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.

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.