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Nestle USA and Indemnity Insurance Co. of North America v. Conell

Court of Appeals of Iowa

February 7, 2018

NESTLE USA and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Plaintiffs-Appellants/Cross-Appellees,
v.
ALLEN CONELL, Defendant-Appellee/Cross-Appellant.

         Appeal from the Iowa District Court for Polk County, Bradley McCall, Judge.

         An employer appeals and an employee cross-appeals the district court decision affirming in part and reversing in part a decision of the Iowa Workers' Compensation Commissioner.

          Joseph M. Barron and Timothy W. Wegman of Peddicord, Wharton, Hook & Spencer, P.C., West Des Moines, for appellants.

          Jean Mauss of Schott Mauss & Associates, P.C., Des Moines, for appellee.

          Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          VAITHESWARAN, Presiding Judge.

         An employee severely injured his left hand in a work-related accident. The workers' compensation commissioner denied his request for a passive prosthetic hand. In this appeal and cross-appeal, the employer challenges the district court's reversal of the prosthetic-hand denial and other aspects of the commissioner's decision. The employee challenges the weeks used by the commissioner to calculate his weekly benefit rate.

         I. Background Facts and Proceedings

         Nestle USA hired Allen Conell to repair machines at its plant in Waverly, Iowa. When a bag-sealing machine jammed, Conell tried to clear the jam and a 385-degree sealing clamp "closed on" his left hand. Because Nestle failed to reinstall a release mechanism after converting the machine's mechanical operation to an electronic operation, Conell was forced to manually take apart the machine to get his hand out. He was unable to complete the task alone, yelled for help, and instructed two other mechanics on how to loosen the clamp. Conell lost track of time but, somewhere between five and twenty minutes later, he removed his hand, only to find that it looked like "somebody had taken candle wax and poured it over a stick."

         Conell was rushed to a hospital for emergency treatment. He underwent several surgeries on his hand and shoulder. Conell was later diagnosed with neck pain, post-traumatic stress disorder (PTSD), and depression. Nestle disputed a causal connection between the neck injury and the work accident and disputed the permanency of the mental health diagnoses.

          Nestle did not dispute compensability for Conell's hand injury and approved payment for a mechanical prosthetic device that allowed him to manipulate his thumb and index finger. Conell was only able to use the mechanical hand for three to four hours a day. The unwieldy hand caused him emotional distress. According to a psychologist who evaluated him, he "was quite avoidant of the general public because of his emotional pain at being regarded as a Frankenstein figure with a visibly damaged hand." To address these issues, Conell asked Nestle to also provide a passive prosthetic left hand "that looked like a natural hand."

         A deputy workers' compensation commissioner considered Connell's request for this device as well as his claim for weekly workers' compensation benefits. Following an arbitration hearing, the deputy characterized Conell's disabilities as follows: "The physical disabilities are devastating, and may render claimant totally disabled even without consideration of the mental disability. When combined with his mental disability, however, there can be no doubt." The deputy determined Conell's neck pain "appear[ed] to be related to his original injury" and ordered further evaluation of the condition; found a causal connection between Conell's PTSD and depression and his work injury and found the conditions to be permanent; and ordered the payment of permanent total disability benefits as well as payment for a passive prosthetic hand. The deputy declined Conell's request to replace two low-hourly work weeks in calculating his weekly benefit amount.

         On intra-agency appeal, the commissioner concluded Conell's "work injury caused permanent disability to [his] neck and to [his] mental state in addition to permanent disability to [his] left hand, arm and shoulder." The commissioner affirmed the award of permanent total disability benefits. The commissioner reversed the deputy's award of a passive prosthetic hand after concluding the award failed to comport with a provision of the Iowa Workers' Compensation statute. In a rehearing decision, the commissioner found "[t]he average of the 13 weeks preceding the injury [was] the best evidence of [Conell's] customary hours, " and declined to exclude the two low-hourly weeks from the benefit calculation. Both sides sought judicial review.

         The district court reversed the commissioner's denial of the prosthetic hand but otherwise affirmed the final agency ...


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