Neifert, Byrne & Ozga, P.C.

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

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

Wednesday, December 18, 2013

Court of Appeals Affirms Denial of Permanent Total Disability, Tinnitus Claim

In McCarthy v. Jeld-Wen, Inc., No. 13-0636 (Iowa App. Dec. 18, 2013), the Court of Appeals affirmed the commissioner's findings that claimant was not permanently and totally disabled due to a respiratory injury and also affirmed the decision that claimant's tinnitus did not arise out of his employment.  Claimant was awarded an 80% industrial disability by the commissioner and was also awarded healing period benefits. The court affirmed in the face of claimant's appeal and defendants' cross-appeal.

Claimant was exposed to isocyanates at work, and although defendants admitted this fact, they claimed he was not entitled to healing period or permanency benefits.  Defendants denied claimant's tinnitus.  

On the tinnitus question, the court concludes that substantial evidence supported the commissioner's finding without discussion, citing Rule of Court 21.26(1)(a), (b), (d) and (e). On the question of healing period, defendants question whether claimant was capable of performing substantially similar employment which would have ended the temporary period.  The commissioner had concluded that claimant was not capable of performing substantially similar employment, finding that he could no longer perform his job at Jeld-Wen given his chemical exposures.  Claimant's testimony and the testimony of two doctors was that claimant had continued breathing problems even without chemical exposures.  Dr. Hartley testified that claimant could go back to any job that did not have isocyanate exposures.  The district court affirmed the award of healing period benefits, and the court of appeals did the same, on substantial evidence grounds.  The court also noted that when claimant was laid off, he sought out work, and there was no evidence he refused to perform substantially similar work.  

On claimant's appeal, the court found, with limited comment, that the decision that claimant had an 80% industrial disability was supported by substantial evidence.  The court cited Rule 21.26.

Judge Vogel dissented on the substantial evidence question concerning temporary benefits.  She did not find substantial evidence that claimant was unable to return to his work due to his injury.  She stated that the record was devoid of a medical opinion declaring claimant could not work.  She further indicated that "without a definitive expert report indicating McCarthy could not work as of July 31, 2009" the agency erred in commencing healing period benefits on that date.  The judge indicated that the statutory language of section 85.34, which indicates a healing period is paid "beginning on the first day of disability after the injury" requires such a definitive expert report, although there are not cases explicitly saying as much.  

Monday, December 9, 2013

Court of Appeals Addresses Issues Concerning Commencement of Permanent Total Disability Benefits, Interest

In Searle Petroleum, Inc. v. Mlady, No. 12-2008 (Iowa App. December 5, 2013), the Court of Appeals addressed issues concerning substantial evidence and the appropriate commencement date for permanent total disability benefits and interest in a review-reopening proceeding.  The agency had concluded that claimant had demonstrated that he was entitled to additional benefits on review-reopening, and awarded permanent total disability.  The agency had indicated that benefits commenced on the date of the injury.

In the initial decision, the commissioner had concluded that claimant had an industrial disability of 80%.  On review reopening, the agency found that given claimant's physical condition, he had been unable to secure employment and also noted that there had been no improvement in the claimant's employability. The commissioner affirmed, finding that there had been a deterioration of claimant's condition.  The agency found that benefits commenced as of the date of the injury, with credit for amounts previously paid.

The court initially addressed an issue that had not been presented to the district or appellate courts - whether claimant had committed fraud and perjury at the hearing.  The court found that the remedy for this allegation was to file a petition with the agency within one year of the decision under IRCP 1.1013.  Since the employer had not done so, the court could not consider the newly discovered evidence.  On another tangential issue, the court indicated that the district court had accepted verbatim the judicial review decision authored by claimant's counsel.  The court indicated that although this practice was not encouraged, it did not apply a separate standard of review when the the district court issued such an opinion.

The court first found that substantial evidence supported the commissioner's findings that claimant's condition had deteriorated.  The court noted that the agency had based this on claimant's testimony, and that the only piece of medical evidence addressing this issue had indicated that there was no worsening of claimant's condition.  The court noted that there was no requirement that medical evidence is necessary to demonstrate a worsening of claimant's condition, citing ENT Assocs. v. Collentine, 525 N.W.2d 827, 830 (Iowa 1994). The court also found that the change in claimant's condition was related to his work injury.  The court noted that the injuries complained of were the same injuries found to be work related at the initial hearing, and further stated that there was no evidence of a subsequent injury that could have caused the increased symptomatology.  Finally, the court found that the finding that there had been a change in claimant's economic condition was not "irrational, illogical or wholly unjustifiable."

As noted above, the agency had concluded that claimant's benefits commenced as of the date of injury, with the employer receiving credit for the benefits it had paid.  The court, citing Verizon  Bus. Network Servs. v. McKenzie, No. 11-1845, 2012 WL 4899244 (Iowa App. Oct. 17, 2012), concluded that the date of commencement for a review-reopening case is the date on which the review-reopening petition was filed.  Note that in this case, this did not make a difference because claimant was still receiving the 80% industrial disability award at the time the review-reopening petition was filed.  In may cases, however, that will not be the situation.  The court noted that in McKenzie, the court had noted that in Dickenson v. John Deere Products Engineering, 395 N.W.2d 644, 646 (Iowa App. 1986), the court had concluded that interest payments were to commence on the date of the filing of the petition.  The court concluded that since interest payments commenced on this date, benefits should also commence on this date, finding that it was implicit in the holding in Dickenson that weekly benefits cannot be due before a review-reopening petition is filed.  Note that this is inconsistent with the commissioner's general rule that in a review-reopening petition, benefits commence as of the end of the earlier award.  See Pena v. Tyson Fresh Meats, Inc., No. 5008361 (App. Nov. 20, 2006).

The court also addressed a cost issue, finding that an IME was not appropriate because defendants had not obtained a medical opinion.  The court, on another cost issue, found that vocational costs were appropriately awarded under 876 IAC 4.33.

Wednesday, November 20, 2013

Court of Appeals Affirms 40% Industrial Disability Award

Smithway Motor Xpress v. McDermott, No. 12-2296 (Iowa App. Nov. 20, 2013) is another in a line of cases where the Court of Appeals affirms the decision of the agency on substantial evidence grounds.  Claimant suffered a back injury while working for the employer.  He wished to leave his employment as a truck driver and was required to obtain a DOT physical.  He did not mention his back problems to the physician at the DOT physical.  He continued to have back problems and had continued treatment for those problems.  Dr. Neiman provided causal connection for the injury, but the hearing deputy found that a causal connection had not been established.  The commissioner reversed on appeal and provided a 40% industrial disability award.

The court finds that the question of causation presents a mixed question of law an fact, adjudicated by the abuse of discretion standard.  The court must consider whether the law was applied in an unjustifiable, irrational or illogical manner.  The court notes that the only doctor's report on causation finds that causation had been established.  Since no doctor concluded that claimant's symptoms were unrelated to the workplace injury, the commissioner was entitled to relay of this evidence.  Even if claimant was partially dishonest in explaining his medical history to the doctor, it does not follow that this opinion should be rejected in its entirety.  The decision to accept the opinion was within the commissioner's discretion.

On industrial disability, claimant was terminated from his employment with the second employer because of his restrictions, and he had a 14% impairment rating.  He cannot return to truck driving in the unrestricted way he performed this activity in the past.  The court found the 40% industrial disability award was supported by substantial evidence.  The court concludes that the commissioner considered each piece of relevant evidence in reaching his conclusions, and that there was no error in the decision making process employed by the commissioner.

Friday, November 15, 2013

Supreme Court Concludes That Undocumented Workers Are Entitled to Workers' Compensation Benefits

In Staff Management v. Jiminez, 839 NW2d 640 (Iowa 2013), the Iowa Supreme Court addressed an issue that they had elliptically addressed in the past - the right of undocumented workers to receive workers' compensation benefits.  The court concluded that Iowa's statute did not exclude undocumented workers from coverage and also found that the Immigration Reform and Control Act of 1986 (IRCA) did not act to preempt state laws governing workers' compensation.  Three amicus curiae briefs were filed in Jimenez by the Workers' Injury Law and Advocacy Group, the Iowa Association of Justice's Workers' Compensation Core Group and the National Employment Law Project.  Jamie Byrne of Neifert, Byrne and Ozga wrote the amicus brief for the Core Group.

The factual situation in Jimenez involved a worker who was documented at the time she began employment, but who became undocumented during the time that she worked for the employer.  She was injured at work, and found to be entitled to a running healing period of benefits.  The primary issue addressed by the court was whether an undocumented worker could receive benefits under Iowa's workers' compensation law. Other issues addressed by the court included whether substantial evidence supported the running award of healing period benefits, whether the commissioner can award healing period from a date preceding the parties stipulation as to when healing period begins and whether healing period benefits could be awarded during a period when claimant was still working.  The award of benefits was affirmed with the exception of the issue of whether healing period benefits were properly awarded when claimant was working.  The court reversed and remanded this issue to the agency.

Claimant suffered a hernia while working for the employer on September 12, 2007 and subsequently had surgery.  She returned to work without work restrictions on December 26, 2007 but was unable to do her normal job.  On January 22, 2008, the employer terminated claimant, allegedly because she did not have authorization to work in the US. The employer had known of this problem since August of 2007.  Following the termination, defendants did not provide further medical care and indicated that because she was no longer employed they could not provide medical assistance.  There was contradictory medical evidence concerning the question of whether claimant had reached maximum medical improvement, with two doctors indicating that claimant needed another hernia surgery.  Both the arbitration and appeal decisions concluded that claimant was entitled to a running healing period of benefits.

The court first dealt with a preservation of error issue and found that the employer had preserved error by raising the issue of claimant's immigration status before the agency on appeal.  The court held that if the issue is presented on appeal and both parties have the opportunity to address the issue, error is preserved.

The employer raised three issues which it asserted prevented claimant from receiving benefits because of her status as an undocumented worker: 1) whether the workers' compensation act included undocumented workers in its definition of employee; 2) whether the act does not apply because a contract of service between an undocumented worker and her employer is void; and 3) whether federal law preempts the availability of healing period benefits under the workers' compensation act.  The court concluded that none of these assertions prevented claimant from being entitled to benefits.

The court first noted that section 85.61(11) provides a broad definition of employee for purposes of the act (an employee "is a person who has entered into the employment of, or works under contract of service . . . for an employer").  A person who meets this definition is an employee covered by the workers' compensation act.   The court held that given the language of the act, the legislature did not mean to exclude undocumented workers from coverage under the Act.

The court also rejected defendants argument that a contract of service between an employer and undocumented worker was void and that there was no contract of service.  Defendants argued that such a contract was contrary to IRCA or, in the alternative, had an illegal purpose.  Relying on the decision of the Connecticut Supreme Court in Dowling v. Slotnik, 712 A.2d 396, 408-409 (Conn. 1998), the court held that if undocumented workers were not covered by workers' compensation acts, "employers would have a financial incentive to hire undocumented workers because the employers could avoid liability under the Act." The court noted that the purpose of IRCA was to inhibit employment of illegal workers, not to diminish labor protections for undocumented workers.  The court also rejected the argument that the contract of hire was illegal, noting that the general rule was that a contract is illegal only if the contract has the purpose of violating the law.  The enforcement of the contract did not undermine the policy purposes of IRCA.

Finally, the court concluded that IRCA did not preclude the availability of healing period benefits.  Again citing to Dowling, the court concluded that the express preemption provision in IRCA only prohibited civil sanctions, and that workers' compensation payments were not civil sanctions.  Therefore, there was no preemption.  Healing period benefits provide compensation for a work related injury, not a sanction against the employer.  The court also distinguished cases which held that back pay and vocational benefits were preempted by IRCA.  The court found that back pay was not involved, and that healing period benefits were distinguishable from both back pay and vocational benefits.  Healing period benefits had the broad purpose of awarding compensation for the disability produced by the physical injury, and this was not preempted under IRCA.

Leaving the overarching issues, the court concluded that substantial evidence supported the commissioner's finding that claimant was entitled to a running award of healing period benefits.  The court also found that the commissioner was justified in choosing a date different than the stipulated date between the parties.  The court found that based on the facts, which included a pre-hearing colloquy concerning the issues and a discussion as to whether one of the issues was the start date for healing period benefits.  In this situation, according to the court, the parties amended the hearing report during the colloquy and allowed for an earlier start date for healing period benefits.  The court found that the agency erred in awarding healing period benefits when she was working, noting that claimant did not claim that she received less than her full wage during this period.

Justices Mansfield and Waterman concurred specially.  They would hold that when an employer offers suitable work to an employee, and that employee is unable to engage in that work because of their immigration status, this amounts to "a refusal of suitable work" justifying denial of benefits.  On the facts of this case, there was not enough evidence to conclude that claimant refused an offer of suitable work, but on a "proper record, not present here, I would sustain the employer's argument."  The Justices would hold that when an employer offers suitable work conditioned on obtaining lawful status and the employee is unable to accept the position because of their status, this would amount to a refusal of suitable work.

With the Jimenez decision, Iowa joins the majority of courts which conclude that immigration status is not a bar to the provision of workers' compensation benefits. This would appear to certainly be true of permanency benefits.  With respect to healing period benefits, the concurrence will likely lead to new challenges, as employers offer work to undocumented workers after an injury and condition that work on obtaining lawful status.  Undoubtedly, that next chapter will be written in the near future.

Wednesday, November 6, 2013

Court Of Appeal Affirms Award of Impairment Rating in Scheduled Member Case In Face of Argument That Commissioner Did Not Adequately Explain Its Impairment Determination

In Horn v. Cummins Filtration-Lake Mills, No. 1300351 (Iowa App. Nov. 6, 2013), the Court of Appeals affirmed a decision awarding claimant the 6% impairment rating found by Dr. Kuhnlein, for an injury to the arm.  Three impairment ratings were presented at hearing, a 10% rating from Dr. Formanek, a 12% rating from Dr. Adams and a 6% rating from Dr. Kuhnlein.  The deputy awarded the 6% rating.  Claimant filed a rehearing application contesting that the deputy had used the wrong legal standard and noting that numerous aspects of the AMA Guides were "faulty and unscientific."  The rehearing petition was not answered and was deemed denied.  The ruling was affirmed on appeal.

On rehearing at the commissioner level, claimant argued that the determination of functional disability was not merely related to the impairment ratings.  The rehearing application was denied, and indicated that the arguments of counsel had been considered prior to the rendering of the Appeal Decision.  On judicial review, the court concluded that the agency's determination was supported by substantial evidence, specifically the report of Dr. Kuhnlein.  Claimant filed a motion to enlarge, arguing that the AMA Guides only provided ratings to certain impairments, and that the commissioner was required to consider these arguments.

The Court of Appeals, citing to Sherman v. Pella Corp., 576 N.W.2d 312, 322 (Iowa 1998), notes that the determination of functional disability is not limited to the ratings of impairment.  The Guides, according to Sherman, may be used for determining the disability of a scheduled member.  The court finds that the agency considered both medical and non-medical testimony, noted that the loss of use of a scheduled member may exceed the impairment ratings, and specifically acknowledged that claimant's testimony may be considered.  The court finds that although the discussion of the adoption of Dr. Kuhnlein's rating was "perfunctory at best," was "not so completely devoid of any finding that we have nothing to review."  The court finds substantial evidence to support the agency's determination.

Friday, October 4, 2013

Court Affirms Dismissal of Alternate Medical Care Proceeding Without Hearing

Cooksey v. Cargill, Inc., No. 12-1729 (Iowa App. Oct. 2, 2013), is a case in which claimant filed three alternate medical care proceedings against the employer.  In the first two proceedings, the employer agreed to provide the care sought by claimant and that care was provided.  In the first proceeding, a hearing was held, but the parties came to an agreement that claimant could see Dr. Abernathey and claimant would voluntarily dismiss his claim for alternate medical care.  In the second proceeding, claimant voluntarily dismissed before hearing because defendants agreed to provide the care requested.  In the third proceeding, the employer denied liability for the claim, after getting reports from two doctors questioning causation, and the alternate medical care hearing was dismissed under 876 IAC 4/48(7).

Claimant, after having the AMC petition dismissed, filed a request for a ruling on the petition, based on due process grounds and judicial estoppel.  The deputy issued the final decision of the agency on this ground, and the district court affirmed the agency action.

On the estoppel issue, the court of appeals concludes that judicial estoppel was only available when the party's inconsistent position, in this case the acceptance of the claim, was "judicially accepted" in the earlier decision.  Citing Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 197 (Iowa 2007).  The court noted that without such judicial acceptance, there was no risk of inconsistent, misleading results.  Claimant argued that under Winnebago Industries v. Haverly, 727 N.W.2d 569 (Iowa 2006), judicial estoppel applied.  The court disagreed, noting that in Haverly, there had been a judicial determination (an AMC decision) that the employer was responsible for providing care, and that the employer had admitted as much.  The court found Hedlund more analogous.  In that case, because the agency had not taken a position on the employer's liability, judicial estoppel did not apply.  Similarly, in this case the court of appeals found that because the agency had never issued a decision, judicial estoppel could not apply.

The claimant also urged that the agency's interpretation denied due process.  The court concludes that claimant did not lose a property because he did not have such a property interest because benefits were not being terminated.  Moreover, since Cooksey still had the opportunity for an arbitration hearing, he was not losing the right to hearing on the overall claim.  The action of the agency was affirmed.

The word to the wise from Cooksey is that if an alternate medical care proceeding is filed, it is prudent to from a claimant's standpoint obtain a judicial ruling from the agency on the issue of medical care rather than voluntarily dismissing a claim because the employer agrees to provide care.  It is likely that Cooksey will result in many more alternate medical care claims being pursued to conclusion before the commissioner.

Court of Appeals Affirms Award Providing 60% Industrial Disability, Finding Claimant Credible and Awarding Costs

In JBS Swift & Co. v. Rodriguez Contreras, No. 13-0172 (Iowa App. Oct. 2, 2013), a case handled by Jamie Byrne of Neifert, Byrne &Ozga, the court of appeals affirms the findings of the commissioner concluding that claimant was credible, increasing the industrial disability award from 20 to 60% and imposing costs against the employer.

At the arbitration level, the deputy had indicated that the claimant was mostly credible.  The employer argued that because the deputy had found that claimant was "credible for the most part," the entire appeal decision was subverted.  The court of appeals noted that the finding that claimant was mostly credible was made because the deputy indicated that many of the questions posed were leading questions.  The court found that "read in context, any doubt expressed by the deputy involves the form of questioning rather than the resulting answers provided by Contreras," and concludes that the credibility finding was supported by substantial evidence.  The court noted that it typically accorded deference to the agency's decision on witness credibility.

The arbitration decision had awarded claimant 20%, which was increased by the commissioner to 60%.  The employer argued that the commissioner erred by relying on Dr. Stoken over Drs. Nelson, Ledet and Acosta in reaching its result.  The court found that the agency had considered the reports of Drs. Nelson and Ledet and noted that they were found unreliable by the commissioner.  They noted that Dr. Acosta had not commented on permanency.  Thus, although the commissioner found the employer's doctors less reliable than the opinions of Dr. Stoken, it was untrue that the commissioner had failed to consider them.

Defendants also indicated that Dr. Mooney should have been relied on over Dr. Stoken, but claimant and her friend testified at hearing that during one of his evaluations, he grabbed the elastic of her pants and snapped the elastic against her sore back.  They also testified that Dr. Mooney had refused to allow the friend into the room and had yelled at claimant in English while giving an injection.  The court found that the commissioner's discounting of Dr. Mooney was appropriate.  The employer argued that because claimant had not sought alternate medical care, she could not raise the credibility of Dr. Mooney's treatment.  The court rejected this argument, stating:  "Simply because the claimant does not write to complain of the care provided, and to seek alternate care, does not equate being fully satisfied with the care provided.  We refuse to assume any such consequence was 'implicitly' intended by the legislature.  Finally, defendants argued that because they had more doctors supporting their position, Dr. Stoken shouldn't have been credited.  The court rejected this argument.

On the increase of the award from 20 to 60%, the court noted that there was substantial evidence to support the findings of the commissioner.  The court noted that claimant had limited English-language skills, was precluded from performing many of her pre-injury jobs, and did not have an option for retraining.  The court considered the opinions of the vocational experts in the case and found that the commissioner was entitled to rely on the opinions of Barb Laughlin.  The court also rejected the argument that the opinion of VE Mailey that claimant lost 45-50% of her earning capacity was a ceiling for industrial disability.

The final issue, and one of importance for practitioners, is that the court affirmed the agency's decision that the entire cost (travel, interview time, research time) of the vocational expert could be assessed as a cost under rule 4.33(6).  The employer had argued that only the time spent writing the report was compensable.  The court concluded that the commissioner "at his discretion, could determine that all of the fees incurred in obtaining Ms. Laughlin's report were 'reasonable' and tax them to Swift."

The Contreras case is another example of the deference shown to the agency in factual matters, but also delves into issues of costs and credibility in interesting ways.

Thursday, October 3, 2013

Court of Appeals Affirms Denial of PTD Benefits, Award of HP benefits on Substantial Evidence Grounds

Claimant was exposed to chemicals while working with his employer, Jeld-Win, Inc.  He developed a sensitivity to those chemicals, missed work because of this, and ultimately had to leave his employment with the company because of his injury.  The agency concluded that claimant had suffered a 25% industrial loss rather than the permanent total disability urged by claimant.  The agency also concluded that claimant was entitled to healing period benefits.  In Deckert v. Jeld-Wen, No. 13-0288 (Iowa App. Sept. 18, 2013), the court of appeals affirmed the decision of the commissioner.

The court found that the agency had provided a detailed explanation for the determination that claimant had suffered only a 25% industrial loss.  The agency had noted that the only restriction on claimant was not being exposed to isocyanate or diisocyanates in the environment.  Claimant had rejected an offer by the company to move to one of their other plants where he would not be exposed.  According to the court, the agency had discussed the conflicting vocational evidence.  Because the findings were supported by substantial evidence, the court affirmed the award of 25% industrial disability.

On healing period, the court affirmed the award of healing period benefits, which had found that claimant was entitled to healing period until he had reached maximum medical improvement.  The court affirmed on substantial evidence grounds.  The court noted that even if this was seen as a challenge to the interpretation of the statute by the agency, there was no error in that interpretation.

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

Zaglauer v. Mercy Medical Center, No. 13-0160 (Iowa App. Sept. 18, 2013), represents another in a long line of cases where the court of appeals affirms the decision of the agency on substantial evidence grounds.  Claimant had tripped at work, causing a torn rotator cuff as well as CRPS, according to some doctors.  At arbitration hearing, claimant was provided with a 15% industrial award for the shoulder injury, but was denied benefits for depression and CRPS, because she had not shown these conditions arose out of her employment.  This finding was affirmed by the commissioner and the district court.  The agency found that claimant was not credible.

The court finds that substantial evidence supported the conclusion that claimant's depression and CRPS had not arisen out of her employment.  The court noted that the doctors who opined her depression and CRPS were causally related to her injury admitted to not having her full history.  The court noted that the commissioner was responsible for determining how much weight expert testimony carries, and concluded it was well within the commissioner's discretion to rely on the opinion of Dr. Pollack over Dr. Bansal.  The court also concluded that credibility determinations were within the province of the commissioner.

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

In Sharp v. University of Northern Iowa, No. 12-2326 (Iowa App. Sept. 18, 2013), the agency had concluded that claimant had failed to prove medical or legal causation and failed to give notice of her injuries.  The court, without elaboration, affirmed the decision of the agency under Iowa R. App. P. 6.1203.

Court of Appeals Reverses PTD Decision, Finding That Substantial Evidence Did Not Support Decision of Agency

In a case which runs counter to most of the cases that appear in these synopses, the Iowa Court of Appeals in Mike Brooks, Inc. v. House, No. 13-0303 (Iowa App. Aug. 21, 2013), held that the decision of the agency was not supported by substantial evidence.  This despite the fact that there was no medical evidence supporting the contention of defendants.  Judge Vaitheswaran dissented and would have affirmed the case on substantial evidence grounds.

Claimant had suffered an admitted injury in March of 2007.  Claimant returned to work, but testified that he continued to experience significant back problems while working.  In January of 2008, he reported to the company doctor that he had pushed a door at work and had felt increased pain as a result of that incident.  He was seen by a surgeon, Dr. Hatfield, who ultimately performed three surgeries.  Claimant returned to work briefly following the first surgery but was unable to continue working as a truck driver.

Dr. Hatfield provided reports indicating that claimant's surgeries and disability was attributable to the March injury.  Dr. Kuhnlein, who provided an IME, came to the same conclusion.  In his report, Dr. Kuhnlein specifically addressed the question of whether the January door opening incident had changed the course of causation, and concluded that it had not.  Dr. Kuhnlein stated that the door opening incident was a sequella of the original incident.  Defendants presented no medical evidence to support their theory that the door opening incident was the cause of claimant's back problems.

The arbitration and appeal decisions concluded that claimant's injury arose out of and in the course of his employment, and specifically out of the March 2007 incident.  Permanent total disability benefits were awarded.  The award was affirmed by the district court.  The court of appeals reversed, finding that Dr. Hatfield was not aware of the door opening incident, and that Dr. Kuhnlein had relied on Dr. Hatfield's flawed report in coming to his conclusions.  Accordingly, the court reversed and remanded the case to the agency for further proceedings to determine claimant's industrial disability prior to the time of the January door incident.

An application for further review was filed at the Supreme Court.  Claimant in the case was represented by Martin Ozga of Neifert, Byrne & Ozga.  NOTE:  Further review was accepted by the Supreme Court and the decision of the Court of Appeals was reversed.  Mike Brooks v. House, 843 N.W.2d 885 (Iowa 2014)

Wednesday, October 2, 2013

Court of Appeals Affirms Case on Substantial Evidence Grounds

In Quaker Oats v. Farar, No. 13-0195 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the commissioner's award of healing period, PPD and medical benefits, finding that the decision of the agency was supported by substantial evidence.  Defendants had argued that claimant's knee problems were due to arthritis rather than his work, and that the injury did not arise out of and in the course of employment.  The court noted that although the weight of the medical evidence was to the contrary, the agency held that claimant's injury had arisen out of and in the course of employment, and noted that the opinion of Dr. Manshadi was sufficient to support a finding of causation.  The court also found that substantial evidence supported the fact that claimant's DVT had arisen as a result of the knee injury and knee replacement, although again there was conflicting evidence.  The employer had also asked for the case to be remanded to the agency to make a more complete record.  The employer argued that the commissioner had not considered the reports of its doctors.  The court, citing Swiss Colony v. Deutmeyer, noted that when a record was inadequate, remand was typically not appropriate, and the issue would be decided adversely to the party bearing the burden of proof. In this case, however, the court found that the agency had considered, but rejected the doctors' opinions proferred by defendants, and that the record was adequate and remand unnecessary.

Court of Appeals Affirms Agency Decision on Substantial Evidence Grounds

In Cardinal IG Company v. Crozier, No. 13-0149 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the decision of the district court without opinion pursuant to Iowa R. App. P. 6.1203.  The court found that action of the agency was supported by substantial evidence.

Court of Appeals Affirms Decision Without Comment

In Hy-Vee v. Schmit, No. 12-2294 (Iowa App. Aug. 7, 2013), the court of appeals concluded that the decision of the agency was supported by substantial evidence and affirms the action of the agency and district court without opinion.  Iowa R. App. P. 6.1203(a), (c), (d).

Monday, July 29, 2013

Court of Appeals Affirms Decision of District Court Without Opinion

Wal-Mart Stores, Inc. v. Hancock, No. 13-0197 (July 24, 2013) was a case in which defendants argued that motions to compel and motions in limine should not have been denied and also argued the claimant should not have been awarded temporary or permanency benefits.  The court concluded that the district court's ruling should be affirmed without opinion, based upon the thorough and well-reasoned opinion of the district court.  IRAP 6.1203.

Court of Appeals Affirms Permanent Total Disability Award, But Caps Deposition Fee at $150.00

Whirlpool Corp. v. Davis, No. 12-1962 (Iowa App. July 24, 2013) involved a finding by the commissioner that claimant was permanently and totally disabled.  The court affirmed this aspect of the case on substantial evidence grounds, and also concluded that reimbursement for a deposition was statutorily limited to $150.00.

Claimant suffered a back injury, resulting in a 7% impairment rating from defendants' doctor, Dr. Mark Taylor.  An IME from Dr. John Kuhnlein indicated that he could not say, within a reasonable degree of medical certainty, that the current back problems were related to the original work injury, although the back problems were related to one of the incidents that had occurred at Whirlpool.  He provided a 5% impairment rating.  Claimant ultimately left his job and was found eligible for social security disability benefits.

The deputy found that claimant was credible, and credited the findings of Dr. Taylor, Dr. Kuhnlein and Dr. Buresh.  He rejected the findings of Dr. Momady, because he had apparently changed his mind about causation when he found claimant had previously treated with a chiropractor, even though he had not seen the chiropractor's notes.  Permanent total disability was awarded, and affirmed on appeal.

On judicial review, the district court denied a stay to Whirlpool.  The district court found that substantial evidence supported the agency's findings, although the court found that two of eight visits with Dr. Buresh were not related to his back problems.  Whirlpool appealed, arguing that claimant was not permanently and totally disabled, and that the commissioner erred in awarding costs and in denying it request for stay.

The court discussed the permanent total disability finding only briefly, to note that the findings of the commissioner were supported by substantial evidence, as discussed in the district court decision.  On the medical expense issue, the court concluded that because Dr. Momady had indicated that future treatment would not be covered by workers' compensation, claimant was entitled to seek treatment elsewhere under Bell Bros. v. Gwinn.  Because Dr. Buresh's treatment was for claimant's back problems, this was compensable.

On the issue of costs, the court noted the 876 IAC 4.33 and section 622.72 of the Iowa Code limited deposition costs to $150.00, and found that the taxation of costs in excess of $150.00 was error.  Claimant was awarded the $250.00 for a letter from a consulting doctor, and the court found no abuse of discretion. The court also found not abuse of discretion in the rejection of the stay request.

Court of Appeals Addresses Issues Involving Requests for Admission

In Lynn v. Pella Corp., No. 12-1506 (Iowa App. July 24, 2013), the court addressed issues involving IRCP 1.510, which governs requests for admissions.   The court concluded that when a party objected to a request for admission, the objecting party was only required to state their objection, and not to admit or deny the request.

Claimant filed a workers' compensation claim, and on February 16, 2010, filed a request for admissions.  Hearing had been set for April 7, 2010.  Defendants objected, stating that the admissions requests were untimely under the hearing assignment order.  Hearing was held on April 7, and the decision concluded that the objections were sufficient and were not deemed admitted.  The deputy also concluded that claimant failed to establish an injury arising out of and in the course of employment, which, not coincidentally, was the subject of the request for admissions.  The commissioner affirmed, citing IRAP 1.510, which requires that a party must move to determine the sufficiency of answers if they believe the admissions have not been answered in a satisfactory manner.

On judicial review, the district court concluded that because Pella failed to deny or state why it could not respond to the requests for admission within 30 days, the requests were deemed admitted.  According to the court, the burden was on Pella to obtain a ruling on this question, not on Lynn.  The appellate court seemingly had little difficulty in concluding that a party who objects to a request for admission need only state the reasons for the objection.   The court notes that rule 1.510 provides that the party who has made the request "may move to determine the sufficiency of the answers or objections."  The court rejected claimant's argument that Pella needed to file an answer and an objection, and noted that the burden was on the moving party to move for a determination of the sufficiency of the objection.  Since claimant failed to do so, the objection to the request for admission stood, and there was no deemed admission.

Saturday, June 15, 2013

Iowa Court of Appeals Affirms Award of Benefits Where Causation Finding Based on Lay Evidence

Martinez Construction v. Ceballos, No. 12-1514 (Iowa App. June 12, 2013), involved a situation in which the evidence used to support a finding of causation was primarily lay testimony.  The court found that in the circumstances in the case, medical testimony was not required to establish causation.

The accident that led to the injury occurred when claimant lost his footing on a roof, attempted to jump into a forklift basket, and hit his face and right shoulder and twisted his left knee.  Claimant was knocked unconscious as a result of the injury.  Hospital records demonstrated that claimant had four broken ribs and a perforated lung.  X-rays showed that there was a dislocation of the shoulder and fluid on the knee. Claimant was deported shortly after this and did not attend a followup appointment.

At hearing, claimant appeared by telephone, to which defendants objected.  The deputy allowed claimant to testify by telephone.   Claimant testified he had continuing problems with his shoulder and left knee.  Defendants called a co-worker to testify, and he claimed he saw claimant carry a heavy television and a bed, as well as performing work on a car.  These activities were said to have occurred after the accident.  No medical reports were placed in evidence to demonstrate the extent of claimant's impairments or restrictions on his activities.  The decision found that claimant was entitled to TTD benefits and assessed the costs of the hearing, including the costs of the telephone call, to defendants.  The deputy concluded that a portion of the lack of medical evidence was because defendants had denied medical care.  The deputy credited claimant's testimony and discounted the testimony of the co-worker.  The decision was affirmed on appeal.

On review, defendants argued there was no substantial evidence to support the conclusions of the agency.  Defendants also alleged that the costs of the telephone call for the hearing should not be assessed to them.  Defendants argued that because there was no medical testimony to support the claim, there could be no finding of causation.  The court found that under Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974), the general rule was that expert testimony, even if uncontroverted,  could be accepted or rejected by the trier of fact.  Lay witness testimony is also relevant and material to the causation determination.  Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 273 (Iowa 1995).

Although medical testimony is ordinarily necessary to establish causation, according to the court, it is not necessary in every instance.  In this case, the court found that the agency was within its power in finding claimant credible and using his testimony as the sole basis of causation.  On the costs of the hearing phone call, defendants argued there was nothing in the commissioner's rules to support the payment of costs.  Citing section 86.40 of the Code, the court concluded that costs are to be taxed in the discretion of the commissioner and that the key was whether the commissioner had abused his discretion.  The court then found that there was nothing in 876 IAC 4.33 to allow these costs.  Because of this, the costs of the telephone call were not to be taxed against the employer.

Although the result in this case is that lay testimony can be used to support a conclusion of causation, the ruling is narrowly tailored to the facts.  Claimant suffered clear injuries as a result of the traumatic events, and it was not a leap to find that the shoulder and knee problems were sufficient to support a finding of TTD.  Defendants did not seem to put on any medical evidence that the injuries were not sufficient to allow a finding of temporary total disability.  Thus, the case became one in which credibility determined the outcome.  Because of the unique situation involved in the case, including the fact that only temporary benefits and not permanency were in issue, Martinez could well be sui generis.

Denial of Benefits Affirmed Without Opinion

In Fridley v. Blackhawk Automatic Sprinkler Systems, Inc., No. 12-1954 (Iowa App. May 30, 2013), the court affirmed the denial of benefits without issuing an opinion under Iowa R. App. P. 6.1203(a) (c), (d).

Court of Appeals Addresses Tinnitus and Statute of Limitations Issues

In PMX Industries v. Reich, No. 12-1824 (Iowa App. May 30, 2013), the court addressed issues of tinnitus and hearing loss in a workers' compensation setting, and addressed the issue of when notice had to be provided for a tinnitus claim.  Claimant was a long time worker for PMX, which was an admittedly noisy facility.  Claimant testified that although he wore hearing protection, he would often have to remove the hearing protection in order to hear people talking within the plant. In 2008 he was diagnosed with a hearing loss and resigned from his employment.

The doctor who addressed the hearing loss issues for the employer, Dr. Taylor, found that claimant had a 2.2% bilateral hearing loss.  Claimant was referred to Dr. Marlan Hansen at the University of Iowa, who agreed that claimant had noise-induced hearing loss.  Claimant was then referred to Dr. Plakke, who noted hearing loss, but indicated that because of the continued loss of hearing after he left PMX, this was not noise related.  He also indicated that claimant had tinnitus.

Claimant filed a petition and was evaluated by Dr. Tyler.  In a questionnaire for Dr. Tyler, claimant indicated he began to experience tinnitus in 2006 or 2007.   Dr. Tyler found that there was a 2% hearing loss and an impairment rating of 4.5% for tinnitus.  Defendants sent claimant to Dr. Hoisington, who indicated that claimant's tinnitus was not significant, but even if it was, it was not related to work.

The arbitration decision credited Dr. Tyler and Dr. Hansen and found that both the hearing loss and tinnitus were related to work.  The decision found that defendants' notice defense was not raised in the post-hearing brief and also noted the the employer had notice of hearing loss and found that the tinnitus did not require a second notice to the employer.  The decision was affirmed on appeal without comment.

On judicial review,  the court found that defendants had actual notice of claimant's hearing loss, which provided sufficient notice of "all hearing injuries including tinnitus."  The court found substantial evidence that claimant was exposed to noise and deferred to the commissioner on which medical opinions to accept.  The court also found that the combining of disabilities to make one disability rating was appropriate.

On the notice issue, defendants argued that notice of hearing loss was not the same as notice of tinnitus.  Although defendants had made the argument that there had been untimely notice, the court concluded that defendants post-hearing brief had not addressed legal arguments concerning notice.  Defendants argued that the first  time to address this issue was on intra-agency appeal, but the court concluded defendants did have the opportunity to raise this issue at the arbitration level and had not raised this issue at the earliest possible moment.  The appellate court found that the employer had the opportunity to raise this issue at the deputy level, but had failed to do so.  Since the employer had the burden of proving the affirmative defense, the failure to raise the issue at the earliest possible opportunity was fatal to its arguments on lack of notice.

On the question of whether notice had been provided of the hearing loss, the court found that there was a sufficient factual basis to support the finding of actual notice.  On the issue of the experts, the court noted that this was a question of fact, and found that this fact was supported by substantial evidence.  On the issue of the combination of tinnitus and hearing loss to produce a single industrial loss, the court noted that when an individual suffered both a scheduled and unscheduled loss, it was appropriate to combine these to reach one industrial disability, citing Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994).  Finally, the court found that the conclusion that claimant suffered a 30% industrial disability was not irrational, illogical or wholly unjustifiable.

Sunday, May 19, 2013

Supreme Court Decides Subrogation Case Involving Choice of Law Issues

Moad v. Dakota Truck Underwriters, 831 NW2d 111 (Iowa 2013), involved the question of what law to apply (the law of Iowa or South Dakota) to determine whether a South Dakota WC carrier was entitled to subrogation for payments made to its insured by underinsured and uninsured carriers arising out of a settlement from third-party litigation.

Claimant died when the truck he was driving for his employer was struck by another vehicle near Iowa City.   WC benefits were paid under South Dakota law.  Claimant's wife filed a third party action in Iowa District Court.  Claimant's wife and children were South Dakota residents.  The WC carrier notified the parties that it was entitled to subrogation of any proceeds received by plaintiff as a result of the third party action.

A settlement agreement was reached with Northland agreeing to pay $300,000, plus $100,000 to cover the workers' compensation carrier's subrogation lien.  Plaintiff agreed to file a motion to strike or extinguish the lien.  Plaintiff filed the motion to strike, alleging that DTU, the comp carrier, had failed to file timely notice of its lien within 30 days after receiving notice of the suit.  The court approved the settlement.  DTU then sought to intervene, and argued that South Dakota law should apply and they should receive compensation for their lien.  The district court found that DTU's claim was barred because of the failure to timely file a response to the third party action.  Alternatively, the court applied Iowa law to bar the claim.  The court cited section 145 and 185 of the Restatement of Torts, which led to the conclusion that the law with the most significant contacts shoulder govern.  On appeal the court of appeals reversed, finding that the case sounded in contract rather than tort and thus the restatement did not apply.

Before the Supreme Court, the parties agreed that if Iowa law applied, DTU was not entitled to subrogation.  If South Dakota law applied, however, there was a valid lien.  The court undertook a lengthy examination of the conflict of law issues in Iowa and in other states.  The court noted that Iowa had rejected the conclusion that the place of the wrong automatically determined which state's law should apply in favor of a most significant relationship test.  Ultimately the court applied section 185 of the Restatement, which addressed the most significant relationship test in workers' compensation cases. Section 185 generally provided that in WC cases, the laws of the state in which the compensation was paid will always apply.  The court found that section 185 was superior to the more open-ended rules of the most significant relationship test.

The court remanded for further proceedings, and noted that if section 185 did not apply to all aspects of the subrogation issue, section 145 (the most significant contacts provision) would govern.  The court rejected the 30 day filing requirement on the grounds that this did not apply in underinsured and uninsured cases.  According to the court, section 85.22 had no application to DTU's effort to obtain a lien.

Saturday, May 18, 2013

Supreme Court Decides Review-Reopening Case Involving Statute of Limitations Issues

In Coffey v. Mid Seven Transportation Co., No. 11-1106 (Iowa May 10, 2013), claimant filed a review-reopening petition, which was found to be untimely by the commissioner and district court.  The employee also requested reimbursement of certain post-arbitration medical expenses, which were also denied.

Claimant originally had an injury to his left leg in 1994, and was unable to return to work following the injury.  After working part time, claimant was ultimately found eligible for social security disability benefits.

Prior to filing his workers' compensation claim, the employee had entered into a settlement with a third party for $275,000, of which he received $134,784.95 after payment of attorney's fees and medical costs.  Claimant alleged in his workers' compensation claim that he had injured not only his leg, but his back.  He also claimed that his post polio syndrome was aggravated by his injury.  He was paid workers' compensation payments totaling $70,783.19 prior to the arbitration decision.

Prior to the arbitration decision, claimant and his wife entered into a third party settlement for $100,000, of which $60,000 was for loss of consortium.  Claimant received $24,634.14 after payment of legal fees and expenses.  The arbitration decision concluded that claimant had a 75% industrial disability.  This finding was appealed through the Iowa Court of Appeals, with the commissioner's decision being affirmed.  The last action was a denial of an application for further review on January 11, 2006.

Defendants' counsel wrote to claimant's counsel and indicated that the third party recoveries totally covered the workers' compensation award.  Defendants' counsel indicated that payment for attorney's fees would be roughly $51,000.  Claimant's counsel believed that approximately $155,000 was due.  Defendants wrote a check to claimant for the smaller amount on January 30, 2006.

On April 2, 2008, claimant filed a petition for review-reopening.  The deputy found that the claim was barred by the statute of limitations. The deputy found that the three year period began three years after the decision where no payment of weekly benefits occurred after the award.  The deputy ordered defendants to pay medical expenses.  The deputy found that the payment of $51,000 was not payment of benefits, but payment of attorney's fees.  The commissioner reversed on the question of medical payments, finding that claimant had not proved that these costs were related to the injury.

The Court noted that the legislature had not delegated any special powers to the workers' compensation commissioner regarding statutory interpretation.  Therefore, the question was one of law.  The fighting issue on the statute of limitations claim was when the last payment of benefits had been made.  Defendants argued that the SOL commenced from the date of the arbitration award while claimant argued that the payment of the $51,000 constituted weekly benefits or alternatively that the three year statute did not begin until the court's earlier denial of the application for further review.

On the record before the agency, the court found that it could not say that the credit under 85.22(1) covered all the weekly benefits awarded in the arbitration proceeding.  Because there appeared to be an issue of whether all medical bills, mileage and interest had been paid, the court remanded the case to the agency to determine whether these payments had been made and whether they were offset by the third party payments.  If the agency were  to find that defendants still owed benefits after the date of the arbitration decision, the commissioner must decide whether defendants had paid the last installment of weekly benefits.  If benefits were still owed, then the three year SOL was still alive.

If the employer was found to have paid all benefits prior to the date of the arbitration award, then the court still had to determine when the SOL commenced.  The court concluded that payment of attorney's fees was a reimbursement for attorney's fees and not weekly benefits.  Because of this, the SOL was not extended by that payment.

On the issue of whether a settlement from a third party extended the SOL, the court concluded there was no specific precedent addressing this issue, but that there was precedent, in Beier Glass v. Brundige, 329 N.W.2d 280, 287 (Iowa 1983), as to the extension of the SOL when medical benefits had been paid.  This precedent noted that the three year SOL commenced from the date of the arbitration decision.  The court found that the same rationale applied with respect to payment of the third party award prior to an arbitration decision.  Thus, the date of the arbitration decision was the commencement date for the three year statute of limitations.  Claimant argued that the final date for exhaustion of appeals was the correct date, but the court rejected this argument.  On remand, the agency was to determine whether the obligation to pay weekly benefits was completely satisfied by the third party recovery.

On the medical cost issue, the agency found that there was insufficient evidence that the expenses were related to the work injury.  The district court found that this was supported by substantial evidence.  The court found that the decision of the agency was supported by substantial evidence.

Thursday, May 16, 2013

Court of Appeals Finds There Was No Substantial Evidence to Support Denial of Benefits

Numerous cases on this blog have discussed situations in which the decision of the agency was affirmed on substantial evidence grounds.  In Estate of Herman v. Overhead Door Co. of Des Moines, No. 12-0892 (Iowa App. May 15, 2013), the court concludes that because there was no substantial evidence to support the agency's decision that claimant's injury did not arise out of and in the course of employment, claimant (or claimant's estate, since claimant died before this decision) was entitled to benefits.  The court concluded that: "because we find the commissioner’s outright rejection of uncontroverted medical opinions is not supported by substantial evidence when the record is viewed as a whole, and we find Herman’s injury arose out of
and in the course of his employment as a matter of law, we reverse and remand."

Claimant worked in an unheated warehouse, and there was really little dispute that claimant worked in subfreezing temperatures in the winter of 2009, when he suffered his injury.  On January 21, 2009, claimant noted blisters on his foot, and the following day, his foot was wet when the blisters broke open.  On January 23, claimant reported the injury to his employer, and he was sent to the emergency room.  This visit resulted in a finding that claimant had suffered frostbite and a secondary injection in the right foot.  The frostbite was treated and claimant had skin grafts and an infection before finally losing his right toe.

Both treating physicians found that Mr. Herman's injury was more likely than not related to his work at Overhead Door and specifically his exposure to cold.  There were apparently no opinions finding that the injury was not related to work, but despite this fact the deputy and commissioner concluded that the injury did not arise out of and in the course of employment.

The arbitration decision in Mr. Herman's case was very brief and focused not on the doctor's opinions, but on how cold it was in the warehouse and outside.  That decision ignored the doctor's opinions by simply stating that they were not of much assistance, despite the fact that those opinions had linked the injury to claimant's work exposures.

On review, the court of appeals noted that this was not a classic "battle of the experts," since there were no experts indicating that the injury was not related to work.  The court commented on the decision of the deputy, finding that the deputy had "inexplicably" found that the doctors were not helpful in determining whether the injury was work related.  The court found that both the deputy and commissioner had failed to explain why the comments of the doctors were rejected in determining causation.  The court found that the outright rejection of the doctor's opinions was not supported by substantial evidence.  The court also found that the injury arose out of claimant's employment, and remanded the case to the agency.

Although the result in Herman is not something that occurs with frequency, the case serves as an example that there are still situations where there is no evidence to support a particular proposition, and thus no substantial evidence to support that proposition.

Wednesday, May 15, 2013

Court of Appeals Decides "Arising Out Of" Case Favorably to Employee

In AARP v. Whitacre, No. 12-1519 (Iowa App. May 15, 2013), claimant was a 79 year old part time janitor for AARP.  While on a coffee break one day, claimant began to choke, stood up to get a drink of water, stumbled and fell, causing injuries to his head and face.  The deputy and commissioner found that this injury arose out of his employment and awarded benefits.  On judicial review, the district court reversed.

In addressing the question, the court noted that the earlier decision in Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007) had indicated that the arising out of test involved proof that a causal connection existed between the conditions of the employment and the injury. The COA also noted that earlier decisions of the Supreme Court were to the effect that risks that were personal to the employee were not compensable, but further noted that Lakeside Casino and other cases had indicated that the work risk need be no greater than risks outside the workplace.

The parties agreed that the fall was "idiopathic," but disagreed as to whether the conditions at work aggravated the injury.  The agency had concluded that the design and construction of the office in which claimant was working had contributed to the effects of the injury.  The office was a small office with hard concrete walls and a concrete floor. The deputy concluded that because claimant hit his head on the concrete wall, this aggravated the effects of the injury.

The court noted that the earlier decision in Koehler v. Wills,608 N.W.2d 1 (Iowa 2000), did not require the existence of a dangerous condition at the workplace (Koehler involved a fall from a ladder onto a concrete floor).  The COA specifically rejected language found in Miedema v. Dial Corp., 551 N.W.2d 309, 311 (Iowa 1996), which indicated that there needed to be an increased risk from the work situation, finding that this was "an inadvertent throw-back to the increased-risk doctrine."  The court found that the work related factor did not need to be greater than the risk in the non-work environment, but it had to be real, and not fictitious.

On the facts of the case, the court found that hitting a desk and then a concrete wall in a small office constituted a real risk that aggravated the effects of the injury.  The decision of the district court was reversed and the decision of the agency reinstated.

Although Whitacre does not represent a huge change in the law concerning injuries that arise out of employment, it is an important case in that it stresses the fact that there need be no increased work from the employment situation in order for a claim to be deemed compensable.  All that is necessary is that the work setting aggravate the effects of the injury.

Wednesday, April 24, 2013

Court of Appeals Affirms Review-Reopening Denial on Substantial Evidence Grounds

Hernandez v. Osceola Foods, No. 12-1658 (Iowa App. April 24, 2013) involved a review-reopening claim following an earlier settlement.  At the time of the settlement, claimant had 30 pound restrictions and was working for Osceola Foods.  She remained there for two years after the settlement, but was fired for falsely filling out an employment application for her husband.  She sought other work, and began to work for another company, Farley's and Sanders Candy.  In her application for Farley's, which was through a temporary agency, she did not reveal that she had restrictions, and indicated she was able to perform all duties, which included lifting up to 50 pounds.  A few months later, when the new employer found out about the restrictions, Ms. Hernandez was fired.

Claimant sought review-reopening and was denied at the agency level, with the agency finding that claimant's loss of earnings was due to her dishonest conduct rather than to her work injury.  The court of appeals affirmed, finding that on substantial evidence grounds there was no showing of any type of change in either physical condition or economic condition.  The court finds that although claimant attempted to frame her argument as a legal issue (as she must if she were going to prevail), this was actually a substantial evidence question, and there was ample evidence to support the findings of the agency, and the denial of additional benefits.  The court found that claimant's actions in falsifying her husband's application for work and in not being honest in her application with the temporary agency, plus the fact that her physical condition had not changed, was sufficient to deny additional benefits.

Although not before the court, query whether the application for the temporary agency, which asks questions such as whether the applicant is able to perform all duties of the job and "what weaknesses do you bring to the employer?" runs afoul of the ADA.

Wednesday, April 10, 2013

Court of Appeals Decides Alternate Medical Care Claim

Millenkamp v. Millenkamp, No. 11-2068 (Iowa App. April 10, 2013) is a case that has been bouncing back and forth between the agency and the appellate courts since claimant's initial injury in 2001, when claimant suffered a traumatic brain injury while working in his cattle business.  The current dispute concerns a situation where claimant had been treating with a physician who retired from the practice.  That physician recommended that claimant see another physician, Dr. Neiman, who provided treatment to claimant.  Prior to seeing Dr. Neiman, it does not appear as if the employer knew that the authorized treating physician had retired.

According to the court, when the employer learned that the authorized treater had retired, it sought to provide care for claimant, first with Dr. Young, who refused to see claimant, and then with Dr. Cullen, who claimant refused to see because he had been hired by the defendants.  Claimant argued that because his treating physician had recommended Dr. Neiman, the agency, under its own precedent, could not interfere with that recommendation and had to follow what the authorized treater had recommended.  Claimant sought to have Dr. Neiman named as the treater.

Three alternate medical care hearings were held and in the last one, the agency did not agree, and concluded that once the employer learned of the retirement of the treater, they moved quickly to have claimant seen by another doctor.  The agency found that there was no showing that the services offered by the employer to claimant were unreasonable under section 85.27(4) of the Iowa Code, nor was there any showing that care had not been provided with reasonable promptness.

On appeal, the district court affirmed the decision of the agency.  On appeal to the court of appeals, claimant argued that the employer did not have the absolute right to change care and in light of the fact that the authorized treater had recommended Dr. Neiman, he should be allowed to continue with Dr. Neiman.  The court of appeals found that the record supported the conclusion that the employer had provided (or at least offered) reasonable care, and that this care was offered in a timely fashion.

Claimant argued that the decision of the agency was arbitrary and capricious because it was violative of agency precedent that indicated that the employer could not interfere with the recommendations of an authorized treating physician.  The court found that factually the case did not run afoul of agency precedent and indicates that claimant "merely quotes single sentences out of thirty-three different agency decisions and contends the agency’s decision in this case runs afoul to them all."  The court found that this was not the case, and that the agency's action had not been an abuse of discretion.

The court also rejected a due process argument raised by the claimant because of the alleged failure to follow agency precedent.  Also rejected were arguments that the agency should have looked at an earlier timeframe to determine whether the action of the employer was reasonable, and that the employer had a duty to monitor medical care.  On the latter argument, the court concluded that evidence before the agency suggested that once the employer knew of Dr. Neiman's existence, and the retirement of the authorized treater, the employer moved promptly to provide care.

The Millenkamp  case is heavily fact intensive and thus most likely does not provide much in the way of precedent with respect to future alternate medical care cases.  Reading between the lines of the Court of Appeal's decisions, it appears as though claimant had been very concerned about prior treatment he had been provided and was worried that the past treatment, which claimant believed was unreasonable, would lead to additional unreasonable treatment in the future.  The court restricted its inquiry to the immediate question before them and concluded that the employer's actions had been reasonable and care had been offered with reasonable promptness, thus affirming the agency.

Wednesday, March 13, 2013

Court Affirms Denial of Review-Reopening Claim

In Kramer v. Terex, No. 12-1370 (Iowa App. March 13, 2013), the court of appeals affirmed a decision of the commissioner denying further benefits on a review-reopening claim.  The original decision had awarded benefits of 40%, and on review-reopening the commissioner concluded that claimant had not met his burden of proof of demonstrating changed economic circumstances.  On appeal, the court cited the district court's "well-reasoned" decision and affirmed without comment.  IRAP 6.1203.  

Court of Appeals Affirms 60% Award on Substantial Evidence Grounds

In Gallo v. Penford Products Co., No. 12-1472 (Iowa App. March 13, 2013), the court affirmed a 60% industrial disability award, and denied claimant's contention this his mental disorder arose out of and in the course of his work.  Claimant had suffered an accepted back injury while working, and continued to work after surgery.  Claimant was subsequently fired from his employment when it was found out that he had been found to be impersonating a physician for the purpose of obtaining narcotics.  Despite these facts, and the finding by the deputy, affirmed on appeal, that claimant was not a credible witness, claimant argued that he was permanently and totally disabled.  The evidence on this score was conflicting, with vocational experts reaching opposite conclusions about claimant's motivation to work, and ability to work in light of his back injury.  Particularly telling was the fact that claimant continued to work for two years following the injury, before he was fired for impersonating a doctor.  On these facts, as presented by the court of appeals, the decision of the commissioner was affirmed on substantial evidence grounds.

The medical evidence was also conflicting on the mental health aspects of the case, with claimant's primary treating doctor noting that problems with anxiety and depression were present prior to the injury, and a psychiatrist concluding that the mental health problems were as a result of the work injury.  Again, on substantial evidence grounds, the court concluded that the commissioner's decision was correct, and affirmed that decision.

Gallo is a part of a long line of decisions at the court of appeals that have been affirmed on substantial evidence grounds.

Supreme Court Denies Further Review in Case Involving English Language Skills and Motivation

On February 22, 2013, the Supreme Court denied further review in Merivic v. Gutierrez, No. 12-0240, a case that had earlier been heard by the Iowa Court of Appeals.  See Merivic v. Gutierrez, No. 12-0240 (Iowa App. Nov. 15, 2012).  In Merivic, the court of appeals concluded that the decision of the commissioner in Lovic v. Construction Products, Inc., No. 5015390 (App. Dec. 27, 2007), was appropriate.  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.  In Merivic, the employer had directly attacked Lovic as being wrongly decided, and urged the court to find that Lovic was not controlling.  The decision of the court of appeals found that the employer's position was an impermissible collateral attack on the Lovic case, and rejected the challenge made by the employer.

The denial of further review in Merivic insures that Lovic remains good law at the commissioner's level, and also implies that the appellate courts do not disagree with commissioner's conclusions in Lovic.  This is important in any case in which a claimant's English language skills are at issue.  In many cases, the employer faults the employee for not learning English, and argues that the lack of language skills should not be considered in determining the extent of industrial disability.  Merivic and Lovic conclude that English language skills can be taken into account, and further conclude that the lack of English language skills should not be seen in a negative light in terms of motivation.  Both Merivic and Lovic are fact specific, but both are supportive of the conclusion that the failure to learn English cannot used negatively against claimants.

Jamie Byrne of Neifert, Byrne & Ozga handled both Lovic and Merivic.

Wednesday, February 27, 2013

Court of Appeals Decides Successive Disability Case

In Hansen v. Snap-On Tools Manufacturing Company, No. 12-1038 (Iowa App. Feb. 27, 2013), among the issues addressed by the court was the questions of successive disabilities under section 85.34(7)(b) of the Code.  The court seems to conclude that section 85.34(7)(b) does not apply to unscheduled injuries, which would, if affirmed, have a serious impact on the current law concerning that section of the act.
Hansen also addresses issues concerning costs, extent of impairment, healing period and temporary partial benefits.

Claimant sustained two injuries at work, a left shoulder injury in 2005 and an injury to her right hand and arm in 2007 which was traumatic.  The shoulder injury was cumulative, although there was medical evidence that there was a later acute injury to the shoulder superimposed on the cumulative process.  The commissioner concluded that claimant was entitled to 15% industrial disability, did not specifically accept or reject claimant's computation of healing period/TPD benefits, and reduced the costs payable for the IME from $9,502.50 to $2,890.  At the district court level, the healing period issue and IME costs issues were remanded to the agency.  At the district court, claimant argued that the successive disability statute was unconstitutional and the district court deferred ruling on this issue.

Claimant argued to the court of appeals that the agency had failed to apply the successive disability statute and material principles of industrial disability. Claimant argued that an earlier right shoulder restriction should have been combined with the left shoulder restrictions in determining industrial disability.  The statute notes that if a preexisting disability was compensable under the same paragraph of subsection 2 as the current injury, "the employer is liable for the combined disability that is caused by the injuries,..."  The court notes that the record was not clear that the agency ever considered this argument.  The court concludes, however, that "even if the agency were to have analyzed these facts under the successive-disability statute, the outcome would not change as the statute is not applicable to Hansen's February 15, 2005 injury."

In explaining this reasoning, the court cites section 20 of HF 2581, the legislative intent section for 85.34(7). The court notes that the legislative intent section indicates that "the method of determining the degree of unscheduled permanent partial disability" is unchanged by the statute.  The court concludes that the agency cannot determine the degree of unscheduled disability under 85.34(7)(b), and concludes that that section does not apply to unscheduled injuries.  The court gives no real guidance on how 85.34(7)(b) is to be interpreted on this issue (although one could argue that the full responsibility rule could apply if the section of the statute does not apply).  The legislative history of the statute appears to be given more sway than the actual language of the statute, which clearly applies to unscheduled injuries.  The section of the legislative history would appear to indicate simply that the determination of industrial disability, i.e., the application of the McSpadden factors, is not changed by 85.34(7)(b), not that is doesn't apply to unscheduled injuries.

The court goes on to find the 15% industrial disability finding is supported by substantial evidence.  It also concludes that the deputy sufficiently explained his reasons for reducing the amount of the IME costs that were payable by the defendants.  The court finds there was sufficient reasoning to demonstrate the agency did not abuse its discretion.  The court indicated that even if the IME were payable under the costs section, only reasonable costs were to be paid, and the agency elucidated why the costs were not reasonable.  On the temporary benefits issue, the court agreed with the district court that the decision of the agency was not sufficient to demonstrate how temporary benefits had been determined, and remanded to the agency.

The holding of Hansen is that 85.34(7)(b)(1) is not applicable to "unscheduled permanent partial disability."  This portion of the decision does not appear to flow from either the language of the statute or legislative intent language, and is likely to be the subject of further review by the Supreme Court.  In the meantime, it casts a shadow on the application of 85.34(7)(b) in other cases.

Yet Another Substantial Evidence Affirmance by the Court of Appeals

The case of Big Tomato Pizza v Cloud, No. 12-1291 (Iowa App. Feb. 27, 2013), involves substantial evidence, and as is common, an affirmance of the decision of the commissioner.  Mr. Cloud was a pizza delivery driver for Big Tomato, and when he was getting out of his car, a customer who was being chased out of the restaurant struck him, there was a scuffle and claimant suffered injuries, including a collapsed lung.
The claim was denied, and claimant had no treatment following the hospitalization.  He began having nightmares about the incident.

At hearing, defendants presented testimony that indicated that Mr. Cloud was actively pursuing the customer far from the premises of Big Tomato.  The deputy rejected this testimony, finding that claimant as the victim of an assault.  The commissioner affirmed and found that the injury arose out of an in the course of employment.  The commissioner concluded that section 85.16(1), which denies compensation for an employee's willful intent to injure himself or another, did not compel denial of compensation.  The commissioner found that industrial disability was 10% and indicated that defendants would have to pay for a mental health evaluation.

The district court affirmed on substantial evidence grounds.  The court of appeals discusses the "in the course of" element in some detail, in response to the employer's argument that claimant deviated from the course of his employment by voluntarily engaging in an altercation some distance from the restaurant.  The court finds that the commissioner's findings of fact are supported by substantial evidence.

On the 85.16 issue, the court noted that the commissioner had found there was no credible evidence that claimant wished to willfully injure the customer, and concluded that substantial evidence supported the commissioner's conclusions.  The court also affirms on substantial evidence grounds, that there was a 10% industrial disability and that claimant was entitled to be evaluated for a mental health injury.

Court of Appeals Affirms Award of Workers' Compensation Benefits and Alternate Medical Care

In yet another decision demonstrating that if the question presented is one of substantial evidence, the party seeking to overturn the agency's decision is not going to prevail at the appellate level, the court in Talton v. Fleur Delis Motors Inns, Inc., No. 12-0999 (Iowa App. Feb. 27, 2013) affirmed the decision of the commissioner finding that claimant's injuries did not arise out of and in the course of employment, denying healing period benefits, and denying alternate medical care.

Claimant suffered a stipulated work injury when a can of tomatoes fell on her foot.  She developed arthritis, which the treating doctor did not believe was work related, but which Dr. Mandracchia opined was work related.  Dr. Simon indicated that claimant developed an antalgic gait as a result of the foot injury.  The deputy found the injuries had arisen out of claimant's employment, but concluded that claimant had not reached maximum medial improvement and still in an healing period.  The commissioner found that claimant's injuries had healed, and also found that the low back, left foot and right knee injuries alleged by claimant were not work related.  Alternate medical care and penalty benefits were denied.

The commissioner relied on testimony from Dr. Barp to establish that the left foot, right knee and lower back problems were unrelated to the work injury.  The court found that the commissioner was responsible for determining the weight given to expert testimony, and concluded that there was substantial evidence to support the conclusion of the agency.  Claimant argued that the decision that the left foot, right knee and lower back problems did not arise out of employment was based on an irrational, illogical or wholly unjustifiable application of the law to the facts.  The court found that because medical causation was within the domain of expert testimony, the weight to be given these opinions was for the commissioner.

The court also concluded that the decision denying alternate medical care was supported by substantial evidence, as the alternate medical care related to the left foot, right knee and lower back, which were found not to be work related.  Finally, the court found substantial evidence supported the conclusion that claimant reached MMI on the date specified by the commissioner and no further benefits were payable.

As with numerous other appellate court decisions in recent years, if a claim is premised on substantial evidence, it is unlikely to be reversed in district court, the court of appeals or the supreme court.  Both claimants and defendants have moved to arguing that the decision of the agency was "illogical, irrational or wholly unjustifiable," but this rationale has not been found persuasive by the courts because, as a general matter, if the decision of the agency is supported by substantial evidence, it is unlikely to be found illogical.

Tuesday, February 19, 2013

Court of Appeals Addresses Review-Reopening Petition and Employer's Subrogation Rights

In Sanchez v. Celadon Trucking Services, No. 12-0895 (Iowa App. Feb. 13, 2013), the Court of Appeals addressed a review-reopening question which was combined with questions concerning the proceeds of a third party action, and the employer's subrogation rights from that proceeding.  Claimant had originally been awarded a 25% industrial disability, and later filed for review reopening, and also sought an adjudication of the extent of the employer's remaining lien from the third-party settlement.

The deputy found that claimant was not entitled to additional benefits, finding that claimant lacked credibility. The deputy also found that the employer's calculation of the lien was correct and ordered that the lien be honored by claimant.  The commissioner summarily affirmed the decision on both points.  The district court affirmed the commissioner's decision.

The court notes that on the review-reopening questions, its task was limited to determining whether substantial evidence supported the decision.  The court concluded that there was substantial evidence to support the claim that there had been no change in condition sufficient to justify a change in the industrial disability paid to claimant.  On the lien question, the court noted that section 85.22(1) provides that the employer has a lien on the recovery and judgment from the third party action.  The court indicated that this lien is to be reduced by reasonable litigation costs and attorneys fees in obtaining the third party recovery, citing Sourbier v. State, 498 N.W.2d 720, 725 (Iowa 1993). The court noted that as future benefits to claimant become payable, the employer is responsible for reimbursing claimant an amount equal to the litigation costs claimant incurred in the third party settlement, which are applicable to that payment.  The court concluded that the agency had correctly calculated the employer's lien, and affirmed that decision.

Wednesday, February 13, 2013

Court of Appeals Concludes That Injury Did Not Arise Out of or In the Scope of Employment

In Cooper v. Kirkwood Community College, No. 11-1755 (Iowa App. Feb. 13, 2013), the court affirmed the decision of the commissioner that claimant's injury did not arise out of or in the course of employment.  The case had been before the Court of Appeals previously, at which time the court concluded that claimant was required to wait until the agency had made a determination on rehearing before filing a petition for judicial review.  When a subsequent petition was filed, the district court concluded that the petition had been timely filed, but found that claimant's conditions did not arise out of her employment.

Defendants first argued that because the second petition for judicial review was filed until after the dismissal of the first petition, it had been untimely filed.  The court disagreed, and indicated that because of the earlier interlocutory appeal, the 20 day "deemed denied" period for the rehearing was tolled pending the decision of the district court and court of appeals.  Otherwise, according to the court, any premature appeal which was  denied would spell the end of the litigation.  The court concluded that the rules of civil procedure had specifically abrogated such a conclusion, citing IRAP 1(d).

On the merits, claimant argued that the agency had applied the wrong standard - a tort standard - in concluding that the injury did not arise out of claimant's employment.  The court concluded that the determination of whether an injury arose out of employment was largely a factual issue, dependent on the opinions of medical experts.  In this case, according to the court, the medical evidence presented was carefully considered by the agency, which found that there was no connection between claimant's work and her injuries.  The court concluded that the agency's findings were not irrational, illogical or wholly unjustifiable.

Finally, the court found that the agency's rejection of the testimony of claimant's expert was supported by substantial evidence.

Court Affirms Award of Benefits on Substantial Evidence Grounds

In Pella Corp. v. Winn, No. 12-0592 (Iowa App. February 13, 2013), the Court of Appeals summarily affirmed the decision of the commissioner and district court concluding that claimant had suffered a compensable shoulder injury.  The court finds that although claimant's story of how the injury occurred might have seemed improbable, it was not so outrageous as to be unbelievable.  Since the conclusion was supported by substantial evidence, the award of benefits was affirmed.

Friday, January 25, 2013

Court Affirms 80% Industrial Disability Finding, Denies Permanent Total Disability

Ottumwa Manufacturing, d/b/a Cadbury Schweppes Holding, Inc. v. Boyd, No. 12-0889 (Iowa App.  Jan. 24, 2013) addressed an extent of disability issue for a claimant with a serious right hip injury, which followed a crush injury to his feet.  The evidence was conflicting on the question of whether the hip injury was a sequella to the foot injury, but the agency found, and the court affirmed, that there was ample evidence, in the form of reports by Dr. Pollack (later walked back by the doctor) and Dr. Stoken, to conclude that the hip injury was a sequella.

On the issue of the extent of impairment, the court concluded that, although only Dr. Stoken imposed restrictions on claimant, this medical report, combined with an analysis of the other factors of industrial disability, was sufficient substantial to support affirmation of the agency.  The court concluded that the agency's decision denying permanent total status was supported by substantial evidence because claimant's treating physicians had not imposed work restrictions.  

Court of Appeals Issues Decision on Partial Commutation

In Pilgrim's Pride v. Eakins, No. 12-0901 (Iowa App Jan. 24, 2013), the court of appeals addressed the issue of partial commutation, an issue that does not come before the appellate courts frequently.  Two issues were presented - whether claimant was entitled to the partial commutation (i.e. whether the commutation was in claimant's best interests) and whether the amount of the commutation should be based on the amounts due at the time of filing (including the discount amount) or at some later date.

On the issue of commutation, the court concluded that the issue was largely one of substantial interest.  The court noted that the "best interests" test of Dameron v. Newmann Bros., 339 N.W.2d 160, 164 (Iowa 1983) was the governing standard.  Under this test, the agency is to consider the workers' age, education, mental and physical condition, life expectancy, family circumstances and living arrangements, and the reasonableness of the investment plan in determining whether the commutation is in the best interests of the claimant.  The court found, in the face of arguments that claimant had a lack of fiscal sophistication and that he planned on spending a good portion of his commutation on family members, that the decision to commute by the agency was supported by substantial evidence.  The court noted that while there was evidence to suggest that the commutation was not in Mr. Eakins' best interests, there was sufficient evidence to support the conclusion that the commutation was in his best interests, as found by the agency.

The more interesting issue involved the computation of the commutation. Defendants argued that until there was a final judgment by the courts, the commutation amount could not be fixed.  Claimant argued that basing the commutation amount on the situation at the time the claim was finally completed would allow defendants to continue to appeal and thus change the computation amounts, particularly the discount rate.  The court followed a middle path on this issue.  They found that the amounts paid by the defendants should be credited in determining the amount of the commutation.  The court, rather than using the date that the case was final, indicated that interest amounts were fixed as of the date of the final agency action, in this case the appeal decision of the agency.  The court found that the "final determination of the rights and obligations of the parties" occurred at the time of final agency action.  Under the decision, "the proper date to use to determine the applicable interest rate for the commutation calculation is the date of the commissioner's decision."  Weekly payments made while the action is pending on judicial review should be credit to the defendants.  This would appear to be a common sense application of the statute, consistent with the statutes that govern the issue, i.e. sections 85.48, 535.3 and 668.13.

Court of Appeals Rejects Penalty Case Under Amended Statute

The Court of Appeals addressed the issue of penalty under the 2009 revisions to the penalty statute in Podgorniak v. Asplundh Tree Service, No. 12-0644 (Iowa App. Jan. 24, 2013).  Claimant had been awarded a running healing period, and after defendants' physicians opined that claimant had reached maximum medical improvement, healing period benefits were terminated.  The arbitration decision found that penalty benefits were appropriate, and this action was reversed by the commissioner.  The commissioner's decision found that the action of the employer was "fairly debatable."  The district court affirmed the denial of penalty.

The court first found that an issue concerning the specific amounts and dates of healing period benefits that were due had not been preserved by claimant and did not address this issue.

The court discusses the 2009 amendments to the statute, and first considered an argument that since the words "fairly debatable" were not included in the statute, this was an inappropriate test for determining whether penalty benefits were due.  Claimant argued that under the words contained in the statute itself, penalty benefits were payable.  The court concluded that the 2009 amendments "essentially codified" cases such as Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996); Keystone Nursing Care Center v. Craddock, 705 N.W.2d 299 (Iowa 2005); and Christensen v. Snap-On Tools Corp., 554 N.W.2d 254 (Iowa 1996).  The court really does not explain why the amendments codified the "fairly debatable" standard or why, if they had codified this language, it was not actually used in the statute.  The court instead concluded that "there is no material difference between the judicially articulated general standards for denial of a penalty claim and the standard set forth in section 85.13(4)(b)(2).  The court does not address the question of why the statute was amended if, in fact, there were no changes to prior jurisprudence intended.  The court indicated that much of the language from earlier cases was "co-opted" into the statute.

On the factual aspect of the case, the commissioner had found that the opinions of three physicians finding that claimant had reached maximum medical improvement was sufficient as a reasonable or probable excuse for the denial of benefits.  Claimant argued that he was still in the process of receiving care through an alternate medical care proceeding, but the court found that this did not defeat the fact that physicians had found claimant at MMI.

On the legal issues, the case is likely to be the subject of a request for further review, as the court of appeals appears to have ruled that the 2009 statutory changes in effect made no changes to the statute. 

Wednesday, January 9, 2013

Court of Appeals Affirms Permanent Total Disability Award, But Denies Bariatric Surgery

In Mercy Hospital Iowa City v. Goodner, No. 12-0186 (Iowa App. Jan. 9, 2013), the Court of Appeals affirmed the finding of the commissioner that claimant was permanently totally disabled.  The court also concluded that defendants were judicially estopped from contesting liability for the claim, and that defendants were responsible for paying for one half of the cost of family therapy sessions for claimant.  The court reversed the finding of the agency that payment for bariatric surgery for claimant should be paid by the defendants.

Claimant, a doctor was exposed to mononucleosis as a result of her work.  She later developed depression and chronic fatigue syndrome.  Defendants' doctors indicated that she may not have had mononucleosis, but did have fatigue and memory loss.  Claimant's doctors indicated that she had developed mononucleosis and this was one of a multitude of triggers for chronic fatigue syndrome.  Following these developments, claimant began gaining weight and underwent bariatric surgery, following which she lost 70 pounds.  A DME doctor opined that the mono could not have been transmitted in the way in which claimant indicated it had been, and further stated that the opinions of the other doctors were the result of "VIP syndrome" because those doctors had given credence to claimant because she was a doctor. 

Claimant initially had her workload reduced, and ultimately left her medical practice.  She attempted to perform a housecall business among the Amish, but was unable to do so.  She was advised by the medical board to stop seeing patients, and her medical license was placed on inactive status.

The arbitration decision found PTD, relying on the odd lot doctrine., and also concluded family counseling should be paid for, as well as the costs of bariatric surgery.  These findings were affirmed by the commissioner.  On judicial review, the district court concluded that Mercy should be estopped from arguing liability because they had admitted liability in an alternate medical care proceeding.  The district court affirmed the remaining items.

On appeal, defendants argued that Winnebago Industries v. Haverly, 727 N.W.2d 567 (Iowa 2006) should be overruled because it gave preclusive effect to alternate medical care proceedings, where an employer allegedly has few due process protections.  The court spends a great deal of time discussing Haverly, which was the first workers' compensation case to apply judicial estoppel, before concluding that the court was without power to overrule that case, which was decided by the Supreme Court, and further concluding that Haverly had been properly applied.

Defendants also raised the question of whether claimant's medical evidence was scientifically reliable, and asserts that the Daubert standard should apply, and cites to Ranes v. Adams Laboratories, Inc., 778 N.W.2d 677 (Iowa 2010) which applied Daubert in Iowa courts.  The court first found that a medical expert need not rely on published studies to conclude that a particular object caused a particular illness.  The question of medical causation, according to the court, is essentially within the domain of expert testimony. The weight to be given the medical expert reports is for the agency to determine.  Ultimately, the court decides on substantial evidence grounds that claimant's mononucleosis and chronic fatigue syndrome had arisen from events at work.  The PTD award was also affirmed on substantial evidence grounds.

With respect to the bariatric surgery, the court, applying Bell Brothers, noted that claimant had to demonstrate that the surgery was both reasonable and beneficial.  The court concluded the care was not beneficial because claimant had a weight problem prior to the injury, and although she lost weight following the surgery, she was still not in a position to work.  The court found that the agency's conclusion that there had not been a weight problem prior to the injury was not supported by substantial evidence.  Ultimately, however, the decision rested on the fact that since there was no return to the labor market following the surgery, the surgery was not beneficial.  This is a troubling development with respect to Bell Brothers because it seems to make the determination of whether a procedure is beneficial rest on the industrial effects of the procedure rather than the health effects of the procedure.  There was evidence presented that claimant had, in fact, lost weight as a result of the surgery, and this seems to be sufficient to support a finding that the surgery was beneficial.

Finally, the court concluded that paying for one-half of the family therapy was appropriate because this was proportionate to that part of the therapy that benefited claimant.