Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at or

Tuesday, February 13, 2018

Court of Appeals Affirms Commissioner Decision Rejecting Expert Opinion

In Orris v. College Community School District, No. 17-0742 (Iowa App. Jan. 10, 2018). the Court of Appeals addressed an issue where claimant alleged that the commissioner erred in rejecting the unrebutted  opinion of claimant's expert.  Claimant had filed a review reopening petition, alleging that her fibromyalgia condition had worsened and that she was entitled to more than the 30% industrial disability she had originally been awarded. 

Although the deputy concluded that claimant's condition had worsened, she found that the worsening of the condition was not causally related to her original work injury.  No increase in benefits was awarded.  The district court affirmed this finding.  At hearing, Dr. Bansal had concluded that claimant's fibromyalgia had followed a logical medical progression, related to her original work injury.  Dr. Bagheri, claimant's original treating physician, noted that fibromyalgia is lifelong, but does not get worse and remains stable or gets better over the long term. 

Although Dr. Bansal had evaluated Ms. Orris twice and more recently than Dr. Bagheri,, the deputy concluded that Dr. Bagheri's position was stronger.  The deputy noted that claimant had a number of other stressors aside fromthe work injury, including her sister's terminal cancer diagnosis, her husband's cancer diagnosis, her nephew's illness and her own diagnosis of psoriatic arthritis. The deputy found the opinion of Dr. Bagheri more convincing. 

Claimant argued that Dr. Bagheri's opinion was a non-opinion and that Dr. Bansal's opinion should prevail.  Ultimately, the court concludes that the decision of the agency was supported by substantial evidence. 

Court of Appeals Issues Decision on Exclusion of Evidentiary Items

In Hyten v. HNI Corporation, No. 16-1454 (Iowa App. Jan. 10, 2018), the Court of Appeals addressed the exclusion of evidence concerning the delay in receipt of workers' compensation benefits, the safety of plaintiff's work assignment and the company's waiver of notice defense.  The court affirms the exclusion of evidence on all accounts.

Plaintiff suffered a carpal tunnel injury.  Partially as a result of that injury, claimant had unexcused absences which ultimately led to her dismissal from employment.  Claimant filed suit against the employer, alleging she had been terminated in violation of public policy for seeking workers' compensation benefits.  After trial, the jury returned a verdict in favor of the employer.

Plaintiff alleged on appeal that the court erred in excluding evidence.  The court notes that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.  A great deal of leeway if provided the trial court in making this judgment call.  The court found that plaintiff failed to demonstrate that her substantial rights were affected by the exclusion of any evidence.  The court goes on to conclude that the evidentiary issues were a "mere subterfuge" and that the defect in the case was the lack of any evidence casting doubt on the employer's legitimate reason for the termination of employment.  The judgment of the district court was affirmed.

Monday, February 12, 2018

Court of Appeals Decides Case on Notice, Hearing Loss

In Ruiz v. Revstone Casting Industries, LLC, No. 16-1728 (Iowa App. Dec. 6, 2017), the court affirmed the decision of the agency that claimant had not provided sufficient notice of his hearing loss, back and hand  claims and affirmed the district court's order remanding claimant's back injury claim to the commissioner.

Claimant worked for the employer as a grinder for 25 years. He began to feel he had a right to "something" from his injuries after he was prescribed hearing aids.  Claimant noted that he had made doctors' appointments on his own for his hands.  Claimant ultimately retired from Revstone in 2011 because of the pain in his foot, hands and back in addition to his hearing loss. 

With respect to the carpal tunnel claim, the commissioner failed to specify a date of injury for the claim.  The court indicates that the carpal tunnel claim was a cumulative injury requiring application of the standard under Oscar Meyer Foods Corp. v. Tasler which indicates that an injury manifests when claimant is aware of the fact of the injury and its causal relationship to claimant's employment.  The court concluded that the injury occurred on September 30, 2011, which was claimant's last date of employment..  Claimant argued that under the discovery rule, claimant did not appreciate the seriousness of the injury until after this date, but the court concludes that claimant appreciated the nature, seriousness and probable compensable character of the injury before September 30, 2011.   Because claimant did not notify the employer about the injury until December of 2012, this injury was found to be untimely under section 85.23. 

The agency found that claimant had not suffered from occupational hearing loss.  The decision indicates that claimant did not implicate the table presented in section 85B.5 of the Code, but argued that he had provided expert testimony to demonstrate causation.  Defendants argued that claimant had not demonstrated that levels of noise at work were sufficient to produce hearing loss.  Ultimately, the court concluded that substantial evidence supported the conclusion that claimant had not demonstrated a work related hearing loss.  Claimant apparently did not use an expert to demonstrate his hearing loss.

Claimant's back claim was remanded to the agency for a failure to consider the opinion of one expert.  Defendants appeal from this ruling  by the district court and the court of appeals affirms, finding that there was nothing in the decision that indicated that the commissioner had considered the opinions of claimant's treating physician with respect to his back claim.  The court finds that although the commissioner may accept or reject evidence, he may not fail to consider it, citing Schutjer v. Algona Manor Care.   The back claim was remanded to the agency. 

Court of Appeals Decides Case on Prosthetic Devices, Permanent Total Disability, Rate

Following a significant accident in which claimant injured his hand, shoulder and neck when a sealing clamp of a machine closed on his hand, Allen Conell sought payment for an active and passive prosthetic device.  The commissioner denied the passive prosthetic hand, but the Court of Appeals, following the decision of the district court, reversed the decision of the agency.  Nestle USA v. Conell, No. 17-0267 (Iowa App. Feb. 7, 2018).

Claimant had originally been awarded a passive prosthetic hand following the injury, but the commissioner reversed this award finding that providing the passive prosthetic hand in addition to an active prosthetic hand violated the language of section 85.27(1), which only requires that "one set of permanent prosthetic devices" be provided. The commissioner held that claimant was only entitled to one prosthetic device per entitlement and that having an active and passive device violated this requirement.  The district court reversed, finding that the passive hand was an extension of Conell's prosthetic, thus rendering this a single device.  The Court of Appeal affirmed, noting that the passive prosthetic hand was merely an extension of the mechanical hand, citing Quaker Oats v. Ciha (home modifications are extension of wheelchair) and Manpower Temp. Servs. v. Sioson (van is extension of wheelchair).   The court found that the mechanical prosthetic hand was a reasonable and necessary device but only for a fraction of the day.  The court affirmed the district court's award of the passive prosthetic. 

The employer raised issues about causation for the neck injury, permanency for mental health issues and claimant's award of permanent total disability benefits.  All of these issues were decided on the basis of substantial evidence.

The final issue before the court was a rate issue.  Claimant had routinely worked more than 40 hours in each week preceding the injury.  Claimant sough to eliminate two 44 hour weeks from the rate calculation.  In rejecting this argument, the court concluded that the commissioner's finding that all of the weeks should be included was not illogical, irrational or whole unjustifiable.  

Monday, January 8, 2018

2018 Workers' Compensation Synopses

2018 Workers' Compensation Appeal Decisions

February 2018

Arreola v. Bodeans Baking Group Holding, LLC, No. 5040956, 5040974 (App. Feb. 15,6, 2018) - Claimant was awarded permanent total disability against the employer due to shoulder injuries.  Two injuries were involved and two insurance companies were involved. The PTD benefits were awarded against the employer and Indiana insurance company (the insurance company on the second claim)  as a part of the consolidated hearings.  The second decision was ultimately appealed and upheld through the district court. Claimant subsequently filed for full commutation against the employer and Indiana Insurance Company.  Farmington, the first insurance cmpany, filed for reimbursement under seciotn 85.21.  The deputy dismissed Farmington's petition, finding that this should have been raised as a part of the initial proceedings.  Claimant settled the full commutation petition with Indiana.  On appeal the case was delegated to Deputy Fitch, The decision of the hearing deputy on the contribution issue was affirmed. Deputy Fitch notes that rule 876 IAC 3.1(11) requires the paying party to file "an application and consent order" form before seeking reimbursement from another carrier, which had not been done.  Because the issue of reimbursement was not raised at the initial hearing, Farminigton had no right to seek reimbursement.  

Salazar v. Kinder Morgan, Inc., No. 5049390 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits following hearing (Pals).  Defendants appeal and on appeal the commissioner's desinee (Palmer) affirms the permanent total award. 22 months from arbitration to appeal decision.

Jones v. Raining Rose, Inc., No. 5048297 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits and penalty benefits following hearing (Heitland).  On appeal, the commissioner's designee (Christenson), reverses and provides a take nothing order for claimant.  The bulk of the order is a discussion of Dr. Hines IME versus Dr. Kuhnlein's DME, in which Kuhnlein comes out ahead.  The deputy calls out Dr. Hines finding that claimant suffered headaches, neck pain and a mental health condition from two days without an ergonomic chair.  He rejects other causation opinions because he finds that these opinions only corroborated that claimant reported symptoms after not having her ergonomic chair for two days.  Although the appeal indicates that considerable deference was given to the credibility findings, that really doesn't appear to be the case, as the appeal decision notes that there were several inconsistencies between the medical records and claimant's testimony at the hearing and at deposition.  Claimant was found not entitled to payment for Dr. Hines' IME since claimant did not prevail.  25 months from arbitration to appeal decision.

Postell v. The Weitz Group, No. 5050086 (App. Feb. 12, 2018) - Following hearing, claimant was found to be eligible for 200 weeks of permanency benefits for an injury to his left shoulder.  The arbitration decision also awarded $12,000 in penalties (Walsh).  The commissioner's designee (MdGovern) affirms the arbitration decision without additional comment.  22 months from arbitration to appeal decision.

Hoover v. Jacobson Transportation, No. 5052323 (App. Feb. 12, 2018) - Claimant was found to have sustained a 30% industrial disaiblity as a result of neck, back and right knee injuries.  A mental injury claim was rejected following hearing.  Defendants appeal.  The commissioner affirms without additional analysis.  

Staub v. Thombert, Inc., Nos. 5049959, 5049960 (App. Feb. 2, 2018) - Claimant was awarded a 60% industrial disability following hearing (Gerrish-Lampe).   Dr. Kuhnlein's IME charges of $886,37 were awarded as costs. The commissioner affirms without additional analysis.  19 months from arbitration to appeal decision.

McDonald v. Sedona Staffing, No. 5041080 (App. Feb. 2, 2018) - Claimant was found to be entitled to an industrial disability benefit of 40%. (Fitch).   Defendants appeal.  On appeal, the commissioner's designee (McGovern) affirms the decision in its entirety, without additional analysis. 22 months from arbitration to appeal decision.  

Beyer v. John Deere Dubuque Works, No. 5051906 (App. Feb. 1, 2018) - Claimant was found entitled to a 25% industrial disability (Gerrish-Lampe).    Both parties appeal.  Without comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

January 2018

Sweeney v. John Deere Davenport Works. No. 5050662 (App. Jan. 31, 2018) - The deputy concluded that claimant had not demonstrated that her injuries to her right wrist resulted in permanent impairment (Fitch).   Defendant was ordered to pay costs.  On appeal, the commissioner affirms the decision finding there was no permanent impairment and reverses the order on costs since claimant failed to prevail on any issues in the arbitration proceeding.  21 months from arbitration to appeal decision.

Freemon v. Annett Holdings, Inc., No. 5047798 (App. Jan. 31, 2018) - Deputy concluded that claimant had established a 20% industrial disability as well as healing period benefits (Fitch).  Defendants appeal.  The commissioner affirms the decision.  The commissioner addressed an issue of light duty work in the decision.  Claimant lived in Mississippi and was asked by the employer to come back to Iowa to perform light duty work.  Claimant refused for personal reasons.  Benefits were suspended.  The commissioner, citing Annett Holdings v. Roland, 881 N.W.2d 470 (Iowa App. 2016), finds that the memorandum of understanding about light duty work violates section 85.18 of the Code.  The commissioner finds that claimant was not offered suitable work and affirms the healing period award.  21 months from arbitration to appeal decision.

Stevens v. Eaton Corp., No. 5049606 (app. Jan. 26, 2018) - Claimant was found to have sustained an injury to his right arm and was awarded healing period and 10% permanency (McElderry).  Defendants were found eligible for credit for short and long term disability paid to claimant. Defendants appeal.  On appeal defendants argue that the credit for LTD should be larger, but the commissioner indicates "it is not possible to understand [defendants'] analysis" he affrims the deputy's award.  The remainder of the decision is affirmed without comment.  21 months from arbitration to appeal decision.

Hecht v. Highline Construction, No. 5052175 (App. Jan. 25, 2018) - In this case, the deputy concluded that claimant had met his burden of demonstrating hearing loss and tinnitus and awarded claimant 30% industrial disability (Walshire).  Penalty benefits were also awarded as were the costs for Dr. Bansal's IME. Following the hearing, defendants submitted an application to submit further evidence.   Although claimant argued this was not timely filed, the additional evidence, which went to claimant's credibility, was allowed (claimant appealed from this ruling).

On appeal, the commissioner allows the newly admitted evidence and finds that this evidence established that claimant was not credible.  The permanency award is reversed, as is the penalty award.  Claimant's injury occurred when an airbrake system exploded approximately six inches from his right ear.  Testing did not reveal damage to claimant's ear structure, but an audiogram showed worsening hearing following the accident. Dr. Hansen at UIHC noted inconsistencies in audiograms. Dr. Hansen found that auditory brainstem responses and otoacoutic emissions were performed and demonstrated normal hearing.  Hansen found no hearing loss and no tinnitus.

Dr. Tyler found a 4% hearing loss and a 22% loss for tinnitus. Dr. McMains, who had provided a 10% rating for hearing loss, changed his opinion and found no hearing loss.  Dr. Bansal found that claimant had a 17% hearing loss and agreed with Tyler on the 22% loss for tinnitus.

The evidence presented after the hearing related to a job claimant had after he left Highline.  The documents indicated that claimant had been fired from that later job.

On appeal, the commissioner finds the opinions of Dr. Hansen and McMains more credible than Tyler and Bansal, finding that they had conducted no testing and that the audiograms they relied on were subjective and not consistent.  The tinnitus question was answered unfavorably to claimant because he was found not to be credible and since tinnitus is subjective and depends on claimant's credibility, there was nothing to support claimant's position.  Accordingly, the industrial disability award was reversed. The penalty award was also reversed, as was the award of costs against defendant. 19 months from arbitration decision to appeal decision.

Anderson v. Nichols Aluminum, No. 5047598 (App. Jan. 23, 2018) - Claimant alleged bilateral simultaneous injuries to the hands and was found to be entitled to 25 weeks of permanency following hearing (McElderry).  Claimant was also found to be entitled to $750 of Dr. Hines' IME fee.   Defendants appealed.  On appeal, the commissioner's designee (Christenson) reversed and found that claimant had not established that his bilateral carpal tunnel syndrome arose of out employment.  He credited the reports of the physical therapist and Dr. Frederick over Dr. Hines.  Claimant was found not entitled to payment for any of Dr. Hines' IME costs.  26 months from arbitration to appeal decision.

Drake v. Cedar Rapids Community School District, No. 5051095 (App. Jan. 18, 2018) - Claimant was found to have sustained a 90% industrial loss at hearing (Gerrish-Lampe).  Both parties appeal.  The commissioner affirms without additional analysis.  He concludes that although claimant could recover the costs of Kent Jayne's vocational report, she was not entitled to the cost of the vocational assessment (which was the bulk of the costs).  21 months from arbitration to appeal decision.

Ortiz v. JBS USA LLC,  No. 5049541 (App. Jan. 12, 2018) - Claimant was found to have suffered a permanent total disability following the arbitration hearing (Palmer).  Payment for claimant's IME was ordered but payment for an FCE was denied.  On appeal, the commissioner affirms, without additional analysis.  19 months from arbitration to appeal decision.

Escher v. Mercy Hospital Iowa City, Inc. and Second Injury Fund, No. 5051740 (App. Jan. 11, 2018) - At the arbitration hearing, the deputy (Christenson) found that claimant demonstrated that her left knee injury arose out of her work and awarded 110 weeks of benefits.  Claimant also had an earlier injury to her other knee.  She was found to have a 60% industrial disability, but the Fund was only required to pay an additional 80 weeks of benefits because of the credits (50% for each leg).  On appeal . . . . .    19 months from arbitration to appeal decision.

Cerda v. PAE, No. 5048854 (App. Jan. 10, 2018) - Claimant was found to have sustained a 10% industrial loss following hearing (Christenson).   Alternate care was denied and payment for an FCE and for the costs of the deposition transcript were also denied.  Without further analysis, the commissioner affirms the decision of the deputy.  21 months from arbitration to appeal decision.

Grandstaff v. Direct TV Home Services, Inc., No. 5051420, 5051421 (App. Jan. 10, 2018) - The underlying arbitration decision found that claimant was credible and entitled to permanency benefits (Christenson).  The commissioner's designee (Pals) gave deference to the underlying factual findings.  The appeal decision finds that defendants are entitled to credit for 35 weeks of permanency on an earlier claim, but the arbitration decision found that only 25 weeks were appropriate.  On appeal, defendants are given credit for the 35 weeks previously paid.  But on the current claim, credits were reduced from 43 to 31 weeks because a later date of the end of healing period was found at hearing. The appeal decision also finds that only the costs of preparing vocational report are taxable, not the costs of the examination, thereby reducing the amount reimbursed to claimant. 22 months from arbitration to appeal decision.

Sullivan v. West Central Cooperative, No. 5050594 (App. Jan. 10, 2018) - The commissioner's designee (Fitch) affirms the underlying decision of the deputy (McGovern), which had awarded 300 weeks of benefits.  There is a question of the credits due and the appeal decision affirms the credits found by the hearing deputy.  24 months from arbitration to appeal decision.

McAlister v. Jacobson Transportation Co., No. 5049509 (App. Jan. 5, 2018) - Claimant alleged a respiratory injury (occupational asthma) from inhalation of second hand smoke from driving trucks that had been used by smokers.  Based on the report of Dr. Gerr from Iowa City, claimant was found not to have suffered a work-related injury (Christenson).  Dr. Gerr had concluded that claimant's exposure was actually to third hand smoke, since claimant was not driving with another smoker, and he found this insufficient to support causation.  On appeal, the commissioner affirms.  19 months from arbitration to appeal decision.

Dautovic v. Concord Hospitality, Nos. 5028332, 5051676 (App. Jan. 4, 2018) - Claimant prevailed on review reopening and was found to be entitled to 450 weeks of benefits (Gerrish-Lampe). The employer had initially been found liable for 100 weeks of benefits.  The arbitration decision also found that claimant did not sustain his burden of demonstrating a new injury to the back and found that this injury was a continuation of the initial 2006 injury.  Without additional comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

Bovy v. Second Injury Fund, No. 5042474 (App. Jan. 2, 2018) - Claimant was found to have sustained a permanent total disability based upon a first injury to the left leg and a second injury to the right arm (Gerrish-Lampe).  Without additional analysis, the commissioner affirms the decision of the deputy.  18 months from arbitration to appeal decision.

Monday, November 27, 2017

Court of Appeals Rejects Finding of Depression from Family Doctor, Finds that Admission of Late Report was not Prejudicial

In Bos v. Climate Engineers, No. 17-0159 (Iowa App. Nov. 22, 2017), the commissioner had concluded that claimant did not have a claim for depression following a shoulder injury and rejected the report of claimant's family physician that the depression was connected to the underlying injury.  The commissioner also allowed the admission of a vocational report from defendants even though the expert had not been named in a timely fashion and had not been produced until 18 days before hearing. 

The district court affirmed the commissioner's action with respect to the doctor's findings, but rejected the admission of the late vocational report and remanded to the agency for further opinion.

Both parties appealed to the Court of Appeals.  On the evidentiary issue, the court found that even though the opinion of the family doctor had been unrebutted, the commissioner was within his rights to reject that evidence.  The commissioner had found that it had been several months from the time of the injury until claimant reported his depression, that claimant was not receiving counseling or treatment for depression with the exception of medications and that the doctor's opinion that most people suffering from a disabling physical injury develop depression was not supported in the record.  The court finds that the determination of how much weight to give an opinion was generally within the peculiar province of the commissioner.  The court stated that even when evidence is uncontroverted, so long as valid reasons for rejecting the evidence are proferred, the rejection of the evidence is supported by substantial evidence. 

The court reversed the district court on the admission of the vocational report, even though that report was late.  The court found that rulings on a report's admissibility were within the discretion of the agency, and would be reversed only if there were an abuse of discretion.  The court also found that claimant was not unfairly surprised by the change in the identity of the expert.  Since the agency had offered claimant time to rebut the report, any prejudice from the late disclosure was eliminated.  Based on these conclusions, the court reversed the district court's decision and affirmed the decision of the agency.

Untimely reports have been a major source of conflict within the agency.  Despite the fact that the rules provide that reports are to be provided 30 or more days in advance of hearing, many reports are allowed despite violating that rule, and the violation of the rules seems to be the norm rather than the exception.  Decisions such as this will

Wednesday, November 8, 2017

Court of Appeals Issues Decision on Validity of District Court Nunc Pro Tunc Order

Reihe v. Midwest Viking, Inc., No. 17-0214 (Iowa App. Nov. 8, 2017), deals with the somewhat unusual situation where a district court remanded a matter to the workers' compensation commissioner for entry of an order nunc pro tunc correcting a compromise settlement agreement.  Claimant argues that the district court improperly considered extrinsic evidence and that reformation of the contract was barred by judicial estoppel.

The settlement proposal that was agreed to indicated that defendants would pay roughly $75,000 less deductions of payment made to date (2/23/15), which totaled $21,080.12.  The settlement documents indicated the settlement was roughly $75,000 less weekly payment made from 3/5/15 until settlement approval.  Defendants would have received considerably more in credits under the original agreement than under the terms of the settlement documents.  The settlement documents were approved and defendants sent a check to claimant in an amount equivalent to the original agreement ($51,35-.15).  Defendants filed a motion for a nunc pro tunc order correcting the typographical error and this was denied for lack of jurisdiction. 

Claimant filed a petition in the district court requesting that the unpaid portion of the award be paid.  He also requested attorney's fees.  Defendants filed a counterclaim for contract reformation.  Claimant agreed that the original agreement had started credits in June of 2014, but argued that when the written agreement was signed, this changed the terms of the settlement.  The district court found this was a drafting error and remanded to the commissioner for entry of a nunc pro tunc order.

On appeal, claimant argues the district court erred in considering extrinsic evidence, i.e. the original agreement between the parties.  Because the settlement documents were not ambiguous, according to claimant, the court should not consider extrinsic evidence.  The court notes that the cardinal rule of contract interpretation is to determine the intent of the parties when they entered into the contract.  The court further finds that admission of parol evidence is permissible in actions for reformation so long as the evidence is relevant and material.  Although normally a unilateral mistake is not grounds for reformation, the mistake of a scrivener does not require mutuality of mistake.  The court concludes that there was a mistake that did not reflect the true intention of the parties. 

Claimant also argues that he filed an action under section 86.42 and the district court's action was well outside the scope of an action under that section.  The court found that the district court had jurisdiction to reform the contract.  The court also rejected an argument based on judicial estoppel, because there was an error in the contract. 

The district court had remanded the claim to the commissioner, but the court of appeals remands to the district court to reform the settlement agreement, declare the settlement agreement to be null and void and directing the commissioner to follow the procedures for consideration of whether to approve  the reformed compromise settlement agreement.

This case serves as a cautionary tale for attorneys on both sides of the case to carefully peruse settlement documents before they are filed with the commissioner.

Court of Appeals Decides Case Involving Accommodated Work

In Norton v. Hy-Vee, No. 16-1299 (Iowa App. Nov. 8, 2017), claimant's back and neck injury resulted in a 25% loss in hours in her work as a pharmacy tech.  Despite the injuries, she continued to work and was described as a motivated and valuable employee both before and after the injury.  Claimant argued that she was permanently and totally disabled, inasmuch as she would not have been able to work absent the accommodations provided by Hy-Vee.  The employer argued that claimant did not have a significant industrial disability because she continued to work.  The deputy and commissioner found that claimant was entitled to a 70% industrial disability.  The commissioner found that the award of permanent disability was based on claimant's ability to continue as a pharmacy tech and her ability to find new employment should she leave Hy-Vee. The district court affirmed, finding that the agency had correctly interpreted decisions focusing on claimant's ability to earn in the competitive job market.

On appeal, claimant argued that the agency incorrectly made a downward adjustment of industrial disability based on Hy-Vee's accommodations of her work restrictions.  The court agreed with claimant that Gallardo did not be interpreted as the Supreme Court's approval of a downward adjustment to industrial disability based on an employer's accommodations of work restrictions.  Similarly, Overholser could not be interpreted to support such a downward adjustment.  The court indicated that industrial disability was to be based on the injured worker's earning capacity, without regard to accommodation.  The court agreed with claimant that an injured worker's performance of accommodated work, without more, cannot be used to reduce a worker's industrial disability rating.  But the performance of accommodated work could be considered in assessing industrial disability if the work is transferable to the competitive job market and discloses a discerned earning capacity.

Although the court agreed with claimant as to the state of the law regarding accommodated work, it concludes that the commissioner correctly interpreted that law.  The commissioner noted that claimant was a valuable member of the pharmacy team and had developed unique skills.  The commissioner also noted that claimant would probably find employment, even with her restrictions, should she leave Hy-Vee.  The court also indicates that a review reopening proceeding would be available to claimant in the future if there were a change in her condition or earning capacity in the future.  Claimant also points to the fact that her case has been cited by the commissioner for the proposition that a downward departure based on accommodated work is permissible.  The court finds that these cases are not before it and does not lead to the conclusion that the commissioner's interpretation was incorrect.  The decision of the agency was affirmed.

Judge Tabor dissented, indicating that the caselaw demonstrates that loss of earning capacity should be viewed in terms of the present ability of claimant to earn in the competitive job market without regard to accommodations.  Judge Table found that the commissioner had specifically considered claimant's accommodations in making its determination of a 70% industrial award.  The accommodation should not have been considered at all, even if her ability to find a job after Hy-Vee was considered.

Given the extended discussion of the issues by both the majority and dissent, and the commissioner's citation of Norton to justify downward reductions based on accommodations, it is quite likely that this case will wind up before the Supreme Court on further review.

Wednesday, October 11, 2017

Court of Appeals Affirms Finding that Claimant Did Not Give Timely Notice of Her Injury

In Callahan v. Horseshoe Casino, No. 16-2230 (Iowa App. Oct. 11, 2017), the court addressed an issue of notice to the employer under section 85.23 of the Iowa Code.  The claimant's back problems had manifested on October 10, 2011, and the commissioner determined that the employer did not have actual knowledge of the injury until August 13, 2012, making claimant's claim untimely.  The commissioner concluded that there was no credible evidence to support the deputy's finding to the contrary and found that the claim was time-barred.

The Court of Appeals notes that the commissioner concluded that although the employer knew of the back injury, it did not know that the injury was related to work until 14 months after the injury had manifested.  The court viewed this as a question of substantial evidence and finds that the commissioner's finding that there was no actual notice the injury was work related until August of 2012 was supported by substantial evidence. The court also concluded that the finding that the claim was time-barred was not illogical, irrational or wholly unjustifiable. 

Wednesday, September 20, 2017

Court of Appeals Affirms Decision Finding that the Filing of Claimant's Petition was Untimely

In Myers v. R.R. Donnelly & Sons, No. 17-0306 (Iowa App. Sept. 13, 2017), the Court of Appeals upheld a decision of the agency concluding that claimant's petition was untimely and was not saved by the discovery rule.  

Claimant was employed by Donnelly as a press operator until 2011, when he was moved to another position because he could not longer perform the duties of a press operator as a result of back problems.  The back problems had begun in 1999.  The agency concluded that claimant knew his back problems were related to his work by 2009.  On November 2012, claimant received permanent restrictions of no lifting of more than 40 pounds and was terminated because the employer could not accommodate his work restrictions.  Claimant filed a petition on April 2, 2013.

The agency concluded that claimant's injury date was 2/25/09, when claimant's doctor diagnosed him with disabling mechanical back pain and referred him to his surgeon.  The deputy found that the manifestation date was 3/3/11.  Because Myers filed his petition more than two years after this date, the claim was dismissed.   The dismissal was affirmed by the commissioner and the district court.

The court notes that the manifestation date for the injury is the date on which both the fact of the injury and the causal relationship of the injury to the claimant's employment would have become plainly apparent to a reasonable person.  The court went on to note that under Herrera, in a cumulative injury case, the statute of limitations will not begin to run until the employee also knows that the physical condition is serious enough to have a permanent adverse impact on the claimant's employment or employability.

Claimant argued that he knew the nature of his injury, but not the seriousness of the injury on 2/21/11.  He also argued that he did not know the probable compensable character until 9/14/12.  The court cited hearing testimony indicating that claimant knew the work related nature of his injury in 2009-2011.  Ultimately, the court concluded that claimant knew of the compensable character by 2/21/11, under the substantial evidence rule.  

Note that the last injurious exposure appears to have been in 2011, as that was the time that claimant was switched from his role as a press operator.  The court does not specifically address the fact that claimant did not have permanent restrictions until November of 2012.