ANTHONY R. BORKOVEC, Petitioner-Appellee,
DISH NETWORK CORPORATION and GALLAGHER BASSETT SERVICES, INC., Respondents-Appellants.
from the Iowa District Court for Polk County, Donna L.
employer appeals the district court decision reversing a
decision of the Iowa Workers' Compensation Commissioner.
T. Barta and Amanda M. Phillips of Baylor, Evnen, Curtiss,
Grimit & Witt, L.L.P, Lincoln, Nebraska for appellants.
Stephen J. Brown of Cutler Law Firm, P.C., West Des Moines,
by Danilson, C.J., and Vaitheswaran and Bower, J.J.
Network Corporation and Gallagher Bassett Services, Inc.
(Dish Network) appeal the district court ruling reversing a
decision of the Iowa workers' compensation commissioner.
We find the decision of the commissioner was based on
substantial evidence and was not irrational, illogical, or
wholly unreasonable. We reverse the district court.
Background Facts and Proceedings
26, 2009, a drunk driver crossed the centerline and hit
Borkovec's vehicle head-on. The crash resulted in
significant work-related injuries to Borkovec and killed the
other driver's son. Borkovec's right femur, patella
of his right knee, and right heel bone were fractured; he
suffered contusions to his chest, broken ribs, and nerve
damage in his right knee and foot. During his
hospitalization, Borkovec suffered from pneumonia,
dehydration, anxiety, and an episode of
hypoxia. Borkovec was later found to have an
altered mental status. Borkovec underwent several surgeries,
intensive therapy, and continuing treatment for pain.
November 7, 2011, Dr. Douglas Martin found Borkovec was at
maximum medical improvement (MMI) for his physical injuries.
Dr. Martin found Borkovec had a whole person impairment of
thirty-four percent of the body resulting from a work injury.
Borkovec was restricted to sedentary work. Dr. Martin noted
Borkovec had some addiction issues with opioid medication and
recommended a plan be implemented to use less addictive
medication. At follow-up appointments, Dr. Martin reiterated
his findings. Dr. Martin clearly indicated Borkovec was not
abusing the opioids but was adamant Borkovec was addicted to
them. In 2014, in response to an inquiry from Dish Network,
Dr. Martin indicated chronic opioid use can create a
hyperalgesic effect, which causes the patient to become
overly sensitive to pain otherwise reduced by the use of
2013, Borkovec was examined by Dr. Daniel Tranel. Dr. Tranel
noted Borkovec had slow speech and thought processes along
with impaired judgment and insight. However, Dr. Tranel
rejected the testing after concluding Borkovec was
intentionally exaggerating his deficiencies. Dr. Tranel did
find some limitations but, due to the unreliable results of
the tests, could not conclusively state the level of
deficiency nor the cause, though he stated the hypoxic
episode could be a cause. Dr. Tranel also noted
Borkovec's use of opioids and recommended a comprehensive
pain management program. Borkovec was rejected by both the
University of Iowa Hospitals and Clinics and Nebraska Medical
Center pain management programs.
August 18, 2014, Borkovec was examined by Dr. John Kuhnlein.
Dr. Kuhnlein causally related many of Borkovec's
conditions to the work-related accident, including
Borkovec's memory and cognitive issues. Dr. Kuhnlein
found Borkovec was at MMI for his physical injuries but not
at MMI for his opioid addiction. Dr. Kuhnlein found Borkovec
to be thirty-one percent impaired. Dr. Kuhnlein provided
restrictions, including not lifting more than ten pounds,
sitting and standing only occasionally, rarely walking, and
not driving. Dr. Kuhnlein also stated, "the way that Mr.
Borkovec presents himself would produce significant barriers
for him to go back to work, and it is unlikely that an
employer would hire Mr. Borkovec given the way that he
presents himself." Dr. Kuhnlein also recommended
Borkovec attend a comprehensive pain management program and
stated Borkovec "has not yet reached [MMI] for the
opioid addiction. In the strongest terms, he needs to be
taken off of these medications if at all possible."
dispute was heard by a deputy workers' compensation
commissioner. The deputy found the injuries to Borkovec's
right foot, leg, knee, right arm, shoulders, chest, back, and
ribs were work related. The deputy also found the pneumonia,
hypoxic episode mood disorders, posttraumatic stress
disorder, and opioid dependency were work-related. The deputy
found Borkovec's cognitive issues, headaches,
hypertension, and sinus problems were unrelated to the work
injury. The deputy also found Borkovec was permanently and
totally disabled and an odd-lot worker based on his physical
injuries but had not achieved MMI for his mental conditions
or his opioid addiction. The deputy set the workers'
compensation rate at $427.41 per week.
Network appealed. The commissioner affirmed the deputy's
causation and rate findings. However, the commissioner
reversed the deputy's finding on permanent and total
disability. She cited Borkovec's opioid addiction, which
she agreed was not at MMI, as the basis for her reversal. The
commissioner found Borkovec's opioid ...