Neifert, Byrne & Ozga, P.C.

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

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

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.