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, March 25, 2015

Court of Appeals Affirms Permanent Total Disability Award on Review Reopening

In Tyson Foods v. Gaytan, No. 14-1397 (Iowa App. March 25, 2015), the Court of Appeals summarily affirmed a finding of permanent total disability in a review reopening case.  The court noted that their review of final agency action was severely circumscribed and noted that it was the workers' compensation commissioner who weighed the evidence and measured the credibility of witnesses.  The court found that the district court had considered the issues, applied the correct standard of review principles and affirmed the commissioner's decision pursuant to Iowa Ct. R. 21.26.

Court of Appeals Denies Application of Judicial Estoppel in Alternate Medical Care Proceeding

The Court of Appeals in NID, Inc. v. Monahan, No. 14-0292 (Iowa App. March 25, 2015) grappled with questions of res judicata and judicial estoppel in the context of an alternate medical care proceeding.  The court concluded that res judicata and judicial estoppel did not apply and refused to enter sanctions against the defendants for their failure to provide care.

The court begins by noting that the proceeding was "unnecessarily Dickensian in duration and procedural complexity."  Claimant had suffered an injury to his shoulder in 2007 and received treatment for that injury.  He filed a petition almost two years after the injury and at hearing the parties stipulated that claimant had suffered an injury that arose out of his employment.  The parties disputed whether claimant's medical expenses were connected to the injury.  After the arbitration hearing but before decision, claimant treated, on his own, with Dr. Neff, who recommended surgery for the left shoulder.

Before the arbitration decision was issued, claimant filed for alternate medical care.  Defendants disputed liability, and the AMC petition was dismissed.  The arbitration decision was subsequently issued and found only that a left hand injury was work related.  The decision also ordered that claimant was entitled to alternate medical care in the form of a second opinion for the shoulder injury by an orthopaedist of claimant's choosing.  The decision also found there was no permanent disability.  On appeal the arbitration decision was affirmed in April 2012.

On April 13, 2013, a second application for alternate medical care was filed, requesting that the agency order defendants to send claimant to Dr. Neff and requesting sanctions.  Defendant again indicated they were denying liability and the agency dismissed the alternate medical care petition.  Claimant sought rehearing, claimant that the earlier decisions of the agency were preclusive as to the issue of work relatedness.  The agency granted the request for rehearing and found that defendants were barred by res judicata from contending they were not liable for the shoulder problems.  Attorney's fees and costs were imposed as a sanction.

  On judicial review, the defendants argued that the agency erred in ruling on the merits of the alternate medical care request when causation was an issue, in determining causation, in using the alternate medical care proceeding to enforce the appeal decision and in awarding attorney's fees.  The district court held that the application of res judicata was error because the shoulder injury had been stipulated to, so it was never actually litigated.  The district court also found that the alternate medical care proceeding should have been dismissed because causation was still at issue.  The court remanded to the agency for a hearing on causation.  Post-trial motions by both parties were denied.

On appeal, the Court of Appeals first finds that res judicata did not apply.  By this point in the proceedings, claimant had agreed that res judicata did not apply, but urged the application of judicial estoppel.  The court found there was no basis to apply judicial estoppel, as defendants had never stipulated to causation and liability.  The court noted that claimant was unable to identify where the stipulation could be found in the record.  The only stipulation was that claimant had suffered a work-related injury.  The court concluded that "an employer may properly admit to an injury arising out of and in the course of employment while still contesting liability for all of the consequences and any disability claimed to result from such injury."  Because the employer had not asserted inconsistent opinions, there was no reason for the court to apply judicial estoppel.

The court next addressed the use of the alternate medical care proceeding as an enforcement proceeding.  The court found that the appropriate action for claimant to have taken was to file an action for enforcement under section 86.42 of the Code.  The court also reversed the sanctions that had been awarded by the agency.  Finally, the court concluded that the alternate medical care proceeding should have been dismissed.

In a coda to the decision the court denied the employer's motion to strike certain portions of the appendix not in the record and certain portions of the reply brief referring to material outside of the record.  The court indicated it had not considered those parts of the appendix not in the record.

Friday, March 13, 2015

Court of Appeals Affirms 30% Industrial Disability Award, Finds that Statute of Limitations Did Not Bar Claims

In Heritage Care & Rehabilitation v. True, No. 14-0579 (Iowa App. March 11, 2015), the court affirms a decision of the commissioner holding that claimant's claim was timely filed and awarding 30% in industrial disability benefits.

Claimant injured her right shoulder while taking out the trash in 2010.  She was provided medical treatment for a short period of time, but did not miss any days of work, so no weekly workers' compensation benefits were paid.  Claimant initially filed a petition seeking only medical benefits, which was filed within the limitations period.  Approximately a month before the hearing, and three days before the expiration of the statute of limitations,  claimant sought to amend her petition to include a claim for temporary and permanent benefits. She paid a $100 filing fee at the same time the amendment was filed.  The deputy hearing the case initially denied the motion to amend and ordered claimant to file a separate arbitration petition.

At hearing, the deputy reconsidered the motion to amend, and ruled that the motion to amend was proper, but continued the hearing for approximately three months to consider the allegations of permanency and temporary benefits.  Following hearing, the deputy found claimant had a 30% industrial disability.  The deputy found that the amendment of the petition was sufficient to bring the claim within the statute of limitations, in part because claimant had paid the $100 filing fee along with the amendment.  The commissioner affirmed the decision, finding that because the agency had accepted the filing fee, which was paid prior to the expiration of the statute, the claim was appropriate.

On appeal, the employer argued that claimant needed to file an original notice or petition within the statute of limitations period, citing to section 85.26(3) of the Code, which provides that the filing of the petition "is the only act constituting 'commencement' for purposes of this section." The court of appeals rejected this argument, holding that nothing in section 85.26(3) required a separate original notice for each type of benefits the injured worker requests.  The court concluded that claimant commenced a proceeding within the statute of limitations by filing the original medical only petition.  Since the commissioner concluded that the amendment was permissible, claimant's claims were found to be filed within the statutory limitations period.  The court further noted that under administrative rule 876 IAC 4.9(5), amendments to pleadings are to be freely given when justice requires.  There was no prejudice to the employer because the hearing was continued until a later date.

On the industrial disability issue, claimant's IME physician had found that she had an 11% impairment rating as a result of her shoulder injury, and limitations of lifting of 15 pounds rarely, with no lifting over the shoulder.  Defendants argued that because claimant retained her job, she did not sustain any industrial disability.  Claimant noted that she quit a part time job because of the injury.  The agency concluded that there was a 30% industrial disability, and the court affirmed on substantial evidence grounds.

Court of Appeals Concludes that Subrogation Controlled by South Dakota Law

In Moad v. Libby and Dakota Truck Underwriters, No, 14-0290 (Iowa App. March 11, 2015), a case decided on the same day as the decision in Moad v. Gary Jensen Trucking, the Court of Appeals concludes that a subrogation lien filed by the workers' compensation insurer was effective under South Dakota law.

Claimant was a resident of South Dakota, employed by a South Dakota trucking company. He was paid workers' compensation benefits voluntarily under South Dakota law for an injury that occurred in Iowa.  Following claimant's death, his wife sought benefits under Iowa's workers' compensation laws.  Claimant's wife settled the personal injury claim and the parties agreed that there was a right to subrogation if South Dakota law controlled, and no right to subrogation if Iowa law controlled.  The district court found that Iowa law governed and extinguished the lien.

The case came to the Iowa Supreme Court in Moad v. Dakota Truck Underwriters, 831 N.W.2d 111 (Iowa 2013).  The court ordered the district court to apply Section 185 of the Restatement on Conflict of Laws.  On remand, the court concluded that section 185 of the Restatement was applicable to the case.  That section provides that the local law of the state under whose workers' compensation benefits are paid governs the subrogation question.  The court concluded that since benefits were paid by South Dakota, there was a right to subrogation.

Claimant contended on appeal that an "award" of workers' compensation benefits could only be paid pursuant to an adjudicative determination of benefits, and that a voluntary payment was not sufficient.  The Court of Appeals concludes that claimant's claim is incorrect, and that voluntary payment is all that is necessary to conclude that benefits were paid pursuant to South Dakota law.  Because of this, the subrogation provisions of South Dakota law prevailed and claimant's recovery in the personal injury action was subject to subrogation.  The case was remanded for a decision concerning the amount of the subrogation lien.

Wednesday, March 11, 2015

Court of Appeals Affirms Denial of Death Benefits

In Moad v. Gary Jensen Trucking, No. 14-0164 (Iowa App. March 11, 2015), the Court of Appeals affirmed the agency's decision finding that claimant was not entitled to death benefits.  Claimant died three months following a head on collision that occurred while he was driving for the employer.  Claimant had been hospitalized with serious injuries following the collision.  When he was released he complained of constant pain, swollen legs and poor appetite.  He continued smoking despite doctor's instructions, and continued to be in pain, including pain when he attempted to take a deep breath. He was readmitted to the hospital, but discharged about a week later.  Pain in the chest continued, and he ultimately had to be admitted to the hospital again with cardiac problems.  While being airlifted to another hospital, claimant died, with the death certificate noting a massive pulmonary embolus.

Claimant's treating physician indicated that he had died from either a pulmonary embolism or from a massive heart attack, either of which would have been caused by the injury and its sequella.  The employer's doctor indicated there was no evidence of a pulmonary embolism and that his preexisting heart disease was the cause of death.  Claimant's IME doctor disagreed with both of the other doctors, concluding that the emotional and physical stress associated with the accident, plus his painful convalescence, had caused the rupture of unstable coronary plaque, causing his death.

The deputy concluded that claimant had not met his burden of proving that his death was the sequella of his work related accident and denied benefits.  The commissioner found that the deputy's failure to discuss important evidence was troubling, but ultimately agreed with the result.  The district court, noting its limited standard of review, affirmed on substantial evidence grounds, despite noting that it would have reached a different result had it decided the case ab initio.

The Court of Appeals noted that medical causation presented a question of fact that was vested in the discretion of the workers' compensation commissioner.  The court noted that although some states have a presumption that when death follows soon after an injury, the death is due to the injury, Iowa does not follow such a rule.   The court noted that is review was "extremely limited" and affirmed the decision of the agency.

Moad is an example of the extremely limited scope of review given by the courts on issues of substantial evidence.  As a practical matter, unless there is some legal question presented, or perhaps an application of law to fact, it is unlikely that the courts will reverse a decision of the agency on factual grounds.

Court Affirms 5% Industrial Disability Award, Finds Findings of Fact and Conclusions of Law Sufficient

In Bell v. 3E, No. 14-0044 (Iowa App. March 11, 2015), the court upheld the award of a 5% disability in the face of claimant's argument that the agency had failed to make adequate findings of fact, conclusions of law and credibility determinations under section 17A.16 of the Iowa Code.  The fighting issue in the case was whether the agency appropriately considered (or failed to consider) evidence presented that demonstrated that claimant was unable to work as a firefighter as a result of the injury (a job he had not held in the past).

Claimant suffered a slip and fall at work, resulting in a left wrist sprain, ganglion cyst, lower back strain and a contusion to the left shoulder and elbow.  Claimant had surgery for the cyst and physical therapy for the wrist and shoulder.  An MRI showed no abnormalities of the back.  Claimant was returned to regular duty work.  He was found to have a 5% industrial disability.

Claimant argued at hearing that the agency ignored evidence in the record concerning his pre- and post-injury capacity to be a firefighter.  Although claimant had appeared on the list to be a firefighter in Des Moines and had been a volunteer firefighter in Grimes, he was never offered a firefighter position, and had not applied for any firefighter positions since 1997 (claimant's injury was in 2010). Claimant's position at 3E was largely a sedentary position.  In the decision, the agency indicated that the desire of claimant to be a firefighter was an attempt to exaggerate his claim.  From this, claimant argued that the statute does not require an employee to have pursued a particular position to have the capacity to perform it.

The district court found there was no objective proof that claimant was capable of being a firefighter and therefore the commissioner correctly disregarded this fact when determining the loss of earning capacity.  The court of appeals agreed with this analysis.  Claimant also argued that the agency had not separated its findings of facts from conclusions of law and did not adjudicate credibility.  The appellate court noted that so long as the analytical process used by the agency could be determined, no error had been committed.  Finally, the court concluded that claimant had reached maximum medical improvement, despite the fact that the IME doctor had indicated that MMI would not have been reached unless there was no further treatment.