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, 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.