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, August 12, 2010

Supreme Court Decides Rate Case Addressing the Question of Part-Time Work

In Swiss Colony v. Deutmeyer, 789 NW2d 129 (Iowa 2010), Kent Deutmeyer worked 30 hours a week at Swiss Colony at the time of his workers' compensation injury.  That injury ultimately required an amputation to the knee, and complaints of phantom pain after the amputation.  During the time he worked at Swiss Colony, claimant also worked 40-45 hours per week at Webber Metals.  The questions presented to the court involved the correct rate for claimant, as well as the extent of industrial disability (claimant left work following his injury, again working in two jobs, but for considerably less money). Also involved was the question of whether the employer could obtain credit for alleged overpayments, which involved section 85.34(5) of the statute.

In determining the standard of review, the court noted that it had previously found that interpretation of Chapter 85 had not been delegated to the Commissioner.  Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004).  The court noted that it had recently modified this standard to define the inquiry as to whether the legislature had "clearly vested an agency with the authority to interpret a particular statue or phrase in a statute."  Renda v. Iowa Civil Rights Commission, 784 N.W.2d 8 (Iowa 2010).  The court noted that it must first determine whether the agency had been granted authority to interpret the disputed statute or phrase, and in the absence of such a grant of authority, the court must determine whether the legislature clearly vested the agency "with the power to interpret the statute by implication."  The court concluded the section 85.34(5) was not one of the statutes where the agency was clearly vested with power, and the court was therefore free to substitute its interpretation de novo.

In determining the rate issue, the commissioner had concluded that, under section 85.36(9), the claimant had earned less than the usual weekly earnings of a regular full-time adult laborer at his Swiss Colony job, and thus was entitled to benefits based on his wages at both Swiss Colony and Webber Metals.  The court reversed, finding that the finding that claimant made less than the usual weekly earnings of a full time adult laborer was not supported by substantial evidence.  The court concluded that neither party produced evidence on this issue, as the commissioner had acknowledged in his opinion.  Nonetheless, the commissioner had concluded that because the vast majority of businesses view 40 hours as full-time, claimant was entitled to part-time treatment of his wages.  In reversing, the court cited King v. City of Mt. Pleasant, 474 N.W.2d 564, 566 (Iowa 1991).  In King, the court had indicated that the question was not whether claimants had outside employment, but whether the weekly earnings were inconsistent with the earnings of full-time employees.  Applying King, the court found that a 40 hour week could not be considered the standard for every industry.  Rather than remanding the case for a factual determination of the appropriate rate, the court stated that "when a record is inadequate, remand for additional evidence is generally not appropriate," and concluded that, given the language of King, there were no good reasons for the remand of the case to the commissioner on the issue of the rate standard for the industry.  The case was remanded to consider recalculation of benefits under the proper standard.

The second issue involved in the case was the issue of credits.  The employer had overpaid the claimant, and the question presented involved the recoupment of the overpayment by the employer.  Claimant argued that under section 85.34(5), if an employee was paid "any weekly benefits" by the employer, the only credit that could be provided was credit "for any future weekly benefits  . . . for a subsequent injury to the employee."  Claimant's argument was that the employer was not entitled to a credit for future benefits on the same injury, but only on a subsequent injury.  The court, citing the express language of the statute, agreed.  The employer argued that where claimant had not received his total permanency award, future benefits could be reduced to recoup such an overpayment.

In concluding that claimant's position was correct, the court found that it determined legislative intent based on the words chosen by the legislature, not on what the legislature might have said.  The court stated that the plain language of the statute compelled the result that recoupment could occur only in future injuries, citing the language in the statute that covered "any weekly benefits."  The court noted that its decision was based on what the legislature said, not what it might have said in the statute.  Although the court noted that employers may find themselves without a remedy in such situations, the solution to the problem was legislative.

On the industrial disability question, the court affirmed a 60% award of benefits with little comment.

Although the court struggled with the language of both 85.36(9) and 85.34(5), the court ultimately concluded that because the workers' compensation system is based on a statutory analysis, the words of the statute must prevail.  In some cases, this cuts against claimant, as with the rate issue in Deutmeyer.  In other cases, the employer's position is harmed.  Ultimately, however, since workers' compensation depends on a statutory regime, the words of the statute should be deemed paramount.

Supreme Court Decision on Court Costs

Solland v. Second Injury Fund of Iowa, 786 NW2d 248 (Iowa 2010) provided the court with an opportunity to decide an issue of costs.  The court of appeals had assessed costs equally to the claimant and the Fund, despite the fact that claimant had prevailed in all respects before the court of appeals.  Solland began as a case in which claimant pursued his case against the Fund for two bilateral injuries. At the court of appeals level, the court found in favor of claimant, citing Gregory v. Second Injury Fund of Iowa, 777 N.W.2d 395 (Iowa 2010) and Second Injury Fund of Iowa v. Kratzer, 778 N.W.2d 42 (Iowa 2010).  On the costs  issue, the court of appeals reversed the decision of the district court approving the assessment of costs by the commissioner and taxed costs of appeals to both parties equally.

The Supreme Court found that Solland was the successful party on appeal, "prevailing on all substantive issues." The court found it clearly erroneous, given the success of claimant, to divide costs equally between the parties.  All costs on appeal and judicial review were assessed against the Fund.

In some ways, it was unusual that the court reached out to decide an issue of costs.  The Solland decision makes clear that costs should be assessed against the party who loses on appeal, which only makes sense.  The case also makes it clear that at least at the appellate level, costs may be taxed against the Fund.  The logic of the Solland decision would seem to allow for taxation of costs against the Fund at the agency level as well.

Friday, August 6, 2010

Supreme Court Decides Horseplay Case

Horseplay is not an area that is addressed frequently by the Supreme Court, so the decision in Xenia Rural Water District v. Vegors, 786 NW2d 250 (July 2010) was an interesting departure from most workers' compensation cases before the court.    The facts of the case are somewhat unusual.  Claimant and a co-worker were in the habit of acknowledging each other by activities such as waving the boom of a back hoe at the other.  On the date of injury, claimant had his hands full and acknowledged the other employee by "wiggling his butt" at him.  The co-employee the attempted to bump claimant with the mirror of his truck, but ended up hitting him with the truck bed.


The commissioner found claimant entitled to benefits, holding that the burden of proving horseplay was on the employer.  The commissioner also rejected a defense that the injury was caused by a willful act of a third party.  The district court reversed and denied benefits to claimant.


As an initial matter, the court found that the commissioner was not vested with the authority to interpret Iowa Code sections 85.3(1) and 85.16(3).  Therefore, the conclusions of the commissioner were viewed for errors at law rather than on a more deferential basis.


The court found that the prohibition on recovery where the injury resulted from horseplay stemmed from the requirement that injuries arise out of and in the course of employment.  Further, the proper analysis was whether the claimant substantially deviated from the course of employment.  The burden of demonstrating that the injury was not the result of horseplay ultimately rested with the claimant, since this was a part of the arising out of/in the course of burden.  Thus, the burden did not shift to the employer because they had alleged horseplay as a defense.


The court noted that in Ford v. Barcus, 155 N.W.2d 507, 511 (1968), an employee who voluntarily instigates and aggressively participates in horseplay cannot recover workers' compensation benefits.  But this denial of benefits only occurs where "claimant substantially deviates from the employment."  Innocent employees who are injured as a result of another's horseplay may recover.  Four factors are taken into account in determining whether the horseplay is a deviation from the course of employment:

  • extent and seriousness of deviation
  • completeness of the deviation
  • extent to which horseplay was an accepted part of employment 
  • extent to which the nature of the employment may be expected to include some horseplay
According to the court, the character of claimant's action of shaking his rear end - not the injury that resulted - must be evaluated to determine whether this was a sufficient deviation to bar recovery.  The court found that this could not be determined as a matter of law.  Because of this, the case was remanded to the agency to determine whether the facts justified a finding of horseplay.

The court also addressed the issue of whether compensation should be denied because the injury was caused by the willful act of a third party.  The court holds that the action of the co-employee was not done for reasons "personal to the employee" and because of this, section 85.16(3) did not apply.  According to the court, for 85.16(3) to apply, the reasons for the action of the third party must be based on something in the personal relationship between the claimant and the third party "outside the working environment."  Since there was no such evidence in this case, the affirmative defense under 85.16(3) did not apply as a matter of law.