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.

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.