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.

Thursday, May 27, 2010

Court of Appeals Rejects Application of Daubert to Workers' Compensation Cases

The Iowa Court of Appeals rejected defendants' argument that the opinion of claimant's expert had to be evaluated under Daubert v. Merrell Dow Pharmaceuticals. Frank v. FITS Mfg., No. 09-1419 (Iowa App. May 26, 2010) http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20100526/0-186.pdf. Frank involved a claimant who developed respiratory problems, ostensibly at work. Claimant's expert witness, a pulmonologist from the University of Iowa Hospitals and Clinics, believed that the constrictive bronchiolitis that claimant developed was related to her work. Defendants' experts, an industrial hygienist and an occupational physician, did not believe that the fumes at the workplace caused or contributed to claimant's condition.

The defendants' specifically asked the Court of Appeals to adopt the Daubert standard as the law in Iowa. The court rejected this invitation, finding that the Iowa Supreme Court had previously declined to apply Daubert in Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 533 (Iowa 1999), and had recently "affirmed its commitment to a liberal view on the admissibility of expert testimony. . . ." in Ranes v. Adams Laboratories, 778 N.W.2d 677, 685-86 (Iowa 2010). The court noted that even if it was assumed that this was the type of case to which Daubert applied, general and specific causation had been established by claimant's expert. In a footnote, the court further indicated that the rules of evidence for workers' compensation claims were different that those in a general civil action.

Ultimately, the court relied on the time-honored principle that whether an injury has a direct causal connection with the employment is essentially in the domain of expert testimony, and that the commissioner is the one to make this decision. Finding that the commissioner's decision was supported by substantial evidence, the court affirmed the award of benefits.

It will be interesting to see whether further review of this case is sought by defendants. On its surface, this is not the type of case where Daubert would seem to assist defendants even if it was applied. The bona fides of the experts involved are such that defendants' experts certainly don't seem to prevail over those of the claimant's expert. In addition, claimant's expert opined based on various peer reviewed studies, while defendants' expert testified primarily based on testing of the plant conducted two years after claimant's injury. The implies, without directly stating so, that Daubert is particularly inappropriate in workers' compensation cases, which are generally not the "difficult scientific cases" to which Daubert applies. Based on the decisions in Leaf and Ranes, it appears unlikely the Supreme Court will want to revisit this issue in the workers' compensation context.

Wednesday, May 26, 2010

Interference with Medical Care Results in Employer's Loss of Right to Control Care

In what the deputy described as what may have been the longest alternate medical care hearing ever before the agency, the employer was found to have "actively interfered" with the care recommendations made by the treating doctor.  Dodge v. Excel Corp./Cargill Meat Solutions, No. 5032411 (AMC April 27, 2010).  The physician had restricted claimant to sitting duty only, with her leg elevated.  As a part of her light duty work, claimant was made to sit in an 8 x 10 foot room with as many as 11 other workers, and she testified that the nurses at Cargill never check her status.  Despite attempts by claimant to have the doctor change her work status and place her off work, the doctor indicated his hands were tied by the employer's indication that it had suitable work for the claimant.

Although claimant's arguments were primarily about the treatment she had received at the hands of the employer, she also argued that the employer had interfered with the medical judgments of the treating physician, who had originally kept her off work.  Claimant sought to change care so that she could choose the doctor.  The deputy concluded that the employer did more than simply inform the doctor of the policy, they actively urged a change in  the restrictions placed on the claimant.  The deputy found:

This noble sounding goal is belied by the record, which shows the light duty room is not a pleasant place, and in fact no nursing care is given to the workers there, not even ice when it is requested for pain.  The assertion that Cargill wants injured workers in the light duty room for benevolent purposes is not accepted.  It is highly suspected the purpose of the light duty room is to deny injured workers the opportunity to recuperate from surgery at home.

The decision concluded that the defendant employer had abused its privilege to choose the medical care by actively interfering with that care, and inhibiting claimant's recovery as a result.  The doctor was found to be vulnerable to undue influence over his medical judgment by the employer.  The claimant was allowed to choose to continue care with the doctor who had performed surgery, and to choose another qualified medical professional to address her foot injury.

The decision relates both to the care provided (and allegedly interfered with) and the question of suitable work.  The fact that the room in which injured workers were kept was small and that no care was provided to the employees when they were in the room seems Dickensian, and was undoubtedly a reason for the conclusion reached by the deputy.  The decision has been appealed to the Iowa District Court, and will most likely proceed beyond that point.