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.

Tuesday, September 7, 2010

Supreme Court Decision Apportioning Risk in Case Involving Volunteer Firefighter

In Andover Volunteer Fire Department & Travelers Ins. Co. v. Grinnell Mutual Reinsurance Co., 2010 WL 3186153 (Iowa, No. 08-1628 Aug. 13, 2010), the Supreme Court allocated risk between two insurance companies.  The claimant in the underlying case, Justin Faur, was an employee of Johnson Valley Beef as well as a volunteer firefighter for the Andover VFD.  On the date of the injury, Justin was attempting to rescue a co-employee who had been overcome by methane fumes at Johnson Valley Beef.  At about the same time as Justin was attempting to rescue the co-worker, he was paged by the VFD to the scene of the accident.  Both the co-worker and Justin died as a result of the accident.

Grinnell Mutual, which was the insurance carrier for Johnson Valley Beef, paid the claim and sought contribution or indemnity from Travelers, the carrier for the Andover VFD.  Grinnell claimed that Justin had been "summoned to duty as a volunteer firefighter" under 85.61(7)(a) of the Code.  The hearing deputy concluded that Justin had been summoned prior to his death, and found that Travelers was one-half responsible for the workers' compensation benefits payable.  The commissioner did not believe the timing of the summons was critical, as Justin had been summoned by the circumstances themselves, which compelled him to act in an emergency situation.  The district court rejected the commissioner's approach, and remanded for further proceedings as to when Justin had been summoned.

As the court has done in a number of recent cases, they being their discussion by noting that since the commissioner had not been clearly vested by the legislature with the authority to interpret the legislative language, in this case the phrase "summoned to duty."  Accordingly, no deference was shown the commissioner in his interpretation of that language.

The court indicates that its role is "only to determine the intent of the legislature."  Although courts resolve uncertainties in language, it is only done in "a way that captures the will of the legislature."  The ambiguity in this case was the phrase "summoned to duty."  The court noted that 85.61(7)(a) provided a special "course of employment" rule for volunteer firefighters.  That section places the volunteer firefighter in the course of employment at any time from when the firefighter is summoned to duty until the time she or he is discharged from duty by the chief or the chief's designee.

The court noted that the usual going and coming rule was not applicable to volunteer firefighters.  The court indicates that the phrase "summoned to duty"  indicates that the firefighter is summoned as a member of a group and that the statute also requires that the summons is issued at the request of a person in command of the group of volunteer firefighters.  The court found nothing in the context of the statute to reveal an intent "for volunteer firefighters to summon themselves to duty."  After considering common meanings of the terms used, the court concludes that the volunteer firefighter must be called to duty by a third party.  Any other approach, according to the court, would be contrary to the legislative intent.

The next question is whether the summons must be heard or received by the volunteer firefighter.  The court concludes that the language of the statute focused on whether the particular injured volunteer firefighter was summoned, not on whether the summons was sent.  The court stated that absurd results could occur if the language were not interpreted to require the receipt of a summons.  The court concluded that the summons must be received by the injured firefighter.  The court affirmed the decision of the district court and remanded to the agency for further proceedings.

Justices Hecht, Wiggins and Baker concurred specially, premised on a disagreement over whether the firefighter must prove that he or she received the department's call to duty.  According to the minority, this interpretation resulted in an embellishment of the words chosen by the legislature.  The minority did not see anything illogical, impractical or absurd about commencing the period of "in the course of" employment when an authorized person sounded the call to action.  The minority also notes that the majority ignores the principle that the workers' compensation statute is to be applied broadly and liberally.

The minority view correctly notes that the purpose of 85.61(7)(a) was to extend the protections of the statute to volunteer firefighters over and above the normal "course of employment" rules.  Although the majority concedes that the section negates the normal "going and coming" rules for volunteer firefighters, it fails to take the next logical step and interpret the section liberally so as not to require proof that the the call to duty was actually received.

Friday, September 3, 2010

Court of Appeals Decides Rate Case

The appellate courts have had a surfeit of rate cases before them recently, and in Hilltop Care Center v. Burton, 2010 WL 2598373 (No. 0-323 June 30, 2010), the court decided another such case.  The rate dispute was premised on a unique factual situation.  Ms. Burton was supposed to receive a raise, which amounted to $1,000 per year, but was instead paid an additional $1,000 per month, thus raising her income by $12,000 on a yearly basis.  She was allegedly overpaid for the last 15 months she worked for the employer.  Apparently, the error was not discovered until Ms. Burton filed unemployment papers following her discharge by the employer.

The deputy concluded that claimant should have been paid on the basis of her actual earnings, not on the basis of what her wages should have been.  The commissioner affirmed.  On judicial review, the district court reversed, finding that "an accounting error is not tantamount to an entitlement to an elevated wage."  The district court also concluded the agency did not provide specific rationale for including a Christmas bonus as a part of claimant's wages, and remanded to the agency on that issue.

On the issue of "entitled" versus "paid" wages, the court noted the fundamental purpose of the statute to benefit injured workers and the liberal interpretation accorded the statute.  The court rejected the employer's argument focusing on the second sentence of section 85.36 (weekly earnings means earnings "to which such employee would have been entitled had the employee worked the customary hours"), stating that the employer's argument took the phrase out of context.  The court concluded that when read as a whole, the agency's interpretation was correct.  The court noted the statute stated that weekly earnings were the earnings "at the time of the injury," and that Ms. Burton was receiving the increased income at the time of the injury.  The court further noted that the focus of section 85.36 is on "whether the employee's earnings are 'customary.'"  Citing Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 199 (Iowa 2010).  According to Jacobson, customary benefits are those which are "typical," and in Ms. Burton's case, the actual wages paid (at the inflated rate) were the typical wages for her at the time of the injury.

On the bonus issue, the court distinguished Noel v. Rolscreen, 475 N.W.2d 666 (Iowa Ct. App. 1991).  In Noel, the court found that a bonus had not been paid in the period specified under 85.36(6), and thus need not be considered.  The court also found that the bonus was not a regular bonus because it varied in amount and was not fixed until late in the fiscal year.  The court in Burton stated that since the bonus was paid during the applicable wage period, and because the bonus had been received in 2003, 2004 and 2005, there was substantial evidence supporting the conclusion that this was a regular bonus.

Other issues considered by the court included penalty benefits, the degree of functional impairment, apportionment and causation.  On the penalty issue, the court reversed the agency's award of a $500 penalty for the rate dispute based largely on the fact that the district court had ruled in favor of the employer on this issue, and that this demonstrates that the employer's legal position was reasonable.  The remaining issues were decided primarily on substantial evidence grounds.

Burton demonstrates that the liberal interpretation of the Act can still be a powerful concept for injured workers.  When combined with a statutory construction argument that is plausible, injured workers are able to prevail, even in the unusual factual situation that was presented in Burton.  An application for further review is pending (as of September 3, 2010) on the Burton case.