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.

Thursday, January 29, 2015

Court of Appeals Affirms Decision Finding Injury Arose In the Course of Employment

In Wal-Mart Stores, Inc. v. Plummer, No. 14-0417 (Iowa App. Jan. 28, 2015), the court addressed an issue involving an employee who was admittedly off the clock when he suffered his injury, but who was assisting customers at the store at which he worked.  On the date of the injury, claimant had completed his shift clocked out and was shopping at the store.  When he was leaving, he and a co-worked assisted a customer.  While providing assistance, claimant slipped and fell.  He subsequently completed an incident report designed for customers rather than employees.

The deputy concluded that because claimant was no longer on the clock, the injury did not arise out of and in the course of employment.  On appeal, the court indicates that the commissioner did not specifically address the "off the clock" finding, but examined the causal connection between the fall and the subsequent medical treatment. The commissioner found that the visit to the physician four days after the fall was causally related to the fall, but found no causal connection with the back surgery claimant had seven weeks later.  The commissioner ordered Wal-Mart to covered the medical expenses associated with the physician's visit, and nothing more.

The court found that the "in the course of employment" aspect of the law was at issue.  The court also concluded that substantial evidence, and indeed all the evidence, was that claimant was off the clock, but that he was assisting a customer when he had his injury.  The court concluded that the commissioner implicitly determined the "in the course of" requirement had been satisfied, by ordering medical care for claimant.  The court concluded that the determination of the commissioner was not irrational, illogical or wholly unjustifiable.  Citing Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998), a case in which benefits were awarded when claimant was injured while in the parking lot 50 minutes before her, the court concluded that claimant here had only been off work a short period of time, and "essentially acted as an employee when he stopped to assist a customer."  The court concluded that the commissioner could reasonably have rejected Wal-Mart's defense under these circumstances.

Claimant also suffered a separate injury on July 17, 2010, when he was attempting to remove a broken pad on a floor scrubber when he felt a pop in his back. The agency concluded that claimant had a 20% industrial disability as a result of this injury, despite surveillance video.  The court affirmed the 20% award, based on substantial evidence.

A final issue involved sanctions and two applications for alternate medical care.  As a part of the second application, the employer was ordered to refer claimant to a spine expert for treatment and evaluation.  Wal-Mart failed to do this, and claimant challenged Wal-Mart's failure to comply.  The commissioner concluded that Wal-Mart was denying prompt care "while shopping for opinions more agreeable to the defense than those of other physicians" and imposed sanctions of $242.82.  The court found it was bound to give deference to the commissioner's decision on sanctions matters, citing Marovec v. PMX Indus., 693 N.W.2d 779, 783-84 (Iowa 2005).  The rejected Wal-Mart's attempt to distinguish evaluation from treatment, and affirmed the sanctions awarded.

Friday, January 16, 2015

Court of Appeals Affirms Permanent Total Disability Award

In Hydecker Wheatland Co. v. Bruce, No. 14-0492 (Iowa App. Jan. 14, 2015), the Court of Appeals affirms an award of permanent total disability on substantial evidence grounds.  Claimant had suffered electrical burns to his hands, which precluded his employment in the competitive workforce.

The court noted that claimant had come in contact with a live electrical wire, and that the voltage entered his body through his right hand and exited through his left hand. This caused severe burns and nerve damage.  Claimant's fingers were amputated and there was removal of additional areas of burned skin to facilitate skin grafting.  Following the procedures, numerous ratings of impairment were provided, all of which concluded that claimant had substantial impairment.

Claimant's vocational expert, Kent Jayne, found that claimant was not able to return to his past work as an electrical lineman and concluded that his low test scores on educational achievement "presented a dire vocational impairment."  The employer's vocational expert Lana Sellner found that there were a number of jobs claimant could perform.  Sellner did not meet with claimant.

At hearing, claimant testified to phantom pain in the joints that were amputated, as well as recurring nightmares about being shocked.  Claimant also testified that when he obtained a position through a friend patrolling electrical lines and assessing damage, his nightmares increased.  The agency concluded claimant was permanently and totally disabled.

On appeal, the employer argued that claimant sustained only moderate industrial disability.  The employer challenged the claimant's contentions regarding phantom pain and PTSD.  The court concluded that claimant's complaints were substantiated by the record, and that the commissioner was entitled to consider the toll of electrical burns on claimant's physical abilities, as well as the impact on his psychological functioning. The court also concluded that the agency was entitled to weigh the vocational evidence, and could not reassess the weight provided the agency to Jayne's report.  The court also concluded that the conclusion of permanent total disability was supported by substantial evidence.

Court of Appeals Affirms Back Injury Award, Penalties; Affirms Denial of Claim for Right Knee Injury

The court in Jenson v Cummins Filtration-Lake Mills, No. 13-1733 (Iowa App. Jan. 14, 2015) affirmed an award of benefits for a back injury, and the penalty benefits associated with that award. The court also affirmed the denial of claimant's knee claim. Claimant appealed the denial of the knee claim and also argued that the district court entered a judgment not in conformance with the commissioner's award regarding the back injury.

At hearing, the deputy concluded that claimant had failed to meet her burden of proof with respect to the knee claim.  The commissioner affirmed, noting that the deputy's decision was based largely on the deputy's assessment that claimant's testimony was not credible or convincing.  The district court noted that the information on which Dr. Kuhnlein relied for his causation opinion was not correct (as the deputy had found) because claimant was not required to plant her knee in the way stated to Dr. Kuhnlein.  The deputy concluded that claimant's injury to her knee was the result of degenerative disease and poorly controlled diabetes, as well as her weight.  The court finds that this conclusion is supported by substantial evidence and further notes that the conclusion is not illogical, irrational or wholly unjustifiable.

Claimant also argued that the district court erred in miscontruing the commissioner's award when converting the award to a judgment.  Claimant argued that the penalty should be applied to the gross amount of weekly benefits due from the period from December 8, 2009 through the date of the hearing, January 7, 2011.  In deciding the case, the district court concluded that penalties only applied to the net amount of benefits received after subtracting for receipt of long and short term disability benefits.  On appeal, the court notees that section 86.13(4)(a) provides that the workers' compensation commission is to award benefits of up to 50% of benefits "denied, delayed or terminated."  The court concluded that a lesser amount of benefits was denied, delayed or terminated, given the payment of long and short term disability.  The court found that claimant's argument would penalize the employer for the full amount of benefits owed regardless of whether claimant "was denied benefits completely or received only one dollar less than which she was entitled."  The court believed that ascribing penalty to all benefits would defeat the statute's purpose.  It is likely that this issue will be the subject of an application for further review to the Supreme Court.

Court of Appeals Remands Claim to Commissioner, Finds that Commissioner Did Not Consider All Evidence

In JBS Swift and Company v. Hedberg, No. 14-0565 (Iowa App. Jan. 14, 2015), the Court of Appeals reversed a permanent total disability award, finding that the commissioner's designee, who had increased the award from 80% to PTD, failed to consider important evidence in reaching the PTD conclusion.  Thus, what seems to be a substantial evidence question, for which there was record support, is remanded to the commissioner.

Claimant suffered a shoulder injury at work.  He also suffered from preexisting problems of hearing loss and speech problems.  He had worked for 20 years despite these problems.  Claimant left his job with the employer, according to the court, because he was unable to care for himself following the unexpected death of his wife.  Claimant testified that if his wife had not died, he would have stayed in Iowa and continued to work at Swift.

Two vocational experts offered reports in the case.  Carma Mitchell found that there was a 69% loss of access to the labor market based on the physical restrictions.  She also concluded that given all of claimant's limitations, his employment options were extremely limited. Lana Sellner indicated that there were seven positions at Swift that would be available to claimant if Dr. Neff's restrictions were taken into account, two positions if Dr. Bansal's restrictions were used.

The arbitration decision concluded that the employer had offered suitable light work within claimant's restrictions and concluded that there was an 80% industrial disability.  On appeal, the commissioner's designee concluded that claimant was unable to perform work within his experience, training, education and physical capacities.  The appeal decision concluded that the positions offered by Swift were make work at best.  On judicial review, the district court concluded that the decision of the agency was supported by substantial evidence and was not "illogical, unreasonable, arbitrary or capricious."

The Court of Appeals rejected claimant's contention that the case was solely a substantial evidence case, and agreed with the employer that the question was whether the agency's action was illogical, irrational or wholly unjustifiable because the agency failed to consider and misstated the evidence. The court concludes that the record "reflects the commissioner's designee simply ignored or overlooked record evidence."  The court concludes that the statements of the agency regarding the evidence put on by the employer concerning the jobs claimant could perform were "demonstrably incorrect."   The court states that "the deference afforded the agency on substantial evidence review is predicated on the assumption the agency reviewed and considered the evidence in reaching its decision."  The court remands to the agency to reevaluate the evidence and to make a new decision based on the existing evidence.