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, 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.