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.

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.