HOFFMANN LAW FIRM, PC

Disclaimer

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.

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&endash;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 Iowa Code section 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. 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 Iowa Code section 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)

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 Iowa Code section 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)

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

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 Iowa Code section 85.34(2)(m) &endash; 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 &endash; 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&endash;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 Iowa Code section 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 Iowa Code section 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

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)

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.

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)

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 &endash; 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

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 ¬ß 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 ¬ß 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 &endash; 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 ¬ß 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 Iowa Code section 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). âĶ.. 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 lawâĶâĶa 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 Iowa Code section 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.

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.

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 Iowa Code section 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 Iowa Code section 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)

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&endash;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&endash;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 Iowa Code section 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 Iowa Code section 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 ¬ß 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 ¬ß 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 §85.39 places no such requirements on requests for examination other than that the requests be reasonable. The sanction under Iowa Code section 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 Iowa Code section 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, unimpressive. The evidence clearly shows that prior to this work injury, claimant had no intention of retiring, even at age 70. He was working in a relatively heavy job and even defendant's witnesses agree that he was a good worker prior to his injury. It is clear that the only significant event that changed this was the work injury and the resulting loss of use of his legs, not any lack of motivation to work on the part of claimant. WALSHIRE

AGENCY APPEAL

MOORE V. ALAN STEVENS ASSOCIATES, INC., 5021719 (10-30-09)

The assertion that the chronic pain is permanent and therefore the resulting depression is permanent is not convincing. The physician opinions relied upon by claimant are based in part upon claimant's representations to them on the extent and severity of his pain. However, claimant was not found entirely credible.

A claim for marriage counseling was denied. The doctor did not sufficiently explain why he felt that such counseling was the result of the work injury or the claimant's work related depression. WALSHIRE

AGENCY APPEAL

RUBIO V. JOHN MORRELL COMPANY, 5023806 (10-30-09)

Defendants complain that the presiding deputy relied too much on claimant's testimony to assess the significance of the injury and the extent of her current physical problems. Lay testimony from claimant, if viewed as credible, must be considered in determining the actual loss of use so long as loss of earning capacity is not considered.

Also, I find quite unconvincing the view of Dr. Martin that a long ride in an automobile is a more likely cause of her leg numbness than a back injury from her slip and fall at work.

Finally, defendants raise a lack of authorization defense to the medical expenses awarded to claimant. However, defendants dispute their causal connection to the work injury. Consequently, such a defense is not available to defendants.

Also the record is clear that the unauthorized physician routinely reported some improvement in her symptoms with his treatment regimens, but ultimately he was unable to resolve them all. This is sufficient to award the expenses of unauthorized care. WALSHIRE

AGENCY APPEAL

AULT V. DES MOINES PUBLIC SCHOOLS, 5007579 (10-27-09)

Defendants appeal from PTID award. AFFIRMED.

While defendants may be correct in asserting that claimant's physicians have not opined that she is incapable of any work activity, all have opined that her ability to work is extremely limited.

A mental health counselor states that a majority of her depressive symptoms are unrelated to the work injury and that work would be good for her condition, she adds that less than one-half of those symptoms are work related and that due to her depression, claimant is only capable of part-time work in a sheltered environment. While a claimant's must show that the injury proximately caused the medical condition sought to be compensable, 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.

Defendants can only rely upon lack of effort to look for work or seek vocational rehabilitation, if suitable full-time work is shown to be a realistic possibility with such efforts. The medical evidence in this case reveals otherwise. Anti-social behavior is not inconsistent with low intellect, chronic pain and chronic depression. While drug use will certainly impact a person's employability, the fact remains that claimant has been legally using narcotic medications since the injury that were prescribed by treating physicians to address her work related chronic pain. WALSHIRE

AGENCY APPEAL

SMITH V. MONSANTO, 1254092 (10-21-09)

Claimant appeals from a review-reopening decision filed on December 2, 2008, wherein the presiding deputy commissioner determined that claimant failed to prove that his change of physical condition was substantially caused by the work injury. REVERSED.

This agency has previously established that claimant's workplace exposures resulted in his respiratory injury and disability. That issue cannot be litigated again. The physician has opined that claimant's respiratory condition, including the exposure at Monsanto, placed claimant at a baseline in 2002 wherein the loss associated with age and acute flare-ups are to the point in 2007 where claimant has no reserve and cannot compensate for the loss. As such, the doctor has opined that if not for the contribution of the work exposure, claimant would still be working in the competitive labor market &endash; and that if not for the substantial contribution of the work exposure, it is anticipated that claimant would have been gainfully employed up to and including the age of 62.

It is therefore concluded that claimant has proven by a preponderance of the evidence that he has sustained an economic change of condition that warrants an award of additional permanent disability benefits as he is presently unable to return to gainful employment.

The evidence further supports a finding that he has sustained a physical change of condition proximately caused by his workplace injury given the doctor's opinions regarding claimant's 2002 baseline and continued deterioration.

Claimant has presented the opinions of a vocational expert who has opined that claimant is not capable of working in the competitive labor market. Such a finding is bolstered by claimant's receipt of social security disability benefits. Due to claimant's age and his advancing respiratory distress it is unlikely that claimant could be retrained for any substantive work duties. 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 permanent total disability.

New medical opinions were served less than 48 hours prior to the scheduled hearing. The untimeliness of these opinions at issue is clearly the result of delay or lack of diligence of defendants. The presiding deputy determined that any prejudice to claimant resulting from the late service could be cured by holding open the record for up to 30 days to allow claimant the opportunity to seek additional evidence.

Opinions on termination of healing and opinions regarding permanency are issues that are variable and do not fit well within a discovery deadline set by an order of an administrative agency. However, an issue of causation as is at issue in this case is less variable and was not an issue that needed to be addressed well after the close of discovery and the exchange of exhibits for hearing. The deputy chose not to do so and the undersigned finds no reason to disturb that deputy's determination. However, parties who come before this agency risk exclusion of vital evidence by willful or unjustifiable disregard for the rules of the agency, as this submission of evidence most certainly was.

The final issue for consideration on claimant's appeal is the bill for $213.75 which is the cost associated with claimant's rebuttal evidence to defendants' late submission.

As the deputy's determination has been reversed and claimant is now the prevailing party it is proper to award the cost of $213.75. It is noted that almost 25 years ago this agency held that a maximum of $150.00 would be allowed as a cost reimbursement for any one doctor or practitioner's written report as that is all that would be allowed as an expert witness fee had the expert's views been obtained in an oral deposition under the cost provisions of Iowa Code § 622.72. However, these decisions are contrary to the plain language of 876 IAC 4.33. While a doctors' or practitioners' deposition testimony is limited by Iowa Code section 622.69 and 622.72, no such limitation is contained in this rule for obtaining written reports, nor is there any application of those statutes to written reports. As recently instructed by the Iowa Supreme Court (Boehme), this agency cannot ignore the plain wording of its own rules. It is therefore concluded that the prior agency precedent regarding taxation of costs which is set forth above shall no longer be controlling agency precedent in cases before this agency and the entire reasonable costs of doctors' and practitioners' reports may be taxed as costs pursuant to 876 IAC 4.33.

AGENCY APPEAL

GRAHOVIC V. SECOND INJURY FUND OF IOWA, 5021995 (10-9-09)

First, Agency approval of an agreement for settlement is not adjudication on the merits of a claim. It is an administrative decision that the settlement merely complies with the form and content for such agreements required by the rules. Approval makes no determination as to the merits of any aspect of the claim. Issue preclusion does not apply.

Second, issue preclusion requires a mutuality of interest between the Fund and the parties to an agreement. The interests of the claimant and employer significantly conflict with the interest of the Fund.

Finally, the views of Claimant's expert are not rejected simply because he retired in 1997 from treating patients and now only serves an evaluator for litigation purposes. In fact, there is no evidence that the doctor is less qualified as a medical evaluator than any of the other medical experts involved in this matter. However, his views are not found to be convincing as he does not sufficiently explain them. AFFIRMED.

AGENCY APPEAL

BODE V. MERTZ ENGINEERING, 5023625 (10-6-09)

The presiding deputy failed to apportion a prior injury which occurred with a prior employer from 70 percent industrial disability awarded for claimant's present industrial loss. AFFIRMED.

As was noted in a recent appeal decision filed by this agency, 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. Follows, Steffen.

COURT OF APPEALS

WEST RIDGE CARE CENTER v. JOHNSON, 9-462 / 08-2036 (10-7-09)

West Ridge Care Center appeals from the district court's judicial review decision that affirmed the agency decision awarding employee benefits for a permanent total disability to Annette Johnson. West Ridge contends the commissioner and district court erred in finding Johnson permanently and totally disabled under the traditional analysis and the odd-lot doctrine. OPINION HOLDS: We conclude substantial evidence supports the commissioner's decision awarding Johnson permanent total disability benefits. We cannot consider the fact that Johnson continued her employment (with accommodations and restricted to 32 hr/week) at the care center after her injury as probative on the issue of her employability or earning capacity. Because we found substantial evidence supports the award of permanent total disability benefits based on the theory of industrial disability, it is unnecessary to address the odd-lot doctrine. We affirm the district court's order affirming the commissioner's decision awarding Johnson permanent total disability benefits.

COURT OF APPEALS

LOPEZ v. MIDSTATES HORSE SHOWS, 9-452 / 08-1714 (10-7-09)

Everado Lopez appeals and Midstates Horse Shows, Inc. cross-appeals from the district court's ruling on judicial review affirming the workers' compensation commissioner's decision. OPINION HOLDS. We find there was substantial evidence to support the commissioner's factual findings regarding the employer-employee relationship and the commissioner's conclusion that Lopez was an employee of Midstates was not irrational, illogical, or wholly unjustifiable. Additionally, we find substantial evidence supported the commissioner's finding that Lopez suffered permanent total disability. In calculating Lopez's weekly rate of compensation, we find the commissioner correctly applied Iowa Code section 85.36(9) (2005). Finally, Midstates's argument regarding a mathematical calculation was not preserved. We affirm the district court.

COURT OF APPEALS

STEWART v. JOHN DEERE DES MOINES WORKS, 9-506 / 09-0323 (10-7-09)

Stanley Stewart appeals from the district court ruling affirming the workers' compensation commissioner's finding that his claim for benefits was barred by the statute of limitations of Iowa Code section 85.26 (2005). While working for John Deere Des Moines Works on February 10, 2001, Stewart fell on ice and injured his hip and groin. He was treated but was not placed on work restrictions for this injury over the course of the next year. On February 4, 2002, Stewart strained his back while working for John Deere. He was treated for this injury and placed on work restrictions. In October 2002, through his treatment, doctors determined that Stewart's pain and limitations were largely related to his hip rather than his back and were attributed to the February 2001 fall. Stewart received temporary partial disability benefits on and off from February 4, 2002, to March 9, 2003. Stewart asserts that the three year statute of limitations applies because the medical records show he was placed on restrictions, and therefore received temporary partial disability payments, for the hip injury caused by the February 2001 fall. John Deere argued, and the commissioner agreed, that Stewart's petition, filed on March 4, 2005, was untimely because compensation records from John Deere and Workforce Development showed all benefits paid related to Stewart's February 2002 back strain, and no benefits were received for his February 2001 fall. The district court affirmed this finding. OPINION HOLDS: Under Iowa Code section 85.26, a proceeding for benefits must be commenced within two years of the date of injury or within three years after the payment of benefits ceases. In evaluating whether substantial evidence supports the commissioner's finding, we are not to reweigh the evidence.  When evidence is conflicting, we defer to the commissioner and do not interfere with the commissioner's findings. The evidence in this case is conflicting. The medical records indicate Stewart was placed on restrictions and received benefits between October 2002 and March 2003, at least in part, because of his hip injury in February 2001. However, the payment records specified that all payments were made as compensation for his February 2002 back strain. Under our principles of review, we find there is substantial evidence to support the commissioner's decision and the district court did not err in so finding.  

COURT OF APPEALS

HAWKEYE WOOD SHAVINGS v. PARRISH, 9-490 / 08-1708 (10-7-09)

Employer and insurance carrier appeal from a district court judicial review ruling affirming the workers' compensation commissioner's benefit award. Employee appeals the district court's credit award. OPINION HOLDS: Substantial record evidence in the review-reopening proceeding supports the commissioner and district court decisions holding: (1) the employee's second injury was related to the original injury; and (2) the employee is permanently and totally disabled. Additionally, the district court erred in granting a credit to the employer when the employer stipulated to "0" credit on the agency prehearing report and, therefore, waived credit entitlement.

COURT OF APPEALS

MERCY v. PLUMB, 9-541 / 08-1688 (9-17-09)

Employer appeals the district court's affirmance of a workers' compensation award, contending that the claimant's injury did not arise out of her employment; it also contests the award of healing period benefits. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

As the commissioner applied the wrong test, "positional risk," for determining whether the injury arose out of the worker's employment and the facts surrounding the fall are not undisputed, the case should be remanded back to the commissioner to apply the correct legal test, "actual-risk." The commissioner's award of healing period benefits is supported by substantial evidence, but will be moot if the injury did not arise out of the employment. 

COURT OF APPEALS

WILIAN HOLDINGS v. RICE, 9-550 / 08-1964 (9-17-09)

Employer appeals a ruling affirming a workers' compensation award of post hearing penalty benefits to an employee, contending the penalty benefit award was erroneous and unsupported by substantial evidence. REVERSED AND REMANDED.

Because the commissioner hearing the underlying claim for benefits considered the case a close one and because the appellate judges were not unanimous in their decision to affirm the underlying award, substantial evidence does not support the award of penalty benefits for a delay in workers' compensation payments during the pendency of the employer's appeal.

AGENCY APPEAL

LOWERY V. KRAFT OSCAR MAYER, 5022946 (9-15-09)

30% PPID award modified to 40% based on no credit or apportionment. MODIFIED.

The Agency again, follows Main v. Quaker Oats, File No. 5017903 (App. 12-19-07), despite reversal at District Court, and explains what the outcome would be if the Agency decision in Main is not upheld on presently pending appeal from District Court.

AGENCY APPEAL

STEFFEN V. HAWKEYE TRUCK & TRAILER, 5022821 (9-9-09) See, PDF for complete decision.

30% PPID award modified to 55% based on no credit or apportionment. MODIFIED.

The issues presented for consideration in this matter afford significant consideration to the applicability and ultimate application of the 2004 amendment to Iowa Code section 85.34(2)(u) and the creation of Iowa Code section 85.34(7). As this appeal decision is the agency's initial comprehensive interpretation of the statutory changes of 2004 it is necessary to preface that the agency is afforded limited deference in the interpretation of statutes and the ultimate interpretation of the state's workers' compensation statute is a question of law for the judicial branch.

The first issue for consideration on appeal is whether the presiding deputy erred in following agency precedent requiring that for the 2004 statutory changes to be applicable to this successive disability claim, both qualifying permanent disabilities must have occurred after September 7, 2004. It is concluded that the presiding deputy commissioner did not err in following agency precedent that the statutory changes of 2004, contained in House File 2581, are inapplicable in this matter as claimant's first injury resulting in disability occurred November 24, 2003. This also decides the second issue of the Deputy finding that defendants were not entitled to credit for the previous disability they compensated under the first injury. Follows Main v. Quaker Oats, File No. 5017903 (App. 12-19-07).

The presiding deputy did, however, err in failing to acknowledge or to account for the prior permanent impairment and resulting disability. The deputy performed an informal apportionment by attempting to isolate the disability related merely to the right shoulder injury and the physical restrictions and limitations resulting from that injury. While claimant's current industrial disability should have been be awarded consistent with the full responsibility rule, without apportionment. Thus, the award was increased from the 30% awarded by the Deputy to 55% PPID with no credit for 25% paid on the first injury.

The Commissioner went on to discuss how a 30% PPID would have been awarded had both injuries occurred on or after September 4, 2004.

COURT OF APPEALS

ISLE OF CAPRI CASINO v. WILSON, 9-659 / 09-0278 (9-2-09)

Claimant appeals the district court ruling dismissing her claim for workers' compensation benefits after finding the Iowa Workers' Compensation Commission did not have jurisdiction of the case. AFFIRMED

The employer, Isle of Capri Casino, denied the claimant benefits alleging the claimant was a "seaman" under the federal Jones Act and therefore the commission lacked subject matter jurisdiction to award benefits. The claimant argued she was not a "seaman" because the casino was not a "vessel in navigation" under the act at the time of her injury in January 2005. OPINION HOLDS:  In Harvey's Casino v. Isenhour, 724 N.W.2d 705, 708 (Iowa 2006), our supreme court determined that federal law "requires only that a watercraft be used or capable of being used, as a means of transportation on water to qualify as a vessel" for purposes of the Jones Act. At the time of Wilson's accident, the Isle of Capri was fully capable of sailing.  It had a captain and marine crew on staff, was under the jurisdiction of the Coast Guard, and had insurance coverage certifying it to sail. It was undisputed that the boat was capable of sailing within ninety minutes at any given time. The casino did not become reclassified as a permanently moored vessel until November 2005. Substantial evidence showed the casino was fully capable of sailing at the time of the injury and therefore was a "vessel in navigation." The district court therefore correctly dismissed Wilson's claim on the ground that the workers' compensation commission lacked subject matter jurisdiction.

AGENCY APPEAL

BONER V. BETHANY LUTHERAN HOME, 5022480(8-26-09)

Defendants appeal odd-lot permanent total disability award. AFFIRMED

Defendants' vocational rehabilitation consultant and her labor market survey of available employment were based upon an incorrect level of physical functioning. The consultant based her opinions primarily upon a functional capacity test that reported clamant capable of light-medium work. Claimant testified that contrary to the functional capacities testing, she is actually functioning at only a sedentary (sitting-down) level and would require frequent breaks to perform beyond that level. Based upon his observation of claimant's demeanor at hearing, the hearing deputy found that testimony credible.

Even if the functional capacity testing report was correct, the vocational consultant only identified two full-time open positions in the Omaha metro area that the consultant felt would not require accommodation--a janitor job requiring the occupant to clean areas in a public restaurant and a food service job requiring the occupant to serve tables, clear tables and stock service areas. I must agree with the hearing deputy that these jobs do not logically appear consistent with in inability to lift more than 10-15 pounds frequently.

Last, the vocational consultant apparently made no effort to actually contact any employer to inquire if these jobs were actually available to claimant. The supposed labor market survey only reviewed job openings posted the local workforce development office. Therefore, no evidence was offered by defendants as to the actual availability of employment to claimant.

Defendants failed go forward to show availability of suitable work to overcome the prima facie that claimant was permanently and totally disabled. WALSHIRE

AGENCY APPEAL

HARRISON V. KONE, INC., 5024317 (8-21-09) (Open PDF for complete decision.)

Claimant appealed denial of PPID, HP & penalty. REVERSED

Prior to the injury of March 14, 2007, claimant had filled out retirement papers which were dated January 15, 2007. Claimant ultimately retired on March 31, 2007, and his pension was effective on April 1, 2007, when he was 65 years and 8 months of age. Claimant testified that his knee and shoulder were factors in his decision to retire. While the presiding deputy commissioner did not find such testimony credible, the undersigned does not agree with her assessment. While the decision to fill out retirement papers was completed on January 15, 2007, a date the deputy noted was prior to his significant injury of March 14, 2007, this ignores claimant's stipulated left knee injury and his right shoulder muscle pain caused by his job duties performed at a church. Further, claimant testified that when he filled out his paper work for retirement he was not locked into the ultimate decision to retire on a specific date.

Claimant's decision to retire on March 31, 2007, rather than perform work for an additional year and a half, resulted in a loss of approximately $300.00 per month in pension benefits.

Claimant has applied for alternate employment and the uncertainty of the economy and stability of pension funds may result in his return to the labor market where he would be required to compete against workers without physical impairment and activity restrictions. After consideration of the record it is concluded that claimant has suffered a 35 percent loss of his earning capacity as a result of the work injury.

Claimant's voluntary retirement alone does not preclude an award of healing period benefits.

No penalty is appropriate as defendants have articulated a reasonable basis to contest claimant's entitlement to benefits relating to his shoulder injury. Defendants acted reasonably in refusing compensation relying upon claimant's retirement from employment as well as a medical opinion.

As regards the knee, Defendant only cited to the presiding deputy's finding that "there has been no showing that any weekly benefits due and owing the Claimant were unreasonably delayed or denied." Defendants provide no reasonable basis for the delay in payment of benefits that claimant has established.

COURT OF APPEALS

SECOND INJURY FUND OF IOWA v. NEER, 8-597 / 07-0579 (8-19-09)

The Fund appeals the district court's decision affirming the workers' compensation commissioner's ruling awarding respondent permanent total disability benefits from the Second Injury Fund. AFFIRMED.

The Fund claims Neer is not entitled to benefits from the Second Injury Fund because under the settlement agreement she was compensated for disability to the body as a whole, and not for the loss of use of a scheduled member, such as a hand, arm, foot, leg, or eye.

The district court looked at Neer's injuries to determine if any were a scheduled injury, instead of looking at how she was compensated for her injuries. The court concluded Neer's injury to her right arm, with resulting carpal tunnel surgery, was a qualifying first loss for purposes of the Second Injury Fund. We affirm the district court and the commissioner's findings that Neer had an injury to her right arm based on her carpal tunnel surgery in 1995, which qualified as the first loss.

There is substantial evidence to show permanent loss of use based on Neer's first qualifying injury to her right arm. After Neer had surgery on her right arm in 1995 she was given a six percent permanent impairment rating for her arm. She was told to take sensible precautions and was accommodated by her employer with different job positions and assistance from co-employees.

There is also substantial evidence to show permanent loss of use due to the second qualifying injury to her left arm. She was given a ten percent permanent impairment rating for the upper left extremity. She was also placed on restrictions, including "no repetitive firm grasping, gripping, pinching, or torquing movements."

AGENCY APPEAL

ORTH V. QUAKER OATS COMPANY, 5011736 (8-18-09)

The estate appeals from the decision of the presiding deputy asserting that the deputy misconstrued the basis for the claim for death benefits and erred in calculating the rate of compensation by failing to recognize a common law marriage. Neither argument is particularly convincing in consideration of the facts presented in the record of the case.

Had claimant considered his gastric bypass surgery to be "reasonable and necessary" medical treatment for his back injury it is only logical that claimant would have sought to have such treatment paid through the workers' compensation system, as all of his other treatment had been provided. There is no evidence contained within the record that claimant sought to have the gastric bypass procedure covered, nor did he file a petition for alternate medical care.

The record of evidence establishes that decedent provided testimony throughout discovery that he and Cathy Orth were not married and made no claim for a common law marriage. Only after decedent's death was the issue of common law marriage asserted.

AGENCY APPEAL

CASON V. SEQUEL YOUTH SERVICES, 5023947 (8-11-09)

The work injury was a cause of a three percent permanent partial impairment to claimant's mouth and jaw for disfigurement and a one percent permanent partial impairment for headaches is affirmed. The headache portion takes this injury into the body as a whole and entitles claimant to compensation for a loss of earning capacity.

Clamant was found credible by the presiding deputy. At hearing claimant testified that he has continued jaw aching and problems with his tongue not feeling the presence of the false teeth which caused speech problems that he states adversely impacts his ability to talk in his current job. He adds that this speech problem would hinder his ability to return to the type of sales jobs he had in the past. MODIFIED to 10% PPID.

COURT OF APPEALS

ORTIZ v. SWIFT & CO., 9-461 / 08-2016 (8-6-09)

Cesar Ortiz was injured during the course of his employment by an ammonia leak, and he continued to have respiratory problems. On May 13, 2005, Ortiz died in a traffic accident while on the road between Chihuahua, Mexico, and El Paso, Texas. Ortiz's wife, Guillermina Acosta, filed a claim for workers' compensation benefits as a surviving spouse, claiming Ortiz's work-related injury was the cause of his death because he was driving to obtain medical treatment. The workers' compensation commissioner determined that injuries received during travel for medical care for a work-related injury can be a compensable consequence of the injury, but that Acosta had not presented credible evidence Ortiz was traveling to obtain medical treatment. The district court declined to find that injuries sustained when an employee is traveling to or from medical treatment for a work-related injury should be compensable. The court noted that even if this theory was adopted, it would not apply in this case. Acosta appeals. OPINION HOLDS: There is substantial evidence in the record to support the commissioner's finding that Acosta failed to show Ortiz was traveling to obtain medical treatment for a work-related injury. There is only speculation concerning what Ortiz was doing on the roadway at the time of his death. The commissioner did not apply an improper burden of proof in this case. Because there is no factual basis in this case to show that Ortiz was traveling in order to seek medical care for a work-related injury, there is no need to address the legal question of whether such a claim would be compensable if it had been proven. 

COURT OF APPEALS

TEEN CHALLENGE v. PAULER, 9-458 / 08-1801 (8-6-09)

  Alan Pauler appeals from the district court's ruling on judicial review reversing his workers' compensation award. The workers' compensation commissioner determined that a nonprofit organization had workers' compensation liability for injuries that occurred while Pauler performed construction work as a participant in its residential program. OPINION HOLDS: We conclude-as did the district court-that the commissioner misapplied the law to fact in analyzing the "benefits" factor of the employer-employee test and in concluding an employer-employee relationship existed in the absence of evidence that the parties intended to establish such a relationship.

AGENCY APPEAL

SHULL V. OMEGA CABINETS, 5023286 (8-5-09)

A review of the surveillance video presented precludes any finding other than a full affirmance of the presiding deputy commissioner's conclusion that claimant is not a credible witness. Claimant is observed on the same day walking without an altered gait while going about her daily business, yet walking with a significantly altered gait and at a very slow pace while entering Excel Physical Therapy. The only logical conclusion is the conclusion made by the presiding deputy commissioner. Claimant is not credible and the medical opinions based upon the presentations made by claimant are likewise not credible.

AGENCY APPEAL

HART V. YELLOW FREIGHT, 5023131 (7-29-09)

Although, voluntary payment of permanency disability benefits for a five percent industrial disability may have been appropriate to avoid penalty, defendant offered no reason for the considerable delay in making that payment following claimant's return to work. Given claimant's high weekly rate of compensation, the $10,000 penalty is appropriate. WALSHIRE

AGENCY APPEAL

MORISTON V. LONGHOUSE NORTHSHIRE NURSING HOME, 5022912 (7-24-09)

Award of costs for the MRI of the brain was appropriate. The costs of diagnostic testing and imaging by the treating physician which the physician felt was necessary to diagnose the treat the cause of claimant's symptoms, even if that test is to rule out other problems that the work-related condition constitutes reasonable and necessary treatment of a work injury. In any event, this agency has long held that employers are to pay for the medical care they authorized.

Award of the costs of one report that was requested by claimant that had been excluded at hearing was appropriate. Our administrative rule 876 IAC 4.33(6) which allows the reimbursement for two doctor reports does not require that the report be actually placed in evidence to qualify for the reimbursement.

Award of an extra meal for transportation to attend the IME examination was also appropriate. Claimant testified without contradiction that she needed a driver to help her travel to this examination, because she is limited in the amount of time she can drive herself because of her back problems. WALSHIRE

AGENCY APPEAL

WALKER V. GRIFFIN PIPE PRODUCTS, CO., 5025036 (7-24-09)

Dr. Larose, as an orthopedic specialist, is more qualified to render causation opinions concerning an orthopedic condition such as carpal tunnel syndrome, than Dr. Gammel, an occupational medicine physician, who was not shown to possess any special qualifications or significant experience in the diagnosis or treatment of orthopedic or carpal tunnel syndrome conditions. WALSHIRE

AGENCY APPEAL

JOSLIN V. TERI HIGGINS, WIDOW OF TIMOTHY J. HIGGINS, 5025036 (7-23-09)

Defendants appeal second Deputy order to pay attorney fees for collecting defendants' share of settlement moneys from a third-party tortfeasor. REVERSED

The presiding deputy was correct in the attorney fee decision that Iowa Code §86.39 on its face does not provide authority to this agency to approve attorney fees in third party lawsuits in the district court. That authority is within the sole province of the district court. The only authority of the agency concerning such fees would arise from our authority to allocate monetary recoveries from third party lawsuits to enforce the indemnity provisions of §85.22. Workers' compensation insurers are to be indemnified from third party lawsuit proceeds for the weekly benefits paid to an injured worker or the worker's dependents to the extent the payment was made, less any attorney fees as may be allowed by the district court. §85.22(1). If this agency is asked to determine the amount of the indemnity under that Code section, then §86.39 subjects the indemnity amount to this agency's approval of any attorney fees charged in connection with amounts allocated by the agency to the employer or its workers' compensation carrier.

It is ultimately concluded in this matter that the presiding deputy erred in awarding to claimant additional attorney fees, over and above the amount already deducted from the allocated indemnity sum for attorney fees in the initial decision.

First, this agency lacks authority to issue a decision that is subject to review and change at a later date other than a review and reopening of an award of weekly compensation payments pursuant to §86.14 or agreement for settlement as provided by §86.13. The deputy's decision to further reduce that allocation with additional attorney fees is improper as it attempts to amend that final allocation decision and the final judgment of the district court. The district court judgment is the law of this case and this agency has no authority to change it.

Even if this agency should have some sort of additional authority to approve new fees, it is simply unreasonable to require defendants to pay a double attorney fee on their allocated share of the settlement proceeds and to provide claimant with a double recovery of attorney fees. The prevention of double recovery is one of the primary reasons for enacting §85.22(1).

Finally, I agree with the presiding deputy that this agency does not have authority to suspend or reduce weekly benefits to enforce the indemnity provisions of §85.22(1).

COURT OF APPEALS

CITY OF AMES v. TILLMAN, 9-073 / 08-1677 (7-22-09)

The City of Ames (the City) appeals a district court decision affirming the Iowa Workers' Compensation Commissioner's determination the City is liable for medical expenses incurred by Jerry Tillman for unauthorized medical treatment he received at the University of Iowa Hospitals and Clinics for his work-related injury. OPINION HOLDS: The agency erred in each of the reasons relied on by the agency, and affirmed by the district court, for holding the City liable for the expenses for the unauthorized medical treatment Tillman received. There is no evidence that the City abandoned Tillman's care or denied liability for his injury, and the mere fact the care received was successful and beneficial does not support liability. The agency's finding that an emergency existed requiring that surgery be performed by someone other than the authorized provider is not supported by substantial evidence. The City correctly informed Tillman of his right to commence an alternate care proceeding. DISSENT ASSERTS: The agency did not err in determining the City did not provide proper notice to Tillman of his ability to contest the City's choice of care. I would affirm the district court's affirmance of the agency decision, finding it unnecessary to address the other grounds relied on by the agency and affirmed by the district court.

COURT OF APPEALS

MILLENKAMP v. MILLENKAMP CATTLE CO., 9-435 / 08-1373 (7-22-09)

Thomas Millenkamp appeals from the district court's ruling on judicial review, affirming the workers' compensation commissioner's denial of his request for post-hearing penalty benefits. He argues (1) the commissioner employed an erroneous legal standard and (2) erred in concluding the denial of benefits was fairly debatable. OPINION HOLDS: The commissioner did not employ an improper legal standard in its denial of penalty benefits, nor err in finding that the question whether the 2001 injury caused Thomas's industrial disability was fairly debatable. We therefore affirm the commissioner's denial of penalty benefits.    

AGENCY APPEAL

CAVEN V. JOHN DEERE DUBUQUE WORKS, 5023051 (7-21-09)

Claimant appeals Deputy's limitation of costs for doctor's report to $150.00 under §622.69 & 622.72. REVERSED

§622.69 & 622.72 Code of Iowa apply to limit expert witness fees, and are contrary to IAC 876-4.33(6) which provides for taxation of the reasonable costs of obtaining no more than two doctor's or practitioner's reports. No limitation is set out in the rule. Reasonableness of the doctor's charges was not raised.

Prior Agency decisions to the contrary are no longer controlling. WALSHIRE

AGENCY APPEAL

SLAYMAKER V. UNITED PARCEL SERVICE, 5002040 (7-20-09)

Defendants appeal unreported remand decision of 9-18-08 finding that, in an apparent rare defense review-reopening, they failed to establish that claimant's earning capacity has increased from the 20 percent loss established in the arbitration decision filed April 30, 2003. (See, ISBA web site.) AFFIRMED

Claimant's earning capacity was determined therein with the understanding that claimant's ability to compete in the competitive labor market was impacted by the invasive shoulder surgery and his then inability to perform the work offered by defendant-employer. However, the earning capacity determination also wisely considered that claimant was a motivated worker likely to have additional employment opportunities &endash; which is exactly what occurred following his retraining and continued rehabilitation.

SUPREME COURT

DRAKE UNIVERSITY v. DAVIS, 08-0639 (7-17-09)

The workers' compensation commissioner awarded an employee benefits for three separate injury dates. The employer and its insurance carrier sought judicial review of the agency action. The district court affirmed the decision of the agency, and also found the employer and its insurance carrier were not entitled to a credit for benefits paid by a group plan under Iowa Code section 85.38(2) (2005). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

In this appeal, we find the employer and its insurance carrier were not deprived of procedural due process, substantial evidence supports the agency's decision, the permanent total disability benefits are not subject to apportionment, the agency misapportioned the benefits due for the March 21, 2001, and July 31, 2002, injuries, and the district court should not have considered the credit for benefits issue. Therefore, we affirm in part the decision of the district court affirming the decision of the workers' compensation commissioner. However, we reverse that part of the district court judgment dealing with the apportionment of benefits for the March 21, 2001, and the July 31, 2002, injuries. Additionally, we vacate that part of the district court judgment dealing with the credit for benefits issue because the commissioner did not consider the issue at the agency level.

AGENCY APPEAL

WILSON V. JBIC, L.L.C. AKA JBIC MUSTANG EXPRESS, JULIE ANDERSON, 5024004 (7-17-09)

Claimant appeals on a number of points. AFFIRMED IN PART & REVERSED IN PART

I agree with claimant that commencing permanency benefits on January 9, 2008 was improper. I also agree that such benefits commence at the end of the healing period. However, in this case the last healing period ended on December 22, 2007. Consequently, the permanency benefits shall commence December 23, 2007.

I cannot agree with the hearing deputy that an employer retained physician did not make a disability determination prior to the evaluation by Dr. Kuhnlein. The deputy felt that only an impairment rating qualifies as a disability determination under the statute. This is not correct. Two doctors retained by defendants issued opinions that claimant reached maximum medical improvement and could return to work without restrictions on work activity. This opinion clearly relates to claimant's disability, especially in an industrial case where the ability to work and earn wages is a vital concern.

Dr. Kuhnlein's entire $5,612.50 IME fee will be awarded. WALSHIRE

AGENCY APPEAL

EAKINS V. PILGRIM'S PRIDE CORPORATION, 5021903 (7-14-09)

Permanent total industrial disability award AFFIRMED with additional analysis.

Claimant has met his burden of establishing total disability as he is a 59 year old worker with a high school diploma who due to restrictions resulting from his workplace injury was terminated from his employment position with defendant-employer. Claimant has a distinguished and admirable military record, but he is incapable of returning to such service. Claimant is likewise incapable of returning to over-the-road truck driving he performed for a significant part of his post-military career. Following his injury claimant was allowed to perform light duty janitorial work. This janitorial work consisted of minor sweeping and cleaning bathrooms, a break room, and a shipping office for four hours per day. The employer ultimately was unable to continue to accommodate claimant's significant restrictions imposed by the authorized physician. Due to claimant's age and limited education it is not reasonable to expect that retraining efforts would be particularly successful.

The refusal of defendant to maintain claimant's employment in any full-duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability. An employer knows the demands that are placed on its workforce. Its determination that the worker is too disabled for it to employ is entitled to considerable weight. If the employer in whose employ the disability occurred is unwilling to accommodate the disability, there is no reason to expect some other employer to have more incentive to do so.

AGENCY APPEAL

RODRIGUEZ V. TYSON FRESH MEATS, INC., 5019814 (7-13-09)

Deputy award of 15 weeks PPD for bilateral scheduled injury, MODIFIED to 100 weeks for 20% PPID to body as a whole.

The treating physician identified shoulder muscle pain on each time he examined claimant. Claimant and his wife at hearing testified that this pain is not limited to the hands and arms, but includes the shoulder. Pain into his shoulder has been a consistent complaint during the entire course of his treatment. Consequently, the impairment rating based on chronic pain, is appropriate and specifically includes chronic shoulder pain.

Claimant's assertion that my analysis in Jefferson v. Eagle Ottawa, File No. 5013791 (App. February 28, 2007) is applicable to this case and is largely correct. Where claimant's pre-injury occupation involved repetitive use his extremities and this work injury has restricted repetitive use of these extremities, claimant's ability to compete for jobs in the labor market for which he is bested-suited has been significantly reduced. Although claimant has returned to all aspects of his job with defendant-employer, he has done so contrary to the recommendations of his treating doctor.

AGENCY APPEAL

CULPEPPER V. FERGUSON ENTERPRISES, INC., 5023819 (7-13-09)

Claimant appealed failure to award PPID. MODIFIED, 50% PPID awarded.

The deputy based his conclusion on an opinion of Dr. Rozek that claimant could return to full duty. The hearing deputy misstated his own earlier findings in his decision that Dr. Rozek opined that claimant could return to any job, except heavy lifting.

As a result of this work injury, claimant lost her job at Ferguson and is unable to return to most of the jobs she held in the past as they required heavy lifting such as her past jobs with Omega Cabinets, Bertch Cabinet Manufacturing, and Roskamp, the jobs for which she was best suited given her age, education and work experience.

Claimant as a result of this injury has suffered a significant loss of actual earnings from her inability to return to Ferguson or to heavy manual labor and is now working only part-time.

Claimant does have some post high school education, but to date claimant has never held an administrative job. WALSHIRE

SUPREME COURT

MANNES v. FLEETGUARD, INC., 08-0057 (7-10-09)

Employer challenges district court's decision remanding workers' compensation case. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mannes filed two workers' compensation claims against her employer, Fleetguard, Inc. The deputy commissioner awarded her benefits for one injury but not the other because she was unable to demonstrate she was injured on the specific date alleged. On judicial review, the district court remanded the case to determine whether Mannes suffered an injury on a different date. On remand, the deputy commissioner determined Mannes suffered an injury (albeit on a slightly different date) and awarded her permanent partial disability benefits. The decision did not address temporary benefits, penalty benefits, costs, or the full responsibility rule. On judicial review, the district court remanded the case to address these issues. Fleetguard appealed. Because temporary partial benefits cannot be awarded as a matter of law where there has been no reduction in income, §85.33(4), the district court erred in remanding the case on that issue. However, remand is appropriate on the other issues since the commissioner did not rule on them.

SUPREME COURT

IBP, INC. v. BURRESS, 07-1887 (7-10-09)

On review from the Iowa Court of Appeals, Claimant challenges district court's determination that his brucellosis was an occupational disease and not an injury. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED.

Burress contracted brucellosis while working at IBP, Inc.'s meat-packing plant. He did not discover he had the disease until six years after he left IBP's employment. The Agency determined brucellosis was an injury, not an occupational disease.

If Burress suffers from an occupational disease, his claim is barred by the statute of repose. See Iowa Code § 85A.12 ("An employer shall not be liable for any compensation for an occupational disease . . . unless disablement or death results . . . within one year . . . after the last injurious exposure to such disease in such employment . . . .") However, if his brucellosis is an injury, his claim is not time barred.

Just because brucellosis is listed in Iowa Code section 85A.11 does not mean brucellosis is always considered an occupational disease. Our case law has established that a disease can be an injury for purposes of chapter 85 when " 'the germs gain entrance through a scratch or through unexpected or abnormal exposure to infection.' "

The district court reversed, concluding Burress suffered from an occupational disease, not an injury. The court of appeals reversed the district court. Because Burress contracted brucellosis from a traumatic event, it is an injury, and he is entitled to benefits under Iowa Code chapter 85 (2009).

AGENCY APPEAL

GUDAHL V. R.S. BACON VENEER COMPANY, 5022325 (7-9-09)

Deputy decision AFFIRMED with the added analysis.

As explained by the treating doctor, in language quoted by the presiding deputy, the incident may have been minor to a normal worker, but it was significant for claimant given his susceptibility to injury due his preexisting spine condition.

COURT OF APPEALS

MERCY MEDICAL CENTER-NORTH IOWA v. FISTLER, 9-301 / 08-1784 (7-2-09)

Debra Fistler was employed as a custodian by Mercy Medical Center. She had surgery for calcific tendinitis in 2002. The condition returned, and she had a second surgery in 2004.  Fistler testified she was informed in 2004 that her condition was work related. The deputy workers' compensation commissioner determined the manifestation and discovery date for Fistler's injury was October 5, 2004. The deputy concluded her claims were not barred by the notice provision of Iowa Code ¬ß85.23 (2005), or the statute of limitations found in ¬ß85.26. The workers' compensation commissioner affirmed and adopted the deputy's findings.  On judicial review, the district court affirmed the commissioner. The employer appealed. OPINION HOLDS: There is substantial evidence in the record to support the commissioner's findings that it was not until October 5, 2004, that Fistler, as a reasonable person, knew her physical condition was serious enough to have a permanent adverse impact on her employment or employability. The first surgery in 2002 was fairly limited in scope, and she returned to work after a short period of time without limitations. The second surgery, performed on October 5, 2004, was more extensive, and there is substantial evidence to show that after the second surgery Fistler knew she had a serious condition. 

AGENCY APPEAL

HAYES V. CARGILL MEAT SOLUTIONS, 5016708 (7-2-09)

Claimant appeals asserting that the presiding deputy commissioner failed to award additional permanent partial disability above the impairment ratings. AFFIRMED

Claimant was released to full duty without the need for restrictions for both her upper and lower extremities; initial testing of claimant's functional capacity exhibited a sub- maximal effort by claimant; claimant's complaints of lack of functional ability are out of proportion to the observations of her physicians following her surgeries; and that claimant has been able to return to work with her employer without an impact on her employer's expectations of her ability to function at work.

Claimant shall pay the costs of the appeal, including the preparation of the hearing transcript.

AGENCY APPEAL

HOFER V. SNAP-ON TOOLS MANUFACTURING, 5023271 (7-2-09)

Defendants appeal Deputy's MMI date. AFFIRMED

On 5-31-05 a PA marked a box indicating, "has reached MMI". Defendants contend claimant reached maximum medical improvement on that date and no temporary partial disability benefits, or penalty benefits for failure to pay them, should be awarded after that date.

However, after the box indicating "has reached MMI", the PA added a note stating "for this flare-up". This indicates claimant had reached maximum medical improvement for the flare-up only, not for the underlying condition. Earlier in the report he has written "no overtime x 3 mos, to September 1st". This is clearly imposition of a temporary restriction.

The deputy's determination that claimant did not reach maximum medical improvement until February 28, 2006, when a permanent restriction against working overtime was imposed, is affirmed.

As the PA's notes were clear, the award of penalty benefits for failing to pay those temporary partial disability benefits is also affirmed. HEITLAND

AGENCY APPEAL  

WILLIAMS V. 5TH JUDICIAL DISTRICT DEPARTMENT OF CORRECTIONS, 5023266 (6-29-09)

Claimant appeals denial for TB claim. AFFIRMED

While the personnel technician admitted that other employees in 2005 or 2006 had tuberculosis, there was no showing that claimant worked with these individuals for a sufficient period of time or in sufficient proximity to acquire the disease. Claimant proved that there was a possibility that he could have acquired tuberculosis in his employment.

Defendant also persuasively proved that there was a possibility that he could have acquired the disease outside of his employment. Claimant has failed to prove causation by a preponderance of the evidence.

SUPREME COURT

TRAVELERS V. COMMISSIONER OF INSURANCE, 06-1087 (6-26-09)

Workers' Compensation carrier seeks appeals ruling of the commissioner of insurance concluding the insurer charged an excessive premium for workers' compensation coverage under the assigned risk pool. REVERSED

The commissioner's finding that the insured obtained alternative workers' compensation insurance coverage for its interstate transportation services from an insurer other than Travelers is not supported by substantial evidence in the record. We therefore reverse the commissioner's order.

COURT OF APPEALS

BROADLAWNS v. SANDERS, 9-296 / 08-1643 (6-17-09)

Broadlawns Medical Center (BMC) appeals from the district court's ruling on judicial review, affirming the award of workers' compensation benefits to its former employee, Rose Sanders. BMC argues that the commissioner erred in (1) finding Sanders was entitled to additional temporary benefits, (2) finding Sanders sustained a permanent mental injury, and (3) awarding penalty benefits. OPINION HOLDS: Sanders did return to "substantially similar" employment, and thus the award of temporary partial disability is reversed, as it was based on the agency's erroneous interpretation of the law. Finding no evidence in the record to support the agency's conclusion that Sanders's injury was permanent, the award of permanent partial disability is also reversed. Therefore, in reversing the agency's decision to award temporary and permanent partial disability, we reverse the award of penalty benefits.

COURT OF APPEALS

HOEFT v. FLEETGUARD, INC., 8-810 / 07-0551 (6-17-09)

An employer and its insurance carrier appeal, and petitioner cross-appeals, a district court decision remanding the decision of the Iowa Workers' Compensation Commissioner for further findings concerning petitioner's medical condition. OPINION HOLDS: I. Hoeft's Iowa Rule of Civil Procedure 1.904(2) motion and later motion for additional time to file a rule 1.904(2) motion were untimely and did not extend the time for filing a notice of appeal. The appeal is thus not interlocutory in nature, and we have jurisdiction to address the issues raised. II. The district court erred by finding the commissioner had decided an issue not raised by the parties in the intra-agency appeal. III. The district court erred in finding that the commissioner's decision did not comply with Iowa Code section 17A.16(1)'s requirements that the decision include findings of fact and conclusions of law, separately stated.

COURT OF APPEALS

DES MOINES REGISTER v. SHARON, 9-346 / 08-1678 (6-17-09)

Donna Sue Sharon appeals from a district court judicial review ruling affirming the appeal decision of the workers' compensation commissioner. She claims the agency erred in finding she was required to utilize the health service dispute resolution procedure set forth in Iowa Administrative Code rule 876-10.3 before filing a contested case proceeding seeking home nursing expenses under Iowa Code section 85.27 (2005). OPINION HOLDS: The district court erred in affirming the agency's determination that rule 876-10.3 applied to the facts of this case. The judgment of the district court is therefore reversed and the case is remanded to the agency to determine the reasonable value of the claimed home nursing services

COURT OF APPEALS

EATON CORPORATION v. BRANSON, 9-384 / 08-1537 (6-17-09)

Employer appealed a from the bench dismissal of a petition to enforce settlement, and for punitive damages. AFFIRMED.

Claimant refused to sign written settlement documents. Employer primarily contends the District Court erred in concluding there was not enforceable settlement agreement.

After settlement discussion, Claimant testified that he told the adjustor that, he thought that offer "was more fair than the last offer but [he] wanted to see the papers on it." The adjustor testified that Claimant actually accepted his settlement offer.

We agree with the trial court's conclusion that Eaton did not sufficiently establish by the required "clear, satisfactory, and convincing evidence" that the parties entered into an enforceable oral settlement agreement. Giving weight to the trial court's credibility determinations, we agree that this appears to be a situation where the participants in the phone call were on different wavelengths and may have misunderstood what each other was saying

SUPREME COURT

KOHLHAAS V. HOG SLAT, INC., 08-0589 (6-12-09)

Claimant appeals denial of review-reopening and denial of reimbursement of §85.39 IME expense. REVERSED & REMANDED on review-reopening and AFFIRMED ON IME expense.

The Agency and District Court relied on the holding in Acuity Insurance v. Foreman, 684 N.W.2d 212, 217 (Iowa 2004), which states that the Agency must determine (1) whether there has been a change in the worker's condition as a result of the original injury, and (2) whether this change was contemplated by the parties at the time of any settlement . . . or whether it was beyond what the Agency contemplated at the time of the original assessment of industrial disability.

Claimant contends the rule from Acuity that the change in condition "must not have been within the contemplation of the decision maker at the time of the original award" is obiter dictum and, therefore, not binding precedent. Id. We agree. The language in Acuity is ambiguous, and seems to condone an agency's consideration of, or speculation about, future changes in condition or earning capacity at the time of the initial award.

In determining a scheduled or unscheduled award, the Agency finds the facts as they stand at the time of the hearing and should not speculate about the future course of the claimant's condition.

Likewise, in an unscheduled whole-body case, the claimant's loss of earning capacity is determined by the Agency as of the time of the hearing based on the factors bearing on industrial disability then prevailing-not based on what the claimant's physical condition and economic realities might be at some future time.

Although we do not require the claimant to demonstrate his change in condition was not contemplated at the time of the original settlement, we emphasize the principles of res judicata still apply-that the agency, in a review-reopening petition, should not reevaluate an employee's level of physical impairment or earning capacity if all of the facts and circumstances were known at the time of the original action.

We agree with the commissioner and the district court that Iowa Code §85.39 does not expose the employer to liability for reimbursement of the cost of a medical evaluation unless the employer has obtained a rating in the same proceeding with which the claimant disagrees.

AGENCY APPEAL

HORNE V. CASE NEW HOLLAND, 5027707 (6-2-09)

Deputy awarded mileage and lost wages for Claimant's §85.39 IME. Defendants appealed lost wage award. REVERSED.

§85.39 does include mileage for a Claimant's IME, but not reimbursement for lost wages, as it does for an Employer's IME.

Claimant's application for reimbursement of lost wages incurred while attending a section 85.39 employee-requested IME is DENIED.

COURT OF APPEALS

ESTATE OF RISK v. RISK & UNION INSURANCE COMPANY OF PROVIDENCE, 9-197 / 08-1573 (5-29-09)

Insurance company appeals the district court's grant of summary judgment to defendant on its subrogation claim. REVERSED AND REMANDED.

Dr. Risk was killed in a motor vehicle accident in which he was the passenger in a vehicle driven by his wife, Alice who was his office manager. They were on their way to a medical conference. His estate filed a negligence action against Alice, and the workers' compensation insurer intervened seeking subrogation under §85.22 for surviving spouse benefits paid Alice. The estate then dismissed, with prejudice, its action against her.

The insurer moved to set aside the dismissal and for substitution of itself as plaintiff.

The District Court permitted the intervention and substitution.

Hearing was held on whether she was acting as a coworker, who under §85.20(2)could be recovered against only on a showing of gross negligence, or outside the scope of her employment, and, thus liable for ordinary negligence. the District Court found her to be acting outside the scope of her employment.

She filed a motion for summary judgment asserting that as the surviving spouse receiving workers' compensation benefits, she stood in the shoes of the injured employee. The District Court agreed and concluded that, allowing a workers' compensation insurer to recover from a surviving spouse the very benefits it was paying her as a surviving spouse was contrary to public policy, and dismissed.

HELD: Under section §85.22 an insurer may seek indemnification from a surviving spouse for workers' compensation death benefits paid when the employee's estate receives damages from a third-party tortfeasor. Also, section 85.22 only sets forth employers and employees as specified in section §85.20 as persons who may not be a third party. We have found no authority to support Alice's claim. Furthermore, the operation of section §85.22 in this case is not contrary to public policy. The purposes of section 85.22 are to prevent double recover.

AGENCY APPEAL

COOK v. JOHN DEERE DES MOINES WORKS, 5018887 (5-22-09)

The Deputy was unable to find that claimant sustained any permanent disability as a result of a stipulated, traumatic work injury. REVERSED.

The Deputy did not consider the most important aspect of this case, that prior to this work injury claimant was able to perform heavy manual labor and had no permanent restrictions on his work activity. The pre-employment physical conducted only nine months before the work injury coupled with claimant's months of unrestricted work verified his prior full duty ability to work. Following his injury, claimant was provided with restrictions following a valid functional capacity evaluation and he never returned to his pre-injury employment position.

The medical opinions of Dr. Boulden are more convincing than those of Dr. Berg, despite the fact that Dr. Berg claims to have uncovered a new basis for claimant's development of pain. First, the credentials of Dr. Boulden as a board certified orthopedic surgeon are far superior to those of Dr. Berg. Second, Dr. Boulden is the only doctor to have treated claimant's low back before and after this injury. Third, Dr. Berg was unable to explain how the lipomas he theorized caused claimant's pain were symptomatic only after the crush injury. Dr. Boulden is far more familiar with claimant's low back condition than any other doctor in this case. It is not uncommon for radicular pain to have a delayed onset from the initial low back injury. Herein, claimant's medical records document low back pain, followed by hip pain, followed by buttock pain, and ultimately pain extending down his left leg.

Considering all of the factors of industrial disability it is concluded that claimant sustained a 25 percent loss of his earning capacity as a result of the work injury

COURT OF APPEALS

ROCKWELL COLLINS v. ACHEY, 9-242 / 08-1775 (5-6-09)

Employer appeals permanent total disability award based on back injury and depression. AFFIRMED.

    Approximately one year after the injury, Claimant retired early, stating she could not take the pain anymore. She underwent surgery, participated in physical therapy and a spine rehabilitation program for chronic pain sufferers, and received steroid injections and medication to alleviate the pain. Prior to her 2001 work injury, she was diagnosed with depression. In the opinion of one professional, that condition was aggravated by the injury.

    In finding her unfit for gainful employment, the commissioner relied on the opinion of Dr. Chen, who stated, "[R]eturn to any type of regular employment is not appropriate for you based on the nature of the flare-ups that you experience and continued significant limitation."

COURT OF APPEALS

INTERNATIONAL PAPER CO. v. BUEKER, 9-239 / 08-1536 (5-6-09)

Defendants appeal tinnitus award on statute of limitations, date of injury and extent of PPID. AFFIRMED.

    From 1978 to 2005, Claimant was exposed to loud noises from a machine that produced paper. He worked within twenty-five feet of an "extremely loud" siren that was needed to alert the machine tender over the noise of the machine when there had been a failure on the machine. The siren would sometimes go off for thirty minutes at a time. Claimant was also subject to a steam whistle located on top of the siren, which would go off when pressure built up in the machine. Although Claimant wore hearing protection throughout his employment, both the siren and the steam whistle could be heard approximately sixteen blocks from the plant and caused neighbors to complain about the noise.

    He first noticed ringing in his ears, or tinnitus, in 1982. He failed a hearing test in November 2004. By that time, Claimant's tinnitus had become constant. Currently, the constant ringing in Claimant's ears makes it hard for him to sleep, which leaves him tired and feeling sick throughout the day. He also has difficulty concentrating and communicating with others.

    His stated injury date was August 29, 2005, his last day of employment with International Paper.

    Whether a worker knew or should have known of the nature, seriousness, or compensable nature of an injury is a question of fact to be determined by the commissioner. As the district court noted, "Until the paper mill closed in 2005, the Respondent's tinnitus had been a mere distraction and had never actually interfered with his job performance." We agree.

    Substantial evidence in the record supports the 15% PPID awarded.

AGENCY APPEAL

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

Defendants appeal award based on aggravation of somatization disorder. AFFIRMED.

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

AGENCY APPEAL

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

Defendant appeals failure to allow additional time to respond to Claimant's late offered expert report. AFFIRMED.

    While it was concluded that the report should not have been admitted without allowing Defendant additional time to respond. And, Claimant clearly violated our division's rules on exchanging practitioner reports as well as the provisions of the hearing assignment order.

    Defendant admits that absent Exhibit 2, the treating doctor opined that CRPS was possible. The treating doctor's opinion was bolstered by the definite diagnosis of CRPS in the late offered report and also by claimant's symptoms of palm sweating, color changes, and abnormal chronic pain &endash; symptoms that even the doctor relied upon by Defendant admits are symptoms of CRPS.

    Under these circumstances it would be unjust to disturb the presiding deputy's finding that the work injury was a cause of complex region pain syndrome.

AGENCY APPEAL

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

    "The presiding deputy commissioner's award of twenty (20) percent permanent partial disability is affirmed. The award of industrial disability benefits, however, is premised upon defendant's reinstatement of claimant's employment post-injury with an anticipated return to employment with Tyson Fresh Meats."

    Note: For the potential significance of this modification on review-reopening, should he get worse and be terminated, see, Fodor.

AGENCY APPEAL

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

Defendants appeal failure to apportion out prior disability. AFFIRMED.

   Prior to the legislative changes to Iowa Code section 85.34 in 2004, Iowa courts had previously adopted the so called "fresh start rule."

   This legislation codified the fresh start rule applicable in this case. The fresh start rule is based upon the premise that a worker's earnings in the competitive labor market at the time of a work injury are reflective of that worker's earning capacity. If that worker had any physical or mental impairment or any other socio-economic impediment limiting his employment prior to a work injury, the impact of that impairment or impediment upon that worker's earning capacity, absent evidence to the contrary, has already occurred and is reflected in his earnings at the time of injury.

AGENCY APPEAL

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

Claimant appeals 80% PPID award, seeking permanent total. MODIFIED.

    Total disability does not mean a state of absolute helplessness. Permanent total disability occurs where the injury wholly disables the employee from performing work that the employee's experience, training, education, intelligence and physical capacities would otherwise permit the employee to perform. A finding that claimant could perform some work despite claimant's physical and educational limitations does not foreclose a finding of permanent total disability, however.

    Claimant is a 73 year old worker with severe restrictions on his ability to perform manual labor, the only work for which he is qualified. It is undisputed that he cannot return to the only job he has had since 1984, which is very physical roofing work. Despite his motivation to look for work since his medical recovery, he has not found any employers willing to hire him.

    Whether or not claimant can perform some work is not the issue in this case. Rather, the issue is whether such work is available to claimant in the competitive labor market. Considering claimant's unsuccessful job search and the uncontroverted views of the vocational counselor, claimant presented a prima facia case that such work is not available to him. Although claimant may have the ability to perform some type of non-physical labor, there is no guarantee that that will occur in the foreseeable future. The odd-lot doctrine was pled in the petition and under that doctrine, when claimant makes such a showing, the employer must go forward with the evidence to show availability of suitable employment. That was not done in this case.

AGENCY APPEAL

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

Defendants appeal review-reopening based on increased restrictions. AFFIRMED.

    At the time of the prior arbitration proceeding it was found that the doctor gave claimant restrictions of no repetitious overhead or shoulder level work. After that decision, another physician restricted not only repetitive overhead and shoulder level activity, but also overhead, shoulder level, and full forward reaching activity to only

occasional use not to exceed 20 pounds of force.

    "More importantly, (the doctor) at that time had opined that claimant should not return to his job at Quaker Oats." (Strike through added?) "The arbitration decision anticipated a return to work without loss of earnings or rate of pay given the wording of the presiding deputy in his industrial disability analysis."

    The Deputy commissioner's award of 50 percent industrial disability is affirmed. A refusal by the employer to return an injured worker to work due to new permanent restrictions is evidence of a significant loss of employability.

AGENCY APPEAL

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

Claimant appeals denial of additional benefits on second review-reopening, after termination. REVERSED.

    After his injury Claimant has continued his employment as a cryogenics service technician for the employer.

    In the arbitration decision it was found that, "Claimant's previous work experience largely involved heavy labor or heavy equipment operation or both. He is unlikely to be able to return to this type of work should he no longer be employed as a cryogenics service technician."

    After the arbitration hearing and decision, claimant continued in his job, but states that his shoulder soon began to cause him increasing problems. He returned to the treating physician who felt that there was nothing further he could do other than to take him off work. Initially this leave was considered temporary, but he never returned to work at Airgas or anywhere else.

    After an FCE, the Employer initiated a review by Concentra to identify the specific job requirements of claimant's job. Mayo physicians compared the results to the Concentra job requirements and formally concluded that claimant could not meet those job demand criteria.

    Based on this testing and an interview with claimant, the Employer concluded that claimant was unable to perform ten essential job functions and that accommodation by using co-workers to perform those functions was not available. The Employer thereafter terminated claimant's employment. It was concluded that claimant's termination was not due to a refusal to continue accommodations.

    The added left shoulder complaints in 2008 clearly accelerated the loss of his job. Nothing in this record suggests that this increased disability due to a worsening of the left shoulder condition was anticipated by anyone at the time of the initial arbitration proceedings. Claimant's increased shoulder problems were the proverbial straw that broke the camel's back.

    Refusal of defendant-employer to maintain claimant's employment in any full duty capacity within his work restrictions is, by itself, significant evidence of a lack of employability. An employer knows the demands that are placed on its workforce. Its determination that the worker is too disabled for it to employ is entitled to considerable weight. If the employer in whose employ the disability occurred is unwilling to accommodate the disability, there is no reason to expect some other employer to have more incentive to do so.

    The offer of a seasonal lawn mowing job which he likely cannot perform with his present restrictions does little to establish that claimant is capable of finding suitable, gainful employment for which his experience, training, and education have prepared him. Claimant's medical restrictions have resulted in a worker unable to return to any gainful employment. Permanent total disability awarded.

AGENCY APPEAL

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

Defendants cross-appeal award of second IME expense as a cost. REVERSED.

    Treating physician rated Claimant as having no permanent impairment in either of his shoulders or his knee. Claimant obtained an IME of these areas under ¬ß85.39.

    Thereafter treating physician operated on Claimant's right shoulder, and later rated his functional impairment. Claimant obtained a second IME claiming the expense as a cost under ¬ß85.39.

    Although, the Deputy's order of reimbursement was in line with this agency's prior rulings that subsequent treatment and rating examinations necessitate additional IME's under section 85.39, the Iowa Supreme Court has recently ruled that ¬ß85.39 limits an injured worker to one IME, regardless of the number of rating examinations obtained by the employer or its insurance carrier. See, Thorson II.

AGENCY APPEAL

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

PPD award for scheduled member based on scheduled member condition not rated in AMA Guides. AFFIRMED.

    The deputy found one body as a whole impairment for this bilateral injury case, rather than making a finding as to each arm and then combining these ratings using the AMA Guides.

    In making an assessment of the loss of use of a scheduled member, the evaluation is not limited to the use of a standardized guide such as the AMA Guides. Lay testimony and demonstrated difficulties from claimant must be considered in determining the actual loss of use so long as loss of earning capacity is not considered.

    Notwithstanding suggestions to the contrary in the AMA Guides, this agency has long history of recognizing that the actual loss of use which is to be compensated is the loss of use of the body member in the activities of daily living, including activities of employment. Pain which limits use, loss of grip strength, fatigability, activity restrictions, and other pertinent factors may all be considered when determining scheduled disability. WALSHIRE

AGENCY APPEAL

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

Claimant asserts Deputy failed to consider new permanent restrictions. AFFIRMED.

    While the deputy found the new restriction following the third back surgery against lifting over 20 pounds to be work related, the award of a 10 percent industrial disability is appropriate, for a person who could still return to the same job she held before the third surgery and the last review-reopening proceeding.

    Claimant offered little evidence other than her physical impairments to show a greater loss of access to the labor market. WALSHIRE

AGENCY APPEAL

ANDERSON V. HAWKINS-MARSH FORD, 5004158 (3-31-09)

Calculation of average weekly wage, and, thus, rate, after promotion. MODIFIED.

    Statutes for computation of wage base are to be applied, not mechanically nor technically but flexibly, with a view toward achieving the ultimate objective of reflecting fairly the claimant's probable future earning loss.

    To achieve a compensation rate that fairly reflects claimant's probable future earnings loss, it was error to disregard her new hours and wage rate considered customary following a significant promotion. The presiding deputy included weeks when claimant was working only part-time prior to a promotion and at a compensation rate tied to her prior position.

    Had claimant received a demotion and a significant reduction in pay and hours which was likewise undisputed, the customary weeks would be the weeks following the demotion &endash; as such a finding would again achieve a fairly reflective calculation of the workers' gross weekly earnings.

COURT OF APPEALS

WILSON V. ISLE OF CAPRI CASINO, 9-059 / 08-1264 (3-26-09)

Defendant appeals denial of stay of enforcement of District Court judgment of award. REVERSED.

    "The district court balanced each of the factors and found the casino failed to meet its burden. We disagree. The casino has a strong likelihood of prevailing in judicial review, and while this factor is not dispositive, the remaining factors weigh in favor of issuing the stay. The fact that Wilson lives paycheck-to-paycheck does suggest that the casino could have difficulty retrieving the award from Wilson if it ultimately prevails. Under the third factor, we do not find evidence that Wilson will be substantially harmed if a stay is issued. The commissioner found that Wilson only had a permanent partial impairment rating of five percent and has no work restrictions. At the time of the workers? compensation hearing, Wilson continued to be employed at the casino and had not suffered any loss of earnings from the injury. Finally, we do not find the public?s interest in the prompt and efficient determination and award of benefits to injured workers justifies denial of the stay."

COURT OF APPEALS

FITZPATRICK v. SQUARE D, 9-106 / 08-0945 (3-26-09)

Claimant appeals District Court ruling affirming Commissioner's appeal decision failing to award PPD. AFFIRMED.

    Claimant suffered from back pain throughout her employment, she fractured two vertebras in her back after falling off a horse. Her complaints of back pain began to increase in the following years.

    While lifting a breaker and leaning over a table, she felt a "tremendous pain" "like a big burning sensation" in her lower back. She completed her shift and attempted to work the following night, but the pain worsened. she decided to seek treatment.

    A physician imposed permanent work restrictions, however, did not believe she suffered any permanent impairment. He characterized the restrictions as preventative and necessary due to her "age, degenerative disc disease, and general level of conditioning."

    The deputy workers? compensation commissioner determined claimant proved "that she sustained a temporary aggravation, but did not prove that she "sustained a permanent injury as a result of her work injury and denied her request for permanent partial disability payments commissioner affirmed and adopted the deputy?s decision. The district court affirmed.

    The Court found the evidence sufficient to conclude, as deputy did here, that Claimant had a long history of back problems preceding her work injury, and that there was substantial evidence to support the agency?s determination.

COURT OF APPEALS

CATIC v. HY-VEE, INC., 8-1059 / 08-1206 (3-26-09)

Claimant appeals denial of her back injury claim. AFFIRMED.

    Claimant tripped over a mop bucket while at work. The Employer admitted that as a result of this fall she had sustained an injury to her left hand, wrist, or arm, and paid medical benefits, through its workers' compensation insurance carrier.

    Claimant filed a petition with the Iowa Workers' Compensation Commissioner, claiming she had sustained an injury to her back, as well as permanent injury to her left wrist. A Deputy determined that, while she had sustained injury to her left wrist, she sustained no permanent disability. The deputy further concluded that Claimant did not sustain a work-related injury to her lower back.

    The Commissioner summarily affirmed the deputy's arbitration decision and adopted it as final agency action.                     

    Claimant filed a petition for judicial review with the district court, and the court affirmed.

   Claimant asserts that the district court applied an incorrect legal standard in affirming that had not met her burden to prove her present back pain was caused by her work-related fall.

    The Court reached the same conclusions and found no merit to her claims of error by the District Court. 

AGENCY APPEAL

WEBSTER V. EATON CORPORATION, 5019482 (3-25-09)

Defendant appeals award of HP, deference to unemployment ALJ, IME expense and denial of cross-examination regarding surveillance. AFFIRMED.

    Defendant failed to show that claimant's termination was equivalent to a refusal to work. While a decision by an ALJ in a claim for unemployment benefits is not binding on the DWC, Iowa Code ¬ß96.6(4) does not prohibit giving deference to it.

    Nothing in ¬ß85.39 requires that a Claimant notify a Defendant before an examination by a physician of Claimant's choice to obtain reimbursement for the examination. "The only condition precedent is a disability opinion by a physician retained by the employer which claimant believes is too low."

    Disallowing cross-examination concerning surveillance activities shortly before hearing was proper, where among other things, it was inadmissible as late and the questions asked of claimant could have no probative value without reliance on it.

AGENCY APPEAL

MCKENZIE V. VERIZON BUSINESS NETWORK SERVICES, INC., 1253297 (3-24-09)

Defendants appeal review-reopening based on failure of Claimant to improve after weight loss anticipated in the prior arbitration decision. AFFIRMED.

    At the time of the prior arbitration proceeding a significant portion of claimant's pain and disabling complaints were attributed to her morbid obesity. Most physicians recommended weight loss to improve her complaints and disability, and the Deputy found that her recovery was complicated by obesity and that the reason the medical providers had not resolved her symptoms was that they were due to her personal situation, primarily her obesity.

    Since the arbitration, and in response, claimant on her own underwent surgery and demonstrated significant motivation to improve her condition as anticipated by losing 242 pounds. Claimant now weighs 153 pounds.

    She, however, had only slight improvement in her pain and did not improve as anticipated. Her disability was, thus not shown to be attributable to obesity and the previous award was appropriately adjusted by the presiding deputy upon review-reopening.

    It was further concluded that the weight loss surgery constituted reasonable and necessary treatment of the work injury. Also, absent any showing of it being simply for cosmetic purposes, follow-up surgery to remove excess skin following claimant's massive weight loss is reasonable and necessary treatment of the work injury.

AGENCY APPEAL

KENT V. DIAMOND SHINE MANAGEMENT SERVICES, INC., 5021501 (3-20-09)

Claimant appealed failure to follow stipulation, extent of PPID and rate, and Defendants cross-appeal on failure to follow stipulation and extent of PPID. AFFIRMED and MODIFIED.

    Although, the Deputy did err in believing injury to both shoulders was stipulated, injury to the contested side was found due to work activities coupled with compensating for injury to the other shoulder. The Deputy also erred in failing to address the bilateral arm claims.

    The Deputy awarded 40% PPID on the shoulder injuries, but did not consider the arms. After discussion of the factors of PPID, and noting that 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." The Commissioner awarded 70% PPID.

    Several of the 13 weeks prior to injury were excluded, from calculation of the 13 week average for AWW  & rate calculation, as unrepresentative in that they included weeks with holidays for which he was not paid, in which the company truck was broken and he could not work, in which claimant was unable to work due to a back strain and due to inclement weather, and in which he was unable to work due to a coworker being unavailable to work as his partner.

SUPREME COURT

GEORGE v. D.W. ZINSER COMPANY,  07-1495(3-13-09)

Employee appeals dismissal of retaliatory discharge & unpaid wage claims. Court of Appeals AFFIRMED in part & VACATED in part; District Court REVERSED.

   Whistleblower fired after reporting lead abatement safety violations to IOSHA was terminated soon after. Complaints filed with IOSHA and District Court were dismissed.

    District Court found Division dismissal precluded action before it. However, the Division's investigation and dismissal was not an adjudication on the merits, and the remedy provided in IOSHA is not exclusive, so preclusion was not appropriate, and Employee may bring a common law action for wrongful discharge.

    The Employee did not have a full and fair opportunity to present evidence or respond to the Employer's position. He had little to no control over the agency's investigation. The Division did not hold a hearing on the issue. It only conducted an informal nine day investigation. The parties were not afforded a full and fair opportunity to litigate the matter in dispute. The only participation by the Employee in the process was the filing of a complaint.

    Court of Appeals affirmed dismissal of discharge claim, but reinstated wage claim.

    Issue preclusion, res judicata, exclusive remedy, wage and retaliatory/wrongful discharge issues were all discussed, as well as the public policy behind retaliatory/wrongful discharge, all discussed, and now applied to complainants, as they have been in workers' compensation matters.

SUPREME COURT

LARSON MANUFACTURING v. THORSON, 06-0799 (3-13-09)

Employer & Insurer appeal denial of stay of enforcement of judgment. AFFIRMED.

    Review of the record disclosed the district court did balance the factors enumerated in section 17A.19(5), including the extent to which Defendants were likely to prevail in the judicial review. The decision recent decision in Thorson II, revealed the district court's correct assessment of the insubstantial likelihood that Defendants would prevail on judicial review, and no abuse of discretion was found in the court's consideration and balancing of this factor.

    The Due process issue was not reached in view of Defendants' posting of supersedas bond and lack of evidence of satisfaction of any part of the judgment before Thorson II was decided.

COURT OF APPEALS

BOWN v. HANDY INDUSTRIES, L.L.C., 9-024 / 08-0636 (3-11-09)

Claimant appeals dismissal of judicial review seeking benefits of shoulder, as opposed to elbow, injury, and award of credit for weekly benefits already paid. AFFIRMED.

    The Court found that viewing the record as a whole, substantial evidence supports the commissioner's determination that Bown did not establish a connection between the rotator cuff injury that was diagnosed in October 2004 and her August 1, 2002 work injury. Only one medical expert-Dr. Fabiano-offered an opinion that the two were related. As the commissioner pointed out, Dr. Fabiano's initial examination of Bown occurred over two years after the work injury. Other physicians who had examined or treated Bown in the interim, such as Drs. Murphy, Riggins, and Skaletsky, were unable to find any objective signs of a shoulder injury. Furthermore, Dr. Jochins, who examined Bown around the same time as Dr. Fabiano, specifically disagreed with his finding of a work-related shoulder injury.

     Claimant's arguments regarding credit were not preserved for appeal.

COURT OF APPEALS

BRIDGE v. KARR TUCKPOINTING CO., 8-993 / 08-0936 (3-11-09)

Former Employee appeals denial of cumulative knee injury claim based on 90 day notice requirement of §85.23. REVERSED & REMANDED.

    Claimant filed his petition on May 10, 2004 alleging May 17 and July 18, 2002 injury dates, the Deputy agreed with the July 18, 2002 injury date, since treatment had been sought on that date, but denied based on lack of timely notice. The District Court affirmed.

    However, on May 27, 2004, a physician reported that he believed Claimant's degenerative arthritis was not caused by work, but was "materially aggravated . . . and the necessity for arthroscopic surgery has been accelerated because of his type of work." This report marks the first time that Claimant received a medical diagnosis indicating that his condition was permanent and would require surgery. Until this report, there was no indication that Claimant was alerted to the seriousness, and therefore probable compensable nature of his injury which had aggravated his degenerative arthritis.

    The agency did not have substantial evidence to find that the ninety-day period for notice of "the occurrence of the injury" under Iowa Code section 85.23 had run prior to the information Claimant received from the doctor in March 2004.

AGENCY APPEAL

KAUFFMAN v. HEHR INTERNATIONAL, INC., 5007481 (3-5-09)

Claimant appeals denial of heart attack death claim on res judicata or issue preclusion. AFFIRMED.

    Claimant rightfully notes that if the state of Kansas imposes a greater burden of proof on claimant than would be applied under Iowa law then issue preclusion should not be applied in this case. However, after reviewing the Kansas cases cited by claimant in a well-researched brief, I am not able to conclude that Kansas does place a greater burden in such cases where there is a possible idiopathic cause of death or illness.

    While the decedent in this case certainly died in the course of his employment as a truck driver, there is insufficient evidence to show that this truck accident or claimant's death arose out of his employment. A preponderance of the evidence does not support a specific finding as to the cause of claimant's death. The experts relied upon by claimant, who opine for a traumatic cause of death, are contradicted by the lack of evidence of injury or trauma on the decedent's body. The only such evidence of a traumatic cause of death are claimant's broken ribs and the chest cavity bleeding, which a physician credibly explained were caused by the procedures taken by medical personnel to revive the decedent. The experts opining that the sole cause of death was a heart attack before the truck left the roadway are contradicted by witnesses who found a strong pulse in decedent after arriving at the scene of the accident.

AGENCY APPEAL

WILLIAMS v. KW PRODUCTS, INC., 5022944 (3-4-09)

Claimant appeals denial of penalty on scheduled member PPD where restrictions were medically imposed, but a 0% given. AFFIRMED.

    The issue is the extent of loss of functionality, an argument that the restriction is only prophylactic to prevent injury, rather than evidence of loss of function, is fairly debatable and sufficient grounds to deny permanent disability benefits without risk of a penalty, at least until this agency issues a final decision to the contrary.

AGENCY APPEAL

REINSCH v. WAYNE LARSON RACING SPECIALISTS, INC., 5018292 (3-3-09)

Defendants' appeal award based on reaching into a drawer to retrieve a computer disc and PPID for balance problem. AFFIRMED.

    While claim based solely on the reaching would not be compensable under Blue, the doctor, found medical causation based upon the drawer incident given additional history of lifting, bending, and being placed into awkward positions while performing mechanical work earlier on the day of the injury. Clearly, the doctor did not feel that the limited activity just before the onset of symptoms was the only causative factor.

    The Deputy's finding of permanency was based on claimant's credible testimony that he has a significant problem with balance due to post injury lower extremity problems. Regardless of the lack of any physician-imposed restrictions, this is a significant limitation for a worker with an employment history of high steel work. The law requires the commissioner to consider all evidence, both medical and nonmedical, in arriving at a disability determination.

SUPREME COURT

BOEHME v. FAREWAY STORES, INC., 07-2094 (2-27-09)

Claimant appealed denial of claim for additional benefits after alleged exhaustion of credit for third-party recovery. AFFIRMED.

    Claimant was injured when an ice cream cart fell on him. Medical and weekly were paid by the Employer.

    Six years later Claimant settled his third-party claim against the manufacture of the cart. Employer was reimbursed and had a credit for future benefits.

    After the credit was allegedly exhausted, Claimant filed a review-reopening seeking additional benefits and attorney fees. The Deputy found that the claim for weekly benefits was barred by the statute of limitations. On appeal to the Commissioner, Claimant asserted that the statute did not apply because of equitable estoppel. The Commissioner affirmed and determined that the estoppel issue has not been decided, although it was raised at hearing, the Deputy and was thus not preserved for appeal. The District court affirmed the Commissioner.

    While appeal on the statute of limitations issue was pending, the commissioner directed that hearing be held on the medical expense issue, and the Deputy hearing that issue, awarded medical, but found the attorney fee claim to be barred by Iowa Code ¬ß515B.2(b)(4) & (8) and the language of a Memorandum of Third-Party Settlement entered into by the parties.

    Claimant appealed this ruling as well and the Commissioner affirmed, finding that Claimant had failed to preserve estoppel and whether credits should be construed as payment of weekly benefits so as to extend the statute of limitations.

    The Court held that the Claimant had three years from the last payment of weekly benefits by the Employer, or its insurer, within which to seek additional weekly benefits.

    And, that IAC 876-4.28(7) only required that an issue be "presented to the deputy" to be preserved for appeal, NOT that it also be ruled upon, but that this issue had no merit, as the Employer had not made any false representations, nor concealed material facts when filing the third-party settlement agreement with the Commissioner's office. Furthermore, Claimant was represented by his own counsel who had a duty to advise him.

    The language of the Memorandum of Third-Party settlement, "The parties . . . do not stipulate or agree, or in any manner concede that the Claimant is entitled to any specified degree of permanent physical impairment or industrial disability, either now or in the future. . . ." does not support that any credits taken against weekly benefits were to be considered as payment of weekly benefits. As stated by the Commissioner, and affirmed by the District Court, "[t]he terms mandated the commencement of a contested case to determine entitlement to any additional benefits."

    Although, the insurer would ordinarily have the obligation to pay its pro rata share of attorney fees and expenses in obtaining the third-party recovery, here that carrier was insolvent, and the Iowa Insurance Guaranty Association (IIGA) standing in its place. The Fund is protected by Iowa Code ¬ß515B.2(b)(4) & (8). Also, the contract specifically set out the amount of the credit given the insurer and did not reference payment of attorneys' fees or litigation expenses.

    NOTE: Claimant was entitled to past medical expenses incurred after the date of the third-party settlement in the amount of $13,520.87 (to be deducted from the Employer's third-party settlement credit), however, with the whole credit being $135,026.11, it will be some time before additional medical benefits could be owed.

AGENCY APPEAL

JOHNSON V. MCANINCH CORPORATION, 5018811 (2-24-09)

Defendants appeal penalty urging violation of a work rule defense was reasonable. MODIFIED.

   Defendants point out that a legal basis existed to fairly debate that claimant's injury arose out of his employment due to his actions of defecating in a spoil pile.

    A claim is "fairly debatable" when it is open to dispute on any logical basis.

   The Deputy found that, given the very close factual similarity to Sachleben, the defendant's position was unreasonable and awarded penalty benefits.

    Defendants, however, set forth various facts to distinguish this claim from Sachleben v. Gjellefald Construction Co., 290 N.W. 48 (Iowa 1940)(In Sachleben, the employee was injured while attending to personal relief between two rail cars.) Although the ultimate conclusion of the agency was that claimant's injury arose out of his employment, defendants were reasonable in denying benefits as they presented sufficient evidence of a genuine legal dispute on this issue. The assessment of a penalty in this claim was reversed.

AGENCY APPEAL

LAUSE V. UNITED PARCEL SERVICE, INC., 5022829 (2-24-09)

Where Claimant's hand injury resulted from loss of temper, Defendant appeals finding of injury arising out of and in the course of employment, and denial of willful injury defense. REVERSED.

    After discussion of issue preservation the Commissioner found that the primary issue of whether claimant's injury arose out of and in the course of his employment was preserved for review on appeal despite (the lack of) a specific finding by the deputy.

    Claimant was a part-time unloader. He asked to go home as he had other matters he wished to attend to as he was remodeling his basement. His request was denied. He acted in a juvenile and immature manner and was heard hitting a UPS trailer and witnessed hitting two boxes.

    While in another trailer by himself claimant hit his right hand and broke a bone in his hand. There were no witnesses to this incident. Claimant was terminated by UPS for destroying customer packages and creating a hostile work environment. Claimant admitted at the hearing that he had initially lied to his employer about how he injured his hand. Claimant justified his dishonesty saying he did so in order to avoid termination. Overall, claimant was not a credible witness. He lied to his employer about the cause of his injury and he was less than straight-forward in his deposition concerning the cause of his injury. His statements that he was trying to pump himself up by hitting objects at work, as well as his general demeanor, made his testimony unbelievable. The record is clear that the claimant broke his hand by hitting it against an object in a UPS trailer.

    While the Commissioner agreed that Defendant had not shown that claimant intended to injury his hand, the nature of this claimant's employment as an unloader of boxes from a semi-trailer did not expose him to risk of injury from irrational anger or immaturity.

    Consequently, such an injury does not arise from his employment with defendant employer.

AGENCY APPEAL

KAUFFMAN V. FLEETGUARD, INC. (NON-PARTY), 5022780 (2-18-09)

Second Injury Fund appeals 35% award for combined effect of two scheduled injuries. AFFIRMED.

    Claimant is not required to show that the prior qualifying injury independently resulted in any industrial loss. It is the cumulative effect of the scheduled injuries resulting in industrial disability to the body as a whole rather than the injuries considered in isolation that triggers the Fund's proportional liability.

    The industrial loss found by the hearing deputy was the sole result of the combined effect of the two qualifying injuries, not the combined effect of all of her problems such as her RSD problems. WALSHIRE

SUPREME COURT

LARSON MANUFACTURING v. THORSON, 06&endash;1954 (2-13-09)

Employer & Insurer appeal long term cumulative trauma award on issues of issue preclusion, notice (due process, not §85.23), statute of limitations, substantial evidence of TPD & PPID, medical and IME expense. AFFIRMED, except as to award of costs for a second IME, REVERSED.

    Claimant started her employment in 1974. Her job duties changed over the years, to eventually include work station rotation,  but consistently involved continuous, repetitive movement and, occasionally, overhead work.

    She first sought chiropractic treatment for neck and shoulder pain in 1986. She next received medical care in August 1992 for shoulder and wrist symptoms, and was on light duty until October when she was released for return to work with no restrictions. April 26, 1996. she again consulted a physician for problems with her her lower back, shoulders, and elbows for the past eighteen months, and was again placed on light duty. November 25, 1996 after completing physical therapy, Larson transferred her to less stressful work, but she continued to treat until August 1998 when she was told she might have fibromyalgia and that she might benefit from a pain clinic.

    Addressing the issues:

   1)    The preclusion claims failed as to changes in how issues were decided differently by the Commissioner on remand than in earlier appeal decision the  because the issues were not decided in a "prior action." The Commissioner's two decisions are parts of a single action, not adjudications of consecutive actions.

   2)    After detailed review of the cumulative injury and the "manifestation" rule, Defendants contention that their right to due process was violated when the commissioner found a date of injury more than three years prior to the date alleged in Claimant's petition were rejected as they had ample notice in the petition and and medical records as evidenced by her light duty assignments.

   3)    Although, under the "manifestation' rule, the Commissioner found that her injury was manifest on April 26, 1996, and she did not file her petition until July 23, 1999, for purposes of filing within the statute of limitations, the "discovery" rule requiring, among other things, that she know her injury is serious enough to have a permanent adverse impact on her employment or employability had not occurred, as she was still working full time, and although on light duty, had not been given any permanent work restrictions nor rating of permanent impairment.

   4)    On the permanent partial industrial disability issue, it was not error for the Commissioner to consider loss of overtime earnings. Also, Defendants failed to show that the Commissioner's award was substantially based on her claimed loss of an undetermined amount of overtime earnings. And there was substantial evidence to support the 25% award.

   5)    Temporary partial disability benefits under ¬ß85.33 were appropriately ordered paid for times prior to April 26, 1996. The phrase "after the injury" in section 85.32 was interpreted to permit an award of temporary partial disability benefits upon proof of a diminution of a claimant's earnings during periods of temporary incapacity caused by a work-related condition which later manifests as a cumulative injury. Thus, TPD is payable for periods of time prior to the the date of injury determined by "manifestation."

   6)    The plain language of section 85.27(1) requires the employer to pay for all medical costs incurred as a result of an injury compensable under chapter 85. Section 85.27(1) does not expressly limit the employer's liability for medical costs to costs incurred following manifestation of a compensable workers' compensation claim. Thus, medical is payable for periods of time prior to the the date of injury determined by "manifestation."

   7)    Having paid for a prior examination, Defendants contend the plain language of ¬ß85.39 precludes liability for a subsequent examination. They are correct.

AGENCY APPEAL

RICKARD v. VODEC, 5022477 (2-6-09)

Defendants appeal 25% PPD of arm for lateral epicondylitis of the elbow. AFFIRMED.

    The presiding deputy commissioner erroneously concluded the parties had stipulated that claimant's condition was permanent in nature and caused by the work injury on January 12, 2006. Defendants did not stipulate that claimant had sustained a permanent condition as a result of her work injury. The hearing report listed causation to a permanent condition as an issue to be determined by the presiding deputy. Since causation was listed as a disputed matter, claimant bears the burden of proof.

    Many of her duties required repetitive use of her arms. She testified her problems developed gradually but never fully resolved even though she underwent surgery, and that she was unable to open jars and lids with her left arm and hand. She demonstrated to the presiding deputy how difficult it was for her to twist or supinate the left arm. Claimant testified she experienced pain whenever she performed her regularly assigned duties and she often requested assistance from co-workers when she was required to lift and carry heavy objects.

    She has established by a preponderance of the evidence she has a permanent condition of the left arm relating to lateral epicondylitis.

    Although, the deputy's determination the tremors were related to claimant's work injury are expressly overruled.

    The Commissioner could not find that the presiding deputy based his finding on the extent of claimant's scheduled disability in reliance upon the left arm tremors.

    Therefore, the presiding deputy's finding that claimant has a functional loss of 25 percent of the use of her left arm in the activities of daily living as a result of her work injury was affirmed as supported by the medical records coupled with claimant's credible testimony.

COURT OF APPEALS

DONALDSON COMPANY v. BANKS, 8-896 / 08-0816 (2-4-09)

Employer appeals 40% PPID award based on sensitization to isocyanate resulting chemical spill. AFFIRMED.

    After cleaning up a chemical spill at work, Claimant experienced various symptoms, including difficulty breathing, heaviness in her chest, nausea, as well as back and chest pains. A physician at the University of Iowa College of Medicine, pulmonary division, concluded that she suffered from isocyanate exposure, leaving her sensitized and therefore more susceptible to a severe asthma attack upon re-exposure. The Employer was unable to find a position that would isolate her from further isocyanate exposure, forcing her to seek other employment. Due to her limited educational background, and inability to seek another factory job, she obtained a job as a debt collector, at a lower pay level.

    On judicial review, the district court affirmed the forty percent industrial disability, but reversed the award of future medical expenses due to Bank's previous asthma condition.

COURT OF APPEALS

BENCO MANUFACTURING v. ALBERTSEN, 8-892 / 08-0746 (2-4-09)

Claimant suffered an idiopathic fall resulting in a broken neck & appealed from District Court remand to the Commissioner. REVERSED AND REMANDED.

    Claimant worked the midnight shift at Benco Manufacturing on the day of her injury. While working she went to the lunchroom to get a cappuccino. She next walked to the restroom. After she opened the door she thinks/assumes the door hit her on the back of her head. She fell backward, striking her head on the concrete wall screening the restroom from the work area.

    The Court agreed with the district court's conclusion the agency's utilization of the positional-risk doctrine is contrary to current Iowa law. However, this conclusion did not necessarily require a remand because the commissioner found her injury compensable on an alternative basis: claimant experienced an idiopathic fall (falls due to personal conditions) and was entitled to benefits because, Iowa awards benefits for "injuries resulting from risks personal to the claimant . . . where the employment . . . aggravates the injury." The cement wall screening the restroom door is related to the working environment and aggravated her injury from her fall by breaking her neck. See, Koehler Elec. v. Wills, 608 N.W.2d 1 (Iowa 2000) and Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law ¬ß 9.01(4)(9)(b) at 9-8 (2007).

COURT OF APPEALS

ROJAS v. PINE RIDGE FARMS, 8-884 / 08-0554 (2-4-09)

Appeals from apportionment of survivors benefits. AFFIRMED.

    Raul Perez Rojas was born and raised in Mexico. He married Yolanda in a religious ceremony in 1987. Soon after, Raul began traveling into the U.S. to work. He returned to Mexico periodically and fathered five children with Yolanda: and regularly sent money to Yolanda. She relied on that money as her "major, if not sole, source of income." In 1999, while living and working in Iowa, Raul married Jody. They had one child together. Jody was not aware Raul had a wife and five children in Mexico. She believed the money he sent to Mexico was for his parents. Yolanda was also not aware Raul had married Jody and fathered a child with her.

    On February 15, 2004, Raul was killed in an accident at work. Jody and Yolanda each applied for survivors' benefits under Iowa Code section 85.31 (2005). The deputy workers' compensation commissioner found that Jody was Raul's surviving spouse because Yolanda's marriage to Raul was not legally recognized in Mexico. However, the deputy determined Yolanda was a dependent of Raul under sections 85.31(1)(d) and 85.44. The deputy accordingly allocated fifty percent of the death benefits to Jody as the surviving spouse and twenty percent to their son Samuel. The remaining thirty percent was assigned equally to Yolanda and her five children. The deputy further ordered that one-half of the benefits apportioned to Yolanda and her children should be paid to the Second Injury Fund of Iowa (the Fund) as mandated in section 85.31(5).

    Both parties separately appealed, and a different deputy affirmed the arbitration decision with additional analysis. The deputy on appeal found that because "Yolanda and her family received approximately fifteen percent of Raul Rojas's earnings," they should likewise "receive fifteen percent of Raul's death benefits." He further found the hearing deputy was correct in apportioning thirty percent of the death benefits to Yolanda and her children because that would result in them actually receiving fifteen percent due to the effect of section 85.31(5).

    Yolanda additionally claims that Iowa Code section 85.31(5) (2005) is unconstitutional and irreconcilably conflicts with section 85.51.

    The court concluded that the agency did not err in its equitable apportionment of survivors' benefits. Further, as nonresident aliens, Yolanda and her children do not have standing to assert State or Federal constitutional challenges. Their claim that section 85.31(5) irreconcilably conflicts with section 85.51 was also rejected.

AGENCY APPEAL

WHITNEY v. ROBERT WEED PLYWOOD CORP., 5022009 (1-29-09)

Defendants appeal 35% PPID award, and 50% penalty awarded despite death of the adjustor. AFFIRMED.

    The presiding deputy awarded 35% PPID where Claimant, but for payment of tuition owed, had completed a four year college degree in elementary education and, upon payment could have become a licenses teacher in Iowa. Her work experience was in manual labor positions. She decided not to return to this employment, although, no physician opined she was unable to. The employer offered employment. The company cannot be held responsible for any loss of earnings. She decided for her own personal reasons not to return to work at the plant and was unemployed for about seven months.

    She then started sit-down-work as a telemarketer earning approximately what she earned for this employer.

    She was given ratings of impairment of five and twenty-seven percent of the body as a whole. The latter rating included her depression, a back condition, as well as the loss of her toe, the numbness in her foot, a phantom limb sensation, and her asymmetrical gait. She is required to use an orthotic, and compression stockings, she testified she has swelling and pain when she stands for a long period of time, and has been restrictions that limit her ability to stand for any length of time.

    Claimant received temporary benefits but did not receive voluntary payment of permanent partial disability benefits until two days before the hearing. Claimant had obtained a rating of impairment of five percent, but benefits for this amount were not paid immediately.

    Defendants were admirably candid in admitting a delay occurred, but may have been unavoidable because of the illness, disability, and eventual death of the claims representative assigned to the present case. The situation is certainly regrettable. On the other hand, the insurer is a large company charged with making compensation payments voluntarily when due. In this case, the claims file could have been reassigned to another adjuster much earlier in the process and payment could have been tendered in a timely fashion without delay to the injured worker.

    Defendants argue they should be absolved of responsibility for the late payment because their claims representative was ill and had died before claimant could be paid her permanency benefits. However, section 86.13 mandates a penalty unless the delay in payment was necessary for the insurer to investigate the claim or the employer's liability was fairly debatable. Neither of the two situations is applicable to the present case. Defendants admitted liability for the claim. A permanent impairment rating was provided by defendants' doctor several months prior to the date of the hearing. Payment should have been made following receipt of the rating.

AGENCY APPEAL

HAMPTON v. SECOND INJURY FUND OF IOWA, 5021211 (1-9-09)

The Fund appeals award base on right and left upper extremity injuries. AFFIRMED.

    The Fund contends claimant's first injury of October 2000 was a simultaneous injury to claimant's right and left upper extremities. Because claimant's second loss was to his left upper extremity, the Fund argues claimant has failed to establish a second qualifying injury, as the second injury is allegedly not to another qualifying member.         

    The Fund cites Kratzer, an unpublished decision from the Iowa Court of Appeals. This agency is not bound by an unpublished decision from the Iowa Court of Appeals. Claimant did not allege a bilateral first injury. In George, the Iowa Supreme Court held that if one of the two injuries includes more than one member, this does not preclude a claimant from entitlement to Fund benefits. CHRISTENSON

AGENCY APPEAL

RYAN v. IOWA CONCRETE CUTTING, 5020691 (1-8-09)

Defendants appeal 15% PPID for electrical shock, based on criminal record including multiple theft convictions. AFFIRMED, MODIFIED to 40% PPID & REVERSED to award penalty.

    While sawing concrete, claimant struck a live wire carrying 480 volts. He suffered urinary incontinence and left arm numbness.

    Claimant had a disturbing criminal background involving multiple theft convictions. During the discovery proceedings relating to this contested case, claimant was not initially forthcoming about his criminal record. He also attempted to hide his criminal record when he applied for certain jobs. The Commissioner shared the presiding deputy's concern with claimant's willingness to put forth honest answers in this contested case. Claimant's multiple theft convictions severely tainted his credibility in seeking compensation as he has a clear propensity for taking that to which he is not entitled.

    Defendant argues on appeal that the issue of whether claimant sustained a compensable injury, and the issue of causation, are dependent on claimant's credibility.

    Defendant provides no logical explanation for why the agency should disregard the significant injurious event witnessed by a fellow laborer, the consistent reporting of medical symptoms immediately following the injurious event, the unrebutted testimony regarding the nature of the conversations between claimant and his supervisor, and the unrebutted medical evidence on the issue of causation. The mere fact that claimant was previously

convicted of theft and then attempted to shield himself from the implications of those convictions is not a basis to absolve defendant of responsibility for a very clear workplace injury. Compensability AFFIRMED

    Claimant has voluntarily terminated his employment with defendant and a subsequent employer due to his discomfort and embarrassment caused by his urinary incontinence. Claimant is otherwise unrestricted with respect to his employment opportunities. Claimant is capable of working in the construction field although he will require protective padding, necessitating additional accommodation so that he may use the restroom to urinate or change his protective padding.15% PPID MODIFIED TO 40%.

    The medical evidence universally supports the conclusion that the bladder condition was causally connected to the electrical shock injury. Disagreement over other injuries claimed, notwithstanding, defendant's duty to investigate a workers' compensation claim is a continuing obligation and requires a reassessment whenever additional information becomes available. Defendant failed to act reasonably following the date on which claimant's petition was filed. Denial of penalty REVERSED, $1,000.00 awarded.

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