In the past two months we’ve had three doctors reject direct involvement saying they won’t handle workers’ compensation care cases for injured patients. That’s a concern because good doctors are who we need to be involved. My opinion is that doctors reject these cases because they are sick and tired of some two-bit undergrad educated adjuster telling them how to practice medicine. Iowa has long been behind the eight-ball when it comes to this issue. Our system allows the non-licensed adjuster with a two-week adjuster training school certificate to boss the doctor around with thumbs up or thumbs down to prescribed treatment. The doctor is the one with the medical license, not some two-bit adjuster. I call it micro-managing the medical care without a medical license. 

Doctors need to finally stand up and be counted.

• Iowa Industrial Commission
• FAQ’s at the Industrial Commission
• Who Chooses the Medical Care in a  Workers’ Compensation Case in Iowa?

Who chooses the Medical Care? 

The employer provides medical care reasonably suited to treat the employee’s injury, and has the right to choose the medical care. If the employee is dissatisfied with the care offered, the employee should discuss the problem with the employer or insurance carrier. In certain situations the employee may wish to request alternate care. If the employer, or insurance carrier, does not allow alternate care, the employee (through appropriate proceedings) may apply to the workers' compensation commissioner for alternate medical care. (85.27)

If the employer-retained physician gives a rating of permanent impairment, which the employee feels is too low, the employee does have a right to another examination by a doctor of the employee’s choice at the employer’s expense. (85.39)

Which made me ask the age-old question, can you get electrocuted by urinating on an electric cattle fence? You’d be surprised at the number of people with little time on their hands that have actually written articles on this subject. Maybe it’s our government grant program that needs some fixing.

See the Naked Science Forum, and Peeing on an Electric Fence, August 2, 2009 Audio feeds available. 

And then we get this story from Allen, Nebraska, the cornhusker state. A South Sioux City man died after being electrocuted on a feedlot in northeastern Nebraska last Tuesday. The news report has him working on a highline pole and getting accidentally electrocuted.

You have to know the importance of words and their meaning. Electrocution is not the same as being shocked. Shocked is a bolt of electricity to a human, while electrocution is a shock so severe that death results. Know your words! Teach your children word games and you will increase their brain power.

What happens when you wee on an electrical fence? Answers

And yes, you can watch “experiments” of such acts on YouTube. And no, I’m not linking to them.

See Reader’s Watchdog: Iowa City workers’ comp case will be prosecuted, Lee Rood, April 22, 2012

Reporter Rood’s column is described as; Lee Rood’s Reader’s Watchdog column helps Iowans get answers and accountability from public officials, the justice system, businesses and nonprofits. Contact her atlrood@dmreg.com or by calling (515) 284-8549. To read past columns, go to DesMoines Register.com/readerswatchdog.

What’s a Pulitzer Prize?

Is there a Pulitzer Prize for Public Service?

Pulitzer-winning journalists share their tips

http://www.youtube.com/watch?v=0Ads-cYOv9Q

Here is one description from the Chatsworth Patch.

See, More Iowa “nuclear cowboys” eligible for benefits, Ames Lab workers now qualify for payments, The Gazette quote: “Descriptions of the site’s operations read like an apocalyptic movie script: Toxic waste was burned in open, unprotected pits. Sometimes, workers shot barrels of chemicals with rifles in order to burn them, releasing deadly fumes into the air. In 1994, one Chatsworth scientist, Otto Heiney, and another from Thousand Oaks, Larry Pugh, were killed when the chemicals they were illegally burning exploded. ... There was a certain laissez-faire attitude towards safety,” Gregg Dempsey, a physicist with the EPA said. “After all, it was the Cold War.”

Depending on your exposure level the human body can either repair the damage caused by a small amount of radiation exposure or with heavier doses, cells mutate and years later become cancerous. A good discussion ist in the Chatsworth Patch article.

If you want to see what types of nuclear testing takes place at the lab in Ames choose this link. But don't confuse cowboys and Cowboyz. The two couldn't be any different. 

• The Nuclear Cowboyz are also motorcycle riding stuntmen.
• Nuclear Cowboyz 2012 has the greatest cast of freestyle motocross, trials and quad riders ever assembled, including recent X Games 17 medalists Ronnie Faisst, Adam Jones, Mike Mason, and Winter X Games medalist Caleb Moore. Joined by world-class medalist riders Taka Higashino, Beau Bamburg, Derek Garland, Nixey Danielson, Brody Wilson, Jimmy Fitzpatrick, Dustin Miller, Wes Agee, Matt Buyten, Geoff Aaron, Keith Wineland, Derek Guetter, and Colton Moore,NuclearCowboyz 2012 takes unleashed power to its massive ramps in a freestyle performance of pure danger and raw combat.  

More Iowa 'nuclear cowboys' eligible for benefits
The Gazette: Eastern Iowa Breaking News and Headlines (blog)
(Steve Pope/Freelance) Struss, 80, of Ames, is among a group of former atomic workers recently deemed eligible for compensation due to toxic exposures at Ames Laboratory at Iowa State University. The research and development lab was one of two sites in ...

Being a trial lawyer changes you in ways you can't anticipate. One way is you get really frank about life and death issues. Perhaps we too should wear badges and when we burn out they send us packing. 

Onward we march...

A safety net should never become a political hot potato         and that’s exactly what has happened with Iowa’s workers’ compensation insurance program. First you have the Governor arbitrarily reducing the Industrial Commissioner’s salary and this week Reader’s Watchdog, published Failure to pay worker’s comp called significant problem. Actually I don’t understand the title, not even a little bit. You see I don’t care if there is just one case, (which there isn’t), when even one employer fails to carry required workers’ compensation coverage it is a significant problem. Most people can’t fully appreciate it until they are on the receiving end of being injured and they find out only after incurring significant medical bills.

The only way it’s not significant, is if it’s someone else who is getting injured. When it’s you it’s significant. The title says it all about how the public perceives what it cares about and in turn so does Iowa's Attorney General. It’s a further sign of our moral decay. I guess unless there is a lot of publicity to be had no politiican is going to care.

Richard Homan is the worker injured who got the brush off. Were his medical bills paid or not? You can’t tell from reading the article. He got injured in 2006 when he was protecting the employer’s business from two robbers. For his bravery he gets the cold shoulder. You mean to tell me the owners of Northern Lights Pizza in six years haven’t been able to pull a few thousand bucks out of the cash register to do what the Industrial Commissioner's order requires them to do?

And what does the Attorney General do to enforce the law? Nothing, nadda, zilch, zippo. They sort of blame the injured worker by telling him they will do nothing to assist him unless he can prove criminal neglect. Are you kidding me? Isn’t that your job? Is it the pizza delivery guy’s responsibility to deliver justice?

This is so unfair I can’t even believe I’m reading it in the news.

For the rest of you workers just be on notice that when you come sit in front of the lawyer’s desk with outrage wondering why no one is doing anything about your benefits that put food on the table in front of your kids, remember Iowa’s turning workers’ compensation into a political football game enforced only for those in power. The rest of you, good luck – go buy a lottery ticket.

Hey buddy, I’m Italian and pizza is in my blood; come on down and let’s roll some dough while we find the keys to the cash registers. If the AG’s office won’t do its job to help you, I’ll help you. Your problem may not be important enough for anyone else but I'm guessing it is to you and yours.

Onward we march...

How does one get back on track?

Governor Branstad needs to apologize, restore Godfrey’s pay retroactively and move on to bigger issues that will have the effect of helping the state economically.

Mp3 Audio download.

This is a distraction the State of Iowa doesn’t need.

That the Iowa House Labor Committee had this hearing is the foundation of a platform. If you listen to the testimony it should be obvious Godfrey knows his agency, how it is working and is improving efficiencies. In those respects he’s different than his predecessors; he’s doing a better job. I’ve watched and practiced before this agency for over 30 years and can attest that from an administrative standpoint Chris is doing an excellent job. And remember I’m a registered Republican. So why pick on him? What is being gained? Perhaps the better question is by this action what is being lost?

AUDIO of Godfrey’s appearance before the House Labor Committee.

Read, State commissioner suing governor speaks (audio), O. Kay Henderson, RadioIowa.

http://www.radioiowa.com/2012/01/18/state-commissioner-suing-governor-speaks-audio/

See also,

• Iowa Worker's Comp chief sues governor, claims discrimination
• Iowa to hire outside counsel to defend governor
• Official claims Branstad illegally cut his pay
• Outpatient Costs Higher in States Without Fee Schedules: Workers' Comp Study
• Iowa Industrial Commissioner Sues Iowa’s Governor Alleging Sexual Preference Discrimination

Question:

1. A duty.

2. A breach of the duty.

3. Damages.

4. Your damages need to be proximately caused by the negligence of the "tortfeasor" the wrongdoer.

In your case you are simply missing 3 and 4. You have no damages and therefore no damages were proximately caused by the wrongdoer. Your personal injury is what the law refers to as de minimis. Lay people would use this definition and lawyers this one. Frankly it was what the McDonald's marketing machine was all about but they were completely wrong and fooled most people into believing the sky was falling.

De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2]

In risk assessment it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[3]

An abbreviated form of the Latin Maxim de minimis non curat lex, "the law cares not for small things." A legal doctrine by which a court refuses to consider trifling matters.

In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate.

But the personal injury aside you did also mention a wage loss being caused by your having a tough time keeping a job. It didn’t take me 30 years of practice to know it’s going to be extremely difficult to prove you’re not being able to find any truck driving job is somehow proximately caused by this one little accident. There must be more than you’re telling me; either that or you aren’t trying hard enough to find work.

Make sense? Now get back to work.

... and only women can get pregnant.

A few days ago the post was about the workers’ compensation appeals process and a woman whose initial ankle injury cascaded into a medical condition for her low back pain and then treatment for depression. Her frailness brought back an economist’s maxim about the human condition of an aging population. That’s why the subtitle of this blog is what it is, human capital wears out. But how the insurance industry and the law view the human condition leads me to think one day the fact women get pregnant may be used against them in the claims process. If you think that notion is far fetched, think again. Shortly after the Pease case was reported a lawyer asked me a question with very similar issues. And so today we discuss whether doctors can refuse to do surgery after a work injury unless female workers stop having sexual relations.

Absurd you ask; absolutely but that’s where they are heading.

FACTS: Client has been treating for a torn rotator cuff. While off work he’s getting weekly benefits (TTD). After 6 months of conservative care the medical doctor prescribes surgery and the client agrees to proceed with surgery. It then comes to the attention of the treating doctor, perhaps based on conversation or on preop blood work or whatever, that client is a smoker. MD tells him he needs to stop smoking for 6 mos before he will perform the type of procedure that he recommends. Now I can fully appreciate that smokers don't heal as well as non-smokers do, but get real, are we going to delay medical treatment based on patient habits? If so is sexual activity similar as a bad habit? 

Here is the question my friend, the Chicago lawyer, posed.

LEGAL ISSUE: If the doctor says no to surgery until after the injured worker stops smoking, then is there an ongoing claim for TTD and, if so, for how long, or is the claim one of intermittent TTD, interrupted by PPD during period of smoking withdrawal, or none of the above?

As I pointed out we have this exact issue in one of our cases and we allowed it to go on without resolution and now the doctor has just released the patient without surgery and declared him at MMI. The underlying spinal condition still exists and the symptoms persist, but the insurance company thinks they are off the hook. We are now left with the same diagnosis but no resolution of his symptoms. Where does this end or does the patient have to suffer lifelong spinal pain?

Here is what I thought at the time. The smoking isn't a condition created by a work injury; it's basically as you describe, a self inflicted wound or a choice having to do with a personal habit adding nothing to the employer's trade or business. As such it's nothing that is causally related to the work injury or work. But it is “medical condition” of the patient and the employer takes the employee as he is; not as the employer wants him to be. People aren’t perfect; they are exactly the opposite, imperfect. Some smoke, but that's all part of the human condition. Human capital wears out so the older you get the more physical problems that exist. And if we can exclude for smoking cigarettes then excluding for weight loss while we wait for the patient to stop eating can’t be far behind. If that be the case these cases, medical and legal, will have no end in sight.

What is the relevance of a system that isn’t in touch with reality?

This is what Occupy Wall Street is about, but OWS has no leader that can articulate a clear message to solidify those who are disenfranchised and no longer find this American economic system relevant.

What bothers me about what the doctors are doing is that smoking and eating aren't different in terms of being a personal choice. If cessation of smoking cigarettes is a reason to do or not perform surgery, than isn't also eating or not eating (weight loss) a valid reason? Where do we stop and start?

Stand up if you’re not overweight on an insurance chart. You get my point, we are all overweight. If the law is going to have any relevance to people it has be realistic in terms of what we consider a game changer. But my colleague adds another layer to this argument that I hadn’t considered.

Colleagues Comment: Perhaps the distinction is that smoking impedes the recovery because of its effects on the oxygen supply in the body and the red blood cells and all of the stuff you already know about. I hadn’t thought about the eating analogy. Pregnancy also interrupts medical care. How is that handled in Iowa?

Yeah what about pregnancy and female medical issues? Can a doctor tell a female patient she can’t have surgery unless she stops having sexual intercourse because a pregnancy will interfere with recovery? Where do we start and stop? And when is sexual activity, like smoking or eating relevant?

Today's music video is a play on words. Never assume without knowing. The name of the group isn't what American's think of when they see the word Viagra. This groups name is VIA Gra.

It’s a play on words, the first three letters stand for "vocal-instrumental ensemble" in Ukrainian, and "gra" means "game" (or "play") in Ukrainian.

Same goes for the worker’s litigation team. Although it takes far longer than lawyers and judges like, no one will suggest changing 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 discourage at the length of time it takes, right up until you read the Court of Appeals decision in this case. 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 your dinner 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 me 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.

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.

THE RUB

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?

WHAT’S MALINGERING?

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.

THE RULING

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, print off a copy of the case so you can be prepared for your case, by following this link. 

Is Attorney Tom Wertz the Knute Rockne for the injured workers over in Cedar Rapids, Iowa?

To read more about Iowa’s Going-n-Coming Rule see these posts:

• Huisnetruit's Disappearance is a Going-n-Coming Rule issue, August 7, 2010
• R evisiting the Going And Coming Rule In Iowa
• If I'm hurt while driving to work or home from work am I covered ...
• 2 days ago, I was injured in an auto accident on my way to work. I ...
• Library Category: Workers' Compensation
• Worker's Compensation | Central Iowa Personal Injury Attorney

Hancock County, Iowa

The eastbound vehicle is a Ford Explorer being driven by a 56 year old man from Britt, Iowa. From the report it appears as though the opposing driver died in the crash.

So who is responsible? From a legal standpoint the driver of the semi (and the permissive owner of the semi) is legally responsible for securing the load, including the trailer.

• Iowa State Patrol Crash Report of Christians – Priebe Personal Injury Accident
• KGLO Midday Report on Priebe Fatality Car Accident
• KGLA Obituaries - Link
• Britt man killed in early morning accident, WCF Courier

• Dangerous Trailers.org
• Towing and Trailer Safety – an eight part series from The Chronicle of the Horse be several writers.
• YouTube Report - Dangerous Trailers.org Presents Loose Trailer Kills US Postal Worker
• How To Hook Up A U-Haul Trailer - Braked
• Towing, Towing Safety, Types of Trailers, Towbar Wiring, Towing Capacity, Towing Laws in the U.S. on Wikipedia
• Tow Hitches
• Dangerous Trailers.org Loose U Haul Trailer Causes Loss of Life – Pedestrian Killed by Loose Trailer – U-Haul Trailer breaks free from pickup truck and kills tree worker on side of the road.
• Dangerous Trailers.org Presents Virginia Tagged trailer I-95 No Safety Chains
• One safety chain dragging on the ground – Improper use of safety chains.
• Hitch failure, but driving with only one wheel on the trailer.
• Overloading trailers is also dangerous and unacceptable.

15 Ways to Cause a Trailer to Unhitch While Towing

1. Improper Installation of the Trailer Hitch or the Towing Mechanisms
2. Using a trailer that is beyond the hitch’s rating
3. Not using the chains
4. Using the chains improperly
5. Using the wrong sized ball and socket
6. Overloading the trailer
7. Using a broken hitch
8. Not latching the ball
9. Not securing the security pin
10. Towing a poorly maintained trailer causing excessive pressure on the hitch itself
11. Improperly inflated tires
12. Loading the trailer beyond the axles weight rating and breaking the axle
13. Failing to double check hitch before driving off
14. Not having brakes on the trailer while pulling a heavy load
15. Driving while distracted and not keeping an eye on the load you’re towing

If you think these cases are easy to prove it’s because you’ve never tried to prove one in a court of law. And if you think that insurance adjuster who makes it seem like he’s there to pay you and just has a few questions to ask for his file, good luck with that one. Later this week (December 15, 2011) I’ll post an article titled, The Loss Prevention Department Assassin. You may find it of interest. I’ll update the link after it posts. 

• In the first case out of Salt Lake City a worker identified as Kelton Lee (55) a construction worker who was lifting a heavy piece of pipe when his legs gave out and the pipe struck him in the head. Although he regained consciousness he later died of the head injuries. Read more here from the Vernal Express.
• Next we go to South Dakota where an article discusses the number of deaths in that state. It’s interesting that all workers killed in South Dakota last year were men; men must be taking more jobs with higher risk of injury. Here is a quote from that article. “All but one of those killed in South Dakota last year were men. The Labor Statistics bureau groups farming with forestry, fishing and hunting, and that sector had the highest number of worker deaths, 14. The construction industry followed with seven.
• Every year since 2003, driving associated with work has been as dangerous as or more dangerous than fatal accidents involving equipment or objects and falls. Among fatalities last year, 16 were caused by transportation accidents, including nine highway deaths and seven nonhighway accidents.
• Ten deaths occurred in accidents involving objects and equipment and five were caused by falls.
• South Dakota closely tracks a national trend regarding transportation fatalities. Nationwide, 21 percent of the 4,547 people killed on the job last year died in highway accidents. The nine highway deaths in South Dakota represents 25 percent of the total work-related deaths.
• Nationwide last year, 11 percent of those killed at work were murdered. South Dakota had no such cases.”
• You can read that article from the Argus Leader here. 

Many workers, many accidents, all different locations but several things in common to all – risk, not paying enough attention to safety, material handling, moving machinery, trucks-cars all moving with drivers paying little attention to their surroundings and highway construction crews who are sitting ducks with cell phoned drivers paying more attention to the call than the road. 

Question:

What the heck was the driver looking at anyway? Certainly a young woman walking across a parking lot carrying a bag of trash isn't likely to be moving very fast. The driver should have seen her; but that aside she needs a lawyer.

Her claims/cases are complicated by the intertwining of the two cases and she should hire a lawyer who understands both areas. The hip fracture also complicates the damages along with future medical treatment and arthritis. We do and if we can help give us a call. We've done this kind of work for over 30 years and can get her a decent recovery. If we don't hear from you good luck. 

The Workers Compensation Research Institute touts itself as the leading independent research organization researching and analyzing workers’ compensation issues. But it’s anything but independent or objective. First of all the “group” is not open to the public, it’s private and not anyone can join the group. Where are the lawyer members who represent injured workers? To gain access to the WCRI site you must apply for membership, a method employed by groups who do not wish members who might display objectivity that might question their methods or conclusions. These types of groups are the one’s buying influence in Washington, DC – the same ones that have our Congress in their back pockets.

Further titles suggest the Insurance Journal is just one more arm of the propaganda machine of the insurance industry. It’s the same arm that promotes fiction rather than fact for the sake of marketing and promoting the float.

See Fast Growth in Price for Non-Hospital Services in Indiana Work Comp.

The article written by Rick Ruggles of the World-Herald out of Omaha, explores the dangers, past and present, of farming in rural America. While the article points to engineering as making farming safer it fails to point out how lawyers have contributed to pressuring the re-engineering of farm equipment to make it safer.

Like it or not, lawsuits have done much to make farming a safer profession.

  The three examples that come to mind are unshielded PTO shafts, augers and tractors sold without rollover protection (ROPS). Those three pieces of farm machinery did more damage to limbs and took more lives than probably any other dangers in farming; one still does. Manufacturers packed the standard writing organizations with like-minded engineers who argued changes weren’t feasible. Farmers continued to die while lawyers poured their own funds into litigation suing manufacturers to force loftier engineering standards that ultimately resulted in safer farming equipment.

Of course farmers should hug us not hate us. 

So say you hate us all you want, but we ain’t going away and it has everything to do with life and limb compromised by unsafe products and services. And as personal injury lawyers we know better than to simply catalogue the progress without following the money; our money and what it’s done for farm safety. Turn us away from the courthouses and you shortchange yourself and increase the risks you face while farming. It's pretty simple and sometimes referred to as the Golden Rule. Do unto others as you would have them do unto you.

• Suffocation from quick sand like corn or beans in a bin
• Unshielded PTO shafts
• Tractors on uneven ground and rolling over crushing the driver
• Unshielded Auger Power Shafts
• Being kicked by an animal
• Being overtaken by cold weather in an unprotected location
• Being crushed by machinery
• Losing a limb from working around pinch points and other moving parts
• Being overcome by anhydrous ammonia
• Falling from heights without a fall protection harness
• Being in an accident on the rural farm-to-market roads while driving heavy equipment
• Dying from exhaustion after putting in long hours during harvest

  ---

ARTICLES OF INTEREST

• NSC: Data Still Shows Dangers of Farming, Editorial Staff
• Danger on the farm, Rick Ruggles, World-Herald Staff Writer
• Farmed And Dangerous, Coastal Alliance for Aquaculture Reform
• Accidents a reminder of farming dangers, Jennifer Ewoldt, The Quad-City Times
• Farm Safety, Kids Health
• The Dangers of Farming, Local Harvest
• The Dangers of Industrial Farming, Bryan Welch, Mother Earth News

According to Leliefeld vs Liberty Mutual Insurance Company the answer is yes.

Leliefeld vs Liberty Mutual Insurance Company, No. 1-636 / 11/0047, Court of Appeals Of Iowa, November 9, 2011

Parties: James Leliefeld and Liberty Mutual Insurance Company (No surprise here.)

Attorneys: James C. Huber and Richard G. Book of Huber, Book, Cortese & Lanz,

P.C., West Des Moines, for appellant.

Sasha L. Monthei of Scheldrup, Blades, Schrock, Smith & Aranza, P.C., Cedar Rapids, for appellee (No surprise here.)

Bottom Line: Even the judges are getting sick and tired of the insurance industry business model that denies every claims, stalls in every possible way and thinks the court system is here for promoting the float and allowing huge pay bonuses to wealthy insurance CEO’s.

IN THE COURT OF APPEALS OF IOWA

No. 1-636 / 11-0047

Filed November 9, 2011

JAMES LELIEFELD,

Plaintiff-Appellee,

vs.

LIBERTY MUTUAL INSURANCE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Wright County,  James M. Drew,

Judge. 

A plaintiff appeals from the district court’s order denying in part his motion

to stay proceedings.  AFFIRMED.

James C. Huber and Richard G. Book of Huber, Book, Cortese & Lanz,

P.C., West Des Moines, for appellant.

Sasha L. Monthei of Scheldrup, Blades, Schrock, Smith & Aranza, P.C.,

Cedar Rapids, for appellee.

Heard by Danilson, P.J., and Tabor and Mullins, JJ.2

MULLINS, J.

James Leliefeld filed a claim before the workers’ compensation

commission and while that claim was being litigated,  he filed a civil suit against

his employer’s workers’ compensation insurer in district court.  The district court

denied the insurer’s request to stay the  entirety of the proceedings pending the

resolution of the administrative action.  The insurer appeals and asserts that the

district court should have stayed discovery and the setting of a trial date. 

Because we find the district court did not abuse its discretion, we affirm.

I. Background Proceedings.

On July 16, 2007, Leliefeld was in a work-related motor-vehicle accident. 

On June 4, 2009,  Leliefeld filed a workers’ compensation claim against  his

employer, Knife River, and Knife River’s workers’ compensation insurer, Liberty

Mutual Insurance. 

On July 19, 2010,  while his workers’ compensation  claim was being

litigated, Leliefeld filed a petition in district court seeking damages for bad-faith

denial of  workers’ compensation  benefits and negligent infliction of emotional

distress against Liberty Mutual.    On November 4, 2010, Liberty Mutual filed a

motion to stay proceedings, arguing that the issues on which the suit were based

were still pending before the workers’ compensation commissioner.  It stated that

“extensive paper discovery” had been filed upon it by Leliefeld and the civil claim

had already been set for trial.  Liberty Mutual requested the district court stay all

proceedings, including discovery, pending the resolution of the  workers’

compensation litigation.3

On December 8, 2010, the district court issued its ruling, which stated,

For the reasons stated in the defendant’s motion the court

agrees that this case should not be tried until the plaintiff’s

underlying workers’ compensation claim is resolved.  See Reedy v.

White Consolidated Industries, 503 N.W.2d 601 (1993).  However,

because the incidents that are the basis of the present action

occurred as early as 2007 the court believes it is unreasonable to

deny the parties the opportunity to conduct discovery in the

meantime.  The court recognizes that there might be some conflict

regarding the discoverability of certain information given the

pending workers’ compensation case.  The court believes any such

conflicts can be adequately addressed by way of objections to

discovery requests and hearings on those matters as they arise.

Additionally, the court believes that a trial scheduling

conference is appropriate.  Although there is no way of knowing

when the workers’ compensation case will be resolved it makes

sense to schedule a trial well into the future so that the case can

proceed with as little delay as possible once the other matter is

resolved.  Obviously, if the trial date approaches and the workers’

compensation case is not  yet finalized the trial in this matter will

have to be continued.

Thus the district court granted Liberty Mutual’s motion in part and denied it in

part.

Liberty Mutual filed an application for an interlocutory appeal and

requested the district court proceedings be stayed.  Liberty Mutual asserted that

the district court should have stayed all the proceedings and not allowed

discovery to continue or a trial to be scheduled until the workers’ compensation

case was finalized.   On January 19, 2011, the supreme court granted Liberty

Mutual’s requests.  The appeal was transferred to this court.

II. Standard of Review.

Our review is for correction of error at law.  Iowa R. App. P. 6.907. 

However, the district court is vested with discretion in ruling on a  request for a

stay and therefore, we examine whether the district court abused its discretion in 4

ruling on the motion to stay.  See Reedy, 503 N.W.2d at 603-04 (“[T]he goal of

having material issues of benefit entitlement decided in the first instance by the

industrial commissioner is best handled through a discretionary abstention policy

that operates to delay the consideration of those issues by a court.”).    “We find

such an abuse when the district court exercises its discretion on grounds or for

such reasons clearly untenable or to an extent clearly unreasonable.”   State ex

rel. Miller v. Nat’l Dietary Research, Inc., 454 N.W.2d 820, 822 (Iowa 1990)

(citations and internal quotations omitted).

III. Analysis.

Liberty Mutual asserts the district court abused its discretion, arguing it

was unreasonable to allow for discovery to proceed and a trial date to be set and

cites to  Reedy.    In  Reedy, the federal district court asked the Iowa Supreme

Court whether an employee must litigate and resolve his workers’ compensation

case before bringing a bad-faith claim against a self-insured employer in federal

court.  503 N.W.2d at 602.  The supreme court found that because the workers’

compensation commissioner did not have jurisdiction to consider the civil bad

faith claim, the statutory exhaustion-of-remedy doctrine was not applicable to the

independent tort and the district court  had jurisdiction  over the bad faith claim

prior to the resolution of the administrative proceedings.   Id. at 603;  see also

Brown v. Liberty Mut. Ins. Co., 513 N.W.2d 762, 763 (Iowa 1994).  However, “the

administrative agency has  jurisdiction to settle important factual questions that

may have a direct bearing on the bad-faith claim.”   Reedy, 503 N.W.2d at 603. 

The court held,5

[I]t would be clearly preferable to have the extent of the defending

party’s liability for such payments determined in the first instance by

the administrative agency entrusted with the administration of the

Iowa workers’ compensation laws.  Moreover, we believe that

decisions made through this administrative process that are

relevant to the issues in the bad-faith action will, in many instances,

carry preclusive effect under the principles we recognized in Board

of Supervisors v. Chicago & North Western Transportation Co., 260

N.W.2d 813, 815 (Iowa 1977).

We believe, however, that, within the context of a bad-faith

tort claim based on failure to provide workers’ compensation

benefits, the goal of having material issues of benefit entitlement

decided in the first instance by the industrial commissioner is best

handled through a discretionary abstention policy that operates to

delay the consideration of those issues by a court.  Cases filed prior

to the completion of the administrative process should not be

routinely dismissed on ripeness grounds.  That is a circumstance

that should encourage courts, whenever it is feasible to do so, to

permit the case to  remain on the docket while awaiting the

administrative determination.

Id. at 603-04;  see also  Brown, 513 N.W.2d  at 764 (explaining  that rather than

viewing the issue as one of adjudicative “ripeness,” it was “more an issue of case

management” and courts  were encouraged “to await final agency decision

whenever feasible”).

Liberty Mutual argues that under Reedy, all proceedings should be stayed

until a workers’ compensation claim is concluded.  While the supreme court held

“issue preclusion principles make it desirable to have the extent of an insurer’s

liability determined administratively before the district court entertains a bad-faith

action,” it did not mandate that a stay be granted or all proceedings be stayed.

Brown, 513 N.W.2d at 764; Reedy, 503 N.W.2d at 603-04.  Rather, the decision

to issue a stay was left to the discretion of the district court.  Reedy, 503 N.W.2d

at 603-04.   In the present case, the district court clearly considered the nature of

the case.  The workers’ compensation case had been  fully  submitted to the 6

administrative agency, and the discovery granted in the civil case would  not

affect the resulting agency decision.   While an administrative agency decision

may preclude the bad-faith claim, the issues  raised in the respective claims are

not identical.  See id. (explaining a bad-faith action focuses on the insurer’s predenial conduct, not benefit eligibility, and therefore, accrues upon receipt of

notification the insurer had denied the claim).  Further, the ruling ensures that the

extent of the insurer’s liability would be determined in the administrative agency

action before the bad-faith claim was tried.  We find no abuse of discretion and

affirm.

AFFIRMED.

A second roll-over car accident takes place in Chamberlain, S.D. reportedly killing a northwest Iowa man, Leon Contreras of Estherville, Iowa. The driver is described as 37-year-old Ramon Castillo; neither man is described as wearing a seatbelt, although no details are given about what happened to cause the accident. 

As you can see each of these rollover case is different; seldom are two the same. In the first you have one young driver who could be considered the at-fault driver and with no passengers she would have the only claim. She would file with her own insurance company under the medical pay section of her policy. Beyond getting paid medical bills there is nothing to be paid for personal injury unless she can show there is something wrong with the road, the car she's driving or there is another vehicle with a bad driver.

In the second accident, the passenger’s estate (he is reported to have died), would file a claim with the driver’s auto insurance company and if he has low limits of coverage he may also file with the passenger underinsured motorist coverage policy. Of course if the driver is uninsured and the passenger had automobile insurance then his estate’s administrator will file under the uninsured motorist coverage.

In the third accident the oil service field worker was in the course of his employment at the time of his rollover accident so he would have several avenues to consider for personal injury coverage. First is the workers’ compensation insurance and that’s an easy one. The second depends on whether he was forced off the road by another car or not. If so then there is a third-party case against the at-fault driver and owner of the at-fault car. The next claim as you can see had to do with his claim of receiving shoddy treatment that fell below the standard of care in Wyoming.

So there you have it three different rollover accidents with three different results and places to file insurance claims. And you wonder why they call this “the practice of law”? Note, the operative word is practice. 

Rock crushers and shredders shred rock, engine blocks, appliances and cars. This machinery is dangerous to work around and can be deadly. If you’re interested in seeing how it works, follow the links below. 

If you’re curious about injuries caused by rock crushers a search on Google will provide several stories or YouTube videos involving mining.

http://www.youtube.com/watch?v=-Z9Cm92vfQA

Rock crusher and shredding machinery operating in the workplace: link, link, link, link and link.

This accident got me wondering what a rock crusher looks like. There are several on YouTube that can give us an idea of the scope of this machinery.

Portland, Oregon rock crusher accident being trailered. Link.

For a list of locations see below.

Traffic Camera Proves A Reliable Witness In Crashes, AP provided by KCCI-Channel 8

• Iowa Department of Transportation – Des Moines Area Traffic Speedmap and Cameras Link
• Iowa Traffic Webcams from Leonards Worlds
• Traffic Cameras by State – USA Russia Style link.
• Iowa Webcams link.
• Des Moines area links.
• Iowa Red Light Cameras Map link. 

We were contacted by Paul Shnurr of the Hailo Company, a company that supplies man-lifts to wind mill owners and other high rise structures. Follow the link to see how your workers can be safe while saving money. I’ve copied Paul’s email to me into this blog post.

Iowa man dies in Massachusetts fall
Fort Dodge Messenger
A worker identified as an Iowa man was killed in a fall from a communications tower west of Boston Wednesday. Matt Peterson, spokesman for American Tower ...

Worker killed after falling 500 feet from tower
My Fox Boston
NEWTON (FOX 25 / MyFoxBoston.com) - A worker has been killed in a fall from a ... The victim has not been identified but it is believed he is from Iowa. ...

American Tower Corp. worker killed in 500-foot fall near Boston
Radio-Info.com
The unidentified man, originally from Iowa, was a contractor for American Tower Corp. The company says "We are deeply saddened by the death of one of our ...

Dear M. Lombardi,

My name is Paul Schnurr and I work for Hailo US. Hailo, a company that mostly serves the wind mill industry and renewable energy sector.

Our products are mainly safety access components, such as climbing ladders, fall arrest safety systems and man-lift/elevators for service wind tower technician.

I am reaching out to you today to receive your advice and guidance on how we can show and proof that companies who have service technicians going up and down a wind mill tower will save money with installing a man-lift (elevator for service technician) inside their tower.

I did some investigation and learned that due to climbing a ladder the chances that the technician receives sooner or later joint problems/pain related to climbing a 260 feet tower (about 24 stories tower) are very high. I learned also that this will increase the company’s workers compensation rate.

With using a man-lift (elevator for service technician) those issues will not arise BUT will the opposite will happen. I learned that the workers compensation rate can be reduced due to the reason that a man lift inside of a tower is considered being safer than climbing a ladder! Is this information correct?

The most wind mills (over thousands) across the USA do not have a man-lift installed because companies do not see the actual $$ of savings in workers compensation due to an installation of a man-lift.

I kindly would like to ask if you could please help me to show how much a company would save by installing a man-lift.

Also, when I look from an emergency perspective and a technician needs to be rescued a distance of 260feet on a ladder which will take very long and with that may have significant impact on the rescued person who needs urgent professional help.

Please find some pictures for more information as followed:

Wind mills man-lift for wind mills climbing a wind mill on a ladder to reach the engine room (climbing up to 260feet)

Side note: When we look at buildings almost every 4th or 5th story building has an elevator installed but how can it be that a 260feet wind mill tower (about 24 stories) does not have a man-lift for the technician. Could this industry also be compared to the mining industry? I believe every mine has a man-lift/elevator.

I am very thankful for your help and advice!

Thanks and have a blessed day!

Paul Schnurr