NESTLE USA and INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Plaintiffs-Appellants/Cross-Appellees,
ALLEN CONELL, Defendant-Appellee/Cross-Appellant.
from the Iowa District Court for Polk County, Bradley McCall,
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.
M. Barron and Timothy W. Wegman of Peddicord, Wharton, Hook
& Spencer, P.C., West Des Moines, for appellants.
Mauss of Schott Mauss & Associates, P.C., Des Moines, for
by Vaitheswaran, P.J., and Doyle and Bower, JJ.
VAITHESWARAN, Presiding Judge.
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.
Background Facts and Proceedings
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
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.
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."
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
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.
district court reversed the commissioner's denial of the
prosthetic hand but otherwise affirmed the final agency