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.

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.