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

Wednesday, November 26, 2014

Court of Appeals Affirms 60% Industrial Disability Award, Agrees on Commencement Date For Permanency

In Menard, Inc. v. Bahic, No. 14-0239 (Iowa App. Nov. 26, 2014), the commissioner found a 60% industrial disability and concluded that the commencement date for permanency was October of 2012.  Defendants urged the court to reverse, arguing that permanency should commence in May of 2011 and that the industrial disability award was inappropriate.  The court of appeals affirmed the decision of the agency.

Claimant suffered a stipulated injury to his back in August of 2010.  Dr. Igram, although finding that surgery was not appropriate, imposed 20 pound restrictions on claimant, which precluded his former, heavy, work.  Claimant was placed on a job in the sales department answering phones and helping customers.  He worked on this job from February of 2011 until his termination in July of 2011. He received temporary partial disability benefits during this time, because he was often not provided with his former hours of work.

The employer sought to place claimant in a sales representative job, but a background check revealed he had been convicted of a felony and he was terminated for falsifying his initial job application by not including reference to the felony.  The employer ceased paying TPD benefits at this time and converted the benefits to permanency benefits.  Claimant continued to receive treatment for his injury and was ultimately found to be at MMI on October 8, 2012.

Before the agency, the employer made two arguments concerning the conversion to permanency.  The first was that claimant should have been found at MMI in August of 2011, per the reports of Dr. Igram.  The second is that claimant was no longer eligible for temporary benefits because he had committed job misconduct.  The deputy concluded claimant had a 60% industrial disability, and that permanency was to commence in October of 2012.  The decision was affirmed by the commissioner and by the district court.  The district court noted as of the date of his termination, there was an inability on the part of the employer to offer suitable work.

Before the court of appeals, the employer argued that temporary benefits should have ended in May of 2011 (despite agreement at hearing that permanency did not commence until August) and that commencing permanency in October of 2012 was irrational and illogical.  The employer contended that claimant was not working in a light duty job, but had actually acquired a new permanent job.

The court first notes that claimant was received TPD benefits in the period from May through July, which conflicted with the employer's contention as to the ending date of the healing period.   The court found no merit in the employer's argument that permanency should commence in May.  The court concludes that substantial evidence supported the conclusion that claimant reached MMI in October of 2012, which became the commencement date for permanency.  Note that although the employer appears to have raised the issue of job misconduct as a defense to payment of benefits, the court of appeals does not directly address this issue, simply referring to this issue in a footnote.  The court also affirmed the 60% industrial disability award.

Court of Appeals Affirms Award of Temporary and Permanent Benefits

Catholic Health Initiatives v. Hunter, No. 14-0202 (Iowa App. Nov. 26, 2014) involved questions of causation, healing period benefits, permanency benefits and medical care.  The Court of Appeals affirmed the commissioner's award of benefits.

Claimant had systemic lupus and was receiving social security disability benefits, but returned to work after those benefits were terminated.  She suffered a traumatic injury to her left wrist, hip and knee, and also complained of headaches as a part of this injury.  Following this incident, claimant had a fall at home and visited the doctor following that fall.  Claimant's symptoms had largely resolved when she slipped and fell again at work on March 3, 2010 (the earlier injuries were in 2009).  She was placed on work restrictions following this fall.

Claimant was offered light duty work during the day, but could not perform that work because of family obligations.  No light duty work was available at night.  Claimant was placed on FMLA leave, but she was shortly thereafter released without restrictions.   After her return to work, she continued to have symptoms in her hip and back, and began missing days at work.  In December of 2010, she was terminated for exceeding the annual amount of FMLA leave allowed by the employer.  The treating physician (Dr. Mahoney) found claimant had not reached MMI, but the IME physician (Dr. Epp) found MMI and provided 10 pound lifting restrictions.

The decision of the agency found that the injury was related to claimant's work, awarded a brief period of temporary benefits in March of 2010, and placed claimant on a running healing period.  Before the court of appeals, the employer argued that claimant was capable of performing employment that was substantially similar to that she had performed before her work injury.  The agency had found that although claimant had no formal restrictions, the employer had allowed modifications in order to allow claimant to continue working.  The court of appeals agreed, holding that this finding was supported by substantial evidence.

With respect to causation for the hip injury, the court also found substantial evidence supported the decision of the agency.  The court noted that the finding of credibility by the agency was to be accepted, noting that the fact finder had the opportunity to view the witness.  The court found that both the hip injury and an injury to the neck were related to claimant's work activities.

During the course of proceedings, claimant had sought care from Dr. Mahoney, and sought reimbursement of his costs.  The agency noted that that care provided by Dr. Mahoney was entirely reasonable and had been beneficial to claimant.  Under Bell Bros. v. Gwinn, the agency and court concluded that reimbursement of the costs for beneficial care was appropriate.

Thursday, November 13, 2014

Court of Appeals Affirms District Court Decision in Review Reopening Case

Following the settlement of a claim for 12% industrial disability and healing period benefits, claimant filed for review-reopening.  The agency concluded that claimant had established a material change in conditions since the time of the settlement, found that additional permanent impairment had been established and concluded that past and future medical expenses should be paid by defendants.  The district court affirmed the finding that there had been a change in circumstances and that claimant was entitled to medical care, but remanded the case for a finding of whether additional industrial disability had been incurred.  On appeal, the Court of Appeals affirms the findings of the district court.  Anderson News v. Reins, No. 14-0038 (Iowa App. Nov. 13, 2014).

Following the settlement, claimant continued to treat with Dr. Kirkland, and he indicated that claimant did not have any further impairment or restrictions.  Because of the closure of claimant's employer, she was working in a different job at the time of the hearing, doing similar work, but paying .25 per hour less.  Dr. Quenzer, who had performed an earlier surgery, found that there was a 4% increase in the impairment to her upper extremity. Dr. Basil (Bansal?) found a 4% increase in impairment plus some loss in claimant's range of motion.  Dr. Quenzer recommended a high yield MRI of the claimant's shoulder to determine whether surgery would be appropriate.

The court noted that worsening of a claimant's physical condition was a way to satisfy the review reopening requirements, but noted that the principles of res judicata applied.  The employer argued that there must be "a substantial worsening of the claimant's condition to permit a review reopening." The court rejected the argument that Kohlhaas v. Hog Slat, Inc., 777 N.W.2d 387, 392 (Iowa 2009) had imposed a requirement that a "substantial worsening" was required.   The court concluded that the commissioner's finding that claimant had suffered a worsening of her condition was supported by substantial evidence.

The court also agreed with the district court that the commissioner had failed to explicitly consider whether claimant had suffered a loss of earning capacity that would warrant an increase in benefits.  The decision of the commissioner had not demonstrated how there had been a loss of earning capacity since the time of the settlement and noted that "her economic condition has actually improved considerably." The court remanded for the agency to make a finding of claimant's loss of earning capacity.

On the issue of future care, the finding that Dr. Quenzer had recommended a high yield MRI and the commissioner's confirmation of this fact was found to be supported by substantial evidence, and this finding was also affirmed.

Court of Appeals Affirms Denial of Petition for Interlocutory Review

In a case involving only procedural issues, the Court of Appeals affirmed the finding of the district court that it did not have jurisdiction to hear an interlocutory appeal of a case that presented the issue of whether workers' compensation or the Municipal Fire and Police Retirement System of Iowa (MFPRSI) governed the issue of compensation for claimant.  City of Davenport v. Timm, No. 13-1357 (Iowa App. Nov. 13, 2014).  Claimant was a police officer who was injured while enrolled in the Iowa Law Enforcement Academy.  She returned to work, but because she was limited to simple office tasks, she was asked to resign, and told that if she did not resign she would be terminated.

Following her resignation, claimant applied for a disability pension with MFPRSI and learned that her resignation disqualified her from benefits under that system.  She then filed for benefits under Chapter 85.  The city moved to dismiss the workers' compensation proceeding for lack of subject matter jurisdiction.  This motion was denied, but a motion for summary judgment was filed, and this was also denied, premised on the fact that it was based on the same facts as the motion to dismiss.  On appeal, the commissioner found there were two distinct proceedings, and remanded the summary judgment motion for a decision.  Summary judgment was granted by the deputy.  The commissioner reversed this finding, and remanded for a finding on the merits of the workers' compensation claims.

At this juncture, the employer filed a petition for judicial review and an application to stay the agency action.  The district court, acting sua sponte, concluded that it did not have subject matter jurisdiction over the petition for judicial review because the requirements for interlocutory review were not satisfied.  The petition was dismissed and the request for stay denied.

On appeal, both parties agreed that there had been no final agency action, and thus the judicial review action was interlocutory. The court noted that there is a two part inquiry for determining whether interlocutory appeal was appropriate.  First, the moving party must demonstrate that administrative remedies had been exhausted.  Second, the moving party bears the burden of establishing that waiting for the administrative process to conclude would not be an adequate remedy.  Citing City of Des Moines v. City Dev. Bd., 633 N.W.2d 305, 309 (Iowa 2001).   To demonstrate inadequacy of the remedy, the party must demonstrate "irreparable injury of substantial dimension."

The court noted that the city's argument was that section 85 did not apply to persons who are entitled to benefits under chapters 410 and 411 of the Code.  The city argued that it was irreparable harm to have the city "undergo litigation it was never intended to undergo."  The court noted that the city had not presented evidence of a legislative intent that the workers compensation statute, section 85.1(4), granted immunity or a deprivation of subject matter to the agency.  Rather, the agency was allowed to determine this question in the first instance, as it had done.  The court found that the city's argument assumed its own conclusion, that claimant was eligible for benefits under chapters 410 and 411 and thus not eligible for benefits under chapter 85.  The court found it was impossible to judicially review the agency's conclusion on this issue when no such conclusion had yet been reached.   The court noted that the agency process should be allowed to reach its conclusion before judicial review would be appropriate.  The action of the district court was therefore affirmed and the case remanded to the agency.

In dissent, Justice Vogel argued that the commissioner had concluded that claimant's only remedy was under chapter 85, and thus had already decided the question of jurisdiction, making the claim ripe for review at the district and appellate court levels.  The dissent would not have required the case to be sent back to the agency for a decision on the merits inasmuch as a decision had already been reached on the question of whether the workers' compensation statute applied.

Friday, November 7, 2014

Court of Appeals Affirms 25% Industrial Award in Traumatic/Cumulative Injury Case

In West Des Moines Community School District v. Fry, No. 13-1391 (Oct. 19, 2014), the court of appeals affirmed the commissioner's order finding that claimant had suffered an injury that had both traumatic and cumulative aspects.  Claimant had suffered two traumatic injuries at work, one in 2007 causing injury to his left hip, collarbone and left shoulder and the second incident in 2008 causing injury to the left hip and SI joint.  Claimant initially filed claims relating to both injuries, but subsequently dismissed the 2007 claim.  With respect to the 2008 claim, claimant alleged that the injury was both acute and cumulative.

The arbitration decision rejected the findings of Dr. Stoken because she had lumped together the two injuries from 2007 and 2008.  On appeal, the commissioner reversed, relying on the opinions of claimant's family physician, Dr. Honsey, as well as Dr. Stoken's IME.  The commissioner noted that Dr. Honsey had concluded that claimant's pain in her SI joint had worsened following the October 2008 injury.  The commissioner also found that this injury was the cause of permanent impairment and activity restrictions by Dr. Stoken.

The court first addressed a question of error preservation.  The employer had alleged only a substantial evidence question on judicial review, but on appeal also alleged abuse of discretion.  The employer argued that although the argument was phrased differently at the appellate level, the argument was essentially the same.  The court concluded the the employer's objection of the "combining" of Dr. Honsey's opinion with that of Dr. Stoken was not properly before the court, but recognized that the "distortion" of the expert opinions underlies the employer's substantial evidence argument.

The employer argued that there was no evidence that claimant had suffered a cumulative injury to the SI joint and that the only injury to that joint was attributable to the 2007 traumatic injury.   Claimant responded that there was a traumatic aspect to the SI injury from the 2008 events and that the case law allowed the traumatic injury to "represent the manifestation of a cumulative injury."  The court found this argument persuasive.  The court noted that the acceptance of a gradual injury as the mechanism of harm "did not exclude the idea that acute injuries can contribute to the employee's compensable disability under the cumulative injury doctrine."  The court noted that in between the 2007 and 2008 acute events, claimant had performed rigorous and repetitive work for the school district.  Citing Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), the court concluded that claimant could recover by way of a cumulative injury claim for any functional disability resulting from his day to day activities at the school, subsequent to his fall in January 2007.  The court rejected the employer's argument that the commissioner's action was irrational, illogical or wholly unjustifiable.

The court went on to note that substantial evidence supported the commissioner's action in crediting the reports of Dr. Stoken and Dr. Honsey.  The court citing the Gits v. Frank case issued in October of 2014 by the Supreme Court, noted that "the commissioner does have authority to pick and choose which aspects of an expert opinion deserve weight."

The court also affirmed the award of healing period benefits, medical expenses and alternate medical care, without substantial discussion.  An application for further review was filed and denied by the Supreme Court on January 21, 2015.

Court of Appeals Affirms Declaratory Order Requiring Divulgence of Surveillance Materials

The Court of Appeals, in a case that is likely to be heard by the Supreme Court, has held that the Commissioner's Declaratory Order indicating that section 85.27 required the release of surveillance materials once surveillance had been conducted was appropriate.  Iowa Insurance Institute et al. v. Core Group of the Iowa Association for Justice, No. 13-1627 (Oct. 29, 2014).  The court, in a 2-1 decision, found that section 85.27 of the Code, in its requirement that the release of all information was required in a workers' compensation case, encompassed the disclosure of surveillance materials.

The declaratory order proceeding had been brought by the Core Group of the Iowa Association for Justice (Core Group) before the commissioner to obtain an order elucidating the commissioner's position on this issue.  The Iowa Insurance Institute and other employer and defense counsel groups intervened in the proceedings at the commissioner level.  An initial question in the case was whether the commissioner had the power, under section 17A.9 of the Iowa Administrative Procedure Act, to rule on the declaratory order petition.  The court found that there were sufficient facts to demonstrate that petitioners would be aggrieved by the commissioner's failure to issue an order, and found that a stringent standing requirement was inconsistent with the precept that declaratory orders may be based on hypothetical facts. The court also found that the questions presented were appropriate in a declaratory order proceeding.  Finally, the court noted that the ruling did not prejudice other parties who were not parties to the proceeding because those parties were not bound by the ruling (although as a practical matter, the commissioner's determination provides a clear clue as to how a surveillance question would be ruled on in proceedings outside the declaratory order proceeding.   Accordingly, the court agreed that the commissioner had the power to hear the action, a finding joined by all judges on the panel.

On the merits of the case, the majority of the court held that, because of the expansive wording of section 85.27, the requirement that surveillance materials be released was consistent with the statute.  The court noted that section 85.27 required the release of information concerning the employee's physical or mental condition, which the commissioner had applied to surveillance materials.  The court rejected the contention that the release of information applied only to materials held by third parties, noting that the statutory language requiring the "release of all information" was more encompassing than defendants alleged.  The court rejected the contention of appellants that the "release of information"  applied only to the release of medical records.  According to the court, the use of the word release "means disclosure to the other parties in the workers' compensation proceeding."  The court noted, citing Morrison v. Century Eng'g., 434 N.W.2d 874, 877 (Iowa 1989) that the term release was part of a broad discovery rule designed to "foster and encourage a ready access to the information necessary to speedily process workers' compensation claims."

The court also noted that the commissioner, in ordering the release of surveillance materials prior to deposition, was acting contrary to previous decisions from the agency.  The court noted that section 17A.19(10)(h), which involves judicial review of agency action, authorizes judicial review when a ruling is inconsistent with the agency's prior practice.  The court notes that this provision had been narrowly construed.  Furthermore, the commissioner had explained his reasoning in rejecting the earlier rule.

Finally, the court rejected appellants' contention that disclosure destroyed the work product privilege.  The court noted that the work product privilege applied only to those items that disclose the mental impression, conclusions, opinions or legal theories of the attorney representing the party in litigation.  The court found that the mental impressions of counsel were not revealed by discovery of surveillance materials.  The court also noted that the burden of asserting the work product privilege under section 85.27(2) was placed on the party asserting it.  The court found that there was no conflict with the statute on this point.  The decision of the commissioner was affirmed.

In his partial dissent, Judge McDonald argues that when read in context, section 85.27(2) limits all information to "medical records and similar or related documents that typically, although not necessarily would be held by third parties."  The dissent focuses on the legislative history of this provision, which referenced "the release of information concerning a person's past physical or mental condition.  The dissent would conclude that 85.27(2) did not apply to surveillance materials and reports.

The dissent goes on to indicate that privileges are not waived under the statute.  In making this argument the dissent essentially ignores the language of the statute stating that the parties to a workers' compensation claim "further waive any privilege for the release of information."  The dissent cites to general work product principles and cases without focusing on the terms of the statute.  The dissent criticizes the commissioner for conflating attorney-client privilege and the work product doctrine.  The dissent argues that the work product doctrine is not a privilege and thus is not waived under the statute.  The dissent would reverse the decision of the commissioner.

Because of the importance of the issues presented in this case, it is likely that further review will be sought by the Supreme Court, and also likely that review will be granted.  For the time being, however, the position of the commissioner, that surveillance materials are discoverable prior to deposition and that the party asserting the right to withhold the information bears the burden of demonstrating why the material should not be disclosed, has been upheld by the Court of Appeals.