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 or

Sunday, January 23, 2011

Court of Appeals Affirms Award of Permanency Benefits In Face of Claimant's Failure to Attend 85.39 Exam

In Wal-Mart Stores v. Johnson, No. 10-0358 (Iowa App. Jan. 20, 2011), the Court of Appeals affirmed the award of permanency benefits awarded by the commissioner.  Claimant's treating physician, Dr. Hlavin, had concluded that claimant's neck, shoulder and arm problems were due to her work activities.  The employer denied benefits, and sought to have claimant attend a defense medical examination with Dr. Boulden.  Claimant refused to attend, arguing that there was no right to an 85.39 examination in a denied claim.  The employer filed a motion to compel  attendance, and in the meantime, Dr. Boulden denied causation in a records review evaluation.

The deputy denied defendants' request for an 85.39 exam, and a motion to reconsider on the same subject was denied.  At hearing, the deputy made an oral ruling that the employer was not entitled to the 85.39 exam.  The deputy found a 40% industrial loss.  In the written decision, the 85.39 issue was not addressed.  The employer appealed, and the commissioner affirmed.

The primary issue before the court was whether the employer had preserved error.  The district court had ruled that the employer did not preserve error because it did not raise the issue before the commissioner.  The employer's brief, however, had raised this issue.  According to the Court of Appeals, the problem was not that the issue was not raised before the commissioner, but that the commissioner had failed to rule on the issue.  Having failed to rule on the issue, it was incumbent upon the defendant to file a request for rehearing so that the issue could be addressed.  Because the employer did not due so, the employer had failed to preserve error.

On the merits of the case, the court concluded that the 40% award was supported by substantial evidence. The commissioner had reviewed the evidence, and chose to believe Dr. Hlavin's conclusions.  Under normal principles of substantial evidence, the decision of the commissioner was affirmed.  A subsidiary issue involving the date of injury was also presented and affirmed on substantial evidence grounds.

Saturday, January 22, 2011

Court of Appeals Affirms Denial of Benefits in Second Injury Fund Case

In Hennigar v. Second Injury Fund, No 09-0343 (Iowa App. Jan. 20, 2011), the court concluded that claimant had failed to establish a first injury, and had also failed to demonstrate a second injury, leading to a denial of Second Injury Fund benefits.  The commissioner had earlier denied Fund benefits.

Claimant had an eye condition which she alleged as a first injury.  Three doctors had concluded that there was no permanent impairment as a result of the eye injury, and a fourth doctor, who had originally concluded that there was a 1% impairment, recanted this opinion when deposed.  Claimant presented the testimony of herself and her daughter, both of whom testified that claimant had watering in her eye, and her vision had deteriorated.  Testimony was also presented that claimant had difficulty driving.

The commissioner concluded that claimant's eye condition did not result in a permanent disability and loss of use to either eye.  Because there was no loss of use, there was no qualifying first injury.  Claimant argued that the AMA Guides did not conclusively determine the issue of permanent impairment.  The court did not disagree with this argument, but concluded that the agency had considered not only the Guides, but the expert medical testimony, as well as nonmedical evidence of claimant's complaints.  Applying normal substantial evidence rules, the court affirmed the decision of the commissioner.  Parenthetically, the court stated that even if a first injury had been proved, the commissioner had correctly determined that claimant's contact dermatitis was not a qualifying injury for Fund purposes.  In a footnote, the court also noted that words such as "permanent," "disability," "loss" and "loss of use"  had been interpreted "fairly and sensibly by the agency and the district court.

Supreme Court Reverses Court of Appeals in Substantial Evidence Case

In Broadlawns Medical Center v. Sanders, 792 NW2d 302 (Iowa 2010), Justice Marsha Ternus entered her last workers' compensation decision, reversing the Court of Appeals and concluding that the decision of the commissioner awarding permanent partial disability benefits was supported by substantial evidence.  Claimant worked at a group home for the mentally ill, where she was required to clean a room in which a client had committed suicide.  As a result of this experience, she began having nightmares, flashbacks and hallucinations, resulting in a diagnosis of PTSD.

One of the physicians permanently restricted claimant from working at the group home where she had formerly worked.  She was assigned to work at a different group home, which she was able to do.  She earned less in terms of overtime after the reassignment.  Because of the work restrictions, the employer indicated it intended to terminate the employment of the claimant.  The doctor who had provided the restrictions reluctantly agreed to this, but did not go so far as to say the restrictions were entirely eliminated.  A second psychiatrist agreed that claimant would experience difficulties working at the original group home.

The employer denied payment of permanency payments, and the agency awarded 30% in industrial disability benefits.  On judicial review, the district court affirmed, but the Court of Appeals found that the record lacked the necessary expert testimony that claimant's injury was permanent and thus reversed the award of PPD benefits.

The Supreme Court noted that permanency could not be determined until the claimant's disability had stabilized (when "significant improvement from the injury was not expected.").  Any disability that remained after the stabilization of the condition will support an award of permanency benefits, according to the court.
The commissioner had noted that the treating psychiatrist believed the condition was permanent in a number of statements, noting that his response to defendants' counsel "reflects more his hope the condition will improve than it does an opinion it is temporary only."  The court noted that it was the responsibility of the commissioner to weigh the evidence, and indicated that substantial evidence support the conclusion that there had been a permanent impairment.  Accordingly, the court reversed the decision of the Court of Appeals and reinstated the 30% industrial disability award.

The Sanders case demonstrates the difficulty inherent in many cases involving mental injuries.  Psychiatrists and psychologists are often hopeful that a claimant's condition will improve over time, and are reluctant to state that a condition has reached maximum medical improvement, much less provide a rating of impairment.  In such cases, the permanent restrictions issued by a psychiatrist or psychologist is of great importance, and the Supreme Court has indicated that the hope that a claimant will improve is not sufficient to overcome a finding of MMI where permanent restrictions have been imposed.

Wednesday, January 5, 2011

Court of Appeals Issues Decision on Full Responsibility, Healing Period

In Waldinger Corporation v. Mettler, No. 0-647 (Iowa App. Nov. 24, 2010), the court addressed issues of apportionment in scheduled member cases, healing period issues, and issues involving the Second Injury Fund.  Of particular interest is the court's approach to healing period, which appears to deny the possibility of intermittent healing periods.

Claimant was in the military and suffered a number of injuries prior to returning to his work as a plumber at Waldinger.  Before starting that employment, claimant was provided a 20% impairment rating from VA for leg injuries, and 10% for right knee injuries.  Considering impairments to his spine, as well as tinnitus, claimant was found to have a 70% total impairment, which entitled him to $1100 per month from the VA.

Claimant was able to perform his work with Waldinger when he began working.  Over time, he developed more problems with his right ankle, for which he had four surgeries.  This injury forced him out of a job as a plumber, and he was ultimately reemployed as a school teacher after he had completed his bachelor's degree.  At hearing, the agency awarded a 15% impairment for the right lower extremity, and did not apportion this with the earlier VA injury to the right leg.  Healing period benefits were denied because claimant had reached MMI on 4/6/05 (although one of the surgeries was conducted after that date).  Claimant was also awarded a 15% industrial award against the Fund, for the right leg injury, and earlier injuries to the arms.  The decision found that the disabilities did not appear to have diminished claimant's earning capacity (although his actual salary as a teacher, on a yearly basis, was much less than his wages as a plumber).

On appeal, the commissioner reversed on the healing period issue, awarding benefits from 9/18/07 to 12/18/07.  The decision was affirmed on all other issues.  The district court found that multiple healing period benefits were possible, and also found that because claimant's earnings as a teacher were less, the level of industrial disability needed to be redetermined.  No apportionment for the right leg injury was allowed.

Apportionment.  The court first addressed the apportionment issue, finding that an employer must take full responsibility for compensating a workplace injury which aggravated a preexisting condition.  The court further found that the employer was not entitled to apportionment unless the preexisting ankle injury produced a discrete and ascertainable degree of disability.  The court found that the employer failed to show that a particular percentage of disability would have resulted from the preexisting injuries.  Furthermore, the court found that under the familiar holding that the employer takes an employee as they find them (citing Bearce v. FMC Corp., 465 N.W.2d 531, 536 (Iowa 1991)), Walding took Mr. Mettler subject to his preexisting injuries.

Healing Period.  Defendants contended on review that under Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 447 (Iowa 1999), claimant was not entitled to healing period following his fourth surgery.  Defendants argued that since claimant had earlier reached maximum medical improvement, healing period was not appropriate.  The court finds that no evidence was presented to dispute that maximum medical improvement had been reached prior to the fourth surgery, and denied healing period benefits.  In reaching this conclusion, the court did not discuss the apparently contradictory opinion of the Supreme Court in Teel v. McCord394 N.W.2d 405 (Iowa 1995), in which the court concluded that intermittent healing periods were possible.  The court also did not address the factual distinctions between Ellingson and Mr. Mettler's situation, since the claimant in Ellingson did not have surgery following the initial injury, and essentially claimed healing period benefits for days off work following a finding of MMI.  Mettler would appear to stand for the proposition that there is no such thing as an intermittent healing period, which is directly contradictory to the law at the agency level.

Fund Benefits.  The court found that because the agency had considered the actual income to be earned by claimant, substantial evidence supported the agency's factual conclusions.  The court believed that substantial evidence supported the 15% industrial disability finding, and reversed the district court on this issue.

With the exception of the healing period discussion, Mettler does not break any new ground.  The healing period discussion is quite troublesome, however, as it would change years of practice before the agency.  There is nothing in the statute that indicates that a new healing period cannot be started when a claimant is unable to work due to the original work injury, as Mr. Mettler was following his fourth surgery.  Although the achievement of MMI may end an initial healing period, this does not necessarily mean that future healing periods are precluded, and yet this is what the court in Mettler decides.  Claimant further review by the Supreme Court and the court granted further review on February 23, 2011.  The IAJ Core Group has filed an amicus brief in support of the claimant's position in Mettler, and as of March 14, 2011 it is unknown whether the amicus brief will be considered.  

Tuesday, January 4, 2011

Review-Reopening Case Decided by Court of Appeals

In Verizon Business Network Services, Inc. v. McKenzie, No. 0-685 (Iowa App. Nov. 24, 2010), the Iowa Court of Appeals wrestled with issues involving review-reopening proceedings that had been addressed in Kohlhaas v. Hog Slat, 777 N.W.2d 387 (Iowa 2009).  The question raised in the case was whether the commissioner had used the correct standard in determining whether the claimant was entitled to an increase in benefits.

Claimant suffered a back injury, and was awarded 25% industrial disability benefits at the initial arbitration hearing.  Following the hearing, claimant continued to have difficulties with her back, although she had gastric bypass surgery to reduce her weight in the interim.  She filed a review-reopening petition, and at the arbitration and appeal levels was found to be permanently and totally disabled.  There was a great deal of emphasis in these decisions on whether claimant's continuing problems had been anticipated at the time of the original decision.  The decisions also required defendant to pay for claimant's gastric bypass surgery.

The district court affirmed the permanent total disability award, but indicated that the surgery did not need to be paid for by the employer because the claimant's doctor had not been authorized by the employer.  The district court also remanded the claim to the agency to determine whether the parties had stipulated to the correct date for commencement of benefits.

The COA noted that Kohlhaas had established that the claimant did not need to prove that the current extent of disability was not contemplated by the commissioner in the arbitration award.  The agency is only to look at the situation as it exists as the time the case is originally heard, and not speculate as to the physical condition of the claimant, or the economic situation at some future time.  The court found that because the agency had used the older standard of Acuity Insurance v. Foreman rather than the Kohlhaas test, the case should be remanded, even though the Acuity standard was more disadvantageous to claimant than Kohlhaas.  The court indicated remand was necessary because the commissioner's decision may have been affected by Acuity, and because the court was not a fact finder.  Because of the remand, the court did not address the question of whether the permanent total disability award was supported by substantial evidence.

On the issue of medical expenses, defendants argued that because they had not authorized the gastric bypass surgery, they were not responsible for paying for the surgery.  The district court rejected the defendants' argument and ordered payment for the surgery.  Following this decision, the Iowa Supreme Court issued its decision in Bell Brothers Heating & Air Conditioning v. Gwinn, 779 N.W.2d 193, 202 (Iowa 2010), in which the court indicated that the agency could order unauthorized care to be paid for by defendants "if it provides a more favorable medical outcome than would likely have been achieved by the care authorized by the employer."  The COA found that although the agency found the treatment was reasonable and necessary, it did not address the issue of whether the surgery was beneficial to the work related injury.  Accordingly, the court remanded this issue as well.

The final issue before the court was whether the agency erred in adopting the commencement date stipulated to by the parties.  Although defendants had raised this issue, they did not provide argument on the issue to the court.  Despite this, the COA found that the issue should be heard, and should have been addressed by the agency.  The court found that the mere presentation of the issue was sufficient to mandate that the agency consider the issue.  Citing Aluminum Co. of America v. Musal, 622 N.W.2d 476, 478 (Iowa 2001).

McKenzie is significant as the first appellate level case to consider the Bell Brothers standard concerning beneficial care.  The case also recognizes the significance of Kohlhaas in review-reopening cases. Although the court did not specifically rule on these issues, it is clear that the court considered these issues to be ones where new standards may well have compelled new results under recent Supreme Court caselaw.