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

Monday, July 25, 2011

Court of Appeal Affirms Decision Against Claimant on Substantial Evidence Grounds

In Yanouskiy v. O'Holloran Int'l, Inc., No. 1-436 (Iowa App. July 13, 2011), the court concluded that the decision of the commissioner ruling that claimant was entitled to no further benefits was supported by substantial evidence.  Claimant alleged arm and back and neck injuries, and was paid temporary and permanent benefits, with the permanency amounting to approximately 15%.  At hearing, the deputy found claimant not credible, and indicated that claimant had distorted his restrictions in talking with the doctors.  The deputy found, and the commissioner upheld, that claimant was not entitled to further benefits, and that his back and neck injuries were not related to his work.  The court of appeals affirmed the decision of the commissioner on substantial evidence grounds.

Sunday, July 24, 2011

Court of Appeals Decides Rate Case Favorably to Claimant

In Mercy Medical Center v. Healy, No. 1-338 (Iowa App. June 29, 2011), the court decided a rate issue concerning the use of paid sick and vacation time.  Claimant was hired to work 35 hours a week for Mercy Medical Center in Dubuque, but seldom worked this many hours, due to illnesses and vacations.  Under the terms of her employment, she was paid for the vacation and sick time, and the commissioner found that because she was hired to work 35 hours a week, these were her customary hours.  The rate was accordingly based on a 35 hour weeks at claimant's rate of pay.

The district court reversed on the rate issue, finding that since claimant never (or seldom) actually worked 35 hours per week, a rate based on these hours of work was not customary.  The district court found that the hours "actually worked" were the touchstone for the rate calculation rather than the wages received by the employee. 

The court found that the language of section 85.36 (specifically the language that the "weekly earnings" for the "customary hours for the full period") contradicted the district court's finding that the hours actually worked were what should have been considered.  The words of the statute do not refer to the hours actually worked, but to the earnings that would have been made had the employee worked the regular hours required by the employer.  In this case, that was 35 hours, and accordingly, the rate was appropriately based on this figure.  The commissioner's interpretation was found to be consistent with the language of the statute and the spirit of the workers' compensation chapter.  The court specifically found that vacation and sick leave payments were not automatically excluded from the rate calculation by the statute.  Rather, sick and vacation payments may be excluded if for unrepresentative weeks. 

Court of Appeals Affirms Penalty Award, Healing Period Benefits

In MC&R Pools v. Shea, No. 1-279 (Iowa App. June 15, 2011), the court of appeals affirmed a decision of the commissioner finding that the employer was liable for penalty benefits as well as healing period.  Shea involved a claimant who had preexisting conditions, including a 25 pound lifting limit on his activities.  He slipped on ice while at work, involving a neck injury and eventual cervical fusion.  The treater found that the injury caused an aggravation of Shea's underlying condition, and an medical reviewer concluded that this aggravation was temporary and that Shea had returned to baseline prior to the cervical fusion.  The commissioner awarded 40% industrial disability and imposed a penalty on the employer for failure to pay benefits.

On the penalty issue, which involved the failure of the employer to pay any benefits (this issue was based on the penalty law as it existed prior to changes in the law in July of 2009), the court noted that the employer had a continuing duty to reevaluate the claim in light of developing circumstances.  The employer argued that the initial opinion of the doctor that this was a temporary aggravation was sufficient to deny penalty.  The claimant argued that in light of further developments in the case, including epidural floods, the cervical fusion, and causation opinions from two other doctors (including one hired by defendants), there was a duty to reconsider the denial of benefits. 

The court agreed with claimant that under Squealer Feeds v. Pickering, the employer had a continuing duty to act reasonably.  Accordingly, the court affirmed the $25,000 penalty (roughly 50% of what was owed) against the employer.  The court concluded that after the receipt of the report from Dr. Elkins (defendants' second examiner) there was no objectively reasonable position that would allow the continuing denial of benefits.  The court noted that this case was not governed by Blasnitz or Craddock because causation was never an issue in Shea, only the extent of claimant's impairment. 

On healing period benefits, the argument was that since claimant's restrictions were actually more than he had prior to the injury (40 versus 25 pounds), that healing period was inappropriate.  The court affirmed the award of healing period because the employer had indicated that it had no position available if claimant continued to be under restrictions for bending and twisting, which he was.  In light of the fact that the employer did not offer work to the claimant, healing period benefits were appropriate. 

Judge Sackett dissented, and would have found that the initial opinion indicating there was a temporary aggravation was enough to support the denial of benefits.  Her opinion did not say anything concerning the employer's continuing duty to investigate the case. 

Court of Appeals Affirms Two Permanent Total Awards

In Bethany Lutheran Home v. Boner, No. 1-217 (Iowa App. June 15, 2011) and Swine Graphics Enterprises v. Peterson, No. 1-223 (Iowa App. June 15, 2011), the court of appeals affirmed two agency decisions finding that claimants were permanently and totally disabled.  As might be expected, the decisions were premised on the fact that the commissioner's decisions were supported by substantial evidence.  Both decisions were summary affirmances, saying little other than that the commissioner's decisions were supported by substantial evidence.

Saturday, July 23, 2011

Governor Unilaterally Reduces Commissioner's Salary

In an action that has been roundly criticized by workers and workers' compensation practitioners, Governor Branstad on July 11 reduced the salary of Chris Godfrey, the workers' compensation commissioner, by over $30,000.  This action followed the governor's request that Commissioner Godfrey resign from his office, a request that the commissioner refused.

Unlike department heads  in state government, the workers' compensation commissioner does not serve at the pleasure of the governor.  In fact, the workers' compensation commissioner was specifically protected from partisan pressure by being provided a six year term of office, independent of that of the governor.  The governor's attempt to attempt to force the commissioner to resign by drastically reducing his salary violates both the letter and spirit of the law, and represents a blatant abuse of power.

In the wake of the salary reduction, the governor attempted to argue that Commissioner Godfrey had performance issues on the job, despite the fact that the commissioner's performance reviews had been exemplary.  When this argument proved to be unsupported by the evidence, the governor's office sought to tie increased costs in the workers' compensation system (moving from 45th to 36th in terms of costs) to the commissioner's work performance.  Of course, this ignored the fact that the largest driver of costs in all workers' compensation systems is medical costs, and the further fact that in Iowa employers control the medical care received by claimants.

Further compounding the politics that was a part of this decision was Governor Branstad's admission during a radio interview that he was asked by the Iowa Association of Business & Industry (ABI) to fire the commissioner.  Such an action is particularly inappropriate in light of the fact that the act is to be interpreted liberally in favor of injured workers.  No such liberality is to be shown to employers.  Although one could assume that the governor, in light of his record, is more likely to favor business interests of the interests of workers, the blatant admission that he was acting at the behest of ABI reflects a lack of balance in overseeing the workers' compensation program.

Commissioner Godfrey has acted courageously in refusing to voluntarily leave his office.  Time will tell whether the governor's actions will be reversed.