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

Thursday, September 10, 2015

Court of Appeals Decides Rate Issue, Healing Period Controversy

Key City Transport, Inc. v. Delire, No. 14-1755 (Iowa App. Sept. 10, 2015), involved a truck driver who was injured a few weeks after the start of his employment.  Claimant indicated that he was told when he was hired that some drivers on the route on which claimant worked earned between $70,000 and $75,000 per year.  Claimant worked three weeks, earning mileage and drop fees (mileage amounts were $257, $1254 and $1425 and drop fees were $155, $40 and $240).  Claimant was injured when he was unloading large windows.  Claimant attempted to catch a falling window and fell on his back and felt a sharp pain in his right armpit and shoulder.  Ultimately, surgery was performed for a labral tear.

Following the first surgery, claimant continued to have difficulties and a second shoulder surgery was performed, along with right carpal and cubital tunnel releases.  The treating doctor, Dr. Mendel, continued to be concerned about claimant's symptoms and wished to perform an EMG, but the case manager "confronted Dr. Mendel and stated the appointment was for MMI."  The doctor apparently acquiesced, found MMI and released claimant to work without restrictions.

Claimant attempted to go back to work, but began to experience problems with his left shoulder from overcompensation.  Claimant was told to take a 10 hour trip to Michigan and became upset and emotional.  He was told to come back only when he had a note from a mental health professional opining he was able to drive.  He never performed any work for the employer after this.

Claimant filed a petition and alternate care petition, seeking care with Dr. Mendel.  He ordered another MRI, which revealed a small full thickness rotator cuff tear, coverage of which was denied.  Dr. Cullen found claimant's condition had improved but had not normalized.  Dr. Mendel felt there was depression and recommended a psychiatric evaluation.  Dr. Jennisch performed the psychiatric evaluation and concluded there was an adjustment reaction with a combination of depressive and anxious features.  He indicated this was a combination of the work injury and relationship troubles and opined the problem was not permanent.  Further mental health treatment was requested but not authorized.

At hearing, the deputy awarded a running healing period since claimant had not reached MMI.  On appeal, the award of running healing period was affirmed.  On the rate issue, the commissioner concluded that claimant's rate should be based on an annual rate of $70,000, which was a weekly wage of $1346.15.  The district court affirmed on the healing period issue, but reversed on the rate issue, finding that the commissioner's decision was not rational, logical or justifiable.

On the issue of healing period, the appellate court first concluded that substantial evidence supported the conclusion that claimant's injuries arose out of employment.  The court noted that medical causation was generally in the exclusive domain of medical experts and concluded that the commissioner's decision in his regard was supported by substantial evidence ("we do not reweigh the evidence").  The court noted that the agency found that Dr. Mendel was pressured to provide a finding of MMI and noted that this credibility determination was best left to the agency.  The finding of a running healing period was affirmed.

On the rate issue, the court noted that since claimant had been employed less than three weeks at the time of the injury, section 85.36(7) required that claimant's actual earnings be used to compute the weekly wage, or in the alternative the average wages for a similarly situated employee.  There was no evidence of wages of similarly situated employees. Nor was there evidence of a representative week had claimant worked the customary hours for the full pay period.  The commissioner determined the issue based on his experience, which the district court rejected because the commissioner did not provide an analytical process that can be followed on judicial review.  The decision of the Court of Appeals was the same as the district court, finding that the use of hypothetical earnings was not rational, logical or justifiable.  The rate issue was remanded to the agency for recalculation.