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.

Monday, December 28, 2015

Court of Appeals Affirms Permanent Total Disability Award

Claimant in Sterling Commercial Roofing, Inc. v. Berzle, No. 15-0351 (Iowa App. Dec. 23, 2015), sustained a shoulder injury at work.  On substantial evidence grounds, the Court of Appeals concluded that the commissioner's decision finding a permanent disability that arose out of claimant's work activities was supported by substantial evidence, as the commissioner had considered the competing evidence on this issue.

The employer also argued that the determination claimant was permanently and totally disabled was illogical, irrational and wholly unjustifiable.  The Court noted that claimant was a 56 year old roofer with restrictions of lifting no more than 2 pounds, with difficulties in school and no skills other than in roofing.  This was not an irrational finding by the commissioner, according to the court, and the decision was affirmed.

Court of Appeals Affirms Grant of Summary Judgment in Favor of Defendants on Wrongful Discharge Claim

Plaintiff in Wusk v Evangelical Retirement Homes, No. 15-0166 (Iowa App. Dec. 23, 2015) asserted that she was wrongfully terminated from employment as a result of pursuing a workers' compensation claim.  The district court ruled in the employer's favor on summary judgment and the Court of Appeals affirmed.

Plaintiff suffered a work related injury to her arm and pursued a workers' compensation claim.  On November 5, 2012, claimant was released from all restrictions and was cleared for regular duty work. Claimant called and left a message for her supervisor about this, and her supervisor called back within a day and left a message for claimant.  After this, claimant did not speak to anyone with the employer.  Her workers' compensation claim was settled on July 9, 2013.

 Claimant was terminated in August of 2013, because she had not scheduled any hours and had not followed the terms of the pool agreement.  Claimant indicated she contacted the nursing home after this to find out why her employment was terminated, but was unable to obtain any information.  Claimant filed a claim in district court for retaliatory discharge.

Defendants moved for summary judgment and the district court concluded that plaintiff had failed to establish a causal connection between the filing of her workers' compensation action and later termination.  The Court of Appeals noted that to establish a prima facie case of retaliatory discharge, plaintiff must show 1) engagement in a protected activity; 2) adverse employment action and 3) a casual connection between the two.  For the purposes of this case, only #3 was in issue.

The court noted that the causal connection standard in a wrongful discharge claim was high.  Plaintiff must demonstrate that the filing of the workers' compensation claim "was the determining factor in the adverse employment action."  Because plaintiff had not made any attempt to contact the employer in the six months after November 5, 2012, the court concluded that claimant had failed to establish causation.  The court also concluded that it was "inadmissible hearsay" that it was "common knowledge" that the filing of a workers' compensation claim would lead to discharge.  The retaliatory discharge claim failed as a matter of law.

Court of Appeals Holds That Commissioner Erred In Denying Penalty Benefits; Remands for Determination of Healing Period

In Pettengill v. American Blue Ribbon Holdings, LLC, No. 14-1511 (Iowa App. Dec. 23, 2015), the court dealt with a situation where the commissioner had concluded that penalty benefits were not owed despite the fact that the employer had not contemporaneously conveyed the reasons for the denial of benefits to claimant.  The district court reversed and remanded and the Court of Appeals affirmed the decision of the district court.

Claimant suffered a back injury, the extent of which was in serious dispute.  Dr. Runde provided initial treatment for the back pain, including physical therapy.  He also provided permanent restrictions for claimant. An MRI demonstrated a disk extrusion at L5-S1.  Dr. Broghammer indicated this was not due to the work injury, Dr. Neiman disagreed and though surgery was necessary.  Dr. Abernathey did not believe surgery was necessary and thought that the injury should have resolved within six weeks.

The commissioner concluded that from February of 2011 until late fall of 2011, defendants did not engage in any investigation of claimant's ongoing back back. Defendants only paid healing period benefits through March 19, 2011 and did not notify claimant of the reasons for terminating benefits. The commissioner concluded, however, that because claimant was ultimately (in April of 2012) found to have reached MMI on January 15, 2011, there had been no delay in benefits, and thus penalty was not appropriate.

The court found that section 86.13 creates a two-part test for the determination of penalty benefits.  First, the employee must demonstrate a denial, delay or termination of benefits.  Second the employer must demonstrate reasonable or probable cause or excuse for the denial of benefits.  The court concluded that claimant had demonstrated a delay, but that since the employer had not conduct a reasonable investigation, and had not contemporaneously conveyed the reasons for the denial, under section 86.13(c), penalty was due. The court noted that section 86.13 created a mandatory timeline for determining whether the employer had a reasonable or probably excuse for the denial of payment of benefits.  The court stated:  "An employer cannot unilaterally decide to terminate an employee's benefits without adhering to Iowa Code section 86.13, to allow otherwise would contradict the language of that section."  The court also found that healing period benefits had been terminated without appropriate notice under section 86.13, and remanded for determination based on the medical information available at the time the benefits were delayed or terminated.

Pettengill represents one of the first appellate decisions on the scope of the penalty language in section 86.13 of the Iowa Code.  Because of the importance of this issue, it would not be surprising if further review of the decision was sought by the employer.

Friday, December 18, 2015

Supreme Court Holds that Discovery Rule Applies to Traumatic Injuries

In Baker v. Bridgestone/Firestone, No. 14-2062 (Iowa Dec. 18, 2015), the Court confirmed that the discovery rule applied to traumatic injury cases as well as cumulative injury cases.  The commissioner had ruled, in a series of cases beginning with Clark v. City of Spencer, No. 5017329 (App. Sept. 11, 2007), that the discovery rule did not apply to cases involving traumatic injuries.  On judicial review, the district court reversed the decision of the agency and the Supreme Court affirmed the decision of the district court.

The Court first discussed the purpose and character of the Iowa's workers' compensation system, noting that the costs of a work injury should be borne by the industry itself and not dependent on individual fault or negligence.  The "grand bargain" providing immunity to employers from potentially large tort lawsuits in exchange for a claimant not have to demonstrate negligence was discussed at length, as was the assurance of prompt payments in the workers' compensation system. The court concluded that:

     The unique relationship between employers and their injured employees under the grand bargain        of workers' compensation also animates a rule of statutory interpretation deeply embedded                  throughout our caselaw.  We liberally construe workers' compensation statutes in claimants' favor      to effectuate the statute's humanitarian and beneficent purpose.

With this guidance the court noted that originally the discovery rule did not apply to workers' compensation cases.  In 1980, however the court considered the issue following an amendment to the the statute of limitations provisions of the statute and concluded, in Orr v. Lewis Central School District, 298 N.W.2d 256, 261 (Iowa 1980) that the discovery rule was applicable in workers' compensation cases.  Since 1980, the court noted that it had applied that rule in a number of cases involving cumulative injuries, including Herrera v. IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001).

The court noted that Mr. Baker's case, which involved a traumatic injury to his back when he stepped on a lanyard, straightened up and felt pain in his back, was a traumatic injury.  The court noted that it had applied the discovery rule in "single event cases" such as Dillinger v. City of Sioux City.  The court noted that in Larson Mfg. v. Thorson, it had reaffirmed that the three elements of the discovery rule were the nature, seriousness of probably compensable character of the injury.  The court distinguished the decision in Swartenzdruber v. Schimmel, 613 N.W.2d 646 (Iowa 2000), which defendant had claimed barred application of the discovery rule to traumatic injuries.  The court noted that it had applied the discovery rule in Swartzendruber, based on the date claimant was diagnosed with a loose prosthetic hip and sent to the specialist.  The court noted that the determination of what constitutes the seriousness of the injury was a "fact specific inquiry."

In the context of Mr. Baker's case, where he had a specific injury, but had not been taken off work, had not been given specific restriction, had not had a definitive diagnosis and had not been sent for any testing, summary resolution of the limitations issue was not possible.  the agency, according to the court, "must apply the discovery rule when it is properly raised and substantial evidence supports it."  The statute is tolled until the claimant has knowledge of the nature, seriousness and probable compensable character of the injury. The court then went on to discuss cases in other jurisdictions where the discovery rule was applied to traumatic injuries.  The case was remanded for application of the discovery rule to claimant's situation.

The Baker case is significant in that it expressly holds that until a reasonable claimant appreciates the nature, seriousness and probable compensable character of his injury, whether it be traumatic or cumulative, the statute of limitations is tolled.  This could have consequences for workers who sustain a traumatic injury which does not initially affect their work, but which is later realized as serious.

Baker was handled by Martin Ozga of Neifert, Byrne & Ozga.

Friday, December 11, 2015

Pro Publica Publishes Article on the Impact of Tyson Foods on Workers' Compensation in Iowa

Pro Publica, which has been investigating workers' compensation systems throughout the country, has today issued a report on the impact of Tyson Foods on workers' compensation throughout the country and specifically in Iowa.  https://www.propublica.org/article/tyson-foods-secret-recipe-for-carving-up-workers-comp.  The article discusses the impact of the food giant on changing workers' compensation systems throughout the country and specifically addresses Tyson's role in seeking to have former Commissioner Chris Godfrey terminated by the Governor.

The article details the efforts of the Association of Business and Industry and Tyson to have Commissioner Godfrey fired, including the preparation of a lengthy list of cases that allegedly demonstrated the bias of the commissioner toward claimants.  Ultimately, because the Governor could not fire the Commissioner under Iowa law, he reduced his salary by over $30,000.

Pro Publica's piece demonstrates how corporate interests which have the ear of the governor can attempt to pervert the purposes of the workers' compensation system, which is supposed to provide for medical care, temporary benefits and permanency benefits to those who are injured at work.  The article is worth reading, both for the implications in Iowa and across the country.