In re Tweeten
| Docket Number | 22-2081 |
| Decision Date | 22 December 2023 |
| Parties | Lon Tweeten d/b/a Tweeten Farms and Grinnell Mutual Insurance Co., Appellants, v. Corey Tweeten, Appellee. |
| Court | Iowa Supreme Court |
Submitted November 16, 2023
Appeal from the Iowa District Court for Polk County, David Nelmark Judge.
An employer and workers' compensation carrier appeal a district court order denying in part their petition for judicial review of an agency order granting workers' compensation benefits to an employee. Reversed and Remanded.
Christopher S. Spencer (argued) and Stephen W. Spencer of Peddicord Wharton, LLP, West Des Moines, for appellant.
Janece M. Valentine (argued) of Valentine Law Office, P.C., Fort Dodge, for appellee.
An employer and its workers' compensation carrier appeal following an award of benefits to an employee. The appeal raises issues involving three provisions of Iowa Code chapter 85 (2020):
As explained below, the employee's compromise settlement with the Second Injury Fund does not preclude the employee's claims against his employer, but the statute of limitations does. Because the employee has no compensable injury, he is not entitled to reimbursement for an independent medical examination irrespective of any amendments to section 85.39, so we do not reach the third issue. We reverse the district court's order affirming in part the commissioner's award of benefits and remand for further proceedings.
Corey Tweeten worked for his dad, Lon, on the family farm, Tweeten Farms. Corey and Lon were vacuuming grain out of a bin on July 25, 2017, when Corey hurt his right arm. The pain persisted, and Corey sought medical treatment for pain in his right elbow on August 14. He was diagnosed with right lateral epicondylitis (tennis elbow) and advised to take two Aleve per day, ice the elbow, and use a wrist splint to decrease the strain on his elbow. His elbow pain did not subside, and he returned for further medical treatment on January 3, 2018. He was told to continue using over-the-counter pain medicine and ice for his elbow and was referred for physical therapy.
When physical therapy did not help, Corey returned to his local clinic provider on April 13. In addition to the elbow pain, Corey complained for the first time about pain in his shoulder. Corey received a trigger point injection in his right deltoid muscle on May 11 and was scheduled for an MRI. The May 22 MRI of his shoulder revealed nothing abnormal, and another MRI was ordered to scan the distal deltoid in his midarm, which is where Corey's complaints centered. That MRI showed a "significant deltoid insertional tear," which was described as an "unusual injury." Dr. Bryan Warme performed surgery to repair the deltoid tear on June 18. At his October 16 follow-up with Corey, Dr. Warme concluded that Corey had likely overcompensated for the tennis elbow, causing the deltoid tear. Dr. Warme believed both injuries were related to the July 2017 grain bin incident. Lon, Corey's father, had been submitting the medical bills to his health insurance carrier, but he submitted the medical bills related to the surgery to Grinnell Mutual Insurance Company (Grinnell), his workers' compensation carrier for the farm.
Grinnell directed Corey to see Dr. Steven Aviles for an independent medical examination. After his review on August 29, 2018, Dr. Aviles did not think the right lateral elbow pain and the right deltoid injury were caused by the same event. He concluded that the tennis elbow was likely caused by chronic repetitive stress but the distal deltoid avulsion was caused by a traumatic injury, opining that it is not possible for that type of injury to occur from chronic repetitive stress. In a November 12 letter, Dr. Aviles stood by his conclusion that the deltoid tear could not result from a repetitive stress injury and was not work related, disagreeing with Dr. Warme's October 16 conclusion to the contrary.
On January 21, 2020, Corey filed an arbitration petition with the workers' compensation commissioner seeking medical benefits from Tweeten Farms and Grinnell[1] for an upper right extremity injury, asserting an injury date of February 1, 2018. The petition included a claim against the Second Injury Fund premised on a prior right ankle injury in 2008.
Corey sought an independent medical exam from Dr. Robin Sassman, who agreed with Dr. Warme in a January 16, 2021 report that the deltoid tear related to overcompensating for the tennis elbow and was therefore related to Corey's work injury. Dr. Sassman performed an impairment rating and concluded that Corey's right elbow and right shoulder injuries combined for a 5% upper extremity impairment that converted to a 3% whole person impairment. Dr. Sassman's bill for the examination was $4,650.
An arbitration hearing on the petition for benefits was held before a deputy workers' compensation commissioner on March 10, 2021. The Second Injury Fund filed a notice on February 15 that it had reached a settlement with Corey, which was awaiting approval by the commissioner, and that it would not be attending the upcoming hearing. In its April 13 posthearing brief, Grinnell asserted that the compromise settlement with the Second Injury Fund extinguished all of Corey's claims for workers' compensation benefits pursuant to Iowa Code section 85.35(9), divesting the workers' compensation commissioner of jurisdiction to award him additional benefits. The settlement was approved by the commissioner on April 23.
The deputy found that Corey had right elbow epicondylitis and a deltoid tear arising out of the course of his employment from the July 2017 grain bin incident. The deputy applied the discovery rule to conclude that Corey did not learn of the seriousness of his injury until April 2018, which meant that his January 21, 2020 petition did not run afoul of the two-year statute of limitations in Iowa Code section 85.26. The deputy awarded temporary total disability and permanency benefits as well as the costs of Dr. Sassman's independent medical examination.
Grinnell filed a motion for reconsideration, noting that the deputy did not address whether the Second Injury Fund compromise settlement divested the commissioner of jurisdiction to award additional benefits. The deputy concluded that the statutory bar in section 85.35(9) went to the commissioner's authority, not his subject matter jurisdiction, and that Grinnell waived the defense by failing to assert it during the hearing or in the hearing report, raising it for the first time in its posthearing brief. Alternatively, the deputy concluded that the statutory bar did not apply because Grinnell was not a party to the compromise settlement between Corey and the Second Injury Fund and those parties had crossed through the preprinted language on the settlement agreement form stating that the settlement barred all future claims for the injury at issue.
Grinnell appealed to the commissioner, and the commissioner affirmed the deputy's arbitration decision. As to the argument that the compromise settlement ended the commissioner's jurisdiction over Corey's claims, the commissioner substituted its analysis, explaining that the statutory bar goes to jurisdiction over the case, not subject matter jurisdiction, and can therefore be waived. Noting the importance of the hearing report to determining the issues to be decided, the commissioner concluded that Grinnell waived the issue by signing the hearing report without including the issue in the report or raising it during the hearing.
Grinnell filed a petition for judicial review. The district court disagreed with the commissioner's jurisdictional analysis of Iowa Code section 85.35(9) but agreed that the compromise settlement did not bar Corey's claims against Grinnell based on amendments to section 85.35(9) limiting its effect to "the subject matter of the compromise." On the merits of Corey's claim, the district court concluded that the expert reports of Dr. Warme and Dr. Sassman provided substantial evidence to support the commissioner's finding that both the tennis elbow and deltoid tear were causally connected to the July 2017 grain bin incident. The district court disagreed with the commissioner's application of the discovery rule to make Corey's claim for benefits associated with both injuries timely. Relying on a 2017 amendment to Iowa Code section 85.26(1) that expressly defined the "date of occurrence of injury," the district court concluded the discovery rule no longer applied and Corey's claim for disability or medical expenses associated with his tennis elbow-which manifested at the time of the July 2017 incident- were time-barred. But the district court concluded the deltoid tear was a cumulative injury that did not manifest itself until after January 21, 2018-within two years of the date Corey filed his claim. According to the district court, "[n]o case law is needed to infer that knowledge of an injury is a prerequisite for knowledge that the injury was work-related." The district court limited Corey's recovery to compensation for his deltoid tear but not the tennis elbow. Finally, as relevant to the appeal, the district court concluded that substantial evidence supported the commissioner's decision to award reimbursement...
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