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, 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.