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.

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.