to the administrative provisions of the Iowa Tort Claims Act (ITCA) or whether it is an action under § 85.20 (2009) not subject to the requirements of the Act. The district court found the plaintiffs were not required to comply with the exhaustion requirements of the ITCA and denied the motion to dismiss filed by the State for failing to exhaust administrative remedies. The State sought, and we granted, interlocutory review. On our review, we reverse the decision of the district court and remand the case for dismissal of the claims against the state employees.

SUPREME COURT

THE TRAVELERS INDEMNITY COMPANY v. D.J. FRANZEN, INC., 09-0040 (10-29-10)

On review from the Iowa Court of Appeals. DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

We hold the administrative exhaustion doctrine bars the insured from raising a defense to Travelers' claim. Accordingly, the decision of the court of appeals is vacated, and the district court judgment reversed.

Administrative exhaustion is only imposed when two conditions are present: (1) "an administrative remedy must exist for the claimed wrong," and (2) "the statutes must expressly or impliedly require that remedy to be exhausted before resort to the courts." N. River Ins. Co v. Iowa Div. of Ins., 501 N.W.2d 542, 545 (Iowa 1993).

Franzen had the ability to contest both the rate and the employment status of its drivers. Having failed to do so, Franzen may not now litigate that which could have been dealt with three years before this action was commenced.

Remanded with instructions to enter summary judgment in favor of Travelers in the amount of $550,661.

See, Court of Appeals decision below.

COURT OF APPEALS

FORBES v. NATIONAL SERVICE COMPANY OF IOWA, INC., 0-686 / 10-0266 (10-20-10)

Forbes appeals from the district court's denial of his motion for a new trial following the jury's verdict finding the sanitation service hired to clean at the packing plant where he was employed was not negligent. AFFIRMED.

He contends he is entitled to a new trial because National violated a pretrial ruling on Forbes's motion in limine seeking to exclude evidence concerning fault by Forbes's employer Swift, common liability between Swift and National, and workers' compensation coverage. OPINION HOLDS: I. Forbes fails to provide an adequate record of how the district court ruled on his motion concerning Swift's fault or shared liability and therefore we do not have a clear picture of what evidence the district court deemed irrelevant in response to Forbes's motion. Because we are unable to reach the question whether the court abused its discretion, we affirm the district court's order denying his motion for a new trial. II. We conclude Forbes failed to prove he was prejudiced by the jury's fleeting exposure to information that he received workers' compensation. We do not believe the district court abused its discretion in denying the motion for new trial on this ground.

AGENCY APPEAL

WARD v. FANSTEEL, INC., 5023789 (10-12-10)

Claimant appeals denial of partial commutation of permanent total disability award. REVERSED.

Claimant was 62 years old at the time of the hearing. Claimant and his wife live in a house they are purchasing on a real estate contract. Claimant and his wife have made improvements to the house, and defendant employer has paid for medical modifications to accommodate claimant's work injury, which has left him a paraplegic, along with double amputation of his legs, ongoing bowel and bladder problems, etc. He has to frequently move from his wheelchair to his bed and vice versa to avoid bed sores. His wife Sue is compensated for providing daily nursing services to him.

He seeks the partial commutation for several reasons. First, he wishes to pay off his house contract, which is at a high rate of interest, ten percent, compared to current mortgage rates, and also to avoid the $23,000.00 lump sum payment at the end of the contract. Second, he wishes to make various repairs and improvements to his house, including an addition, adding a garage, etc. Third, he wishes to invest about $117,000.00 in conservative mutual funds, stocks and bonds. Finally, one third of the $350,845.39, or about $117,000.00, would be paid to his attorney under the prior attorney fee contract. In this case, it was the claimant's attorney's efforts that resulted in claimant's award of permanent total disability.

In considering a request for commutation of a workers' compensation award, factors to be considered include "(1) the claimant's age, education, mental and physical condition, and actual life expectancy (as contrasted with information provided by actuarial tables); (2) claimant's family circumstances, living arrangements, and responsibilities to dependents; the claimant's financial condition, including all sources of income, debts and living expenses; the reasonableness of the workers' plan for investing the lump sum proceeds and the workers' ability to manage invested funds or arrange for management by others (for example, by a trustee or conservator). ….. Ultimately, the Dameron analysis involves a benefit-detriment balancing of factors, with the workers' preference and the benefits to the worker of receiving a lump sum payment weighed against the potential detriments that would result if the worker invested unwisely, spent foolishly, or otherwise wasted the fund so it no longer provided the wage-substitute intended by our workers' compensation law……a request for commutation is approved on the best-interest balancing test unless the potential detriments to the worker outweigh the workers' expressed preference and the demonstrated benefits of commutation." Dameron v. Neumann Bros., Inc., 339 N.W.2d 160, at 164 (Iowa 1983).

Although investment in the stock market is an inherently risky option as opposed to the risk free, tax free certainty of weekly workers' compensation benefits, a request for commutation is approved on the best-interest balancing test unless the potential detriments to the worker outweigh the workers' expressed preference and the demonstrated benefits of commutation. It is found the potential detriments to the claimant of his plan do not outweigh the demonstrated benefits of his plan. Partial commutation for the purposes of investment as requested by claimant is found to also be appropriate and is hereby granted. HEITLAND

COURT OF APPEALS

GAZETTE COMMUNICATIONS v. POWELL, 0-633 / 10-0017 (10-6-10)

The workers' compensation commissioner ruled that Robert Powell's first back injury, which occurred at an employee activity committee bowling event, arose out of and in the course of his employment. The district court reversed and Powell appeals and the employer and its insurer cross-appeal. OPINION HOLDS: The commissioner found the "sole benefit to Gazette was employee morale and camaraderie amongst the employees and their supervisory staff." That factual finding is supported by substantial evidence and thus binding on us. The error lies in the commissioner's conclusion that this stated "sole benefit" is sufficient to bring recreation within the course of employment. The district court did not err in reversing the commissioner on this issue. Remand to the commissioner is required to determine what, if any, benefits are due to claimant based solely on the asserted, later, second injury. We affirm the district court in all respects.

AGENCY APPEAL

ESTNESS v. PRAIRIE MEADOWS, 5024979 (9-27-10)

Defendants contend that the presiding deputy by questioning claimant in the course of her testimony violated defendants' due process rights by becoming an advocate for claimant and then not recusing himself.

When the questions to which defendants object are reviewed with consideration of the record evidence that had developed to that point in the hearing, the deputy's questioning was not improper. Clearly, the questions, to which defendants object, were asked for purposes of clarification only and were not posed in any attempt to advocate for either party.

Claimant alleges a cumulative injury to her left shoulder from her work duties at Prairie Meadows Casino. Those duties consisted of doing minor repairs on gambling machines, pushing chairs back into place, and paperwork. Dr. Jones has concluded claimant's repetitive work for the casino produced her left shoulder complaints. Unfortunately, the record evidence in its entirety does not support a finding that claimant performs any work for Prairie Meadows repetitively. Her duties are widely varied and do not involve sustained shoulder use. Additionally, the record evidence is that claimant only worked intermittently.

Furthermore, claimant did not attribute her left shoulder condition to her work when she talked to her doctors.

Claimant has not demonstrated that her left shoulder condition is a rational consequence of her work activities for the employer. REVERSED. WALLESER

AGENCY APPEAL

PETERSEN v. SECOND INJURY FUND OF IOWA, 5023575 (9-9-10)

On appeal, the Fund argues that claimant's loss of use to her right arm (first loss) was part and parcel of her cervical condition and she cannot claim a scheduled member loss of use.

The medical evidence in this claim for Fund benefits supports that claimant had cubital tunnel syndrome and continues to have residual problems in her right arm that resulted from her ulnar nerve dysfunction. These residuals are a permanent loss of use to the right arm. They are a first loss to a qualifying scheduled member for purposes of establishing Second Injury Fund liability. A first qualifying loss need not be established as work related. WALLESER

AGENCY APPEAL

FREEMAN v. APPA FINE FOODS, LLC, 5022135 (9-8-10)

Permanent total reduced to 50% PPID.

FCE evaluator opined that claimant could lift 20 pounds occasionally and 10 pounds frequently to shoulder level, only occasionally lift 15 pounds or less overhead, and do no prolonged or repetitive overhead work. Claimant had displayed no significant limitations in other nonmaterial handing handling activities, including sitting, standing, walking, climbing, and upper extremity function. Treating physician rated at 18 percent whole person permanent impairment. The doctor recommended work restrictions of no significant lifting greater than 50 pounds on an occasional basis, no lifting greater than 20 pounds on a frequent basis and no constant lifting greater than 5 to 10 pounds.

Claimant has looked for work at three businesses in the area where he resides. He testified that the employers were not interested in hiring him after he advised the employers of his restrictions. His failure to stop smoking is preventing him from having the third surgery that had been recommended.

Claimant believes that there is work that is available for him within his restrictions though he has been unsuccessful in finding some. He has applied for Social Security Disability but this has been denied.

Claimant has demonstrated success in obtaining education and training despite his limited formal education.

He has not made a prima facie showing that the only services he can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist" He is not an odd lot worker. Neither is claimant permanently and totally disabled under traditional principles. He has work experience, intelligence, capacity for training, and residual physical abilities that permit him to perform work, albeit not at the same functional level as he may have been able to do immediately prior to his injury. WALLESER

AGENCY APPEAL

COFFEY v. MID SEVEN TRANSPORTATION, 1074160 (8-31-10)

Claimant's argument regarding statute of limitations, that weekly indemnity benefits should be found to be awarded only at the time of final judicial appellate action is misplaced.

The commissioner and not the courts has subject matter jurisdiction to determine the extent of disability benefits to which a claimant is entitled. In other words, the commissioner and not the courts makes an award of benefits.

The deputy properly concluded that under §85.26(2), the date of the award of payments in this matter was when the commissioner issued the intra-agency appeal decision.

Claimant also argues that pursuant to §614.1(6), actions founded on a judgment may be brought within twenty years and, therefore, his petition was filed timely. §614.1(6) is a general statutory provision relating to limitations of actions. §85.26(2) is the specific statutory provision that controls the timely filing of a petition for review reopening of an award of benefits before the workers' compensation commissioner.

Defendants correctly argue that claimant must prove that a causal relationship exists between the work related condition and the medical treatment for which claimant seeks payment from defendants. That proof is not satisfied merely because a condition previously was found work related. Claimant must demonstrate that the costs for which payment is sought actually were incurred to treat the work condition. Only after such a showing is an order of payment appropriate. WALLESER

AGENCY APPEAL

BURRELL v. CERTAINTEED, 5026658 (8-31-10)

The fact that the employer will provide no work for an employee who has restrictions that result from an injury while working for the employer strongly suggests some loss of earning capacity has resulted from that work injury. The employer's failure to provide work is not prima facie evidence that the only services the worker can perform are "so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist", so as to trigger "odd-lot," however. WALLESER

AGENCY APPEAL

ROUTH v. MENARD, INC., 5027195 (8-30-10)

On appeal, claimant argues that even if he has not proven a specific work injury, the record evidence demonstrates a cumulative injury to his back as a result of the lifting in his shipping and receiving job.

Claimant clearly was not a credible witness in his own behalf. His multiple stories regarding the claimed specific incident were all disputed by the more objective evidence in the record. Claimant's overall lack of credibility certainly is a relevant factor in assessing the reliability of his own description of his work duties.

More importantly, only one orthopaedic expert, Dr. Boulden, opined as to the relationship between claimant's work duties and his back complaints, stated that claimant's continuing complaints as likely relate to his excessive weight and his lack of back rehabilitation as to his work activities.

Claimant's overall lack of credibility and the other possible sources of his back complaints strongly support the legal conclusion that claimant did not establish that he sustained a cumulative injury. WALLESER

AGENCY APPEAL

LESCH v. PLUMROSE USA, 5029039 (8-30-10)

Defendants argue that as claimant continues to perform a non accommodated job stacking twelve inch boxes of bacon that weigh 20 pounds ten high on a double pallet, the hearing deputy improperly found that claimant was permanently and totally disabled. That argument misses the relevant inquiry, namely: could claimant compete for a similar job or any other regularly available job in the general labor market?

At best, claimant functions at a borderline intellectual level. His reading, writing, and arithmetic skills are de minimus. While the treating surgeon released claimant to regular duty after his rotator cuff repair, the examining occupational physician has opined that claimant should only occasionally lift over his shoulder with his right arm. This is consistent with claimant's reports of 6/10 pain related to his sustained lifting at work. It is expressly found that a reasonable employer in the general labor market would not hire this claimant to perform his current lifting and stacking job. Permanent total affirmed. WALLESER

AGENCY APPEAL

BUCKALEW v. PLEASANT CARE LIVING CENTER, 5026553 (8-25-10)

Defendants complain that the hearing deputy failed to explain what he meant by finding claimant credible. They point out inconsistency between her testimony at hearing, and histories in two office notes of a chiropractor and defendant's company physician, which indicate a delay in any symptoms for a few days and then the onset of low back pain and no report of groin pain until later. Defendants also point out inconsistency of claimant's testimony with the initial reports of the injury completed by her supervisor which indicate only back and hip pain. It was these inconsistencies which necessitated a credibility finding by the hearing deputy.

The hearing deputy clearly states that claimant was found credible based upon her demeanor or presentation at hearing. Consequently, what clearly was found credible was her testimony at hearing that she had continuous groin pain since the injury and her description of her disability.

The above referred to inconsistencies in this record are sufficient to render this entire claim and the need to pay any weekly benefits, "fairly debatable" pursuant to the law cited by the hearing deputy. MODIFIED, to disallow penalty awarded by the Deputy. WALSHIRE

AGENCY APPEAL

GAGE v. 3E ELECTRICAL, 5023952 (8-16-10)

That a hip replacement would have been necessary regardless of his employment activity is largely irrelevant to the issue of causation in this case. It has long been the law of Iowa that Iowa employers take an employee subject to any active or dormant health problems and must exercise care to avoid injury to both the weak and infirm and the strong and healthy. A material aggravation, worsening, lighting up or acceleration of any prior condition, even if that prior condition was not work related, has been a viewed as a compensable event ever since initial enactment of our workers' compensation statutes.

However, in this case, Dr. Weresh is simply stating that in the absence of a traumatic event at work, given claimant's history, his activities at work were not a factor in causing the need for hip replacement surgery.

The views of the treating orthopedist, Dr. Matthes relied upon by claimant were quite unconvincing. First, he waffled in his causation opinions. After conferring with claimant's counsel, the doctor opined that claimant's work was a significant aggravating factor. He later reported to defense counsel that a work aggravation was only conceivable. He then recanted that opinion and again stated that the condition was work related.

Dr. Kuhnlein views cannot overcome flawed views of Dr. Matthes. First, sitting only two hours a day is not consistent with claimant's testimony at hearing. Second, Dr. Kuhnlein is an occupational medicine specialist who was not shown to possess specialized knowledge and experience in the diagnosis and treatment of hip or other orthopedic problems.

SUPREME COURT

ANDOVER VOLUNTEER FIRE DEPARTMENT and TRAVELERS INSURANCE COMPANY v. GRINNELL MUTUAL REINSURANCE COMPANY, 08-1628 (8-13-10)

Workers' compensation insurer for volunteer fire department appeals district court decision reversing ruling by workers' compensation commissioner finding a volunteer firefighter died in the course of his employment both as volunteer firefighter and as farmhand. DISTRICT COURT JUDGMENT AFFIRMED AND CASE REMANDED WITH INSTRUCTIONS.

Grinnell claims a volunteer firefighter can be "summoned to duty" as a volunteer firefighter by circumstances. Travelers asserts a volunteer firefighter can only be "summoned to duty" under the statute by a means or method approved by the fire chief to call a volunteer firefighter to duty, which in this case would have been an audible page.

§85.61(7)(a) reduces "course of employment" to a single factor-time period of employment. It provides that:

[p]ersonal injuries sustained by a volunteer fire fighter arise in the course of employment if the injuries are sustained at any time from the time the volunteer fire fighter is summoned to duty as a volunteer fire fighter until the time the volunteer fire fighter is discharged from duty by the chief of the volunteer fire department or the chief's designee.

The district court rejected the ruling of the commissioner. It concluded a volunteer firefighter cannot be summoned to duty by circumstances, but can only be summoned by the fire department or some other official channel. It concluded that Justin could only be summoned in this case by a page from the emergency communication center. It remanded the case to the workers' compensation commissioner for further proceedings under the correct legal standard. Grinnell appealed.

COURT OF APPEALS

SWIFT & COMPANY v. RIVERA, 0-437 / 09-1850 (8-11-10)

An employer contends that the workers' compensation commissioner erred in allowing an employee to amend her petition for workers' compensation benefits to include a claim for penalty benefits and also takes issue with the commissioner's fact findings. OPINION HOLDS: The commissioner did not err in granting the employee's request to amend her petition, and substantial evidence supports the commissioner's findings.

SUPREME COURT

SWISS COLONY, INC. v. DEUTMEYER, 09-0810 (8-6-10)

Substantial evidence does not support the commissioner's finding that Deutmeyer "earned less" than the usual earnings of a full-time adult laborer in his field.

The employer, who paid weekly PPD benefits at a higher rate than that awarded, is entitled to a credit for overpayments only on benefits for a subsequent injury and not against future PPD benefits awarded this injury.

COURT OF APPEALS

SCOGGINS v. ZURICH, 0-443 / 10-0131 (7-28-10)

Scoggins appeals from the district court's ruling granting Zurich American Insurance Company's motion for summary judgment on his bad faith claim. He asserts there is a genuine issue of material fact as to whether Zurich's delay in authorizing his surgery was reasonable. OPINION HOLDS: There is no issue of disputed fact. Zurich's brief delay in authorizing treatment while it waited for information from Scoggins's doctor was not unreasonable

SUPREME COURT

XENIA RURAL WATER DISTRICT v. VEGORS, 09-0426 (7-23-10)

Claimant has the burden to establish his injuries arose out of and in the course of employment. A claimant cannot recover for injuries stemming from an employee's instigation or aggressive participation in horseplay that constitutes a substantial deviation from his employment because such actions do not arise out of and in the course of the employment. Therefore, the claimant bears the burden to establish he or she did not substantially deviate from the employment by instigating or aggressively participating in the horseplay.

Because the commissioner incorrectly applied the burden of proof, we remand to the district court for remand to the commissioner for reconsideration under the current record. Additionally, Vegors's claim is not barred by §85.16(3) because the action of his coworker that resulted in his injury was not done for reasons "personal" to Vegors.

SUPREME COURT

SOLLAND v. SECOND INJURY FUND OF IOWA, 08-1893 (7-16-10)

The court of appeals assessed the costs on appeal "to both parties equally."

Because the appellant, Solland, is the successful party on appeal, we reverse the court of appeals' assessment of costs on appeal and the district court's assessment of costs on judicial review. All costs of the appeal are assessed to the appellee, Second Injury Fund of Iowa.

AGENCY APPEAL

SALIH v. SWIFT & COMPANY, 5025026 (7-15-10)

Appeal by claimant from an arbitration decision where the presiding deputy found that claimant sustained an injury that arose out of his employment and suffered a temporary disability but no permanent disability. MODIFIED, 15% PPID awarded.

A de novo review of the record finds that defendant offered no independent medical examination and no cross examination of the medical evidence offered by claimant which supports a finding of a permanent impairment. Thus the unrebutted testimony is that claimant's pain and loss of function continued unabated until the present time resulting in permanent impairment.

The unrebutted expert medical testimony from Dr. Stoken cannot be summarily rejected. Her opinion is consistent with the medical records and, importantly, the supportive lay testimony of claimant and his medical care providers. The deputy did not find claimant was unreliable as a witness. Claimant's testimony is supported by the medical records, prior deposition testimony, the fact findings in the unemployment decision, and his employment records.

AGENCY DECLARATORY

PETITION BY SNAP-ON TOOLS, CONCERNING IOWA CODE § 85.39, 5026716; 5026717 & 5026718 (NUNC PRO TUNC 7-2-10)

Does § 85.39 authorize an employer to request a medical examination as part of its initial investigation of a claim?

Answer: Yes. The examination can take place at any time "after an injury." The initial investigation of a claim would only transpire after an injury has occurred. However, as noted in response to question l, the only enforcement action provided in §85.39 is the suspension of compensation or weekly benefits during the period of refusal.

PETITION BY SNAP-ON TOOLS, CONCERNING IOWA CODE §85.39, 5026716; 5026717 & 5026718 (RULING ON REHEARING 7-2-10)

The employer challenges the commissioner's interpretation of ¬ß85.39 in which a 30 day notice is usually required before an evaluation. Employer argues that there is no legal basis for this time frame and suggests instead that a 7 day advance notice is more appropriate.

Considering the severe sanction included in §85.39, a party seeking to challenge an examination should have sufficient time to seek legal counsel and to file a motion with the division. REHEARING DENIED.

See, also, (DECLARATORY RULING 6-14-10).

 

AGENCY APPEAL

DOEHRMANN v. RESIDENTIAL ALTERNATIVES OF IOWA, a/k/a WINDMILL MANOR, 5026308 (7-1-10)

I disagree with the hearing deputy that simply because claimant disagreed with her supervisor on her ability to work in her job that the defendants can be allowed to take the position that she should be denied healing period benefits after being terminated because of physician imposed work restrictions necessitated by the work injury. I must conclude that she was not able to fully perform her job as marketing director and that the work injury was a cause of her inability to continue in her job. Healing period benefits shall be awarded for the requested time period in the hearing report.

I also disagree with the hearing deputy on the issue of the extent of permanent disability. I find the 10 percent rating by John Langland, M.D., the treating orthopedic specialist, more convincing that the 2 percent rating by Kenneth McMains, M.D., an occupational medicine physician. Dr. Langland was far more familiar with claimant's clinical presentations over many months than Dr. McMains. Also, Dr. Langland as an orthopedic specialist is far better trained and experienced in the field of orthopedics and in a better position to assess the loss of use from this orthopedic condition.

Because the injury date, the benefit periods in question, and the hearing in this matter all predate the effective date (July 1, 2009) of 2009 Iowa Acts, Senate File 478, section 110 the law cited below is the applicable law. See § 4.5 (2009) which provides: A statute is presumed to be prospective in its operation unless expressly made retrospective.

In this case, while I disagree with defendants and the hearing deputy as to claimant's entitlement to healing period benefits, the issue is fairly debatable as demonstrated by the fact that the hearing deputy agreed with defendants' position. Therefore, a penalty is not appropriate.

I agree with the hearing deputy on this issue, Dr. Langland, claimant's treating doctor, clearly has indicated he thinks use of the Orthrovisc is necessary to treat the aggravation of claimant's pre-existing condition. Dr. Langland appears to be an employer chosen doctor and defendants are not entitled to interfere with the medical judgment of their own treating physician. A close reading of Dr. Erdil's opinions shows that he apparently was of the erroneous understanding that defendants were not liable for treatment of aggravation of a pre-existing condition. Dr. McMains thought that the Orthrovisc and any on-going treatment would be for the pre-existing condition. However, Dr. McMains acknowledged that claimant's pre-existing condition was asymptomatic at the time of the injury. Although it is a close question, it is concluded that claimant is entitled to the alternate medical care she seeks. Claimant had an aggravation of her pre-existing condition and the treatment she seeks appears to be treatment for that aggravation. WALSHIRE

AGENCY APPEAL

REID v. SECOND INJURY FUND OF IOWA, 5022844 (6-30-10)

The only preclusive effect of an agreement for settlement approved by this agency is upon the parties who entered into that agreement. Such an agreement does not establish the compensability of any injury or the extent of claimant's entitlement to disability benefits in a subsequent claim against the Second Injury Fund of Iowa.

The Order portion of the arbitration decision is modified to state that claimant shall pay the costs of this action pursuant to administrative rule 876 IAC 4.33 and the costs of this appeal. UNIDENTIFIED.

COURT OF APPEALS

HILLTOP CARE CENTER v. BURTON, 0-323 / 09-1633 (6-30-10)

Claimant appeals, and Defendants, cross-appeal, from a district court judicial review ruling affirming in part, reversing in part, and remanding the appeal decision of the workers' compensation commissioner. The dispute primarily centers on the correct compensation rate for the weekly benefits awarded to Burton. OPINION HOLDS: We conclude the district court erred in reversing and remanding on the compensation rate calculated by the agency. We believe the agency was correct in using the wages she was actually paid by Hilltop, including the regular annual bonus she received the month before her injury, in computing her weekly benefit rate. (Even though she was mistakenly overpaid .) We affirm the district court on all other issues, including its reversal of the agency's penalty benefit award and its affirmance of the agency's determination as to the compensability and extent. See. also, Supreme Court, Burton.

COURT OF APPEALS

RYKO v. NEUROTH, 0-293 / 09-1665 (6-30-10)

Workers' compensation claimant was found to have experienced work-related injuries and a resulting 60% loss of earning capacity. Despite the commissioner's finding that he had failed to give timely notice of one of the injuries, the commissioner determined the defendants failed to show any rational means or method of apportioning the restrictions imposed by the functional capacity testing and the resulting disability and, consequently, held them liable for the entire disability. On judicial review, the district court affirmed the finding that defendants had proved their notice defense. However, the district court remanded to the agency for further fact findings. Claimant appeals, contending (1) the district court erred in finding ¬ß85.34(7)(a) (2005) applicable and remanding to the commissioner for further findings; (2) there is substantial evidence to support the commissioner's finding of 60% industrial disability; and (3) the district court erred in concluding the employer and its insurer carried their burden of proving lack of notice of his 2005 claim of injury to his low back. OPINION HOLDS: The commissioner's findings of fact were supported by substantial evidence and its application of law to the facts was justified. The district court thus erred in reversing in part. We reverse the district court's ruling to the extent it reversed the commissioner. We remand to the district court for entry of ruling affirming the commissioner in all respects

AGENCY APPEAL

DUNLAP v. ACTION WAREHOUSE, 5026306 (6-28-10)

Claimant argues that the defendants' attorney(s) were complicit in the "contemptuous conduct" of their witness, Dr. Prevo. Claimant is particularly offended by Dr. Prevo's refusal to provide documents and answer questions pertaining to the investigation of his license by the Iowa Board of Medicine. The deputy articulated his reasons for assessing the sanction of costs and limitation on the weight of Dr. Prevo's testimony. Penalty benefits are not proper as a discovery sanction as requested by claimant. It is concluded that the deputy commissioner's imposition of sanctions were not an abuse of discretion and the sufficiency of the sanctions is affirmed upon de novo review.

Claimant argues that this agency should hold defendants and their witness in contempt for proffering Dr. Prevo as an expert and thereafter ignoring the subpoenas relating to Dr. Prevo in this matter. The deputy denied the contempt request on the basis that the agency does not have contempt power. Even if the agency has contempt power, holding defendants in contempt for relying on and presenting as evidence the opinions of a doctor who was still licensed (albeit under investigation) would not be the appropriate use of the contempt power. Further, it would not be appropriate to hold Dr. Prevo in contempt for asserting a statutory privilege afforded to him during the course of the investigation against him. Therefore, it is concluded that the deputy's refusal to find defendants or Dr. Prevo in contempt is affirmed.

The deputy found the employer's payroll records were spotty and inaccurate when compared to claimant's actual paychecks. Defendants' answer to an interrogatory noted that the claimant's normal work week was 37 to 38 hours per week. It is concluded that the preponderance of the evidence supports a rate of $360.49 and therefore the deputy's finding is affirmed.

AGENCY DECLARATORY

PETITION BY SNAP-ON TOOLS, CONCERNING IOWA CODE § 85.39, 5026716; 5026717 & 5026718 (DECLARATORY RULING 6-14-10)

The Commissioner addressed a number of questions regarding §85.39, independent medical examination, including, language required in an employer request for IME, claimant's lack of right to veto employer's choice of physician, notice (usually 30 days), transportation expenses (advance payment only on order and limitation on meal and lodging), no right to compel attendance, and post hearing agreement of claimant to submit. See, also, Horne v. Case New Holland, 5027707 (App. 6-2-09).

See, also, (RULING ON REHEARING 7-2-10), and (NUNC PRO TUNC 7-2-10).

COURT OF APPEALS

McGOWAN v. BRANDT CONSTRUCTION CO., 0-213 / 09-1033 (5-26-10)

Workers' compensation claimant appeals from the district court's ruling on judicial review, which affirmed in part, reversed in part, and remanded to the agency for further fact finding. Employer and insurer cross-appeal, challenging the need for remand. OPINION HOLDS: I. McGowan's Appeal. The district court did not err in rejecting Claimant's claim that Brandt should be judicially estopped from denying liability (should read "disputing nature and extent") following two alternate medical adjudications wherein it admitted liability for the work-related injury. The district court properly determined the commissioner's award of penalty benefits prior to June 10, 2003, was unwarranted where there was a reasonable basis for denying liability. We affirm the district court in remanding this action to the commissioner to recite findings for the denial of penalty benefits for the claimed post-June 10, 2003 disability. We uphold the district court's affirmance of the commissioner's rate calculation as it was not wholly illogical, irrational, or unjustifiable. II. Brandt's Cross-Appeal. The district court did not err in its remand for further fact findings with respect to McGowan's entitlement to temporary benefits for the period July 17 to August 8, 2003.  

COURT OF APPEALS

FRANK v. GITS MANUFACTURING, 0-186 / 09-1419 (5-26-10)

An employer and its insurer (collectively GITS) appeal from the district court's affirmance of the workers' compensation commissioner's award of benefits. GITS contends the commissioner erred as a matter of law in accepting the claimant's expert's causation opinion. OPINION HOLDS: The deputy relied upon the claimant's own knowledge of "when she experienced her symptoms and what she observed and smelled at the time her symptoms occurred or worsened." The claimant did not have irritation or breathing problems before 2002 and reported problems with chemical and fume exposure at work. The deputy found her credible, and in conjunction with claimant's expert's work with claimant and his specialized knowledge as a pulmonologist, the deputy accepted the expert's opinion that the claimant's chronic bronchiolitis was likely caused by exposure to welding and other fumes and coolants at GITS. The commissioner adopted these findings. Substantial evidence supports the commissioner's findings and we therefore affirm. (See, second round, Court of Appeals & Supreme Court.)

AGENCY APPEAL

WHITE v. HUTTON & CO., INC., 5021387 (5-24-10)

Defendants appeal from an arbitration decision in which claimant was found to be permanently totally disabled. AFFIRMED.

The evidence in this matter proves that claimant's work injury has resulted in a legitimate chronic pain condition which affects his daily activities and level of function coupled with a severe mental condition. While claimant is continuing to undergo medical treatment for those conditions, the evidence supports the finding that he has reached a plateau in his improvement and that ongoing care is in the nature of managing the conditions. The preponderance of the evidence is that claimant's condition will not significantly improve.

AGENCY APPEAL

THOMAS v. OLYMPIC WALL SYSTEMS, 5025876 (5-24-10)

20% PPID award increased to 45% on appeal.

The deputy's award of compensation of 20 percent permanent partial disability does not adequately consider the loss of earning capacity as a result of the stipulated whole body injury. A pre-employment physical report coupled with claimant's testimony makes it clear that claimant began his employment for defendant-employer without the need for physical activity restrictions. He performed this heavy work for the approximately 3 1/2 months between the date of hire and the date of injury. Following his injury claimant has testified consistent with the medical records that he has ongoing complaints of pain in his low back and sporadic tingling in his right leg. The medical records confirm claimant has sustained permanent, but mild impairment as a result of his injury.

It is defendant-employer's inability to provide claimant post-injury employment which ultimately requires a loss of earning capacity award in excess of the 20 percent found in the arbitration decision. He has significant work restrictions resulting from the work injury which preclude a return the sector of the labor market in which he had primarily worked. The refusal of the 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.

AGENCY APPEAL

THUMM v. MIDWEST CARTAGE & TRAILERS, INC. & STATE NATIONAL INSURANCE COMPANY, 5024864 (5-20-10)

The arbitration decision in this matter names Landstar BCO as the insurance carrier in the caption of the decision. Within the body of the decision it is noted that the parties "orally agreed at the evidentiary hearing that the workers' compensation insurer in this matter is Landstar BCO and GAB Robbins could be dropped as a named party." The first report of injury form filed in this claim lists the insurance carrier as "unknown". Following further investigation of agency records, the undersigned finds that State National Insurance Company located in Fort Worth, Texas is the responsible insurance carrier and is a necessary party to the claim. Defendant-employer shall notify the agency within 10 days by motion for rehearing if it contests the finding that State National Insurance Company is the responsible insurance carrier and a necessary party. Award AFFIRMED. (See, §87.10, Code of Iowa, and IAC 876-4.10. The insurance carrier does not need to be named, served, given an opportunity to defend, nor, it seems, to contest coverage, to be bound.)

AGENCY APPEAL

HOLLAND v. FINLEY HOSPITAL, 5024643 (5-19-10)

Defendants appeal the presiding deputy's findings that claimant sustained a whole body injury, the extent of permanent partial disability awarded, as well the assessment of a penalty. AFFIRMED IN PART and REVERSED IN PART.

The deputy's reliance on Dr. Hughes is not in error as the temporal relationship of claimant's increased complaints, the lack of any other cause within the record, claimant's credible complaints of significantly increased lumbar pain and impairment, and the detail within Dr. Hughes' opinion all support the finding that claimant's injury is a whole body injury. The deputy's finding that claimant sustained a whole body injury is affirmed.

The deputy observed claimant's ability to function at the arbitration hearing and thoroughly explained the basis for his award of permanent disability. The deputy's finding of a 60 percent industrial disability is affirmed.

Claimant has remained employed full time and continues to work significant overtime hours in her full duty employment position. Defendants had a reasonable basis to contest whether claimant sustained any functional loss. Penalty reversed.

COURT OF APPEALS

IOWA CONCRETE CUTTING v. RYAN, 0-043 / 09-1391 (4-21-10)

An employer appeals the district court's decision upholding an award of workers' compensation benefits to an employee, contending (1) the employee failed to prove that he sustained a permanent injury, (2) the commissioner erred in increasing the percentage of disability, and (3) the commissioner erred in awarding penalty benefits.  OPINION HOLDS:  The record contains substantial evidence to support the factual determination made by the commissioner that the employee sustained a permanent injury; however, substantial evidence does not support the commissioner's award of penalty benefits in this case because the matter was fairly debatable. AFFIRMED IN PART AND REVERSED IN PART.

COURT OF APPEALS

TYSON FOODS, INC. v. DeGONZALEZ, 0-134 / 09-1338 (4-21-10)

Tyson Foods, Inc. brought a workers' compensation subrogation action against Jamie DeGonzalez a/k/a Jaime Gonzales, the spouse of its injured employee. The district court granted summary judgment to Jaime based upon Tyson's failure to give a prior ninety-day notice to the employee pursuant to § 85.22(2) (2007). Tyson contends the district court erred because an e-mail Tyson sent to its employee's attorney substantially complied with the notice requirement set forth in section 85.22(2). OPINION HOLDS: Tyson's e-mail did not substantially comply with section 85.22(2). The e-mail did not refer to the employee's bringing an action against Jaime. At most, the e-mail stated Tyson would potentially bring a subrogation action. That was insufficient. Accordingly, we affirm the judgment of the district court. AFFIRMED

COURT OF APPEALS

WILLIAMS v. KW PRODUCTS, INC., (4-21-10)

Robert Williams was employed as a machinist for KV Products, Inc. Williams developed pain in the forearms of both arms, and was diagnosed with bilateral tendonitis of the forearms.  On July 10, 2006, Dr. Melissa Young Szalay reported, "[f]inal impairment is 0% for both upper extremities but he does have final work restrictions." After an administrative hearing, a deputy workers' compensation commissioner concluded Williams had a fifteen percent impairment to the body as a whole. The deputy rejected Williams's request for penalty benefits. The commissioner affirmed the deputy, finding the work restrictions were only prophylactic. The district court affirmed the commissioner's decision denying penalty benefits. Williams appeals. OPINION HOLDS: I. On May 29, 2008, the respondents served responses to Williams's request for admissions and admitted that Williams sustained permanent physical impairment from his work injury. We conclude that at least as of May 29, 2008, there was no longer an issue as to whether Williams sustained permanent physical impairment as a result of his work-related injury, and penalty benefits should be awarded for the delay in paying benefits after that date. II. Also, the commissioner's legal ruling was incorrect. Regardless of whether the restrictions were prophylactic, Williams was given work restrictions and this is inconsistent with the finding that he had a zero percent impairment rating.  Based on our interpretation of the law, we determine Dr. Young Szalay's opinion that Williams should have work restrictions is inconsistent with her opinion that he had a zero percent impairment rating. Because her opinions were inconsistent, the respondents should have investigated further before denying benefits to Williams. We therefore also remand to the district court for an order remanding to the commissioner for application of the correct rule of law and a determination of what additional amount, if any, of penalty benefits should be awarded for any delay occurring after July 10, 2006. REVERSED AND REMANDED.

COURT OF APPEALS

NEUMANN BROTHERS, INC. v. DERSCHEID, 0-036 / 09-1102 (4-21-10)

Denny Derscheid injured his back on October 11, 1995, while working for Neumann Brothers, Inc. On March 15, 2004, Derscheid filed a petition in arbitration seeking workers' compensation benefits. The employer claimed Derscheid's petition was untimely under § 85.26 (2003). The deputy workers' compensation commissioner determined there was no reliable evidence in the record that a notice of commencement of benefits had been filed, and concluded the statute of limitations was tolled under section 86.13. The deputy also found that the employer failed to show that benefits should be suspended under section 85.39 for a failure to submit to a medical examination. The deputy found the employer had abandoned treatment, and the employer should be responsible for treatment by Dr. Zipnick. The workers' compensation commissioner affirmed the deputy, except on the issue of unauthorized medical expenses. On judicial review, the court concluded the matter of Dr. Zipnick's medical care should be remanded to the commissioner for consideration of an authorization defense. The court affirmed the commissioner on all other issues. The employer appeals. OPINION HOLDS: I. We determine there is substantial evidence in the record to support the commissioner's factual finding that the employer had not filed a notice of commencement of benefits with the commissioner. Under section 17A.14(5), the deputy could use his experience in evaluating the evidence. Also, a letter sent by the employer did not constitute a notice of commencement of benefits. II. We determine the deputy did not abuse his discretion by ruling the record would be closed at the end of the administrative hearing. Once the record was closed, however, the deputy abused his discretion by considering evidence submitted with Derscheid's post-hearing resistance. We conclude the commissioner should reconsider the issue of the suspension of benefits under section 85.39 taking into consideration only the evidence presented at the hearing. III. We affirm the court's decision remanding this issue to the commissioner for a determination of whether the employer is reasonably liable for Derscheid's unauthorized medical expenses. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

COURT OF APPEALS

SIX v. DES MOINES COLD STORAGE, 0-113 / 09-0539 (4-21-10)

John Six appeals the grant of summary judgment in favor of his former employer, Des Moines Cold Storage Company, Inc. He asserts he was wrongfully terminated in retaliation for pursuing a workers' compensation claim. OPINION HOLDS: The evidence demonstrates that Cold Storage voluntarily paid Six substantial workers' compensation benefits, his termination was a result of excessive absenteeism, and there was no evidence Cold Storage's termination of Six was a product of retaliatory discharge. Finding no material facts in dispute, we affirm summary judgment. AFFIRMED.

AGENCY APPEAL

GRAY v. ROLLING WEST, LTD., 5024924 (4-16-10)

The presiding deputy correctly rejected the views of the treating physician that she could return to trucking driving without restrictions. Such a return to full duty work from just watching the surveillance video was not convincing. It was also inconsistent with claimant's testimony as to her limitations which the deputy found credible.

Also found credible was the reason given for not reporting for modified work. The letter offering "modified duty work" failed to explain the nature of the work, its location or how she would be able to attend her physical therapy sessions. Defendants suggest that this would be continued driving without loading or unloading, but again, her run was to and from California. Consequently, there was no actual offer of suitable work and claimant was reasonable in refusing it. Penalty was appropriate, as there was no reasonable showing that suitable work was offered. WALSHIRE

SUPREME COURT

BALLALATAK v. ALL IOWA AGRICULTURE ASSOCIATION, 08-1588 (4-16-10)

Appellant challenges district court grant of summary judgment to appellee on appellant's wrongful discharge claim. DISTRICT COURT JUDGMENT AFFIRMED.

A supervisor was fired after injecting himself into workers' compensation claims made by other employees. The trial court found his at-will status allowed the firing because no public policy protects an employee who internally advocates for the workers' compensation claim of another employee.

AGENCY APPEAL

POWERS v. SISTERS OF ST. FRANCIS, 5025637 (4-9-10)

The presiding deputy was not engaging in improper speculation as to the future when he stated that should she loose her current employment, she would have difficulty securing a comparable job in the competitive labor market. The presiding deputy was only stating that today she has lost access to the labor market in that given her lifting restrictions, a return to nursing aid work would be unlikely. The record amply supports such a finding given the unconvincing testimony of defendants' nursing director on whether she would hire a new person with claimant's restrictions. WALSHIRE

AGENCY APPEAL

YANOUSKIY v. O'HALLORAN INTERNATIONAL, INC., 5025693 (4-9-10)

Claimant contends on appeal that the deputy improperly made a medical opinion that the restricted duty would not be harmful. However, the deputy was simply pointing out that claimant failed to show that this work was harmful. The claimant, not defendant, bears the burden of proof.

Contrary to the argument of claimant's counsel in his brief, hearsay is admissible in administrative hearings, as it is a matter of the weight to be given such evidence, not its admissibility. WALSHIRE

AGENCY APPEAL

MEFFERD v. CARETECH, INC., 5025538 (4-9-10)

Defendants assert that §85.36(9) should have been used to calculate claimant's rate, which would then be the minimum provided by law. However, the fact that clamant admitted she was working a part-time job is not dispositive of the issue. That Code section applies only where an injured worker' earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality. In this case, there was no showing that claimant's hours were less than a full-time person who does household chores and errands for an elderly or disabled person in Dunlap, Iowa. There was no showing that there are any full-time persons in that line of industry at all in Dunlap or anywhere else. Consequently, the presiding deputy correctly used §85.36(6), a thirteen week average, to arrive at her average gross weekly earnings.

Since the enactment of the new wording in §85.34(2)(u), the Iowa legislature modified the fresh start rule previously adopted by the courts. Industrial loss is no longer a measure of claimant's disability from all causes after which we then apportion out non-work causes and leave in work related causes under the full responsibility rule. The percentage of industrial loss now is the loss of earnings capacity from what existed immediately prior to the work injury. This means that an already severely disabled person before a work injury can have a high industrial loss because the loss is calculated in all cases from whatever his earning capacity was just before the injury and what it was after the injury, not the loss as compared to a healthy non-disabled person. In other words, all persons start with a 100 percent earning capacity, regardless of any prior health conditions. WALSHIRE

AGENCY APPEAL

ARMSTRONG v. SECOND INJURY FUND OF IOWA, 5026632 (4-8-10)

The only preclusive effect of an agreement for settlement approved by this agency is upon the parties who entered into that agreement. Such an agreement does not establish the compensability of any injury or the extent of claimant's entitlement to disability benefits in a subsequent claim against the Second Injury Fund.

The Fund's sole argument on appeal is that this injury is not a qualifying loss because claimant has been diagnosed as suffering from RSD or CRSP as a result of that injury. Clearly, such a diagnosis and the inclusion of an injury to the sympathetic system would extend the injury into the body as a whole. However, the Fund is relying upon court precedents that have been recently overturned by the Iowa Supreme Court. The Court held that a loss of use to one hand, arm, foot, leg, or eye remains a qualified first loss for second injury fund benefits even if it occurs simultaneously with injuries to other parts of the body, including the body as a whole. The Court further held this is also true for the second injury to "another such member" even if that member was previously injured in a simultaneous loss with another body part, including the body as a whole. The involvement of the sympathetic system is irrelevant to the issue. WALSHIRE

COURT OF APPEALS

CEDAR RAPIDS COMMUNITY SCHOOL DIST. v. PEASE, 9-868 / 09-0724 (4-8-10)

The petitioners, Cedar Rapids Community School District and EMC Insurance Companies, appeal from the district court order affirming the agency decision to award workers' compensation benefits. They contend the district court erred in finding substantial evidence supports the workers' compensation commissioner's decision regarding causation and disability. They also contend the court erred in awarding payment of certain medical benefits. OPINION HOLDS: In viewing the record as a whole (Including an inaccurate history of depression given by Claimant and surveillance videos showing her to be significantly more mobile than she reported to her medical providers.) we cannot find the evidence is sufficient to establish a causal connection between Pease's right ankle injury in January 2005 and any worsening of back, left ankle, or depression symptoms. Because there is insufficient evidence to connect certain medical expenses with Pease's work injury, it was error to award her compensation for these expenses. Permanent total disability award, REVERSED AND REMANDED.

AGENCY APPEAL

TERHARK v. HOPE HAVEN, INC., 5027246 (4-7-10)

The presiding deputy indicated the views of Dr. McDevitt, who apparently did a records review only for the insurer, are not to be considered because there was no record made of his qualifications, or what records he reviewed to arrive at his conclusions. I would disagree with the presiding deputy in not considering exhibit C. That exhibit, the report signed by a "Dr. William McDevitt," should be considered as it was received into evidence without objection from claimant. However, I find the views from McDevitt unconvincing. There is no curriculum vitae or other evidence of the qualifications of McDevitt contained in the record presented at hearing. In their appeal brief, defendants assert that this person is a medical doctor who is licensed in Iowa. However, that is new evidence not offered at hearing and cannot be considered now on appeal.

When defendants use a medical opinion to shut off medical and weekly benefits to a clearly injured worker, the burden is placed on the defendants to show that they acted reasonably in relying upon that opinion. Defendants in this case did not even attempt to do so.

Defendants also contend that it can force an injured worker, to use his accumulated vacation time/pay during a period of disability caused by a work injury and the employer is thereby relieved of responsibility of paying weekly compensation benefits. They also appear to claim extra credit for the pay in excess of the compensation rate each work to applied to subsequent weeks. §85.38(2) provides a credit for benefits paid under a "group plan covering non-occupational disabilities" which would not pay benefits for absences due to work injuries. Sick, holiday and vacation pay programs are not group insurance plans to cover employees for disability.

Paid sick or vacation leave is usually a benefit accumulated over time earned from past work and to be used at the discretion of the employee in lieu of loss of pay when ill or injured for reasons unrelated to work. Consequently, it is a form of employee compensation which can be depleted with its use and only replaced upon additional work and accumulations. WALSHIRE

AGENCY APPEAL

TODDEN v. ORKIN, 5025401, 5025402 (4-7-10)

Defendant complains that the industrial award in this case is excessive for a person having a wealth of valuable managerial experience and who has returned to work with no loss of earnings.

However, claimant testified without contradiction due to his work related activity restrictions, he has been assigned to the back office with only a desk and computer. He has been told not talk to customers or co-workers. He cannot use the telephone. His computer cannot be used for emails or to access business records. He only occasionally does filing and minor make work tasks. Usually, he sits, reads or pecks on his computer doing nothing. He is told he is not a regular employee and no longer accrues vacation time. This evidence demonstrates that Orkin itself places little or no value on his managerial experience and on his ability to perform work tasks.

Special accommodation for an injured worker can be factored into an award determination to the limited extent the work in the newly created job discloses that the worker has a discerned earning capacity. To qualify as discernible, employers must show that the new job is not just "make work" but is also available to the injured worker in the competitive market. Orkin in this case has made no such showing. WALSHIRE

AGENCY APPEAL

BUSS v. IOWA SELECT FARMS, 5024622 (3-30-10)

Claimant testified without contradiction that the Short-Term Disability Form was not given to the employer until shortly after January 9, 2007. The form clearly alerted the employer to the potential of a workers' compensation claim. Even if given to this employer before the manifestation date, the employer's argument that it cannot constitute sufficient notice is not convincing. The form put the employer on notice of a potential injury claim. The claimant is not required to notify the employer of any specific manifestation date for that injury claim, which may be a number of potential dates in this case.

I disagree with the industrial disability assessment of only a 70%. Claimant specifically raised application of the odd lot doctrine in the hearing report submitted at hearing. When a worker makes a prima facie case of total disability by producing substantial evidence that the worker is not employable in the competitive labor market, the burden to produce evidence showing availability of suitable employment shifts to the employer.

Claimant demonstrated he was odd-lot and the claimant made a prima facie case for permanent, total disability. He is 63 years of age. He only has an 11th grade education. His current work restrictions prevent a return to any of his past employments, even truck driving, due to the need to change positions after 60 minutes. This claimant has been denied a return to the work for which he is best suited given, his age, education and work experience. Defendants failed to sufficiently go forward to show that suitable employment is available.

AGENCY APPEAL

NEAL v. ANNETT HOLDINGS, INC., 5024463 (3-29-10)

The presiding deputy obviously was not impressed with claimant's explanations for refusing the work. However, when healing period benefits, which are otherwise appropriate, are suspended, the burden is on the employer, not the worker, to show that the work offered was suitable. In this case, there is one fundamental difference between the driving job performed by claimant and the light duty work offered by defendant. Claimant would be home only every other weekend, not every weekend. The presiding deputy felt this difference was not significant. I disagree. It should not be necessary for an injured worker to uproot his residence and move to a different location. Being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter. Consequently, the work offered to claimant was not shown to be suitable and claimant was acting reasonably in refusing such work.

The basis for the claim of penalty is the suspension of healing period benefits. While I hold in this decision that the suspension of benefits was inappropriate, the issue is fairly debatable. Claimant did not give very clear answers to why he refused and did not communicate very well with his employer to inform the employer of those reasons.

Therefore, penalty benefits are denied. WALSHIRE

AGENCY APPEAL

LIPPSTOCK v. WOODWARD COMMUNICATIONS, d/b/a TELEGRAPH HERALD, 5021781, 5021782; 5021783 (3-29-10)

While the issue of the development of RSD is not fairly debatable, whether the associated permanent disability was due to the 2003 or 2004 injury is fairly debatable. Claimant clearly stated that she related her problems as a progressive condition that had continued to worsen from the beginning of her pain complaints. Consequently, although a penalty is appropriate, it should be lowered to a penalty of $3,500.00 to reflect the lower weekly rate associated with the 2003 date of injury. Defendants' assertion that a penalty is not appropriate as "claimant continued to work without restrictions after her surgeries in 2004 and continued to work for several more years without restrictions" is unpersuasive. The record is clear that as a result of her RSD claimant is significantly limited on a functional basis in her work activities, in her activities of daily living, and that she has permanent restrictions on her ability to perform as a worker.

AGENCY APPEAL

TURCIOS v. IOWA AG, L.L.C., 5025427 (3-25-10)

I can only remind the defendants that assessments of industrial disability involve a viewing of loss of earning capacity in terms of the injured workers' present ability to earn in the competitive labor market without regard to any accommodation furnished by one's present employer. WALSHIRE

AGENCY APPEAL

OCAMPO v. HEINZ USA, 5021162 & 5021163 (3-25-10)

After listening to claimant and opposing witnesses, the deputy clearly did not find claimant credible in finding that he in fact did not report back problems to his doctors or Heinz management for months after the first injury. I am unable to find that claimant suffered a traumatic or cumulative back injury either on injury date. The views of the physicians, Drs. Hughes and Milas, relied upon by claimant are unconvincing. Both are based upon an incorrect history. WALSHIRE

AGENCY APPEAL

MANNING v. ABCM CORPORATION d/b/a HARMONY HOUSE CARE CENTER, 5025391 (3-25-10)

In addition to the findings of the presiding deputy, I find that claimant was terminated as a result of culmination of various work rule infractions; not only the ones committed immediately prior to her termination, but also instances of past tardiness and absenteeism. Claimant testified that a portion of the tardiness and absences were due to her work related knee and back condition. The presiding deputy believed that testimony in finding that she cannot be employed due to that condition. Therefore, her work injury found herein was also a significant cause of her termination.

Claimant was not only unaware of the probable compensable nature of her work injury until after she left Harmony House on February 28, 2008, she also was not aware that her knee or back problems would have a permanent adverse impact upon her employment until after she left the employ of Harmony House. She had returned to her regular job without permanent restrictions and remained in that job until her termination. She did not receive permanent restrictions until after her termination WALSHIRE

AGENCY APPEAL

HEALY v. MERCY MEDICAL CENTER, 5024722 (3-25-10) 801 NW2d 865

Both sides present complicated, but reasonable methods to calculate rate using various techniques. However, if we are to approximate the earnings she would have been entitled had she worked the full pay period in which the employee was injured, as regularly required by defendant employer, the more rational approach is to simply multiply claimant's customary weekly hours to her hourly rate of $11.28 at the time of injury. Even though claimant may have worked more or less than 40 hours during some of the weeks before the injury due to unanticipated occurrences, her customary work week schedule should be used to calculate the rate of compensation. This customary work schedule rule takes precedence over any averaging of earnings over the 13 weeks prior to the injury set forth in §85.36(6).

Defendant-employer has indicated that her regular hours are 35 per week. WALSHIRE

AGENCY APPEAL

BROCKMAN v. DUN-PAR ENGINEERED FORMS CO., 5026766 (3-25-10)

I cannot agree that working in Iowa only four out of the last eight construction seasons constitutes usual or customary Iowa employment, especially where the vast majority of his working time in those four seasons was spent outside of Iowa. However, I might be inclined to agree with claimant's assertions on appeal if these past periods of employment with Dun-Par were only interrupted by seasonal layoffs. However, in this case, claimant left the employ of Dun-Par and worked for another employer prior to the last period of employment before his injury. Therefore, I must agree that his past periods of employment should not be utilized in the determination of whether claimant regularly worked in this state. WALSHIRE

AGENCY APPEAL

BUTZ v. FRONTIER NATURAL PRODUCTS COOPERATIVE, 5024797 (3-25-10)

Claimant has not looked for full time employment much since her retirement; however, this only explains her current unemployment, not her disability. She was forced to retire due to her work injury and is now a 66 year old factor production worker with rather significant restrictions that would not allow her to return to the work for which she is best suited given her age, education and a 38 year work history in production laborer work. It was appropriate to consider the convincing views of Dr. Manshadi and claimant's testimony concerning her disability. The 50 percent industrial award was quite appropriate. WALSHIRE

AGENCY APPEAL

DOBBE v. QUAKER OATS COMPANY, 5022347 & 5026063 (3-19-10)

The presiding deputy in this case suggested that claimant's pain complains were not a diagnosis and hinted that compensation is not available for pain complaints.

First, there was a diagnosis of degenerative disc disease, caused or contributed to by claimant's work. Further, pain or other subjective complaints, even without objective findings, can establish permanent impairment or permanent disability. This agency, has a long history of compensating pain complaints if they are found to be disabling. When there is evidence that the injury gave rise to severe pain requiring medical treatment, there is sufficient evidence to find that the pain is disabling. Disabling pain is compensable and treated as an unscheduled injury and this includes phantom pain from loss of a limb.

Claimant suffered a 100 percent loss of his earning capacity as a result of the work injury. WALSHIRE

AGENCY APPEAL

BORUFF v. BLUEGREEN CORP., 5022524 (3-19-10)

Inclusion of claimant's full-time earnings prior to her retirement and the start of her part-time employment would not be representative of her customary earnings.

Even though claimant may have had earnings from full-time employment before her retirement, her customary part-time work week consisted of only 12-16 hours a week and the use of §85.36(9) would greatly overstate her customary earnings at the time of her injury. Arriving at customary earnings takes precedence over use of other methods of calculating rate. WALSHIRE

AGENCY APPEAL

BUEGE v. LRT FABRICATING & STEEL SALES, 5026420 (3-19-10)

Defendants assert that restrictions based on mere pain cannot constitute a compensable disability.

Pain or other subjective complaints, even without objective findings, can establish permanent impairment or permanent disability. When an injury causes severe pain requiring medical treatment and there is sufficient evidence to find that the pain is disabling, the disabling pain is compensable and treated as an unscheduled injury and this includes phantom pain from loss of a limb. WALSHIRE

AGENCY APPEAL

HEMMELMAN v. WELLS DAIRY, INC., 5026501& 5026627 (3-19-10)

These two shoulder injuries occurred while working for the same employer, subsection (b) of §85.34(7) applies and due to the fact that both injuries occurred after passage of that section, the credit provisions apply. However, what defendant fails to realize is that the first thing you do under this Code section is to apply the full responsibility rule and hold the employer liable for the combined disability for both the first and second injuries. In this case, that would be a total liability for a 45 percent industrial loss. Presumably, the employer will pay the award for the first injury, so there should be a credit for this prior award pursuant to the second paragraph of §85.34(7)(b). As there was no showing that the first injury was a cause of the reduced earnings, the defendant shall receive full credit for the prior award and is left with a 30 percent award for the second, right shoulder injury. WALSHIRE

SUPREME COURT

SCHUTJER v. ALGONA MANOR CARE CENTER, 06-1748 (3-19-10)

The Court agreed that the correct test, for denial of benefits under §85.33(3), is (1) whether the employee was offered suitable work, (2) which the employee refused. If so, benefits cannot be awarded, as provided in section 85.33(3). The commissioner found Claimant was offered suitable work that she refused, and for that reason, she was not entitled to benefits as specified under section 85.33(3). The Employer was accommodating her modified duty restrictions during this time. Substantial evidence supported this conclusion.

To be entitled to benefits following MMI, Claimant had to satisfy her burden of proving that her medical treatment subsequent to the date of MMI, as well as any temporary or permanent disability, was causally related to the injury. The commissioner's finding on causation, that she did not, is supported by substantial evidence.

AGENCY APPEAL

BRANSON v. EATON CORPORATION, 5024632 (3-17-10)

Consideration of lay testimony, especially from the injured worker, for the purpose of assessing loss of use or disability is not only allowed, but required. 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. Actual loss of use which is to be evaluated is the loss of use of the member for the purposes for which the member is customarily used in 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.

A showing that claimant had no loss of his job or actual earnings does not preclude a finding of industrial disability. Loss of access to the labor market is often of paramount importance in determining loss of earning capacity, although income from continued employment should not be overlooked in assessing overall disability.

Release to return to full duty work by a physician is not always evidence that an injured worker has no permanent industrial disability, especially if that physician has also opined that the worker has permanent impairment under the AMA Guides. Such a rating means that the worker is limited in the activities of daily living.

This agency has seen countless examples where physicians have returned a worker to full duty, even when the evidence is clear that the worker continues to have physical or mental symptoms that limit work activity, e.g. the worker in a particular job will not be engaging in a type of activity that would cause additional problems, or risk further injury; the physician may be reluctant to endanger the workers' future livelihood, especially if the worker strongly desires a return to work and where the risk of re-injury is low; or, a physician, who has been retained by the employer, has succumbed to pressure by the employer to return an injured worker to work. Consequently, the impact of a release to full duty must be determined by the facts of each case.

There can be impairment with no industrial disability. Where the claimant has returned to work without formal restrictions and loss of earnings, the claim for permanent disability is rendered "fairly debatable." WALSHIRE

AGENCY APPEAL

DONOHOE v. PLASTIC PRODUCTS, INC., 5026029 (3-17-10)

An employer's special accommodation for an injured worker can be factored into an award determination to the limited extent the work in the newly created job discloses that the worker has a discerned earning capacity.To qualify as discernible, employers must show that the new job is not just "make work" but is also available to the injured worker in the competitive market.

While clamant may think she is employable, as aptly recognized by the presiding deputy, this is only wishful thinking and simply shows that her current unemployment status is not the result of any lack of motivation. WALSHIRE

AGENCY APPEAL

BROOKS v. COURTESY NISSAN & SECOND INJURY FUND, 5026297 (3-11-10)

This appeal only involves the denial of Second Injury Fund Benefits.

Under §85.64, the Fund's is liable only for the remainder of this disability after the full period provided by law for the payments by the employer. It matters not that the employer total liability is for losses other than the second qualifying loss. In this case, the employer was ordered to pay 155 weeks of permanent partial disability. The Fund is liable for the remainder of 95 weeks, less the compensable value of the first qualifying loss. According to Dr. Hughes, that prior loss due to polio is 60 percent of the left arm which has a compensable value of 150 weeks pursuant to §85.34(2)(m). Consequently, claimant is not entitled to Fund benefits.

AGENCY APPEAL

BUSENBARK v. RATHJE CONSTRUCTION COMPANY, 5024913 (3-9-10)

The presiding deputy was correct in awarding the medical expenses on the basis of the denial of liability for a work injury prior to the date the claim was accepted. Employers do not have the right to choose the medical care until an admission of liability for a work injury. WALSHIRE

AGENCY APPEAL

BERGELL v. QWEST COMMUNICATIONS, INC., 5023111 (3-9-10)

Defendant asserts that the claim for this injury, was already litigated in the prior proceeding and is barred by claim or issue preclusion. A party is not allowed to try issues piecemeal but must raise all issues pertinent to a given claim at once. Defendant complains that the only difference between two petitions for Claimant's back injuries is the date of the injury. While that may be correct, this difference is signficiant. There is no requirement under our rules or for that matter under the IRCP that a claimant must assert all claims he or she may have against a defendant in a single proceeding.

There is no reason that the claimant after receiving the first arbitration decision could not pursue a timely claim for the intervening event. Whether or not there was a second work injury or a sneezing event the precipitated the surgery and resulting disability was the fighting issue in this case, an issue quite different that those in the prior claim, and which clearly was not previously litigated. Therefore, this claim is not barred by either doctrine of claim or issue preclusion.

Claimant carried the burden of proof and demonstrated by the greater weight of the evidence that he suffered a second injury arising out of and in the course of employment.

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 workers earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his or her employment prior to a work injury, the impact of that impairment or impediment upon that workers earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

Many among the Iowa workers' compensation community are confused by the provisions of §85.34(7). The first subparagraph (1) states that while employers shall compensate employees for all of an employees work related disability, they are not liable for disability caused by another employer or for non-work related disabilities. The remaining subparagraphs provides for credit against an employer liability in the event of successive injuries while working for the same employer. Consequently, there appears to be ambiguity between §85.34(7)(1) and adoption of the fresh start rule.

There is no longer any apportionment of an award of industrial disability due to prior disabilities because we now calculate industrial disabilities under the fresh start rule where everyone starts with 100 percent. §85.34(7) does not provide any exception to the 85.34(2)(u) calculation, it simply limits the application of the full responsibility rule to successive work related disabilities with the same employer. WALSHIRE

AGENCY APPEAL

PLAGMANN v. SQUARE D COMPANY, 5025267 (3-8-10)

In his post hearing brief and his appeal brief, Plagmann quotes from an internet web site relative to one of the experts involved in this case. His briefs also reference in detail a 2002 article published under the auspices of the American College of Occupational and Environmental Medicine. In addition, Plagmann cites studies published by the National Institute for Occupational Safety and Health and the Canadian Centre for Occupational Health and Safety. Neither study was placed into evidence at the time of hearing while they are quoted by experts in reports submitted into evidence. All are utilized to challenge the opinions of defendant's expert witness. This is not proper procedure to cross-examine an expert or to introduce new evidence into a contested case proceeding under our statutes and rules. Claimant had the opportunity to use these materials on cross-examination of this expert, but chose not to do so.

Comparison of credentials is important in this case. While Defendants' expert, is board certified in otolaryngology, his credentials and professional publications still pale in comparison to credentials and publications of Claimant's expert in the field of occupational hearing loss and tinnitus. He has been director of audiology and professor at a prestigious teaching institution in this state, the University of Iowa Hospitals and Clinics since 1987.

The biggest impact on his earning capacity was his voluntary retirement from Square D and was not shown to have been caused or precipitated by his tinnitus. However, given the testimony of claimant and his wife at hearing, he has not withdrawn from the workplace. He has applied for work in the area of his new residence in Florida and occasionally works part-time for his wife to fill in for an ill worker. There is little question that his hearing loss has greatly impacted his ability to work, but that is not what is to be compensated in this case. The extent that his tinnitus adversely impacts his earning capacity has not been shown to be severe. However, his doctor has imposed restrictions on the type of work he can safely perform. I find that Claimant has suffered a mild 10 percent loss of his earning capacity from his work related tinnitus.

The presiding deputy denied reimbursement for Claimant's doctor's report under §85.39. That was correct. However, reimbursement for the cost of the report can now be fully obtained as a cost. Previous agency decisions limiting recovery of the costs of medical reports to $150 pursuant to IAC 876-4.33 are no longer valid. The reasonable fees charged to obtain such reports are now fully reimbursable. WALSHIRE

SUPREME COURT

BELL BROTHERS HEATING AND AIR CONDITIONING v. GWINN, 07-0221 (3-5-10)

Employer seeks further review of court of appeals decision affirming district court's affirmance of an award of workers' compensation benefits to an employee. DECISION OF COURT OF APPEALS VACATED; DECISION OF DISTRICT COURT REVERSED AND CASE REMANDED.

We primarily consider the proof required by the employee to establish a claim for benefits and expenses on account of unauthorized medical care.

We do not believe the statute can be narrowly construed to foreclose all claims by an employee for unauthorized alternate medical care solely because the care was unauthorized. Instead, the duty of the employer to furnish reasonable medical care supports all claims for care by an employee that are reasonable under the totality of the circumstances, even when the employee obtains unauthorized care, upon proof by a preponderance of the evidence that such care was reasonable and beneficial. In this context, unauthorized medical care is beneficial if it provides a more favorable medical outcome than would likely have been achieved by the care authorized by the employer. The allocation of this significant burden to the claimant maintains the employer's statutory right to choose the care under §85.27(4), while permitting a claimant to obtain reimbursement for alternate medical care upon proof by a preponderance of the evidence that such care was reasonable and beneficial.

The employer's right to control medical care attaches under the statute when the employer acknowledges compensability following notice and furnishes care to the employee, and it remains with the employer under the statute until the employer denies the injury is work-related, withdraws authorization of the care, or until the commissioner orders alternate care. Thus, a denial of compensability that results in the employer's loss of the right to choose the medical care is a denial that the claimed injury arose in the course and scope of employment. A dispute between the parties as to the nature or extent of a physical or mental disability arising from an injury for which the employer has acknowledged liability during the time medical care is controlled by the employer, is not a ground, standing alone, for a determination that the employer has forfeited its right to select the medical care.

Although an employee may assert a claim for expenses of the unauthorized medical care, the employee must prove the unauthorized care was reasonable and beneficial under all the surrounding circumstances, including the reasonableness of the employer-provided care, and the reasonableness of the decision to abandon the care furnished by the employer in the absence of an order from the commissioner authorizing alternate care. Consistent with the rationale for giving the employer control over medical care, the concept of reasonableness in this analysis includes the quality of the alternate care and the quality of the employer-provided care.

Here there was no substantial evidence in the record to support a finding that the alternate medical care claim was reasonable and beneficial under all the circumstances. Three reasons primarily support this conclusion:

First, there was no substantial evidence that the results of the surgery were beneficial.

Second, there was no evidence that the Claimant's physician's diagnosis was in fact reasonable or accurate.

Third, under the factual scenario presented here, the Employer was denied an opportunity to review the ultrasound study and the reports from the surgery performed, crucial evidence bearing upon whether the alternate care was reasonable in this case. Defendants' ability to assess and litigate the reasonableness of the alternate care for which Claimant sought reimbursement and its right to control the medical care were consequently undermined.

Without substantial evidence to support a finding that the unauthorized medical care was reasonable and beneficial under the totality of the circumstances, there was no evidence to support a finding that the temporary disability on account of the unauthorized casting and surgery was causally related to the injury.

To establish a claim for alternate medical care, an employee must show that the medical care furnished by the employer is unreasonable.

The arbitration hearing that served as a basis for this appeal was premature. Not only was Claimant's claim for permanent partial disability benefits premature, but so were his claims for temporary benefits and the cost of the unauthorized medical care. These claims can only be properly evaluated when Claimant has reached maximum medical improvement, and the results of the unauthorized surgery are known.

SUPREME COURT

IBP, INC. v. BURRESS, 07-1887 (3-5-10)

Employee challenges district court's determination that his brucellosis was an occupational disease and not an injury. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED TO DISTRICT COURT WITH INSTRUCTIONS TO REMAND TO INDUSTRIAL COMMISSIONER.

Despite the fact that brucellosis is discussed in Chapter 85A, the record supports the conclusion Burress probably acquired brucellosis from contact with infected hog blood. IBP did not present any evidence indicating Burress had contracted brucellosis in a manner consistent with the definition of occupational disease in §85A.8. It simply relied on the reference to brucellosis in §85A.11. His claim for benefits was properly brought under Iowa Code Chapter 85 (2009).

Nonetheless, because the commissioner relied on an erroneous date to trigger the commencement of the ninety-day period for giving notice of a claim under chapter 85, we remand this case to the district court with instructions to remand to the commissioner for a new determination of the issue of Burress' compliance with the ninety-day notice requirement.

The discovery rule can be applied to both the statute of limitations and the ninety-day notice requirement. IBP bore the burden to prove non-compliance with the statute of limitations or ninety-day notice provision and Burress bore the burden to establish any discovery rule exception. Burress established the discovery rule applies here because the nature of the initial traumatic event, the entry of infected hog blood into his body, was not such that Burress should have realized it produced a compensable injury. Burress was first diagnosed with brucellosis in December 2003 and filed a workers' compensation claim against IBP in January 2005, well within the two-year statute of limitations even if we assume he first became aware of the connection between brucellosis and his work at IBP at the time of his diagnosis.

IBP argues, however, that Burress became aware of the compensable nature of his brucellosis when he was first diagnosed on December 16, 2003, and that this was more than ninety days prior to the date on which IBP received notice. IBP received notice of a potential claim by letter on April 13, 2004. The ninety-day notice period does not begin until Burress became aware of the compensable nature of his injury. The agency applied the discovery rule and held the ninety-day notice requirement did not begin to run until December 8, 2004, the date on which Dr. Nauseef wrote a letter asserting the causal link between brucellosis and IBP. This determination is not supported by substantial evidence because Burress was aware of the potential connection earlier, as indicated by the April 13, 2004 letter from Burress' attorney alerting IBP to the potential claim. Because we have no factual findings by the commissioner in this regard, we remand to the commissioner for a determination of whether Burress complied with the ninety-day notice statute.

The rule providing a mechanism for a cross-appeal conflicts with the rule for defining issues by the briefs because Burress would have been required to file a cross-appeal before learning of the issues designated in IBP's brief. Although the language of IAC 876-4.28(7) could be interpreted to require Burress to file a cross-appeal, given the disparity in timing when a party such as IBP files a generalized and comprehensive notice of appeal, it was not improper for the commissioner to consider an additional issue.

Because Burress contracted brucellosis from a traumatic event, it is an injury, not an occupational disease, and his claim is not barred under the statute of repose applicable to occupational disease claims. We hold the commissioner's factual finding regarding application of the discovery rule to the ninety-day notice provision was unsupported by substantial evidence. We remand to the district court with instructions to remand the case to the commissioner for reconsideration of the ninety-day notice provision on the record previously made. Additionally, (1) Burress filed his claim within the statute of limitations governing work-related injuries; (2) it was not an abuse of discretion for the commissioner to consider the extent of Burress' disability on intra-agency appeal, and substantial evidence supported an award of permanent total disability; and (3) the award of penalty benefits was improper because IBP had a reasonable basis to contest Burress' entitlement to benefits.

SUPREME COURT

ROJAS v. PINE RIDGE FARMS, L.L.C., 08-0554 (3-5-10)

Dependents of a deceased employee appeal a district court decision affirming the allocation of workers' compensation death benefits. DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.

We find that §85.31(5), requiring a reduction in benefits for nonresident aliens, is neither unconstitutional nor does it conflict with §85.51. We further find the commissioner erred when he allocated a portion of the benefits to Yolanda, the mother of Raul's Mexican children. Although the commissioner was correct when he allocated the death benefits equitably rather than equally, he also erred by considering the effects of the reduction contained in §85.31(5) for nonresident aliens when he allocated the benefits.

AGENCY APPEAL

FLORES v. TYSON FOODS & SECOND INJURY FUND OF IOWA, 5026125, 5026126, 5026127 & 5028349 (2-26-10)

The reasoning in Kratzer lays to rest any assertion that the Supreme Court will read the phrase "another such member" within the context of other parts of the Second Injury Fund Act or the Iowa workers compensation statute overall when the Court is confronted with the issue in this case; namely, whether the Second Injury Fund is liable for residual loss of earning capacity a claimant may have after the same members have been sequentially injured in both a first and a second single accident. Clearly, the Court will hold that first and second injuries to the same members in separate single accidents will result in Second Injury Fund liability. WALLESER

AGENCY APPEAL

DANIELS v. BLACK HAWK COUNTY, 5023419 (2-25-10)

While a treating physician is not to be given more weight as a matter of law, what can be considered is his far greater familiarity with claimant's clinical presentations over a number of months and claimant's complaints to him during that time. He is in a much better position to diagnose a condition and opine as to the cause of that condition. Claimant's complaint that the treating physician failed to examine her immediately before issuing his last opinions and that he did not discuss her history in those opinions are unfounded. The treating physician examined her many times during his treatment and discussed histories provided to him by her in his office notes.

While I agree that an opinion authored by an party's attorney is a concern, that aspect was not sufficient to reject the doctor's opinion. Denial of benefits AFFIRMED. WALSHIRE

AGENCY APPEAL

FLOWERS v. PELLA CORPORATION, 5024401 (2-25-10)

Claimant chose to take FLMA leave in 2004 when an absence from work was mandated by her doctors. All paperwork submitted to Pella for the FLMA and after that time for a period of three years concerning absences needed for treatment and numerous work restrictions failed to indicate that this back problem was work related. Indeed, in March 2006, she applied for and received Pella short-term disability benefits in which she certified that her neck and back problems were not work related. Even after she was laid off at Pella in April 2007 due to her work restrictions, a time when she clearly knew that her back condition was work related and would permanently impact her employment, claimant made no effort to inform Pella that her back or neck condition was work related until she served the original notice and petition on Pella in December 2007, well beyond the 90 days notice requirement §85.23. The failure to act after she was laid off cannot be justified then by a fear of losing her job. Denial of benefits AFFIRMED. WALSHIRE

AGENCY APPEAL

TOWNSLEY v. DEPARTMENT OF TRANSPORTATION, 5022273 (2-25-10)

Claimant was obese before this injury and quite susceptible to this kind of injury and disability and this obesity has hindered recovery. However, one of the most fundamental concepts in our worker's compensation system is that an employer takes an employee "as is" subject to all of his or her frailties and susceptibilities to injury caused by any pre-existing physical or mental condition. Permanent total disability AFFIRMED. WALSHIRE

COURT OF APPEALS

HUFFMAN v. AADG, INC., 0-093 / 09-1007 (2-24-10)

Plaintiff appeals a district court order granting summary judgment to AADG, Inc., his employer. He claims that because he filed two workers' compensation claims, he was not allowed to return to work for a period of time, was reassigned to jobs with lower pay, and was subjected to a hostile work environment. He alleges that this conduct was retaliatory and actionable under Iowa law. OPINION HOLDS: I. Even assuming a worker who has been constructively discharged for filing a workers' compensation claim has a cause of action in Iowa, no reasonable factfinder could conclude that Huffman has been constructively discharged. II. We need not address whether an employee has an actionable claim when an employer demotes him or her in retaliation for filing a workers' compensation claim, because Huffman was not demoted. Here, Huffman challenges his employer's failure to find him work during the period when he was receiving temporary disability benefits. Huffman does not, however, question the adequacy of the benefits he received. In short, Huffman seeks to establish a new common law claim for "failure to take an employee off temporary disability." We believe this new claim would improperly intrude upon the workers' compensation system, and is foreclosed by ¬ß85.20 (2007). III. Huffman's claim that he was subjected to harassment for having filed workers' compensation claims is squarely foreclosed by Below v. Skarr, 569 N.W.2d 510 (Iowa 1997).

COURT OF APPEALS

HODSON V. WYCOFF IND., 9-1058 / 09-0914 (2-24-10)

Employee appeals from a district court judicial review ruling affirming the denial of additional permanent benefits in a review-reopening proceeding. OPINION HOLDS: We reverse and remand for the commissioner to determine, on the record already made, whether claimant has met the newly-clarified burden of proof enunciated in Kohlhaas v. Hog Slat, Inc., ___ N.W.2d ___ (Nov. 24, 2009).

AGENCY APPEAL

SHEA v. MC AND R POOLS, INC., 5019876 (2-22-10)

A denial supportable at the time it is made may later lack a reasonable basis in light of subsequent information. Defendants were responsible to pay all accrued benefits as of the date that the claim was no longer fairly debatable. As defendants failed to do so the amount of the penalty as assessed by the presiding deputy is also affirmed.

SUPREME COURT

JACOBSON TRANSPORTATION COMPANY v. HARRIS, 08-0065 (2-12-10)

Employee seeks further review of court of appeals' decision reversing workers' compensation commissioner's calculation of a weekly compensation rate and which weeks should be used to calculate average weekly wage. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

Customary earnings does not turn on a determination of what earnings are guaranteed or fixed; rather, it asks simply what earnings are usual or typical for that employee. An employee need not justify the variance with a particular explanation.* The amount of the variance alone, by the magnitude of its departure from the usual earnings of the employee, may suffice to justify the exclusion of a week's earnings from the weekly rate calculation. Even an employee whose wages fluctuate can have an unusually low or abnormally high week of output and resulting earnings. The legislature clarified its intent in the 2000 amendment to have atypical weeks excluded from the calculation, it added the language to § 85.36(6) which specifically addresses the calculation of weekly earnings for employees paid daily, hourly, or by output. An employee who is paid by output (truck driver's miles driven), is likely to have fluctuating earnings.

A week of zero earnings is not customary. Determination of whether wages are customary under the circumstances is a matter expressly committed to the discretion of the commissioner.

The commissioner's decision that compensation during three low weeks was exceptionally low, while the high weeks were not unusually high when compared to the earnings history was not arbitrary or unreasonable in this case. The legislature has provided protection to the employer from the risk of rate calculations based on weeks of unusually high earnings by excluding overtime and premium pay from average weekly wage computations.

*Note, the reason for nontypical wages is relevant if the employee was absent from work for reasons personal to the employee. § 85.36(6) provides for a different method of addressing a nontypical week of earnings due to personal reasons. In that case, the weekly wages must be replaced with the wages the employee "would have earned had the employee worked when work was available" to the employer's workers performing in a similar occupation.

COURT OF APPEALS

COOPER v. KIRKWOOD, 9-894 / 08-1052 (2-10-10)

Cooper appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. On appeal, Cooper's employer, Kirkwood Community College, and its insurance carrier, IMPAC, assert the district court did not have subject matter jurisdiction over Cooper's petition for judicial review and hence the appeal should be dismissed. OPINION HOLDS: We find Cooper's petition for judicial review was not filed according to the requirements of Iowa Code chapter 17A (2005). In the present case-Kirkwood's application for rehearing was pending when Cooper petitioned for judicial review. Therefore, the district court did not have subject matter jurisdiction over the petition  We reverse and remand for the district court to enter an order of dismissal. DISSENT ASSERTS: I would conclude that Cooper's petition for judicial review was timely and satisfied the procedural prerequisites of § 17A.19. Accordingly, I would reach the merits.

COURT OF APPEALS

PENFORD PRODUCTS v. AHLBERG, 9-1023 / 09-1162 (2-10-10)

Ahlberg appeals from the district court's ruling on judicial review, which reversed the Iowa Workers' Compensation Commissioner's award of penalty benefits assessed against Penford Products Company and its insurer, Zurich American Insurance Company. OPINION HOLDS: It is the employer's burden to assert facts upon which the agency could reasonably find the claim was "fairly debatable." As the commissioner determined, Penford failed to present such facts. We reverse the district court's decision, as the agency's decision was supported by substantial evidence and not based on an erroneous application of the law. 

COURT OF APPEALS

SWIFT & CO. v. FREEMAN, 9-980 / 09-0808 (2-10-10)

Employer appeals from a district court judicial review ruling affirming the workers' compensation commissioner's benefit award. OPINION HOLDS: Substantial evidence supports the agency's determination claimant suffered a whole body injury. Substantial evidence supports the agency's determination claimant is permanently and totally disabled. Freeman's altered gait developed from the left leg injury and aggravated his underlying degenerative arthritis in the left hip and low back, making those conditions a part of the injury. The agency's order for alternative medical care is appropriate. Offering no care is the same as offering no care reasonably suited to treat the injury.

SUPREME COURT

SECOND INJURY FUND OF IOWA vs. KRATZER, 06-0542 (1-29-10)

Does the first injury to Kratzer's Right Leg Qualify as a First Injury Under Iowa Code § 85.64? The resolution of this issue is controlled by our decision filed in Gregory v. Second Injury Fund, ____ N.W.2d ____ (Iowa 2010). See, below. For the reasons stated in Gregory, we conclude the 1994 injury to Kratzer's right leg does qualify as a first injury for Fund purposes.

It is beyond dispute that an injury qualifies as a second injury for Fund purposes if it (1) follows a previous disability to an enumerated member and (2) results in "the loss of or loss of use of another such member." Iowa Code § 85.64. The meaning of the phrase "another such member" is subject to at least two reasonable interpretations. A reasonable person could read the phrase within the context of the other parts of the statute to suggest the General Assembly intended to impose liability on the Fund only if the second disabling injury occurred in an enumerated member that was not previously impaired. On the other hand, the phrase could also be reasonably understood as an expression of the General Assembly's intention that any disabling injury to an enumerated member, including one that was previously partially disabled, may qualify as a second injury so long as the member in question is not the same member upon which the claimant relies for proof of the first qualifying injury. Upon consideration of well-established principles of statutory interpretation, we conclude the latter interpretation is the correct one.

AGENCY APPEAL

SMITH v. MIDWEST MANUFACTURING CO., 5025093 (1-25-10)

In affirming the findings of the presiding deputy the undersigned is unwilling to reject the medical opinions by Robert C. Jones, M.D., based upon a generalization of his history of medical opinions contained outside of this record. The undersigned is unaware of what medical opinions have been presented in other cases or opinions that may have been prepared in cases which never reached this agency.

SUPREME COURT

GREGORY vs. SECOND INJURY FUND OF IOWA, 07-1764 (1-22-10)

Gregory contends the commissioner erred in concluding her 2000 left-hand injury cannot qualify as a first injury under section 85.64. The Fund asserts the commissioner correctly concluded Gregory's first injury resulting in impairment to more than one member enumerated in the statute, considered for purposes of workers' compensation together with impairment to Gregory's shoulders in determining disability to her body as a whole, cannot qualify as a first injury under the statute.

The Fund's salutary purpose is accomplished by an award of compensation after a second qualifying injury to "an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye." Iowa Code § 85.64. Thus, Gregory's entitlement to benefits from the Fund is dependent upon proof of the following propositions: (1) she sustained a permanent disability to a hand, arm, foot, leg, or eye (a first qualifying injury); (2) she subsequently sustained a permanent disability to another such member through a work-related injury (a second qualifying injury); and (3) the permanent disability resulting from the first and second injuries exceeds the compensable value of "the previously lost member."

Given our decision in George that a subsequent injury to an enumerated member is not disqualified as a second injury merely because it occurred simultaneously with an injury to another enumerated member, we believe it would be senselessly inconsistent to conclude a first qualifying injury cannot likewise occur simultaneously with an injury to another such member.

Moreover, the fact that the physical impairment of Gregory's left hand was presumably considered by the parties when they negotiated a compromise special case settlement of Gregory's claim for the first injury will not impede the calculation of the Fund's credit for the compensable value of the partial loss of that enumerated member.

In determining the Fund's liability under section 85.64, the commissioner shall consider only the extent to which Gregory's earning capacity was diminished by the combined effect of the 2000 and 2002 losses to her enumerated extremities. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

COURT OF APPEALS

WEITZ CO. v. JOHNSON, 9-844 / 09-0020 (1-22-10)

Johnson appeals the district court's ruling on Weitz Company's petition for judicial review reversing the workers' compensation commissioner's final agency decision awarding workers' compensation post-hearing penalty benefits to Johnson. Johnson argues the district court (1) employed an erroneous legal standard and (2) erred in concluding the denial of benefits was fairly debatable. OPINION HOLDS: We find that substantial evidence does not support a finding of unreasonable delay during the period of time at issue. We agree with the district court that the commissioner's decision to award penalty benefits in this case should be reversed. We further find that the district court did not use an erroneous legal standard to reach this conclusion. We therefore affirm the conclusion of the district court, and we remand this case to the district court for entry of an order directing the commissioner to deny Johnson's request for penalty benefits. 

COURT OF APPEALS

QUAKER OATS CO. v. MAIN, 9-896 / 08-1507 (1-22-10)

Main appeals from a district court judicial review ruling reversing in part the appeal decision of the workers' compensation commissioner. He claims the court erred in (1) determining that his constitutional challenge to § 85.34(7) (2005) under the single-subject requirement of article III, section 29 of the Iowa Constitution was untimely and (2) reversing the commissioner's determination that § 85.34(7) was inapplicable to his workers' compensation claim because his prior work injuries occurred before the statute's effective date. OPINION HOLDS: We agree with the district court that Main's single-subject challenge to section 85.34(7) is not timely because it was made after the statute was codified. We further agree with the court that the agency erred in determining the statute did not apply to Main's claim due to its effective date.  The judgment of the district court reversing the agency's determination that § 85.34(7) did not apply to Main's claim is therefore affirmed. 

AGENCY APPEAL

CODER v. HACAP, INC., 5021107 (1-6-10)

The presiding deputy correctly did not apply the credit provisions of §85.34(7)(b). This agency has previously held that §85.34(7) is only applicable if both the work injury at bar and the prior disability occurred prior to the enactment of that section on September 14, 2004. Steffen v. Hawkeye Truck & Trailer, File No. 5022821 (App. September 9, 2009)

However, what the presiding deputy failed to include in her analysis is that under the Steffen decision, this agency is to apply the old full responsibility rule. This means that we are to include in any award, not only the disability caused by the shoulder in this case, but the disability caused by the prior back injury. However, I cannot agree that the prior back injury resulted in a 45 percent industrial loss. The prior decision was erroneously based on claimant's testimony that was recanted in this proceeding. Therefore, I conclude since he returned to full duty at HACAP without further problems or loss of pay, claimant suffered no industrial loss as a result of the 2000 work injury to his back. Therefore, his total entitlement under the full responsibility rule remains at 30 percent.

COURT OF APPEALS

PELLA CORPORATION v. SHARP, 9-816 / 09-0502 (12-30-09)

Pella Corporation challenges the district court's affirmance of the workers' compensation commissioner's ruling that Tyler Sharp's biceps tendon rupture on November 27, 2005, was related to his previous cumulative injury to his right arm as of August 30, 2001. OPINION HOLDS: Substantial evidence supports the commissioner's finding that Sharp's 2005 injury was related to his 2001 work-related injury. Also, Pella argues that because it had not performed any evaluation of impairment following the biceps tendon rupture (because it denied liability for injury and thus would not authorize treatment), there is no predicate evaluation with which the employee can disagree and therefore it cannot be required to cover the evaluation. Pella argues it "arguably" is, "obligated to provide reimbursement for a ¬ß85.39 IME only as a result of those prior ratings, but only with respect to conditions caused by the August 30, 2001 work injury which those impairment ratings addressed, no part of which pertained to the biceps tendon." Pella contends the commissioner was required to apportion its obligation, ordering payment "only for the expenses related to [Dr. Stoken's] evaluation of impairment regarding conditions for which Dr. Schurman and Dr. Reagan provide impairment ratings." Pella offers no authority for its claim that the commissioner was required to make such an apportionment, and we find none. We find no error. The commissioner did not err in ordering Pella to reimburse Sharp for the evaluation by Dr. Stoken once the commissioner determined Pella's liability. 

AGENCY APPEAL

WILSON v. NASH FINCH COMPANY, 5022819 (12-30-09)

The presiding deputy commissioner found that this claim has been denied and defendants are not entitled to require claimant to attend an IME pursuant to §85.39. The defendants do not have a remedy of suspension of benefits for failure to attend an independent medical examination.

Defendants appealed asserting that the statute does not support the deputy's finding and that the finding does not comport with the obligation of employer's to conduct an ongoing investigation of a claim. Furthermore, defendants make a compelling argument that employers can be prejudiced in the discovery process in denied workers' compensation cases if left without a remedy for compelling attendance at an examination.

Claimant was notified by a faxed letter that defendants had scheduled an examination for him. Claimant's counsel notified defendants' counsel that as liability is denied in this case defendants are not entitled to a § 85.39 examination and that he would advise his client not to attend the examination. Defendants' counsel informed claimant's counsel that that she disagrees that § 85.39 requires an employer to admit liability before an employee must submit for examination. Counsel further noted that IRCP 1.515 provides for examination of an injured worker in situations where a party's physical condition is in controversy.

Held, there are two are different methods for obtaining a similar result with different sanctions for failure to comply. The method of compelling an examination by use of rule 1.515 requires the compelling party to show good cause for the examination and provide notice to the injured worker of the time, place, manner, conditions, scope of the examination, and the person or persons by whom it is to be made. The method of compelling an examination by use of ¬ß85.39 places no such requirements on requests for examination other than that the requests be reasonable. The sanction under § 85.39 may be suspension of compensation for the period of the refusal while multiple sanctions are available under IRCP 1.517(2) for failure to comply with an order to submit. It is therefore affirmed that as there is no conflict between section 85.39 and I.R.C.P. 1.515, both are operative in workers' compensation cases.

Defendants need not admit liability for I.R.C.P. 1.515 to apply. However, defendants did not use this rule, therefore claimant had no obligation to attend the scheduled IME.

AGENCY APPEAL

RIZVIC v. BEEF PRODUCTS, INC., 5025025 (12-29-09), and PETERSON v. SWINE GRAPHICS ENTERPRISES, L.P., 5024084 (12-29-09)

The fresh start rule is based upon the premise that a workers' earnings in the competitive labor market at the time of a work injury are reflective of that workers' earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his or her employment prior to a work injury, the impact of that impairment or impediment upon that workers earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

Industrial loss now is no longer a measure of claimant's disability from all causes after which we then apportion out non-work causes and leave in work-related causes under the full responsibility rule. The percentage of industrial loss now is the loss of earning capacity from what existed immediately prior to the work injury. This means that an already severely disabled person before a work injury can have a high industrial loss because the loss is calculated in all cases from what ever his earning capacity was just before the injury and what it was after the injury, not the loss as compared to a healthy non-disabled person. In other words, all persons, start with a 100 percent earning capacity, regardless of any prior health conditions.

AGENCY APPEAL

CALHOUN v. JOHN DEERE DAVENPORT WORKS, 5022715 (12-21-09)

Defendant's attempts to exclude late medical reports were summarily rejected and defendant was not afforded the opportunity to provide rebuttal evidence.

While a presiding deputy is granted significant latitude in accepting or rejection exhibits for admission into the record, it is clear that defendant has been prejudiced in this instance. In essence, claimant has been allowed to ignore the discovery deadline set by the hearing assignment order and thereafter ignore the amended deadline set by the deputy during the course of the hearing. After claimant failed to comply with both deadlines, defendant was not granted the opportunity to rebut. Defendant has been unfairly prejudiced by claimant's conduct.

This matter is remanded to the presiding deputy who shall either exclude the late report or hold the record open for defendant to secure and file rebuttal evidence from its own medical expert. If the record is held open to allow defendant to obtain a further medical opinion, the costs to do so shall be taxed to claimant's counsel. Once the presiding deputy closes the record a remand decision shall be made on the record.

COURT OF APPEALS

FRONTIER NATURAL PRODUCTS v. BUTZ, 9-947 / 09-0822 (12-17-09)

The employer and insurer appeal from the district court's decision on judicial review that affirmed the agency's award of workers' compensation benefits, contending the agency erred in concluding the claimant provided timely notice of her injury by adding an additional factor to the analysis. OPINION HOLDS: From our review of the record, our conclusions are the same as those of the district court. The phrase "probable compensable character" is not synonymous with an employee's recognition of the "seriousness" of the injury as the appellants claim. The appellants argument that the agency erred in adding an additional factor to the analysis is without merit. The agency correctly understood the law to require knowledge of all three "triggering factors." The claimant provided timely notice.

COURT OF APPEALS

THE TRAVELER'S INDEMNITY COMPANY v. D.J. FRANZEN, INC., 9-847 / 09-0040 (12-17-09)

Insurer appeals from the district court's order granting over-the-road trucking company's motion for summary judgment on assigned risk plan rate claim seeking to classify contract drivers as employees. OPINION HOLDS: I. The determination of whether an owner-operator is an independent contractor for purposes of workers' compensation insurance is governed by §85.61(13)(c), Code of Iowa. II. The doctrine of exhaustion of administrative remedies is an affirmative defense that cannot be raised by a plaintiff to bar a defendant from presenting a defense in a suit for money damages. III. The district court properly determined the drivers at issue were independent contractors, and excluded from Franzen's workers' compensation insurance policy.

Vacated by Supreme Court on rehearing above.

AGENCY APPEAL

STONE v. CONAGRA FOODS, INC. D/B/A SWIFT & COMPANY, 5023782 (12-14-09)

The authorized treating physician's release of claimant to full-duty work coupled with the failure to expressly opine as to impairment produced an inference that the employer-retained physician did not believe claimant had permanent impairment related to the injury. That inference is sufficient to permit claimant's being reimbursed for the cost incurred for his IME.

AGENCY APPEAL

SWYGMAN v. McANINCH CORPORATION, 5024495 (12-7-09)

Defendants argue that claimant's loss of his employment was purely economic, related to a slow economy, and not based on any restrictions or functional incapacity of claimant. Defendants, therefore, contend that the award of 250 weeks of benefits under § 85.34(2) (u) was excessive. Claimant asserts that his termination demonstrates that the employer considered him too disabled to perform heavy physical labor. Claimant has the better argument, as the evidentiary facts contradict defendants' contention.

AGENCY APPEAL

BRIGGS v. SECOND INJURY FUND OF IOWA, 5024615 (12-4-09)

The presiding deputy erred in finding that the agreement for settlement between claimant and his employer failed to adequately establish employer liability. It is further concluded that claimant has presented sufficient evidence to prove by a preponderance of the evidence that he has sustained a work-related injury resulting in permanent disability.

However, regarding the first injury, a venous condition does not qualify as a scheduled injury. Because § 85.64 requires two scheduled injuries to proceed against the Second Injury Fund, it is therefore concluded that claimant's claim for Second Injury Fund benefits must fail.

AGENCY APPEAL

MILLER v. MAINTAINER CORPORATION OF IOWA, INC., 5020192 (12-2-09)

In order to prove entitlement to the credit the defendants must prove the following: 1) that benefits were received under a group plan, 2) contribution to that plan was made by the employer, 3) the benefits should not have been paid if workers' compensation benefits were received, and 4) the amounts to be credited or deducted from payments made or owed under Chapter 85. §85.38(2).

The first, second, and fourth elements set forth above have been established within the record in favor of defendants and will not be discussed. Having reviewed the record de novo it is concluded that defendants failed to present any evidence to show that "claimant should not have been paid [short-term disability benefits] if workers' compensation benefits were received." Defendants presented no evidence that claimant would not have been entitled to short-term disability benefits had he been compensated through the workers' compensation system.

AGENCY APPEAL

DUGAN v. TYSON, 5020849 (12-1-09)

At the time of hearing claimant testified she was performing light duty work at Tyson. However, claimant also testified that the light duty work, and her restrictions, were in regards to limitations regarding a right upper extremity injury. Claimant's right upper extremity injury is not at issue in this case.

Given the above, claimant has failed to prove she has permanent restrictions regarding her June of 2006 cervical injury.

The record indicates claimant's present light duty status is not due to her June of 2006 cervical injury. Claimant continues to work at Tyson. There is no evidence claimant has sustained any reduction in wage, or a loss of hours due to her cervical injury.

The modified fresh start rule and modified full responsibility rule are to be read together to prevent all double recoveries and all double reductions in workers' compensation benefits. The legislature noted that it was its intent that the amendments are not intended to "change existing law in any way not expressly provided in this division."

COURT OF APPEALS

WHITE v. KILBY, 9-707 / 09-0076 (11-25-09)

Ray Kilby argues the district court erroneously interpreted § 85.20 (2005) and therefore improperly denied his motion for summary judgment. OPINION HOLDS: The exclusivity provisions of Iowa Code ¬ß85.20 preclude Kilby's liability under Iowa Code ¬ß321.493. We reverse the district court's summary judgment ruling and remand for entry of an order granting Kilby's motion for summary judgment.

COURT OF APPEALS

BELGER v. UNITED PARCEL SERVICE, 9-658 / 09-0273 (11-25-09)

A petitioner for workers' compensation benefits appeals the district court's affirmance of the workers' compensation commissioner's denial of penalty benefits.  OPINION HOLDS:  The commissioner's decision to deny penalty benefits was not irrational, illogical, or wholly unjustifiable since the petitioner's workers' compensation claim was fairly debatable under the standard articulated in City of Madrid v. Blasnitz, 742 N.W.2d 77 (Iowa 2007). 

COURT OF APPEALS

MERCY v. SIMMONS, 9-554 / 08-2045 (11-12-09)

An employer appeals a final decision of the workers' compensation commissioner awarding a claimant permanent total disability benefits. OPINION HOLDS: Because substantial evidence supports the agency's determination, we agree with the district court's decision on judicial review that the agency's award of permanent total disability benefits must be affirmed. 

COURT OF APPEALS

ROBERTSON/STAR BUILDING v. COOHEY, 9-820 / 09-0615 (11-12-09)

Robertson/Star Building Systems and its insurer, Insurance Company of the State of Pennsylvania, appeal the district court's ruling on their petition for judicial review, which affirmed the workers' compensation commission's award of benefits to Jesse Coohey. They contend the district court erred in concluding (1) Coohey's claim is not barred by the statute of limitations, (2) Coohey's treatment is causally related to his 1997 work injury, and (3) Coohey is entitled to attorney fees.  OPINION HOLDS: A. Because there was no denial of liability filed (nor any agency award of benefits or an agreement for settlement, although, weekly benefits had been paid), Coohey's claim for medical benefits was not subject to the three-year statute of limitations as set forth in Iowa Code ¬ß85.26(2). B. Expert witness evidence establishes the 1997 work injury was a substantial contributing factor to the August 2005 surgery. Accordingly, we conclude substantial evidence supports the commissioner's finding Coohey's treatment is causally related to the work injury. C. The commissioner's award of attorney fees for the petitioners' failure to admit a request for admission was not irrational, illogical, or wholly unjustifiable.

AGENCY APPEAL

SCHUELLER V. JOHN DEERE DUBUQUE WORKS, 5022959 (11-3-09)

Claimant appeals denial of hearing loss claim. REVERSED.

The deputy provided no explanation or analysis as to why he rejected the undisputed evidence that claimant was present in a noisy work environment for over 40 years with the first 15 years having no hearing protection; that a hearing protection program was instituted to protect workers like claimant from noise induced hearing loss; that defendant considered claimant's hearing loss at a point after 1978 to be work-related; that defendant's own physician considered claimant's hearing loss to be a noise induced, work-related loss as late as 1996; and that no other cause of hearing loss has presently been identified by defendant other than heredity, yet only one of claimant's extended family members has ever suffered from any form of hearing loss.

The deputy's criticism of Dr. Tyler is not shared by the undersigned. Dr. Tyler's report is well founded by the factual history presented in claimant's responses to his questionnaire and supplemented by Dr. Tyler's interview with claimant. Dr. Tyler has significant qualifications as the head of the department of audiology at our state's largest university. He has published numerous articles on hearing loss and does significant research on hearing loss. There is no evidence that any other expert in this matter has similar qualifications.

It is therefore concluded that claimant has presented evidence more than sufficient to prove that his hearing loss arose out of and in the course of his employment with John Deere. Claimant has proven that he sustained an occupational hearing loss under Iowa Code chapter 85B.

AGENCY APPEAL

RUIZ V. TYSON FOODS, 5020962 (10-30-09)

Defendants appeal a PTID award. AFFIRMED.

Claimant is not employable in the competitive labor market. Most convincing were the conclusions of Alfred Marchisio, M.S., who aptly pointed out the deficiencies in the conclusions in the functional capacity testing.

Defendant's offer of a sit down job was not convincing. Apart from the rather self-serving nature of such an offer, the claim that claimant could perform a sit-down job at Tyson assumes that claimant could ambulate to and from that job and to and from other areas of the plant for restroom and other breaks in a timely and efficient manner. The presiding deputy, however, found that claimant has considerable difficulty walking and for that reason cannot perform such work. This was based on a finding that claimant's daughter was credible in testifying about claimant's balance and ambulation problems, his ability to only climb one or two stairs, and his difficulty with keeping the prosthesis on his stump.

The assertion by defendants that claimant voluntarily chose to retire, was likewise,