Too long; frankly it if the higher the benefit award the longer the insurance industry will fight through the layers of appeal available to challenge the result. Same goes for the worker’s litigation team. Although it takes far longer than lawyers and judges like, no one will change it for fear their clients would be the ones to lose out. So like it or not, it’s here to stay and I see no reason to believe it will change. If you’re a worker you might be mad about the length of time it takes, right up until you read the Court of Appeals decision. Then you’ll want the extra layer of the Iowa Supreme Court.
If you’re a taxpayer and are mad about the cost, you too will be disheartened, right up until the day when you get hurt and need the benefits to put food on the table.
There is no free lunch in democracy. There is no fast checkout lane in American jurisprudence. People can fault the system like Monday morning quarterbacks, but this is as good as it gets when it comes to fairness. So get a grip and join on this ride through the layers of appeal in case no. 09-0724.
No. 09–0724 CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT and EMC INSURANCE COMPANIES v. PEASE
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
On further review, we address whether substantial evidence supports the workers’ compensation commissioner’s findings of fact. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
What happened? Well the injured worker won in the commission, the case was appealed and the Iowa Court of Appeals took away the benefits. Then the case was reviewed by the Iowa Supreme Court who thought the agency got it right and so that court reversed the Iowa Court of Appeals and reinstated the benefits. A lot of work, money spent on lawyers and a bunch of words to just say “Hey injured guy you ought to get paid benefits.” Rules are important in society and in the area of workers’ compensation there are a whole lot of rules and rules about rules. Defense interests like rules because it gives them a bright line to knock destroy someone’s case with little effort. People aren’t perfect, lives aren’t perfect and neither are the lawyers of injured workers or their client’s cases. So let’s take a look at the layers of appeal available in an Iowa workers’ compensation case.
In this case the rule being discussed is the “substantial evidence” test under Iowa Code section 17A.19(10)(f)(2009).
What is the substantial evidence test and why is it important in this case? This test if really important to the defense industry because it allows this industry to argue human imperfection is why the injured person needed medical care. It gives them one more thing to point to in order to avoid having to pay benefits. In other words it can reduce how much they pay. Dick Stevens, a doctorate level economist at the University of Iowa once said to me, “Human capital wears out.” It was Dick’s way of saying when people get old they get tired industry has less and less use for them. That’s especially true in this case as it is with any human being that is aging. In this case Mrs. Pease injured her right ankle on the job; a fact which everyone agreed. And that’s where the fight started. Where the rub came in was what the district court judge referred to as “the nature, scope and effect of the injury.” In layman’s terms that means, “Hey you weren’t perfect when you twisted that ankle, in fact you were aging and wearing out as most humans do so why should we make the insurance company pay for all the collateral damage?” Problems I see with this argument is that we are all wearing out and the employer takes us as we are. No human worker is perfect and every day that goes by we are a little less perfect. If you let employers and their insurance companies pick and choose what they want to pay for and to exclude injuries because of the aging process then we are all in trouble. You know why; because human capital wears out and you’re getting older and frankly wearing out. If aging is a reason to discriminate against Mrs. Pease than so goes it for you and I and we are all screwed.
MEDICAL TREATMENT NEEDS CASCADED
After Mrs. Pease started treating for the bad ankle her medical problems got a whole lot worse for predictable reasons. Because as the problems with the ankle labored on she was soon walking different to avoid the pain and discomfort that goes along with this ankle problem. (Simply put it’s called a change of gait.) The harder and longer a person with a bad ankle tries to avoid using it the more likely they are to develop low back problems. In this case the back pain then started to cause her to miss work for reasons other than the original injury to the ankle. The people trying to get her back to work recognized the fragility of her condition and restricted her activity level and what she could do at work.
So what’s the employer going to do? They fired her, let her go because human capital wears out and they need a newer appliance to do the job. Well, as time passed the injured worker, now out of work and probably sitting at home starts to get depressed about her situation and soon enough she needs some help as she slips into a deeper and deeper depression. It’s not a stretch to see why a lady with a simple ankle injury that makes a back injury worse and who then gets fired for it might get depressed.
And that’s where ‘the rub’ comes into this case. The insurance company for the employer starts to say, “Hey wait, how much of this are we going to have to pay for to treat this aging imperfect human being?” And the employee says, “All of it because all these problems started cascading after the ankle injury and now you guys fired me for being an imperfect human being. While some it existed before the ankle injury, then I was not precluded from the workforce, but now I am.” And the State of Iowa says, “Hold on employer we taxpayers don’t’ want to end up paying for this lady’s medical problems. Remember you and your health insurance company fired her and (I’ll assume) she no longer has health insurance so we need a mechanism to make you guys own up to the problems you’re causing Social Security, Medicare and Medicaid.” The Court system says, okay let’s come up with a rule and we’ll call it the substantial evidence test that says, if there is substantial evidence to support the commissioner’s finding then the commissioner wins and we can move down the road of the appellate process.
SO WHAT DID THE DOCTORS SAY?
The psychiatrist and the surgeon didn’t need any help quickly arriving at the conclusion the lady’s depression had a lot to do with the original injury; yeah she wasn’t perfect and maybe her body and mind were of the type that she’d be susceptible to this kind of depression, but that’s life, because she had surgery, the injury makes it difficult for her to stay active and it’s a “pretty clear case of post-surgical depression”.
WHAT’S THE EMPLOYER SAY?
“Oh my!” says the employer. Are you kidding? We can’t have that being the opinion so off we go to the doctor shopping network and find us a doc whose opinion we can predict will say exactly the opposite. They get that opinion and we are off to the races with a fact dispute that only the Commissioner and then three layers of appellate court judges can decipher, argue about and make sound like this is all that important requiring hundreds of hours to ponder.
No way! Yes, way. But that’s not the end of it, because in this case the lawyer gets busy and works the case.
The injured lady’s lawyer gets a vocational expert to weigh in on the issues and that expert says the injured worker is no longer employable at all. So here comes a claim for permanent total disability. Can you say lifetime benefits?
But what did that insurance company doctor’s opinion conclude? He concluded (drum roll please) that none of the depression was caused by the injury and (another drum roll) “Pease was malingering”. Malingering? That’s a fancy word for faking it. The medical profession likes its words long because they sound more important and the longer the word stays on your tongue the more insidious it sounds. Does he mean she even faked her ankle injury? You know the one that required the surgery. Wow, she’s quite talented if she can do that. Maybe she should have been an actress rather than working for the school district. But let’s give the company doctor the benefit of the doubt and assume the malingering he’s talking about is exaggeration rather than outright faking it. He probably referred to secondary gain – a psychological trait that encourages a person to like the attention they get from being injured. You see it’s not all about money. Sometimes it’s about not having to take out the trash or doing the dishes. I have no idea in this case so please don’t ascribe anything to Mrs. Pease, but the Court said that is what the company doctor stated in a report. In my 30 years of practice there are more reports of malingerers than there are malingerers.
For some reason the industrial commissioner didn’t buy the insurance doctor’s opinions even though those opinions were opined and served in the finest porcelain China that money can buy. What the deputy found (deputies hear cases and then the Industrial Commissioner, the deputies boss, reviews the case if one of the parties doesn’t like the outcome, throws a hissy fit and files an appeal. Of course in high dollar cases the insurance industry falls in love with these layers of appeals because it causes the injured worker’s case to be delayed and with delay it’s more likely the worker will tire and settle cheaper than what it costs to pay what the deputy’s decision is worth. And of course in this case the finding was permanent total disability, meaning lifetime benefits. Yeah you guessed it we are in for the longer haul through every layer of appeal humanly possible.
Wow, we’ve gone from an ankle injury, through surgery, a worsening back, then into depression, being fired and now a lifetime of paying someone to sit at home and do nothing. Is it just me or does anyone else who is reading this see anything wrong with what’s gone on here? I’m finding it difficult to discern who won. But let’s not get ahead of ourselves because there are still the layers of appeal to wade through.
At this point the employer’s insurance company still isn’t’ happy and appeals to the commissioner. The commissioner tweaks the facts, straightens them out on paper for the deputy and files the final agency opinion on the matter. This is one of the reasons why the Govna, Govna Branstad that is, doesn’t like this C’mnishna. Guvna Branstad would rather Mr. Godfrey just write all workers are fat, lazy and aging and that’s got nuttin to do with work. Because C’mnishna Godfrey won’t play the Guvna’s game the Guvna wants him gone. Gone, meaning sayonara Senior Godfrey. Godfrey said no way Jose’ Branstad and refused to go quietly. The Gov was none too happy, kind of like the insurance guys that paid to get him elected, so he lowered Godfrey’s pay to the lowest level he could hoping Godfrey would quit. But the C’mish ain’t going anywhere so he still gets to write the agency findings and the Governor is still stomping his little feet in the not-so-oval office on State Capitol Hill in Des Moines.
Done, you ask? Not quite. Let’s get back to the case.
The employer appeals to the Iowa District Court and asks a judge to review the case. But once out of the agency there are certain rules that apply and those rules constrain the judges from just saying they don’t like the decision and reversing it. District court judges can’t just rewrite the decision according to their own political philosophy. If facts are in the record that support the commissioner’s reasoning and final decision, then everyone above is stuck with it; even if they don’t like it. At the district court level the decision can be changed really only for correction of errors of law, not to rewrite the entire fact analysis; unless the Commissioner got too fancy with his reasoning and found facts that come out of thin air. Well, in this case the District Court Judge found there was substantial evidence for what the Commissioner concluded and pretty much said, “Yeah you were right, I’m not changing anything.”
Guess what? You guessed it, the insurance company remained unhappy as a clam at low tide with clam diggers approaching. The insurance company with its legion of lawyers filed another appeal, this time to the Iowa Court of Appeals. On review at that level the insurance guys finally won one for the Gipper. The Iowa Court of Appeals was not impressed with the medical evidence offered by the injured worker and after a lengthy review found substantial evidence did not support the commissioner’s findings on causation. Now the insurance company is smiling a big toothy grin and thinking, “Ha! We won! Take that injured worker!”
But this injured worker has a persistent legal team of her own and they file a further appeal to the Iowa Supreme Court. That court upon review finds the Iowa Court Appeals decision should not prevail reverses that opinion and finds the Commissioner has substantial evidence to support his conclusion. That means the Commissioner’s reasoning carries the day and the worker wins a lifetime of benefits.
So all this time, money and effort and we are right back to where we started. The problem, as I see it, isn’t with the result, it’s with the time it took for the final decision. Look at the time frame in this case.
Injury date: January 26, 2005
Court of Appeals: April 8, 2010
Iowa Supreme Court Decision: December 16, 2011
Read the decision by following this link.