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, February 21, 2018

Court of Appeals Affirms 10% Industrial Award, Denial of Penalty Benefits

Claimant was awarded a 10% industrial disability and was denied penalty benefits.  On appeal, the court in Allen v. Tyson Fresh Meats, Inc., No. 17-0313 (Iowa App. Feb. 21, 2018)  affirms the decision of the agency.  The court notes that claimant did not plead entitlement to penalty benefits and the commissioner noted that under 876 IAC 4.2, the claimant was required to please entitlement to penalty benefits before such benefits may be awarded.  Claimant contends that the mention of this issue in an answer to interrogatories should be sufficient.

The court noted that whether they gave deference to the agency's interpretation of its rules or not, the district court was not in error in affirming the commissioner's interpretation. Thus, even under a less deferential standard of review, the agency's interpretation was not illogical, irrational or wholly unjustifiable.  Section 4.2 specifically provides that entitlement to penalty "shall be pled."  The court finds that this imposes a duty upon the claimant to plead penalty benefits. Since penalty was not pled, the commissioner appropriately refused to consider claimant's penalty claim.

On industrial disability, claimant alleged that this was irrational, illogical and wholly unjustifiable, as the ratings of impairment (12%) were higher than the 10% industrial award.  The court finds that although claimant was of relatively advanced age (61) and had a limited education, the 10% industrial loss finding was not irrational because claimant had no loss of job or earnings following the injury and had not missed any days as a result of the work injury.  The court notes that while this finding does not preclude claimant from an award of industrial disability, it cannot be overlooked in determining how much the injury affected his employability.   The 10% industrial award is affirmed by the court.

Tuesday, February 13, 2018

Court of Appeals Affirms Commissioner Decision Rejecting Expert Opinion

In Orris v. College Community School District, No. 17-0742 (Iowa App. Jan. 10, 2018). the Court of Appeals addressed an issue where claimant alleged that the commissioner erred in rejecting the unrebutted  opinion of claimant's expert.  Claimant had filed a review reopening petition, alleging that her fibromyalgia condition had worsened and that she was entitled to more than the 30% industrial disability she had originally been awarded. 

Although the deputy concluded that claimant's condition had worsened, she found that the worsening of the condition was not causally related to her original work injury.  No increase in benefits was awarded.  The district court affirmed this finding.  At hearing, Dr. Bansal had concluded that claimant's fibromyalgia had followed a logical medical progression, related to her original work injury.  Dr. Bagheri, claimant's original treating physician, noted that fibromyalgia is lifelong, but does not get worse and remains stable or gets better over the long term. 

Although Dr. Bansal had evaluated Ms. Orris twice and more recently than Dr. Bagheri,, the deputy concluded that Dr. Bagheri's position was stronger.  The deputy noted that claimant had a number of other stressors aside fromthe work injury, including her sister's terminal cancer diagnosis, her husband's cancer diagnosis, her nephew's illness and her own diagnosis of psoriatic arthritis. The deputy found the opinion of Dr. Bagheri more convincing. 

Claimant argued that Dr. Bagheri's opinion was a non-opinion and that Dr. Bansal's opinion should prevail.  Ultimately, the court concludes that the decision of the agency was supported by substantial evidence. 

Court of Appeals Issues Decision on Exclusion of Evidentiary Items

In Hyten v. HNI Corporation, No. 16-1454 (Iowa App. Jan. 10, 2018), the Court of Appeals addressed the exclusion of evidence concerning the delay in receipt of workers' compensation benefits, the safety of plaintiff's work assignment and the company's waiver of notice defense.  The court affirms the exclusion of evidence on all accounts.

Plaintiff suffered a carpal tunnel injury.  Partially as a result of that injury, claimant had unexcused absences which ultimately led to her dismissal from employment.  Claimant filed suit against the employer, alleging she had been terminated in violation of public policy for seeking workers' compensation benefits.  After trial, the jury returned a verdict in favor of the employer.

Plaintiff alleged on appeal that the court erred in excluding evidence.  The court notes that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.  A great deal of leeway if provided the trial court in making this judgment call.  The court found that plaintiff failed to demonstrate that her substantial rights were affected by the exclusion of any evidence.  The court goes on to conclude that the evidentiary issues were a "mere subterfuge" and that the defect in the case was the lack of any evidence casting doubt on the employer's legitimate reason for the termination of employment.  The judgment of the district court was affirmed.

Monday, February 12, 2018

Court of Appeals Decides Case on Notice, Hearing Loss

In Ruiz v. Revstone Casting Industries, LLC, No. 16-1728 (Iowa App. Dec. 6, 2017), the court affirmed the decision of the agency that claimant had not provided sufficient notice of his hearing loss, back and hand  claims and affirmed the district court's order remanding claimant's back injury claim to the commissioner.

Claimant worked for the employer as a grinder for 25 years. He began to feel he had a right to "something" from his injuries after he was prescribed hearing aids.  Claimant noted that he had made doctors' appointments on his own for his hands.  Claimant ultimately retired from Revstone in 2011 because of the pain in his foot, hands and back in addition to his hearing loss. 

With respect to the carpal tunnel claim, the commissioner failed to specify a date of injury for the claim.  The court indicates that the carpal tunnel claim was a cumulative injury requiring application of the standard under Oscar Meyer Foods Corp. v. Tasler which indicates that an injury manifests when claimant is aware of the fact of the injury and its causal relationship to claimant's employment.  The court concluded that the injury occurred on September 30, 2011, which was claimant's last date of employment..  Claimant argued that under the discovery rule, claimant did not appreciate the seriousness of the injury until after this date, but the court concludes that claimant appreciated the nature, seriousness and probable compensable character of the injury before September 30, 2011.   Because claimant did not notify the employer about the injury until December of 2012, this injury was found to be untimely under section 85.23. 

The agency found that claimant had not suffered from occupational hearing loss.  The decision indicates that claimant did not implicate the table presented in section 85B.5 of the Code, but argued that he had provided expert testimony to demonstrate causation.  Defendants argued that claimant had not demonstrated that levels of noise at work were sufficient to produce hearing loss.  Ultimately, the court concluded that substantial evidence supported the conclusion that claimant had not demonstrated a work related hearing loss.  Claimant apparently did not use an expert to demonstrate his hearing loss.

Claimant's back claim was remanded to the agency for a failure to consider the opinion of one expert.  Defendants appeal from this ruling  by the district court and the court of appeals affirms, finding that there was nothing in the decision that indicated that the commissioner had considered the opinions of claimant's treating physician with respect to his back claim.  The court finds that although the commissioner may accept or reject evidence, he may not fail to consider it, citing Schutjer v. Algona Manor Care.   The back claim was remanded to the agency. 

Court of Appeals Decides Case on Prosthetic Devices, Permanent Total Disability, Rate

Following a significant accident in which claimant injured his hand, shoulder and neck when a sealing clamp of a machine closed on his hand, Allen Conell sought payment for an active and passive prosthetic device.  The commissioner denied the passive prosthetic hand, but the Court of Appeals, following the decision of the district court, reversed the decision of the agency.  Nestle USA v. Conell, No. 17-0267 (Iowa App. Feb. 7, 2018).

Claimant had originally been awarded a passive prosthetic hand following the injury, but the commissioner reversed this award finding that providing the passive prosthetic hand in addition to an active prosthetic hand violated the language of section 85.27(1), which only requires that "one set of permanent prosthetic devices" be provided. The commissioner held that claimant was only entitled to one prosthetic device per entitlement and that having an active and passive device violated this requirement.  The district court reversed, finding that the passive hand was an extension of Conell's prosthetic, thus rendering this a single device.  The Court of Appeal affirmed, noting that the passive prosthetic hand was merely an extension of the mechanical hand, citing Quaker Oats v. Ciha (home modifications are extension of wheelchair) and Manpower Temp. Servs. v. Sioson (van is extension of wheelchair).   The court found that the mechanical prosthetic hand was a reasonable and necessary device but only for a fraction of the day.  The court affirmed the district court's award of the passive prosthetic. 

The employer raised issues about causation for the neck injury, permanency for mental health issues and claimant's award of permanent total disability benefits.  All of these issues were decided on the basis of substantial evidence.

The final issue before the court was a rate issue.  Claimant had routinely worked more than 40 hours in each week preceding the injury.  Claimant sough to eliminate two 44 hour weeks from the rate calculation.  In rejecting this argument, the court concluded that the commissioner's finding that all of the weeks should be included was not illogical, irrational or whole unjustifiable.