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.

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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. 

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