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.

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.