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.

Sunday, December 28, 2014

Court of Appeals Affirms Finding That Bonus was not Irregular

In Menard, Inc. v. Scheffert, No. 14-1029 (Iowa App. 2014), the Court of Appeals concluded that claimant's rate, which was computed on the basis of having received bonuses, was properly computed by the agency.  The court concluded that the commissioner's finding that claimant's bonuses were not irregular was not irrational, illogical or wholly unjustifiable.

Claimant received a bonus each year that her department was profitable.  From 1996 to 2008, the date of injury in the case, claimant received some amount of bonus, called the TPS bonus.  Additionally, claimant was eligible for an IPS bonus if the store was profitable.  Neither bonus was guaranteed, and could be revised downward based on fines assessed against employees.  Claimant received both a TPS and IPS bonus in the year of the injury, and the agency included these bonuses in determining claimant's rate.  The district court concluded that the agency's findings on this point were not irrational, illogical or wholly unjustifiable.

The Court of Appeals noted that when an agency has been vested with the authority to apply law to fact, "we will only disturb the agency's application if it is irrational, illogical or wholly unjustifiable." A decision is irrational if it is not governed by or according to reason.  It is illogical if contrary to or devoid of logic.  It is unjustifiable "when it has no foundation in fact or reason."

The court noted that irregular bonuses were excluded from the determination of gross earnings.  Because the decision of the agency was not irrational, illogical or wholly unjustifiable, the finding was affirmed.  The court noted that claimant had received some amount of bonus every year she had worked for Menard.  The evidence further demonstrated that claimant was paid a bonus for her work in 2008.  The decision of the agency was affirmed.

Court of Appeals Affirms Commissioner's Denial of Permanency and Medical Care

In Reefer v. Gold-Eagle Cooperative, No. 14-0191 (Iowa App. Dec. 24, 2014), the Court of Appeals affirmed a decision of the commissioner finding that claimant had not demonstrated permanency, nor entitlement to medical care.  The court concluded that there was substantial evidence in the record to support the agency's findings.

Claimant had a back spasm at work, which caused him to fall to the ground.  Dr. Jew, and later Dr. Igram, found that he had back spasms.  Ultimately, Dr. Igram released claimant to work with no restrictions and assigned no permanent impairment.  Claimant sought treatment on his own at the Low Back and Neck Care Institute in Minnesota.  He was diagnosed with spondylosis.  An IME from Dr. Kuhnlein concluded that claimant had a 10% impairment.  Following the finding of MMI by Dr. Igram, claimant's employment was terminated.

At hearing, the existence of a work related injury was stipulated.  The deputy, however, found the injury was temporary and awarded TPD benefits and penalty.  This decision was adopted by the commissioner.  The appellate court noted that substantial evidence governed the proceedings.  Claimant challenged the manner in which the deputy assessed the evidence and presented the facts.  Claimant argued that the commissioner simply listed and summarized the evidence rather than making findings of fact.  The court concluded that the necessary support for the factual findings under section 17A.16 of the Iowa Code was present in the decision.  The court also rejected the claimant's contentions regarding the credibility of the lay witnesses (including claimant) vis a vis the credibility findings concerning the medical opinions. The court noted that medical causation was a question of fact vested in the commissioner's discretion.  Because the decision of the agency was supported by some evidence on the record, the court affirmed the decision of the agency.

Friday, December 19, 2014

Supreme Court Upholds Imposition of $1000 Fine for Failure to File First Report

In Denison Municipal Utilities v. Iowa Workers' Compensation Commissioner, 857 NW2d 230 (Iowa 2014), the Iowa Supreme Court upheld a $1000 fine against the employer and EMC Insurance Companies for failing to file a first report of injury.  The employer had argued successfully before the district court that it was not required to file a first report in a case where claimant had not missed any work and had made no claims of permanency.  The Supreme Court reversed the decision of the district court.  The court also concluded that the employer had not made a sufficient showing of good cause to avoid the $1000 assessment.

The action was precipitated when claimant filed an application for alternate medical care and the agency noted that no first report was on file.  The employer was given 30 days to file a first report, but did not do so.  Before the agency the employer argued that section 86.12 only allows a penalty when the first report is required by section 86.11.  The employer also argued that the statute (86.11) did not require a first report since claimant had not missed work and there was no claim of permanency.  The employer argued that 86.12 only allowed the $1000 assessment when a first report was required by 86.11.  The deputy concluded to the contrary, noting that the commissioner could require information under section 86.10 and by rule.

The court first dealt with a procedural issue and found that the claim should have been styled a request for a writ of certiorari rather than a petition for judicial review, since the commissioner cannot be named as a party in a judicial review action under section 86.29.

The court noted that the workers' compensation statute was to be liberally construed.  The court indicated that the statute (86.12) allowed the commissioner to require that information and reports were to be provided the agency, in addition to reports of injuries under section 86.11.  Section 86.12 also provided the agency with an enforcement mechanism to compel compliance.  86.12 provides for the filing of reports in three circumstances - where required by 86.11, where required by section 86.13, or where required by agency rule.  The court noted that this section was written in the disjunctive and allowed the agency to write rules to mandate reports in addition to the requirements contained in the Code.  In this case, rule 876 - 3.1 required the filing of a first report when demanded by the commissioner under 86.12 or when an original notice and petition was filed for which a first report has not been filed.  The court noted that the agency's rule was within the power of the agency to enact, and further noted that there were practical reasons for filing a first report after a claim had been filed with the commissioner, such as notice.  Failing to file the first report, according to the court, hampered the ability of the agency to determine whether notice of an injury had been accomplished.  Furthermore, the requirement for a first report was consistent with the commissioner's broad information gathering and reporting duties.  For these reasons, the commissioner was within his power to require the employer to file a first report.

The court rejected the good cause argument of the employer.  The court concluded that the only good cause reason presented by the employer was its belief that no first report was required.  In the face of a request for filing and the opportunity for a hearing, no good cause was presented.  The court therefore found the imposition of the $1,000 assessment justified.

Justices Waterman and Mansfield dissented.  The dissent was premised on the fact that section 86.11 did not require a first report because no time was lost and no permanency was involved in the case.  The dissenters argued that the agency cannot amend the statute by rule.  They argue that the rule, which states that a first report must be filed "when demanded by the commissioner pursuant to Iowa Code Section 86.12" does not allow for the commissioner to demand a first report in other circumstances.  Of course, the rule goes on to indicate that a first report is to be filed "when an employer is served with an original notice and petition that alleges an injury for which a first report has not been filed," which would seem to be the circumstance in this case.

Although this case might be seen to have been the part of a direct challenge to the agency by the employer, counsel for the employer argued that the failure to file the report was simply an oversight. The dissenters see this decision as a case of overregulation by the agency rather than a simple request to file a first report.  The dissenters acknowledge that the burden in this case was slight, but go on to warn that "the burdens imposed other other rules could be onerous," without citing any specific onerous burden to which employers could be subjected.

Wednesday, November 26, 2014

Court of Appeals Affirms 60% Industrial Disability Award, Agrees on Commencement Date For Permanency

In Menard, Inc. v. Bahic, No. 14-0239 (Iowa App. Nov. 26, 2014), the commissioner found a 60% industrial disability and concluded that the commencement date for permanency was October of 2012.  Defendants urged the court to reverse, arguing that permanency should commence in May of 2011 and that the industrial disability award was inappropriate.  The court of appeals affirmed the decision of the agency.

Claimant suffered a stipulated injury to his back in August of 2010.  Dr. Igram, although finding that surgery was not appropriate, imposed 20 pound restrictions on claimant, which precluded his former, heavy, work.  Claimant was placed on a job in the sales department answering phones and helping customers.  He worked on this job from February of 2011 until his termination in July of 2011. He received temporary partial disability benefits during this time, because he was often not provided with his former hours of work.

The employer sought to place claimant in a sales representative job, but a background check revealed he had been convicted of a felony and he was terminated for falsifying his initial job application by not including reference to the felony.  The employer ceased paying TPD benefits at this time and converted the benefits to permanency benefits.  Claimant continued to receive treatment for his injury and was ultimately found to be at MMI on October 8, 2012.

Before the agency, the employer made two arguments concerning the conversion to permanency.  The first was that claimant should have been found at MMI in August of 2011, per the reports of Dr. Igram.  The second is that claimant was no longer eligible for temporary benefits because he had committed job misconduct.  The deputy concluded claimant had a 60% industrial disability, and that permanency was to commence in October of 2012.  The decision was affirmed by the commissioner and by the district court.  The district court noted as of the date of his termination, there was an inability on the part of the employer to offer suitable work.

Before the court of appeals, the employer argued that temporary benefits should have ended in May of 2011 (despite agreement at hearing that permanency did not commence until August) and that commencing permanency in October of 2012 was irrational and illogical.  The employer contended that claimant was not working in a light duty job, but had actually acquired a new permanent job.

The court first notes that claimant was received TPD benefits in the period from May through July, which conflicted with the employer's contention as to the ending date of the healing period.   The court found no merit in the employer's argument that permanency should commence in May.  The court concludes that substantial evidence supported the conclusion that claimant reached MMI in October of 2012, which became the commencement date for permanency.  Note that although the employer appears to have raised the issue of job misconduct as a defense to payment of benefits, the court of appeals does not directly address this issue, simply referring to this issue in a footnote.  The court also affirmed the 60% industrial disability award.

Court of Appeals Affirms Award of Temporary and Permanent Benefits

Catholic Health Initiatives v. Hunter, No. 14-0202 (Iowa App. Nov. 26, 2014) involved questions of causation, healing period benefits, permanency benefits and medical care.  The Court of Appeals affirmed the commissioner's award of benefits.

Claimant had systemic lupus and was receiving social security disability benefits, but returned to work after those benefits were terminated.  She suffered a traumatic injury to her left wrist, hip and knee, and also complained of headaches as a part of this injury.  Following this incident, claimant had a fall at home and visited the doctor following that fall.  Claimant's symptoms had largely resolved when she slipped and fell again at work on March 3, 2010 (the earlier injuries were in 2009).  She was placed on work restrictions following this fall.

Claimant was offered light duty work during the day, but could not perform that work because of family obligations.  No light duty work was available at night.  Claimant was placed on FMLA leave, but she was shortly thereafter released without restrictions.   After her return to work, she continued to have symptoms in her hip and back, and began missing days at work.  In December of 2010, she was terminated for exceeding the annual amount of FMLA leave allowed by the employer.  The treating physician (Dr. Mahoney) found claimant had not reached MMI, but the IME physician (Dr. Epp) found MMI and provided 10 pound lifting restrictions.

The decision of the agency found that the injury was related to claimant's work, awarded a brief period of temporary benefits in March of 2010, and placed claimant on a running healing period.  Before the court of appeals, the employer argued that claimant was capable of performing employment that was substantially similar to that she had performed before her work injury.  The agency had found that although claimant had no formal restrictions, the employer had allowed modifications in order to allow claimant to continue working.  The court of appeals agreed, holding that this finding was supported by substantial evidence.

With respect to causation for the hip injury, the court also found substantial evidence supported the decision of the agency.  The court noted that the finding of credibility by the agency was to be accepted, noting that the fact finder had the opportunity to view the witness.  The court found that both the hip injury and an injury to the neck were related to claimant's work activities.

During the course of proceedings, claimant had sought care from Dr. Mahoney, and sought reimbursement of his costs.  The agency noted that that care provided by Dr. Mahoney was entirely reasonable and had been beneficial to claimant.  Under Bell Bros. v. Gwinn, the agency and court concluded that reimbursement of the costs for beneficial care was appropriate.

Thursday, November 13, 2014

Court of Appeals Affirms District Court Decision in Review Reopening Case

Following the settlement of a claim for 12% industrial disability and healing period benefits, claimant filed for review-reopening.  The agency concluded that claimant had established a material change in conditions since the time of the settlement, found that additional permanent impairment had been established and concluded that past and future medical expenses should be paid by defendants.  The district court affirmed the finding that there had been a change in circumstances and that claimant was entitled to medical care, but remanded the case for a finding of whether additional industrial disability had been incurred.  On appeal, the Court of Appeals affirms the findings of the district court.  Anderson News v. Reins, No. 14-0038 (Iowa App. Nov. 13, 2014).

Following the settlement, claimant continued to treat with Dr. Kirkland, and he indicated that claimant did not have any further impairment or restrictions.  Because of the closure of claimant's employer, she was working in a different job at the time of the hearing, doing similar work, but paying .25 per hour less.  Dr. Quenzer, who had performed an earlier surgery, found that there was a 4% increase in the impairment to her upper extremity. Dr. Basil (Bansal?) found a 4% increase in impairment plus some loss in claimant's range of motion.  Dr. Quenzer recommended a high yield MRI of the claimant's shoulder to determine whether surgery would be appropriate.

The court noted that worsening of a claimant's physical condition was a way to satisfy the review reopening requirements, but noted that the principles of res judicata applied.  The employer argued that there must be "a substantial worsening of the claimant's condition to permit a review reopening." The court rejected the argument that Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) had imposed a requirement that a "substantial worsening" was required.   The court concluded that the commissioner's finding that claimant had suffered a worsening of her condition was supported by substantial evidence.

The court also agreed with the district court that the commissioner had failed to explicitly consider whether claimant had suffered a loss of earning capacity that would warrant an increase in benefits.  The decision of the commissioner had not demonstrated how there had been a loss of earning capacity since the time of the settlement and noted that "her economic condition has actually improved considerably." The court remanded for the agency to make a finding of claimant's loss of earning capacity.

On the issue of future care, the finding that Dr. Quenzer had recommended a high yield MRI and the commissioner's confirmation of this fact was found to be supported by substantial evidence, and this finding was also affirmed.

Court of Appeals Affirms Denial of Petition for Interlocutory Review

In a case involving only procedural issues, the Court of Appeals affirmed the finding of the district court that it did not have jurisdiction to hear an interlocutory appeal of a case that presented the issue of whether workers' compensation or the Municipal Fire and Police Retirement System of Iowa (MFPRSI) governed the issue of compensation for claimant.  City of Davenport v. Timm, No. 13-1357 (Iowa App. Nov. 13, 2014).  Claimant was a police officer who was injured while enrolled in the Iowa Law Enforcement Academy.  She returned to work, but because she was limited to simple office tasks, she was asked to resign, and told that if she did not resign she would be terminated.

Following her resignation, claimant applied for a disability pension with MFPRSI and learned that her resignation disqualified her from benefits under that system.  She then filed for benefits under Chapter 85.  The city moved to dismiss the workers' compensation proceeding for lack of subject matter jurisdiction.  This motion was denied, but a motion for summary judgment was filed, and this was also denied, premised on the fact that it was based on the same facts as the motion to dismiss.  On appeal, the commissioner found there were two distinct proceedings, and remanded the summary judgment motion for a decision.  Summary judgment was granted by the deputy.  The commissioner reversed this finding, and remanded for a finding on the merits of the workers' compensation claims.

At this juncture, the employer filed a petition for judicial review and an application to stay the agency action.  The district court, acting sua sponte, concluded that it did not have subject matter jurisdiction over the petition for judicial review because the requirements for interlocutory review were not satisfied.  The petition was dismissed and the request for stay denied.

On appeal, both parties agreed that there had been no final agency action, and thus the judicial review action was interlocutory. The court noted that there is a two part inquiry for determining whether interlocutory appeal was appropriate.  First, the moving party must demonstrate that administrative remedies had been exhausted.  Second, the moving party bears the burden of establishing that waiting for the administrative process to conclude would not be an adequate remedy.  Citing City of Des Moines v. City Dev. Bd., 633 N.W.2d 305, 309 (Iowa 2001).   To demonstrate inadequacy of the remedy, the party must demonstrate "irreparable injury of substantial dimension."

The court noted that the city's argument was that section 85 did not apply to persons who are entitled to benefits under chapters 410 and 411 of the Code.  The city argued that it was irreparable harm to have the city "undergo litigation it was never intended to undergo."  The court noted that the city had not presented evidence of a legislative intent that the workers compensation statute, section 85.1(4), granted immunity or a deprivation of subject matter to the agency.  Rather, the agency was allowed to determine this question in the first instance, as it had done.  The court found that the city's argument assumed its own conclusion, that claimant was eligible for benefits under chapters 410 and 411 and thus not eligible for benefits under chapter 85.  The court found it was impossible to judicially review the agency's conclusion on this issue when no such conclusion had yet been reached.   The court noted that the agency process should be allowed to reach its conclusion before judicial review would be appropriate.  The action of the district court was therefore affirmed and the case remanded to the agency.

In dissent, Justice Vogel argued that the commissioner had concluded that claimant's only remedy was under chapter 85, and thus had already decided the question of jurisdiction, making the claim ripe for review at the district and appellate court levels.  The dissent would not have required the case to be sent back to the agency for a decision on the merits inasmuch as a decision had already been reached on the question of whether the workers' compensation statute applied.

Friday, November 7, 2014

Court of Appeals Affirms 25% Industrial Award in Traumatic/Cumulative Injury Case

In West Des Moines Community School District v. Fry, No. 13-1391 (Oct. 19, 2014), the court of appeals affirmed the commissioner's order finding that claimant had suffered an injury that had both traumatic and cumulative aspects.  Claimant had suffered two traumatic injuries at work, one in 2007 causing injury to his left hip, collarbone and left shoulder and the second incident in 2008 causing injury to the left hip and SI joint.  Claimant initially filed claims relating to both injuries, but subsequently dismissed the 2007 claim.  With respect to the 2008 claim, claimant alleged that the injury was both acute and cumulative.

The arbitration decision rejected the findings of Dr. Stoken because she had lumped together the two injuries from 2007 and 2008.  On appeal, the commissioner reversed, relying on the opinions of claimant's family physician, Dr. Honsey, as well as Dr. Stoken's IME.  The commissioner noted that Dr. Honsey had concluded that claimant's pain in her SI joint had worsened following the October 2008 injury.  The commissioner also found that this injury was the cause of permanent impairment and activity restrictions by Dr. Stoken.

The court first addressed a question of error preservation.  The employer had alleged only a substantial evidence question on judicial review, but on appeal also alleged abuse of discretion.  The employer argued that although the argument was phrased differently at the appellate level, the argument was essentially the same.  The court concluded the the employer's objection of the "combining" of Dr. Honsey's opinion with that of Dr. Stoken was not properly before the court, but recognized that the "distortion" of the expert opinions underlies the employer's substantial evidence argument.

The employer argued that there was no evidence that claimant had suffered a cumulative injury to the SI joint and that the only injury to that joint was attributable to the 2007 traumatic injury.   Claimant responded that there was a traumatic aspect to the SI injury from the 2008 events and that the case law allowed the traumatic injury to "represent the manifestation of a cumulative injury."  The court found this argument persuasive.  The court noted that the acceptance of a gradual injury as the mechanism of harm "did not exclude the idea that acute injuries can contribute to the employee's compensable disability under the cumulative injury doctrine."  The court noted that in between the 2007 and 2008 acute events, claimant had performed rigorous and repetitive work for the school district.  Citing Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), the court concluded that claimant could recover by way of a cumulative injury claim for any functional disability resulting from his day to day activities at the school, subsequent to his fall in January 2007.  The court rejected the employer's argument that the commissioner's action was irrational, illogical or wholly unjustifiable.

The court went on to note that substantial evidence supported the commissioner's action in crediting the reports of Dr. Stoken and Dr. Honsey.  The court citing the Gits v. Frank case issued in October of 2014 by the Supreme Court, noted that "the commissioner does have authority to pick and choose which aspects of an expert opinion deserve weight."

The court also affirmed the award of healing period benefits, medical expenses and alternate medical care, without substantial discussion.  An application for further review was filed and denied by the Supreme Court on January 21, 2015.

Court of Appeals Affirms Declaratory Order Requiring Divulgence of Surveillance Materials

The Court of Appeals, in a case that is likely to be heard by the Supreme Court, has held that the Commissioner's Declaratory Order indicating that section 85.27 required the release of surveillance materials once surveillance had been conducted was appropriate.  Iowa Insurance Institute et al. v. Core Group of the Iowa Association for Justice, No. 13-1627 (Oct. 29, 2014).  The court, in a 2-1 decision, found that section 85.27 of the Code, in its requirement that the release of all information was required in a workers' compensation case, encompassed the disclosure of surveillance materials.

The declaratory order proceeding had been brought by the Core Group of the Iowa Association for Justice (Core Group) before the commissioner to obtain an order elucidating the commissioner's position on this issue.  The Iowa Insurance Institute and other employer and defense counsel groups intervened in the proceedings at the commissioner level.  An initial question in the case was whether the commissioner had the power, under section 17A.9 of the Iowa Administrative Procedure Act, to rule on the declaratory order petition.  The court found that there were sufficient facts to demonstrate that petitioners would be aggrieved by the commissioner's failure to issue an order, and found that a stringent standing requirement was inconsistent with the precept that declaratory orders may be based on hypothetical facts. The court also found that the questions presented were appropriate in a declaratory order proceeding.  Finally, the court noted that the ruling did not prejudice other parties who were not parties to the proceeding because those parties were not bound by the ruling (although as a practical matter, the commissioner's determination provides a clear clue as to how a surveillance question would be ruled on in proceedings outside the declaratory order proceeding.   Accordingly, the court agreed that the commissioner had the power to hear the action, a finding joined by all judges on the panel.

On the merits of the case, the majority of the court held that, because of the expansive wording of section 85.27, the requirement that surveillance materials be released was consistent with the statute.  The court noted that section 85.27 required the release of information concerning the employee's physical or mental condition, which the commissioner had applied to surveillance materials.  The court rejected the contention that the release of information applied only to materials held by third parties, noting that the statutory language requiring the "release of all information" was more encompassing than defendants alleged.  The court rejected the contention of appellants that the "release of information"  applied only to the release of medical records.  According to the court, the use of the word release "means disclosure to the other parties in the workers' compensation proceeding."  The court noted, citing Morrison v. Century Eng'g., 434 N.W.2d 874, 877 (Iowa 1989) that the term release was part of a broad discovery rule designed to "foster and encourage a ready access to the information necessary to speedily process workers' compensation claims."

The court also noted that the commissioner, in ordering the release of surveillance materials prior to deposition, was acting contrary to previous decisions from the agency.  The court noted that section 17A.19(10)(h), which involves judicial review of agency action, authorizes judicial review when a ruling is inconsistent with the agency's prior practice.  The court notes that this provision had been narrowly construed.  Furthermore, the commissioner had explained his reasoning in rejecting the earlier rule.

Finally, the court rejected appellants' contention that disclosure destroyed the work product privilege.  The court noted that the work product privilege applied only to those items that disclose the mental impression, conclusions, opinions or legal theories of the attorney representing the party in litigation.  The court found that the mental impressions of counsel were not revealed by discovery of surveillance materials.  The court also noted that the burden of asserting the work product privilege under section 85.27(2) was placed on the party asserting it.  The court found that there was no conflict with the statute on this point.  The decision of the commissioner was affirmed.

In his partial dissent, Judge McDonald argues that when read in context, section 85.27(2) limits all information to "medical records and similar or related documents that typically, although not necessarily would be held by third parties."  The dissent focuses on the legislative history of this provision, which referenced "the release of information concerning a person's past physical or mental condition.  The dissent would conclude that 85.27(2) did not apply to surveillance materials and reports.

The dissent goes on to indicate that privileges are not waived under the statute.  In making this argument the dissent essentially ignores the language of the statute stating that the parties to a workers' compensation claim "further waive any privilege for the release of information."  The dissent cites to general work product principles and cases without focusing on the terms of the statute.  The dissent criticizes the commissioner for conflating attorney-client privilege and the work product doctrine.  The dissent argues that the work product doctrine is not a privilege and thus is not waived under the statute.  The dissent would reverse the decision of the commissioner.

Because of the importance of the issues presented in this case, it is likely that further review will be sought by the Supreme Court, and also likely that review will be granted.  For the time being, however, the position of the commissioner, that surveillance materials are discoverable prior to deposition and that the party asserting the right to withhold the information bears the burden of demonstrating why the material should not be disclosed, has been upheld by the Court of Appeals.


Monday, October 27, 2014

Court Affirms Permanent Total Disability Award

In Marten Transportation, Ltd. v. Bowes, No. 13-0528 (Iowa App. April 16, 2014), the court of appeals reversed the decision of the district court, which itself had reversed the commissioner's permanent total disability award.

Claimant was a truck driver, who injured her back and elbow when she fell from her truck.  Claimant sought industrial disability, but did not rely on the odd lot doctrine in attempting to determine the extent of her injury.  In the arbitration decision, the deputy cited to a case which referenced the odd lot doctrine.  The deputy concluded that claimant was unable to perform a sufficient quantity and quality of work to remain employed in a well-established branch of the labor market.  Defendants appealed, and the commissioner affirmed. On rehearing, defendants claimed that the commissioner had erroneously applied the odd lot doctrine.  The commissioner stated that the  odd lot doctrine had not been considered, either at the arbitration level or on appeal.

The district court concluded that the arbitration decision had applied the odd lot doctrine and remanded to the commissioner for further proceedings.  At the appellate level, the court noted that the deputy's arbitration decision is not reviewed on judicial review, only the final decision.  Citing Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 358 (Iowa 1999).  Ultimately, the Court of Appeals concluded that the commissioner, particularly in his rehearing decision, had specifically indicated that the odd lot doctrine was not a part of the decision, and thus the district court's reversal was improper.  The court stated that the district court had "engaged in impermissible second-guessing."

Because the district court had not ruled on the question of whether the permanent total disability award was supported by the record, the court referred the case to the district court for further proceedings.

Friday, October 24, 2014

Court of Appeals Affirms 35% Industrial Disability Award

In Emco v. Sehic, No. 14-0336 (Iowa App. Oct. 15, 2014), the court affirms a 35% industrial disability finding based on the substantial evidence.  The medical records in the case would have provided support for the conclusion that there was no objective evidence to support work restrictions, but the commissioner found, based on other medical evidence, that there had been a permanent impairment and restrictions were appropriate.  Based on this, the commissioner concluded that a 35% industrial award was appropriate.

Three of defendants' doctors (Drs. Iqbal, Adelman and Boarini) concluded that claimant's complaints were minor and subjective in nature (although there was a degenerative condition found in the neck and back).  Dr. Delbridge and Dr. Bansal found that there were back and neck problems and found impairment and restrictions.  Following these opinions, Dr. Neff issued a report indicating that the injury was not related to claimant's work.

Claimant worked for a time following his injury in an accommodated position, but eventually left that position because he did not believe he could perform the work.  On these facts, a 35% industrial disability finding was made, which was affirmed by the commissioner and the district court.

On review, the employer claimed that because there were numerous medical opinions indicating that claimant had not suffered a disability, and the deputy commissioner had indicated that his pain complaints were out of proportion to the medical evidence, a reversal of the decision was required.   In reviewing the case, the court noted that under Mike Brooks v. House, 843 N.W.2d 885, 889 (Iowa 2014), "our analysis is shaped largely by the deference we are statutorily obligated to afford the commissioner's findings of fact."  The court noted that "however attenuated from the weight of the evidence the commissioner's decision may be, as long as there is some evidence supporting the conclusion, we must affirm the commissioner."  Accordingly, despite the finding that claimant was not completely credible, substantial evidence was found to support the decision.

Both the Supreme Court and Court of Appeals appear to be in accord that so long as some evidence supports the decision of the commissioner on factual issues, the decision will be affirmed on substantial evidence grounds.

Wednesday, October 22, 2014

Court of Appeals Affirms Denial of Benefits on Substantial Evidence Grounds

In Hinegardner v. Imon Communications, No. 14-0030 (Iowa App. Oct. 15, 2014), claimant alleged that substantial evidence did not support the commissioner's findings regarding credibility or medical causation.   As in most other such cases, the party arguing against substantial evidence loses on review.  The court affirmed the denial of benefits by the agency.

Claimant participated in a recorded statement with the adjuster following his back injury, and noted that he had surgery in 1976 for his back and had not treated with a doctor for years.  As it turned out, claimant had a lengthy history of treatment for lower back pain, which continued through 2008, the date of the injury.  Claimant alleged an injury two weeks after he started for the employer, after attempting to pick up a reel of cable weighing approximately 80 pounds.

Doctors who opined indicated that claimant had an exacerbation of his back condition as a result of the work incident, but Dr. Gordon stated that "to say something was aggravated from a pathological standpoint would really be hypothetical conjecture.  Following hearing, the deputy found claimant was "not an especially credible witness" particularly given his denial of treatment for his back in the recorded statement.

The Court of Appeals first addressed the question of credibility, finding that due regard was given to the commissioner's discretion to accept or reject testimony based on his assessment of witness credibility.  The court concluded that the credibility finding was supported by substantial evidence. On the credibility question, claimant also raised an issue under section 17A.19(10)(f) of the Code, which addresses credibility determinations by a presiding officer who personally observed the demeanor of the witnesses.  Claimant argued that because the credibility determination was made based on statements made outside of the hearing (at the recorded statement), this was not entitled to deference.  The court noted that demeanor is only one of many factors to be determined in testing credibility.  The court concluded that substantial evidence supported the findings that claimant was not credible.

The court also concluded that substantial evidence supported the finding that claimant had not demonstrated medical causation.  The court cited the familiar refrain that the weight and credibility assigned to experts' opinions was for the commissioner to determine.  The court found there was substantial evidence to support the commissioner's conclusions and affirmed the denial of benefits.

Hinegardner is another cautionary tale that if you are appealing a case based on a lack of substantial evidence, there are major hurdles to overcome that likely cannot be surmounted.  This applies regardless of whether the appeal is from claimants or defendants.

Court of Appeals Affirms Award of Healing Period Benefits In Review-Reopening Case

The court in Hill Concrete v. Dixson, No. 13-1778 (Iowa App. Oct. 15, 2014), addressed issues of healing period benefits in a review-reopening proceeding.  Defendants argued that healing period benefits can only be awarded on review reopening when the claimant's condition warrants additional benefits under section 86.14(2) rather than when claimant had reached MMI under section 85.34(1).  The court initially concludes that the timeframe for healing period benefits under 85.34(1) applies in review reopening proceedings, Since the decision of the agency finding that MMI had not occurred until May 4, 2012, the award of healing period benefits from July 16, 2010 to May 4 was appropriate.

The case had originally been settled by the parties for 55% industrial disability, and claimant subsequently developed pain in his hip resulting in a hip arthroplasty.  Dr. Mahoney took him off work following the arthroplasty, and ultimately found MMI on May 4, 2012.  The agency awarded healing period benefits, despite defendants' argument that claimant was pain free as of July 16, 2010. Defendants argued that section 86.14(2) "does not allow for continued healing period benefits once there has been a removal of the change of condition that warranted a re-initiation of healing period benefits in the first place."

The court concludes that in a review-reopening proceeding, "we find no support in either the Iowa Code or our case law indicating section 85.34(1) does not govern the timeframe in which healing period benefits can be awarded."  The court notes that defendants conceded that an increase in compensation was demonstrated when he proved the need for hip replacement surgery.  The court concludes that there is nothing in the review reopening statute that changes the standard for awarding healing period benefits, and finds that it would be "illogical" to have a different set of standards for healing period in the review-reopening context.

With respect to healing period, the court concludes that substantial evidence supported the conclusion that benefits did not end until May 4, 2012, when Dr. Mahoney found MMI.  The agency decision awarding healing period benefits was affirmed.

Tuesday, October 21, 2014

Court of Appeals Affirms Judgment Under Section 86.42

In Mercy Hospital v. Goodner, No. 13-1748 (Iowa App. Oct. 15, 2014), the Court of Appeals address an issue involved section 86.42 of the Code and the interpretation of the commissioner's order.  The order had provided that defendants were to provide permanent total disability benefits from January 18, 2000, except for any periods of time claimant returned to employment.  The question presented was whether claimant was entitled to benefits during periods where she worked partial weeks.  The court finds that she was entitled to TPD benefits during those weeks.

The court begins by noting that under Rethamel v. Havey, 679 N.W.2d 626 (Iowa 2004), the district court is bound to enter a judgment in conformance with the workers' compensation award.   Following an earlier visit to the Court of Appeals, defendants paid no additional benefits.  Claimant filed the 86.42 action following the issuance of the earlier decision, and the district court asked whether the case should be remanded to the agency.  Defendants indicated that the district court could properly decide the case.  The parties reached a stipulation as to the dates claimant actually worked, so that was not in issue.  The district court found that claimant was entitled to partial benefits in any week she had worked less than full time hours.  The court found this was clearly contrary to the commissioner's ruling.

Defendants disputed claimant's contention that the court should construe the award in a manner that was reasonable, arguing that the award must be construed solely upon the legislative policy.  The Court of Appeals agreed that the order could be construed on a reasonable basis.  This is consistent with the code provisions providing for temporary partial disability benefits.  The court concluded that the district court's judgment properly construed the agency decision.

Supreme Court Again Reinforces Vitality of Substantial Evidence in Odd Lot Case

In Gits Mfg. v. Frank, 855 NW2d 195 (Iowa 2014), the Supreme Court once again noted that the determination evidentiary issues, including medical causation and the extent of industrial disability, is within the peculiar province of the commissioner, and absent unusual circumstances, should be determinative on appellate review.  In doing so, the court reversed the decision of the Court of Appeals, which had concluded that substantial evidence did not support the finding of permanent and total disability.

The agency concluded that claimant was permanently and totally disabled under the odd lot rule.  This determination was reversed by the Court of Appeals, which concluded that substantial evidence did not support the agency's finding.  The Supreme Court noted that substantial evidence supports an agency's decision even if the interpretation of the evidence may be open to a fair difference of opinion, citing Arndt v. City of LeClaire, 728 N.W.2d 389, 393 (Iowa 2007).

The Court of Appeals had discredited the evidence that claimant had no reasonable prospect of steady employment in the competitive labor market.  The Supreme Court noted that under Arndt, the reviewing court "only determines whether substantial evidence supports a finding 'according to those witnesses whom the commissioner believed.'"  The court noted that although there was conflicting evidence on the question of whether claimant was permanently and totally disabled, but that ultimately this was a decision for the agency.  The court also noted that the commissioner's consideration of lay evidence was appropriate and noted that "it is a fundamental requirement that the commissioner consider all evidence, both medical and nonmedical."  The court further noted that lay witness testimony was both relevant and material upon the cause and extent of injury.  Citing Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 421 (Iowa 1994).  The court concluded that claimant had made a prima facie case for odd lot based on the medical and vocational testimony, as well as lay testimony.  Although the employer presented evidence of employability and a different fact finder may have made a different finding, the court concluded that substantial evidence supported the decision of the agency.

Although the court was also presented with an issue involving the credits owed to the employer, this issue was summarily affirmed without discussion.

In three cases over the last three years, the Supreme Court has accepted cases for further review where the primary issue was whether the commissioner's opinion was supported by substantial evidence.  In all of these cases  (Cedar Rapids Community School District v. Pease, 807 N.W.2d 839 (Iowa 2011); Mike Brooks v. House, 843 N.W.2d 885 (Iowa 2014), and Gits) the agency had ruled that claimants were permanently and totally disabled and the Court of Appeals had reversed that finding.  The Supreme Court, based on the substantial evidence rule, reversed the COA in all three cases, seemingly providing notice that the agency is to be given deference when making factual findings concerning causation and extent of impairment.

Court of Appeals Affirms Award of Permanent Total Disability

In Con-E-C v. Nowatzke, No. 14-0470 (Iowa App. Oct. 1, 2014), the court of appeals affirmed a finding of permanent total disability based on substantial evidence.  The court, in its initial statement of the case notes that review of final agency action is "severely circumscribed", that nearly all disputes are won or lost at the agency level, that judgment calls are within the province of the agency, and that it is the commissioner and not the courts, that weight the evidence and assesses credibility.

Claimant suffered a low back injury while working for the employer.  The agency concluded that the injury was causally related to claimant's work and concluded that claimant was an odd lot worker.  The court ultimately affirms the agency based on the district court's thorough and well-reasoned ruling, without additional analysis.  Citing Iowa Ct. R. 21.26.

Court of Appeals Addresses Issues of Rate, Penalty and Costs

In Vitzthum v. KLM Acquisition Corp., No. 13-1441 (Iowa App. Oct. 1, 2014), the court of appeals addressed questions related to the correct rate, the imposition of penalties and costs.  The court affirms the rate questions, finds that there was substantial evidence to support the denial of penalties and affirms the costs findings of the commissioner.

At the appeal level, the commissioner found that the higher rate urged by claimant ($305.29) was correct, but refused to impose penalties for the underpayment of rate on the employer.  The district court affirmed this amount, but remanded for further fact-finding on the issue of penalty benefits based on the underpayment of the correct weekly rate after July 1, 2009, the date the new penalty statute (section 86.13(4)) went into effect.

The court concludes that the rate was correctly determined, finding that the usual calculation method in section 85.36(6) controlled.  The employer had argued that its payment of wages was so unique that it "eluded sensible outcomes under the typical statutory calculations."  The court found that the deputy's conclusions of law gave a sound reason for reaching the calculated amount, and appropriately excluded weeks where claimant had taken time off.  Substantial evidence supported the agency's findings.

On the penalty question, claimant argued that there was no showing of a reasonable excuse for the delay or underpayment of benefits.  The employer argued that penalties after the revised penalty statute should be reversed.  In addressing this question, the court of appeals addresses the question not only on the basis of a reasonable basis for denial of the claim, but on whether the actions of the employer were fairly debatable.  The court cites a number of penalty cases decided prior to the amendments to section 86.13.  The court finds that the penalty statute is prospective in operation.  Claimant argued that the employer owed penalty on virtually all benefits because every payment since the second payment has been delayed.  Claimant had presented a table to express her opinion about the due date of each payment.  The court concluded that payments were made when they are mailed to claimant.  The court concludes that "because Vitzthum has failed to support her unilaterally declared due dates with any particularized legal citation or factual assertion, we find that Aluma's payment scheme comports with Robbenolt [v. Snap-On Tools Corp., 555 N.W.2d 229, 237 (Iowa 1996)].  The court also criticizes claimant's argument with respect to a rolling delay of payment of benefits, stating:

         There is no indication Vitzthum believed this rolling late payment scheme was in effect as she             received the payments.  On the facts of this case, Vitzthum's rolling delay concept casts the                 impression of a litigation strategy designed to maximize potential penalty benefits.  But we find           no support for such a concept in our law, and indeed, Vitzthum has not cited any.

The court finds that claimant failed to meet her burden to demonstrate a delay or denial of benefits.  The court also concludes that the employer had a fairly debatable basis for its rate of benefits payments made before July 1, 2009, but remands because the agency did not analyze the alleged underpayment under the revised version of section 86.13.

On the issue of costs, the court concludes that the agency's assessment of costs equally to the parties was not an abuse of discretion.  Similarly, costs were appropriately divided at the district court level because of the claimant's partial success at that level.

It is difficult to say with any certainty whether Vitzthum will have much of an impact on future penalty claims.  The claims made were largely very narrow and decided by the agency and court on factual grounds.  The COA seems to rely on the "fairly debatable" language of bad faith cases despite the fact that this language is not contained in the revised statute.  Nonetheless, the COA also clearly notes that the agency must analyze penalty cases based on the words of the statute and the failure to do so will lead to a remand.


Thursday, October 16, 2014

Court of Appeals Affirms Denial of Benefits on Review Reopening - Concludes that a "Change" Must Occur Before Review Reopening Benefits are Payable

In Hallett v. Bethany Life Communities, No. 13-1591 (Iowa App. Aug. 27, 2014) the Iowa Court of Appeals concluded that the review reopening statute required claimant to prove a change in her physical or economic condition in order to establish eligibility for additional benefits on review reopening.  In doing so, the court affirmed the decision of the agency, at both the deputy and appeal levels, which had also required claimant to demonstrate a change.

Claimant had argued that the statute, section 86.14 of the Iowa Code, did not contain the word change, and provided that a review-reopening was appropriate if claimant demonstrated that her condition warranted an increase in compensation.  The court rejected this argument, finding that the argument is "foreclosed by a string of controlling authority to the contrary."  The court cited Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) among other cases which had used the word change in a review reopening case.  The court indicated that it was "not at liberty to ignore these decisions or overrule them."  Turning to the merits of the case, the court found that the agency's conclusion that claimant's condition had not changed was supported by substantial evidence and that the agency did not abuse its discretion.

Hallett was handled by Martin Ozga of Neifert, Byrne & Ozga.  An application for further review has been filed with the Iowa Supreme Court.


Court of Appeals Affirms Denial of Benefits; Finds that Agency Correctly Found Injury Did Not Extend to Body As a Whole

In Linden v. Tyson Foods, Inc., No. 14-0141 (Iowa App. Oct. 1, 2014), claimant suffered a comminuted fracture to her elbow.  Claimant argued that the injury had also affected her shoulder and should have been treated as an industrial injury.  The agency found that there was only a scheduled member injury and the district court affirmed, finding that the situs of the injury was the anatomical location of the physical damage or derangement.

Without a great deal of discussion, the court concludes that the agency correctly interpreted the law with respect to when a scheduled member can be deemed to extend to the body as a whole.  The court further found that substantial evidence supported the agency's finding that claimant's complaints of pain in her shoulder were not due to her work accident.  The court concluded that it was within the agency's prerogative to weigh the evidence on these issues and concluded that substantial evidence supported the conclusion reached by the agency.

Court of Appeals Reverses Agency on Issue of Costs and IME

Des Moines Area Regional Transit Authority v. Young, No. 14-0231 (Iowa App. Oct. 1, 2014) is a case involving the payment of an IME in a situation where the IME was obtained prior to defendants obtaining a rating of impairment.  The agency concluded that although the costs of the IME could not be paid for under section 85.39 of the Code, costs were properly taxed against defendants, in the discretion of the agency, under 876 IAC 4.33(6).  On appeal, the Court of Appeals reversed, concluding that an IME could not be paid for as costs.

Claimant and the agency relied on the court of appeals decision in John Deere Dubuque Works v. Caven, 804 N.W.2d 297, 301 (Iowa App. 2011).  The Young court noted that the award in Caven  was based on section 86.40 and not on section 85.39, which is a true statement, so far as it goes.  The court concluded that in a situation where no rating had been obtained by defendants, "to allow a claimant the costs of an IME conducted prior to the employer's physician's report under Iowa Administrative Code rule 876-4.33 would be to allow an agency rule to defeat the requirements of a statute enacted by the legislature."

The court does not address the situation where defendants have simply not obtained a rating, despite their obligation to do so.  Presumably, under the Young decision, a defendant could simply not ask the treating doctor to provide a rating, thereby denying claimant the right to payment for the IME under section 85.39.  The decision in Young would thereby preclude payment for the IME under 4.33(6), thus seemingly defeating any right to payment for these costs by the simple expedient on not providing a rating of impairment.  Such an approach would appear to be contrary to the liberal construction of the act.  The Young case reverses agency precedent, and is seemingly inconsistent with the earlier decision in Caven.

A request for further review of the Young decision has been filed by claimant, and a determination from the Supreme Court as to whether the case will be accepted remains.

Thursday, September 4, 2014

Denial of Benefits Affirmed Premised on Substantial Evidence

Dillavou v. Plastic Injection Molders, Inc., No. 13-1359 (Iowa App. Aug. 27, 2014) is an affirmance of the commissioner's decision denying claimant benefits.  The case arose out of a closely held work environment in which claimant was the wife of a co-owner of the business, which was also co-owned by her brother.  The injury occurred when claimant's brother struck his shoulder against hers, causing her to fall to the ground, resulting in injuries to her knee and shoulder.  Claimant and her husband contacted the county attorney about this incident, insisted on bringing charges (of which the brother was acquitted) and bringing a civil action against the brother for an intentional tort.

A workers' compensation case was filed, and defendants argued that under section 85.16(3), the actions of the brother were a willful act of a third party directed against the employee for reasons personal to such employee.  As the court notes, this section of the Code is an absolute defense against a workers' compensation claim.   At the workers' compensation hearing, claimant argued that her brother had unintentionally knocked her down.  The deputy found that there were enough inferences in the record that claimant's brother acted intentionally and dismissed the case.  The commissioner affirmed the findings.

The court of appeals finds that there was substantial evidence the claimant's brother acted willfully when he bumped into her.  The family background and acrimony among the parties "pervades the factual circumstances surrounding the incident and gives rise to a strong inference of Greg's motive to intentionally bump into [claimant]."  The contact was not related to or within the scope of claimant's employment, according to the court.  The court ultimately found that even if there was credible evidence that the incident was accidental or work-related, the fact that two inconsistent conclusions may be drawn from the same evidence did not prevent the agency's decision from being supported by substantial evidence.  The court concluded that the facts were sufficient to persuade a reasonable person that Greg acted intentionally and for reasons personal to claimant, and affirmed the decision of the agency.

Wednesday, August 13, 2014

Court of Appeals Reverses District Court Decision, Affirms Decision of Agency

In Anderson v. Care Initiatives, No. 14-0090 (Iowa App. Aug. 13, 2014), the agency had found that medical evidence supported a finding of causation.  On judicial review, the district court reversed.  The court of appeals reverses the district court, finding that there was substantial evidence to support the agency's finding.

While working in a previous job, claimant had suffered an injury to her left shoulder and knee and was given permanent work restrictions in October of 2009 to avoid repetitive lifting, reaching above her head or working above her shoulder level.  She began working for Care Initiatives in July of 2010.  Care Initiatives knew of the restrictions, but found claimant was qualified to perform the job.  Two days before  she began work, claimant went to a nurse practitioner with complaints of back pain.  She was given home exercises and medications, but did not see a doctor prior to being employed by defendant.

On February 25, 2011, claimant report sustaining an injury to her low back while lifting a case of juice to the top shelf of the refrigerator.  Claimant was treated and had an MRI.  On the date of the MRI, surveillance at Prairie Meadows showed her "walking normally" and getting in and out of vehicles with no difficulty.  She also reported to her employer that her back was hurting from the ride and she would not be in on that date. She did not tell the employer about the trip to Prairie Meadows.  Claimant was subsequently terminated for the result of her falsified time sheet and the fabrication.

The MRI was read as normal and claimant was released with no restrictions.  Claimant treated on her own and had epidurals by Dr. Klein for pain management.  Dr. Bansal saw her for an IME in August of 2011, and provided claimant with a 6% rating, discussed and found causation and provided 30 pound lifting restrictions.  He reviewed the surveillance and noted that she was sitting most of the time and had a slightly antalgic gain in the video.

The deputy found claimant truthful about her injuries and pain, despite acknowledging that she was not truthful about the events on the day of the MRI. The deputy believed that claimant had exaggerated her symptoms, and assigned a 25% industrial disability rating.  On appeal, the deputy to whom the claim was assigned indicated claimant had problems with "honesty and truthfulness" but affirmed the finding of causation and 25% award.

At the district court level, the judge concluded that Dr. Bansal had not been fully appraised of claimant's prior complaints of back pain.  The judge also found that Dr. Bansal had not made a finding that claimant had aggravated an underlying condition, and that the deputy had reached this conclusion without medical support. The district court reversed.

On appeal, the court of appeals reversed the decision of the district court.  Citing Cedar Rapids Comm. Sch. Dist. v. Pease, 807 N.W.2d 839, 844 (Iowa 2011), the court noted that medical causation was a question of fact vested in the discretion of the workers' compensation commission."  The court noted that the weight to be given to an expert depends on the accuracy of the facts given to the expert, but that the decision of whether to accept or reject an expert's opinion was for the agency, not the appellate court.  The court notes that Dr. Bansal was aware of prior back tenderness.  The court concludes that as a fact finder, the deputy was within his rights to use lay testimony to bolster medical testimony.  Based on this evidence, the agency's decision was found to be supported by substantial evidence.

This case represents a part of the continuing trend which shows deference to the agency on issues of fact, and particularly issues of medical causation.  The Supreme Court decisions in Pease and in Mike Brooks v. House appears to have solidified the approach that factual findings on medical causation are virtually untouchable at the appellate level.  This holds true regardless of whether the finding is in favor of or against causation in a particular case.

Court Affirms Permanent Total Disability Case Involving Notice Issue on Substantial Evidence Grounds

In Ryan Companies v. Bissell, No. 13-1869 (Iowa App. August 13, 2014), the court of appeals affirmed a decision of the commissioner concluding that the employer had actual notice of claimant's injury, that the injury arose out of and the course of claimant's employment and that claimant was permanently and totally disabled.

The major fighting issue in the case seemed to be the question of whether claimant had actually notified the employer of his injury.  The agency found that because claimant had told the employer of his injury on the day it occurred (and a foreman had asked if he needed an ambulance), this was sufficient for actual notice.  Claimant did not inform the employer that he was going to seek workers' compensation benefits at that time and initially believed that because he had previous back problems this was not work related.  Despite this, the agency made a factual finding that the employer had actual notice, and this was upheld by the district court and court of appeals on substantial evidence grounds.  Claimant had also argued that under the discovery rule, claimant did not understand the nature, seriousness and probable compensable consequences of the injury.  The agency rejected this argument, and the court of appeals did as well, finding that since claimant felt a pop in his back while performing work activity, he had a duty to investigate the compensable nature of his ensuing back pain.

On the question of causation, defendants initially had a defense medical evaluation with Dr. Boulden, who found causation.  A neurologist, Dr. Erickson, came to same conclusion.  Defendants later engaged Dr. Abernathey, who indicated that the symptoms were consistent with a pre-existing condition.  Although defendants argued that the deputy had become a proponent for the claimant, the court of appeals concluded that they would defer to the credibility findings of the agency, and to the weighing of the medical evidence.

Finally, on the question of extent of impairment, the court of appeals noted that this question was limited to whether substantial evidence supported the agency, and the court concluded that the evidence presented was sufficient to support a permanent total disability finding.  Bissell represents a number of a string of recent opinions in which the appellate courts have refused to overturn the factual findings of the agency.

Court of Appeals Concludes that Inclusion of a Bonus in Rate Calculation is not Irrational, Illogical or Wholly Unjustified.

Over the years, the Pella Corporation (formerly Rolscreen) has paid yearly bonuses to its employees.  Although the bonuses differed in amount each year and there was no absolute certainty that the bonuses would be paid each year, those bonuses have been paid every year, since at least the late 1980s.  In Noel v. Rolscreen, 475 N.W.2d 666, 667 (Iowa App. 1991), the court affirmed the commissioner's conclusion that excluded the bonus from a claimant's gross earnings.  Following that case, Pella repeatedly pointed to Noel as excluding their bonuses from consideration in determining gross weekly wages.  The commissioner would sometimes include the bonus, sometimes not, and oftentimes, the cases would proceed to district court.  This is precisely the situation in Pella Corp. v. Minar, No. 13-1616 (Iowa App. Aug. 13, 2014).

The court in Minar posited the issue as whether the agency's inclusion of the bonuses in gross earnings was "irrational, illogical, or wholly unjustified."  The deputy had noted that the regularity of the payments demonstrated that the bonuses were not "irregular bonuses", which are excluded from consideration under section 85.61(3) of the Iowa Code.  The commissioner affirmed, concluding that claimant's testimony that she had received these bonuses every year was unrebutted.

The district court concluded that the commissioner had listed logical reasons for concluding that the bonus was regular and that given this factual foundation, the commissioner's decision was governed by reason and was not devoid of logic.  Citing Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 266 (Iowa 2012).   On review, the court of appeals indicated that the standard of review in Burton, which had also addressed issues of gross earnings, was that the agency had the task of finding the facts regarding gross earnings, and when applying the law to the facts, the agency's determination was only to be disturbed if it is irrational, illogical or wholly unjustifiable.

Pella contended the commissioner acted irrationally in including the bonus.  The court of appeals held that Burton was the more recent decision on the gross earnings question and that the standard applied in Burton  was the correct standard of review.  The evidence in the record demonstrated that the bonuses were regular, and hence the commissioner's application of law to fact was not "irrational, illogical, or wholly unjustified."  Pella also argued that because the bonus was not paid within the statutorily prescribed window for paying benefits, it could not be included.  The court found that although the bonus was not paid until after the injury, it was not an anticipated bonus, but a vested bonus.  Again, the court found the commissioner's decision was not irrational.

Because of the frequency with which this issue arises, it would not be surprising if an application for further review is filed with the Iowa Supreme Court.  The case also raises the interesting issue of whether a bonus may be consider if it is not "vested" but is nonetheless regular.  NOTE:  An application for further review was filed and denied by the Supreme Court.

Court of Appeals Affirms Dismissal of Bad Faith Case

In Saltern v. HNI Corp., No. 13-1193 (Iowa App. Aug. 13, 2014), the parties agreed to settle the case on an agreement for settlement basis, with defendants agreeing to pay penalty benefits for the delay in paying benefits.  After the AGFS was filed, claimant filed a bad faith claim and filed a motion for partial summary judgment urging the court to find that there was no reasonable basis to deny and delay benefits.  Defendants filed a cross motion for summary judgment, urging dismissal.  The district court denied claimant's motion and granted defendants' motion.

Defendants argued that the facts in the workers' compensation case were such that there was a question of whether claimant slipped on ice in the parking lot, or whether the fall was idiopathic in nature.  Claimant argued that defendants' action of agreeing to payment of penalty demonstrated that there was no reasonable basis for its action in denying and delaying payment of benefits.  Claimant argued that the payment of penalty judicially estopped defendants from asserting they had a reasonable basis to deny the claim.  The district court did not address this claim and ruled against claimant.

Claimant filed a motion for rehearing under IRCP 1.904(2) but did not receive a ruling on that motion prior to filing her appeal.  The court of appeals concludes that because of this, claimant divested the district court of jurisdction under IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa 2008).  Thus, the court did not consider claimant's judicial estoppel argument.  The court went on to affirm the district court's ruling sustaining defendants' motion for summary judgment.  The court found that the claim was fairly debatable because there was testimony that there was no ice on the ground and that defendants had a objectively and subjectively reasonable basis for denial of the claim.  The court found there was a reasonable basis for denying benefits and the decision of the district court was affirmed.

Friday, August 8, 2014

Commissioner Godfrey Resigns to Accept Position as Chief ALJ for the Federal Employees Compensation Appeal Board

On Monday, August 4, 2014, Commissioner Chris Godfrey resigned his position as Iowa's Workers' Compensation Commissioner. Since 2010, the governor had attempted to force Commissioner Godfrey's resignation, first by asking for the resignation, and later by reducing his salary substantially in an effort to force that resignation.  As a result of the attempts to force his resignation, Commissioner Godfrey filed a lawsuit against the Governor and other state officials, claiming extortion, defamation and a violation of the commissioner's civil rights because of his sexual orientation.  The story in the Des Moines Register can be found at http://www.desmoinesregister.com/story/news/2014/08/05/chris-godfrey-taking-federal-job-still-pursuing-lawsuit/13610657/.  As noted in the Register article, despite taking the job with the Employees Compensation Appeal Board (ECAB), the lawsuit against the governor and others will continue.

Despite the fact that the Iowa Workers' Compensation Commissioner's office has been amazingly efficient for such a small staff (the smallest staff in the country), the governor sought to argue that the commissioner was not doing his job.  As the letter the commissioner wrote to the governor suggests, however, despite the inadequacies of the budget, the agency continued to function effectively.  The backlog of appeals has been reduced significantly, Iowa has a very stable workers' compensation system for both employers and employees, an electronic system for filing is on the cusp of becoming a reality, and the independence of the agency remains intact.  In his letter of resignation, the commissioner noted:

"As any judge who is faithful to his or her oath, I have taken every step in my power to protect our great state's system from unwarranted influence, intimidation, and retaliation.  There is still much work to be done on this front, and I fully intend to see it through until the end, not only for my family and me, but for all Iowans who respect the rule of law.  I am confident that my civil action against this Executive Branch, and the state, has already strengthened the office for future commissioners in addition to bringing accountability to those who would misuse and flagrantly violate Iowa's laws."

The fact that the current executive branch may not fully comprehend the independence of the judiciary was, unfortunately, brought home in a recent action by the governor to once again restrict the independence of the judiciary.  As reported in the Des Moines Register, the governor has changed the position of chief administrative law judge from a merit position to "at will" status, which, as the Register notes, "effectively strips the job of protection from political influence." The Register story on this is at http://www.desmoinesregister.com/story/news/local/government/2014/08/07/terry-branstad-will-judge/13708661/

Despite the fact that the Iowa Code specifically provides the the commissioner is to have a six year term (the governor shall appointment a workers' compensation commissioner  "whose term of office shall be six years" - section 86.1 of the Iowa Code), the governor sought to interfere with the commissioner's completion of that term of office.  Similarly, the governor is interfering with the independence of the chief administrative law judge for the state, despite Iowa Code provisions to the contrary.  Thus, rather than being independent voices, addressing cases based on the facts and law, administrative judges will be forced to watch their backs, ever leery of upsetting their political patrons.  This is not the way the system was designed to operate, and represents a deeply disturbing trend in the current administration.

Neifert, Byrne and Ozga wishes the commissioner the best in his new position as chief ALJ for ECAB.  More importantly, we salute the commissioner for his perseverance over the past three plus years in completing his job as commissioner and refusing to bow to the political pressures brought to bear on him.  Iowa's workers' compensation system is immeasurably better for his efforts.


Wednesday, July 30, 2014

Court of Appeals Affirms Denial of Second Injury Fund Benefits

In Bolton v. Second Injury Fund of Iowa, No. 13-1620 (Iowa App. July 30, 2014), the Court of Appeals affirmed the decision of the commissioner finding that claimant had not demonstrated a first injury for Second Injury Fund purposes, and thus was not entitled to benefits against the Fund.  Claimant argued that he had a first injury to his left knee in 1982, and noted that an IME had "extrapolated" a 1% impairment rating to the left leg.  At hearing, claimant admitted that he did not suffer any difficulties with his knee until after he began working for the employer some 18 years after the incident.  The court concluded that "there is, quite simply, nothing in the record to tie Bolton's complaints of knee pain to the 1982 injury until after he filed for workers' compensation benefits in this matter."

The court noted that the 1% rating was assigned based on subjective complaints of pain, and noted that there were never any restrictions given as a result of this injury, and that there was no objective evidence of loss os use.  For those reasons, the commissioner did not give weight to Dr. Kuhnlein's opinion, and neither does the Court of Appeals.  The court ultimately finds that substantial evidence supported the decision of the commissioner and affirms the denial of Fund benefits.

The decision is consistent with recent Supreme Court cases finding that the courts on to defer to the agency on substantial evidence issues, such as Pease and House.  It does make it incumbent on a claimant to demonstrate that there has been some effect from the first injury (some "loss of use") other than simply a rating of impairment.  Ultimately, the allegations of a first injury appear relatively weak in this case, and the assignment of an impairment rating was not enough standing alone to create a loss of use under the statute.

Monday, July 21, 2014

Court of Appeals Affirms Decision Holding that Deep Vein Thrombosis is an Industrial Injury

In Architectural Walls Systems v. Towers, No. 13-1653 (Iowa App. July 16, 2014), the Court of Appeals addressed an issue that arises with some frequency before the commissioner - whether deep vein thrombosis can be an industrial injury for workers' compensation purposes.  In doing so, the court affirmed a finding that claimant had a 60% industrial disability.

Claimant fractured his right ankle while working for the employer.  He had surgery, but six weeks after the surgery, he began having swelling in his right leg.  He was diagnosed with deep vein thrombosis and surgery was performed to remove a blood clot and insert a filter to prevent clots from moving to claimant's heart or lungs.  Thereafter, claimant was directed to take anticoagulants twice daily. Later testing revealed no active DVT in claimant's right leg.  Defendants' doctors (Troll and Mooney) provided claimant with a rating to the leg.  Dr. Kuhnlein found that the DVT was related to the ankle injury and provided a 5% BAW rating.  He also found that DVT would normally be considered systemic, but in this case it was restricted to the lower extremity because it was the result of a localized trauma.

The deputy found a scheduled injury.  On appeal to the commissioner, the finding was made that the DVT constituted an industrial disability.  Relying on agency precedent, the commissioner found that DVT was a spillover systemic disease that inherently affected the body as a whole.  A 60% industrial disability finding was made.

On review, the court first noted that the medical evidence concluded that the DVT was confined to claimant's right lower extremity.  The court accepted that all the medical evidence supported this conclusion, but noted that this did not resolve the case.  The court concluded that the commissioner did not totally reject the medical opinions in the case.  The court noted that the term "lower extremity" was not synonymous with the statutory word "leg."  In claimant's case, the filter placed by the doctors was outside of claimant's leg, and the presence of this device required the placement of permanent restrictions.   The court concluded that "the commissioner was entitled to find the ongoing placement of the filter is evidence of an ongoing disability outside of the leg, yet within the lower extremity as used in the medical opinions."  Citing Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 17 (Iowa 1993), the court concluded that when there is an injury to a scheduled member as well as parts of the body that are not scheduled members, the entire injury is compensated as an unscheduled injury.  The court concluded that substantial evidence supported the commissioner's determination and further found the application of the law to the facts was rational.

On the question of the 60% industrial award, the court concluded that this award was supported by substantial evidence.   Claimant presented records indicating that he was on a path to become a glazier and was prevented from doing so by the injury and was limited in his capacity to engage in manual labor, "the only work for which he is reasonably suited."  The court affirmed the 60% industrial award.

Given the significance of the finding that claimant could have a DVT and be considered to have an industrial injury, it would appear likely that a request for further review will be filed with the Supreme Court.  The Towers decision affirms earlier decisions of the agency finding that DVT can be treated as a body as a whole injury.  Given the facts of the case, however, it does not mean that every time DVT is found, it will be an industrial injury, and there generally must be something other than the simple finding of a DVT to treat the case industrially.  In this case, the implantation of the filter outside of the leg was sufficient to make the injury an industrial injury.

An Application for Further Review was filed with the Supreme Court and denied on September 11, 2014.

Thursday, April 17, 2014

Court of Appeals Affirms District Court Decision Denying Judgment to Claimant

Kollasch v. Hormel Foods, No. 13-1416 (Iowa App. April 16, 2014), addresses issues raised by section 86.42 of the Iowa Code.  Claimant filed for judgment based upon an agreement for settlement.  At hearing, claimant objected to the introduction of what he believed was extrinsic evidence outside of the agreement of the parties.  The district court summarized the parties views about the meaning of several key terms in the agreement, specifically regarding visits to a pharmacy.  Claimant filed a motion to reconsider, arguing that the district court had made findings of fact and strayed from the terms of the settlement agreement.  The court also found that the evidence produced by defendants was meant to clarify and not modify the settlement.

Claimant argued before the Court of Appeals that the district court erred in making findings of fact, in construing the term reimburse, in entering a money judgment for expenses already incurred and in not awarding costs.  As an initial matter, the COA found no problems with the background portion of the district court, in which the court summarized the arguments of the parties.

Under 86.42, the court must enter a judgment in conformance with the workers' compensation award.  Where the district court merely explains what is in the award, but does not alter the terms of the award, there is no error.  The court may construe the award, but not expand upon it.  The court found that the settlement agreement, which delineated "the pharmacy" at which prescriptions would be picked up meant a particular pharmacy.  Similarly, in construing the term "reimburse," the district court did not err in finding that this meant repayment of a cost incurred.  The court also found that the district court did not err in converting owed expenses from prior visits to the pharmacy to a judgment.  The COA also concluded that there was no error in refusing to assess court costs against Hormel.

Court of Appeals Decides Claimant Is an Employee Rather Than Independent Contractor, Reversing District Court

Claimant was a carpenter who started doing carpentry work for Stark Construction when he had an injury.  When he reached the hospital, claimant indicated he was employed by Don Risdahl Builders and was self-employed.  Claimant later filed a claim against Stark, who affirmatively alleged that he was an independent contractors.  The deputy found claimant was an independent contractor and the commissioner reversed.  At the district court level, the court reversed the agency, finding that claimant was an independent contractor.

The Court of Appeals reversed the action of the district court and affirmed the action of the commissioner in Stark Contruction v. Lauterwasser, No. 13-0609 (Iowa App. April 16, 2014).  Initially, the court found that since the law did not vested the agency with power to interpret the term "employee," no deference was due the commissioner in determining how the term was to be defined.   On appeal, claimant contended that the district court erred in concluding that the intent of the parties was a controlling factor in determining whether a claimant was an employee.

The court first noted that under section 85.61(11) of the Iowa Code, an employee was a "person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship, for an employer . . ."  The court also noted that under Daggett v. Nebraska-Eastern Exp., Inc., 107 N.W.2d 102, 105 (Iowa 1961), doubt as to whether a person was an employee was to be resolved in favor of the person being an employee.  

To prove that an individual is an employee, he must first establish he was rendering services to the putative employer.  The burden then shifts to the employer to prove that the claimant was an independent contractor and not an employee.  The court noted that the name chosen by the parties was not conclusive, and cited articles noting misclassification of workers in large numbers of cases.  A close look at the underlying relationship was needed to determine the claimant's status.

Citing to Nelson v. Cities Serv. Oil Co., 146 N.W.2d 261, 265 (Iowa 1966), the court noted the following five factors as being important to answering the question of whether claimant was an employee: 1) the right of selection or to employ at will; 2) responsibility for payment of wages by the employer; 3) the right to discharge or terminate the relationship; 4) the right to control the work; and 5) the identity of the employer as the authority in charge of the work or for whose benefit it is performed.  The Nelson court noted that looking at the parties intent by itself could be deceiving.  The court also noted that in Henderson v. Jennie Edmundson Hospital, 178 N.W.2d 429 (Iowa 1970), the court noted that the intention of the parties may be considered.

In this case, the commissioner had concluded that where there is an agreement to call the claimant an independent contractor, that intent may be ignored if this is for the purpose of evading the workers' compensation laws.  The district court agreed, but the Court of Appeals indicated that this principle did not appear in any Iowa cases, although it did appear in Larson's.  The court concluded that community custom "did not act as a counterweight when there exists a clear finding the employer controlled the work."

In applying the standards above to Lauterwasser's case, the Court of Appeals concluded that the district court erred in viewing the parties intent as the controlling factor.  The district court held that claimant must meet the five factors from Nelson and the parties intent must be that an employment relationship be created.  The court noted that the most important factor was the right to control the work.  Only if that control is debatable does the trier of fact need to consider the parties' intention or community custom.  Citing Schlotter v. Leudt, 123 N.W.2d 434, 436 (Iowa 1963).  The court concluded that the district court erred in elevating the intention of the parties above all else.

In addressing the facts, the court found most facts undisputed and gave Stark the right to control Lauterwasser's work.  Lauterwasser's tax returns, however, showed Starks' income on a 1099 form, and he had deducted $5,734 for advertising, money that was not actually paid for advertising.  The commissioner also found that claimant made numerous statements on the day of injury that contradicted his later claim that he was an employee.  The court found that there was substantial evidence to support the factual findings of the agency, and because the right to control was obviously vested in Stark, it need not resort to assessing the parties' subjective intent.  Even if intent were considered, however, it was so plainly at odds with the facts that it could be disregarded.  The court reversed the decision of the district court and remanded for further consideration of other issues not addressed below.

The decision in Lauterwasser is clear that right to control is the paramount test for determining whether a claimant is an employee or independent contractor.  In establishing this straightforward test, the court clarifies what has often been a muddled mess centered on the intention of the parties.  Given the decision of the court, and the importance of the issue, it would not be surprising to see that this case proceeds on further review to the Supreme Court.

Award of Permanent Total Disability Affirmed

The Court of Appeals, in Cargill Meat Solutions v. DeLeon, No. 13-1266 (Iowa App. April 16, 2014), once again concludes that factual findings are left to the commissioner, and affirms an award of permanent total disability benefits.  The court adopted the conclusions of the district court, which had noted that the commissioner credited the views of Dr. Hines in finding permanent total disability.

The court addressed defendants' argument that Dr. Hines was not provided with all prior medical treatment records, and that therefore the decision should be reversed under the Court of Appeals' decision in Mike Brooks, Inc. v. House.  The court noted that evidentiary rulings were in the commissioner's discretion and that a scrutinizing analysis was not to be given to decisions of the agency on factual matters.  The court also noted that the Supreme Court had vacated the decision in House, upon which Cargill had relied.  The court found that the commissioner had considered all of the expert medical opinions together with the other evidence introduced at hearing, and concluded that Dr. Hines' testimony, in conjunction with the testimony at the hearing, provided substantial evidence of a permanent, work-related injury.

On the question of permanent total disability, the court noted that claimant was not an English speaker and had substantial physical limitations, and could not return to many of his prior jobs.  The decision was affirmed.

An Application for Further Review was filed with the Supreme Court and denied on July 16, 2014.

Court of Appeals Affirms Commissioner's Decision That Claimant's Loss Was a Scheduled Injury

In Hendrickson v. Ihle Trucking, Inc., No. 13-1114 (Iowa App. April 16, 2014), the court of appeals affirmed the commissioner's finding that claimant's injury was limited to his right hand.  The court first noted that its review of final agency action was "severely circumscribed" and stated that nearly all disputes are won or lost at the agency level.  Citing Pease and House.

The Court of Appeals noted that the district court had appropriately discussed and considered the evidence and affirmed the commissioner's decision that the injury was limited to the right hand.  The court noted that it could not improve upon the district court's analysis, which found that the agency's decision was detailed and exhaustive.  Based on the district court's decision, the court affirmed, citing Iowa Ct. R. 21.26.

Wednesday, March 26, 2014

Court of Appeals Summarily Affirms PTD Award

In Des Moines Asphalt & Paving v. Gomez, No. 13-1160 (Iowa App. March 26, 2014), the Court of Appeals summarily affirms an award of permanent total disability for a client who was assaulted by a co-worker at a job site.  Claimant was diagnosed with post-traumatic stress disorder.  On appeal, the court adopts the district court's reasoning and conclusions, pursuant to Iowa Court Rule 21.26(1)(b), (d) and (e).  Although it would appear as though the attack on claimant might have been defended on the basis that this was the willful act of a third party directed against the employee for reasons personal to the employee under section 85.16(3), this was not discussed in the decision of the court of appeals, nor was the issue raised before the commissioner.

An Application for Further Review was filed with the Supreme Court and denied on July 16, 2014.

Wednesday, March 12, 2014

Court of Appeals, Finding that Second Injury was not Compensable, Declines to Apply Successive Disability Statute

In Sullivan v. Cummins Filtration-Lake Mills, No. 13-0658 (Iowa App. March 12, 2004), claimant argued that section 85.34(7) of the Iowa Code, the successive disabilities statute, operated to enhance the degree of disability to her hands.  The Court of Appeals, agreeing with the agency, finds that claimant failed to demonstrate that a second injury to claimant's hand was compensable, and therefore section 85.34(7) was not applicable.  The court also found that the commissioner had explained his reasoning sufficiently in the decision and concluded that no award of alternate medical care was applicable as the claimant had failed to prove that her injury was related to her work.

Claimant had an initial injury to her right hand in 1999, was paid benefits for her injury and returned to work symptom free.  She later developed symptoms in both hands in 2011, and settled this case for an additional payment for the injury to the right arm.  The two injuries that were before the court were a 2007 injury to the hands, resulting in carpal tunnel surgery and a 2008 injury to the wrist, which developed into wrist pain and trigger finger, for which surgery was performed.  With respect to the carpal tunnel, the treating doctor found no additional impairment and no restrictions for both hands.  The IME doctor, Dr. Kuhnlein, found a 3% impairment to the right hand, but no impairment to the left.  Dr. Kuhnlein related claimant's trigger finger to work, but was unable to relate the bilateral hand pain from overuse symptoms to her work.  He found no impairment from the trigger finger or hand pain.

The deputy found that neither the 2007 or 2008 injuries resulted in any permanent injuries, and provided no award of benefits to claimant.  The deputy also denied claimant's claim for alternate medical care.  These findings were affirmed by the commissioner on appeal.

In addressing the issue of whether section 85.34(7) applied, the court noted that when an employee has a preexisting disability from the same employment, under the same subsection of the statute, the employer is responsible to the combined disability resulting from the injuries as compared to the employee's condition pre-injury.  That having been said, the court concluded that the threshold inquiry was whether there was a second, "compensable" injury to be combined.  The court noted that the statute indicated that the "prior disability must have been compensable under the same paragraph of subsection 2 as the employee's present injury. . ."  The court viewed this as requiring that the present injury must be compensable.

The court then affirmed the decision of the agency that the second injuries (in 2007 and 2008) were not compensable, and therefore the statute did not apply.  The court noted that the agency was justified in relying on the opinions of several doctors that there was no permanent disability related to the 2007 and 2008 injuries.  The court also found, citing Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997) that the courts had refrained from imposing unnecessary and burdensome requirements into the statute with respect to the fact finding of the agency.  So long as the court could deduce the commissoiner's decision making process, there need be no unnecessarily precise format in issuing decisions.  Because the commissioner's process was apparent, there was no error.

The court also concluded that alternate medical care was not available.  The court found that a claim must be compensable from a causal standpoint in order for alternate medical care to be a viable remedy.  The language of the court's decision on this point is somewhat troubling, as it might be seen to imply that if an injury was not a cause of a permanent disability, no further care was needed.  Upon closer examination, however, the court roots its decision in the findings of the commissioner that a causal connection had not been proven.  Because the commissioner, relying on medical evidence, found that no causal connection had been made between claimant's work and her overuse syndrome, alternate medical care was not available.

An application for further review was filed with the Supreme Court and denied on August 13, 2014.

Sunday, March 9, 2014

Supreme Court Reverses Court of Appeals, Affirms Permanent Total Disability Award

In Mike Brooks, Inc. v. House, No. 843 NW2d 885 (Iowa 2014), the Supreme Court, which had accepted further review, reversed the decision of the Court of Appeals and concluded that the agency decision was supported by substantial evidence, thereby affirming the permanent total disability award of the agency.  The agency had previously found that claimant was permanently and totally disabled, a finding that had been affirmed by the district court.

At the Court of Appeals level, a 2-1 majority of the court had concluded that the decision of the agency had not been supported by the evidence.  The court had concluded that the doctors who had found causation did not know of a second injury that claimant had sustained at work after he had been found to have reached maximum medical improvement.  The Court of Appeals found that the treaters had not known of this incident and that the IME doctor's opinion was internally inconsistent because it relied on the opinion of Dr. Hatfield, one of the treaters, and found that claimant had no back problems before the second incident.

The Supreme Court noted that the legislature had vested the commissioner with the discretion to make factual determinations.  The court also noted that medical causation was a question of fact vested in the commissioner's discretion.  The court also concluded that their task was not to determine whether the evidence supported a different finding, but whether the evidence supported the findings actually made.

In reversing the Court of Appeals, the Supreme Court indicated that its analysis was "shaped largely by the deference we are statutorily obligated to afford the commissioner's findings of fact." The court noted that claimant had presented the opinions of two medical experts that his injury arose out of his employment.  Notably, defendants presented no medical opinions to the contrary.  The court further noted that acceptance of an expert opinion was in the "peculiar province" of the commissioner.  The court found that even if the surgeon did not know of the second event (the opening of a door at work) the opinion of the IME doctor, Dr. Kuhnlein, was based on a thorough independent physical exam and review of the history, including the door opening incident.  The court found that the decision of the agency was amply supported by the evidence presented.

The House case was litigated by Marty Ozga of Neifert, Byrne & Ozga.  The decision of the Supreme Court will hopefully lessen the chance that cases are appealed strictly on factual grounds, as the finding of facts, including medical causation, is an action where the commissioner is to be given deference.