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.

Friday, April 29, 2011

Court of Appeals Affirms Permanent Total Disability Award Based on Substantial Evidence

In Love's Enterprises, Inc. v. Love and Second Injury Fund of Iowa, No. 10-1131 (Iowa App. April 27, 2011), the court affirmed a finding of permanent total disability, declining the employer's request to the court to reweigh the evidence and reverse the finding of permanent total disability. Claimant was the owner and operator of Love's Enterprises.  Claimant had a traumatic injury to his ankle, and cumulative injuries to his back, neck, knee and  bilateral wrists.  Claimant's treater, Dr. Delbridge, found that the ankle, knee, neck and wrist injuries were related to claimant's work.  He opined that there was a 20% body as a whole injury.  A vocational expert (Roger Marquardt) stated that because claimant lacked the capability of performing even sedentary work, he was eliminated from consistently working and earning money in the competitive labor market.  Following his injuries, claimant performed no more construction work, and eventually turned over the business to his two sons.

At the agency level, the deputy noted that Dr. McMains had concluded that none of claimant's injuries were related to his work.  The deputy rejected this conclusion, and accepted the opinions of Dr. Delbridge and two other doctors.  The deputy fixed the date of injury as the date the claimant engaged in activity that resulted in the left ankle injury, and concluded that claimant was permanently and totally disabled.  Penalties were denied.  The district court affirmed, and found that the agency had properly applied the manifestation test of Oscar Mayer Foods v. Tasler.  The court also concluded that substantial evidence supported the commissioner's conclusions, including the conclusion that claimant was permanently and totally disabled.

The court of appeals agreed with the district court on all issues, finding that the decision of the agency was supported by substantial evidence as to the existence of various impairments, the fact that those impairments arose out of and in the course of employment, the applicability of the cumulative injury rule (including the determination of the manifestation date), and the determination of permanent total disability.  The court noted that the fact that "Love focused on his most pressing physical condition before addressing other conditions does not negate the commissioner's manifestation-date determination."

Another issue addressed by the court was whether the district court had abused its discretion in denying the employer's application for stay of agency action, which had been filed at the time of judicial review.  Because the employer had secured a bond on appeal, this issue was found to be moot by the court.

Love is yet another example of the importance of the hearing stage of the workers' compensation proceedings, as the courts are seldom willing to overturn the factual decisions of the agency.

Thursday, April 28, 2011

Court of Appeals Issues Short Form Decision Affirming Award of Industrial Benefits

In Swift Pork Co. v. Garcia-Diaz, No. 10-1805 (Iowa App. April 27, 2011), the court of appeals, in a single paragraph, affirmed the decision of the agency that claimant had demonstrated that claimant's injury was to the body as a whole.  In the underlying decision before the agency, Dr. Stoken had indicated that claimant had Complex Regional Pain Syndrome (CRPS) despite meeting only five of the eight criteria in the AMA Guides.  Dr. Pollack had found that there was no CRPS. The court of appeals, based on this factual dispute, and the credibility finding by the agency, affirms the agency's permanent total disability finding.

Monday, April 4, 2011

Decision in Kone, Inc. v. Harrison Highlights Importance of Agency's Final Decisoin

In Kone, Inc. v. Harrison, No. 08-891 (Iowa App. Feb. 23, 2011), the Iowa Court of Appeals addressed a situation where the deputy found the claimant not to be credible, and concluded that claimant had failed to establish a permanent impairment.  The commissioner reversed the decision on compensability, finding that the medical evidence supported the contention that there was a permanent impairment.  Also presented were issued of whether claimant retired because of his injuries or because of a planned retirement, and whether penalty was appropriate.  The commissioner concluded, contrary to the hearing deputy, that claimant was entitled to both healing period and penalty benefits.  The district court reversed the agency's decision on all three issues.

The court noted the in determining whether substantial evidence supported the agency's decision, it was the agency's decision that was being reviewed, not the decision of the hearing deputy.  Although the district court was required to consider the deputy's credibility determination, "even when credibility is involved, the agency, not the hearing officer, is charged with the authoritative responsbility to decide what the evidence means under the governing statute."  Citing Iowa State Fairgrounds Sec. v. Iowa Civil Rights Comm'n, 322 N.W.2d 293, 295 (Iowa 1982).  According to the court, the veracity determination of the hearing deputy was one factor to consider in determining whether substantial evidence supported the agency's decision.

The agency rejected the opinion of Dr. Cobb and relied on the opinion of Dr. Manshadi and claimant's testimony.  The court found that the agency's determination concerning functional impairment was supported by substantial evidence.  With respect to the credibility determination, this primarily affected the issue of whether claimant was entitled to healing period benefits.  Claimant argued that his knee and shoulder injuries were considerations in determining whether he would retire.  The hearing deputy found that because claimant made the decision to retire on January 15, 2007, before his shoulder injury of March 14, 2007, claimant had removed himself from the workplace and was not entitled to healing period benefits after his official retirement date of April 1, 2007.  The agency rejected this, finding that claimant was not locked in to retirement by a date certain, and testified that his knee and shoulder injuries were considerations in determining whether to go through with his retirement.  The court concluded that there was substantial evidence to support the commissioner's rejection of the adverse credibility determination.  Because claimant later had surgery due to the work injury, healing period benefits were also found appropriate by the Court of Appeals.

The penalty benefit issue involved a delay in payment for claimant's left knee claim.  The commissioner provided a 50% penalty for the delay in payment.   Defendants did not provide any evidence that justified a delay in payment of these benefits.  The court rejected defendants contention that because claimant had not specifically indicated a delay penalty benefits were not appropriate.

The Kone decision reinforces the primacy of the decision of the agency as opposed to the arbitration decision.  Although a credibility determination made by the hearing deputy needs to be considered on judicial review, if that determination has been rejected by commissioner on review, and the commissioner's decision is supported by substantial evidence, the decision will be affirmed.

Friday, April 1, 2011

Court of Appeals Decision in Westling v. Hormel Foods

The Westling case, decided on February 9, 2009, addressed the issue of whether claimant's work injury resulted in a permanent partial disability.  Claimant suffered an injury to his right shoulder while working for the employer, and had a debridement and acromionectomy.  He was returned to work without restrictions, worked for a few months, and retired from Hormel, where he had worked for thirty years.

The deputy found that claimant had failed to establish a causal connection between his shoulder injury and permanent disability.  This decision was upheld by the commissioner, and Westling filed a rehearing request, asking the commissioner to decide whether the definition of permanent impairment in the AMA Guides was synonymous with the judicial definition of functional disability.  The commissioner denied the request for rehearing, finding that the agency had relied on undisputed medical evidence that the claimant's work was not a cause of a permanent shoulder condition.  The district court affirmed, finding that there was no medical evidence supporting the existence of an impairment.

Before the Court of Appeals, claimant argued that the term "impairment" in the Guides was synonymous with the statutory term "disability" when it is used in the sense of functional disability.  Because claimant's surgery removed a portion of his anatomy, he argued there was a derangement, and thus an impairment and a permanent partial disability as a matter of law.  The court rejected this argument because under 876 IAC 2.4, the Guides are only a guide, and are not dispositive.

Claimant also argued that substantial evidence did not support the findings of the commissioner.  The Court of Appeals noted that claimant's IME doctor had concluded that claimant's injury to his shoulder was most likely arthritic in nature.  Westling's treating physician also indicated that there was no permanent impairment attributable to the work injury.  In light of this evidence, and the lack of any contrary evidence, the court found that substantial evidence supported the decision of the agency.

Court of Appeals Decision in Traco v. Dumler

This Court of Appeals case, decided on February 9, 2011, addresses an issue of permanent total disability.  Although the commissioner found that claimant had sustained permanent total disability based on an odd lot theory, the district court reversed, finding that the claimant had failed to demonstrate that his injury was work related and also failed to prove he was an odd lot employee.  The Court of Appeals reverses, concluding that the district court improperly weighed the evidence in overruling the finding that claimant had not established a work related injury.  The court also affirmed the odd lot finding of the commissioner.

The evidence demonstrated that claimant reached for pieces of a door while at work, and caught his right leg on a torn fatigue mat, feeling a stinging sensation in his hip. Claimant did not immediately report the incident, and worked the next day.  On the second day after his accident, he saw a PA, but the records do not note a work accident.  By three days after the accident, claimant had reported the accident to his employer.

Claimant ultimately had a hip replacement.  Dr. Boese, the treating surgeon, found that this was a direct result of the work accident.  He reiterated this opinion in a letter to defendants' counsel.  An FCE limited claimant to sedentary/light work.  A vocational evaluation found that claimant was unemployable, given his restrictions.  Based on the evidence, the agency found causation, and also found that claimant was an odd lot employee.

The district court reversed, finding that the fact that there was an absence of a reference to a fall at work in the original medical notes was fatal to claimant's claim.  The Court of Appeals noted that claimant had testified that he had a fall at work and this testimony was found credible by the agency.  The fact that claimant had waited a few days to report the work injury did not defeat his claim.  The court found that since the only doctor who had opined on causation had concluded that claimant's injury was related to his fall at work, the decision of the agency was supported by substantial evidence.  With respect to the extent of disability, the employer argued that because claimant had a preexisting degenerative condition, it should not have liability.  The court noted that claimant was able to perform his work before the injury, and had only missed one day of work.  The court noted that the full responsibility rule applied since there was no ascertainable portion of the disability attributable to the preexisting condition.  Finally, the odd lot finding was upheld, again based on substantial evidence grounds.

The evidence, as presented by the Court of Appeals, appeared fairly overwhelming, and defendants did not appear to have much in the way of supportive evidence.  The fact that the district court reversed the decision of the commissioner was surprising in light of the evidence discussed by the Court of Appeals.