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

Friday, August 21, 2015

Court of Appeals Affirms Commissioner's Decision in Discovery Rule Case

In Menard, Inc. v. Simmer, No. 14-2078 (Iowa App. Aug. 19, 2015), the Court of Appeals affirmed a finding that under the discovery rule, claimant had provided timely notice of his injury.

As a part of his work with Menard's, claimant was required to carry goods from the store to customers cars.  These loads weighed up to 300 pounds.  In 2008 and 2009, claimant began to experience pain in his feet and up to his thighs while working.  By April of 2010, pain had spread to claimant's lower back, and claimant's physician referred him to the Minnesota Back Institute.  In May of 2010, claimant learned for the first time that he had scoliosis.  He was provided with an injection and therapy and returned to Menard's without restriction.  By early 2012, claimant's back problems had worsened and the doctor at Minnesota Back Institute indicated that his employment may have led to his worsening back condition.  He also performed surgery on March 7, 2012.

Claimant was released to work with restrictions on June 4, 2012.  He returned to work, but had intense pain.  This was the last day he worked for Menard's.  Claimant's petition was filed on June 27, 2012.  Dr. Mehbod at Minnesota Back Institute found that claimant's condition had been aggravated by his work.  Dr. Mendoza found that wear and tear could occur regardless of the type of occupation. Dr. Miller, claimant's IME, found aggravation and Dr. Boarini found that work was not a specific aggravating factor.  Dr. Mooney also found the injury was not work related.

The deputy found that claimant reasonably would have become aware of the nature, seriousness and probable compensable character of the injury on June 4, 2012.  The deputy found that claimant's cumulative injury had been aggravated by his employment, which entitled him to benefits.  The commissioner affirmed, as did the district court.

Defendants' argued that the question of the date of injury/timely notice question was not a question of fact but a question of application of law to fact.  The court rejected defendants' argument on substantial evidence grounds.  The court noted that the commissioner had notice that his condition was caused by employment on February 9, 2012, but did not know that the injury would have a permanent impact on employment until June 4, 2012, when he was unable to work for more than an hour after being returned to work.  The court concluded that a reasonable person could have believed that he would have made a substantial recovery from his injury and surgery.  The court also concluded that claimant took reasonable steps to learn the nature and seriousness of his injury, and noted that until his surgery, claimant had continued to work.  

The court distinguished Swartzendruber v. Schmimmel, 813 N.W.2d 646, 650 (Iowa 2000) because in that case claimant could hardly walk soon after his injury and he visited the emergency room the day after the injury.  Here, claimant never had an ER visit and was initially told he would not need surgery.  The court concluded that there was substantial evidence to support the agency's determination that claimant discovered the seriousness of his condition on June 4, 2012.  Therefore, he provided timely notice.

On the question of causation, Menard's argued that because the finding of causation was contrary to substantial evidence in the record, it must be reversed.  The court noted that this was a misapprehension of the scope of review.  Under Mike Brooks v. House and other cases, the question is whether there exists in the medical record substantial evidence supporting the agency's findings. There was clearly evidence to support the finding in the opinions of Dr. Mehbod and Dr. Miller.   Therefore, substantial evidence existed.  The decision of the agency was affirmed.

Court of Appeals Affirms 50% Industrial Disability Award for Back Injury

Menard, Inc. v. Fenton, No. 14-1924 (Iowa App. Aug. 19, 2015), is yet another substantial evidence case in which the Court of Appeals affirms the decision of the commissioner.  Claimant sustained a back injury while working at Menard and the deputy found that a 50% industrial disability award was appropriate.  The commissioner affirmed.

On appeal, Menard argued that because the commissioner failed to compare the condition of claimant's low back before the with injury with his condition after having undergone surgery, this was an irrational, illogical and wholly unjustifiable application of law to fact.  The court rejected this argument, finding that the deputy commissioner summarized claimant's medical history and found no evidence there was any permanent impairment prior to claimant's injury at Menard.  The finding was supported by substantial evidence.  The deputy also found that claimant's position had changed and that his new job was not a permanent position at the time of the hearing.  The court, on substantial evidence grounds, affirmed the decision of the agency.

Court of Appeals Reverses Grant on Summary Judgment on Exclusive Remedy Issue Involving Employment Broker and Customer

Thompson v. ATI Products, Inc., No. 14-1765 (Iowa App. Aug. 19, 2015), involved a situation where plaintiff was hired by an employment broker, Aventure Staffing and Professional Services, who placed him at ATI, where he was seriously injured on the first day of work.  Plaintiff filed a workers' compensation claim against Aventure and was provided with benefits.  He also filed suit against ATI for negligence.  ATI moved for summary judgment, claiming it was a "special employer" as a matter of law and arguing that the exclusive remedy provisions of the Iowa Code, section 85.20, barred the negligence action.  The district court found that no issue of material fact existed and granted summary judgment, finding that an implied contract of employment had been created that that Thompson's action was barred.

Plaintiff appealed, arguing that in a "borrowed servant" situation such as this, the primary focus was whether the parties intended that an employment situation be created, and noting that there was an issue of fact on this issue.

The court noted that the question of whether a contract of hire exists is ordinarily a question of fact, after noting that a worker can have more than a single employer.  The court concluded, viewing the facts in the most favorable light to Thompson, that a reasonable juror could find that he was the exclusive employee of Aventure and not a special employee of ATI.  The court noted that the language of the contract between Aventure and ATI supported an inference that plaintiff remained exclusively an employee of Aventure even while working in ATI's facility.  Plaintiff had also signed a document indicating he was an employee of Aventure and not of ATI (or any other place to which he was assigned).

Because plaintiff only worked at ATI a very brief period of time, there was little evidence presented concerning the amount of control over his performance by ATI.  The court noted that Aventure employees generally worked under the control of ATI and were treated no differently than other ATI employees.  ATI argued that the overwhelming majority of jurisdictions had determined that in the broker/temporary employer situation, the temporary employer was protected from tort liability by the exclusive remedy provisions of the codes of various states.

The court ultimately concluded that reasonable minds could differ on the question of whether both Aventure and ATI were employers and because of this, the district court erred in determining the existence of an implied contract and granting summary judgment.  The case was remanded for further proceedings to determine whether or not both entities were employers or not.

Wednesday, August 5, 2015

Court of Appeals Affirms Causation Finding In Short-Form Opinion

Claimant suffered an admitted injury to his left shoulder, but defendants denied claimant's alleged right shoulder injury. The deputy initially agreed with defendants, but on appeal, the commissioner's designee concluded that the right shoulder injury arose out of and in the course of employment.  In Taylor Industries, Inc. v. Lepley, No. 15-0243 (Iowa App. Aug. 5, 2015), the Court of Appeals affirms the decision of the agency.

The court concludes that the district court correctly analyzed the substantial evidence issues involved in the case, and the case is affirmed with a summary decision pursuant to Iowa Court Rule 21.26.

Court of Appeals Affirms 5% Industrial Disability Award

In Lampman v. Crystal, Inc., No. 14-1983 (Iowa App. 2015), claimant challenged a 5% industrial disability award as being too low. On substantial evidence grounds, the Court of Appeals affirmed the commissioner's award.

Claimant injured her back lifting residents at a care center.  Claimant had a history of back problems, but had a specific incident on May 9, 2009.  She was fired by the nursing home two days after the incident.  The back injury was accepted and Dr. Miller ultimately indicated that claimant had an impairment of 1% to 2% of the lumbar back and released her without restrictions. Dr. Miller indicated that he did not believe claimant would get worse "as she is not working."  Dr. Jones performed an IME, provided a 5% impairment rating and imposed restrictions of lifting no more than 30 pounds occasionally and 15 pounds frequently.  He did not believe that claimant could perform her former duties as a CNA.  Claimant also saw Dr. McGuire, who agreed with the 5% rating and prescribed a cane and a walker.

Claimant was also seen by Dr. Ransdell and Dr. Boarini.  Dr. Boarini indicated that the effects of a back strain should have resolved within two to three months.  He noted that claimant was not fit to perform heavy work although he did not believe she had a permanent injury or permanent impairment.  An FCE obtained by claimant placed her in the sedentary work category.  Claimant did not attend an FCE set up by defendants.  Two vocational reports were presented, with Kent Jayne opining that there was no reasonable likelihood claimant was competitively employable and Lana Sellner indicating that there were various jobs claimant could perform.

The deputy awarded a 5% industrial award and this conclusion was adopted by the commissioner.  On judicial review, claimant argued she was permanently totally disabled or had suffered at least a 70% industrial disability.  The district court remanded the case to the commissioner because the agency had failed to consider all of the factors bearing on claimant's employability.  On remand, the commissioner's designee indicated that he did not credit claimant's testimony or the opinions of the doctors who had based their findings on the claimant's statements concerning her impairment.  The 5% award was affirmed.

The district court in the second judicial review action affirmed the decision of the agency.  On appeal, the court noted that it gave deference to the commissioner's credibility determinations.  The court criticized the agency's decision on remand, indicating that the commissioner's designee had "expressed its consideration" of the industrial disability factors "in just two sentences."  The court then noted, however, that there was no weighting that needed to be given to each industrial disability factor, and concluded that since the extent of disability was a fact determination and there were sufficient facts to support the conclusion of the agency, the action would be affirmed.  The court found substantial evidence to support the decision of the agency and also concluded that the decision of the agency was not irrational, illogical or wholly unjustifiable.  The court also concluded that the agency's action was not an abuse of discretion.