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.

Sunday, December 28, 2014

Court of Appeals Affirms Finding That Bonus was not Irregular

In Menard, Inc. v. Scheffert, No. 14-1029 (Iowa App. 2014), the Court of Appeals concluded that claimant's rate, which was computed on the basis of having received bonuses, was properly computed by the agency.  The court concluded that the commissioner's finding that claimant's bonuses were not irregular was not irrational, illogical or wholly unjustifiable.

Claimant received a bonus each year that her department was profitable.  From 1996 to 2008, the date of injury in the case, claimant received some amount of bonus, called the TPS bonus.  Additionally, claimant was eligible for an IPS bonus if the store was profitable.  Neither bonus was guaranteed, and could be revised downward based on fines assessed against employees.  Claimant received both a TPS and IPS bonus in the year of the injury, and the agency included these bonuses in determining claimant's rate.  The district court concluded that the agency's findings on this point were not irrational, illogical or wholly unjustifiable.

The Court of Appeals noted that when an agency has been vested with the authority to apply law to fact, "we will only disturb the agency's application if it is irrational, illogical or wholly unjustifiable." A decision is irrational if it is not governed by or according to reason.  It is illogical if contrary to or devoid of logic.  It is unjustifiable "when it has no foundation in fact or reason."

The court noted that irregular bonuses were excluded from the determination of gross earnings.  Because the decision of the agency was not irrational, illogical or wholly unjustifiable, the finding was affirmed.  The court noted that claimant had received some amount of bonus every year she had worked for Menard.  The evidence further demonstrated that claimant was paid a bonus for her work in 2008.  The decision of the agency was affirmed.

Court of Appeals Affirms Commissioner's Denial of Permanency and Medical Care

In Reefer v. Gold-Eagle Cooperative, No. 14-0191 (Iowa App. Dec. 24, 2014), the Court of Appeals affirmed a decision of the commissioner finding that claimant had not demonstrated permanency, nor entitlement to medical care.  The court concluded that there was substantial evidence in the record to support the agency's findings.

Claimant had a back spasm at work, which caused him to fall to the ground.  Dr. Jew, and later Dr. Igram, found that he had back spasms.  Ultimately, Dr. Igram released claimant to work with no restrictions and assigned no permanent impairment.  Claimant sought treatment on his own at the Low Back and Neck Care Institute in Minnesota.  He was diagnosed with spondylosis.  An IME from Dr. Kuhnlein concluded that claimant had a 10% impairment.  Following the finding of MMI by Dr. Igram, claimant's employment was terminated.

At hearing, the existence of a work related injury was stipulated.  The deputy, however, found the injury was temporary and awarded TPD benefits and penalty.  This decision was adopted by the commissioner.  The appellate court noted that substantial evidence governed the proceedings.  Claimant challenged the manner in which the deputy assessed the evidence and presented the facts.  Claimant argued that the commissioner simply listed and summarized the evidence rather than making findings of fact.  The court concluded that the necessary support for the factual findings under section 17A.16 of the Iowa Code was present in the decision.  The court also rejected the claimant's contentions regarding the credibility of the lay witnesses (including claimant) vis a vis the credibility findings concerning the medical opinions. The court noted that medical causation was a question of fact vested in the commissioner's discretion.  Because the decision of the agency was supported by some evidence on the record, the court affirmed the decision of the agency.

Friday, December 19, 2014

Supreme Court Upholds Imposition of $1000 Fine for Failure to File First Report

In Denison Municipal Utilities v. Iowa Workers' Compensation Commissioner, 857 NW2d 230 (Iowa 2014), the Iowa Supreme Court upheld a $1000 fine against the employer and EMC Insurance Companies for failing to file a first report of injury.  The employer had argued successfully before the district court that it was not required to file a first report in a case where claimant had not missed any work and had made no claims of permanency.  The Supreme Court reversed the decision of the district court.  The court also concluded that the employer had not made a sufficient showing of good cause to avoid the $1000 assessment.

The action was precipitated when claimant filed an application for alternate medical care and the agency noted that no first report was on file.  The employer was given 30 days to file a first report, but did not do so.  Before the agency the employer argued that section 86.12 only allows a penalty when the first report is required by section 86.11.  The employer also argued that the statute (86.11) did not require a first report since claimant had not missed work and there was no claim of permanency.  The employer argued that 86.12 only allowed the $1000 assessment when a first report was required by 86.11.  The deputy concluded to the contrary, noting that the commissioner could require information under section 86.10 and by rule.

The court first dealt with a procedural issue and found that the claim should have been styled a request for a writ of certiorari rather than a petition for judicial review, since the commissioner cannot be named as a party in a judicial review action under section 86.29.

The court noted that the workers' compensation statute was to be liberally construed.  The court indicated that the statute (86.12) allowed the commissioner to require that information and reports were to be provided the agency, in addition to reports of injuries under section 86.11.  Section 86.12 also provided the agency with an enforcement mechanism to compel compliance.  86.12 provides for the filing of reports in three circumstances - where required by 86.11, where required by section 86.13, or where required by agency rule.  The court noted that this section was written in the disjunctive and allowed the agency to write rules to mandate reports in addition to the requirements contained in the Code.  In this case, rule 876 - 3.1 required the filing of a first report when demanded by the commissioner under 86.12 or when an original notice and petition was filed for which a first report has not been filed.  The court noted that the agency's rule was within the power of the agency to enact, and further noted that there were practical reasons for filing a first report after a claim had been filed with the commissioner, such as notice.  Failing to file the first report, according to the court, hampered the ability of the agency to determine whether notice of an injury had been accomplished.  Furthermore, the requirement for a first report was consistent with the commissioner's broad information gathering and reporting duties.  For these reasons, the commissioner was within his power to require the employer to file a first report.

The court rejected the good cause argument of the employer.  The court concluded that the only good cause reason presented by the employer was its belief that no first report was required.  In the face of a request for filing and the opportunity for a hearing, no good cause was presented.  The court therefore found the imposition of the $1,000 assessment justified.

Justices Waterman and Mansfield dissented.  The dissent was premised on the fact that section 86.11 did not require a first report because no time was lost and no permanency was involved in the case.  The dissenters argued that the agency cannot amend the statute by rule.  They argue that the rule, which states that a first report must be filed "when demanded by the commissioner pursuant to Iowa Code Section 86.12" does not allow for the commissioner to demand a first report in other circumstances.  Of course, the rule goes on to indicate that a first report is to be filed "when an employer is served with an original notice and petition that alleges an injury for which a first report has not been filed," which would seem to be the circumstance in this case.

Although this case might be seen to have been the part of a direct challenge to the agency by the employer, counsel for the employer argued that the failure to file the report was simply an oversight. The dissenters see this decision as a case of overregulation by the agency rather than a simple request to file a first report.  The dissenters acknowledge that the burden in this case was slight, but go on to warn that "the burdens imposed other other rules could be onerous," without citing any specific onerous burden to which employers could be subjected.