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, July 22, 2015

Court of Appeals Affirms 45% Industrial Disability Award

In Perry Lutheran Home v. Coleman, No. 14-1347 (Iowa App. July 22, 2015), the Court of Appeals once again affirmed the factual findings of the commissioner on causation and extent of impairment. The agency had concluded that claimant had a permanent back impairment as a result of an injury that occurred while claimant was working as a certified nursing assistant.  The employer had argued that the impairment was a temporary exacerbation of a preexisting condition that had returned to baseline.

Claimant had suffered a prior back injury and had surgery for that injury, but subsequently passed a physical for work at one nursing home before switching to a similar position at the Perry Lutheran Home.  Claimant continued to suffer from back pain while working for the employer, but suffered a specific incident on May 18, 2011, when she caught a resident who was starting to fall.

Dr. Mooney initially placed claimant on 20 pound restrictions and claimant was provided injections for her condition.  Dr. Boarini indicated she was not surgical.  Dr. Bansal performed an IME and provided a 13% impairment rating.  Dr. Wampler performed a DME and concluded there was no permanent impairment.  Following hearing, the deputy specifically credited Dr. Bansal's opinion and gave no weight to Dr. Wampler because he had not interviewed or examined claimant.  The deputy concluded that there had been a 45% industrial loss.

The Court of Appeals, citing House and Pease noted that factual determinations were within the peculiar province of the commissioner and were given great deference.  The court noted that the deputy had explained the rationale for the decision and that decision was supported by substantial evidence.  The court found further discussion unnecessary, city Iowa Ct. R. 21.26.

Thursday, July 9, 2015

Court of Appeals Affirms Causation Decision, Remands Costs Issue in Light of DART v. Young

In Reinsbach v. Great Lakes Cooperative, No. 14-0467 (Iowa July 9, 2015), the Court of Appeals affirmed the decision of the commissioner that claimant's condition had deteriorated since his agreement for settlement and that claimant was entitled to healing period benefits and medical benefits as a result.  The court also remanded the costs issue to the agency in light of the recent Supreme Court decision in DART v. Young.

On the review-reopening issue, the court found substantial evidence supported the agency's decision and affirmed, noting the thorough and well reasoned decision of the district court.  The decision was affirmed pursuant to Iowa Court Rule 21.126.

On the costs issue, the district court upheld the agency's decision to assess Dr. Kuhnlein's IME costs as a hearing cost under 876 IAC 4.33(6).  The court noted that under DART v. Young, only costs associated with the preparation of the IME report could be taxed as costs.  "The underlying medical expenses associated with the examination of the worker cannot be included in the costs that are taxed to the employer under rule 876-4.33(6)."  Since section 85.39 was not involved in the case, the case was remanded to determine what portion of Dr. Kuhnlein's $5470 bill was related solely to the preparation of the written report by the doctor.

Court of Appeals Reverses District Court Decision, Affirms 50% Industrial Disability Award

In First Fleet Corp. v. Hannam, No. 14-1254 (Iowa App. July 9, 2015), the court affirmed the decision of the agency finding that claimant's shoulder injury and nervous system injury had resulted in a 50% industrial disability for claimant.  Claimant had suffered admitted injuries to his legs as a result of a hit and run accident while he was driving truck, and an IME (Dr. Creighton) demonstrated that there was a 3% rating as a result of a gait derangement, a 19% impairment from loss of motion in the right hip, 3% for trochanteric bursitis and 3% for a shoulder injury associated with the accident.  Restrictions of minimal walking and not lifting more than 30 pounds and not lifting anything overhead were imposed.  A DME by Dr. Neff indicated there was a 1% impairment as a result of skin change over the sensory distribution to the right lateral femoral cutaneous nerve.  No work restrictions were imposed.  Dr. Conte, who had treated claimant, found a 0% functional impairment.

The arbitration and appeal decisions found that claimant had work related injuries to his nervous system, hip and shoulder and a 50% industrial disability.  The district court affirmed the ruling with respect to the hip injury, but found that the shoulder and nervous system injuries were not supported by the record.  The district court also found that the commissioner did not provide enough analysis when awarding the 50% industrial disability and remanded the case for further proceedings.

The court noted that medical causation was a question of fact vested in the discretion of the workers' compensation commissioner.  The court found the agency had implicitly found that Dr. Creighton's IME was the most credible.  The court found that the district court erred in making its own determination of the weight to be given the various pieces of evidence and that the district court was not to reweigh the evidence.  The Court of Appeals also found that the nervous system injury extended beyond the leg and again found the district court had erred in making factual findings.  Finally, the court found that the 50% industrial disability award was supported by the record, noting that claimant had suffered an actual income loss of approximately 50% since the injury.  The decision of the agency was affirmed on substantial evidence grounds.