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

Wednesday, December 21, 2016

Court of Appeals Addresses Rate Dispute Under Section 85.36(7)

In Delire v. Key City Transport, No. 16-0720 (Iowa App. Dec. 21, 2016), the court addressed for the second time a rate issue presented by the parties.  Claimant was a trucker, who was only three weeks into his employment at the time of his injury.  He believed that his yearly earnings were to be $75,000 and his original rate was based on an annual salary of $70,000.  This rate was reversed in the original Court of Appeals decision and the case was remanded for further consideration.

In the second appeal, the question was whether claimant's rate should be determined based on his salary in two of the three weeks he worked (the third week was significantly less than the other two weeks) or whether all three weeks should be taken into account.  The commissioner considered all three weeks.  The court indicated that section 85.36(7) addressed the situation more precisely because it applied "in the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury."  Since no evidence was presented as to the earnings of other employees in a similar occupation, as referenced by section 85.36(7), the rate was properly computed using all weeks.  The court notes that the statute specifically indicates that "if the earnings of other employees cannot be determined, the employee's weekly earnings shall be the average computed for the number of weeks the employer has been in the employ of the employer." The court found that this clause directly addressed the question presented and found that the commissioner's decision was correct.

Claimant argued that 85.36(7) required the rate to be computed under section 85.36(6) because the first week of earnings did "not fairly reflect the employee's customary earnings. . ."  The court concluded that because there was no evidence of similarly situated workers, the last sentence of section 85.36(7) applied.  Since that sentence compels the consideration of all weeks of employment, the rate chosen by the commissioner was appropriate.  The court further found that speculation about the earnings of other workers was not sufficient to change the result and noted that the initial decision had explicitly rejected this approach.

The court also rejected claimant's arguments that the commissioner's approach was irrational, that substantial evidence did not support the decision and that the rate should have been based on the $75,000 rate.  With respect to the last argument, the court concluded it had already addressed that issue and that it was law of the case.

Thursday, November 17, 2016

Court of Appeals Affirms 20% Industrial Disability Award

In Polaris Industries v. Reed, No. 16-0269 (Iowa App. Nov. 9, 2016), claimant was awarded a 10% industrial award following the arbitration decision, an award that was increased to 20% on appeal.   The employer appealed, arguing that the 20% award was "inconsistent with the agency's prior practice and precedent," in violation of section 17A.19(10)(h) of the administrative procedure act. Defendants argued that the agency and courts had previously concluded that an award of industrial disability benefits was improper when a claimant was returned to work with no restrictions.  Citing Mid-American Energy v. Wright, No. 01-0312 (Iowa App. May 15, 2002).

The court notes that the determination of industrial disability is a fact specific inquiry in each case, citing Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 852 (Iowa 2011).  Because the court felt that the facts of this case were distinguishable from Wright, the 20% award was found not to violate section 17A.19(10)(h).  The court also found that substantial evidence supported the factual finding that claimant's hours had changed in the wake of her injury.

Wednesday, November 9, 2016

Court of Appeals Affirms Permanent Total Disability Award

In Bridgestone/Firestone v. Jackman, No. 15-2007 (Iowa App. Nov. 9, 2016), the Iowa Court of Appeals affirmed the award of permanent total disability, finding that substantial evidence supported the decision of the commissioner.  On appeal, only the award was contested, the defendants having conceded that claimant's back and neck injuries arose out of and in the course of employment. The court finds that the factors of industrial disability were explicitly considered in the decision of the deputy, which was affirmed by the commissioner.  The court deferred to the commissioner's finding that claimant's vocational expert was more credible than defendants' expert.  The court also noted that claimant's failure to seek other employment was not, in light of all other factors, enough to defeat the finding of permanent total disability.

Claimant was represented by Martin Ozga of Neifert, Byrne & Ozga.

Wednesday, October 26, 2016

Court of Appeals Affirms Denial of Benefits by Commissioner

Claimant suffered an injury to her shoulder, which the employer denied.  In Saracevic v. Tyson Fresh Meats, Inc., No. 16-0104 (Iowa App. Oct. 26, 2016), the Court of Appeals concluded that it was the agency's job to weigh the evidence.  The agency concluded that the shoulder injury was not related to claimant's work, and the Court of Appeals affirmed on substantial evidence grounds.

Claimant sought treatment with Dr. Delbridge following the denial of liability.  He performed surgery to remove a calcium deposit from claimant's left shoulder.  He later opined that the shoulder condition had been materially aggravated by claimant's work.  Dr. Gorsche and Dr. Neff opined that the calcific deposit was not related to her job duties.

Concluding that the determination of whether to accept or reject an expert's testimony was within the peculiar province of the commissioner, the court affirmed the decision of the agency that claimant's injury had not arisen out of and in the course of employment.

Court of Appeals Concludes that Claimant's Appeal was Timely Filed, Reverses District Court Ruling Remanding Claim to Agency

Stark Construction v. Lauterwasser, No. 15-1786 (Iowa App. 2016) is a claim that had earlier been decided by the Court of Appeals.  In the earlier decision, the appellate court reversed the district court's opinion that claimant was not an employee and remanded the case to the district court for further proceedings.  On remand, the district court remanded the claim to the commissioner for issuance of a decision on a timely notice issue.  Claimant appealed the remand order, arguing that the employer failed to preserve error at the agency level for judicial review.  The employer argued that claimant's appeal was untimely because claimant filed an improper 1.904(2) order to toll the time for filing notice of appeal.

The court first addressed the issue of the timeliness of claimant's appeal.  In this case, the appeal was filed beyond 30 days, but it was filed within 30 days of the district court's ruling on the 1.904(2) motion.  The court finds that a proper motion under rule 1.904(2) tolls the time for filing a notice of appeal.  When the motion is "nothing more than a rehash of the legal issues previously raised," however, the motion does not toll the time for appeal.  In this case, the 1.904(2) motion was proper as it was used to obtain a ruling on a matter that the court may have overlooked (the preservation of error issue).  Because of this, the appeal was timely filed.

The preservation of error issue centered around the affirmative defense of notice.  The court concludes that the employer raised the defense before the commissioner, but that the commissioner did not address the issue on appeal.  The court concludes that because the employer did not file a motion for rehearing, error had not been preserved.  The court noted that a court's consideration is limited to questions considered by the agency.   Because the notice issue was waived, there was no reason to remand this issue to the agency, and the district court's remand order was reversed and the case remanded for an order consistent with the opinion.

Tuesday, September 20, 2016

Court of Appeals Affirms Holding that Injury Was Scheduled Rather than Industrial Injury

In Janssen v. Merry Lanes, No. 15-1511 (Iowa App. Sept. 14, 2016), the Court of Appeals upheld the determination by the commissioner that claimant's injury was to the leg and not the body as a whole.  Claimant suffered an injury to her hamstring while working as a bartender.  The deputy concluded that claimant's injury extended to the body as a whole and awarded permanent total disability benefits.  The commissioner reversed, concluding that claimant's injury was a scheduled member injury to the leg and awarding 72.6 weeks of benefits.

Claimant argued that the essence of prior court decisions was that the nerves and veins were system wide injuries which extended beyond a scheduled member.  In support of this assertion, claimant cited Collins v. IDHS, 529 N.W.2d 627 (Iowa App. 1995) and First Fleet Corp. v. Hannam, No. 14-1254 (Iowa App. July 9, 2015).  The court in Janssen reads Collins as not reaching the question of whether reflex sympathetic dystrophy was an injury compensable by the industrial method. The Collins decision, however, specifically indicates that under Barton v. Nevada Poultry Co., 110 N.W.2d 660 (1961), claimant was entitled to industrial disability because her nervous system was a part of the body not included in the schedule.  Id. at 629.  The Janssen  court went on to indicate that in Hannam, the agency had concluded that the conclusion that a nervous system injury was industrial was supported by substantial evidence.  In Ms. Janssen's case, however, the court held that since the commissioner found that this was not an industrial injury, and substantial evidence supported this conclusion, the decision of the commissioner should be affirmed.  EMG findings cited by the commissioner indicated that the condition was confined to the leg, and these findings were supported by substantial evidence.

Although the result of the case may be correct, the court appears to have misapplied Collins, which stands for the proposition that reflex sympathetic dystrophy/complex regional pain syndrome is an industrial injury.  Since RSD/CRPS was not at issue in Ms. Janssen's case, this may not be a major concern, but is something practitioner's should be cognizant of when handling RSD/CRPS cases.

Monday, September 19, 2016

Court of Appeals Rejects Employer's Review-Reopening Challenge

Defendants in O'Reilly Auto Parts v. Kuder, No. 15-0890 (Iowa App. Sept. 14, 2016), filed an appeal of the commissioner's decision refusing to reopen a permanent total disability award.  Defendants claimed that the commissioner committed legal error when considering whether Kuder's economic circumstances had changed, applied an improper burden of proof and reached his decision without support of substantial evidence.

Defendants had filed the review reopening action within one month of the appeal decision finding permanent total disability.  Claimant was working part time at the time of the decision granting PTD benefits, but later lost that job when he moved to a smaller community.  Defendants' vocational expert opined that claimant, who had a shoulder injury, had an industrial loss, but that there were many jobs for which claimant was qualified, even with restrictions.  The deputy found that claimant was just as disabled as he was at the time of the original arbitration hearing.  The commissioner affirmed, finding that there was no significant physical or economic change from the prior finding.

Defendants first argued that the commissioner erred in considering the job market in rural Iowa, where claimant had moved following the initial hearing.  The court rejected this argument, finding that claimant's conditions remained the same following the initial hearing and found that the employer's failure to prove that claimant's work capacity had increased doomed their argument.

The court next rejected defendants' argument that once an employer had demonstated "partial work capacity", the burden of production should shift to the employee to demonstrate that work was unavailable.   The court concluded that the defendants, even assuming the correctness of the burden shifting argument, had failed to demonstrate that claimant's work capacity had improved.

Finally, the court concluded that substantial evidence supported the decision of the agency.  The court found that credibility and claimant's testimony was a factor in determining whether substantial evidence supported the decision and rejected defendants' argument.  

Wednesday, August 17, 2016

Court of Appeals Affirms 35% Award With Minimal Analysis

Polaris Industries v. Quastad, No. 15-1572 (Iowa App. Aug. 17, 2016) represents the latest Court of Appeals decision to note that the scope of review on appeal is limited, and that the commissioner's decision can only be reversed if that decision is illogical, irrational or wholly unjustifiable.  The court affirms a 35% industrial disability award and notes that there can be a diminution of earning capacity even when there has not been a diminution in actual earnings, citing ABF Freight Systems, Inc. v. Veenendaal, No. 11-1862, 2012 WL 186033, at *4 (Iowa App. May 23, 2012).

Wednesday, July 27, 2016

Court of Appeals Affirms Award of Alternate Medical Care

In Newt Marine Service v. Abitz, No. 15-1957 (Iowa App. July 27, 2016), the Court of Appeals affirmed the commissioner's award of alternate medical care.  Claimant had been treated by Dr. Field, who reported that claimant's shoulder injury had abated following surgery and that he had a 75 pound lifting restriction.  Claimant denied that his shoulder pain had dissipated and indicated he continued to need physical therapy.  He also denied that he could lift 75 pounds. A week after the imposition of the 75 pound restriction, Dr. Field indicated claimant had no restrictions.

Claimant indicated his dissatisfaction with Dr. Field's care and file a petition for alternate medical care.  He requested care from a doctor specializing in shoulder injuries at the University of Iowa.  The deputy granted alternate care, finding that the care provided by Dr. Field was not effective.  On review, the Court of Appeals affirmed, citing Pirelli-Armstrong Tire Co. v. Reynolds, 562 N.W.2d 433, 436 (Iowa 1997).  That case had held that when care was inferior or less extensive than other care requested by the employee, alternate care was available. The court found it significant that Dr. Field had lifted the restriction only one week after it had been imposed, without seeing claimant.  The court found that the care offered, i.e. no care, was less extensive than the care requested and the commissioner was justified in awarding alternate medical care.  The decision of the agency was found to be supported by substantial evidence and was not irrational, illogical or wholly unjustifiable.

Court of Appeals Allows Reimbursement for Wages Lost by Spouse Transporting Claimant to Medical Appointments

In Reynolds v. Algona Manor Care Center, No. 15-1095 (July 27, 2016), the Court of Appeals reversed the decision of the agency finding that a spouse could not be reimbursed for wages lost because of transportation of the claimant to and from medical appointments.  The agency had awarded medical costs and expenses, penalty benefits and costs.  The district court had remanded to the agency to determine interest on temporary benefits.  These items were appealed by the employer. Claimant appealed the denial of reimbursement for wages to claimant's spouse.

The court first finds that substantial evidence supported the commissioner's conclusion that claimant was entitled to payment for various prescription and non-prescription medications as well as payment for a medical visit.  The court found that remand was appropriate to determine if any interest was owed, inasmuch as benefits had been delayed on a few occasions.  The penalty claim was based on the appropriate commencement date for benefits.  Claimant argued that benefits became due on September 13, 2011 and the employer on September 17, 2011.  The agency agreed with claimant's date and awarded $2500 in penalties.  Because claimant's date was eleven days after the injury, consistent with the language in section 85.30 of the Code, the court agreed with claimant and affirmed the award of penalty benefits.  The court noted that there was no evidence that the employer had conveyed the reason for the delay in payments to the claimant.  The court also found there was no abuse of discretion in awarding $113.60 in costs to claimant.

On the travel expense issue, claimant had submitted a list of claimant's husband's hours for the time he had missed from work transporting claimant to medical appointments.  It was uncontroverted that claimant was not able to drive herself to out of town medical appointments.  The court notes that the statute provides that "reasonably necessary transportation expenses incurred for such services" are to be paid.  The court further noted that Mycogen Seeds v. Sands, 686 N.W.2d 457, 469 (Iowa 2004) had determined that the spouse's wages may be paid for transportation if "reasonably necessary."  Mycogen Seeds had gone on to say that these payments could be made only if this was the most economically reasonable way to be transported.

Claimant argued that the "reasonably necessary" standard was unnecessarily constricted by Mycogen Seeds, inasmuch as the statute did not contain limitations based on the most economically reasonable means of transportation.  The court declined to overrule Mycogen Seeds, as the Court of Appeals is not at liberty to overturn Supreme Court precedent.  The court rejected the argument that because the employer had stipulated that claimant's husband was entitled to be reimbursed for lost wages on December 1 and 2, 2012 for back surgery that he was entitled to be reimbursed for other lost wages, as this was a concession that driving her would be the most economic way to transport her to appointments.  The court, however, found that because claimant had presented evidence that there was no bus service from Mason City to Algona, the burden shifted to Algona Manor to demonstrate that there was an economical alternative.  The court concluded that claimant had demonstrated that there was no reasonable means of transportation other than having claimant's husband do the driving. Since Algona Manor had not demonstrated an alternative, the costs of claimant's husband's wages were appropriately taxed against the employer.

Wednesday, June 15, 2016

Court of Appeals Affirms 20% Industrial Disability Award

In Polaris Industries v. McCormick, No. 15-1573 (Iowa App. June 15, 2016),  the agency had awarded a 20% industrial disability for her right shoulder and elbow problems.  The award was premised in part on the deputy's conclusion that "claimant has permanent restrictions for her job."  On appeal, the employer argues that no medical provider found that claimant had permanent restrictions and thus the decision of the agency was not supported by substantial evidence.

On appeal, the court catalogues recent decisions regarding substantial evidence and concludes the agency's decision was supported by substantial evidence and was not irrational, illogical or wholly unjustifiable.  The court noted that Dr. Hines had advised claimant not to engage in lifting above shoulder height or lifting of the arm at the shoulder and repetitive flexion at the wrist.  This, combined with claimant's testimony as to her restrictions was found to be sufficient to support the conclusions of the agency.  The 20% industrial award was also affirmed and the decision of the district court was affirmed without further opinion.

Friday, June 3, 2016

Supreme Court Concludes that Employer's Contributions to 401(k) are Not a Part of Gross Wages for Rate Purposes

In Evenson v. Winnebago Industries, No. 14-2097 (Iowa June 3, 2016), the Supreme Court concluded that an employer's matching contributions to a 401(k) plan are not weekly earnings for rate purposes. The Court also concluded that the district court erred in affirming the date on which the healing period commenced and ended and the date on which PPD benefits commenced.

On the rate issue, the court noted that "gross earnings" was defined in section 85.61(9) as recurring payment by the employer before deductions and excluding irregular bonuses, overtime pay, reimbursement of expenses and the employer's contribution for welfare benefits.  The Court notes that although an employee's 401(k) plan is related tangentially to his or her wage or salary, an employer's 401(k) plan matching contributions are based on the employee's choice and contribution.  Although the portion the employee chooses to contribute to the plan comes from his wages, the added contribution from the employer's match does not.  The Court concludes that "our legislature intended to exclude employer contributions to 401k plans from the definition of gross earnings," citing the exclusionary provisions of section 85.61(9).  The Court concludes that 401(k) contributions are "welfare benefits" as described in the statute and are thus excluded from consideration.  The Court also cites to the U.S. Supreme Court decision in Morrison-Knudsen Contstruction v. Director, Office of Workers' Compensation Programs, 461 US 624 (1983) in which the Court held that an employer's contribution to a union trust fund for health and welfare, pensions and employee training were not considered wages.  Finally, the Court notes that other states routinely hold that fringe benefits are not wages for purposes of determining a workers' compensation rate.  Although a few states, such as Nebraska, have changed this by statute, Iowa has not.

Claimant also argued that the district court erred in affirming the commissioner's determination of the extent of his impairment, the commencement dates of healing period benefits and the amount of penalty awarded.  On the extent question, the 20% permanent impairment finding for claimant's arm injury was affirmed on substantial evidence grounds.  The commissioner was found to have considered lay testimony.

The Court concludes that healing period benefits began on September 3 rather than September 7 and that claimant if claimant received holiday pay for the Labor Day holiday, this could be credited against healing period benefits.  Claimant argued that PPD benefits should have been awarded beginning on September 20 (when claimant returned to work) and then suspended when claimant had surgery and was on another healing period.  The Court noted that under Waldinger v. Mettler, 817 N.W.2d 1 (Iowa 2012), there may be more than one healing period for a single injury.   The court finds that "the statute clearly states the healing period lasts until whichever situation [ending the healing period] occurs first."  Thus, in Mr Evenson's case, his return to work ended his healing period and PPD benefits were payable commencing on that date.  The Court further concludes that this commencement date for PPD benefits is not precluded by the fact that he was entitled to TPD benefits for subsequent weeks when he was medically restricted from working his regular hours.  The Court overrules the decision in Presthus v. Barco, 531 N.W.2d 476, 480 (Iowa App. 1995), which had barred payment during the same period for TPD benefits and PPD benefits.  The Court concludes the TPD benefits and PPD benefits compensate for completely different categories of losses and because of that the employee is not paid twice for the same injury or loss.

The Court affirmed the agency's 25% penalty finding, but remanded on this issue because of the new healing period and PPD dates established in the Court's opinion.

Justices Mansfield and Waterman dissented on the issue of payment of TPD and PPD benefits simultaneously.  They would affirm the decision of the agency that PPD began after TPD benefits had been concluded, in November of 2011.  The dissenters argue that the Court's opinion "dramatically expands" the Court's prior opinion in Mettler.  The dissenters would include the TPD period as a part of the healing period and indicate that is why TPD benefits are "in lieu of HP benefits.  The majority's decision, according to the dissenters, means that  a claimant has a temporary disability and a permanent disability based on the same injury at the same time, a finding which the dissenters find "incongruous."  The dissenters are that although not mentioned in the majority opinion, "the court also discards the analytical framework we set forth in considerable detail in . . . Bell Brothers Heating & Air Conditioning v. Gwinn."  779 N.W.2d 193 (Iowa 2010).  Gwinn had indicated that a claim for permanent benefits was not ripe until MMI had been achieved.

Wednesday, May 25, 2016

Court Reverses Summary Judgment Finding That Plaintiff Was an Employee

In Sager v. Innovative Lighting, dba Hawkeye Molding, Inc., No. 15-0783 (Iowa App. May 25, 2016), plaintiff had filed a common law negligence action against Innovative Lighting.  Plaintiff had been hired for work at Hawkeye by Jacobson Staffing, which was apparently how all parties work for Hawkeye.  Jacobson provides workers' compensation coverage for its employees.  Plaintiff was injured at Hawkeye and filed a workers' compensation claim against Jacobson, for which he received a settlement.

Plaintiff's attorneys had communications with Hawkeye concerning the filing of a third party action, and filed suit claiming negligence against Hawkeye for an injury to his hand from a burn resulting from hot liquid.  Hawkeye filed a motion for summary judgment claimant that it was immune from liability under the exclusivity provisions of the Iowa Code, section 85.20.  The district court concluded, in ruling in favor of Hawkeye, that the only reasonable inference to be drawn was that plaintiff was an employee of Hawkeye and thus the exclusivity provisions barred the negligence action.

The Court of Appeals reverses the district court's ruling.  The court notes that an employee may have more than one employer and the question is whether the worker entered into a contract of hire, express or implied.  The court noted that in determining an employment relationship in a borrowed servant situation, the primary focus was the intent of the parties.  The court concluded that the five factor test for determining whether a person was an employee was not dispositive in the borrowed servant situation,  Under the record presented, the court could not say as a matter of law that there was an informed and deliberate intent to enter into an employment relationship.  Although the facts were largely undisputed, the inferences to be drawn from the facts were not.  The case was therefore remanded to the district court for further proceedings to determine whether Mr. Sager was an employee of Hawkeye.

Court of Appeals Affirms Overlapping Award of PPD, PTD Benefits

The passage of HF 2581 in 2004 eliminated the provision that overlapping streams of benefits were impermissible under section 85.36(9)(c) of the Code.   In Drake University v. Davis, 769 N.W.2d 176 (Iowa 2009), the Supreme Court held that in a situation where a claimant had a PPD award followed by a subsequent award of PTD benefits, both benefits could be received simultaneously, because the language of section 85.34(7) of the Code, which addressed issues of apportionment, did not reference awards under section 85.34(3) of the Code, only awards under section 85.34(2).

In JBS Swift v. Ochoa, No. 15-0840 (Iowa App. May 25, 2016), the Court of Appeals followed Davis and affirmed the commissioner's award of an overlapping 70% industrial disability and a subsequent PTD award.  The court noted that the awards were both supported by substantial evidence and indicated, in discussing Davis, that "we are not at liberty to overrule controlling supreme court precedent."  Although noting that the employer had made several "compelling public policy arguments," the court nonetheless rejected the employer's contentions.  The court also noted that the employer had failed to raise its objections, which were based on section 85.34(b)(3) of the Code, until the district court level and thus error had not been preserved.  The commissioner's award was affirmed.

Claimant Rosalva Ochoa was represented by Jamie Byrne of Neifert, Byrne & Ozga.

Wednesday, May 11, 2016

Court of Appeals Affirms Award on Substantial Evidence Grounds

In McComas-Lacina Construction v. Drake, No. 15-0922 (Iowa App. May 11, 2016), the Court of Appeals affirms the decision of the commissioner on substantial evidence grounds.  Although this is a fairly typical finding for both the Court of Appeals and Supreme Court, the decision adds a humorous twist, stating the following:

We begin and end our analysis with the following observation: “The administrative process presupposes judgment calls are to be left to the agency. Nearly all disputes are won or lost there.” Sellers v. Emp’t Appeal Bd., 531 N.W.2d 645, 646 (Iowa Ct. App. 1995) (citations omitted). A case reversing final agency action on the ground the agency’s action is unsupported by substantial evidence or is irrational, illogical, or wholly unjustifiable is the Bigfoot of the legal community—an urban legend, rumored to exist but never confirmed. Here, the employer had a full and fair opportunity to present its evidence and argument to the deputy commissioner and the commissioner without success. The employer challenged the agency’s findings, conclusions, and application of the facts to the law in the district court without success. Like the district court, we have carefully examined the grainy eight millimeter film of the administrative record. We can add little to the thorough and well-reasoned ruling of the district court, and we will not reiterate the same analysis here. We conclude the agency’s findings are supported by substantial evidence, and its decision is not irrational, illogical, unreasonable, unjustifiable, arbitrary and capricious, or legally erroneous. The search for Bigfoot continues.

Wednesday, April 27, 2016

Court of Appeals Affirms Denial of Additional Benefits Against the Fund on Review Reopening, Assessment of Costs Against Claimant

In Wehde v. Georgia Pacific and Second Injury Fund, No. 15-0045 (Iowa App. No. 15-0045), the Court of Appeals addressed an issue where claimant had filed an original action against the employer and Fund and had prevailed and later filed a review reopening action.  In this action, claimant prevailed against the employer, and received an additional award of 8% for her left leg, but no additional impairment for her right leg and no additional industrial disability benefits from the Fund.  The agency concluded that there was an increased loss of earning capacity as a result of her additional loss of use to the left knee.  The agency assessed the costs for the left leg to the employer, ordered shared costs for the right leg, and costs relating to the loss of earning capacity were assessed to claimant. The district court affirmed and the case was appealed.

The Court of Appeals concluded that although the treating doctor had not imposed restrictions in the original action, the IME doctor had done so and the agency had taken this into account in determining claimant's loss of earning capacity.  The treating physician's restrictions at the time of the review-reopening case were similar to those of the IME physician in the original case.  The court found that the facts of the case supported a conclusion that claimant was as physically capable in August of 2013 as she had been in February of 2010.  The court also rejected claimant's allegation that a vocational report demonstrated additional loss of earning capacity.  This was based on the fact that the vocational expert's conclusions were based on limitations that were largely similar to the ones discussed by the agency at the time of the original decision.

The court of appeals also concluded that claimant's loss of her job was because of a plant closure and not because of any additional restrictions.  In assessing the ultimate finding of industrial disability, the court concluded that the agency's decision was not illogical, irrational or wholly unjustifiable.

On the costs issue, the court simply states that since the agency was justified in denying an additional award against the Fund, there was no abuse of discretion in the agency's assessment of costs to claimant.

Court of Appeals Affirms Running Healing Period Award

In Tyson Foods, Inc. v. Teah, No. 15-1776 (April 27, 2016), the Court of Appeals addressed a situation where claimant developed a shoulder injury as a result of repetitive work activities at Tyson. Claimant was found to have reached maximum medical improvement, but continued to complain of shoulder problems.  Dr. Adams concluded that claimant had chronic calcific tendinitis, but not evidence of a rotator cuff tear.   He found that work activities had aggravated her condition.  He found that work had accelerated her condition, but also found that no surgery was currently needed but that a surgery in the future would not be work-related.  Tyson denied liability.

Claimant was asked to sign a non-work leave of absence.  She refused and was eventually terminated. At hearing, the agency concluded that claimant had demonstrated that she had a compensable injury and awarded a  running healing period.  Defendants appealed, claiming that if Dr. Adams' opinions were rejected, there was no additional expert medical evidence to support the commissioner's findings.  The Court of Appeals agreed with the commissioner and district court that it was premature to determine that claimant had a permanent healing period because she had not yet received all the medical treatment appropriate for her injury.  The court finds that Dr. Adams' opinions were not rejected but were instead interpreted by the commissioner and that interpretation was supported by substantial evidence.

Monday, April 18, 2016

Supreme Court Reverses Court of Appeals, Concludes that Section 85.27(4) Does Not Automatically Require Continuation of Medical Benefits Before Notice from Employer

In Ramirez-Trujillo v. Quality Egg, No. 14-0640 (Iowa April 15, 2016), the Court wrestled with the meaning of section 85.27(4) of the Iowa Code.  The sentence in issue in this case states that "If the employer chooses the care, the employer shall hold the employee harmless for the cost of care until the employer notifies the employee that the employer is no longer authorizing all or any part of the care and the reason for that change in authorization."  The commissioner concluded that section 85.27(4) required a notice to the claimant in all circumstances if the employer was terminating previously authorized care.  The district court reversed, finding that Quality Egg reasonably believed claimant had recovered from the work injury and did not need to provide notice.  The Court of Appeals agreed with the commissioner and reversed the district court.

In a lengthy decision, the Supreme Court reverses the decision of the Court of Appeals and remands the claim to the commissioner for further determination as to whether a notice was required, given the evidence presented in the case.  The Court first notes that although section 85.27(4) was a "bread and butter provision of the workers' compensation statute regularly administered by the commissioner." Nonetheless, the court was not "firmly convinced" that the legislature attempted to delegate authority to the commissioner and thus gave the commissioner no deference in interpreting the provision.

The court notes that the statute "plainly indicates an employer who authorizes care is responsible for the cost of the care up to the time when the employer notifies the employee it is no longer authorizing care."  The Court also notes that the "employer's statutory burden to monitor an injured employee's care is not an onerous one." The Court, however, goes on to note that because the operative phrase is "choose the care" and not "has chosen the care at some time in the past," the responsibility to provide notice is limited.  The Court concludes that section 85.27(4) "limits employer liability for authorized care to expenses incurred seeking care related to the medical condition or conditions for which the employee sought care in the aftermath of a workplace injury. . . ."  The Court finds that an employer can establish it is not liable for the cost of care "if it proves by a preponderance of the evidence the employee knew or reasonably should have known either that the care was unrelated to the medical condition or conditions upon which the employee's claim for workers' compensation is based or that the employer no longer authorized the care the employee received at the time the employee received it."

The Court sets out a seven step test for determining whether the employer has proven that the employee knew or reasonably should have known that care was no longer authorized. These included the following:

1.  The method in which the employer communicated that the care was authorized during the period it was authorized;

2.  The actual communications between the employer and employee concerning care;

3.  Any communications between the employer and medical providers;

4.  The amount of time that passed between the date care was originally authorized and the date the employee sought the disputed care;

5.  The nature of the injury for which the employer authorized care;

6.  The nature of the care received by the employee, including the overall course of care;

7.  Any other matters bearing on what the employee knew or did not know concerning the authorization of care.

In the context of the case, the Court concluded that the commissioner had made no findings of fact that would permit the Court to know whether claimant knew or reasonably should have known that the employer no longer authorized care by Wright Medical Center.  A remand was therefore found to be appropriate.

Justice Hecht dissented, noting that although the standard authorized by the majority could have been adopted by the legislature, it was not.  He believed that the words of section 85.27(4) were clear and unambiguous and required a notice by the employer when care had been authorized and was now being terminated.  Justice Hecht noted that the bright line rule created by the language of 85.27(4) was being rewritten in a manner that would create confusion and spawn additional litigation.

Friday, April 8, 2016

Court of Appeals Affirms Commissioner's Decision on Causation, Extent of Disability

Pella Corporation v. Marshall, No. 14-2121 (Iowa App. April 6, 2016) involved a claimant who sustained an injury to his right shoulder.  At the deputy level, claimant's injury was found not to have arisen out of employment.  This decision was reversed by the commissioner, who concluded that claimant had a 20% industrial disability.  At the first judicial review proceeding, the case was remanded to the commissioner for a determination of whether the facts as testified to by the claimant or the history contained in the medical records would govern.  On remand the commissioner affirmed the initial decision, finding that no deference was provided to the original arbitration decision because there had been no credibility finding made in that decision.  This decision was affirmed by the district court.

On appeal, after discussing the history and facts of the case in great detail, the court affirmed with respect to causation and the degree of industrial disability.  On the causation issue, the court rejected Pella's argument that the denial of causation in the arbitration decision was an implicit finding that claimant was not credible.  The court noted that the weight to be given to the experts was within the discretion of the commissioner.  On the industrial disability question, the court noted Pella's argument that claimant had relatively minimal restrictions, had retired from the job market and had a small rating, but concluded that the finding of a 20% industrial disability was not irrational, illogical or wholly unjustifiable.  The court noted that retirement was not determinative on the issue of industrial disability, citing Flexsteel Indus., Inc. v. Scholl, Nos. 0-250, 99-1006, 2000WL 1288900 (Iowa App. Sept. 13, 2000).

The court remanded the issue of medical expenses and the question of whether an FCE could be paid as costs, as had the district court.

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

Thursday, April 7, 2016

Court of Appeals Affirms Permanent Total Disability Award on Substantial Evidence Grounds

In Jack Cooper Transport Co. v. Jones, No. 15-0960 (Iowa App. April 6, 2016), the commissioner concluded that a truck driver who suffered a back injury was permanently and totally disabled.  In the decision, the causation determination and restrictions of the IME physician, Dr. Koprivica, were accepted over the opinions of Dr. Boarini or Dr. Ciccarelli.  The district court affirmed the PTD award on substantial evidence grounds.

Noting that the issue of causation was within the realm of medical expert testimony, the court concluded that there was substantial evidence to support the finding that claimant sustained a permanent injury.  The court also concluded that the finding of permanent total disability was not irrational, illogical or wholly unjustifiable.  The court noted that claimant was not able to return to work after the back injury.  Dr. Koprivica restricted claimant from driving a truck, which had been the only work performed by the claimant.   The decision of the agency was affirmed.

Thursday, February 25, 2016

Court of Appeals Affirms Award of Penalty Benefits

In Bridgestone/Firestone v. Dalton, No. 15-0571 (Iowa App. Feb. 24, 2016) , claimant suffered an injury to his shoulder which was denied by the company.  The agency found that claimant's injury had resulted in a 50% industrial disability and a penalty of $75,000.00 was assessed against the employer by the deputy.  On appeal, the penalty award was reduced to $33,027.69.  The district court affirmed the commissioner's decision.

The court noted that factual issues were decided based on the substantial evidence standard, and that the application of law to facts was determined based on the "demanding 'irrational, illogical or wholly unjustifiable' standard of section 17A.19(10)(m)."

On the penalty issue, the court noted that Dr. Troll had found that because there was no specific injury, he could not relate his shoulder problems to work.  Claimant subsequently saw Dr. Neff, who recommended surgery.  The agency found that Dr. Troll's opinion was not a reasonable basis for the denial of the claim.  Two other physicians had concluded that claimant's injury was related to his work, including Dr. Neff.

The court concluded that claimant had demonstrated a delay in payment of benefits "by the unreasonably long period of nine months."  The employer had also failed to demonstrate a reasonable or probable cause for the delay.  The court concluded that the commissioner's application of section 86.13 was not irrational, illogical or wholly unjustifiable.  Citing Pettengill v. American Blue Ribbon Holdings, LLC, 2015 WL 9450654 at *6 (Iowa App. 2016).   The causation and industrial disability awards were also affirmed.

Court of Appeals Affirms 40% Industrial Disability Award

In Gordon Sevig Trucking Co. v. Radwan, No. 15-0297 (Iowa App. Feb. 24, 2016), the court concludes that the decision of the agency finding that claimant had sustained an aggravation of his underlying back condition, a shoulder injury and a subsequent mental injury was supported by substantial evidence.  The court also affirms the commissioner's 40% industrial disability award.

Claimant had suffered an earlier injury to his back, which resulted in surgery.  When he was hired for the employer, he did not disclose the earlier back injury, but had no problems with his back for two years after he started work.  Claimant suffered an unwitnessed slip and fall at work in November of 2009.  He was transported by ambulance to the hospital. Claimant ultimately had surgery at a different level of his lumbar spine than his earlier surgery.  The deputy concluded that there had been a back injury and a temporary mental health injury.  A 40% industrial disability was awarded.  The decision was affirmed without comment other than to note that claimant had been found credible by the deputy.

The Court of Appeals notes that it is the commissioner's duty as the trier of fact to determine the credibility of witnesses and decide factual issues.  Defendants argued that because claimant's doctors did not know of the earlier back injury, their opinions should be given lesser weight.  The court concludes that because medical causation was within the domain of expert testimony and the commissioner determines the weight to be given to medical testimony.  The court also noted that no doctor had said the work injury was not the cause of the back problems, only that they could not say this within a reasonable degree of medical certainty.  The commissioner's decision on this point and on the 40% industrial disability finding was affirmed.

Wednesday, February 24, 2016

Court of Appeals Affirms Commissioner's Award of Benefits Despite Negative Credibility Finding by Deputy

In Kraft Foods, Inc. v. Shariff, No. 15-0287 (Iowa App. Feb. 24, 2016), the Court of Appeals addressed a situation where the deputy found that claimant's testimony was not credible and relied on the on-site physician to find that the claim did not arise out of and in the course of employment.  The commissioner reversed the decision of the deputy on appeal.

Claimant was in an auto accident which resulted in a closed head injury, a back injury, a right shoulder injury and a left knee injury.  He was initially treated but at some point the plant doctor  "began to grow inpatient and disenchanted" with claimant, who was the safety manager for the employer.  Dr. Garrels indicated that he had "lost all respect" for the claimant and discussed the "extreme nature of his manipulation."  He left the impression with another treating doctor that he believed claimant was malingering.

Dr. Field and Dr. Epp found that claimant's right shoulder problems were related to the work accident and Dr. Epp concluded that a range of other injuries, including post-traumatic headaches were related.  Dr .Boulden indicated that the accident did not cause the pathological findings (a SLAP tear) in claimant's shoulder, but acknowledged that claimant did not have shoulder problems before the injury.

The deputy concluded that claimant failed to prove the shoulder injury was work related.  She also rejected a claim for alternate care.  On appeal, the commissioner reversed and specifically ordered Dr. Garrels not to participate in further care for claimant.  The decision of the commissioner was upheld on judicial review.

On appeal, the court noted that it reviewed final agency action, not the hearing officer's proposed decision.  The court concluded that the deputy's determinations of veracity based on personal observation of witness demeanor was a factor to be considered on review, but noted that this did not require the court to give weight to the deputy's conclusions when they were not based on his or her personal observations of demeanor evidence.  The deputy had found that claimant's personal feelings about the handling of his claims drew his credibility into question.  She found that he was not credible.  In reversing, the commissioner noted that the deputy's opinion was not based on demeanor, but on her assessment that his testimony was not consistent with other testimony in the case.  The commissioner reversed the findings of the deputy on this point and the court stated that we "are not troubled by the commissioner's divergent fact findings on this point."  The court also affirmed the commissioner's conclusion that a treating physician is not necessarily given more weight simply because of his status as a treating physician.  The commissioner also concluded that Dr. Garrels' views lacked objectivity.

The court noted that the commissioner determines the weight to give expert opinions and that they were not in a position to determine whether Dr. Garrels' contrary view trumps the other medical causation evidence cited by the commissioner. The court affirmed the commissioner's award of temporary benefits and alternative medical care.

Wednesday, February 10, 2016

Court of Appeals Remands Case for Determination of Proper Credit

In Polaris Industries v. Hesby, No. 15-0629 (Iowa App. Feb. 10, 2016), the Court of Appeals addressed the issue of whether the defendant had presented sufficient evidence to justify a credit for prior injuries that occurred to claimant while working with the same employer.  The agency had concluded that no satisfaction of the employer's obligations was due because the employer failed to produce sufficient evidence to justify the credit.  The district court reversed, finding that claimant had acknowledged payment of at least 30 weeks of benefits and also noting that a prior hip injury had also resulted in payment of industrial disability.

On appeal, the court remanded, finding that the agency's conclusion that claimant had not received permanency benefits was not supported by substantial evidence.  The court also remanded for consideration of payments made for claimant's 2009 hip injury, which had not all been paid out at the time of the decision in this case, which involved a shoulder injury.  The case does not present issues relating to whether credit was allowable, only issues relating to whether the employer had proven his entitlement to credit.  The agency was instructed to consider the extent of previous payments on remand.

The court also affirmed a 30% industrial award for the shoulder injury on substantial evidence grounds.

Court of Appeals Affirms Alternate Medical Care Award for Physical Therapy in Claimant's Home State

In Annett Holdings v. Roland, No. 15-0043 (Iowa App. Feb. 10, 2016), the Court of Appeals upheld a decision of the agency awarding claimant physical therapy in his home state of Alabama rather than the physical therapy that had been offered in Des Moines.  When claimant had begun work for Annett Holdings, he signed a "memorandum of understanding" indicating that as a condition of employment, he agreed to temporarily relocate to Des Moines for the purposes of performing modified work if he were injured on the job.  Claimant had an elbow injury, and surgery in Alabama, following which he was taken off work and referred for physical therapy, which originally occurred in Alabama.

When claimant was released to light duty work, he was temporarily relocated to a Des Moines hotel, where physical therapy was performed.  Claimant filed for alternate medical care and the agency concluded that treatment provided 897 miles from claimant's residence was unreasonable and unduly inconvenient.  The deputy concluded that the "memorandum of understanding" was inconsistent with section 85.18 of the Iowa Code.  The district court affirmed, finding that without the memorandum of understanding, the employer could not compel claimant to travel to Des Moines for treatment.

On appeal, the employer contended that the action of the agency was not supported by substantial evidence.  The employer also argued that the agency erred in reaching the conclusion that the memorandum of understanding was inconsistent with Iowa law.  The employer argued that consideration of the memorandum was not a proper consideration for the agency in an alternate medical care proceeding.

The court affirms on the substantial evidence issue, finding treatment was inconvenient, was inferior and interfered with the use of a "cooling machine" prescribed by claimant's treating physician.  The court noted that the physical therapy in Des Moines was decidedly inferior to the physical therapy in Alabama, and the agency's decision was supported by substantial evidence.  The court also rejects the employer's argument that the agency wrongfully considered the memorandum of understanding.  According to the court, by relying on the memorandum to justify the care in Iowa, the employer put into issue the legal validity of the memorandum.  The court affirms the decision of the district court finding that the memorandum, in the circumstances presented, violated section 85.18 of the Code.

It would seem almost certain that an application for further review will be filed with the Supreme Court in this case, as it raises issues that were left unsettled in other cases involving truckers, treatment and healing period benefits.  The memorandum was developed in light of Neal v. Annett Holdings and this case presents the first appellate challenge to the use of the memorandum.

Thursday, January 14, 2016

Court of Appeals Affirms Permanent Total Disability Award

In Gleeson Constructors and Engineers, LLC v. Madrigal, No. 14-1467 (Iowa App. Jan. 13, 2016), the Court of Appeals affirmed the award of permanent total disability benefits on substantial evidence grounds.

Claimant was a Mexican national who had three semesters of college in Mexico, but who was not fluent in English.  He suffered an episode at work in 2007 where his back locked.  He was placed on light duty and continued this work until he had surgery in 2009 and quit his job.  Physicians and therapists believed the surgery was successful and there was no objective physical impairment to his back.  Claimant testified to the extreme pain, loss of strength, inability to sleep and jerking in his left leg that occurred following the surgery.

The court indicates that the subjective degree of pain made claimant's credibility an issue.  Defendants also alleged that claimant had "a history of attempting to avoid work."  Three functional capacity evaluations were administered that were considered invalid.  There were also tests that were considered to be valid and established Madrigal's inability to compete in the labor market.  An employability assessment from Iowa Vocational Rehabilitation demonstrated motivation to work, but it was concluded that claimant had a genuine physical disability that posed a barrier to competitive employment.  Claimant applied to 25-30 businesses seeking employment but was called back by only two, and was not hired.  At the time of hearing, claimant had been denied social security disability benefits.

The commissioner relied on Dr. Kuhnlein's IME, the testing with vocational rehabilitation and a vocational report from Barbara Laughlin.  The court concluded that the commissioner's decision was not irrational, illogical or wholly unjustified.  There was substantial evidence to support the conclusions of the agency.

In the decision, the commissioner had commented that mental health treatment might assist claimant, although no mental health component of the claim was in issue.  Defendants contended that this comment shifted the burden of mitigation to the employer.  The court concluded that the commissioner was commenting on how claimant's condition might be better addressed.  The decision was affirmed.