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

Wednesday, September 28, 2011

Court of Appeals Affirms Holding that Claimant is Permanently Totally Disabled Under Odd Lot Doctrine

In Western Provisions v. Betz, No. 1-533 (Iowa App. Sept. 21, 2011), the court of appeals affirmed the decision of the agency that claimant was permanently totally disabled, and that permanent total disability benefits were appropriate under the odd lot doctrine.  Claimant was a truck driver who was injured when another vehicle crashed into him. Claimant had neck and back surgery as a result of the work injury.  Following these surgeries, an FCE placed him in the "modified medium" work category.  Claimant was provided with a 25% impairment rating to the neck and a 21% impairment rating to the back.  The restrictions imposed by the treating physician (40 pounds) precluded claimant from performing his former job.

Vocational specialists were hired by both parties.  Defendants' expert (Michelle Holtz) did not meet with claimant, and found that he retained the skills and capabilities for jobs paying from $8.00 to $14.50.  Claimant's expert (Rick Ostrander) found that claimant had a 100% loss of employability.  He noted that entry level positions were significantly problematic for an individual of claimant's age who has a work disability.  Ostrander criticized Holtz's report, stating that she did not adequately understand the concept of transferable skills.

The arbitration decision found that claimant was permanently totally disabled.  The odd lot finding was added on appeal to the commissioner.  Before the court of appeals, defendants argued that the findings of the agency were not supported by substantial evidence.  Because there was clearly evidence to support the findings made by the agency, the decision was affirmed on substantial evidence grounds.  The court did not specifically address the odd lot doctrine in the decision.

Tuesday, September 27, 2011

Supreme Court Denies Public Policy Exception to At Will Employment for Employee Who Files Personal Injury Lawsuit Against Employer

The Iowa Supreme Court declined to create a public policy exception to the general rule of at will employment in Berry v. Liberty Holdings, No. 10-0094 (Iowa Sept. 9, 2011).  Berry involved an employee who was injured when a concrete pumper truck struck and injured him while he was on his way home from work.  Plaintiff worked for Liberty Holdings and the truck which struck him was owned by Premier.  Berry filed suit against Premier and settled the case within the policy limits.  Nine months after the settlement, he was fired by Liberty.

Plaintiff alleged that in filing his claim against Premier, he was engaged in a protected activity, and he brought a wrongful termination suit against Liberty.  Liberty filed a motion to dismiss, indicating there was no clearly defined public policy right that was violated by the termination.  The district court granted the motion to dismiss, but this action was reversed by the court of appeals, and the claim was remanded to the district court.

The court first noted that Iowa was an at will employment state, but that there was a narrow public policy exception to the general rule of at will employment.  The court indicated that there must be a clearly defined and well recognized public policy of the state in order to trigger the public policy exception.  Berry relied on Iowa's comparative fault statute as the underpinning of a public policy which protected employees from termination when they sought redress from the courts for negligent actions of others.  The court seemingly had little difficulty in finding that the comparative fault statute, although it was a comprehensive and far-reaching modification of Iowa's tort laws, was not a statement of public policy protecting employees from discharge when they filed personal injury actions.  The court found that the statute regulated private conduct and did not implicate public policy concerns.  Based on this conclusion, the dismissal of the action by the district court was reinstated.

Saturday, September 24, 2011

Court Reverses Agency Decision Denying Benefits

Bensley v. Dee Zee, No. 1-638 (Iowa App. Sept. 8, 2011) is a case in which benefits were initially denied to claimant's at the arbitration level, a conclusion that was affirmed on appeal.   Claimant alleged elbow and shoulder problems, and in the arbitration decision, the finding was made that claimant had not established how her shoulder injury had occurred, and dismissed that claim.  The district court (Judge Rosenberg) reversed, finding that the evidence was "overwhelmingly" in favor of causation.

On appeal to the court of appeals, the decision of the agency is reversed, and the decision of the district court adopted.  The employer argued that claimant's injury was preexisting and not caused by claimant's work activities.  The court concludes that the issue of causation is largely a determination based on the medical evidence.  The court finds it "clear" that the evidence did not support the conclusions made by the commissioner.  The court notes that the medical experts reported, "ad nauseam", that the work at Dee Zee was repetitive in nature and resulted in the shoulder problems claimant described.  The court found that under Catalfo, the agency failed to explain its rejection of the three medical opinions that supported claimant's contention that her shoulder injury was related to work.  The court noted that the employer takes the claimant as they are found, subject to any infirmities that they may have.  The decision of the agency was reversed and the claim remanded to the commissioner.

A special concurrence by Judge Vogel notes her concern that the agency provided no specific credibility findings, which may have influenced the decision on appeal.  She noted that it was not clear in the decision why the decisions of the doctors, specifically Dr. Neff, were rejected by the commissioner.  Had there been a credibility finding and the agency's decision more clearly explained, the result may have been different on appeal. 

Court Affirms Permanent Total Disability Award

In Quaker Oats v. Dobbe, No. 1-536 (Iowa App. Sept. 8, 2011), the court affirms a permanent total disability award.  Defendants made three arguments in the case: 1) whether the commissioner applied an erroneous causation standard to the facts; 2) whether the causation findings are supported by substantial evidence; and 3) whether the commissioner's permanent total disability award was supported by substantial evidence.  The court finds in favor of the claimant on all of these points.  The court specifically finds that the commissioner set forth the correct causation standards and applied those standards appropriately. Permanent total disability benefits were affirmed.

Court Affirms Permanent Total Award

In Hutton & Co. v. White, No. 1-538 (Iowa App. Aug. 10, 2011), the court, in a one paragraph decision, affirms the award of permanent total disability to claimant.

Court Affirms That Second Dismissal of Case is Without Prejudice

The court in Wal-Mart v. Henle, No. 1-554 (Iowa App. Aug. 10, 2011) addressed a situation which occurs with some frequency in workers' compensation claims.  In Henle, claimant had voluntarily dismissed and then refiled her claim.  The case was set for hearing, but by the time of the date set for hearing, permanency had not been determined and claimant requested a continuance.  Rather than grant a continuance, the agency dismissed the case, specifically indicating that this dismissal was without prejudice.  Defendant argued that under the Iowa Rules of Civil Procedure, the dismissal was with prejudice, and claimant could not refile her claim (which she had done by the time of the decision in the case).  The court found that rules 1.943 and 1.946 were applicable to workers' compensation proceedings, as the parties had not argued otherwise.

The court noted that claimant did not file the second motion for dismissal, but that the case had been dismissed by the agency.  Recall that the claimant had simply sought a continuance.  The court found that under an exception in 1.943, which allowed dismissals without prejudice when in the interests of justice, the second dismissal was without prejudice, and the third action could proceed.

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

In Arrowood v. Maytag, No. 1-445 (Iowa App. Aug. 10, 2011), the court affirmed the denial of benefits to claimant in the face of claimant's argument that the agency erred in not considering claimant's testimony.  Claimant argued that his injury was work-related, in the face of records from Dr. Boarini and Dr. Thurston that the claim was not related to Mr. Arrowood's work activities.  The agency accepted the opinions of Dr. Boarini and Dr. Thurston over that of claimant's doctors and his own testimony.  On substantial evidence grounds, the court affirms.