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

Tuesday, December 11, 2012

Court of Appeals Rejects Argument That Chapter 677 is Applicable to Workers' Compensation Claims

The case of Nkanta v. Wal-Mart Stores, No. 12-0475 (Iowa App. Nov. 29, 2012), presented an unusual situation where defendants had presented to the deputy a "confidential " sealed envelope that included an offer to confess judgment.  The agency found that offers to confess judgment under Chapter 677 were not applicable to workers' compensation proceedings.  The court of appeals affirmed this finding, as well as findings that claimant failed to prove he sustained a permanent work injury and findings that the costs were to be borne by each party.

Claimant sustained an injury to his low back while working at Wal-Mart.  Claimant persisted in having difficulties with his back but Drs. Boyett, Koenig and McCaughey concluded that there was no permanent injury.  Dr. Chen at UIHC found there was myofascial pain and Dr. Jones performed an IME indicating there was a 5% permanent impairment.  The deputy rejected Dr. Jones opinion because he gave no analysis as to why there was an impairment when the diagnostic studies had been normal.  At hearing, Wal-Mart had filed a confidential sealed envelope which contain an offer of judgment.  The deputy rejected this as offers to confess judgment are not material in awarding costs in this case.  Each party was ordered to pay their own costs.  On appeal the commissioner affirmed, expressly concluding that offers to confess judgment under Chapter 677 are not available in proceedings under the workers' compensation act.  On a motion to enlarge or amend, defendant argued the since claimant had not prevailed, he should be required to pay costs.  The commissioner rejected this, finding that claimant had been successful in getting his IME paid for.  The district court affirmed.

On the merits of the case, the court of appeals had no difficulty in concluding that the findings of the agency were supported by substantial evidence and affirmed the decision of the agency.  On the question of whether claimant should have to pay costs under the offer of judgment, the commissioner reasoned that nothing in either chapter 676 or 677 extends the legislative provisions to the workers' compensation act.  The court noted that the commissioner was to be given no deference on this point, as the commissioner had not been given authority to interpret those chapters.  The court did note, as had the commissioner, that section 86.40 of the Code gives the commissioner the authority to assess costs.  Because the determination of costs was in the discretion of the commissioner, the court gave deference to the commissioner on this point.  The court noted that chapter 677 applied to actions in court and did not reference administrative proceedings.  The court also notes that chapter 17A and section 85(35) encourage informal settlement of controversies, and specifically provide that settlement are subject to approval by the workers' compensation commissioner.  The court concluded that chapter 677 was inapplicable to proceedings before the workers' compensation commissioner.

The court, citing John Deere Dubuque Works v. Caven, noted that deference was to be given to the commissioner's determination of costs, as costs were assessed in the discretion of the commissioner.  The court found that the commissioner's determination that chapter 677 was a general cost assessment provision that conflicted with section 86.40 was affirmed by the court.  The court also affirmed that it was not an abuse of discretion to require each party to bear its own costs. 

Thursday, November 15, 2012

Court of Appeals Decides Case Involving English Language Skills, Industrial Disability and Motivation

In Merivic, Inc. v. Gutierrez, No. 12-0240 (Iowa App. Nov. 15, 2012), the Iowa Court of Appeals declined to overturn the commissioner's holding in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007).  The Lovic decision had concluded that a lack of English language skills was a factor to be determined in considering the extent of industrial disability, and also concluded that the failure of a claimant to learn English was not to be considered in determining the client's motivation to work.  Both Gutierrez and Lovic were handled by Jamie Byrne of Neifert, Byrne & Ozga.

Gutierrez involved a welder who had injuries to his shoulder and arm.  Claimant English language skills were minimal, and there was conflicting testimony presented at hearing over how easy or difficult it was to learn English for persons who were not native English speakers.  Claimant lost his job as a welder as a result of his injuries, and the commissioner determined that that he was permanently and totally disabled.  As a part of  the decision, the agency concluded that claimant's English language skills were one of the factors to be considered in determining whether claimant was permanently and totally disabled, citing Lovic.  The agency also indicated that under Lovic, a claimant was not to be penalized for failing to learn English.

Defendants argued at the agency that Lovic, which had not been appealed beyond the agency level, should be overturned.  The agency rejected this contention, and the district court found that regardless of claimant's English language skills, claimant was permanently and totally disabled.  On appeal, the Court of Appeals noted that defendants' argument was that Lovic was "incorrectly reasoned" and "incorrectly decided."  The court found this was an impermissible collateral attack on an unappealed agency decision, and declined to consider the merits of the Lovic case.  The court noted that "Merivic essentially seeks to turn back the clock to the pre-Lovic era when the commissioner accepted a claimant’s failure to learn English as a basis for reducing the claimant’s award. That ship has sailed."

The court went on to find that the conclusions of the commissioner that the claimant was permanently and totally disabled were supported by substantial evidence, and were not illogical, irrational or wholly unjustifiable."  The court noted that the agency had credited claimant's vocational expert over that of defendants, and found that this reliance was supported by substantial evidence. The commissioner also noted that the English language abilities of claimant were not the salient factor in making a determination of PTD.  Nonetheless, the agency considered this as a factor, and the court noted that consideration of this factor was "entirely appropriate."  The court noted that it was up to the commissioner to balance the industrial disability factors, and that the ultimate decision of the commissioner was supported by substantial evidence.

Gutierrez is an important case in establishing that a claimant's English language skills are a consideration in determining the degree of industrial disability, and that the lack on English language skills does not, per se, mean that a claimant is not motivated.  Although the court declined to address the validity of Lovic, by indicating that Lovic represented the policy of the agency, it cemented that case as the means under which the commissioner will consider language claims in the future. 

Tuesday, November 6, 2012

Commissioner Issues Declaratory Order on Surveillance

In April of 2012, the Workers' Compensation Core Group of the Iowa Association for Justice had requested a declaratory order from the Iowa Workers' Compensation Commissioner on the issue of the disclosure of surveillance materials.  The gist of the Core Group's request was that section 85.27 of the Iowa Code indicates that employers and claimants in workers' compensation actions agree, as a predicate for making or defending a claim for benefits, "to the release of all information to which the employee, employer, or carrier has access concerning the employee's physical or mental condition relative tot he claim and further waives any privilege for the release of the information."  The Core Group argued that previous agency policy, which had prohibited the disclosure of surveillance material until after the claimant's deposition, was rooted in the Iowa Rules of Civil Procedure rather than the workers' compensation statute, and that the broad waiver of privilege in the statute required the disclosure of surveillance materials within ten days of receipt, as would be the case for medical records.

Given the importance of the issue, the Commissioner solicited comments from interested parties.  The Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self Insurer's Association and Property Casualty Insurance Association of America all filed petitions in intervention, which were granted by the commissioner.  On June 26, 2012, the parties to the proceeding appeared and presented testimony and oral argument to the Commissioner.  A spirited discussion was had at the meeting discussing the role of surveillance, the interplay between rules of privilege and the workers' compensation statute, and the practicalities of releasing surveillance materials prior to a claimant's deposition.  The Intervenors challenged the Core Group's standing to bring the declaratory action.

As an initial matter, the Commissioner concluded that the Core Group had standing to request the declaratory order as it related to disclosure of surveillance materials.  In addressing the issues presented, the Commissioner first addressed the statute and its interpretation in Morrison v. Century Engineering, 434 N.W.2d 874 (Iowa 1989).  The Commissioner noted that Morrison had concluded that the "waiver provision in section 85.27 [was] much broader than the one in section 622.10."  In Morrison, the court had noted that workers' compensation proceedings fostered the ready access to information to facilitate the process of resolving claims.  The Commissioner also noted, however, that Commission precedent had restricted the timing of disclosure until after the deposition of the claimant.  The Commissioner noted that the two major decisions addressing the issue, Hoover v. Iowa Dept. of Agriculture, No. 529205 (App. April 30, 1991) and Ramirez v. Riverview Care Center, Nos. 1243830, 1253740, 1253741, 1253742, 1253743 (App. Aug. 14, 2002) had not addressed section 85.27 as it related to waiver of privilege.

The Commissioner noted that although Core Group had argued that surveillance was evidence of a claimant's physical condition under the statute, the Intervenors had stated that surveillance was primarily a means of testing claimant's credibility.  The Commissioner concluded that even if this was the case, "the veracity relates to the claimant's physical or mental condition."  The Commissioner rejected the argument that surveillance lost its impeachment value if it was presented prior to deposition, noting that although the "surprise" element would be lost, the impeachment value would still remain because the surveillance would arguably give the lie to claimant's description of his or her condition.

The Commissioner noted that attorney client privilege was not to be waived by production of surveillance, and that under Squealer Feeds v. Pickering, 530 N.W.2d 678, 688 (Iowa 1995), the mental impressions, conclusions, opinions or legal theories of an attorney were not discoverable.  The Commissioner concluded that the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party were not waived by section 85.27(2).

A summary of the answers to the questions posed in the Petition for Declaratory Order is as follows:

1.     Iowa Code section 85.27 is applicable to surveillance.

2.     All privileges as to attorney-client work product pertaining to surveillance videos showing the worker or concerning the worker are waived by 85.27, but privileges as to mental impressions, conclusions, opinions or legal theories of an attorney or other representative are not waived.

3.     Defendants are required to produce surveillance materials pursuant to appropriate discovery requests

4.     Surveillance materials may not be withheld until after the deposition of the claimant.

5.     Surveillance materials are to be produced upon request.  If the request is made under rule 85.27 rather than formal discovery, the materials are to be produced within the time periods in 876 IAC 4.17 (20 days after filing an answer, thereafter within 10 days of receipt.

6.     Parties seeking to prevent discovery of surveillance material may seek an order from the Commissioner disputing the relevance and materiality of the information requested.

7.     Defendants are required to timely answer and supplement discovery, and so if surveillance is performed, defendants must disclose that surveillance under the rules of discovery and 876 IAC 4.17.

8.     An injured worker can move to compel production of surveillance materials, and the Commissioner can impose sanctions if a party fails to comply with an order.

It is anticipated that Intervenors will file a Petition for Judicial Review of the action of the Commissioner.  Inasmuch as the decision was issued on October 23, 2012, such a petition would need to be filed by November 22, 2012.

The Declaratory Order on surveillance clarifies what had been a murky area regarding the discovery and production of surveillance materials.  The Order also clarifies that section 85.27, in its waiver of privileges, has broad application not only to medical records, but to all records that concern the physical or mental condition of the claimant.  The result of the Order may well be that surveillance in workers' compensation cases is reduced.  The Iowa Supreme Court in Cedar Rapids Comm. Sch. Dist. v. Pease, 807 N.W.2d 839, 848  (Iowa 2011) had already suggested that surveillance materials must be used "with great caution," and the Order makes it less likely that surveillance will be widely used in workers' compensation proceedings.

NOTE:  Following the issuance of the declaratory order, a petition for judicial review was filed in district court challenging the commissioner's action.  The district court affirmed the order, and an appeal was filed and heard by the Iowa Court of Appeals.  In Iowa Insurance Institute, et al. v. Core Group of the Iowa Association for Justice, No. 13-1627 (Iowa App. Oct. 29, 2014), the Court of Appeals, in a 2-1 decision, affirmed the commissioner's action.  A more complete discussion is contained in the posting about the decision in this blog in November of 2014.

Wednesday, October 31, 2012

Court of Appeals Decides Exclusivity Case Concerning Employee of Temporary Agency

The court, in Kelly v. Riser, Inc., No. 11-1898 (Iowa App. Oct. 31, 2012) addressed a question of an employee of a temporary workers' agency, who recovered benefits for an injury from the workers' compensation carrier, could also proceed against the property owner, general contractor and subcontractor.  The court concluded that there was no right of recovery in tort against parties other than the employer, and that workers' compensation was the exclusive remedy available to the claimant. 

Claimant worked for Labor Ready, a temporary employment contractor, and was assigned to dismantle and install a new bleacher system for Bettendorf High School.  He was injured on the job.  The contract between claimant and Labor Ready indicated that the exclusive means of recovery for an injury was through workers' compensation.  Following the injury, claimant received workers' compensation benefits, but later sued over parties in tort.  The district court, on summary judgment, dismissed all claims against the property owner, general contractor and contractor.  The court found that the subcontractor was a third party beneficiary of the contract between Labor Ready and Kelly.  With respect to the owner and contractor, the district court rejected claims for negligent supervision, duty to maintain a safe workplace, negligent hiring or negligence per se for OSHA violations.

The court of appeals found that the release signed by Kelly was a broad exculpating release of which the subcontractor was a third party beneficiary, and affirmed the award of summary judgment in the subcontractor's favor.

Claimant argued that he was a third party beneficiary of the contract between the employer and the subcontractor, which provided that the safety requirements in the subcontractor's agreement were for the protection of Labor Ready workers.  The court concluded that the contractor did not manifest an intent to benefit a third party, and rejected the claimant's contention.  The same was found to be true of contract between the owner and the contractor, which did not contain any language that was designed to benefit the interests of a third party.

On the negligent hiring claim, the court concluded that section 411 of the Restatement of Torts did not include protection for employees of an independent contractor suing a general contractor for negligent hiring of its own employer.  This is because, in part, the cost of workers' compensation insurance is expected to be borne by the employer who hired the injured worker.  The court affirmed the dismissal of the lawsuit against the subcontractor, owner and general contractor. 

Court of Appeals Affirms Finding that Injury Arose Out of Employment

In O'Reilly Auto Parts v. Alexander, No. 11-1864 (Iowa App. Oct. 31, 2012), the court addressed two issues.  The first was whether claimant's injury arose out of and in the course of employment.  The second was whether the commissioner had erred in sua sponte entering an insurance carrier into the proceedings.  The court affirmed on both counts.

Claimant contended he had suffered a back injury while unloading a tote from a truck and twisting his body to take a step.  Injury reports did not reflect the date of injury actually claimed in the action.  Claimant was not sent to see the company doctor, and did not initially explain the mechanism of injury to his family doctor.  Dr. Ray concluded that claimant had sustained a worsening of pain from the work accident.  Claimant subsequently had a stroke and explained at hearing that he had problems with memory.  The claim was denied by the deputy but the commissioner reversed and concluded that claimant suffered a work related injury.

The court first noted that it was commissioner's decision that was being reviewed, not that of the deputy, citing Myers v. FCA Servs., Inc., 592 N.W.2d 354, 358 (Iowa 1999).  The court next found that defendants had preserved error on the issue of whether the injury arose out of employment.  The court noted that the determination of credibility was in the province of the commissioner and found that substantial evidence supported the conclusions of the commissioner.

The final issue presented was that the commissioner conducted an independent investigation by reviewing proof of insurance coverage on the agency's website to find that correct insurer for the employer, and then added that insurer to the claim.  The employer indicates that this suggests bias on the part of the commissioner, since neither party had asked the commissioner to do so.  The employer did not suggest that it was injured or prejudiced by the actions of the commissioner, only that there was the appearance of impropriety.  The court found that the agency simply corrected an error, which counsel failed to identify and remedy.  The commissioner's action was within the authority granted the commissioner by the legislature to adjudicate rights and duties as between injured workers and the responsible insurance carriers.  The commissioner's decision was affirmed. 

Court of Appeals Decides Review-Reopening Claim Involving Weight Loss Surgery and Commencement Date for Benefits

In Verizon Business Network Serv., Inc. v. McKenzie, No. 11-1845 (Iowa App. Oct. 17, 2012), the court grappled with issues involving review reopening and the commencement date of such benefits, and also concluded that weight loss surgery was not related to the work injury.

The case had previously been remanded by the court in November of 2010, to be reconsidered under the review-reopening standard set forth in Kohlhaas.  Claimant had initially been found to have a 25% industrial loss as a result of her back injury, and the commissioner had concluded on the initial review reopening that she was permanently and totally disabled.  The court also indicated that the commissioner should reconsider payment for the bypass surgery under Bell Bros. v. Gwinn.  Finally, the agency was to redetermine the correct date for commencement of benefits.

On remand, the commissioner found that claimant was unable to work due to her spine injury.  The commencement date for benefits was said to be the date of the original injury, with the employer due a credit for weekly compensation that had been paid.  Finally, the commissioner found that the gastric bypass surgery was the responsibility of the employer in that the care provided a much more favorable outcome than the lack of care provided by the employer.

At the district court, the commissioner's decision was reversed to the extent that the commissioner was found not to have properly applied Kohlhaas.  The court found that there was no evidence of a change in the work injury or earning capacity of the claimant.  The court concluded that it defied logic to take the commencement date back to the date of the original injury, when the initial arbitration decision only awarded a 25% industrial benefit.  The court found that the date the petition was filed was the appropriate date.  The court found that Bell Bros. was properly applied to award payment for the gastric bypass surgery.

The court interpreted Kohlhaas as setting forth five ways in which a review-reopening claim could be satisfied: 1) worsening of physical condition; 2) reduction of earning capacity; 3) temporary disability developing into a permanent disability; 4) a critical fact existed but was unknown or could not have been discovered; and 5) a scheduled member claim later causes an industrial disability.  The claimant argued that the fourth way of proving entitlement was appropriate. She asserted that the fact that the weight loss surgery and years of treatment did not improve her condition with respect to her back was the change in condition necessary to trigger review-reopening.  The court rejected this argument, finding that, unlike Gosek, in which the review reopening argument was based on a new fact not previously recognized, in this case, claimant knew all along that she was morbidly obese (of course, she did not know that treatment for the obesity would not change the condition of her back, as her doctors had told her that it would).  The court indicates that claimant was simply asserting that the commissioner erred in originally finding that her industrial disability was 25%.

The court also rejected a claim under Meyers v. Holiday Inn, 272 N.W.2d 24, 26 (Iowa App. 1978), in which the court had granted review reopening upon a doctor's opinion that he had erred in his original assessment of disability.  The court found that Kohlhaas prevented such a result, because under that case, the commissioner should not be evaluating whether the initial decision anticipated that the claimant's condition would improve or deteriorate.  Kohlhaas, according to the court, "specifically rejected a review-reopening proceeding based solely on a 'difference of opinion of experts or competent observers as to the percentage of disability arising from the original injury.'"  The court found that the commissioner's conclusion that absent the consideration of claimant's weight, it could clearly determine the impact of the back injury was "precisely what Kohlhaas warned against."  The court remanded to the agency simply to determine whether there is a change in claimant's work related condition or earning capacity.  Based on this result, it would not be surprising if further review was requested of the Supreme Court.

On the commencement date issue, the commissioner found that the date of the original injury was the correct commencement date.  The district court concluded, based on Dickenson v. John Deere Products Engineering, 395 N.W.2d 644, 649 (Iowa App. 1986), that the appropriate date was the date the review reopening petition was filed.  The court in Dickenson had indicated that interest payments should not begin until the review reopening was filed.  The court found it implicit in Dickenson that weekly benefits for review reopening are not due until the review reopening is filed (this appears to ignore the holdings in cases such as Robbenolt v. Snap-On Tools, 555 N.W.2d 229, 235 (Iowa 1996) which indicates that the commencement of benefits occurs at the end of the healing period).

Finally, on the issue of beneficial care, the court addressed the question of whether the gastric by pass surgery provided a more favorable outcome than would have been achieved by the care authorized by the employer.  The court concluded that despite claimant's testimony that her pain was less following the bypass surgery, there was evidence that she was taking more narcotic pain medication, and concern among the doctors that the surgery had not helped as anticipated.  The court finds that because there was not a more favorable outcome for the work injury, "we disagree with the district court and the commissioner that the gastric bypass surgery was beneficial to McKenzie."  There is no real discussion of substantial evidence in this aspect of the case, and the court appears to simply weigh the evidence.

Judge Danilson dissents in part, finding that claimant had met her burden to reopen her claim.  He concluded that "clearly the commissioner concluded that McKenzie had a diminution of earning capacity from 25% to 100% and that the loss in earning capacity was proximately caused by the injury."  The judge found that it was well settled in other jurisdictions and in Kohlhaas that increased incapacity of the employee, due to the original injury subsequent to the initial award entitled the employee to additional compensation.  Judge Danilson would have affirmed the commissioner's permanent total disability award.

McKenzie may represent the next case in which the Supreme Court considers review reopening and beneficial care issues.  As of October 30, no request for further review had been filed in the case, so it is unknown whether further review will be sought. 

Tuesday, October 30, 2012

Court of Appeals Addresses Penalty Issues, Sanctions

In Dunlap v. Action Warehouse, No. 11-1451 (Iowa App. Oct. 17, 2012), the court addressed issues of causal connection, permanency, temporary benefits, penalty and sanctions.  The issues concerning causal connection, extent of permanency and temporary benefits were fairly straightforward analyses based on substantial evidence principles.  The penalty and sanction issues are potentially more important.

Dunlap was injured at work, and after a numerous struggles to obtain care, including an alternate medical care proceeding, he was set up with Dr. Prevo.  Dr. Prevo found that there was no permanency and further indicated the back problems were not related to his work.  Dr. Prevo was subpoenaed to a deposition and also provided with a subpoena duces tecum.  At the deposition, he refused to provide certain documents that had been subpoenaed.  Prevo refused to answer questions concerning disciplinary proceedings before the Iowa Board of Medicine. 

At hearing, Dunlap sought sanctions against the employer for the refusal of Dr. Prevo to answer questions.  The deputy found in favor of claimant and ordered the employer to pay the cost of Dr. Prevo's deposition, including the fees incurred for Dr. Prevo's and the court reporter's time.  Running healing period benefits were awarded, but penalty benefits were denied, based on opinions from Dr. Boyett and Dr. Neff.  The commissioner affirmed.

The district court affirmed in all respects save the penalty issue.  On that issue, the court found that the employer was liable for penalty from the date of injury until September 26, 2008, the date Dr. Neff responded to the employer's letter agreeing that there was no causal connection.

On the issue of running healing period, the court affirmed the decision of agency on substantial evidence grounds.  The court noted that the deputy detailed why he gave greater weight to the opinions of Dr. Kuhnlein and Dr. Thompson than to Drs. Neff, Boyett and Prevo.

On the penalty issues, the employer argued that Dr. Boyett's full duty release provided a reasonable basis for its position that no benefits were owing.  The employer also argued that Dr. Neff's opinion that the back pain was not related to his work injury defeated claimant's penalty claim.  Without a great deal of discussion, or an indication of the time period involved, the court reversed the determination of the district court and affirmed the commissioner's denial of penalty benefits.

On the issue of sanctions, claimant requested that Dr. Prevo be held in contempt for refusing to comply with the subpoena.  The agency found that it lacked contempt power.  The district court affirmed this holding, finding that "the law in Iowa is well-settled that an administrative agency is without power to enforce subpoenas or to hold someone in contempt of court."  The court of appeals affirmed this analysis.  Claimant also argued that the agency had the power to deem Dr. Prevo in contempt, even if it did not have the power to impose civil punishment.  The court rejected this assertion, indicating that section 665.2(4) of the Code limited the contempt power to courts.  The court also noted that administrative agencies possessed only such power as accorded by statute. 

Monday, October 29, 2012

Court Addresses 86.42 Judgment and Stay of Judgment

In Annett Holdings v. Pepple, No. 12-0468 (Iowa App. Oct. 17, 2012), claimant had sought and obtained a judgment under section 86.42 of the Code.  At the time that claimant sought judgment, defendant sought a stay of that judgment, which was denied by the district court.  The court found that although defendant might suffer harm from the judgment, the harm was less certain and less significant than the harm to claimant.

On appeal, the court found that the district court had considered the factors set forth in section 17A.19(5)(c) of the Code, in addition to the Supreme Court's decision in Grinnell College v. Osborn.  The court found that "when  a party requesting judgment has met all the conditions of Iowa Code section 86.42, the district court is required to enter the judgment in favor of the party requesting judgment."  The court found that this was the case, and affirmed the decision of the district court. 

Court of Appeals Decides Equitable Apportionment, Penalty Case

In Carter v. Alter Trading Corp., No. 11-1697 (Iowa App. Oct. 17, 2012), the court decided a claim dealing with equitable apportionment and penalty benefits for failure to pay benefits pending equitable apportionment.  The fighting question was whether the apportionment of death benefits among his children and wife was equitable.

Claimant was a native of Honduras and had a family in Honduras at the time he died as a result of an industrial accident.  That family consisted of his oldest son, Angel, his wife Carmen, and his daughter, Lidia. Claimant came to the US to work, and provided the family with support.  Claimant had a paramour in the US, Ruth, with whom he fathered a child, Sandra.  Claimant did not live with Ruth and Sandra, but provided them with support as well.

When claimant was killed, both families sought payment of death benefits.  The deputy allocated 45% of death benefits to Carmen as surviving spouse, and 22% to Angel during the period of his dependency.  The remaining 33% was assigned to Sandra during her dependency.  One half of the benefits apportioned to Carmen and her children was ordered to be paid to the Second Injury Fund under section 85.31(5) of the Code.  The deputy noted that the benefits for Sandra were decreased to provide an equitable apportionment.  The deputy also noted that Sandra had received life insurance benefits in the amount of over $48,000.  Penalty benefits were awarded because the employer never commenced benefits.

On appeal, the apportionment amounts were changed slightly, with 40% going to Carmen, 30% to Angel, and 30% to Sandra.  The commissioner ordered that when Angel was no longer dependent, 65% should go to Carmen, 35% to Sandra.  The commissioner indicated that he did not consider the amount paid to the Fund when making the apportionment.  The penalty award was affirmed.

On appeal the court noted that normally the full compensation is to be paid to the surviving spouse under section 85.43, unless the commissioner equitably apportions the amount.  The court noted that the commissioner must consider the facts and circumstances in making the equitable apportionment.  Sandra argued that the commissioner had failed to explain how or why the apportionment was equitable, in large part because expert testimony was presented to indicate that the cost of living in Honduras was only 40% of what it was in the US.  The court noted that the commissioner did not ignore this evidence, but simply considered other relevant factors, such as the receipt of life insurance by Sandra, her mother's ability to be employed, and the fact that claimant was the major source of income for Carmen, Angel and Lidia.  The court concluded that the commissioner had equitably apportioned the benefits.  The court also concluded that the agency was correct in not considering the reduction in payments because of the payments made to the Fund in making its apportionment decision.

On the penalty benefits issue, the court affirmed.   Defendants argued that they had a reasonable or probable cause or excuse for the delay of benefits because of the controversy concerning the disposition of those benefits.  The court found that the argument that defendants were waiting until the outcome of the apportionment was not objectively reasonable.  Sandra also argued that the penalty should be based on 50% of all past due benefits, not just a portion of those benefits.  The commissioner had apportioned the penalty benefits, and the court found there was substantial evidence to support this apportionment.

Finally, the court reversed the district court on a sanctions issue.  The commissioner had not decided this issue, and the district court had remanded to the commissioner to decide the issue.  The court concluded that the commissioner had decided the issue, denied sanctions, and a remand was not necessary.

Jamie Byrne from Neifert, Byrne & Ozga represented Carmen, Angel and Lidia throughout the proceedings in the case.  

Saturday, October 20, 2012

Court of Appeals Addresses Manifestation Date, 90 Day Notice

In Tyson Foods v. Shaw, No. 12-0432 (Iowa App. Oct. 3, 2012), the court addressed issues of the manifestation date of the injury, and the corollary issue relating to the 90 day notice requirement.  The court affirmed the commissioner's findings which indicated that the manifestation date was sufficient to bring claimant within the 90 day notice requirement.  The court also found that substantial evidence supported the conclusion that claimant's manifestation was correct found by the agency.

Claimant alleged a cumulative injury to his feet from his work at Tyson.  As a part of his job, he had to lift 50 pound bags of chemicals, and had to push heavy items.  He was required to wear rubber pullover boots on the job.  Claimant testified that his feet slipped in the boots because they were too large.  Claimant also had diabetes.  When problems began to develop with his feet, Tyson replaced his standard boots with leather steel toed boots.  Claimant had a lengthy process of problems with his feet, infections, and the eventual development of Charcot foot.  The doctor testified that June 30, 2007 was the first time he told claimant the foot deformity was being accelerated by his continued work.  Claimant reported the foot injury on August 30, 2007.

The agency found that the manifestation date was August 30, which was when she left work and became more and never returned to full duty after.  Tyson argued that the agency applied the wrong legal standard.  After surveying the law on cumulative injuries, including discussion of McKeever, Tasler and Herrera, the court concluded that "the commissioner did not reinvent the standard for determining when an injury manifests itself, but considered the factor which on this record demonstrated the date of manifestation."  The court found that this conclusion was supported by substantial evidence and affirmed the decision of the agency.

Court Concludes that Workers Compensation Remedy is Exclusive in Death Case

In Estate of Brehm v. Dubuque Community School District, No. 12-0176 (Iowa App. Oct. 3, 2012), the court of appeals addressed the issue of exclusive remedy in the death benefits case.  Claimant had died while performing one of two full time jobs, and under the provisions of the workers' compensation statute, was paid benefits based only on the wages earned on that full time job.  Claimant's estate argued that this remedy wasn't adequate, and that therefore the workers' compensation statute should not have been the exclusive remedy in the case.

Because the damages arose from a work related injury, and the employer had paid the damages owed under the workers' compensation act, the court concluded that the remedy was adequate and affirmed the decision of the district court.  The court noted that in situations where there was not an adequate remedy, claims may fall outside of the exclusive remedy provisions, but found that this was not such a case.  The court concluded that the facts of the case were within the contemplation of the workers' compensation statute, unlike those cases, such as breach of fiduciary duty and bad faith, where the harm being protested was not within the ambit of the workers' compensation statute.   The court concluded further that the fact that there was no recovery for wages from other jobs did not make the remedy inadequate, it simply reflected the legislative choice not to provide such a remedy.

Court of Appeals Follows Neal v. Annett Holdings on Suitable Work Issue

In Annett Holdings v. Allen, No. 12-0388 (Iowa App. Oct. 17, 2012), the court of appeals addressed a suitable work issue in the trucking context, as the Supreme Court had earlier done in Neal v. Annett Holdings, 814 N.W.2d 512 (Iowa 2012).  Allen involved the same trucking company, with the same light duty program in Des Moines as had been the case in Neal.  The primary difference in Allen was that claimant lived in Mississippi, and was over 800 miles away from home.  He declined to perform light duty work in Iowa, and the court concluded that the work offered was not suitable.  The court concluded that the distance traveled to the proposed light duty work was unreasonable, given the distance involved, claimant's cervical fusion, the restriction on the amount of time he could sit, and other physical limitations.  The court affirmed the agency, and reversed the district court in awarding healing period benefits.

The court also addressed the finding that claimant had a 50% industrial disability.  Claimant argued permanent total disability while the employer argued the disability finding was too high. The medical reports noted a lack of motivation on the part of the client, and the court affirmed the 50% industrial disability.  The court also rejected Allen's odd lot contention, finding that it was normally incumbent on the claimant to demonstrate a reasonable effort to secure employment.  The court concluded that to avoid the reasonable efforts requirement, claimant must show that any search would be futile.  Because claimant had not done so, and the agency had discounted the vocational expert's opinion absent supportive medical evidence, and had found claimant's credibility lacking (the agency found portions of his testimony "flatly unbelievable"), the rejection of the odd lot doctrine was affirmed by the court.

Friday, September 7, 2012

Court of Appeals Decides Case on Rate and Maximum Medical Improvement

In Menard v. Jones, No. 12-0027 (Iowa App. Sept. 6, 2012), the court of appeals addressed two issues.  The defendants appealed a question of whether claimant had reached maximum medical improvement, and claimant appealed a question relating to part-time.  On rate, the court in Swiss Colony v. Deutmeyer had indicated that in part-time cases, there needed to be evidence of what type of work was part-time in the industry in which the claimant was engaged.    The court in Jones indicated that the fact that claimant was hired to work on 4 hours a day (and that the employer admitted he was part-time), was not enough to actually establish that he was only performing part time work under the statute.  Since there was no evidence in the record to establish what full time employment was in claimant's field, the court concluded that the case had to be remanded on this issue.

On the maximum medical improvement issue, both the treating physician and IME doctor had recommended further treatment to determine whether there was nerve entrapment.  On this evidence, the commissioner concluded that claimant had not reached MMI, and accordingly found a running healing period.  Menard's appeals this issue, and according to the court, asked the court to reweigh the evidence.  The court concludes that under the substantial evidence test, this is not its role The court also indicated that an issue that had not been raised before the commissioner (in this case whether claimant's failure to note a back injury on his application form) could not be raised for the first time on appeal.

Judge Doyle dissented with respect to the rate issue.  He found that because Menard's had stipulated that the work was part-time, it was in fact part time, and that there was no need to go back to the agency to determine the amount of hours worked by other claimants in the same industry.  He distinguished Swiss Colony by indicating that in that case, there was a real question about what was considered full time work in that industry.  Here, there was an admission by the employer that claimant was part-time, was not entitled to benefits because he was part-time, and Judge Doyle believed this made a difference.   Judge Doyle would have affirmed the decision of the agency on this portion of the claim.

Monday, July 9, 2012

Villafana v. Blackhawk Foundry - COA Affirms Ruling that Injuries Were Not Caused by Employment

The court in Villafana v. Blackhawk Foundry, No. 11-1781 (Iowa App. June 27, 2012) found that the commissioner's conclusion that claimant's injury did not arise out of and in the course of employment was supported by substantial evidence.  Claimant's condition (carpal tunnel and neck problems) was originally found work related by Dr. Frederick, but she later concluded that these conditions were not related to work, but were related to earlier injuries sustained by claimant.  Dr. Milas, a neurosurgeon, indicated that he believed the injuries were related to work, although he noted that claimant was a poor historian.

At the hearing level, Dr. Frederick's opinions were credited over those of Dr. Milas because it was unclear what records Dr. Milas had reviewed in reaching his conclusions.  The opinions of the deputy were affirmed without further comment.  The COA initially addresses a question of whether claimant preserved error, as he did not point to any cases in support of his argument that the commissioner erred, as a matter of law, in failing to find that claimant's injuries arose out of his employment.  Because claimant set forth general review principles, however, the court addresses the arguments and finds they are not waived.

The COA affirms the decision of the commissioner, based on the fact that Dr. Frederick discussed how she reached her conclusions, and what evidence she considered, while Dr. Milas did not.  The court noted that expert testimony was essential to show a causal connection and found that the commissioner's findings were supported by substantial evidence.  This was the case for both the carpal tunnel and neck problems. 

College Comm. Sch. Dist. v. Orris - COA Affirms 30% Industrial Disability Award

In College Comm. Sch. Dist. v. Orris, No. 11-1848 (Iowa App. June 27, 2012), the Court of Appeals affirmed the decision of the commissioner, which had concluded claimant was entitled to a 30% industrial award.  Claimant had appealed the action to the district court, alleging that the commissioner had improperly relied on the opinion of Dr. Buck that claimant's fibromyalgia would improve within six months.  The district court remanded to the agency to reconsider the industrial disability award without consideration of Dr. Buck's opinion on this point.  On appeal to the COA, the issue was whether the agency had improperly relied of Dr. Buck regarding claimant's future improvement.

The court concluded that the agency had not improperly relied on anticipated future improvement, which would have been impermissible under Kohlhaas, but had instead relied on evidence presented at hearing that demonstrated that claimant was capable of performing her work as a teacher on a full-time basis.  The court indicated that Dr. Kuhnlein's conclusion that claimant was capable of performing sedentary and light work on a full-time basis was substantial evidence supporting the decision of the agency.  The court found that there was substantial evidence to support the agency's findings, and thus reversed the decision of the district court remanding the action to the agency. 

Leavens v. Second Injury Fund of Iowa - COA Affirms Denial of SIF Benefits

In Leavens v. Second Injury Fund of Iowa, No. 11-1636 (Iowa App. June 27, 2012), the Court of Appeals affirmed the decision of the commissioner that claimant had not established a compensable SIF claim.  Presented to the court were issues involving the preclusive effect of an earlier settlement agreement, a question concerning rehearing, and the overall question of whether claimant had established a second injury.

On the second injury, which was a bilateral upper extremity injury, claimant and the employer entered into what the court described as a compromise settlement under section 85.35(3).  This settlement was based on a 12/20/06 cumulative injury.  Claimant later filed a claim against the Fund, alleging a first injury from 2000, and the second injury from 12/20/06.  Benefits were awarded against the Fund at the hearing level.  Subsequent to this time, claimant filed a rehearing petition, seeking additional industrial disability.  Apparently much to the claimant's surprise, the hearing deputy reversed the earlier award, and found that Fund benefits could not be awarded when the second injury was concluded with a compromise settlement.  The deputy noted that agency policy on this point had changed.  The commissioner affirmed and concluded that no benefits against the Fund were appropriate.  The district court affirmed.

Before the COA, claimant alleged that the settlement agreement was entitled to limited preclusive effect against the Fund.  Part of the difficulty in Leavens is that the initial reference in the opinion is to a settlement under 85.34(3) - a compromise or contested case settlement, and the second reference in the body of the decision, is to a settlement under 85.34(2) - an agreement for settlement.  The second reference also notes that benefits were commuted under section 85.45.  The agency cited Grahovic v. SIF, No. 5021995 (App. Oct. 9, 2009), for the principle that the settlement agreement was not to be given preclusive effect.  It appears from the decision that the actual settlement was based on an agreement for settlement, which makes more sense in terms of an argument over the preclusive effect of the settlement.

The court discusses preclusion principles under Tyson Foods v. Hedlund, 740 N.W.2d 192 (Iowa 2007) and Winnebago Industries v. Haverly, 727 N.W.2d 567 (Iowa 2006) and concludes that the issue of the compensability of the December 2006 claim was never actually raised and litigated, since the matter was settled.  Therefore, the settlement agreement could not be used offensively against the Fund to preclude arguments that the December 2006 claim was not compensable.  Ultimately, the court concludes that because the Fund did not have the opportunity to litigate the issue, there was no preclusive effect to the earlier settlement.  

On the issue of whether claimant had established disability from the second injury, the agency had given weight to the opinions of Drs. Quenzer and Formanek over the opinions of the IME doctor, Dr. Jones.  The court, citing section 17A.16 of the Code and Bridgestone-Firestone v. Accordino, 561 N.W.2d 60 (Iowa 1997), indicated that as long as the analytical process of the commissioner could be followed, there was no error in the decision (note that the recent Supreme Court decision in Burton v. Hilltop Care Center from May of 2012 casts some doubt on the continued vitality of Accordino).  Claimant challenged the agency's reliance on "summary, leading, and wish-list" reports, but the court concluded that these reports were sufficient to require affirmance of the fact finding of the agency under substantial evidence principles. 

Friday, July 6, 2012

Court of Appeals Affirms Award of Temporary Benefits in Mental/Mental Claim

Village Credit Union v. Bryant, No. 11-1499 (Iowa App. May 23, 2012), involved the question of whether a claimant who had been held up at gunpoint on two occasions, had established a mental/mental injury and thus was entitled to temporary benefits (the issue of permanency was not before the court in this proceeding).  Claimant was understandably upset by the events at work, and Dr. Jennisch concluded that she suffered from post-traumatic stress disorder and should work for an employer where she had scheduled appointments rather than random encounters with individuals off the street.

Claimant found a job following the robberies with another employer, but had an anxiety attack shortly after beginning work, and quit that employment.  The deputy concluded, under Brown v. Quik Trip Corp., 641 N.W.2d 725 (Iowa 2002), that claimant had been subjected to events of a sudden, traumatic nature that led to unusual stress, and thus had a compensable mental/mental injury.  The deputy also concluded that she had been subjected to stress of such an unusual nature that exceeded the stress faced by other employees of credit unions, and thus met the test for mental/mental injuries set forth in Dunlavey v. Econ. Fire & Cas., 526 N.W.2d 845 (Iowa 1995).  The deputy concluded that because claimant had not been found to have reached maximum medical improvement, healing period benefits were not appropriate, but temporary benefits were, and awarded those benefits (essentially a running award of temporary total benefits).  The workers' compensation commissioner affirmed the decision of the deputy.

At the Court of Appeals level, defendants argued that claimant had not met the standards outlined in Brown or Dunlavey.  The defendants also argued that a running award of temporary total benefits was not appropriate.  The court concurred with the agency that the two armed robberies met the legal test for compensation articulated in Brown.  The court found that substantial evidence supported the decision of the agency that there had been events of a sudden, traumatic nature that led to the injuries sustained by claimant.  Because of its ruling on this issue, the court did not address the Dunlavey question.

The court, after a discussion of the differences between healing period and temporary total benefits, concluded that there was substantial evidence to support the conclusion that claimant had not reached MMI prior to the hearing, and thus the benefits were appropriately categorized as TTD benefits.  The court also rejected a claim that claimant could have returned to substantially similar work, thus ending healing period benefits.  

The Bryant case was handled for the claimant by Jason Neifert of Neifert, Byrne & Ozga.

Court of Appeals Affirms Award of Medical Care

The court in Emco v. Samardzic, No. 11-1375 (Iowa App. May 23, 2012) was presented with an issue of medical care for an injury to the arm that had occurred years in the past, but had been aggravated by work activities with the employer arose out of and in the course of employment.  Defendants argued that the injury to the wrist was a result of progressive arthritis and was related to the initial injury (2001) and not to the more recent injury (2007).  At the deputy level, defendants prevailed, but this decision was reversed on appeal, with the commissioner finding that claimant's work activities were a substantial factor in the need for the recommended surgery.  The commissioner also awarded the costs for medical reports to claimant.

Dr. Formanek opined that work was a substantial contributing factor in the injury, while Dr. Gainer concluded that the progressive arthritis was the need for the surgery.  On substantial evidence grounds, the court agreed with the commissioner and awarded medical care to claimant.  

On the costs issue, the court, without citing to John Deere Dubuque Works v. Caven, 804 N.W.2d 297 (Iowa App. 2011), concluded that under 876 IAC 4.33(6), costs of doctors' reports were permissible over and above $150.00 so long as the costs of those reports were reasonable.  The court found nothing to suggest that the costs of the reports were unreasonable, and upheld the award of costs against defendants.  The Samardzic decision represents another validation of the fact that costs can be awarded in excess of the $150.00 limit contained in 876 IAC 4.33(5).

Court of Appeals Affirms 20% Industrial Disability Award for Back Injury

In ABF Freight v. Veenendal, No. 11-1862 (Iowa App. May 23, 2012), the court affirmed, on substantial evidence grounds, a finding that claimant's back problems arose out of and in the course of employment and resulted in a 20% industrial disability.  The case demonstrates yet again that if a party loses before the commissioner, and there is evidence to support the decision, it is likely that the appellate courts will rule in favor of the party who prevailed at the commissioner level on substantial evidence grounds.

In Veenendal, there was evidence from Dr. Abernathey that the claim was not work related and evidence from Dr. Brady and Dr. Neiman that it was work-related, and the court found that the decision of the commissioner was supported by substantial evidence.  The court also found that the 20% industrial disability finding was supported by substantial evidence. In light of the Pease decision, which was cited in Veenendal, reversals of the commissioner's decision will occur only rarely if there is some evidence to support the commissioner's decision on the facts.

Supreme Court Reverses Ellingson - Finds that Multiple Healing Periods are Permissible

In Waldinger Corp. v. Mettler, 817 NW2d 1 (Iowa 2012), the Supreme Court finds that multiple healing periods are consistent with section 85.34(1) of the statute, and overrules its earlier decision in Ellingson v. Fleetguard, 599 N.W.2d 440 (Iowa 1999).  Mettler involved a relatively straightforward situation where claimant was found to have reached maximum medical improvement (MMI) by his doctors, was paid permanency benefits, and was later found to be in need of additional surgery for his ankle problems. That surgery was performed, and a few years later a third surgery was performed, following which claimant was off work from September 18, 2007 until December 7, 2007.  In addition to awarding permanency benefits, the commissioner found that claimant was entitled to healing period benefits following the third surgery.  Ultimately, the Court of Appeals concluded that the commissioner had no special expertise in interpreting the statute and held, based on Ellingson, that multiple healing periods were not authorized by section 85.34(1).  The Supreme Court took further review of the healing period issue.

In reviewing the case, the court concluded that although the legislature granted the commissioner the authority to adopt and enforce rules to implement the statute, the court found that this was not a "clear vesting of interpretive authority" and thus concluded that the commissioner's interpretation was not entitled to deference.

The Supreme Court noted the reliance on the language in Ellingson, which had concluded that once significant improvement from an injury is not anticipated, all temporary disability benefits are finally terminated.  The Supreme Court stated the following with regard to Ellingson:

 "We now conclude our interpretation in Ellingson of section 85.34(1) as a categorical prohibition of an award of healing period benefits for disability from work occurring after the date MMI has been achieved was erroneous, and we therefore overrule it."

The court rejected the argument that because section 85.34(1) talks in terms of "a healing period" that this means that there is only a single healing period.  The court concludes that the article "a" was not intended to limit healing periods to a single healing period, but was rather meant to convey the meaning "any" and not "one."  The court finds that Ellingson was flawed because it diminished the promise of continuing medical care under section 85.27 by eliminating subsequent healing periods, and ignored the fact that a single disability could cause a new period of temporary disability even after a claimant had achieved MMI.

The court noted that the employer's obligation for providing medical treatment was not limited to the duration of the healing period.  The court stated: "We see no principled reason why Mettler, or any similarly situated claimant, should be disqualified from a healing period remedy when ordinary and necessary medical care for a work-related injury temporarily removes them again from the work force."  The court also noted that their interpretation avoided the "absurd and unjust result" that occurred if the statute allowed only a single healing period.  Thus, even in situations where there has been an unsuccessful return to work, multiple healing periods are allowed under the Mettler decision.  The court notes that section 85.34(1) leaves room for the possibility that continuing medical treatment "can result in a series of intermittent invasive treatments, periods of temporary disability from work and convalescence, serial MMI dates, and revised permanent disability ratings following a single work-related injury.  In other words, the court acknowledges that each case can follow a different path, and that limiting a claimant to a single healing period is inconsistent with the statute.

The court also states that this view is consistent with the liberal construction accorded the workers' compensation statute for the benefit of the working person.

The court also concludes that the Court of Appeals' conclusion that healing period benefits could not be provided because there was no evidence to support a finding that the doctors anticipated improvement from the 2007 surgery need not be addressed, since the question was as to the new period of disability following the surgery.  The court did note in a footnote that it was likely that the doctor would not have performed surgery if he had not concluded that this would improve the claimant's condition. 

Justice Waterman concurred specially, concluding that he would have deferred to the commissioner's judgment as to the interpretation of the term healing period.  He  believed that deference was owed to the agency because of its special expertise in terms of interpreting terms of art within the statute.  Justice Waterman also noted that "my adherence to stare decisis precludes me from joining the full opinion."

The Mettler decision confirms what had been the practice before the agency of allowing intermittent healing periods, and allows for a more logical interpretation of the statute that provides benefits when a claimant is unable to work because of an injury.  It overrules Ellingson, which had long been an impediment to obtaining healing period benefits after a claimant had reached MMI, and which seemed to be decided based on the peculiar facts of that case.  In practice, the decision in Mettler should not make that much of a difference in agency decisions, but it prevents a retrogression of the agency into decisions that allowed for only a single healing period.  

The Iowa Workers' Compensation Core Group of the Iowa Association for Justice filed an amicus brief in Mettler urging the result reached by the court. 

Wednesday, May 9, 2012

Court of Appeals Affirms PTD Award Without Comment

In Quaker Oats Co. v. Pattison, No. 11-1974 (Iowa App. May 9, 2012), the court of appeals affirmed the commissioner's finding of a permanent total disability without comment, relying on the well-reasoned decision of the district court.

Tuesday, May 8, 2012

Court of Appeals Decides Kohlhaas, Redux

Following the decision of the Supreme Court in Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387 (Iowa 2009), the case was remanded to the agency for a determination of whether claimant met the qualifications for review-reopening absent the "contemplation" standard.  On review, the commissioner again decided against claimant, and the case was decided by the Court of Appeals on March 28, 2012.  Kohlhaas v. Hog Slat, Inc., No. 11-1177 (Iowa App. March 28, 2012).

On appeal, Kohlhaas argued that the commissioner read the remand order from the Supreme Court too narrowly.  The court noted that in order to prevail on review reopening, the claimant must demonstrate that following the original settlement, the claimant must demonstrate he suffered an impairment or lessening of earning capacity proximately caused by the original injury.  Citing Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 434 (Iowa 1999).  The agency concluded that claimant had failed to demonstrate increased disability since the settlement agreement, and the Court of Appeals agreed.

Claimant argued that he had demonstrated that his originally injury to the leg had changed because it resulted in a gait disturbance and a body as a whole injury.  The court found that the agency's findings denying review-reopening were supported by substantial evidence and that the agency was not required to address every fact in the record or to describe how every argument was decided.  According to the court, as long as the agency's thought process could be followed, this was sufficient.

Claimant had also argued that the decision of the agency had precluded his ability to argue that the character of his injury had changed.  The court found that the res judicata principles discussed in Kohlhaas I indicated that the initial decision/settlement formed the baseline from which the agency must determine whether there has been an increase or change in the level of impairment.  Because the court finds that the agency correctly applied the law on remand, the decision of the agency was affirmed.

Court Decides Nunc Pro Tunc Case

In Hawkeye Wood Shavings v. Parrish, No. 11-1546 (Iowa App. April 11, 2012), the court decided, based on the "well-written district court opinion," that the commissioner correctly issued a nunc pro tunc order specifying that defendants were responsible for payment of claimant's medical expenses for his injury.

Mr. Parrish was represented by Martin Ozga of Neifert, Byrne & Ozga, P.C.

Court of Appeals Denies Occupational Disease Claim

In Serrato v. Tyson Foods, Inc., No. 11-1186 (Iowa App. March 28, 2012), the Court of Appeals denied the claim that claimant suffered from COPD as a result of his occupational exposures at a meatpacking plant.  Claimant had argued that chemical residues left on the machines at the plant as a part of his duties cleaning the plant had led to his COPD.  The case was originally analyzed by the deputy as an injury case under Chapter 85, but was adjudicated at the commissioner's level as an occupational disease under Chapter 85A.

The claim was denied at both the deputy and commissioner levels, which noted that there was little evidence directly linking claimant's exposures at work to his COPD.  One of claimant's doctors indicated that work at Tyson was an aggravating factor, but all the doctors noted that claimant's 1-3 pack per day cigarette smoking was of greater consequence in causing the COPD.    The commissioner concluded, based on his review of claimant's IME, that the COPD arose from a hazard that was equally present outside of the work environment.

Ultimately, the court found that substantial evidence supported the position of the commissioner denying benefits.  The court also addressed the issue of whether the fact that the deputy had addressed the issue as an injury rather than an occupational disease affected the outcome of the case.  The court noted that despite that "glitch", the deputy's fact finding and credibility decisions offered solid footing for the ultimate decision of the commissioner.  Moreover, since the commissioner had reviewed the case as one of occupational disease, any error was cured.

Finally, the court concluded that the agency had not applied the proximate cause standard of tort law rather than the more generous causation standard used in workers' compensation claims.  The court found that the agency had reached its decision based on the fact that claimant had failed to prove that the chemical exposure alleged by claimant was not proved at hearing.  This was supported by substantial evidence.

Monday, May 7, 2012

Supreme Court Issues Decision Altering Standard of Review Principles

The case of Burton v. Hilltop Care Center, 813 NW2d 250 (Iowa 2012), arose out of a unique set of facts, but has led to a decision in which the court has modified its standard of review principles and simultaneously urged the commissioner's office to rethink its manner of deciding cases.

The primary issue involved in Burton was a rate question for a claimant who was allegedly supposed to receive a $1,000 per year raise, but was paid (for 15 months) a wage that was $1,000 more on a monthly basis than she had previously been receiving.  The commissioner and court of appeals concluded that the rate should be decided on the basis of the $1,000 additional per month that had been paid, and defendants challenged this conclusion, in addition to challenging a penalty finding and the award of a 30% industrial disability from abdominal injuries sustained by the claimant.

In setting forth its standard of review for the case, the court cites the familiar principles of substantial evidence  from Meyer v. IBP and notes that when an agency has been clearly vested with the authority to make factual determinations, "it follows that application of the law to those facts is likewise 'vested by a provision of law in the discretion of the agency.'" Citing Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004).  Interpretations of law that are not clearly vested with the agency are subject to being overturned if those interpretations are erroneous.  The level of deference accorded the commissioner is determined on a case by case basis.  The court notes that the agency does not need to be expressly vested with authority in order for some deference to apply, only that the agency be clearly vested with such authority.  When a term is not defined in a statute, but the agency must necessarily define the term as a part of its duties, the court is more likely to conclude that interpretation was clearly vested with the agency.

On the issue of rate, the court noted that section 85.61(3) defines gross earnings as "payments to the employee for employment . . . ."  The court also noted that irregular bonuses were excluded.  The interpretation of this section of the statute was the key feature for the court in reaching its decision.

In reaching its decision, the commissioner had issued what the court concluded were "combined findings of fact and conclusions of law."  The court described the findings as "tapestry of interwoven findings of fact, application of law to fact and interpretations of law."  The court noted that these interconnected findings "pose a uniquely difficult problem on judicial review."  The court indicated that when the commissioner lumped together facts, law, and the application of law to facts, section 17A.16(1) of the IAPA had not been satisfied.  "Combining all three elements of agency decision making in such a condensed, tangled manner makes for inefficient and ineffective judicial review of agency action."

The court found that the commissioner had not been clearly vested with the authority to determine how sections 85.36 (the rate statute) or 85.61(3) (the definitional statute) apply to a particular dispute.  To the court, the issue devolved into a determination of whether the $1,000 payment per month to the claimant was a "payment to the employee for employment" or whether this was simply a payment that was made as a mistake. Citing AEA 7 v. Bauch, 646 N.W.2d 398 (Iowa 2002), which involved teacher pay, the court noted that in that case, the rate was to be calculated based on the amount she earned each month, rather than the amount she made each month.  Applying this logic to Ms. Burton's situation, the court concluded that the commissioner had not made a factual finding over whether the payments were for employment.  The court indicated that although the commissioner had summarized the arguments of the parties on this issue, he had not made a finding of fact on this issue.  The court indicated that without such a factual finding, the court was left with nothing to review.  This part of the case was therefore remanded to the commissioner with instructions to make a factual determination as to whether the $1,000 a month raise was an accounting error.  If it was, then this should not have been included in the rate, but it it was money earned for employment, then the determination was correct.

The court also addressed a bonus issue.  Claimant had received a $270.01 bonus, which the commissioner divided by 52 to provide a bonus of $5.20 per week.  The district court remanded in light of Noel v. Rolscreen, 475 N.W.2d 666 (Iowa App. 1991).  The commissioner had not discussed Noel, but had indicated that the testimony demonstrated that this was a part of a regular bonus.  The court found that the district court had relied too much on Noel to determine whether the bonus was "regular."  The court noted that the list of factors contained in Noel was not exhaustive or exclusive.  The court concluded that the commissioner's inclusion of the bonus was not irrational, illogical or wholly unjustified and reversed the action of the district court.

On the penalty issue, the court remanded this issue along with the issue of rate to determine whether penalty was appropriate in light of the commissioner's factual findings.

In a special concurrence, Justice Hecht wrote that the court's opinion "amounts to a disavowal of the less demanding standard of judicial review applied in Bridgestone-Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997).  Justice Hecht believed that although the court did not specifically disavow Accordino, the practical effect of the decision was to do so.  He notes that under the Accordino standard, the court could easily have worked backward from the result reached to determine the agency's legal conclusions and findings of fact.  He also noted that under this standard, it was clear that the commissioner had found that the payments made to Burton were for employment.  Ultimately, Justice Hecht concluded that it was better to expressly disavow the Accordino standard to ensure that the more demanding standard was applied.

It is to be expected that the effect of Burton will be to require the agency to be more specific in its findings of fact and conclusions of law.  The current decisions generally set forth the factual contentions of the parties without making specific findings of fact about those contentions.  Often conclusions of law are stated within the portion of the decision labeled "findings of fact."  Although it is usually easy enough to determine the findings of fact and conclusions of law made by the agency, there are decisions where it is difficult to reach a conclusion as to the agency's findings.  If Burton results in more specific decisions, it will have served an important purpose.

Thursday, April 26, 2012

Court of Appeals Reverses District Court, Reduces Permanent Total Disability Award to 70%

In Kent v. Diamond Shine Management Services, Inc., No. 11-1041 (Iowa App. April 25, 2012), the Court of Appeals reiterated the importance of the substantial evidence standard in judicial review actions.  Mr. Kent had suffered injury to his bilateral shoulders, resulting in a 6% BAW rating to one shoulder, and a 4% BAW rating to the other shoulder, according to the IME doctor. Work restrictions were in the 40 pound occasional lifting category.  Claimant presented evidence that his reading and math skills were consistent with students in the upper elementary level.  Claimant also presented evidence from a vocational expert that he was unable to perform any activity in the labor market.  Following the end of the discovery period, claimant moved to add an odd lot claim, which was rejected by the hearing deputy. At the time of hearing, claimant was working, but had suffered a loss of income from $12.00 per hour to $7.50 per hour and was working only part-time.  Defendants' vocational expert concluded that claimant could perform work, including work as a cook or bartender, which claimant had done before.

The hearing deputy indicated that neither vocational expert was probative of the issues in the case, and awarded a 40% industrial disability.  This was increased on appeal to the commissioner to 70%.  The commissioner also refused to consider the matter as an odd lot claim. Finally, the commissioner concluded that payment for the vocational expert was not appropriate as a sanction for defendants' failure to admit certain requests for admission (apparently payment for the VE was not attempted under 876 IAC 4.33(6)).

At the district court level, the court concluded that the decision of the agency was not sufficiently detailed to determine whether the 70% award was appropriate, and remanded to the agency.  The agency affirmed its initial ruling.  The court also indicated that it was error to refuse to consider the odd lot claim.  The agency affirmed the 70% award, and after considering the odd lot claim, rejected that claim, finding that claimant had not made a prima facie showing of odd lot.  The case returned to the district court.

In the second district court action, the court found that the agency had not correctly applied the factors relating to industrial disability and concluded that claimant had established permanent total disability, as well as finding that permanent total disability was appropriate under an odd lot analysis.

The Court of Appeals noted that the analysis was whether substantial evidence supported the decision of the agency.  The court noted that the commissioner had addressed the relatively small impairment ratings, and the ability of claimant to occasionally lift significant amounts of weight.  The court found that the agency's finding that claimant retained some residual ability to compete for employment was supported by substantial evidence.  The court also concluded that even under the odd lot doctrine, there was substantial evidence to support the agency's conclusion that claimant had not made a prima facie case of showing odd lot. The court concluded that by relying on defendants' vocational expert, there was substantial evidence to support a finding that claimant had not made his prima facie case.  The Court of Appeals also concluded that the district court had stepped outside of its role in making a factual finding that claimant's vocational expert was to be preferred over that of defendants' expert.

On the issue of the costs of the VE, claimant argued that because defendants had denied that the claim was to be considered industrially, VE costs should be awarded.  This was rejected by the agency, which concluded that the VE was not in a position to indicate whether the claim was scheduled or unscheduled.  The Court of Appeals found that the VE costs were not "reasonable costs incurred" in proving that the action was industrial.  The court found that there was no abuse of discretion in denying VE costs as a sanction for failing to admit the existence of an industrial disability.

Thursday, April 12, 2012

Court of Appeals Concludes that 85.39 Examinations are Appropriate Even in Denied Claims

In City of Davenport v. Newcomb, No. 11-1035 (Iowa App. April 11, 2012), the court addressed an issue that has been the subject of a great deal of controversy - the ability of the defendants to obtain an examination under section 85.39 of the Iowa Code when a claim has been denied.  The court decided, contrary to the previous views of the commissioner, that defendants had the right to such an examination in denied cases.  In Newcomb, the court also addressed issues of whether the deputy erred in permitting the testimony of certain witnesses but not other, and whether penalty benefits were appropriate.

The question concerning testimony arose because one deputy heard the evidence before making a decision on the case.  The deputy assigned to decide the claim (Walshire) decided that he needed to hear from the claimant and his wife because their testimony was so different than the treating physician concerning the back problems alleged by claimant, and their credibility had been called into account.  The deputy did not believe the doctor needed to testify, because his credibility was not being challenged.  The court found that, given the circumstances, this was an appropriate resolution of the problem.  The court stated that because factual determinations were within the province of the agency, this resolution of the problem was within the deputy's discretion.

The court reviewed the IME question on an abuse of discretion standard.  The court first addressed the motion of the defendants under IRCP 1.515 to have an evaluation conducted.  The court agreed with the agency that there must be good cause presented in order to justify such an examination, and that this is something more than simply indicating in the motion that good cause exists.  The court noted that conclusory allegations in the pleadings do not suffice to establish good cause. Since the initial motion did not contain anything more than conclusory allegations, the court found this motion was appropriately denied.  A second motion, which specifically indicated that an evaluation was needed because no evaluations had been conducted for defendants by a neurosurgeon was denied by failure to rule on the motion.  The court found that this was improper and that the agency had abused its discretion.  It did not remand on this issue, however, because the court found that under section 85.39, the evaluation was appropriate.

In addressing the 85.39 issue, the court distinguished McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 194 (Iowa 1980), which had held that reimbursement under 85.39 was not proper until liability for the injury had been established and Winnebago Industries v. Haverly, 727 N.W.2d 567, 575 (Iowa 2006), which held that the employer's right to control care is lost if it denies liability.  The court found that there was nothing in section 85.39 that wholly precluded a DME in a denied case.  The court cited a 1928 case, Daugherty v. Scandia Coal Co., 219 N.W. 65, 67 (Iowa 1928) which indicated that 85.39 was for the purpose of enabling the employer to determine the extent and character of the injury.  The court found that denying a DME in a denied case puts the employer at a disadvantage, and noted that a records review would not be adequate in terms of the weight given to a records review versus a report from a doctor who had actually examined the patient.  The case was remanded to permit the defendants to have claimant examined by their neurosurgeon, Dr. Abernathey.

The court also upheld the agency's denial of penalty benefits, finding that the question of the compensability of the injury was "fairly debatable" given the testimony of the treating physician that claimant had no permanency from the injury.

Newcomb provides defendants with substantially more ammunition to obtain DME's in denied cases.  It is unknown at this juncture whether an application for further review will be filed in Newcomb, but such an application would be helpful to all practitioners to obtain a final word on whether DME's are allowable under 85.39 in cases where benefits are being denied.

Note - following the initial publication of this post, it was learned that  claimant's attorney was not going to file an application for further review, so the decision of the Court of Appeals will stand.

Wednesday, April 11, 2012

Court of Appeals Decides Alternate Medical Care Dispute

In Spencer v. Annett Holdings, Inc., No. 11-1032 (Iowa App. March 28, 2012), the court of appeals addressed an alternate medical care issue involving the choice of physician when the treating physician retired.  The hearing deputy had concluded that the employer was allowed to choose the provider, despite the fact that the treating (authorized) physician had made a referral to another physician.  On judicial review, the district court reversed, and concluded that the retiring physician's recommendation of a new physician should be followed.  The court of appeals reverses the finding of the district court.

At the district court level, claimant argued that under a long line of agency precedent, if there is a referral by an authorized treating physician, the physician to whom the referral is made becomes the authorized treater.  The district court accepted that argument.  The court of appeals adopted the deputy's argument that the treating physician was not making a referral but was simply suggesting a replacement physician.  Because the employer had the right to choose the provider of care under 85.27(4), and there was no proof that the doctor selected by the employer was unreasonable, claimant failed to meet his burden of proof for obtaining alternate medical care.  The case turned primarily on the determination that this was a "suggestion" rather than a "referral."

Under the facts of the case, the Spencer decision does not amount to a significant change in the law with respect to alternate medical care.  A distinction can be made between a referral in the normal setting and the suggestion of a physician to take over care when a doctor is retiring.  Nonetheless, it would not be surprising if defendants will now argue that the Spencer decision invalidates the entire line of precedent indicating that a referral by an authorized doctor renders the doctor to whom the referral is made the authorized physician.

Saturday, March 3, 2012

Supreme Court Issues Decision On Suitable Work For Truck Drivers

Neal v. Annett Holdings, 814 NW2d 512 (Iowa 2012) represents the first time the Iowa Supreme Court has addressed issues regarding suitable work for truck drivers, who are often required to perform light duty work at a home terminal which may be hundreds or even thousands of miles away from the claimant's home.  The divided court concluded, in a 4-3 decision, that light duty work offered to a claimant who lived 387 miles from the terminal, and had family in his home state, was not suitable work under the circumstances.

The evidence at hearing demonstrated that when claimant was driving, he was able to return home every weekend and occasionally during the week to his wife and three children.  Under the light duty work program, claimant was able to return only once every other weekend.  The arbitration decision found that the light duty work was suitable and that claimant had a 15% industrial disability for his shoulder injury.  On appeal, the commissioner found that claimant had not been offered suitable work because the work was located 387 miles from his residence.  The industrial disability was increased to 60%.  The commissioner held that "being away from the support of your wife and family, especially while recovering from a serious work injury, is not an insignificant matter."

The district court affirmed the industrial disability finding, but concluded that since 85.33(3) did not define suitable work in terms of its location, the commissioner had erred in concluding the work was not suitable.

In determining the suitable work question, the court noted that the interpretation of 85.33(3) had not been delegated to the commissioner, and thus the court did not owe deference to the agency's interpretation of that provision.  The court first noted that the statutory phrase "suitable work consistent with the employee's disability" was not, as the district court found, satisfied if the work offered was consistent with the employee's disability.  The court noted that the definition was twofold - the work must be both suitable and consistent with the employee's disability.  Because suitable work was not defined in the statute, it fell to the court to define this phrase.  The court undertook a survey of the law in other states, including both workers' compensation and unemployment provisions, as well as workers' compensation treatises and the Restatement of Agency.   The ultimate conclusion from this evaluation was that the geographic location of the work offered was a consideration in determining whether the work was suitable ("in short, it is clear that geographic proximity is commonly considered as a relevant factor in workers' compensation statutes."). 

After concluding this survey, the court found that the commissioner had committed no legal error in concluding that the work offered to claimant had not been suitable.  The court noted that before the injury claimant had ordinarily spent each weekend at home with his family and occasionally returned during the week.  To work in Des Moines, claimant would have had to cut his time at home in half.  Furthermore, the court found that there was no condition of employment that required claimant to agree to relocation as a condition of employment.  The court found that substantial evidence supported the commissioner's position.

On the issue of industrial disability, the court affirmed the 60% award on substantial evidence grounds.  The court found that although claimant could still work as a truck driver, there was other work he could not perform, and he could not perform his prior work (at the time of the injury) as a flatbed truck driver.  The court noted that claimant was relatively older (47) making it more difficult for him to move to another job.  The court noted that earning capacity contemplated more than a determination of what an employee can or cannot do - it includes consideration of claimant's actual employability and the extent to which claimant can realistically compete for jobs.  The court also noted that the commissioner routinely engages in determinations of industrial disability and "has a special expertise in the area that is entitled to respect by a reviewing court."

Justice Mansfield, joined by Justices Cady and Waterman, dissented.  The dissent indicates that the majority had invalidated a "seemingly reasonable temporary rehabilitation and light-duty work program."  The dissent insistent that this program was well-designed to serve the needs of both an Iowa employer and its employees.  The dissent says that the majority "takes an unduly formalistic approach" to the suitable work issue.  The dissent finds that not allowing the employer to set up a program such as that devised by TMC "makes it difficult to have a centralized program."  The dissent also indicates that the majority ignored the specific facts of the case, because his work already took him away from home overnight.  The dissent agreed that the phrase "suitable work consistent with the employee's disability" was a two part test.  Although geography could be considered under the minority view, it should not have been a predominant factor in this case, largely because claimant was a trucker.  The dissent concluded that work it was acceptable for an employee to be made to travel temporarily "so long as that work is offered in good faith to meet the needs of the company and the travel is at the employer's expense."  On the issue of industrial disability, the dissent would also have reversed, because there was no substantial evidence to support the conclusion that there was a 60% industrial loss.

Neal would appear to be emblematic of a different world view between the majority and the dissenters.  While the majority interprets the statute in light of its effect on the employee, the dissent is focused on the needs of the employer.  The statement in the dissent that as long as the work program is set up in good faith to "meet the needs of the company" appears to totally ignore the employee's interest in having any life outside of work.   Furthermore, the dissent appears to indicate that the majority held that all such programs are invalid, which does not appear to be what was said in the majority opinion.  The majority clearly held that the work program run by the company was not suitable in the circumstances of the case.  It may be that Neal presages coming battles over the interpretation of the workers' compensation statute.

Supreme Court Holds That Surgery Itself Is Not Sufficient To Establish Industrial Disability

In Westling v. Hormel Foods Corp., 810 NW2d 247 (Iowa 2012), claimant developed shoulder problems and what was originally disagnosed as a partial rotator cuff tear, which was followed by surgery.  The operative report noted significant fraying of the anterior and superior labrum, as well as inflammation along the subscapularis muscle, but no rotator cuff tear was found.  Claimant was released with no restrictions, and the surgeon concluded that the surgery did not cause claimant to have a permanent impairment.  Claimant subsequently retired.

Dr. Mary Shook performed an IME for claimant, and Dr.Shook attributed pain to arthritis and not overuse.  She concluded that claimant's current symptoms are not from repetitive tasks due to work assignments.  Dr. Shook concluded there was a 2% impairment in claimant's right shoulder and 3% in the left shoulder, both caused by arthritis.  Claimant was found to have no permanent impairment at the commissioner level.  On rehearing before the commissioner, claimant argued that the commissioner needed to decide for 85.34(2) purposes, whether the definition of permanent impairment contained in the AMA Guides was synonymous with the judicial definition of functional disability.  The commissioner did not find persuasive claimant's argument that the surgery would have resulted in some impairment.  The commissioner concluded claimant had failed to demonstrate either permanent physical impairment or a permanent disability caused by the work injury.

The court initially concluded that the interpretation of 85.34(2) was not vested in the commissioner, and thus the commissioner was owed no deference on this point.  Claimant indicated to the court that because the surgery had caused permanent derangement of bodily structures, the commissioner could not find that no permanent physical impairment resulted from this injury.  The court noted that the AMA Guides were "not conclusive evidence on the extent of permanent impairment."  The court also noted that in determining permanent partial disability for unscheduled injuries, "the commissioner must assess whether the injury diminished the injured worker's earning capacity."   Although functional disability is a factor in determining industrial disability, it is not conclusive.

Because the commissioner erred in finding there was no work-related physical impairment (there would have been no surgery without the work injury even though a rotator cuff tear was not found), claimant contended that there was not only a physical impairment but industrial disability.  The court rejected this argument.  First, according to the court, the record did not conclusively establish that the shoulder surgery caused permanent physical impairment.  The surgeon, for example, opined that claimant did not suffer permanent physical impairment because of the surgery.  Because the Guides are not conclusive evidence as to the definition of permanent impairment, the commissioner did not err in finding on the record that Westling failed to prove a permanent physical impairment.  Second, the court found there was no error in finding there was no industrial disability.  This was supported by substantial evidence according to the court.  The Supreme Court therefore affirms the decision of the commissioner.

As a practical matter, when both the treating physician and IME physician conclude that there is no permanent physical impairment as a result of the work injury, it is going to be a difficult proposition to establish either a permanent impairment or industrial disability.  The facts of the case were not such that claimant's position was supported, and the mere fact that there had been a surgery was not enough to salvage claimant's position in light of the fact that his own IME doctor had been unable to relate impairment to the work injury.  On the positive side, the court reaffirms that the AMA Guides are only guides, and are not determinative on the issue of impairment or disability.

Sunday, January 22, 2012

Court of Appeals Affirms Award of Alternate Medical Care

In Tomlinson Cannon v. Whited, No. 1-878 (Iowa App. Jan. 19, 2012), the court affirmed a decision of the agency which had concluded that claimant was entitled to alternate medical care.  Claimant had originally seen Dr. Neiman for his injuries, and later filed an alternate medical care proceeding to allow him to continue care with Dr. Neiman.  During the course of the case, Dr. Neiman recommended that claimant see a podiatrist for a foot injury he had developed.  Defendants had earlier indicated that claimant should see another physician, but claimant declined to see that physician.  On the alternate medical care proceeding, claimant argued, and the agency held, that since Dr. Neiman was the authorized treating physician, the employer was not entitled to interfere with his recommendations for care.  The finding of the agency was consistent with the agency's general rule that the recommendations of the authorized treating physician cannot be contravened by the employer.

Defendants argued on appeal that there was no showing that the care they had authorized was less extensive or inferior than that requested by claimant.  Claimant argued that under agency precedent, if any employer failed to follow the recommendation of an authorized treater, this alone was a failure to provide reasonable treatment.  Defendants also noted that its referral to its doctor came before Dr. Neiman's referral.  The court found that the fact that Dr. Neiman wished to send claimant to a podiatrist rather than a general medicine physician made the timing argument unimportant as the care sought by claimant was more effective.  The court affirmed the decision of the agency.

The court did not explicitly affirm the commissioner's practice of noting that defendants cannot interfere with the care recommendations of the authorized treating physician.  In a footnote, the court noted that the controlling legal standards are those in the statutes and the decisions of the court, not in the commissioner's decisions.  The court did note, however, that the agency could not reverse prior precedent absent credible reasons to indicate a fair and reasonable basis for the inconsistency.  Thus, although it would have been helpful to have an explicit affirmance of agency policy, the result of the court's decision is supportive of that policy, and would require the agency to have cogent reasons for changing that policy.