Neifert, Byrne & Ozga, P.C.

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

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

Monday, July 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.