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

Monday, July 29, 2013

Court of Appeals Affirms Decision of District Court Without Opinion

Wal-Mart Stores, Inc. v. Hancock, No. 13-0197 (July 24, 2013) was a case in which defendants argued that motions to compel and motions in limine should not have been denied and also argued the claimant should not have been awarded temporary or permanency benefits.  The court concluded that the district court's ruling should be affirmed without opinion, based upon the thorough and well-reasoned opinion of the district court.  IRAP 6.1203.

Court of Appeals Affirms Permanent Total Disability Award, But Caps Deposition Fee at $150.00

Whirlpool Corp. v. Davis, No. 12-1962 (Iowa App. July 24, 2013) involved a finding by the commissioner that claimant was permanently and totally disabled.  The court affirmed this aspect of the case on substantial evidence grounds, and also concluded that reimbursement for a deposition was statutorily limited to $150.00.

Claimant suffered a back injury, resulting in a 7% impairment rating from defendants' doctor, Dr. Mark Taylor.  An IME from Dr. John Kuhnlein indicated that he could not say, within a reasonable degree of medical certainty, that the current back problems were related to the original work injury, although the back problems were related to one of the incidents that had occurred at Whirlpool.  He provided a 5% impairment rating.  Claimant ultimately left his job and was found eligible for social security disability benefits.

The deputy found that claimant was credible, and credited the findings of Dr. Taylor, Dr. Kuhnlein and Dr. Buresh.  He rejected the findings of Dr. Momady, because he had apparently changed his mind about causation when he found claimant had previously treated with a chiropractor, even though he had not seen the chiropractor's notes.  Permanent total disability was awarded, and affirmed on appeal.

On judicial review, the district court denied a stay to Whirlpool.  The district court found that substantial evidence supported the agency's findings, although the court found that two of eight visits with Dr. Buresh were not related to his back problems.  Whirlpool appealed, arguing that claimant was not permanently and totally disabled, and that the commissioner erred in awarding costs and in denying it request for stay.

The court discussed the permanent total disability finding only briefly, to note that the findings of the commissioner were supported by substantial evidence, as discussed in the district court decision.  On the medical expense issue, the court concluded that because Dr. Momady had indicated that future treatment would not be covered by workers' compensation, claimant was entitled to seek treatment elsewhere under Bell Bros. v. Gwinn.  Because Dr. Buresh's treatment was for claimant's back problems, this was compensable.

On the issue of costs, the court noted the 876 IAC 4.33 and section 622.72 of the Iowa Code limited deposition costs to $150.00, and found that the taxation of costs in excess of $150.00 was error.  Claimant was awarded the $250.00 for a letter from a consulting doctor, and the court found no abuse of discretion. The court also found not abuse of discretion in the rejection of the stay request.

Court of Appeals Addresses Issues Involving Requests for Admission

In Lynn v. Pella Corp., No. 12-1506 (Iowa App. July 24, 2013), the court addressed issues involving IRCP 1.510, which governs requests for admissions.   The court concluded that when a party objected to a request for admission, the objecting party was only required to state their objection, and not to admit or deny the request.

Claimant filed a workers' compensation claim, and on February 16, 2010, filed a request for admissions.  Hearing had been set for April 7, 2010.  Defendants objected, stating that the admissions requests were untimely under the hearing assignment order.  Hearing was held on April 7, and the decision concluded that the objections were sufficient and were not deemed admitted.  The deputy also concluded that claimant failed to establish an injury arising out of and in the course of employment, which, not coincidentally, was the subject of the request for admissions.  The commissioner affirmed, citing IRAP 1.510, which requires that a party must move to determine the sufficiency of answers if they believe the admissions have not been answered in a satisfactory manner.

On judicial review, the district court concluded that because Pella failed to deny or state why it could not respond to the requests for admission within 30 days, the requests were deemed admitted.  According to the court, the burden was on Pella to obtain a ruling on this question, not on Lynn.  The appellate court seemingly had little difficulty in concluding that a party who objects to a request for admission need only state the reasons for the objection.   The court notes that rule 1.510 provides that the party who has made the request "may move to determine the sufficiency of the answers or objections."  The court rejected claimant's argument that Pella needed to file an answer and an objection, and noted that the burden was on the moving party to move for a determination of the sufficiency of the objection.  Since claimant failed to do so, the objection to the request for admission stood, and there was no deemed admission.