Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at www.nbolawfirm.com or www.iowa-workers-comp.com.

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.

Court Affirms Denial of Review-Reopening Benefits

In Kremenak v. Steiner Construction, No. 1-875 (Iowa App. Jan. 19, 2012), the court affirmed a commissioner decision finding that claimant had not proven his right to additional benefits in a review-reopening proceeding.  The case had previously been remanded for a determination in light of the Kohlhaas case which found that the expectations of the parties (the "contemplation standard") was not a consideration in determining whether review-reopening was appropriate. 

The agency concluded that even without the contemplation standard, claimant had failed to prove his case on review-reopening.  Claimant appealed, arguing that the decision of the commissioner had simply regurgitated the earlier opinion.  The court of appeals found that its earlier decision had not presupposed that simply because  there was an error in applying the contemplation standard, the claimant would prevail.  The agency considered the evidence and concluded, based on the expert testimony and the claimant's testimony, that claimant had not demonstrated he was entitled to additional benefits.  The court of appeals affirmed the denial of benefits. 

Court of Appeals Affirms Reversal of Agency Denial of Benefits

In Cozad v. Russell Corp., No. 1-864 (Iowa App. Jan. 19, 2012), the Court of Appeals issued an interesting decision affirming a decision of the district court, which had reversed the agency action denying benefits.  The remarkable aspect of this decision is the fact that Cozad was decided only weeks after the Supreme Court's decision in Pease, in which the court had indicated its reaffirmance of the importance of substantial evidence in workers' compensation cases.

Cozad involved a fairly straightforward back injury, in which the claimant reported an acute injury at work.  She had previously had a significant history of back problems, but all of the doctors who opined on the issue of causation found that the injury arose out of and in the course of employment and caused a permanent impairment.  The agency found that claimant had suffered only a temporary impairment as a result of the injury.  The decision was based on the fact that the doctors who opined on causation were not fully aware of the past history of back problems.

The district court and court of appeals reversed, finding that this was not a battle of the experts as in Pease because there was no expert testimony finding that claimant's injury did not lead to a permanent impairment.  The court indicated that if the commissioner rejects uncontroverted medical testimony, he must do so with specificity.  The court also noted that it was reluctant to allow the rejection of medical testimony which was the only evidence presented.  Although two of the doctors (Boulden and Nelson) gave opinions only as to the possibility of causation, Dr. Palit clearly found that causation and permanency had been established.  There was said to be no evidence that Dr. Palit was not aware of the severity of claimant's earlier impairment.  Based on these factors, the decision of the commissioner was reversed. 

Commissioner Godfrey Files Lawsuit Against Governor for Reduction of Salary

As previously reported, the Governor reduced Commissioner Godfrey's salary to the lowest level for the position after the commissioner refused to resign, as the Governor had requested.  The commissioner had noted at that time that his term was for six years, and was not a political appointment, as are those of so many other government officials.  The Governor then reduced the salary based on his assertion that under the commissioner's tenure, Iowa's workers' compensation system had suffered.  The commissioner noted that his performance reviews had been exemplary.

On January 11, 2012, the commissioner filed a lawsuit against the governor and the state, alleging that defendants had engaged in defamation, harassment, sexual discrimination and extortion.  The documents can be found at http://blogs.desmoinesregister.com/dmr/index.php/2012/01/11/iowa-workers-compensation-commissioner-files-1-million-lawsuit-against-the-state/.


The state tort law claims relate to the manner in which the commissioner was treated in the press, with his job performance being impugned.  The extortion claims are based on the fact that the governor's office attempted to force the commissioner to resign by reducing his salary.  Also included are claims that the actions taken against the commissioner were based on his sexual orientation, as the commissioner is gay.  Defendants generally denied the claims, and alleged in the press that they did not know that the commissioner was gay.  

Regardless of the outcome of the lawsuit, the actions that have taken place unnecessarily politicize the workers' compensation system, and make it more difficult to assure that the work of the commissioner's office can be completed as efficiently as could be expected.  Had the legislature wished the commissioner's office to be subject to political forces such as these, it would not have made the commissioner's term independent of that of the governor.  The commissioner should be applauded for not bowing to pressure and continuing to perform the activities of the office to which he was appointed.

Court of Appeals Affirms Decision Finding Tinnitus Related to Work; Credits Dr. Tyler Over Dr. Hoisington

The case of Square D Company v. Plagmann,No. 1-869 (Iowa App. Dec. 21, 2011) addressed an issue that does not appear frequently before the appellate courts - the question of tinnitus.  In Plagmann, the court concluded that the decision of the deputy commissioner who found that claimant's tinnitus was related to work was supported by substantial evidence.

Dr. Tyler concluded that claimant's work with Square D had resulted in hearing loss and tinnitus, and provided a 4.5% impairment rating.  Dr. Tyler also found, incorrectly, that claimant had not worn hearing protection until he had worked with the employer for fourteen years (claimant had testified that even though there was no hearing protection program, he had worn hearing protection).  Dr. Hoisington concluded that claimant's hearing loss and tinnitus were not related to his work, in part because his hearing loss continued to worsen after he left work.  The deputy who heard the case sided with Dr. Hoisington, but refused to allow a late report submitted by Dr. Hoisington.  On appeal, the deputy deciding the case found that Dr. Tyler's experience and credentials were superior to those of Dr. Hoisington, and concluded that claimant's injuries had led to a 10% industrial disability.

On appeal, the employer appealed the finding that hearing loss and tinnitus were related to employment, the extent of disability and the failure to admit Dr. Hoisington's late submitted report.  On the main question, the court found that the appeal decision was supported by substantial evidence, notwithstanding the fact that Dr. Hoisington's report may have been based on a more accurate reading of the history.  On the extent of disability issue, the court found although claimant had retired from Square D and moved to Florida, he was looking for work there and had not disengaged from the workplace. 

On issue of the exclusion of the Hoisington report, it is somewhat unusual that the deputy excluded the report, which was submitted two weeks before the hearing.  The experience of most practitioners is that such a report would not have been excluded.  Nonetheless, in this case the report was excluded, and the court indicated that there was no abuse of discretion in excluding the report. 

Friday, January 6, 2012

Supreme Court Reverses Court of Appeals on Substantial Evidence Issue

In one of the more detailed discussions of substantial evidence in workers' compensation cases, the Iowa Supreme Court, in Cedar Rapids Community School District v. Pease, 807 NW2d 839 (Iowa 2011), reversed the decision of the Iowa Court of Appeals that had denied benefits to claimant.  Pease is a classic example of the weighing of the medical evidence that the commissioner must do in reaching a conclusion.  In Ms. Pease's case, the agency concluded that claimant's claim of altered gait, back injuries, and depression were supported by the evidence, and awarded permanent total disability.  The district court affirmed on these issues, but the court of appeals reversed, finding that substantial evidence did not support the findings of the agency.

Ms. Pease's original injury was to her right ankle, and she complained that this injury caused her to have an altered gait, contributing to injuries to her back and left ankle.  She also alleged that as a result of these injuries, she suffered from depression.  Pease presented testimony from physicians indicating that her back problems had become worse as a result of her ankle injury, that she had developed depression as a result of the injury, and that she was no longer employable.  Defendants offered evidence that claimant's injuries were less substantial than claimed, and offered evidence that claimant's depression was not related to the work injury.  The psychiatrist who indicated that the depression was not work related also asserted that claimant was malingering. The decision of the court of appeals was based on its belief that the reliance of Dr. Miller, claimant's physician, was misplaced because the history provided by the claimant was flawed, and because surveillance undermined claimant's credibility.

The Supreme Court began its opinion by noting that "our decision is controlled in large part by the deference we afford to decisions of administrative agencies."  The court noted that medical causation was a question of fact that was "vested in the discretion of the workers' compensation commission."  The court noted that its review of the record was to be "fairly intensive" and indicated that the agency's findings of fact should not simply be rubber stamped.  The court then stated that evidence was not insubstantial merely because different conclusions could be drawn from the evidence.  Evidence may be substantial even though the court may have drawn a different conclusion from the fact finder.  The task of the court is "to determine whether substantial evidence, viewing the record as a whole, supports the findings actually made."

In applying this standard to the facts before them, the court noted that the real issue was the extent to which expert testimony constituted substantial evidence in a workers' compensation case.  The court noted that medical causation was "within the domain of expert testimony" and that the "commissioner, as trier of fact, has a duty to weigh the evidence and measure the credibility of witnesses."  Although expert opinions are not necessarily binding on the commissioner if based on an incomplete history, the determination of whether to accept or reject such testimony is "within the 'peculiar province' of the commissioner."

The court of appeals had rejected the opinions of Dr. Miller, one of claimant's experts, on the grounds that he miscited another doctor's opinion and relied on a "questionable" history provided by the claimant.  The Supreme Court noted that the agency had found claimant's testimony credible and further noted that credibility determinations are within the domain of the commissioner as trier of fact.  The court noted that Dr. Miller had not relied solely on claimant's history, but had performed a physical exam and reviewed medical records concerning her case.  The court also noted that Dr. Miller's opinion did not change after seeing video surveillance footage.

With respect to video surveillance, the court noted that this evidence was hardly a smoking gun.  The court cited to Professor Larson in noting that surveillance evidence "must be used with great caution."  The court cited to decisions from other jurisdictions which pointed to the limitations of surveillance evidence, largely based on the fact that it demonstrates only a limited time period of activity, and not the whole of claimant's activity or inactivity.  Ultimately, the court again found that since the commissioner had rejected the contention that the surveillance undercut claimant's credibility, substantial evidence supported the conclusions of the commissioner.

The court also affirmed the decision of the agency on substantial evidence grounds relating to allegations of depression.  The court noted that there was evidence on both sides of this issue and indicated that the commissioner was free to rely on either party's witness, and the court was "not at liberty to accept contradictory opinions of other experts in order to reject the finding of the commissioner."  The court noted that the decision of the commissioner was sufficiently detailed to show the path the agency took through the conflicting evidence, citing Terwilliger and Catalfo.

Other issues were also presented by the parties.  The court indicated that the commissioner had performed a de novo review. The court also found that the permanent total disability finding was supported by substantial evidence.  The court rejected the argument of the employer that Pease's other injuries prevented her from returning to employment, not her work injuries.  This, according to the court, was an attempt to resurrect an apportionment claim which had not been preserved because it had not been raised before the deputy.  Finally, the court found that defendants were responsible for payment of certain medical bills.

Although Pease addresses issues of substantial evidence that have been discussed in detail in the past, the court makes clear that in any case in which the question involves a battle of the experts, the decision of the commissioner will be affirmed.  Practitioners have long attempted to find a legal issue for the courts to decide so that the court's judgment could be substituted, and Pease will encourage this trend, and hopefully make it less likely that cases that are premised on the facts will not be taken up on judicial review.  The discussion of surveillance in the case is must reading for any practitioner who is faced with either attempting to introduce surveillance video or defend against such a video.