Bailey v. Mid-Plains Insulation Co., Inc., 022120 IAWC, 5054523

Case DateFebruary 21, 2020
CourtIowa
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...

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