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Borkovec v. Dish Network Corp.

Court of Appeals of Iowa

May 16, 2018

ANTHONY R. BORKOVEC, Petitioner-Appellee,

          Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.

         An employer appeals the district court decision reversing a decision of the Iowa Workers' Compensation Commissioner.

          Paul 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, for appellee.

          Heard by Danilson, C.J., and Vaitheswaran and Bower, J.J.

          BOWER, JUDGE.

         Dish 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.

         I. Background Facts and Proceedings

         On July 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.[1] Borkovec was later found to have an altered mental status. Borkovec underwent several surgeries, intensive therapy, and continuing treatment for pain.

         On 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 opioids.

         In July 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.

         On 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."

         The 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.

         Dish Network appealed. The commissioner affirmed the deputy's causation and rate findings.[2] 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 ...

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