BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
___________________________________________________________________
:
DANNY HINEGARDNER,
:
:
File No. 5034476
Claimant,
:
:
APPEAL
vs.
:
:
DECISION
IMON COMMUNICATIONS,
:
:
Employer,
:
:
and
:
:
ACUITY,
:
:
Insurance Carrier,
: Head Note Nos.:1100; 1106; 1108; 1400;
Defendants.
:
1402; 1803
___________________________________________________________________
Upon written delegation of authority by the workers’ compensation commissioner
pursuant to Iowa Code section 86.3, I render this decision as a final agency decision on
behalf of the Iowa workers’ compensation commissioner.
The record, including the transcript of the hearing before the deputy and all
exhibits admitted into the record, has been reviewed de novo on appeal.
Pursuant to Iowa Code sections 86.24 and 17A.15 I affirm and adopt as final
agency action those portions of the proposed decision in this matter that relate to issues
properly raised on intra-agency appeal with the following additional analysis:
Claimant argues the presiding deputy ignored or did not give sufficient weight to
independent evaluating physician, Robin Epp, M.D., opining that the differences
between the lumbar MRI performed in 2000 and that performed in 2008 related to
claimant’s purported work incident of July 28, 2008. Dr. Epp provided no medical
rationale supporting that conclusion. In contrast, both Dr. Gordon and Dr. VanFleet fully
explained their reasons for not attributing differences on reports of the MRIs performed
eight years apart and interpreted by different radiologists to a particular incident.
Furthermore, Dr. VanFleet has expertise on lumbar spinal conditions that Dr. Epp
cannot claim.
Additionally, the hearing deputy’s findings were based in part on her assessment
of claimant’s credibility. Even on de novo review, considerable deference is due to
findings of fact that the express or implied credibility findings of the presiding deputy
impact. That deputy had the opportunity to evaluate the demeanor of the persons who
testified and was able to include witness demeanor when weighing credibility, even if
not expressly commenting on that demeanor. This appellate reviewer’s ability to find
HINEGARDNER V. IMON COMMUNICATIONS
Page 2
the true facts that are affected by witness demeanor and credibility cannot be expected
to be superior to that of the deputy who presided at the hearing.
Nevertheless, some of claimant's explanations for his behavior prior to July 28,
2008 defy common sense. Claimant reported that he was using no controlled
substance or prescription narcotics for pain immediately prior to July 28, 2008. He
stated he filled prescriptions for them on multiple occasions because he knew he would
need them when he moved to Reno, Nevada, to take employment involving job tasks
similar to those his Iowa's job required. Yet, he offered no explanation for being able to
perform job tasks in Iowa without taking medication when he believed that he could only
perform similar job tasks in Nevada by using significant quantities of narcotic
medication. An explanation is not otherwise discernible on the record made.
Pursuant to Iowa Code sections 86.24 and 17A.15 the undersigned affirms and
adopts as final agency action those portions of the ruling on motion for sanctions filed in
this matter on October 26, 2012 that relate to issues properly raised on intra-agency
appeal of that ruling.
Claimant shall pay all costs, including the preparation of the hearing transcript.
Signed and filed this 15th day of May, 2013.
HELENJEAN M. WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
Copies To:
David A. O’Brien
Attorney at Law
3519 Center Point Road N.E.
Cedar Rapids, IA 52402-5530
dobrien@willeylaw.com
Coreen K. Sweeney
Attorney at Law
700 Walnut Street, Suite 1600
Des Moines, IA 50309
cksweeney@nyemaster.com
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