DALLAS BAILEY, Claimant
v.
MID-PLAINS INSULATION CO., INC., Employer,
and
EMC INSURANCE COMPANIES, Insurance Carrier,
and
SECOND INJURY FUND OF IOWA, Defendants.
No. 5054523
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
February 21, 2020
Head
Notes: 1402.40; 1403.30, 1801; 1801.1; 1803; 2501; 3202; 4000
APPEAL DECISION
JOSEPH
S. CORTESE II WORKERS' COMPENSATION COMMISSIONER
Defendants
Mid-Plains Insulation, Inc. (MPI), employer, and EMC
Insurance Companies, its insurance carrier, appeal from an
arbitration decision filed on October 17, 2018. Claimant
Dallas Bailey cross-appeals. Defendant Second Injury Fund of
Iowa (the Fund) responds to the appeal. The case was heard on
June 22, 2018, and it was considered fully submitted in front
of the deputy workers' compensation commissioner on July
26, 2018.
The
deputy commissioner found claimant is not entitled to receive
temporary partial disability benefits from March 26, 2014
through July 21, 2014, because he failed to carry his burden
of proof to establish he had a decrease or loss of overtime
hours during that time as a result of the stipulated work
injury which occurred on March 11, 2014. The deputy
commissioner found claimant is not entitled to temporary
total disability benefits for the work injury because
defendants carried their burden of proof to establish
claimant's misconduct and subsequent termination was
equivalent to a refusal of suitable work. The deputy
commissioner found that because claimant is not entitled to
temporary total disability benefits, defendants are not
liable for penalty benefits. The deputy commissioner found
that the fifteen percent upper extremity impairment rating
issued by the treating physician, Caliste Hsu, M.D., had been
paid in full, and in fact had been overpaid by $65.50. The
deputy commissioner found that because claimant had not
reached maximum medical improvement (MMI) at the time of
hearing, due to his most recent surgery in June 2018, he was
not entitled to additional permanent partial disability
benefits at this time.1 The deputy commissioner found defendants
employer and insurer may be liable for further permanent
partial disability benefits following a finding of MMI and
permanency following the June 2018 surgery. The deputy
commissioner found defendants employer and insurer are liable
for charges incurred for medical treatment after June 27,
2017, based on Dr. Hsu's opinions. The deputy
commissioner found Dr. Hsu's opinions regarding causation
and treatment to be more convincing than any other expert in
the case. The deputy commissioner found that because claimant
had not yet reached MMI at the time of the hearing, it cannot
be determined whether claimant is entitled to receive any
Fund benefits until the full extent of the functional loss to
his right upper extremity can be determined. The deputy
commissioner found defendants employer and insurer are
allowed a credit only for overpayments against future
benefits for a subsequent injury, and not with respect to the
injury in this matter, pursuant to Swiss Colony, Inc. v.
Deutmever, 789 N.W.2d 129 (Iowa 2010). Finally, the
deputy commissioner awarded claimant costs for the filing
fee, deposition transcript, and preparation of claimant's
vocational report. Defendants employer and insurer assert on
appeal that the deputy commissioner erred in finding that
those defendants are responsible for medical treatment after
December 14, 2016,2 and that claimant is entitled to future
medical treatment and potential further permanent partial
disability. Defendants employer and insurer further assert on
appeal that the deputy commissioner erred in failing to find
that benefits paid after claimant's termination should be
classified as permanent disability benefits, and those
defendants assert they are entitled to a credit for those
benefits against any future permanent partial disability
assessed with respect to this matter. Claimant asserts on
cross-appeal that his conduct which resulted in his
termination from employment with defendant-employer was not
equal to a refusal of suitable work, and therefore claimant
asserts he is entitled to temporary partial, temporary total,
and healing period benefits, and claimant...