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

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.