Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at or

Sunday, January 26, 2014

Court Affirms Award of Additional Medical Expenses for Back and Hip Injury

In Weitz Co. v. Selin, No. 13-0939 (Iowa App. Jan. 23, 2014), the court of appeals affirmed the award of additional medical benefits to claimant.  The employer had argued that the injuries were not causally connected to the workplace injury, and further rejected the argument that certain medical expenses were unauthorized.

Claimant suffered an accepted back injury, and had surgery with Dr. Nelson, who ultimately found claimant had reached MMI and suffered a 10% impairment.  Claimant indicated that he was having continuing problems, and filed an application for alternate medical care.  This was dismissed as defendants denied compensability.  Claimant sought care from Drs. Kimelman, McGuire and Igram.  At hearing, claimant was awarded PPD, but the request for additional medical expenses was denied by the deputy.  The commissioner reversed on the medical expenses question.

The court of appeals found that the facts concerning the medical expenses were not in dispute and that the question of causal connection was an application of the law to the facts.  The court found that causation was normally within the province of expert testimony, and that claimant's credibility was also in the province of the commissioner.  Finding that a rational fact-finder could find a causal connection to claimant's hip injury, the court affirmed the decision of the commissioner.

On the issue of additional treatment for claimant's accepted back injury, defendants argued that this was not authorized. At the district court level, the court did not address the authorization issue, but defendants did not file a Rule 1.904 motion.  Absent this motion, the court declined to address this issue.

Court Affirms Industrial Disability Award on Substantial Evidence Grounds

Claimant in Larson Manufacturing Co. v. Wander, No. 13-0567 (Iowa App. January 23, 2014) suffered a back injury while lifting a wood storm door core onto an assembly line.  Claimant was provided several high-dose steroidal regimens.  A MRI showed a disk bulge and possible avascular necrosis in the hips.  Ultimately, claimant had a total hip replacement with Dr. Noiseux.  Dr. Noiseux related this to the work accident.  Claimant also developed necrosis in the shoulder, and this was related to the steroidal treatment by Dr. Emerson.  Dr. Galles agreed with this assessment.  At hearing, the parties stipulated that the shoulder necrosis was work-related, but not the hip necrosis (primarily because the hip necrosis was diagnosed just after the steroidal treatment had begun).

The deputy found that the hip condition was related to employment.  On appeal, the commissioner affirmed "noting the deficiencies in the opinions of all the physicians who rendered opinions about Wander's condition."  The district court affirmed, noting the facts that supported claimant's position, including claimant's testimony that the hip problems had become worse following the accident.

On appeal, the court noted that it deferred to the factual determinations of the commissioner if they were supported by substantial evidence.  The court found that the weight given to the opinions of various physicians was "especially within the province of the agency."  The decision of the agency was affirmed without further comment.

Court of Appeals Affirms Payment of Temporary and Permanent Benefits in Total Knee Replacement Case

In Plumrose USA v. Hathaway, No. 13-0495 (Iowa App. Jan. 23, 2014), claimant suffered an injury to his right knee when he fell down a flight of stairs, cause a medial meniscal tear and patella tendon tear.  Claimant had a past history of knee injuries, including three surgeries.  He had been told that he would need knee replacement surgery at some point in the future.  Following the accident, conservative care was initially provided, but ultimately a total knee replacement was recommended.

Defendants denied the claim, based on a doctor's report that there was no way of knowing when a TKR would have been needed.  This same doctor later indicated that the TKR was directly related to claimant's acute exacerbation of his chronic knee arthritis, and opined that there was a 50% impairment to the leg.  The arbitration and appeal decisions concluded that the knee injury was compensable, and ordered payment of temporary and permanency benefits.

Before the court, the employer argued that because the TKR would have been been needed at some point regardless of the accident, it did not arise out of and in the course of employment.  The court, citing Rose v. John Deere Ottumwa Works, 76 N.W.2d 756, 759 (Iowa 1956), found that the mere existence of a pre-existing condition was not a defense.  The court also noted that there was no treatment for the knee in the six months prior to the injury.  The court concluded that substantial evidence supported the commissioner's conclusion that the accident had aggravated claimant's pre-existing condition.  The court used the same rationale to find that temporary benefits were payable.

Thursday, January 9, 2014

Court of Appeals Affirms PTD Award for Claimant in Make Work Job

Wal-Mart Stores v. Henle, Nos. 13-0366 & 13-0721 (Iowa App. January 9, 2014) involved a claimant who had a serious injury when a sixty pound stack of plastic totes  fell 15 feet, striking her head and left shoulder.  Following treatment, claimant returned to work at Wal-Mart, working four hour days.  She was continued as a full-time employee and received partial disability benefits.  She often missed work because of her headaches, and these days were considered as excused absences, "which was an exception to the company's usual attendance policy.

The deputy found claimant permanently and totally disabled and ordered benefits beginning on May 30, 2006, "but for those dates when the employer has provided claimant with accommodated employment."  The claim was affirmed on appeal.  Wal-Mart filed a petition for judicial review, and claimant moved for entry of judgment under section 86.42.  Ultimately, the decision was affirmed and the judgment was entered, with a stay of proceedings being denied.

On appeal the the Court of Appeals, Wal-Mart argued that under Burton v. Hilltop Care Center, 813 N.W.2d 250 (Iowa 2012), the agency's decision interwove the factual findings and conclusions of law to such an extent that judicial review was impossible.  The court demurred, finding that "we see no Burton problems in this case." The court concluded that the decision was controlled in large part by the deference the workers' compensation commissioner was accorded in factual matters, noting that "we will only disturb the commissioner's finding of permanent total disability if it is not supported by substantial evidence."

The court noted that the judicial review proceedings and 86.42 resulted in two separate proceedings.  On the 86.42 question, the employer argued that the district court improperly awarded judgment because the decision of the commissioner read as though no benefits were owed during any period where claimant had part-time employment.  Although claimant argued that error had not been preserved on this issue, the court concluded that the appeal of the benefits awarded was sufficient.  On the 86.42 question, the court found that judgment was appropriate because the language of the decision was clear that TPD benefits were owed when claimant was working part time.  The court characterized Wal-Mart's position that no benefits were owed as "extreme."

On the merits of the permanent total disability question, the employer argued that on the facts claimant was not PTD, and also argued that because claimant had been earning wages, she could not be considered PTD. The employer urged that by "synthesizing" Murillo v. Black Hawk Foundry, 571 N.W.16 (Iowa 1997), Quaker Oats v Ciha, 552 N.W.2d 143 (Iowa 1996)  and Thilges v. Snap-On Tools, 528 N.W.2d 614 (Iowa 1995), there was an obligation for the agency to consider evidence of continued employment as proof that there was some level of earning capacity.  The court rejected this argument.  They noted that an employer's accommodation may only be factor into an industrial disability award "if the commissioner finds a position equivalent to the newly created job is available in the competitive labor market."  Citing Murillo. The court noted that Murillo stated that an accommodation could be considered only to the extent that the newly created job discloses that the worker has a discerned earning capacity.   The court declined to reconsider the rulings in Murillo, Thilges and Ciha, since these were Supreme Court opinions.

The court also noted that the employer seemed to argue that only if a claimant were 100% disabled could permanent total disability be found.  The court, citing Diederich v. Tri-City Ry. Co. of Iowa, 258 N.W. 899 (Iowa 1935), rejected this contention, noting that industrial disability does not require a state of absolute helplessness. The court concluded that substantial evidence supported the agency's finding of permanent total disability.  The court noted that Dr. Pollpeter had limited claimant to four hours of work per day, and that Dr. Hines found a 41% BAW impairment and concluded claimant could not work a 40 hour week or eight hour day.  The court found that claimant's accommodated work situation was not generally available in the marketplace.  The accommodation, according to the court, did not undermine the disability rating.

Henle seems likely to be a case which will be the subject of further review to the Supreme Court.  Although the cases cited in Henle clearly support the decision of the Court of Appeals, the Supreme Court has not definitively indicated that one can be permanently and totally disabled while still working.  Henle  could be the opportunity for the court to weigh-in definitively on this issue.

An Application for Further Review was filed in Henle and denied on July 16, 2014.

Court of Appeals Reverses PTD Finding in Odd Lot Case Finding Claimant Did Not Attempt to Procure Employment

In GITS Manufacturing Co. v. Frank, No. 13-0665 (Iowa App. Jan. 9, 2014), the Court of Appeals, taking a very aggressive stance on substantial evidence, concluded that the commissioner's finding that claimant was an odd lot employee was not supported by substantial evidence, largely because claimant had not sought other employment following her injury.

Claimant suffered a cumulative lung injury from her work as a welder at GITS.  The evidence demonstrated that claimant was limited to sedentary work, and the deputy concluded that there was insufficient evidence to demonstrate that she could complete job retraining and go back to work at her age and with her physical condition.  The deputy found that claimant was an odd lot employee, and this finding was affirmed on appeal., and by the district court.

The court noted that the issue before it was whether the decision of the agency was supported by substantial evidence.  The court first addressed the odd lot doctrine, and noted that under Guyton, once claimant established a prima facie case of unemployability, the burden of production shifted to the employer to show that some kind of suitable work is "regularly and continuously available to the worker."  The employer argued that claimant had not make her prima facie case because she failed to put forth evidence of any effort to seek employment and she did not offer evidence of her inability to be employed.

The court indicated that Guyton found that it was normally incumbent on the injured worker to demonstrate a reasonable effort to seek employment.  Claimant had not done so in this case, as she was on social security disability.  The court also noted that in Nelson the court had indicated that proof of a job search was not an absolute prerequisite, and further held that the prima facie case need only be such to generate a fact question as to the employee's ability to be employed.  Defendants argued that the testimony of Susan McBroom, a vocational rehabilitation specialist, demonstrated that claimant could be employed.  The court found that McBroom's testimony, combined with the fact that no doctor had indicated claimant should not apply for sutiable work, and evidence that claimant took care of her goats at home, demonstrated that there was work she could perform.  The court also noted that the agency had concluded that claimant did not appear to be motivated to work.  The court found that "there was no evidence in the record from which the agency could find Frank could not complete retraining."  The court also rejected the agency's findings that working around the home was "quite different than working a full-time schedule as an employee of some business."  The court concluded that there was no evidence for this conclusion.

The court did not address cases that indicate that a worker is not required to be bedridden in order to be permanently and totally disabled, instead focusing on whether claimant could be gainfully employed, citing Myers v. F.C.A. Services, Inc., 592 N.W.2d 354, 356 (Iowa 1999).  The court found that the only evidence to support claimant's contention that she met her burden was self-contradictory.  The court concluded that she had not met her burden to demonstrate that she had no prospect of steady employment. The claim was reversed and remanded to the agency for determination of claimant's industrial disability.

A secondary issue was presented on whether the credit to the employer from a long-term disability payment was correct.  Claimant alleged this issue was not preserved for review, and the court agreed, finding that the employer did not challenge the amounts alleged by claimant before the agency.

The moral of this tale appears to be that a claimant must attempt to find work, even if another agency has found that claimant disabled.  The decision also indicates that in an odd lot situation, it is a good idea to have a vocational expert testify that claimant is unemployable.  In Ms. Frank's case, no vocational expert appears to have issued a report for claimant, although there should have been some vocational testimony in the social security case which found that claimant was disabled.  If there was such evidence, it was not cited in the decision of the court.  It would not be surprising to see a request for further review on this case, as the court intrudes into the agency's fact-finding role.

NOTE:  The Supreme Court granted further review in Gits and reversed the decision in October, 2014.