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, April 22, 2015

Court of Appeals Affirms 40% PPD Award

In Polaris Industries, Inc. v. Sharar, No. 14-1648 (Iowa App. April 22, 2015), the court finds that substantial evidence supports the determination of the agency that claimant suffered a 40% industrial loss.

Claimant suffered an injury to his right shoulder, requiring two surgeries.  As a result, claimant's job with the employer changed, although he was able to perform his tasks largely unassisted.  Claimant's IME physician provided restrictions of 35 pounds lifting and a vocational specialist noted a reduction of employability of 61%, and a reduction of labor market access of 70%, with a loss of earning capacity of 65%.  The arbitration decision, as affirmed by the commissioner, resulted in a finding of a 40% loss of earning capacity.

The court finds that substantial evidence supported the 40% industrial finding, noting claimant was prevented from engaging in heavy physical labor, had difficulties adapting to retraining and learning new skills.  The employer cited to two cases to argue that claimant was not entitled to 40% industrial disability "as a matter of law."  Wright v. MidAmerican Energy Co., No. 01-0312 (Iowa App. May 15, 2002) and Mayhew v. Tri County, Inc., No 5035006 (App. Oct. 4, 2011).  The court noted that this was not an issue of law, but of fact.  The court disagreed with defendants' contentions that the agency's award was inconsistent with its prior practice and precedent.  "What Polaris describes as inconsistencies between Sharar's case and his cited cases are simply different findings of fact based upon the circumstances unique to each case."  The court found that the facts in Wright and Mayhew did not undermine the agency's determination.  The court found that substantial evidence supported the decision of the commissioner.

Court of Appeals Affirms PTD Decision, Finds Pre-Employment Retirement Plans Not Preclusive of PTD

In Archer Daniels Midland v. Warren, No. 14-0956 (Iowa App. April 22, 2015), the court affirmed an agency decision finding permanent total disability.  The court rejected defendants' claim that claimant's plan to retire, which were made before the injury occurred, precluded an award of permanent total disability.

Claimant had a severe, preexisting injury to his right hip.  Despite this, claimant was able to work steadily from 1969, when the injury occurred, through 2001, when he began to work for ADM.  His health at that time was said to be excellent and he was under no restrictions.  Claimant began to suffer pain in his hip and went to his doctor  in January of 2009.  He was treated symptomatically for over a year and the possibility of a total hip arthroplasty was discussed in September of 2010.  The total hip replacement was conducted on February 22, 2011.  Claimant returned to work but was told that his restrictions could not be accommodated.

The deputy concluded that claimant's right hip osteoarthritis and need for hip replacement were not due to claimant's work, citing the opinions of Dr .Boulden and rejecting the opinions of Dr. Miller.  The commissioner reversed on appeal, finding that claimant's duties at work were such that there had been an aggravation of his underlying health condition, based on the records of the doctors who had opined on the issue.  The commissioner found permanent total disability.  The district court affirmed the decision of the commissioner.  The court also rejected defendants' claim that claimant's planned retirement precluded permanent total disability.

The court noted the deference provided the commissioner on factual matters, citing Pease and Mike Brooks.  Defendants argued that because the commissioner had not discussed Dr. Munjal's contradictory opinions, the case must be remanded to the commissioner to reweigh the evidence.  The court rejected this argument, finding that it was clear from the commissioner's decision that the opinions of all three experts had been considered.  The Court of Appeals rejected defendants' argument that under McDowell v. Town of Clarksville, 241 N.W.2d 904  (Iowa 1976), the district court had excluded consideration of Dr. Munjal's opinions.  The appellate court notes that the district court looked at the record without Dr. Munjal's opinions to determine whether there was substantial evidence of causation nonetheless.  The court found that there was.

The court noted that if a condition is aggravated, accelerated, worsened or lighted up by  the injury, claimant may recover and noted further that the standard of "material" aggravation or acceleration was the correct standard.   The court found that substantial evidence supported the finding of permanent total disability.

On the question of the extent of disability,  the court addressed defendants' contention that claimant had agreed when he visited his personal physician in October of 2010 that he planned to retire in March of 2011.  The court, citing Second Injury Fund v. Nelson, 544 N.W.2d 258, 265-67 (Iowa 1995), rejected the reasoning that a person nearing the end of his normal work life should have his earning capacity reduced.  The court also noted the ADM's characterization of the retirement as "voluntary" was "not without question."  The court concluded that the determination that claimant was not permanently and totally disabled was not irrational, illogical or wholly unjustifiable.

Court of Appeals Affirms Denial of Alternate Medical Care

This case represents the fourth time the appellate court has ruled in Millenkamp v. Millenkamp Cattle Co., No. 14-0732 (Iowa App. April 22, 2015).  In this iteration of the case, the court addresses an issue of alternate medical care, where claimant urges authorization of Dr. Neiman, the neurologist of his choice.  The court describes this proceeding as "virtually identical" to a 2013 ruling by the court denying alternate medical care.

Claimant challenged the employer's refusal to authorize care with Dr. Neiman and the employer's authorization of Dr. Cullen.  The agency noted that claimant had failed to notify the employer of his original neurologist's retirement, his decision to begin treating with Dr. Neiman and his refusal to treat with Dr. Cullen. The agency concluded that claimant sought care with Dr. Neiman not because Dr. Neiman could provide better care, but simply because he wanted to choose his own doctor.

The court found the agency's findings were supported by substantial evidence.  The agency also noted, and the court affirmed, that under Bell Bros. v. Gwinn, the care offered by the employer must be considered vis a vis the care obtained by claimant. In Mr. Millenkamp's case, he refused to see defendants' authorized physician, so it was impossible to determine the issue of beneficial care.  The court also affirmed the denial of the commissioner to reopen the record to admit post-hearing evidence.

Joe Cortese Confirmed as New Workers' Compensation Commissioner

On April 14, 2015, the Iowa Senate voted 42-8 to confirm Joe Cortese as the Iowa Workers' Compensation Commissioner.  Joe takes over the position from Chris Godfrey, who left the position in August of 2014 to take a position as Chief Judge with the Employees Compensation Appeal Board. We look forward to working with Joe as commissioner, as he faces the challenging task of running a historically underfunded agency that is attempting to handle workers' compensation cases throughout the state with  minimal resources.

Our thanks to Miki McGovern for her service as Acting Commissioner prior to Joe's appointment and confirmation.

Wednesday, April 8, 2015

Court of Appeals Affirms Award of Benefits Based on Exposure to Dust or Mold at Work

The court in United Heartland and Camanche Community School District v. Brown, No. 14-1070 (Iowa App. April 8, 2015) concluded that claimant's allegations that she suffered a respiratory injury due to exposures to dust and mold in the classroom were supported by substantial evidence. The court affirmed the commissioner's decision that claimant had suffered a compensable injury.

Claimant was a teacher who taught in a windowless room with little ventilation.  In 2000, she developed severe bronchitis and missed school due to lung ailments.  Because of this, she was assigned to a different classroom.  She stayed in that classroom for nine years, until her employment ended.  Claimant described that room and other rooms in the school as filthy and she battled repeated bronchial infections, asthma and sinus infections.  These maladies would remit over the summer when she was away from school.

Testing showed fungal growth and a hygienist suggested the school conduct a remedial cleaning strategy.  Claimant had a positive methacholine challenge test, but tested negative for five common molds.  In May of 2010, claimant had a reactive airway breathing attack at school.  Dr. Wong placed her on steroids.  She left school at that time.

Dr. Bruyntjens diagnosed claimant with occupational environmental lung disease.  While her claim was pending, she saw Dr. Witmer, who found no abnormal lung function and no obstruction.  Dr. Kline at UIHC opined that claimant had asthma which was substantially aggravated by the exposures at work.  Dr. Fuortes, also at UIHC, found that the school was not grossly contaminated but acknowledged there was contamination, including mold in the ventilation systems.

Following hearing, the deputy concluded that claimant had suffered an injury which arose out of and in the course of employment.  The commissioner's designee affirmed the finding on judicial review.  The Court of Appeals decision does not make clear whether permanency had been reached by the time of the hearing or whether there was any permanency award.

The employer argued that claimant had not suffered an injury and if she had, it did not arise out of her employment.  The court affirmed the decision of the agency on the first point, finding that the opinions of Dr. Brown and Dr. Bruyntjens were supported by substantial evidence.  The court also rejected the argument that Dr. Kline's opinion was tainted by subjective information he received from Dr. Brown.  On the arising out of argument, the employer argued (apparently with a straight face) that because claimant could not show that her exposures to mold at work were greater than anywhere else, she could not recover.  Claimant's retort was that employees are taken as the employer finds them.  The court agreed that substantial evidence also supported the finding that the condition arose out of employment.  The court noted that evidence had been presented from other teachers indicating problems similar to those of claimant.  The agency's factual findings were supported by substantial evidence and the application of law to the facts was not irrational, illogical or wholly unjustifiable.

Brown represents yet another case where substantial evidence prevails.  Unless there is evidence that the agency completely ignored evidence, recent decisions of the appellate courts continue to reject the argument that the agency's findings were illogical, irrational and wholly unjustifiable and instead conclude that those decisions are supported by substantial evidence.

Monday, April 6, 2015

Supreme Court Concludes Apportionment Does Not Apply to Successive Injuries with Different Employers

In Roberts Dairy v. Billick, No. 13-1009 (Iowa April 3, 2015), the Supreme Court for the first time addressed the meaning of the apportionment provisions of section 85.34(7) of the Iowa Code and concluded that in a situation where an employee has an injury with one employer, and later has an injury with a different employer, apportionment does not apply.

Claimant had a back injury in 1985 which resulted in the assessment of an 85% industrial disability in an agreement for settlement.  Claimant was able to get back to work and had another injury in 1993, resulting in injuries to his head, neck, left shoulder, ribs, back and left arm.  This was settled on an agreement for settlement under Missouri law for 18.5%.  Claimant began working for Roberts Dairy in 2001.  He suffered an ankle injury in 2004; injuries to his head, neck and left shoulder in 2004; a thoracic compression fracture in 2006; and a chest/shoulder injury which also caused emotional trauma in 2007.  All of these injuries were included in four petitions filed against Roberts and consolidated for hearing.

The commissioner rejected the employer's contention that liability should be apportioned because of the earlier payments for his injuries.  At the district court level, the claim was reversed. The district court concluded that section 85.34(7)(a) of the Code did not allow for earlier disabilities to be considered in determining the current degree of disability.

As an initial matter, the Supreme Court concluded that the commissioner was not vested with discretion to interpret the apportionment statute, and thus no deference was due the commissioner's conclusions regarding the meaning of the statute.  The court undertook a historical analysis of the precedents regarding the fresh start and full responsibility rules.  The court noted that the fresh start rule provides that when an employee begins employment with a new employer, the employee enjoys a renewed earning capacity.  Any resulting "loss of earning capacity is measured as a diminution of the new, complete earning capacity that existed at the time the employment with the new employer commenced."

The full responsibility rule was said to be a corollary to the fresh start rule, which is based on the premise of fresh start with a change of employment.  The court also noted that in Venegas v. IBP, Inc., 638 N.W.2d 699 (Iowa 2002), the court had held that the full responsibility rule applied in a situation where an employee had an earlier injury, and later had an injury with a different employee.  In this situation, the fresh start rule applied, and the second employer was fully responsible for the industrial disability of the claimant.

The court noted that in making changes to the workers' compensation law in 2004, the legislature had modified section 85.34(2)(u) of the Code to provide that earning capacity was based on the relationship between the employee's injury and "the earning capacity that the employee possessed when the injury occurred."  The court also noted that the passage of a new section 85.34(7), which created an apportionment scheme for the situation where a claimant had multiple injuries with the same employer.  The court also noted that legislature set forth specific legislative intent language which clarified that the fresh start and full responsibility rules had been modified.  The court noted that this language "emphasized in clear terms that the general assembly intended no change of existing law 'that is not expressly provided' in the enactment."

The Supreme Court stated that the district court had concluded that the commissioner's decision had erroneously exposed the employer to liability for disability incurred as a result of Billick's accidents in 1985 and 1993.  The district court had cited to section 85.34(7)(a) for this proposition (that section indicates that "an employer is not liable for compensating an employee's preexisting disability that arose out of an din the course of employment with a different employer.").  The district court concluded that this section of the law unambiguously abrogated the full responsibility rule.

The Supreme Court noted first that the legislature is deemed to be familiar with the holdings of the court regarding legislative enactments, and thus was familiar with court precedent on fresh start and full responsibility.  At the time of the 2004 enactments, the fresh start and full responsibility rules precluded apportionment in situations where there were successive injuries with different employers. The court concluded that the commissioner's reading of the law was correct.  The court indicates that 85.34(7)(a) does not expressly indicate that apportionment applies and moreover "provides no mechanism for apportioning the loss between the present and previous employers."  The court noted that this was in direct contrast to section 85.34(7)(b), which provides exactly how apportionment is to work in the case of successive injuries with the same employer.  The court gives "considerable weight" to the general assembly's statement of purpose, which included the provision of a fresh start rule with each change of employment.  With each fresh start, the employee's earning capacity is reset.  The court discussed in great detail the fact that an employee's earning capacity is not static and is continually refreshed by market forces.

The court indicated that under the modified fresh start rule, the new employer is not liable for disability arising out of past employment with a different employer, but is measured by comparing the claimant's earning capacity"when the injury occurred" with "the reduction in earning capacity caused by the disability."  Citing 85.34(2)(u).  The court stated that the "earning capacity when the injury occurred is a refreshed capacity provided by the fresh start rule."  The court also rejected the district court's conclusion that an employee was able to achieve a double recovery in such a situation.  The court noted that the employee is only recovering for the injuries sustained with the new employer, at the time the new employment began.  According to the court, this is a "full recovery" and not a double recovery.  The court also noted that under the district court's formulation, an employee could never actually gain a fresh start.  The legislature according to the court, only modified the fresh start rule, they did not eliminate that rule.

The court concluded by reinstating the decision of the commissioner and remanding for affirmance of that decision.

Roberts Dairy is a case of major importance to the workers' compensation system and confirms that the fresh start and full responsibility rules are still alive.  Under Roberts Dairy, it will only be the unusual case in which apportionment is applied when there is a successive injury with a different employer.  In most cases, the fresh start rule will allow the employee to recover disability benefits based on their earning capacity at the time the injury occurs, consistent with the statute.