BEN KREMENAK, Petitioner-Appellant, vs. STEINER CONSTRUCTION and GRINNELL MUTUAL INSURANCE COMPANY, Respondents-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-664 / 09-0428
Filed September 17, 2009
BEN KREMENAK,
Petitioner-Appellant,
vs.
STEINER CONSTRUCTION and
GRINNELL MUTUAL INSURANCE COMPANY,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Sean W. McPartland,
Judge.
A workers’ compensation claimant appeals from a review-reopening
decision denying additional permanent partial disability benefits. REVERSED
AND REMANDED.
Thomas Wertz of Wertz & Dake, P.C., Cedar Rapids, for appellant.
John Bickel of Shuttleworth & Ingersoll, P.C., Cedar Rapids, for appellees.
Considered by Vaitheswaran, P.J., Mansfield, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MANSFIELD, J.
On August 21, 1996, Kremenak suffered a low back strain while loading
sheets of plywood in the course of his employment with Steiner Construction.
Following the injury, Kremenak underwent an MRI, which demonstrated
degenerative changes at L4-5 and L5-S1, asymmetric disc bulging at L4-5
affecting the L5 nerve root, and a central disc bulge at L5-S1 that was of
questionable clinical significance.
As a result of his injuries, Kremenak filed a petition for workers’
compensation benefits. This claim resulted in an appeals decision by the Iowa
Workers’ Compensation Commissioner on October 28, 1999. After determining
Kremenak’s permanent work restrictions to be no lifting above seventy-five
pounds and avoidance of repetitive bending with the back, Kremenak was
awarded weekly benefits based on a fifteen-percent industrial disability.
While this decision was on appeal to the supreme court, the parties
entered into an “Agreement for Settlement” vacating the appeals decision and
awarding Kremenak a loss of earning capacity equal to a permanent partial
industrial disability of 22.740184 percent.
The settlement agreement was
approved by the workers’ compensation commissioner on November 28, 2000.
On November 25, 2003, Kremenak filed a petition for review-reopening
pursuant to Iowa Code section 86.14 (2003). He claimed that he had sustained a
worsening of his back and economic condition and that he was entitled to
additional permanent partial disability benefits.
In defense of Kremenak’s claim, Steiner Construction argued that
Kremenak could not prove by a preponderance of the evidence that subsequent
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to the settlement agreement (1) he suffered an impairment or lessening of
earning capacity proximately caused by the original injury and (2) any such
change was not contemplated by the parties at the time of settlement.
See
Acuity Ins. v. Foreman, 684 N.W.2d 212, 217 (Iowa 2004).
At an evidentiary hearing on June 13, 2006, the parties submitted the
medical records and opinions of four doctors as to whether Kremenak suffered a
change in condition proximately caused by the 1996 workplace injury.
First,
Dr. David Durand noted “significant changes” when comparing MRIs taken in
1996 and 2003, but opined, “I do not believe that [Kremenak’s] current pain can
be attributed to his previous work injury in the 1990’s. I believe this is a new
process.” Second, in response to a letter from Kremenak’s attorney, Dr. Loren
Mouw stated, “I believe Mr. Kremenak’s current back pain is simply [a]
continuation of his prior discomfort, which started August 21, 1996 and was work
related.” Dr. Mouw also answered yes to whether he would consider the 1996
injury a substantial factor with respect to Kremenak’s current complaints and
symptoms and that Kremenak’s current complaints and symptoms were
consistent with the 1996 injury.
Third, in an independent medical evaluation
report, Dr. Ray Miller found that “Kremenak’s current complaints and symptoms
are believed to be related to the work injury of 08/21/1996” and “a slow
progression of changes from the previous injury.” Finally, Dr. Craig Dove opined
after neurodiagnostic studies that Kremenak was suffering from meralgia
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paresthetica of an unknown etiology, but that is often associated with obesity and
tight tool belts.1
On December 15, 2006, a deputy workers’ compensation commissioner
filed a review-reopening decision denying Kremenak additional permanent partial
disability benefits. The deputy commissioner ruled as follows:
Claimant must prove he has had an increase in impairment,
increase in a loss of function or lessening of earning capacity
proximately caused by the work injury on August 22, 1996. He has
failed to do so . . . .
....
When all the evidence is considered, claimant has failed to
prove he has had a physical or economic change of condition since
the agreement for settlement approved on November 28, 2000 that
might entitle him to permanent partial disability benefits.
Accordingly, all other issues are moot.
From this language it appears the deputy commissioner simply concluded that
Kremenak failed to prove he had undergone a change in his physical or
economic condition attributable to the 1996 injury, and that the deputy
commissioner did not need to reach the second Acuity prong, namely, that any
change was not contemplated by the parties at the time of settlement. However,
in reference to Dr. Mouw’s opinion, the deputy commissioner stated:
In September 2004, Dr. Mouw opined that claimant’s then current
back pain was simply a continuation of his prior discomfort. A
careful reading of Dr. Mouw’s September 2004 letter reveals that
he really never answered the question whether claimant’s condition
had worsened or deteriorated in a manner not contemplated at the
time of the agreement for settlement.
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Kremenak also testified at the review-reopening hearing, and the deputy commissioner
seemed to have some concerns about his credibility: “Claimant’s somewhat selective
memory of events since 2000, such as not remembering he had medical treatment after
sliding off a roof and after falling off a deck and only a vague recollection of a motor
vehicle accident and treatment following it, does not help his cause.”
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Thus, it does appear the deputy commissioner referenced the second prong of
the Acuity test in discussing Dr. Mouw’s testimony.
On February 12, 2008, the workers’ compensation commissioner affirmed
and adopted the review-reopening decision of the deputy as the final agency
action. Upon judicial review, the district court determined the commissioner’s
decision to deny additional benefits was supported by substantial evidence.
Kremenak appealed this determination.
While this case was pending on appeal, the supreme court issued an
opinion clarifying the requirements for a review-reopening petition.
See
Kohlhaas v. Hog Slat, Inc., ___ N.W.2d ___ (Iowa 2009). In Kohlhaas, the court
stated:
The review-reopening claimant need not prove, as an element of
his claim, that the current extent of disability was not contemplated
by the commissioner (in the arbitration award) or the parties (in
their agreement for settlement).
A compensable review-reopening claim requires proof that,
after the award or settlement, the claimant’s physical disability has
increased in a scheduled member case, or his earning capacity has
changed in an industrial disability case.
Id. at ___.
In short, the supreme court expressly “disavowed” the second
requirement for review-reopening set forth in Acuity. Regarding the case before
it, the court went on to conclude:
Although it could be argued there is substantial evidence in
the record supporting the deputy commissioner’s conclusion that
“[t]here has been no appreciable physical worsening in the
claimant’s physical condition from the time of the settlement in 2002
to the present time,” it is fair to conclude the determination may
have been influenced by the language in Acuity that we have just
disavowed. In that we have clarified the requirements for a reviewreopening petition, we reverse and remand the case to the
commissioner to determine on the record already made whether
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Kohlhaas has met the burden of proof required for a reviewreopening petition under the standard we have set forth today.
Id. at ___.
We think this case presents the same situation. As in Kohlhaas, although
it appears there is substantial evidence in the record to affirm the deputy
commissioner’s determination that the claimant failed to prove a deterioration of
his physical or economic condition proximately caused by the original injury, “it is
fair to conclude the determination may have been influenced by the language in
Acuity.”
Id. at ___ (emphasis added).
Therefore, out of an abundance of
caution, we reverse and remand to allow the commissioner to determine and
clarify whether Kremenak has met the burden of proof under the standard set
forth in Kohlhaas.
REVERSED AND REMANDED.
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