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, 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.