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Lombardi Law Firm

Iowa Workers' Compensation - A DVT and Industrial Disability

Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death

Blog Category:
7/28/2014
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In Iowa workers’ compensation law an injured leg is worth less than is a hurt back, an injured hip or a shoulder.  The reasons have to do with how a leg (scheduled member) is classified legally versus a back (a nonscheduled injury). One of the first questions your lawyer will seek to answer has to do with the extent of the injury and if it goes beyond the scheduled member.

Scheduled members are legs, arms, hands, feet, eyes, fingers and toes.

So what happens when the initial injury is to the leg (scheduled member) but then goes beyond it and into the veins? Is the injury then a non-scheduled injury? In a recent case the Iowa Court of Appeals answered in the affirmative.

Let us say you hurt a leg at work and then develop DVT, how much will you be entitled to receive in weekly compensation benefits? This case will give you a pretty good idea of how to figure it out.

In this case the claimant’s lawyer, Fred Haas did an excellent job of presenting the injured worker’s claim. Great job Fred.

Judge Bower, “We find substantial evidence supports the commissioner’s determination the deep vein thrombosis was a spill-over injury affecting the body as a whole, and Towers sustained a sixty percent industrial disability. Accordingly, we affirm.”

This case begins with a scheduled member injury, a twisted and fractured right ankle. After surgery and physical therapy the ankle never truly healed causing it to swell with prolonged standing along with use of a compression sock. The surgical hardware didn’t seem to help and it too caused problems so a shoe insert was used. Then six weeks post surgery the worker was diagnosed with deep vein thrombosis (DVT) and was referred to a surgeon. Essentially here is what the problems are.  DVT is a condition where blood clots form in the veins and if not dissolved or removed they can move to the heart or lungs and kill you or worse. I say worse because there are some conditions worse than death, like being in a vegetative state with brain damage that completely destroys your quality of life.

ARCHITECTURAL WALL SYSTEMS v. TOWERS - Iowa Workers' Compensation, Ankle Injury with DVT, Deep Vein Thrombosis, Industrial Disability Awarded, 60%!

A deputy workers’ compensation commissioner heard the case and found the DVT was limited to the lower extremity and therefore was not compensable as an industrial disability. That decision was appealed to the Industrial Commissioner.  On appeal to the commissioner reversed the deputy’s decision. The commissioner found the DVT was not limited to the lower extremity, but constituted a non-scheduled injury and awarded benefits based on an industrial disability. Relying on established agency precedent, the commissioner found DVT is a “spill-over” systemic disease that inherently affects the body as a whole. He also determined the medical opinions limiting DVT to the lower extremities were not persuasive because the term “lower extremity” used in the opinions was not synonymous with “leg” as used in the Iowa Code. The commissioner found Towers’s injuries resulted in a sixty percent industrial disability. On appeal, the district court affirmed the commissioner’s decision.

Why is this decision important?

It is important in terms of the dollar value of benefits that you receive as the injured worker. A leg injury is a scheduled member and those benefits do not take into consideration industrial disability. Scheduled member benefit cases only consider functional impairment. Industrial disability is applied to non-scheduled member benefit cases and considers actual loss of earning capacity. Here is a simple example.

Why is industrial disability so important to what I get paid for weekly compensation?

Let’s say you are a concert pianist earning $250,000 a year playing at Carnegie Hall. A member of the orchestra is really jealous of you and she slams the keyboard cover down cutting off one of your fingers. No longer are you able play the play the piano and earn $250,000. Now you work at McDonald’s earning minimum wage while saying repeatedly “Can I supersize that order for you sir?” I know it’s painful, sorry Mickey.

But the Iowa Industrial Commission won’t really care about your new found McJob issues because all they will ask about is what was the AMA rating on the loss of one finger? When awarding your benefits it won’t matter that your pay has decreased from $250k to $25k per year. A scheduled injury is worth less than a non-scheduled injury case. Here take a look at what you get for a case where you get a finger either amputated or functionally impaired.

The award from loss of a finger is between 20 and 35 weeks. No more, just those weeks. We don’t care how it has affected your income, only how it has affected your finger function.

What would the pianist be awarded if she injured her back?

Let us compare the same concert pianist’s claim if it were to her back. Let’s say when the jealous flutist slammed the keyboard cover it caused the pianist to fall off the stool and wrench her back. That’s a completely different case with a completely different analysis. In this case we care that her earnings have decreased by over tenfold and she may be awarded up to 500 weeks and in some instances lifetime benefits. In money terms what is the difference? Thousands of dollars is the difference. Say it again, thousands of dollars.

Attorney Lombardi, Give Us An Example in Dollars and Cents

Assume the workers are married with two children. The pianist will be paid a weekly compensation rate of $1,572.00 while the McDonald’s worker gets $342.30 per week. Now consider the type of injury classification of scheduled versus non-scheduled. The schedule would pay 60 weeks for the thumb, 35 weeks for the index finger, 30 for the middle finger, 25 weeks for the ring finger and a mere 20 weeks for the pinky. Keep in mind the pianist has been compensated $55,000 even though she has now lost an income stream of $250,000 per year. On the other hand if her injury were treated as if it were a non-scheduled injury she could be paid over $775,000. It would just depend on her industrial disability rating. Yes, it is a lot of money, but that is the law.

Granted I have used a very unusual claim but it clearly demonstrates my point about a scheduled member versus a non-scheduled injury claim.

So I tip my hat to Fred Haas for the wonderful job he did in trying this case for his client Donald Towers. And here is the summary.

ARCHITECTURAL WALL SYSTEMS v. TOWERS 

               Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (11 pages)  

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

AFFIRMED

No. 13-1653



Category: Workers' Compensation & Employee Rights


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