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, February 25, 2015

Court of Appeals Affirms Commissioner on Rate, Penalty and Other Issues

In Wegner v. Hormel Foods Corp., No. 14-0300 (Iowa App. Feb. 25, 2015), the Court of Appeals affirmed the decision of the commissioner on rate and penalty issues.  Claimant had not reached maximum medical improvement at the time of hearing, and the the deputy deferred ruling on permanency, an alleged underpayment of temporary benefits and penalty claims because of this.  The commissioner affirmed the decision of the deputy.

Claimant's initial argument was that the commissioner failed to comply with section 17A.16 of the Code, which requires that a proposed or final decision is to include findings of fact and conclusions of law, separately stated.  The court found that step-by-step reasoning in an agency decision was not essential. so long as "it is possible to determine what evidence was considered and why certain evidence was credited over other evidence."  Citing Schutjer v. Algona Manor Care Ctr., 780 N.W.2d 549 (Iowa 2010).  The court found that the agency had explicated its reasons for rejecting claimant's rate calculations, denying penalty benefits and deferring consideration of temporary disability benefits.

On the question of rate, the court initially found that this issue involved the application of law to fact, and was reviewed to determine whether it was "illogical, irrational or wholly unjustifiable."  The deputy had criticized the evidence of both parties on the rate issue, finding that defendants' inclusions failed to include raw data, and finding that claimant's exhibits were "in the form of scissored snippets of original documents mashed together."  The commissioner found that Exhibit D with its inefficiencies "clearly trumps" Exhibit 2 in providing an articulate reasoned basis for calculation of the average weekly wage.  The court finds that the commissioner's findings were supported by substantial evidence.

Claimant asserted a penalty for the rate paid to claimant initially.  The rate was increased during the proceedings by the employer and a check was sent to the employee.  The deputy found that no penalty was due because of claimant's significant delay in responding to Hormel's request for information supporting a higher rate together with inaccuracies in the information that was ultimately provided.  The Court of Appeals found there was substantial evidence to support the commissioner's implicit findings under section 86.13(4)(c).

The agency had also deferred consideration of temporary benefit issues, as it comported with administrative economy and adjudicative consistency.  Claimant contended that everything necessary to resolve these issues had been submitted.  The court found that although this may have been true, the commissioner was within his discretion in deferring consideration of these issues.

Tuesday, February 17, 2015

Court of Appeals Concludes that Counseling for Spouse of Injured Worker is not Mandated by Section 85.27

Hoyt v. Wendling Quarries, No. 14-0800 (Iowa App. Feb. 11, 2015), presented the interesting question of whether section 85.27 of the Code required or allowed for payment for counseling for the spouse of the injured worker, when that counseling was recommended by an authorized treater for the claimant.  Ultimately, the Court of Appeals concluded, as had the agency, that section 85.27, did not require payment for such treatment by the employer.

Claimant suffered severe physical injuries while working, and subsequently developed depressive disorder, post-traumatic stress disorder and dementia.  He was ultimately found permanently and totally disabled, and that decision was not a part of the case before the Court of Appeals.  During claimant's treatment for his injury, Dr. Michael March, the authorized mental health provider, recommended that claimant and his wife engage in individualized counseling. Claimant's wife was his primary caretaker and Dr. March stated that she would "be better able to provide what he needs if she can manage her own distress and adjustment more effectively."

The employer denied the care, and an alternate medical care proceeding was commenced.  The deputy found that the statute only required care for the injured employee and not other parties.  The deputy noted that although joint counseling had been approved by the agency, individualized counseling had not.  On judicial review, the district court found that section 85.27 only authorized treatment for the injured worker and not any other person.

The Court of Appeals first noted that the agency was to be given no deference because the issue was statutory.  The court also found that if the statute is clear, the court would not look beyond the terms of the statute.  The court concluded that "the plain language of the statute does not require the employer to pay for individualized counseling services for someone other than the injured employee even where such treatment may benefit the injured employee."  The court found that the statute only required an employer provide care to "an injured employee."

The court rejected claimant's contention that the statute should be interpreted liberally to encompass counseling for a claimant's spouse because the counseling could benefit the employee.  The court rejected this argument, finding that it could not ignore the plain language of the statute.  As expressed by the court:  "Fidelity to the text best honors the legislature's expressed policy determination."  The court concluded, in rejecting the argument that the agency had previously approved joint counseling, that the agency's past practice is not binding on the court, that the agency's interpretation of 85.27 was not binding on the court, and that the cases cited by claimant were distinguishable as in those cases the spouse was collateral to treatment for claimant.

Although Hoyt represents a narrow reading of section 85.27, it may also represent a unique circumstance such that the effects of the decision have no ramifications to other claimants and their spouses.  Typically, if counseling is ordered, it will be joint counseling, and the decision in Hoyt does not prohibit counseling of that type, or indicate that section 85.27 would prohibit such counseling.

Court of Appeals Affirms Commissioner's Decision Finding that Claimant's Mental Health Issues Arose Out of Employment

In Menard, Inc. v. Schneberger, No. 14-0682 (Iowa App. Feb. 11, 2015), the Court of Appeals affirmed the decision of the commissioner concluding that claimant's mental health problems arose out of and in the course of his employment.  At the commissioner level, the employer stipulated to a physical injury to the shoulder, but denied that claimant's panic attacks and depression were related to the work injury.  Dr. Seamands, claimant's doctor for her psychological problems, noted that claimant had not had any history of depression other than situational depression under acute stressors.

Claimant met with Dr. Donald Gammel for an evaluation requested by the employer.  Dr. Gammel was an occupational health doctor and he opined that the psychological difficulties were not related to the work injury.  He stated that the depression was a normal and expected manifestation of a preexisting disorder.  Dr. Seamands indicated that claimant did not have a preexisting condition of panic disorder or depression and found that the work injury had substantially aggravated and led to these disorders.  Dr. Seamands also noted that claimant was likely to need therapy for these disorders for the foreseeable future and found that claimant was unable to work.

John Brooke, Ph.D., provided an opinion for the employer that support linking claimant's depression and panic disorder to the work injury was "scant at best."  At hearing, a psychiatrist, Dr. Terry Davis, also testified.  Dr. Davis found that claimant had a somatoform disorder, which was not caused or aggravated by the work injury.  The deputy rejected Dr. Davis' testimony, finding that he had no idea of the legal standard of causation.  The deputy found the opinions of Dr. Seamands well-reasoned and based on actual treatment.  Ultimately the deputy found permanent total disability, On appeal, the commissioner concluded that the opinions of Dr. Seamands were the most persuasive and rejected the opinions of the other doctors who had opined on the issue.

At the district court level, the court found that claimant's mental health injury arose out of and in the course of employment, based on substantial evidence standards.  The court remanded the case on the permanent total disability finding, however, concluded that the commissioner did not set forth facts to support this conclusion.  This finding was apparently not the subject of a cross-appeal at the appellate level.

The Court of Appeals first noted the "the deference we afford to decisions of administrative agencies largely controls our result today."  The court stated that medical causation is generally proven with expert testimony and found that the decision whether to accept or reject medical testimony was within the peculiar province of the commissioner.  The Court of Appeals stated that "to grant the relief requested by Menard's we would have to step into the shoes of the commissioner, which we cannot do."  The court affirmed the decision of the agency, and remanded the case to the agency for further opinion on the permanent total disability issue.

Court of Appeals Affirms Denial of Benefits, Holds Claimant Harmless for Certain Medical Expenses

The court in Ramirez-Trujillo v. Quality Egg, No. 14-0640 (Iowa App. Feb. 11, 2015) addressed issues of causation and medical expenses, and affirmed the decision of the commissioner on both grounds.  At the appeal level before the agency, the commissioner held that claimant's condition subsequent to September 30, 2009 was not the result of her work injury on August 1, 2009, and that the employer was responsible for reimbursing claimant for out of pocket medical expenses incurred after September 30, 2009, "because the employer failed to notify Ramirez-Trujillo that the care was no longer authorized as required by Iowa Code section 85.27(4)."

The district court reversed the commissioner's order with respect to medical expenses and affirmed the decision of the district court on the medical causation question.  The court found that it was reasonable for the employer to deny payment for the medical costs as claimant told the employer that the treatment was for a separate, non work related injury.

The Court of Appeals first noted that their review of final agency action was "severely circumscribed" and that "the cardinal rule of administrative law is that judgment calls are within the province of the administrative tribunal, not the courts."  With respect to the causation issue, the court affirmed the decision of the commissioner on substantial evidence grounds, based on the decision of the district court.

On the medical expense issue, the court noted that section 85.27(4) provides that if the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that care is no longer authorized.  The court concluded that the commissioner had no special legislative authority to interpret section 85.27(4), and therefore the question was whether an error at law had been committed.  The court, found the statutory language "clear enough" and rejected the employer's argument to "incorporate limiting language in the statute that is not there."  The court also found that legal effect was to be given to what the legislature actually said as opposed to they might have said.  The court noted that although this imposed a burden on the employer to communicate with employees, this burden was minimal and was implicit, if not required, by the statute.  This was also consistent with the liberal construction of the act.  The court therefore reversed the decision of the district court on the medical expense issue.

The Ramirez-Trujillo case is potentially important in any situation in which an employer begins care and then ceases to provide that care.  The statute, as interpreted by the court, imposes a duty on employers to notify the employee that authorization for care has ended, and unless that notification is provided, the employer continues to be responsible for the care.

Sunday, February 15, 2015

Court of Appeals Affirms Commissioner's Decision Excluding Evidence, Applying Review Reopening Law

The court in Lull-Gumbusky v. Great Plains Communications, No. 13-1886 (Iowa App. Feb. 11, 2015) addressed a number of issues and affirmed the decision of the commissioner on all issues.

The first issue presented to the court involved the exhibits presented by claimant.  The deputy found at hearing that the exhibits did not conform to the format outlined in the hearing report, because they were organized chronologically rather than chronologically by provider.  At hearing, the deputy indicated that the noncompliance would lead to the exclusion of evidence.  Claimant did not conform his exhibits and some of the exhibits were excluded.  The Court of Appeals noted that the agency had broad discretion in oversight and determinations about the admissibility of evidence and affirmed the exclusion of certain evidence.

The commissioner found that review reopening was not appropriate because substantial evidence supported the conclusion of the commissioner that the facts did not support the award of additional benefits.  The court concluded that claimant had failed to prove that her medical condition had changed, and denied the award of further benefits.

The court also found that substantial evidence supported the continuing award of medical benefits to claimant for her back injury.

The upshot of he decision is that even if claimant believes that the agency's method of receiving the evidence is flawed and unsupported by specific rules, attempting to urge claimant's method of submitting evidence in light of a contrary method urged by the deputy is fraught with peril.  

Friday, February 13, 2015

Court of Appeals Affirms Dismissal of Retaliatory Discharge Claim

In Pharaoh-Carlson v. Hy-Vee, Inc., No. 13-1446 (Iowa App. Feb. 11, 2015), plaintiff alleged that the jury instruction provided by the district court misstated the law regarding the workers' compensation public policy exception to the at-will employment doctrine.  Plaintiff argued that he was discharged for filing a workers' compensation claim while defendant argued that the discharge was due to a no-call, no show on the part of plaintiff.

The court first noted that plaintiff had waived its objection to the jury instruction because the objection to the instruction, although made by plaintiff, was insufficiently specific.  Despite this finding, the court went on to address the merits of the decision.  The instruction to the jury, among other things, indicated that employment at will employees could be discharged for any reason, that it is against public policy to discharge workers for pursuing their right under the workers' compensation act, and indicated it was not against public policy to dismiss for reasons such as absenteeism or job performance.  Claimant argued that this instruction placed no restrictions on the type of absenteeism or job performance that justified firing, and indicated that the instruction required that claimant prove his claims and disprove defendant's affirmative defenses.

The court concluded that the instruction was a proper statement with respect to absenteeism.  The court also found that the record supported the finding that the discharge was premised on three no-call, no shows and poor work performance rather than pursuing workers' compensation.  The court concluded plaintiff was not prejudiced by the instruction, and affirmed the district court.

Friday, February 6, 2015

Governor Appoints Joe Cortese as Workers' Compensation Commissioner

Since August of 2014, when Chris Godfrey resigned as workers' compensation commissioner to become Chief Judge of the Employment Compensation Appeal Board, practitioners have waited for the Governor to appoint a new commissioner.  Deputy Miki McGovern was named acting commissioner in September of 2014 and has been acting in that capacity since that time.  On February 2, 2015, the governor named Joe Cortese as the new workers' compensation commissioner, effective February 16, 2015.

Joe is a partner at Huber, Book, Cortese and Lanz, where has practiced since his admission to the bar in 1981.  Joe practices primarily as a defense attorney in the workers' compensation area.  The workers' compensation commissioner is appointed to a six year term and under the provisions of the law the position is not considered to be a political appointment.   His nomination is subject to confirmation by the Iowa Senate.