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

Tuesday, May 26, 2015

Court of Appeals Decides Potentially Destructive Alternate Medical Care Case

A series of commissioners has held that when an authorized treating physician recommends treatment that treatment is deemed to be authorized under 85.27(4) of the Iowa Code.  In Lynch Livestock v. Bursell, No. 14-1133 (Iowa App. May 20, 2015), the Iowa Court of Appeals turns this longstanding agency rule on its head and concludes that in the context of an alternate medical care proceeding, the claimant must demonstrate that the care offered by the employer is unreasonable, notwithstanding that the care sought is recommended by the authorized treating physician.  The decision of the court of appeals could well sound the death knell of a large portion of alternate medical care proceedings by destroying the authorized physician rule.

In Mr. Bursell's case, Dr. Cook, an authorized treating physician, diagnosed claimant with CRPS and referred him to Dr. Kelly, a vascular surgeon.  Dr. Kelly recommended a lumbar sympathectomy.  Defendants subsequently sent claimant to other physicians, who recommended conservative treatment including physical therapy and psychiatric referrals.

At the alternate medical care hearing, the deputy concluded that the care sought by claimant, the lumbar sympathectomy, was reasonable and necessary.  The deputy ordered that defendants pay for the surgery.  On judicial review, the district court reversed the agency, finding that the agency applied the wrong legal test.  The district court found that since the agency had not found the care offered by the employer unreasonable, the agency's ordered was in error.  The court reversed the agency's order.
The Court of Appeals noted that the employer generally has the right to select medical care.  If claimant protests the care offered, an alternate medical care hearing may be filed.  The court, citing R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 195-196 (Iowa 2003), found that claimant has the burden of proving that the care offered by the employer was unreasonable.  Ultimately, because the agency nowhere concluded that the care being offered by the employer was unreasonable, the court found claimant failed to meet his burden of proof.

The court only elliptically addressed the fact that the care sought by claimant was recommended by the employer's own authorized treating physician and thus should have been authorized under section 85.27 of the statute.  The court noted in a footnote that the agency held that the employer was not to interfere with the medical judgment of its own treating physician.  The court, however, indicated that because the decision was a review-reopening decision and not an alternate medical care proceeding, it was not governing.  The court also noted that because this was simply an agency statement, it was not governing law and not binding on the court.

The court ultimately remanded the decision to the agency to make factual findings as to whether the actions of the employer were unreasonable.

Although the court articulated the general rule that claimant has the burden of proving that the care offered by the employer was unreasonable, the court elided the actual issue in the case, which was whether care that is recommended by an authorized treater must be provided. Under the decision of the court, the employer can with impunity ignore the treatment recommendations of its authorized physician and could cast around until they found a doctor who recommended other care more to the employer's liking.  So long as this care was not "unreasonable" according to the court, alternate medical care would not be appropriate.  The decision of the Court of Appeals completely ignores the underpinning of the authorized physician rule, and also completely ignores the fact that the workers' compensation act is to be interpreted liberally to the benefit of workers.

The underlying alternate medical care decision decided only Pote v. Mickow Corp., No. 694639 (Review-Reopening June 17, 1986) in support of the assertion that "reasonable care includes care necessary to diagnose the condition and defendants are not entitled to interfere with the medical judgment of its own treating physician."  This, of course, could be seen as a finding that the care offered by defendants was unreasonable, because it ignored the recommendations of the authorized treating physician.  On its face, however, the decision in Bursell ignores the treating physician rule.

In Berns v. CRST, No. 5034602 (Alt. Med. Care Aug. 27, 2012), the treating physician rule was described as follows, in light of the employer's right to select care:

An employer's right to select the provider of medical treatment to an injured worker does not include the right to determine how an injured worker should be diagnosed, evaluated, treated or other matters of professional medical judgment. Assman v. Blue Star Foods, No. 866389 (Dec. Ruling May 18, 1988).  An employer's failure to follow recommendations of an authorized physician in matters of treatment is commonly a failure to provide reasonable treatment. Boggs v. Cargill, Inc., No. 1050396 (Alt. Med. Care Jan. 31, 1994.… The right to choose the care means the right to choose the provider, not the treatment modalities recommended by the provider. Employer cannot disregard treatment recommendations of authorized treating physician, even if a consulting physician disagrees with those recommendations. Cahill v. S & H Fabricating & Engineering, No. 1138063, (Alt. Med. Care May 30, 1997 [work hardening program]); Hawxby v. Hallett Materials, No. 1112821, (Alt. Med. Care February 20, 1996). Leitzen v. Collis, Inc., No. 1084677, (Alt. Med.  Care September 9, 1996). The right to choose the care does not authorize the employer to interfere with the medical judgment of its own treating physician.  Boggs v. Cargill, Inc., No. 1050396, (Alt. Med. Care January 31, 1994).

Numerous agency cases come to the same conclusion, and is supported by the historical application of the treating physician principle over the past 30 years.  The Court of Appeals cavalierly ignored this principle, finding that since the courts had not enunciated the same principle, it did not govern.  The court made nothing more than a passing reference to this history, in the context of one decision of the agency.  

It is unknown whether the Supreme Court will be asked to take further review of Bursell.  The decision carries the possibility of overturning decades of agency precedent finding that if an authorized physician orders treating, that treatment is itself authorized.

Wednesday, May 6, 2015

Court of Appeals Addresses Cumulative Work Injury/Notice Issue

In Pella Corp. v. Winn, No. 14-0771 (Iowa App. May 6, 2015), the Court of Appeals addressed issues concerning the date of injury in the context of a cumulative injury, and notice issues associated with the date of injury.  Claimant was awarded benefits by the agency, but the district court concluded that the agency had failed to use the correct legal test in determining the date of the cumulative injury.  The district court remanded the case to the agency and found that the employer was entitled to assert an untimely notice defense on appeal.  The Court of Appeals agreed with the district court that the correct legal test was not used, but also finds that the notice defense could not be considered on remand.

Claimant had a left shoulder injury and returned to work after that injury.  She began having problems in the right shoulder and saw a nurse practitioner for the problem on June 1, 2010.  Following an MRI, a rotator cuff tear in the right shoulder was also found.  She was seen by an orthopaedist on August 27, 2010, and he discussed treatment options, including surgery.  She filed two petitions, one with an injury date of June 1, 2010, and the other with an injury date of November 16, 2010.

Claimant's hearing was on February 16, 2012, and the deputy found her to be a credible witness.  The deputy found that the date of injury was November 16, 2010, as this was the date the injury was serious enough to have a permanent, adverse impact on her employment.  The deputy awarded an 80% industrial disability.  The commissioner affirmed the decision, noting that even though the injury was known in June of 2010, claimant did not know this would adversely affect her employment until November 16, 2010.  The June petition was dismissed.

The district court adopted the credibility findings of the agency.  The court concluded, however, that the agency had not applied the correct legal test in determining the date of injury and remanded the case for application of the standards in Herrera v. IBP, Inc., 633 N.W.2d 284 (Iowa 2001).  The court also noted that if the agency found that, under the proper legal analysis, the June 1, 2010 case should have been closed, then the untimely notice claim would need to be addressed.

The employer argued before the appellate court that the district court erred by remanding the case for a determination of the injury date rather than dismissing the case.  Claimant argued that the district court erred in allowing the notice defense to be raised.  The court noted that actual notice to Pella did not occur until the petitions were filed on February 4, 2011.  The court finds that the determination that claimant discovered that her condition was serious enough to have a permanent impact on employment November 16, 2010, and that this made notice timely.  The court concluded that this was a factual issue, which was in the province of the agency, and therefore overturned the district court's decision on the notice issue.

With respect to the issue of a cumulative injury, the court noted that Herrera prescribed that the date of injury was to be determined under Tasler (claimant knows of injury or condition, and knows that condition was caused by employment).  Here, the court finds that the agency bypassed this step and went straight to the discovery rule.  The court notes that the employee argues that since specific dates were pled in the petitions, the claimant was bound by those dates for the date of injury.  The court finds that this is not the case, citing from Tasler that "the test is fundamental fairness, not whether the notice meets technical rules of common law pleading."  The court concludes that if the agency's finding that the 11/16/10 injury was supported by substantial evidence, remanding for the determination of the date of injury for manifestation purposes was in  order.

The employer argued that the deputy did not separate her findings of fact from conclusions of law, but the court finds that "it is easy to differentiate the deputy's factual findings and conclusions of law in her decision."  There was no reason to remand the case.  With respect to the factual findings, the court concludes that its review of medical causation was "extremely limited."  The court concludes that the agency's findings were supported by substantial evidence.

The court also concludes that the finding that claimant has reached maximum medical improvement was supported by substantial evidence, as there was no guarantee or evidence of expected significant improvement if surgery was undertaken.

The court ultimately remands on the question of the date of injury manifestation analysis, and affirms the decision of the agency in all other respects.