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 www.nbolawfirm.com or www.iowa-workers-comp.com.

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.  




Thursday, July 6, 2017

Court of Appeals Affirms Award of 45 Weeks of Permanent Partial Disability

In Lopez v. Cargill Meat Solutions, No. 16-1421 (Iowa App. July 6, 2017), the court rejected claimant's allegations that his claim should have been considered as an industrial disability and affirmed the functional award of 45 weeks of benefits.  Claimant argued that his experts presented substantial, credible evidence of industrial disability and it was unfair, irrational and illogical to reject those opinions. The court concluded that the agency had given greater weight to certain expert opinions over others and thoroughly explained the reasons for doing so.  Because those findings were supported by substantial evidence and were not irrational, illogical or wholly unjustifiable, the decision of the agency stood.

Supreme Court Establishes Private Constitutional Right of Action Against Government Actors in Commissioner's Suit

Following the reduction of his salary by the Governor in 2010, former Commissioner Chris Godfrey filed an action against the State of Iowa and various state officials, including the Governor, alleging a variety of legal theories.  In Godfrey v. State of Iowa et al., No. 15-0695 (Iowa June 30, 2017), the Court ruled, for the first time, that constitutional claims, in this cases allegations of deprivation of property rights without due process of law and deprivation of liberty interests without due process created causes of action directly under the Iowa Constitution.

Four counts of the petition were at issue before the court.  Count VI alleged that Godfrey was deprived of his property rights in his salary because of partisan politics and sexual orientation.  Count VII alleged a damage to a protect liberty interest in his reputation without due process by falsely claiming poor work performance.  Count VIII alleged a violation of the equal protection of the laws for discrimination based on sexual orientation.  Finally, Count IX alleged equal protection violations because of different treatment of homosexual state officers or individuals as compared to heterosexual officers or individuals.

The commissioner alleged that Article I, section 6 and Article I, section 9 of the Iowa Constitution were self-effectuating.  Section 6 is the equal protection division of the constitution and section 9 is the due process provision.  He argued that the provision of the Iowa Constitution (Article XII, section 1) which requires that "the legislature shall pass all laws necessary to carry [the] constitution into effect," was modified by the word "necessary" and that it was not necessary to effectuate due process and equal protection provisions.  Defendants argued that if the drafters of the Constitution had intended the Constitution to be self-effectuating, they would have said so.  Defendants also noted that Iowa had not passed an analogue to 42 USC 1983, the provision of federal law that allows direct actions under the US Constitution.

After considering Supreme Court jurisprudence as well as the Iowa Constitution at length, the Court ultimately concluded that there was a direct action under the Iowa Constitution for due process and equal protection violations.  Three justices would have also held that the constitutional claims in Counts VIII and IX were not preempted by the Iowa Civil Rights Act.  Justice Cady, who concurred in the judgment with respect to Counts VI and VII, found that the Iowa Civil Rights Act provided an adequate remedy for the sexual discrimination claim, and thus those claims were found to have been correctly dismissed.

The three dissenters argued that the Constitution required legislative authorization or a footing in the common law of torts before a direct action was possible. The dissenters believed that the constitutional text of Article XII, section 1 foreclosed plaintiff's argument, since it required the legislature to pass laws enabling a right to sue.  The conclusion they reached was that although the impact of the decision in commissioner Godfrey's case might be limited, there could be "many claims from current and former inmates seeking damages for wrongful incarceration" and juveniles who were resentenced because their earlier sentences violated Article I, section 17 to seek damages under the constitution.

The Godfrey  case will now proceed to trial, with the further expenditure of public funds to defend the case.

Tuesday, May 23, 2017

Supreme Court Decides Workers' Compensation Bad Faith Claim

In Thornton v. American Interstate Insurance Company, No. 15-1032 (Iowa May 19, 2017), plaintiff was awarded $284,000 in compensatory damages and $25 million in punitive damages by the jury in a case involving the payment of workers' compensation benefits in a permanent total disability case.  The Supreme Court concludes that the insurer lacked any reasonable basis to dispute PTD status and affirmed summary judgment for the claimant.  The Court also held, however, the district court erred in holding that the insurer acted in bad faith as a matter of law for resisting claimant's partial commutation petition.  The judgments for compensatory and punitive damages were reversed and remanded.

Plaintiff had a serious injury while working as an over the road truck driver.  As a result of this injury, the insurance carrier began paying benefits and set its reserves in an amount based on a PTD finding. The evidence at trial  indicated that the insurance carrier and its attorney believed that Mr. Thornton's claim was a PTD claim.  Defendants presented settlement proposals to plaintiff based on payment of a PTD claim on a structure with a Medicare Set Aside and closure of the file.  Plaintiff filed a workers' compensation claim and defendants denied PTD in answer to the petition.  A mediation failed and the case proceeded to hearing.  Defendants' witness indicated that although there may not have been a reasonable defense, he felt that they still had a right to go to hearing.  Claimant was found PTD after hearing.

Plaintiff subsequently filed a partial commutation claim.  Defendants resisted the partial commutation claim.  Defendants hired an expert to dispute that a partial commutation was in claimant's best interests.  A partial commutation was granted following hearing and indicated it would be hard to imagine a clearer scenario where a partial commutation should be granted.

The Supreme Court found that to establish a first party bad faith claim against a workers' compensation insurer, plaintiff must show that there was no reasonable basis for denying benefits and the insurer knew or had reason to know that its denial was without basis.  The Court discusses earlier workers compensation bad faith claims and concludes that bad faith depended on the carrier's conduct in light of its statutory obligations and not the specific wording of the insurance contract.  Therefore, the failure to introduce the contract at trial did not defeat claimant's claim.

The district court had ruled, as a matter of law, that defendants had acted in bad faith.  The concluded that this decision was appropriate with respect to claimant's PTD status.  The Court did not believe there was bad faith in the mediation phase of the case.  The Court also concluded that there was not bad faith in resisting partial commutation.  The Court notes that commutation is not like the payment of weekly benefits, which commands action from the insurer.  The resistance to commutation was found to be fairly debatable on its facts.

Because of the ruling on the resistance to commutation, the Court concludes that a new trial on liability and damages is necessary.  Much of the $284,000 compensatory damage award was attributable to the delay in commutation portion of the claim.   Because of the incorrect ruling on the commutation portion of the bad faith claim, the trial was said to be tainted  and the other bad faith claims did not cure the taint from the bad instruction.

Plaintiff had also requested attorney's fees for litigating the bad faith action.  The Court, citing the American rule, concludes that the loser does not normally pay attorney's fees and that the bad faith exception to this rule did not apply.

Wednesday, February 8, 2017

Court of Appeals Affirms Denial of Alternate Medical Care

In Penny v. Whirlpool, No. 16-0495 (Iowa App. Feb. 8, 2017), the agency had denied claimant's request for alternate medical care with a neurosurgeon, finding that the care provided to claimant by the employer had not been unreasonable.  The Court of Appeals affirms the decision of the agency.

Claimant had been seen by Dr. Matos and Dr. Abernathey.  Dr. Abernathey did not believe surgery was indicated, but claimant's pain persisted.  The employer set up additional testing to determine claimant's radicular symptoms, but claimant did not attend the appointments under the believe that Whirlpool did not consider his back injury to be work related. Claimant then sought care with a neurosurgeon.  The deputy concluded that since the employer had authorized care with two doctors, as well as authorized an MRI, physical therapy, acupuncture, an EMG and treatment at a pain clinic, the care authorized was not unreasonable.  The district court affirmed.

On appeal to the Court of Appeals, claimant argued that the district court considered evidence outside the record of this alternate medical care proceeding.  The Court of Appeals noted that the record was limited to the record made before the agency and reviewed the record made on the June 2, 2015 application for alternate medical care.

The court finds that claimant failed to demonstrate that the care provided by Whirlpool was unreasonable to treat his injury.  The court rejected arguments that the commissioner's decision was based on an erroneous legal interpretation, was inconsistent with prior precedent, or was based on a determination of fact that was not supported by substantial evidence.  The court affirmed the decision of the agency.


Wednesday, January 25, 2017

Court of Appeals Affrims Award of TTD Benefits, Medical Expenses and Penalties

In Polaris Industries, Inc. v. Doty, No. 16-0961 (Iowa App. Jan. 25, 2017), the COA affirmed the decision of the agency finding that claimant had established eligibility for TTD benefits, medical expenses and penalty.  Claimant was diagnosed with impingement syndrome, which defendants' original orthopaedic surgeon, Dr. Hough, related to claimant's work.  Dr. Hough, following an MRI showing a rotator cuff tear, recommended surgery.  Rather than proceeding with the surgery, defendants had Dr. Blow, a physical medicine doctor, perform a defense medical exam.  Dr. Blow concluded the problems were age related and did not recommend surgery.  Dr. Blow placed claimant at MMI, despite the facto that she had not had surgery.  Dr. Hough subsequently recommended surgery again and placed her on restrictions.  Dr. Hines, who performed an IME for claimant, found causation and also recommended surgery.

The hearing deputy found it was a strain to accept that claimant's condition was not related to work.  The deputy credited Dr. Hough and Dr. Hines and ordered TTD benefits, a small amount of medical expenses and penalties in the amount of 25% of past due TTD benefits.  On appeal, the commissioner affirmed and noted that penalty was appropriate because defendants failed to contemporaneously convey the basis of the denial to claimant.

The COA affirms in all respects.  The court concludes that despite the fact that the employer tried to "massage the factual record on appeal," this did not unsettle the substantial evidence supporting the commissioner's assessment of the doctors' viewpoints.  The court concluded that TTD and medical benefits were appropriate as the decision of the commissioner was supported by substantial evidence.
On the penalty issue, the court noted that the reason for granting penalty benefits was different at the arbitration and appeal levels.  The deputy awarded penalty because Dr. Blow's opinion did not transform claimant's entitlement to benefits into the fairly debatable realm because he ignored facts in the company's own records.  The commissioner found that Dr. Blow's conclusion did make the question fairly debatable, but concluded defendants had not provided the notice required by the statute.  The court concludes that penalties were appropriate, stating that any delay without a reasonable excuse entitles the employee to penalty benefits in some amount.  The record did not demonstrate that defendants had contemporaneously conveyed the reasons for denial to claimant and penalty was therefore appropriate.

Court of Appeals Reverses Commissioner's Summary Judgment Decision in Favor of SIF

Stowe v. Second Injury Fund of Iowa, No. 16-0599 (Iowa App. Jan. 25, 2107) presented the somewhat unusual situation where the commissioner had disposed of a case on summary judgment grounds.  Claimant had settled her case against the employer on an agreement for settlement and in the settlement documents had indicated that the injury was an injury to the left thumb.  When claimant brought an action against the Fund, the Fund filed for summary judgment, claiming that an injury to the thumb was not a qualifying injury for SIF purposes.  The deputy and commissioner agreed and the case was dismissed.

Claimant filed a petition for judicial review and the district court reversed the decision of the agency, finding that the commissioner erred in ruling as a matter of law the settlement agreement precluded claimant from seeking Fund benefits on the basis of a hand injury.  The court noted that the Fund was not a party to the settlement agreement and also found there was no support in the record to substantiate the agency's finding that claimant had acknowledged that the injury was not to her hand.  Viewing the facts in a light most favorable to claimant, the district court reversed and remanded.

On appeal, the Fund argues that the doctrine of judicial estoppel barred a claim for a hand injury because it was inconsistent with her statement in another proceeding that this was an injury to the thumb.  The COA notes that judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.  The court note that the positions in the two proceedings need not only be inconsistent, but "so inconsistent that one necessarily excludes the other."

The court discusses the definition of the word "hand" and notes that an injury to the thumb, by itself does not automatically exclude an injury to the hand in ordinary parlance.  Because Stumpff v. Second Injury Fund makes clear that a finger injury can qualify as a hand injury, the same can be said of the thumb.  The court noted that the documents attached to the settlement agreement supported the claim of a hand injury.  The court concluded that the district court was correct, affirms the action of the district court and remands the case to the agency.

Friday, January 13, 2017

Court of Appeals Affirms Denial of Additional Benefits in Review-Reopening Action

In Ayala v. Tyson Foods, Inc., No. 16-0505 (Iowa App. Jan. 11, 2017), claimant was initially provided a 45% industrial award.  Claimant subsequently filed a review-reopening petition after he had surgery and his impairment rating was increased from 13% to 23%.  Although the commissioner acknowledged this medical evidence, he found there had been no change in claimant's earning capacity, as claimant had no earnings loss and his work restrictions were largely unchanged or lessened.

Claimant contended that the commissioner's decision was irrational, illogical and wholly unjustifiable.  The court rejected this contention, noting that functional impairment was a single, but not controlling factor in determining the extent of industrial disability.  The court also concluded that the decision of the commissioner was supported by substantial evidence, again noting that there was evidence that claimant's earning capacity remained unchanged.  The decision of the commissioner was affirmed.

Wednesday, January 11, 2017

Court of Appeals Affirms Dismissal of Claim on Notice, Statute of Limitations Grounds

The Court of Appeals affirmed the decision of the commissioner dismissing claimant's case on grounds of lack of notice and statute of limitations.  Ross v. American Ordnance, No. 16-0787 (Iowa App. Jan. 11, 2017).

Claimant hurt her shoulder on November 1, 2012 and told her supervisor about this injury.  She was asked whether she needed to see a doctor but claimant indicated she was not hurt that bad.  She did not fill out an injury report.  She continued to have problems with her shoulder and saw a doctor for a cortisone injection on January 11, 2013.  An incident report was made on March 14, 2013 and claimant was diagnosed with a rotator cuff tear and later had surgery.

At hearing, claimant testified that she told her supervisor she had hurt her shoulder.  The supervisor testified that claimant told him her shoulder "hurts a little bit."  He was not sure claimant was relating her injury to work and did not ask whether she was injured while working.  The deputy concluded that since the claimant did not specifically indicate that the problem was work related, her claim failed.  Claimant filed a request for rehearing, indicating that the deputy had not determined claimant's discovery rule issue.  The deputy found the discovery rule didn't apply because claimant told her supervisor about the injury on the day it occurred.  On appeal, the commissioner affirmed, finding that claimant's hearing testimony was significantly different than her deposition testimony and finding claimant not credible and her supervisor credible.  The commissioner found that claimant should have recognized the nature, seriousness and probable compensable character of the injury on the day the injury occurred.  The district court affirmed.

The Court of Appeals indicates that section 85.23 protects the employer by insuring he is alerted to the possibility of a claim so that an investigation can be made.  The court noted that actual knowledge of the injury must include knowledge that the injury might be work connected.  The court concluded that there was substantial evidence to support the contention that the employer did not have actual knowledge of the injury.  The court does not discuss the employer's duty to investigate with respect to the actual knowledge claim.

On the discovery rule issue, the district court found that it was rational and logical for the claimant to know the nature and seriousness of the injury at the time it occurred, given the fact that she told the supervisor she was in pain.  The Court of Appeals concludes the the commissioner's application of the law to the facts was not irrational, illogical or wholly unjustifiable.

Judge Danilson dissented.  She indicated that claimant had told her supervisor that a box had fallen and she had hurt her shoulder.  Here, claimant had indicated that a box fell and was asked whether she needed to see a doctor.  She found the supervisor's response to the injury "to be much akin to Sgt. Schultz's well-known quote from the television series "Hogan's Heroes" - "I see nothing, I know nothing."  Judge Danilson would have found that claimant had provided proper notice.

Court of Appeals Affirms Denial of Alternate Medical Care

In Westling v. Hormel Foods Corporation, No. 16-0236 (Iowa App. Jan. 11, 2017), the Court of Appeals affirmed the decision of the deputy denying claimant treatment for his right knee.  The authorized provider had indicated that claimant wait until he had "more trouble" before considering revision of claimant's total knee replacement.  The deputy concluded that claimant failed to show the services provided by the doctor were unreasonable.

Claimant had originally seen Dr. Crane, but following one of his surgeries, he developed a DVT and opted to have knee replacement surgery with Dr. Wolbrink.   When he began to have further difficulties, he sought treatment with Dr. Alvine, but the employer instead approved care with Dr. Crane again.  Dr. Crane evaluated claimant's knee (claimant alleged this took only five minutes), concluded that a revision of the total knee surgery was not necessary and indicated that claimant should wait.  Claimant expressed dissatisfaction and requested care with Dr. Alvine.  This was denied and Dr. Crane's recommendations were reviewed by Dr. Albright at UIHC.  He agreed that a revision surgery was not indicated.

Claimant subsequently filed an application for alternate medical care.  The deputy concluded that claimant had not met his burden, the case went to the district and was remanded for further findings.  A remand decision was filed in February of 2015 and another decision was issued finding that claimant failed to meet his burden.  The district court affirmed the decision on substantial evidence grounds.

The court indicates that it appeared as though claimant was not alleging a legal challenge, but only a challenge based on substantial evidence.  Claimant argued that because Dr. Crane did not provide treatment, only an opinion that revision surgery was not necessary, the employer had not offered reasonable medical care.  The court disagreed that a diagnostic appointment could not be considered reasonable services under 85.27.  The court found that claimant did not produce evidence that the wait and see approach advocated by Dr. Crane was unreasonable.  The court concluded that substantial evidence supported the decision of the agency.