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, 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.