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, January 8, 2018

2018 Workers' Compensation Synopses

2018 Workers' Compensation Appeal Decisions


February 2018


Arreola v. Bodeans Baking Group Holding, LLC, No. 5040956, 5040974 (App. Feb. 15,6, 2018) - Claimant was awarded permanent total disability against the employer due to shoulder injuries.  Two injuries were involved and two insurance companies were involved. The PTD benefits were awarded against the employer and Indiana insurance company (the insurance company on the second claim)  as a part of the consolidated hearings.  The second decision was ultimately appealed and upheld through the district court. Claimant subsequently filed for full commutation against the employer and Indiana Insurance Company.  Farmington, the first insurance cmpany, filed for reimbursement under seciotn 85.21.  The deputy dismissed Farmington's petition, finding that this should have been raised as a part of the initial proceedings.  Claimant settled the full commutation petition with Indiana.  On appeal the case was delegated to Deputy Fitch, The decision of the hearing deputy on the contribution issue was affirmed. Deputy Fitch notes that rule 876 IAC 3.1(11) requires the paying party to file "an application and consent order" form before seeking reimbursement from another carrier, which had not been done.  Because the issue of reimbursement was not raised at the initial hearing, Farminigton had no right to seek reimbursement.  

Salazar v. Kinder Morgan, Inc., No. 5049390 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits following hearing (Pals).  Defendants appeal and on appeal the commissioner's desinee (Palmer) affirms the permanent total award. 22 months from arbitration to appeal decision.


Jones v. Raining Rose, Inc., No. 5048297 (App. Feb. 13, 2018) - Claimant was awarded permanent total disability benefits and penalty benefits following hearing (Heitland).  On appeal, the commissioner's designee (Christenson), reverses and provides a take nothing order for claimant.  The bulk of the order is a discussion of Dr. Hines IME versus Dr. Kuhnlein's DME, in which Kuhnlein comes out ahead.  The deputy calls out Dr. Hines finding that claimant suffered headaches, neck pain and a mental health condition from two days without an ergonomic chair.  He rejects other causation opinions because he finds that these opinions only corroborated that claimant reported symptoms after not having her ergonomic chair for two days.  Although the appeal indicates that considerable deference was given to the credibility findings, that really doesn't appear to be the case, as the appeal decision notes that there were several inconsistencies between the medical records and claimant's testimony at the hearing and at deposition.  Claimant was found not entitled to payment for Dr. Hines' IME since claimant did not prevail.  25 months from arbitration to appeal decision.


Postell v. The Weitz Group, No. 5050086 (App. Feb. 12, 2018) - Following hearing, claimant was found to be eligible for 200 weeks of permanency benefits for an injury to his left shoulder.  The arbitration decision also awarded $12,000 in penalties (Walsh).  The commissioner's designee (MdGovern) affirms the arbitration decision without additional comment.  22 months from arbitration to appeal decision.


Hoover v. Jacobson Transportation, No. 5052323 (App. Feb. 12, 2018) - Claimant was found to have sustained a 30% industrial disaiblity as a result of neck, back and right knee injuries.  A mental injury claim was rejected following hearing.  Defendants appeal.  The commissioner affirms without additional analysis.  

Staub v. Thombert, Inc., Nos. 5049959, 5049960 (App. Feb. 2, 2018) - Claimant was awarded a 60% industrial disability following hearing (Gerrish-Lampe).   Dr. Kuhnlein's IME charges of $886,37 were awarded as costs. The commissioner affirms without additional analysis.  19 months from arbitration to appeal decision.


McDonald v. Sedona Staffing, No. 5041080 (App. Feb. 2, 2018) - Claimant was found to be entitled to an industrial disability benefit of 40%. (Fitch).   Defendants appeal.  On appeal, the commissioner's designee (McGovern) affirms the decision in its entirety, without additional analysis. 22 months from arbitration to appeal decision.  

Beyer v. John Deere Dubuque Works, No. 5051906 (App. Feb. 1, 2018) - Claimant was found entitled to a 25% industrial disability (Gerrish-Lampe).    Both parties appeal.  Without comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

January 2018


Sweeney v. John Deere Davenport Works. No. 5050662 (App. Jan. 31, 2018) - The deputy concluded that claimant had not demonstrated that her injuries to her right wrist resulted in permanent impairment (Fitch).   Defendant was ordered to pay costs.  On appeal, the commissioner affirms the decision finding there was no permanent impairment and reverses the order on costs since claimant failed to prevail on any issues in the arbitration proceeding.  21 months from arbitration to appeal decision.

Freemon v. Annett Holdings, Inc., No. 5047798 (App. Jan. 31, 2018) - Deputy concluded that claimant had established a 20% industrial disability as well as healing period benefits (Fitch).  Defendants appeal.  The commissioner affirms the decision.  The commissioner addressed an issue of light duty work in the decision.  Claimant lived in Mississippi and was asked by the employer to come back to Iowa to perform light duty work.  Claimant refused for personal reasons.  Benefits were suspended.  The commissioner, citing Annett Holdings v. Roland, 881 N.W.2d 470 (Iowa App. 2016), finds that the memorandum of understanding about light duty work violates section 85.18 of the Code.  The commissioner finds that claimant was not offered suitable work and affirms the healing period award.  21 months from arbitration to appeal decision.

Stevens v. Eaton Corp., No. 5049606 (app. Jan. 26, 2018) - Claimant was found to have sustained an injury to his right arm and was awarded healing period and 10% permanency (McElderry).  Defendants were found eligible for credit for short and long term disability paid to claimant. Defendants appeal.  On appeal defendants argue that the credit for LTD should be larger, but the commissioner indicates "it is not possible to understand [defendants'] analysis" he affrims the deputy's award.  The remainder of the decision is affirmed without comment.  21 months from arbitration to appeal decision.

Hecht v. Highline Construction, No. 5052175 (App. Jan. 25, 2018) - In this case, the deputy concluded that claimant had met his burden of demonstrating hearing loss and tinnitus and awarded claimant 30% industrial disability (Walshire).  Penalty benefits were also awarded as were the costs for Dr. Bansal's IME. Following the hearing, defendants submitted an application to submit further evidence.   Although claimant argued this was not timely filed, the additional evidence, which went to claimant's credibility, was allowed (claimant appealed from this ruling).

On appeal, the commissioner allows the newly admitted evidence and finds that this evidence established that claimant was not credible.  The permanency award is reversed, as is the penalty award.  Claimant's injury occurred when an airbrake system exploded approximately six inches from his right ear.  Testing did not reveal damage to claimant's ear structure, but an audiogram showed worsening hearing following the accident. Dr. Hansen at UIHC noted inconsistencies in audiograms. Dr. Hansen found that auditory brainstem responses and otoacoutic emissions were performed and demonstrated normal hearing.  Hansen found no hearing loss and no tinnitus.

Dr. Tyler found a 4% hearing loss and a 22% loss for tinnitus. Dr. McMains, who had provided a 10% rating for hearing loss, changed his opinion and found no hearing loss.  Dr. Bansal found that claimant had a 17% hearing loss and agreed with Tyler on the 22% loss for tinnitus.

The evidence presented after the hearing related to a job claimant had after he left Highline.  The documents indicated that claimant had been fired from that later job.

On appeal, the commissioner finds the opinions of Dr. Hansen and McMains more credible than Tyler and Bansal, finding that they had conducted no testing and that the audiograms they relied on were subjective and not consistent.  The tinnitus question was answered unfavorably to claimant because he was found not to be credible and since tinnitus is subjective and depends on claimant's credibility, there was nothing to support claimant's position.  Accordingly, the industrial disability award was reversed. The penalty award was also reversed, as was the award of costs against defendant. 19 months from arbitration decision to appeal decision.

Anderson v. Nichols Aluminum, No. 5047598 (App. Jan. 23, 2018) - Claimant alleged bilateral simultaneous injuries to the hands and was found to be entitled to 25 weeks of permanency following hearing (McElderry).  Claimant was also found to be entitled to $750 of Dr. Hines' IME fee.   Defendants appealed.  On appeal, the commissioner's designee (Christenson) reversed and found that claimant had not established that his bilateral carpal tunnel syndrome arose of out employment.  He credited the reports of the physical therapist and Dr. Frederick over Dr. Hines.  Claimant was found not entitled to payment for any of Dr. Hines' IME costs.  26 months from arbitration to appeal decision.

Drake v. Cedar Rapids Community School District, No. 5051095 (App. Jan. 18, 2018) - Claimant was found to have sustained a 90% industrial loss at hearing (Gerrish-Lampe).  Both parties appeal.  The commissioner affirms without additional analysis.  He concludes that although claimant could recover the costs of Kent Jayne's vocational report, she was not entitled to the cost of the vocational assessment (which was the bulk of the costs).  21 months from arbitration to appeal decision.

Ortiz v. JBS USA LLC,  No. 5049541 (App. Jan. 12, 2018) - Claimant was found to have suffered a permanent total disability following the arbitration hearing (Palmer).  Payment for claimant's IME was ordered but payment for an FCE was denied.  On appeal, the commissioner affirms, without additional analysis.  19 months from arbitration to appeal decision.

Escher v. Mercy Hospital Iowa City, Inc. and Second Injury Fund, No. 5051740 (App. Jan. 11, 2018) - At the arbitration hearing, the deputy (Christenson) found that claimant demonstrated that her left knee injury arose out of her work and awarded 110 weeks of benefits.  Claimant also had an earlier injury to her other knee.  She was found to have a 60% industrial disability, but the Fund was only required to pay an additional 80 weeks of benefits because of the credits (50% for each leg).  On appeal . . . . .    19 months from arbitration to appeal decision.

Cerda v. PAE, No. 5048854 (App. Jan. 10, 2018) - Claimant was found to have sustained a 10% industrial loss following hearing (Christenson).   Alternate care was denied and payment for an FCE and for the costs of the deposition transcript were also denied.  Without further analysis, the commissioner affirms the decision of the deputy.  21 months from arbitration to appeal decision.


Grandstaff v. Direct TV Home Services, Inc., No. 5051420, 5051421 (App. Jan. 10, 2018) - The underlying arbitration decision found that claimant was credible and entitled to permanency benefits (Christenson).  The commissioner's designee (Pals) gave deference to the underlying factual findings.  The appeal decision finds that defendants are entitled to credit for 35 weeks of permanency on an earlier claim, but the arbitration decision found that only 25 weeks were appropriate.  On appeal, defendants are given credit for the 35 weeks previously paid.  But on the current claim, credits were reduced from 43 to 31 weeks because a later date of the end of healing period was found at hearing. The appeal decision also finds that only the costs of preparing vocational report are taxable, not the costs of the examination, thereby reducing the amount reimbursed to claimant. 22 months from arbitration to appeal decision.

Sullivan v. West Central Cooperative, No. 5050594 (App. Jan. 10, 2018) - The commissioner's designee (Fitch) affirms the underlying decision of the deputy (McGovern), which had awarded 300 weeks of benefits.  There is a question of the credits due and the appeal decision affirms the credits found by the hearing deputy.  24 months from arbitration to appeal decision.

McAlister v. Jacobson Transportation Co., No. 5049509 (App. Jan. 5, 2018) - Claimant alleged a respiratory injury (occupational asthma) from inhalation of second hand smoke from driving trucks that had been used by smokers.  Based on the report of Dr. Gerr from Iowa City, claimant was found not to have suffered a work-related injury (Christenson).  Dr. Gerr had concluded that claimant's exposure was actually to third hand smoke, since claimant was not driving with another smoker, and he found this insufficient to support causation.  On appeal, the commissioner affirms.  19 months from arbitration to appeal decision.

Dautovic v. Concord Hospitality, Nos. 5028332, 5051676 (App. Jan. 4, 2018) - Claimant prevailed on review reopening and was found to be entitled to 450 weeks of benefits (Gerrish-Lampe). The employer had initially been found liable for 100 weeks of benefits.  The arbitration decision also found that claimant did not sustain his burden of demonstrating a new injury to the back and found that this injury was a continuation of the initial 2006 injury.  Without additional comment, the commissioner affirms the arbitration decision.  19 months from arbitration to appeal decision.

Bovy v. Second Injury Fund, No. 5042474 (App. Jan. 2, 2018) - Claimant was found to have sustained a permanent total disability based upon a first injury to the left leg and a second injury to the right arm (Gerrish-Lampe).  Without additional analysis, the commissioner affirms the decision of the deputy.  18 months from arbitration to appeal decision.