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, 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.