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, January 25, 2017

Court of Appeals Affrims Award of TTD Benefits, Medical Expenses and Penalties

In Polaris Industries, Inc. v. Doty, No. 16-0961 (Iowa App. Jan. 25, 2017), the COA affirmed the decision of the agency finding that claimant had established eligibility for TTD benefits, medical expenses and penalty.  Claimant was diagnosed with impingement syndrome, which defendants' original orthopaedic surgeon, Dr. Hough, related to claimant's work.  Dr. Hough, following an MRI showing a rotator cuff tear, recommended surgery.  Rather than proceeding with the surgery, defendants had Dr. Blow, a physical medicine doctor, perform a defense medical exam.  Dr. Blow concluded the problems were age related and did not recommend surgery.  Dr. Blow placed claimant at MMI, despite the facto that she had not had surgery.  Dr. Hough subsequently recommended surgery again and placed her on restrictions.  Dr. Hines, who performed an IME for claimant, found causation and also recommended surgery.

The hearing deputy found it was a strain to accept that claimant's condition was not related to work.  The deputy credited Dr. Hough and Dr. Hines and ordered TTD benefits, a small amount of medical expenses and penalties in the amount of 25% of past due TTD benefits.  On appeal, the commissioner affirmed and noted that penalty was appropriate because defendants failed to contemporaneously convey the basis of the denial to claimant.

The COA affirms in all respects.  The court concludes that despite the fact that the employer tried to "massage the factual record on appeal," this did not unsettle the substantial evidence supporting the commissioner's assessment of the doctors' viewpoints.  The court concluded that TTD and medical benefits were appropriate as the decision of the commissioner was supported by substantial evidence.
On the penalty issue, the court noted that the reason for granting penalty benefits was different at the arbitration and appeal levels.  The deputy awarded penalty because Dr. Blow's opinion did not transform claimant's entitlement to benefits into the fairly debatable realm because he ignored facts in the company's own records.  The commissioner found that Dr. Blow's conclusion did make the question fairly debatable, but concluded defendants had not provided the notice required by the statute.  The court concludes that penalties were appropriate, stating that any delay without a reasonable excuse entitles the employee to penalty benefits in some amount.  The record did not demonstrate that defendants had contemporaneously conveyed the reasons for denial to claimant and penalty was therefore appropriate.

Court of Appeals Reverses Commissioner's Summary Judgment Decision in Favor of SIF

Stowe v. Second Injury Fund of Iowa, No. 16-0599 (Iowa App. Jan. 25, 2107) presented the somewhat unusual situation where the commissioner had disposed of a case on summary judgment grounds.  Claimant had settled her case against the employer on an agreement for settlement and in the settlement documents had indicated that the injury was an injury to the left thumb.  When claimant brought an action against the Fund, the Fund filed for summary judgment, claiming that an injury to the thumb was not a qualifying injury for SIF purposes.  The deputy and commissioner agreed and the case was dismissed.

Claimant filed a petition for judicial review and the district court reversed the decision of the agency, finding that the commissioner erred in ruling as a matter of law the settlement agreement precluded claimant from seeking Fund benefits on the basis of a hand injury.  The court noted that the Fund was not a party to the settlement agreement and also found there was no support in the record to substantiate the agency's finding that claimant had acknowledged that the injury was not to her hand.  Viewing the facts in a light most favorable to claimant, the district court reversed and remanded.

On appeal, the Fund argues that the doctrine of judicial estoppel barred a claim for a hand injury because it was inconsistent with her statement in another proceeding that this was an injury to the thumb.  The COA notes that judicial estoppel prohibits a party who has successfully and unequivocally asserted a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.  The court note that the positions in the two proceedings need not only be inconsistent, but "so inconsistent that one necessarily excludes the other."

The court discusses the definition of the word "hand" and notes that an injury to the thumb, by itself does not automatically exclude an injury to the hand in ordinary parlance.  Because Stumpff v. Second Injury Fund makes clear that a finger injury can qualify as a hand injury, the same can be said of the thumb.  The court noted that the documents attached to the settlement agreement supported the claim of a hand injury.  The court concluded that the district court was correct, affirms the action of the district court and remands the case to the agency.

Friday, January 13, 2017

Court of Appeals Affirms Denial of Additional Benefits in Review-Reopening Action

In Ayala v. Tyson Foods, Inc., No. 16-0505 (Iowa App. Jan. 11, 2017), claimant was initially provided a 45% industrial award.  Claimant subsequently filed a review-reopening petition after he had surgery and his impairment rating was increased from 13% to 23%.  Although the commissioner acknowledged this medical evidence, he found there had been no change in claimant's earning capacity, as claimant had no earnings loss and his work restrictions were largely unchanged or lessened.

Claimant contended that the commissioner's decision was irrational, illogical and wholly unjustifiable.  The court rejected this contention, noting that functional impairment was a single, but not controlling factor in determining the extent of industrial disability.  The court also concluded that the decision of the commissioner was supported by substantial evidence, again noting that there was evidence that claimant's earning capacity remained unchanged.  The decision of the commissioner was affirmed.

Wednesday, January 11, 2017

Court of Appeals Affirms Dismissal of Claim on Notice, Statute of Limitations Grounds

The Court of Appeals affirmed the decision of the commissioner dismissing claimant's case on grounds of lack of notice and statute of limitations.  Ross v. American Ordnance, No. 16-0787 (Iowa App. Jan. 11, 2017).

Claimant hurt her shoulder on November 1, 2012 and told her supervisor about this injury.  She was asked whether she needed to see a doctor but claimant indicated she was not hurt that bad.  She did not fill out an injury report.  She continued to have problems with her shoulder and saw a doctor for a cortisone injection on January 11, 2013.  An incident report was made on March 14, 2013 and claimant was diagnosed with a rotator cuff tear and later had surgery.

At hearing, claimant testified that she told her supervisor she had hurt her shoulder.  The supervisor testified that claimant told him her shoulder "hurts a little bit."  He was not sure claimant was relating her injury to work and did not ask whether she was injured while working.  The deputy concluded that since the claimant did not specifically indicate that the problem was work related, her claim failed.  Claimant filed a request for rehearing, indicating that the deputy had not determined claimant's discovery rule issue.  The deputy found the discovery rule didn't apply because claimant told her supervisor about the injury on the day it occurred.  On appeal, the commissioner affirmed, finding that claimant's hearing testimony was significantly different than her deposition testimony and finding claimant not credible and her supervisor credible.  The commissioner found that claimant should have recognized the nature, seriousness and probable compensable character of the injury on the day the injury occurred.  The district court affirmed.

The Court of Appeals indicates that section 85.23 protects the employer by insuring he is alerted to the possibility of a claim so that an investigation can be made.  The court noted that actual knowledge of the injury must include knowledge that the injury might be work connected.  The court concluded that there was substantial evidence to support the contention that the employer did not have actual knowledge of the injury.  The court does not discuss the employer's duty to investigate with respect to the actual knowledge claim.

On the discovery rule issue, the district court found that it was rational and logical for the claimant to know the nature and seriousness of the injury at the time it occurred, given the fact that she told the supervisor she was in pain.  The Court of Appeals concludes the the commissioner's application of the law to the facts was not irrational, illogical or wholly unjustifiable.

Judge Danilson dissented.  She indicated that claimant had told her supervisor that a box had fallen and she had hurt her shoulder.  Here, claimant had indicated that a box fell and was asked whether she needed to see a doctor.  She found the supervisor's response to the injury "to be much akin to Sgt. Schultz's well-known quote from the television series "Hogan's Heroes" - "I see nothing, I know nothing."  Judge Danilson would have found that claimant had provided proper notice.

Court of Appeals Affirms Denial of Alternate Medical Care

In Westling v. Hormel Foods Corporation, No. 16-0236 (Iowa App. Jan. 11, 2017), the Court of Appeals affirmed the decision of the deputy denying claimant treatment for his right knee.  The authorized provider had indicated that claimant wait until he had "more trouble" before considering revision of claimant's total knee replacement.  The deputy concluded that claimant failed to show the services provided by the doctor were unreasonable.

Claimant had originally seen Dr. Crane, but following one of his surgeries, he developed a DVT and opted to have knee replacement surgery with Dr. Wolbrink.   When he began to have further difficulties, he sought treatment with Dr. Alvine, but the employer instead approved care with Dr. Crane again.  Dr. Crane evaluated claimant's knee (claimant alleged this took only five minutes), concluded that a revision of the total knee surgery was not necessary and indicated that claimant should wait.  Claimant expressed dissatisfaction and requested care with Dr. Alvine.  This was denied and Dr. Crane's recommendations were reviewed by Dr. Albright at UIHC.  He agreed that a revision surgery was not indicated.

Claimant subsequently filed an application for alternate medical care.  The deputy concluded that claimant had not met his burden, the case went to the district and was remanded for further findings.  A remand decision was filed in February of 2015 and another decision was issued finding that claimant failed to meet his burden.  The district court affirmed the decision on substantial evidence grounds.

The court indicates that it appeared as though claimant was not alleging a legal challenge, but only a challenge based on substantial evidence.  Claimant argued that because Dr. Crane did not provide treatment, only an opinion that revision surgery was not necessary, the employer had not offered reasonable medical care.  The court disagreed that a diagnostic appointment could not be considered reasonable services under 85.27.  The court found that claimant did not produce evidence that the wait and see approach advocated by Dr. Crane was unreasonable.  The court concluded that substantial evidence supported the decision of the agency.

Sunday, January 8, 2017

Court of Appeals Decides Dispute Between Provider and Carrier Over Workers' Compensation Medical Payments

United Fire and Casualty v. Cedars Sinai Medical Center, No. 15-1769 (Iowa App.  Dec. 21, 2016) address an issue not commonly before the courts - the reasonable costs of medical care.  The hospital in this case charged more than $3 million in medical fees for treatment of an injured construction worker.  The insurer filed an action under section 85.27(3) arguing that the commissioner erred in selecting the medical-fee reviewer, refusing to allow United Fire to submit certain evidence and accepting certain filings from Cedars Sinai.  United Fire also alleges that Cedars Sinai did not have standing and that there was a accord and satisfaction.  Because United Fire failed to preserve error and cannot show the medical fee dispute process should be repeated, the commissioner's action and action of the district court is affirmed.

Following claimant's over 100 day stay in the hospital, the hospital, through a third party notified the agency of its intent to use the agency review process, as United Fire had only paid approximately $1 million of a bill that was over $5 million.  They named Dave Stamp as the person to perform the review.  United Fire responded by letter, indicated that the dispute was complicated and nominated Paul Thune as the reviewer, essentially arguing that Stamp couldn't be the reviewer because he was a claimant's attorney.

Penny Maxwell rejected Thune and informed the parties Stamp would perform the review.  Stamp indicated that the review might not resolve the dispute, but the commissioner directed him to move forward, before either party had filed a motion.   The commissioner indicated that if the process did not resolve the dispute, a contested case process could be used.

Stamp withdrew as reviewer and two more reviewers failed to complete the process.   A reviewer hired by Sequetor, who primarily did collection work, was hired.  United objected.  Deputy Christenson affirmed the reviewer and the reviewer indicated that an additional $2 million plus was owed.

The court agrees that United Fire did not preserve error that Penny Maxwell should not have been involved, because this had not been raised before the agency.  The court finds that the reviewer did not have a conflict of interest.  The court also finds that United Fire did not preserve error on the claim of procedural due process.  United Fire had argued that they should have been given the opportunity to provide legal arguments to the reviewer, but the court rejected this argument.  The court finds that this was not required since the review process is to address the necessity of services provided and the reasonableness of charges.  The court also finds that Sequetor had standing to use the administrative procedure under 876 IAC 10.3.  They finally concluded that accord and satisfaction did not prevent the hospital from seeking additional payment, in large part because there was no indication in the records that the hospital knew that the original $1 million check demonstrated an accord and satisfaction.

Tuesday, January 3, 2017

Supreme Court Affirms that Permanent Partial and Permanent Total Disability Benefits Can be Awarded Simultaneously

In a case litigated by Jamie Byrne of Neifert, Byrne & Ozga, the Court in JBS Swift and Co. v. Ochoa, No. 15-0840 (Iowa Dec. 30, 2016) affirmed that under the 2004 amendments to the workers' compensation statute, a claimant could receive a first award of permanent partial disability benefits and then, based on a new injury, receive a permanent total disability award and that these awards can run concurrently.  The Court affirmed the action of the Iowa Court of Appeals, which had held that the general assembly removed the barriers to collecting two streams of benefits at the same time, so long as there were two separate injuries and the second injury resulted in permanent total disability benefits.

Claimant suffered an initial hernia, which was found to be the cause of  70% industrial disability. She returned to work following this injury and subsequently developed neck and shoulder difficulties.  As a result of these problems, she left work and was subsequently terminated for absenteeism.  Both claims were heard in the same proceeding.  The deputy found that claimant had a permanent total disability as a result of the second injury.  He concluded, however, that the permanent partial award ended when the permanent total award began.  Claimant appealed and on appeal the commissioner concluded that although overlapping streams of benefits had not been allowed prior to 2004, pursuant to section 85.36(9)(c), this section had been eliminated by the legislature as a part of the passage of apportionment language in 2004.  The commissioner awarded two streams of benefits - 70% permanent partial disability and permanent total disability.

On judicial review, the district court affirmed, based on the theory that a permanent total disability award could not be apportioned under section 85.34(7) of the Code, which only allowed apportionment of injuries arising under section 85.34(2) and not injuries under section 85.34(3) (the permanent total disability section of the code).  This was consistent with the Supreme Court's earlier decision in Drake Univ. v. Davis, 769 N.W.2d 176, 185 (Iowa 2009).  The Court of Appeals upheld the commissioner's order as well.

The Court initially found that defendant had preserved error on their claim under section 85.34(3)(b), as the issue of whether there could be concurrent awards of benefits had been presented to the agency and the courts.

The Court noted that in Davis, the conclusion was reached that there is generally no apportionment of benefits unless a statute exists permitting such apportionment.  Since the changes to section 85.34(7) did not discuss apportionment of permanent total disabilities under 85.34(3), no such apportionment was permissible.   The Court saw no reason to revisit their earlier ruling.

The Court continued its analysis because defendant argued that section 85.34(3)(b) was a bar to concurrent partial and total disability awards.  Defendant argued that once an employee was permanently totally disabled they could no longer be permanently partially disabled.  Section 85.34(3) provides that no compensation for permanent total disability should be paid for an injury for which permanent partial disability is payable under 85.34(2).  The language of 85.34(3)(b) goes on to state that if compensation is paid for the same injury, producing a permanent total disability, any amounts are to be deducted from the PTD award.  Claimant argued that this section only applies if the "same injury" results first in a permanent partial award which later becomes a permanent total award.  The Court, after considerable discussion of the legislative history, finds that claimant's position was persuasive. The Court concluded that there was no reason, based on the legislative history and language of the statutes, to conclude that 85.34(3) was "ever designed to avoid overlapping benefits for separate injuries."

The Court noted that the situation of overlapping disabilities had been addressed by section 85.36(9)(c), but further noted that this section had been eliminated when the legislature added specific apportionment language in 2004 (section 85.34(7)). Since section 85.34(b)(3), on its face, did not prohibit claimant from drawing compensation for permanent partial and permanent total disability concurrently, so long as the benefit awards do not arise from the same injury, claimant was entitled to two streams of benefits.

The Court noted that although the legislature may not have intended the result reached in Ms. Ochoa's case, the job of the court was to follow what the legislature actually drafted and not what it might have wanted to draft.  Policy arguments, according to the Court, were best left to the legislature.  The decision of the Court seems to invite another legislative visit into the subject of apportionment of permanent total disability benefits.