BEFORE THE IOWA WORKERS’ COMPENSATION COMMISSIONER
______________________________________________________________________
:
JAMES HOBART,
:
:
Claimant,
:
:
vs.
:
:
File No. 5032561
B.G. BRECKE, INC.,
:
:
APPEAL
Employer,
:
:
DECISION
and
:
:
ZURICH AMERICAN INSURANCE
:
COMPANY,
:
:
Insurance Carrier,
:
Defendants.
:
Head Note Nos.: 1100, 1702,
1802, 1803, 1806, 3001, 4000.2
______________________________________________________________________
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:
Defendants assert that the general denial of arising out of the course of
employment in their answer to claimant's petition shielded them from the award of any
penalty benefits. Iowa Code section 86.13 (4) (b) requires an award of additional
benefits when the employee demonstrates a denial of benefits and the employer fails to
provide reasonable or probable cause or excuse for that denial.
Iowa Code section 86.13 (4) (c) sets forth three criteria that must be satisfied for
an excuse from commencement or continuation of benefits to be considered
reasonable. First, the excuse must be perceived by a reasonable investigation and
evaluation of whether benefits are owed. Defendants offered no evidence of having
done so prior to their answer or otherwise. Second, the investigation and evaluation
HOBART V. B.G. BRECKE, INC.
Page 2
must have been the actual basis for the denial of benefits. Where an investigation and
evaluation have not been made, such cannot be the actual basis for denial.
The third criterion is that the basis for the denial must be contemporaneously
conveyed to the employee at the time of the denial. The general denial of whether the
injury arose out of and in the course of the employment in the answer does not do that.
That general denial is couched in the language of legal conclusion. It provides claimant
with no specific facts from which claimant could derive an actual understanding of why
the claim of a work injury was denied.
An employee with an actual understanding of why an employer has denied a
claim for benefits may be able to provide the employer with additional or corrected
information that supports the employee’s claim for benefits. Contemporaneous dialogue
between the parties about the facts underlying the claim assures that both parties have
all relevant information about the claimed injury in its immediate aftermath. That, in
turn, both assures that legitimately claimed benefits are timely paid and promotes early
resolution of disputed claims.
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. This
appellate reviewer’s ability to find 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.
Additionally, in this case, claimant has given a consistent history of the work
incident. He acknowledged having not expressly informed the employer representatives
of the incident prior to or at his termination and acknowledged having had a pre-existing
low back injury. That a worker with previous back problems would self-treat for pain for
an interval after an incident before realizing the incident had produced more than a
temporary flare up of their baseline problem is not so unreasonable as to be incredible.
Additionally, the record evidence suggests claimant pursued little medical treatment for
his low back between the 2005 settlement and the 2010 injury. The record evidence
also demonstrates that the 2010 MRI revealed more serious findings at L5/S1 than were
visualized on the 2005 MRI, namely, a disc bulge in 2005, and an actual disc protrusion
in 2010.
Defendants shall pay the costs of the appeal, including the preparation of the
hearing transcript.
Signed and filed this 4th day of April, 2013.
HELENJEAN M. WALLESER
DEPUTY WORKERS’
COMPENSATION COMMISSIONER
HOBART V. B.G. BRECKE, INC.
Page 3
Copies To:
Matthew J. Petrezelka
Attorney at Law
1000 42nd St SE, Suite A
Cedar Rapids, IA 52403-3902
mpetrzelka@petrzelkabreitbach.com
Sasha L. Monthei
Attorney at Law
PO Box 36
Cedar Rapids, IA 52405-0036
smonthei@scheldruplaw.com
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