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, 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.