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, July 18, 2018

Court of Appeals Affirms Commissioner's Industrial Disability Findings

In Harper v. Lensing, Ltd., No. 17-1615 (Iowa App. July 18, 2018), the Court of Appeals affirmed the industrial disability findings of the agency in light of claimant's argument that the agency had not demonstrated a "logical pathway" outlining the commissioner's industrial disability determination.  

Claimant suffered an automobile accident while at work, as a result of which her duties were modified.  She later had a fall at home, was placed on light duty and ultimately had her restrictions lifted.  Claimant then developed pneumonia and missed substantial amounts of work.  The employer terminated her employment.

Claimant was paid 17 weeks of benefits before hearing.  The deputy and commissioner concluded that claimant was not entitled to permanency above the payment of that 17 weeks of benefits.  The commissioner relied on the opinions of Dr. Jones and Dr. Broghammer.  Claimant sought rehearing and the commissioner again found that he relied on the opinions of Dr. Jones and Dr. Broghammer.  The district court affirmed and found that it was possible to deduce how the agency had reached its conclusion.

The Court of Appeals finds that the agency has a duty to state the evidence relied upon and to detail the reasons for the conclusions reached, and must sufficiently detail his decision to show the path taken through conflicting evidence.  Citing IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 633 (Iowa 2000).  The court also notes that the agency decision is sufficient if it is possible to work backward from the agency's written decision to deduce the agency's legal conclusions, again citing Al-Gharib.  In this case, the court finds that the commissioner specifically relied on the reports of Dr. Jones and Dr. Broghammer, which detailed why claimant's industrial disability was minimal.  This was sufficient for the court and the decision of the agency was upheld.

In a footnote in the decision, the court notes that other issues were presented but were not considered by the court because claimant had provided "very few, and on some issues no, citations to legal authority to support her position on appeal."  The court found that to reach those issues would require the court to assume a partisan role and undertake the appellant's research and advocacy.  The court refused to do this and deemed these issues waived.  This footnote should serve as a warning for future appellate advocacy to make sure that legal citations are made for each contention made in the brief.  If this is not done, those issues may be deemed waived by the court.

Court of Appeals Rejects Claimant's Attempt to Levy Property of Employer for Workers' Compensation Payments

In Ha v. CMP Tactical Lazer Tag, No. 17-0687 (Iowa App. July 18, 2018), the Court of Appeals was asked to rule on a claimant's attempt to levy on the property of the employer.  The business was known by different names (AKA, Escape Chambers, CMP) and claimant alleged this was the same property where claimant worked when she suffered her work injury.  

Claimant was hired by AKA and continued to work for the facility after her injury in April of 2014.  In early 2014, the facility rebranded itself as CMP.  AKA later indicated that Ha was not an employee.  The agency case caption showed CMP as the employer, but had the same number as the claim against AKA.  CMP did not participate in the workers' compensation hearing and default was entered against CMP. 

Claimant filed for a motion for entry of judgment against CMP in district court.  The district court entered judgment against CMP and claimant attempted to garnish CMP's bank accounts.  Claimant attempted to levy against the property, but the property owner claimant that the building was leased by AKA and Escape Chambers and the levy was against CMP.  Ha sought to clarify the order and argued successor liability. AKA and Escape Chambers indicated they were distinct entities.  Claimant submitted paychecks made out to her by AKA, but the court accepted the claim these were not payroll checks because they did not reveal withholding information.  The district court found Ha had not demonstrated a connection between CMP, AKA and Escape Chambers at the time of the injury.

The Court of Appeals finds that the district court's ruling that AKA, CMP and Escape Chambers were not all the same entity was supported by substantial evidence.  The court rejected the claim that CMP and Escape Chambers were mere continuations of AKA.  Claimant had noted that all three entities had the same facility, same phone number, same business model and same owners and managers.  The court finds that claimant had the burden of showing that a transaction took place between
AKA, CMP and Escape Chambers and because she had not done so, could not prove that the transaction was fraudulent.  The court also held that Ha had not submitted any evidence to indicate that CMP had common owners or interests with AKA or Escape Chambers.  Because Ha had not shown successor liability, her claim was dismissed.

Wednesday, June 20, 2018

Court of Appeals Affirms Ruling that Stipulated Work Injury Did Not Lead to Permanent Impairment

In Bahic v. Mercy Medical Center, No. 17-1374 (Iowa App. June 20, 2018), the commissioner had concluded that claimant, who had a stipulated work injury to her back, had not suffered a permanent impairment.  The commissioner's decision came in the wake of the deputy's decision, which had concluded that claimant was permanently and totally disabled as a result of the back injury.  

Following the back injury, Dr. Boarini had concluded that claimant's injury was "extremely minimal."  Dr. Mendoza had found that the condition of claimant's back was such that she needed a fusion, which he performed.  Dr. Mendoza, however, concluded that the injury was not related to claimant's work. In reversing the deputy, the commissioner held that claimant had reached maximum medical improvement in February of 2014, before Dr. Mendoza had performed surgery.  The commissioner found Dr. Mendoza's opinions to be the most credible. 

In reviewing the commissioner's decision, the court noted that the commissioner's finding would be disturbed only if it was not supported by substantial evidence.  The court noted that the case was similar to Cedar Rapids Community School District v. Pease, where the court found that it was the commissioner's responsibility to determine which physicians were to be given credibility. The court affirmed that this credibility determination was within the "peculiar province" of the commissioner.

Claimant requested that the court find that the testimony of the experts relied on by the commissioner to be so flawed as to not constitute substantial evidence.  The court concluded that this was not a case where the records were "so impossible or absurd and self-contradictory that it should be deemed a nullity by the court."  The court also rejected claimant's argument that the case should have been remanded to determine whether claimant had a permanent injury at the time that she was found to have reached MMI by Dr. Boarini.   The court concluded claimant had not met her burden of proving permanent injury.

The court also rejected claimant's contention that the application of law to fact was irrational, illogical and wholly unjustifiable.  The court found that this was a substantial evidence argument in a different guise. The commissioner reviewed all the evidence, considered it, and accepted the opinions of Dr. Boarini and Dr. Mendoza over those of claimant's experts.  The commissioner's decision was affirmed.

Friday, June 8, 2018

Supreme Court Issues Decision Addressing Beneficial Care Rule

In a 6-1 decision, the Iowa Supreme Court affirmed their earlier ruling in Bell Bros. v. Gwinn, 779 N.W.2d 193 (Iowa 2010) and held that in order to take advantage of the beneficial care rule, claimant must prove that care that was unauthorized is reasonable and beneficial and provides a more favorable medical outcome than the care authorized by the employer.  Brewer-Strong v. HNI Corp., No. 16-1364 (Iowa June 8, 2018).  The court also concluded that a an employer who initially denies liability of a claim, can later find that the claim is work-related and regain control of the claim, including authorization of medical care.  Finally, the court held that if care is provided to claimant outside of the workers' compensation process, healing period benefits may be lost if claimant does not prove that the care obtained provided a more favorable outcome than that offered by the employer.

Claimant suffered carpal tunnel problems, which were thought to be work-related by her initial treater.  Claimant filed for alternate medical and defendants denied the claim. Subsequently, defendants had claimant seen by Dr. Adams at the University of Iowa.  Dr. Adams found that claimant had carpal tunnel syndrome that was aggravated by her work, but declined to recommend surgical treatment. Claimant was examined by another physician, Dr. Kreiter, who recommended surgery.  Defendants set up another appointment with Dr. Adams, which claimant did not attend.

At her deposition, claimant testified that she intended to seek treatment with Dr. Thomas VonGillern.  In that deposition, she claimed that Dr. Adams was "high educated idiot" and indicated she did not wish to see him again.  During the deposition, claimant also indicated she had seen Dr. Atwell, who also did not recommend surgery.  Defendants subsequently indicated that Dr. Adams was the authorized treater and they would not authorize or pay for treatment with Dr. VonGillern. Claimant had surgery with Dr. VonGillern on her own and in his deposition, the doctor indicated that he was not sure if the results of a surgery by Dr. Adams would have been substantially different than those he achieved.

The agency found that claimant had not demonstrated that the care provided to her was not more beneficial than what would have been provided by Dr. Adams.  Payment for that care was therefore denied.  Payment for healing period benefits was also denied under Bell Brothers.  The agency also found that the employer could regain control of care after having first denied a claim and found that HNI had done so in this case.

The Supreme Court found that an employer does not forfeit its right to control medical care by initially denying a claim.  The court noted that the employer had an ongoing duty to investigate a claim and if that investigation indicated that the claim was compensable and the employer accepted its responsibility, it could regain control of medical care.  The court distinguished R.R. Donnelly and Sons v. Barnett, 670 N.W.2d 190 (Iowa 2003), which had examined the scope of the authorization defense.  Although Barnett  had indicated that the employer could lose the authorization defense if compensability was denied, it could regain that defense if the employer later accepted liability ("we have never held that an employer forever forfeits its rights and obligations under Iowa Code section 85.27 by initially denying liability for an injury, and it does not make sense that we would."). The court clarified that the employer only loses its authorization defense with regard to the medical care the employee requested in an application for alternate medical care.

The second issue before the court concerned the extent of Bell Bros's beneficial care rule.  Claimant alleged that requiring claimant to prove that care that was provided was more beneficial than the hypothetical care that might have been provided by the employer was "nearly impossible."  The IAJ Core Group had proposed a test that the care chosen by the employee be "reasonable and beneficial in some way under the totality of the circumstances."  The court rejected the IAJ approach, not necessarily because it was inconsistent with the act, but because of stare decisis.  The court found that the highest possible showing was needed before a prior precedent was overturned.  The court also found that stare decisis was particularly applicable where the legislature had acquiesced in the interpretation made earlier by the court.  Since eight years had passed without a legislative response altering the sections of the Code, the legislature was found to have "embraced" the court's interpretation of that section.  Furthermore, claimant had failed to demonstrate factually that the care that was provided was reasonable, beneficial and provided a more favorable outcome than that authorized by defendants.

Finally, the court concluded that the provision of healing period benefits should be linked to the question of whether beneficial care had been demonstrated.  Claimant had argued that nothing in section 85.34(1) of the Code supports the interpretation that an employer is only responsible for healing period when the care is authorized.  Although the court admits this is the case, they conclude that claimant's interpretation is "inharmonious" with chapter 85 as a whole.  The court concludes "An interpretation that requires an employer to provide injured employees with healing period benefits for their unauthorized care when they knowingly abandoned the protections of Iowa Code section 85.27 would be inconsistent with the overall intent of the statute."

Justice Hecht dissents, finding that Bell Bros. established an impractical legal standard, inviting the commissioner to engage in sheer speculation.  Justice Hecht noted that the agency's beneficial care rule, which had been established before Bell Bros., did not require claimant to demonstrate that the care they received was "more beneficial" than care that was provided by the employer, only that the care was "reasonable and beneficial."  The dissent concluded that requiring claimant to prove a more favorable outcome was an "unrealistic and impractical burden of proof." In this case, the commissioner was required to engage in "pure speculation" because claimant was required to prove that her surgery was more beneficial than surgeries that were not provided by defendants.

For claimants' attorneys there are a few upshots to the decision in Brewer-Strong.  First, if the defendants agree to provide care, not attending an appointment with the authorized treater is not going to be a winning strategy.  Second, in any case where the type of treatment recommended by an authorized treater and unauathorized treater, is the same or similar, you're unlikely to prevail.  On the flip side, there is still a beneficial care rule which can be helpful in the right cases, but that will typically be where the defendants are provided no care or very limited care.

Wednesday, June 6, 2018

Court of Appeals Affirms Denial of Second Injury Fund Benefits

The Court of Appeals, in Ginther v. Second Injury Fund, No. 17-0867 (Iowa App. June 6, 2018), affirmed the decision of the agency that claimant had not demonstrated a qualifying injury for second injury fund purposes.  Claimant's first injury was plantar fasciitis of the right foot.  Dr. Sassman had concluded that no ratable impairment existed for plantar fasciitis, but found that a 3% whole person impairment for pain was appropriate.  The deputy found that claimant did not have a qualifying first injury because Dr. Sassman's opinion that there was a 3% rating for pain was unconvincing.  The deputy also noted that since the rating was to the body as a whole, this was not a qualifying injury for SIF purposes.  The commissioner affirmed.

The court found that because Dr. Sassman did not find that claimant had suffered a loss of use of the right foot, but had rather provided a whole person rating based on pain, he did not establish that he had lost the use of his right foot.  Accordingly, the court found there was no first qualifying injury as a matter of fact.

Claimant argued that his pain arose as a result of his foot injury and that therefore he had established a qualifying injury.  Without additional comment, the court again indicates that claimant did not establish he had lost use of his foot.  In a final ruling, the court finds that the decision of the agency was not irrational, illogical or wholly unjustifiable.  The decision of the commissioner was affirmed.

The court really doesn't grapple with the underlying issue of the fact that the situs of the injury was the foot and claimant had established that he had planter fasciitis of the right foot and a permanent impairment, which would normally be enough to be a qualifying injury for Fund purposes.  Turning this argument on its head, it would seem that if ratable pain in the foot is enough to keep the injury from being a scheduled member for Fund purposes, then pain as a general matter should be an industrial injury, regardless of whether it emanates from a scheduled member or not. 


Court of Appeals Denies Review Reopening Claim Where Claimant was Transferred to a Different Position as a Result of his Injury and was Subsequently Laid Off

Linares v. Tyson Fresh Meats, No. 17-1409 (Iowa App. June 6, 2018) involved a situation where claimant was originally awarded a 40% industrial disability as a result of his injury.  As a result of the injury, claimant was sent to work on a line which involved less physical work.  The persons who were on this line were later laid off and claimant filed a review reopening petition, claiming that his economic circumstances had changed as a result of the layoff.

Both the arbitration and appeal decisions concluded that the permanent work restrictions were known to the parties at the time of the arbitration decision and were considered at that time in determining claimant's industrial loss.  Since the restrictions had not changed, there was no physical change and there was no economic change, according to the commissioner because the layoffs were not related to claimant's condition, but affected all employees equally.

The district court affirmed, finding that claimant's condition had been determined at the time of the original settlement.  The Court of Appeals, noting the decision of the Supreme Court in U.S. West Communications v. Overholser, 566 N.W.2d 873, 877 (Iowa 1997) concluded that claimant "was not entitled to review-reopening when her economic condition decreased due to a layoff."  Based on Overholser, the court affirmed the decision of the agency.

In making the decision in the case, the Court of Appeals did not address the fact that in Overholser, claimant was sent to another department not because of her work injury, but because of another injury that was not work related.  Although this would seem to be a distinguishing factor between Overholser and Linares, the decision does not address this factual distinction. 

The Linares case is being handled by Jamie Byrne of Neifert, Byrne & Ozga.

Wednesday, May 16, 2018

In Borkovec v. Dish Network, No. 17-0743 (Iowa App. May 16, 2018), the Court of Appeals affirmed the decision of the commissioner which had held that a work injury was the cause of claimant's opioid dependency, but concluding that permanency was not ripe because claimant had not reached the end of his healing period.  The records presented at hearing indicated that if claimant had treatment for his addiction, his function might improve. The  hearing deputy had concluded that claimant was permanently and totally disabled and the appeal decision changed that to a running healing period.  Following a petition for judicial review, the district court reversed the commissioner's decision and found that claimant was permanently and totally disabled.  The Court of Appeals reinstates the decision of the commissioner.

Claimant was involved in a serious auto accident and was provided  large impairment ratings by the doctors who opined on the issue.  Dr. Kuhnlein concluded that claimant needed a comprehensive pain management program and also found that claimant had not reached MMI for his opioid addiction.  He recommended that claimant be weaned from opioids.  The hearing deputy concluded that claimant was permanently and totally disabled from his physical injuries, but had not achieved MMI for his mental conditions or his opioid addiction. On appeal, as noted above, the decision was reversed, and claimant found to be in a running healing period.  The district court held that treatment of claimant's opioid addiction would not significantly increase his physical functioning and ability to work and therefore reversed the commissioner's decision.

The Court of Appeals noted that permanency could not be determined until claimant's disability had stabilized., i.e. when it is medically indicated that significant improvement from the injury is not anticipated.  The court concluded that the appeal decision was supported by substantial evidence because doctors, including claimant's IME doctor, had found that many of the restrictions were because of claimant's opioid addiction.  The decision of the district court was reversed.

Judge Danilson concurred with the decision "reluctantly."  The judge found that if claimant made a good faith effort to overcome his opioid addiction, he should be found at maximum medical improvement, but that "Borkovec should not be held hostage endlessly on some slight glimmer of hope he may be employable with very substantial work restrictions in the future."

Court of Appeals Affirms Causation Decision on Substantial Evidence Grounds and Surveillance Video

Claimant alleged that he suffered an injury to his knee while gassing up his truck and argues that the commissioner ignored uncontested expert testimony in concluding that claimant's injury did not arise out of and in the course of employment.  In Swanson v. A.V. Transportation, No. 17-1127 (Iowa App. May 16, 2018), the Court of Appeals affirms the denial of benefits on substantial evidence grounds.

Claimant was an over the road truck driver, who was gassing up his truck on ice covered ground when he slipped, did the splits and felt pain in his right knee.  Claimant did not initially report the injury, but later reported it, indicating this had happened on February 14.  He later amended that to February 15, and finally to February 7.  The claim was initially accepted and an MRI showed a meniscal tear.  The knee was repaired.  An IME, by Dr. Milas found that the knee injury resulted from work related activities, and was based on claimant's account of the injury.

At hearing, claimant and two of the employer's employees testified.  A surveillance video on the day of the alleged incident showed claimant getting into and out of his truck without incident.  Based on the video, the deputy and then the commissioner concluded that claimant's injury had not arisen out of and in the course of employment.  The district court affirmed on substantial evidence grounds.

Before the Court of Appeals, claimant argued that the agency did not give proper weight to claimant's testimony or the medical opinions from his treating physicians.  The court rejected this contention, finding that the medical evidence did not provide a reliable account of the cause, location or date of the accident because it was based on claimant's own account, which was contradicted by the surveillance video.  That video showed no difficulties with claimant getting into and out of the truck and also showed puddles of water, not ice.  The court affirms on substantial evidence grounds.  

Wednesday, March 21, 2018

Court of Appeals Affirms Finding That Claimant's Shoulder Injury Did Not Result in Permanent Disability

Claimant was found to have met her burden of demonstrating that she suffered a work related injury to her shoulder, but the agency concluded that she did not establish permanent total disability.  Merrick v. Crestridge, Inc., No. 17-0745 (Iowa App. March 21, 2018).  On appeal, claimant contends that the agency's decision was not supported by substantial evidence and that the agency misapplied the law to the facts.

Claimant suffered a shoulder injury and the doctors initially believed that the injury had caused capsulitis.  She was placed on light duty work following the injury and was provided with injection therapy, which was helpful.  She was released to regular duty work, but did not return to work for the employer. The treating doctor concluded there was no permanent functional impairment and she was provided a 0% rating.  Dr. Kreiter, who performed an IME, found that claimant had a 13% BAW rating as a result of shoulder instability and a possible labral tear.  He believed that an MRI and permanent physical restrictions were necessary.

An MRI showed no evidence of tears in the shoulder and the treating doctor found no evidence of instability.  He found that claimant's current complaints were not due to her work injury and disagreed with Dr. Kreiter's assessment.  He again found there was no permanent impairment.

The agency relied on the treating doctor over Dr. Kreiter.  Although claimant argues before the court that the agency ignored the evidence of Dr. Kreiter, the court concludes that the agency provided specific reasons why it found Dr. Hussain's opinion to be more credible and Dr. Kreiter's less so.  Because the agency considered this evidence, the court concluded the agency's decision was supported by substantial evidence.  The court also concluded that lay testimony was considered and that the agency's decision on this score was supported by substantial evidence.  The court concluded that the application of the law to the facts was not irrational, illogical or wholly unjustifiable.

Wednesday, February 21, 2018

Court of Appeals Affirms 10% Industrial Award, Denial of Penalty Benefits

Claimant was awarded a 10% industrial disability and was denied penalty benefits.  On appeal, the court in Allen v. Tyson Fresh Meats, Inc., No. 17-0313 (Iowa App. Feb. 21, 2018)  affirms the decision of the agency.  The court notes that claimant did not plead entitlement to penalty benefits and the commissioner noted that under 876 IAC 4.2, the claimant was required to please entitlement to penalty benefits before such benefits may be awarded.  Claimant contends that the mention of this issue in an answer to interrogatories should be sufficient.

The court noted that whether they gave deference to the agency's interpretation of its rules or not, the district court was not in error in affirming the commissioner's interpretation. Thus, even under a less deferential standard of review, the agency's interpretation was not illogical, irrational or wholly unjustifiable.  Section 4.2 specifically provides that entitlement to penalty "shall be pled."  The court finds that this imposes a duty upon the claimant to plead penalty benefits. Since penalty was not pled, the commissioner appropriately refused to consider claimant's penalty claim.

On industrial disability, claimant alleged that this was irrational, illogical and wholly unjustifiable, as the ratings of impairment (12%) were higher than the 10% industrial award.  The court finds that although claimant was of relatively advanced age (61) and had a limited education, the 10% industrial loss finding was not irrational because claimant had no loss of job or earnings following the injury and had not missed any days as a result of the work injury.  The court notes that while this finding does not preclude claimant from an award of industrial disability, it cannot be overlooked in determining how much the injury affected his employability.   The 10% industrial award is affirmed by the court.