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.

Monday, November 27, 2017

Court of Appeals Rejects Finding of Depression from Family Doctor, Finds that Admission of Late Report was not Prejudicial

In Bos v. Climate Engineers, No. 17-0159 (Iowa App. Nov. 22, 2017), the commissioner had concluded that claimant did not have a claim for depression following a shoulder injury and rejected the report of claimant's family physician that the depression was connected to the underlying injury.  The commissioner also allowed the admission of a vocational report from defendants even though the expert had not been named in a timely fashion and had not been produced until 18 days before hearing. 

The district court affirmed the commissioner's action with respect to the doctor's findings, but rejected the admission of the late vocational report and remanded to the agency for further opinion.

Both parties appealed to the Court of Appeals.  On the evidentiary issue, the court found that even though the opinion of the family doctor had been unrebutted, the commissioner was within his rights to reject that evidence.  The commissioner had found that it had been several months from the time of the injury until claimant reported his depression, that claimant was not receiving counseling or treatment for depression with the exception of medications and that the doctor's opinion that most people suffering from a disabling physical injury develop depression was not supported in the record.  The court finds that the determination of how much weight to give an opinion was generally within the peculiar province of the commissioner.  The court stated that even when evidence is uncontroverted, so long as valid reasons for rejecting the evidence are proferred, the rejection of the evidence is supported by substantial evidence. 

The court reversed the district court on the admission of the vocational report, even though that report was late.  The court found that rulings on a report's admissibility were within the discretion of the agency, and would be reversed only if there were an abuse of discretion.  The court also found that claimant was not unfairly surprised by the change in the identity of the expert.  Since the agency had offered claimant time to rebut the report, any prejudice from the late disclosure was eliminated.  Based on these conclusions, the court reversed the district court's decision and affirmed the decision of the agency.

Untimely reports have been a major source of conflict within the agency.  Despite the fact that the rules provide that reports are to be provided 30 or more days in advance of hearing, many reports are allowed despite violating that rule, and the violation of the rules seems to be the norm rather than the exception.  Decisions such as this will

Wednesday, November 8, 2017

Court of Appeals Issues Decision on Validity of District Court Nunc Pro Tunc Order

Reihe v. Midwest Viking, Inc., No. 17-0214 (Iowa App. Nov. 8, 2017), deals with the somewhat unusual situation where a district court remanded a matter to the workers' compensation commissioner for entry of an order nunc pro tunc correcting a compromise settlement agreement.  Claimant argues that the district court improperly considered extrinsic evidence and that reformation of the contract was barred by judicial estoppel.

The settlement proposal that was agreed to indicated that defendants would pay roughly $75,000 less deductions of payment made to date (2/23/15), which totaled $21,080.12.  The settlement documents indicated the settlement was roughly $75,000 less weekly payment made from 3/5/15 until settlement approval.  Defendants would have received considerably more in credits under the original agreement than under the terms of the settlement documents.  The settlement documents were approved and defendants sent a check to claimant in an amount equivalent to the original agreement ($51,35-.15).  Defendants filed a motion for a nunc pro tunc order correcting the typographical error and this was denied for lack of jurisdiction. 

Claimant filed a petition in the district court requesting that the unpaid portion of the award be paid.  He also requested attorney's fees.  Defendants filed a counterclaim for contract reformation.  Claimant agreed that the original agreement had started credits in June of 2014, but argued that when the written agreement was signed, this changed the terms of the settlement.  The district court found this was a drafting error and remanded to the commissioner for entry of a nunc pro tunc order.

On appeal, claimant argues the district court erred in considering extrinsic evidence, i.e. the original agreement between the parties.  Because the settlement documents were not ambiguous, according to claimant, the court should not consider extrinsic evidence.  The court notes that the cardinal rule of contract interpretation is to determine the intent of the parties when they entered into the contract.  The court further finds that admission of parol evidence is permissible in actions for reformation so long as the evidence is relevant and material.  Although normally a unilateral mistake is not grounds for reformation, the mistake of a scrivener does not require mutuality of mistake.  The court concludes that there was a mistake that did not reflect the true intention of the parties. 

Claimant also argues that he filed an action under section 86.42 and the district court's action was well outside the scope of an action under that section.  The court found that the district court had jurisdiction to reform the contract.  The court also rejected an argument based on judicial estoppel, because there was an error in the contract. 

The district court had remanded the claim to the commissioner, but the court of appeals remands to the district court to reform the settlement agreement, declare the settlement agreement to be null and void and directing the commissioner to follow the procedures for consideration of whether to approve  the reformed compromise settlement agreement.

This case serves as a cautionary tale for attorneys on both sides of the case to carefully peruse settlement documents before they are filed with the commissioner.

Court of Appeals Decides Case Involving Accommodated Work

In Norton v. Hy-Vee, No. 16-1299 (Iowa App. Nov. 8, 2017), claimant's back and neck injury resulted in a 25% loss in hours in her work as a pharmacy tech.  Despite the injuries, she continued to work and was described as a motivated and valuable employee both before and after the injury.  Claimant argued that she was permanently and totally disabled, inasmuch as she would not have been able to work absent the accommodations provided by Hy-Vee.  The employer argued that claimant did not have a significant industrial disability because she continued to work.  The deputy and commissioner found that claimant was entitled to a 70% industrial disability.  The commissioner found that the award of permanent disability was based on claimant's ability to continue as a pharmacy tech and her ability to find new employment should she leave Hy-Vee. The district court affirmed, finding that the agency had correctly interpreted decisions focusing on claimant's ability to earn in the competitive job market.

On appeal, claimant argued that the agency incorrectly made a downward adjustment of industrial disability based on Hy-Vee's accommodations of her work restrictions.  The court agreed with claimant that Gallardo did not be interpreted as the Supreme Court's approval of a downward adjustment to industrial disability based on an employer's accommodations of work restrictions.  Similarly, Overholser could not be interpreted to support such a downward adjustment.  The court indicated that industrial disability was to be based on the injured worker's earning capacity, without regard to accommodation.  The court agreed with claimant that an injured worker's performance of accommodated work, without more, cannot be used to reduce a worker's industrial disability rating.  But the performance of accommodated work could be considered in assessing industrial disability if the work is transferable to the competitive job market and discloses a discerned earning capacity.

Although the court agreed with claimant as to the state of the law regarding accommodated work, it concludes that the commissioner correctly interpreted that law.  The commissioner noted that claimant was a valuable member of the pharmacy team and had developed unique skills.  The commissioner also noted that claimant would probably find employment, even with her restrictions, should she leave Hy-Vee.  The court also indicates that a review reopening proceeding would be available to claimant in the future if there were a change in her condition or earning capacity in the future.  Claimant also points to the fact that her case has been cited by the commissioner for the proposition that a downward departure based on accommodated work is permissible.  The court finds that these cases are not before it and does not lead to the conclusion that the commissioner's interpretation was incorrect.  The decision of the agency was affirmed.

Judge Tabor dissented, indicating that the caselaw demonstrates that loss of earning capacity should be viewed in terms of the present ability of claimant to earn in the competitive job market without regard to accommodations.  Judge Table found that the commissioner had specifically considered claimant's accommodations in making its determination of a 70% industrial award.  The accommodation should not have been considered at all, even if her ability to find a job after Hy-Vee was considered.

Given the extended discussion of the issues by both the majority and dissent, and the commissioner's citation of Norton to justify downward reductions based on accommodations, it is quite likely that this case will wind up before the Supreme Court on further review.