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.

Friday, October 4, 2013

Court Affirms Dismissal of Alternate Medical Care Proceeding Without Hearing

Cooksey v. Cargill, Inc., No. 12-1729 (Iowa App. Oct. 2, 2013), is a case in which claimant filed three alternate medical care proceedings against the employer.  In the first two proceedings, the employer agreed to provide the care sought by claimant and that care was provided.  In the first proceeding, a hearing was held, but the parties came to an agreement that claimant could see Dr. Abernathey and claimant would voluntarily dismiss his claim for alternate medical care.  In the second proceeding, claimant voluntarily dismissed before hearing because defendants agreed to provide the care requested.  In the third proceeding, the employer denied liability for the claim, after getting reports from two doctors questioning causation, and the alternate medical care hearing was dismissed under 876 IAC 4/48(7).

Claimant, after having the AMC petition dismissed, filed a request for a ruling on the petition, based on due process grounds and judicial estoppel.  The deputy issued the final decision of the agency on this ground, and the district court affirmed the agency action.

On the estoppel issue, the court of appeals concludes that judicial estoppel was only available when the party's inconsistent position, in this case the acceptance of the claim, was "judicially accepted" in the earlier decision.  Citing Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 197 (Iowa 2007).  The court noted that without such judicial acceptance, there was no risk of inconsistent, misleading results.  Claimant argued that under Winnebago Industries v. Haverly, 727 N.W.2d 569 (Iowa 2006), judicial estoppel applied.  The court disagreed, noting that in Haverly, there had been a judicial determination (an AMC decision) that the employer was responsible for providing care, and that the employer had admitted as much.  The court found Hedlund more analogous.  In that case, because the agency had not taken a position on the employer's liability, judicial estoppel did not apply.  Similarly, in this case the court of appeals found that because the agency had never issued a decision, judicial estoppel could not apply.

The claimant also urged that the agency's interpretation denied due process.  The court concludes that claimant did not lose a property because he did not have such a property interest because benefits were not being terminated.  Moreover, since Cooksey still had the opportunity for an arbitration hearing, he was not losing the right to hearing on the overall claim.  The action of the agency was affirmed.

The word to the wise from Cooksey is that if an alternate medical care proceeding is filed, it is prudent to from a claimant's standpoint obtain a judicial ruling from the agency on the issue of medical care rather than voluntarily dismissing a claim because the employer agrees to provide care.  It is likely that Cooksey will result in many more alternate medical care claims being pursued to conclusion before the commissioner.
















































































































Court of Appeals Affirms Award Providing 60% Industrial Disability, Finding Claimant Credible and Awarding Costs

In JBS Swift & Co. v. Rodriguez Contreras, No. 13-0172 (Iowa App. Oct. 2, 2013), a case handled by Jamie Byrne of Neifert, Byrne &Ozga, the court of appeals affirms the findings of the commissioner concluding that claimant was credible, increasing the industrial disability award from 20 to 60% and imposing costs against the employer.

At the arbitration level, the deputy had indicated that the claimant was mostly credible.  The employer argued that because the deputy had found that claimant was "credible for the most part," the entire appeal decision was subverted.  The court of appeals noted that the finding that claimant was mostly credible was made because the deputy indicated that many of the questions posed were leading questions.  The court found that "read in context, any doubt expressed by the deputy involves the form of questioning rather than the resulting answers provided by Contreras," and concludes that the credibility finding was supported by substantial evidence.  The court noted that it typically accorded deference to the agency's decision on witness credibility.

The arbitration decision had awarded claimant 20%, which was increased by the commissioner to 60%.  The employer argued that the commissioner erred by relying on Dr. Stoken over Drs. Nelson, Ledet and Acosta in reaching its result.  The court found that the agency had considered the reports of Drs. Nelson and Ledet and noted that they were found unreliable by the commissioner.  They noted that Dr. Acosta had not commented on permanency.  Thus, although the commissioner found the employer's doctors less reliable than the opinions of Dr. Stoken, it was untrue that the commissioner had failed to consider them.

Defendants also indicated that Dr. Mooney should have been relied on over Dr. Stoken, but claimant and her friend testified at hearing that during one of his evaluations, he grabbed the elastic of her pants and snapped the elastic against her sore back.  They also testified that Dr. Mooney had refused to allow the friend into the room and had yelled at claimant in English while giving an injection.  The court found that the commissioner's discounting of Dr. Mooney was appropriate.  The employer argued that because claimant had not sought alternate medical care, she could not raise the credibility of Dr. Mooney's treatment.  The court rejected this argument, stating:  "Simply because the claimant does not write to complain of the care provided, and to seek alternate care, does not equate being fully satisfied with the care provided.  We refuse to assume any such consequence was 'implicitly' intended by the legislature.  Finally, defendants argued that because they had more doctors supporting their position, Dr. Stoken shouldn't have been credited.  The court rejected this argument.

On the increase of the award from 20 to 60%, the court noted that there was substantial evidence to support the findings of the commissioner.  The court noted that claimant had limited English-language skills, was precluded from performing many of her pre-injury jobs, and did not have an option for retraining.  The court considered the opinions of the vocational experts in the case and found that the commissioner was entitled to rely on the opinions of Barb Laughlin.  The court also rejected the argument that the opinion of VE Mailey that claimant lost 45-50% of her earning capacity was a ceiling for industrial disability.

The final issue, and one of importance for practitioners, is that the court affirmed the agency's decision that the entire cost (travel, interview time, research time) of the vocational expert could be assessed as a cost under rule 4.33(6).  The employer had argued that only the time spent writing the report was compensable.  The court concluded that the commissioner "at his discretion, could determine that all of the fees incurred in obtaining Ms. Laughlin's report were 'reasonable' and tax them to Swift."

The Contreras case is another example of the deference shown to the agency in factual matters, but also delves into issues of costs and credibility in interesting ways.


Thursday, October 3, 2013

Court of Appeals Affirms Denial of PTD Benefits, Award of HP benefits on Substantial Evidence Grounds

Claimant was exposed to chemicals while working with his employer, Jeld-Win, Inc.  He developed a sensitivity to those chemicals, missed work because of this, and ultimately had to leave his employment with the company because of his injury.  The agency concluded that claimant had suffered a 25% industrial loss rather than the permanent total disability urged by claimant.  The agency also concluded that claimant was entitled to healing period benefits.  In Deckert v. Jeld-Wen, No. 13-0288 (Iowa App. Sept. 18, 2013), the court of appeals affirmed the decision of the commissioner.

The court found that the agency had provided a detailed explanation for the determination that claimant had suffered only a 25% industrial loss.  The agency had noted that the only restriction on claimant was not being exposed to isocyanate or diisocyanates in the environment.  Claimant had rejected an offer by the company to move to one of their other plants where he would not be exposed.  According to the court, the agency had discussed the conflicting vocational evidence.  Because the findings were supported by substantial evidence, the court affirmed the award of 25% industrial disability.

On healing period, the court affirmed the award of healing period benefits, which had found that claimant was entitled to healing period until he had reached maximum medical improvement.  The court affirmed on substantial evidence grounds.  The court noted that even if this was seen as a challenge to the interpretation of the statute by the agency, there was no error in that interpretation.

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

Zaglauer v. Mercy Medical Center, No. 13-0160 (Iowa App. Sept. 18, 2013), represents another in a long line of cases where the court of appeals affirms the decision of the agency on substantial evidence grounds.  Claimant had tripped at work, causing a torn rotator cuff as well as CRPS, according to some doctors.  At arbitration hearing, claimant was provided with a 15% industrial award for the shoulder injury, but was denied benefits for depression and CRPS, because she had not shown these conditions arose out of her employment.  This finding was affirmed by the commissioner and the district court.  The agency found that claimant was not credible.

The court finds that substantial evidence supported the conclusion that claimant's depression and CRPS had not arisen out of her employment.  The court noted that the doctors who opined her depression and CRPS were causally related to her injury admitted to not having her full history.  The court noted that the commissioner was responsible for determining how much weight expert testimony carries, and concluded it was well within the commissioner's discretion to rely on the opinion of Dr. Pollack over Dr. Bansal.  The court also concluded that credibility determinations were within the province of the commissioner.

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

In Sharp v. University of Northern Iowa, No. 12-2326 (Iowa App. Sept. 18, 2013), the agency had concluded that claimant had failed to prove medical or legal causation and failed to give notice of her injuries.  The court, without elaboration, affirmed the decision of the agency under Iowa R. App. P. 6.1203.

Court of Appeals Reverses PTD Decision, Finding That Substantial Evidence Did Not Support Decision of Agency

In a case which runs counter to most of the cases that appear in these synopses, the Iowa Court of Appeals in Mike Brooks, Inc. v. House, No. 13-0303 (Iowa App. Aug. 21, 2013), held that the decision of the agency was not supported by substantial evidence.  This despite the fact that there was no medical evidence supporting the contention of defendants.  Judge Vaitheswaran dissented and would have affirmed the case on substantial evidence grounds.

Claimant had suffered an admitted injury in March of 2007.  Claimant returned to work, but testified that he continued to experience significant back problems while working.  In January of 2008, he reported to the company doctor that he had pushed a door at work and had felt increased pain as a result of that incident.  He was seen by a surgeon, Dr. Hatfield, who ultimately performed three surgeries.  Claimant returned to work briefly following the first surgery but was unable to continue working as a truck driver.

Dr. Hatfield provided reports indicating that claimant's surgeries and disability was attributable to the March injury.  Dr. Kuhnlein, who provided an IME, came to the same conclusion.  In his report, Dr. Kuhnlein specifically addressed the question of whether the January door opening incident had changed the course of causation, and concluded that it had not.  Dr. Kuhnlein stated that the door opening incident was a sequella of the original incident.  Defendants presented no medical evidence to support their theory that the door opening incident was the cause of claimant's back problems.

The arbitration and appeal decisions concluded that claimant's injury arose out of and in the course of his employment, and specifically out of the March 2007 incident.  Permanent total disability benefits were awarded.  The award was affirmed by the district court.  The court of appeals reversed, finding that Dr. Hatfield was not aware of the door opening incident, and that Dr. Kuhnlein had relied on Dr. Hatfield's flawed report in coming to his conclusions.  Accordingly, the court reversed and remanded the case to the agency for further proceedings to determine claimant's industrial disability prior to the time of the January door incident.

An application for further review was filed at the Supreme Court.  Claimant in the case was represented by Martin Ozga of Neifert, Byrne & Ozga.  NOTE:  Further review was accepted by the Supreme Court and the decision of the Court of Appeals was reversed.  Mike Brooks v. House, 843 N.W.2d 885 (Iowa 2014)


Wednesday, October 2, 2013

Court of Appeals Affirms Case on Substantial Evidence Grounds

In Quaker Oats v. Farar, No. 13-0195 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the commissioner's award of healing period, PPD and medical benefits, finding that the decision of the agency was supported by substantial evidence.  Defendants had argued that claimant's knee problems were due to arthritis rather than his work, and that the injury did not arise out of and in the course of employment.  The court noted that although the weight of the medical evidence was to the contrary, the agency held that claimant's injury had arisen out of and in the course of employment, and noted that the opinion of Dr. Manshadi was sufficient to support a finding of causation.  The court also found that substantial evidence supported the fact that claimant's DVT had arisen as a result of the knee injury and knee replacement, although again there was conflicting evidence.  The employer had also asked for the case to be remanded to the agency to make a more complete record.  The employer argued that the commissioner had not considered the reports of its doctors.  The court, citing Swiss Colony v. Deutmeyer, noted that when a record was inadequate, remand was typically not appropriate, and the issue would be decided adversely to the party bearing the burden of proof. In this case, however, the court found that the agency had considered, but rejected the doctors' opinions proferred by defendants, and that the record was adequate and remand unnecessary.

Court of Appeals Affirms Agency Decision on Substantial Evidence Grounds

In Cardinal IG Company v. Crozier, No. 13-0149 (Iowa App. Aug. 21, 2013), the court of appeals affirmed the decision of the district court without opinion pursuant to Iowa R. App. P. 6.1203.  The court found that action of the agency was supported by substantial evidence.

Court of Appeals Affirms Decision Without Comment

In Hy-Vee v. Schmit, No. 12-2294 (Iowa App. Aug. 7, 2013), the court of appeals concluded that the decision of the agency was supported by substantial evidence and affirms the action of the agency and district court without opinion.  Iowa R. App. P. 6.1203(a), (c), (d).