Izudin Dubinovic v. Des Moines Public Schools ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1065
Filed June 5, 2019
IZUDIN DUBINOVIC,
Plaintiff-Appellant,
vs.
DES MOINES PUBLIC SCHOOLS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
An employee appeals the district court ruling affirming the final agency
action of the workers’ compensation commissioner denying his claim for penalty
benefits. AFFIRMED.
Mark S. Soldat of Soldat & Parrish-Sams, PLC, West Des Moines, for
appellant.
Anne L. Clark (until withdrawal) and Lara Q. Plaisance of Hopkins &
Huebner, P.C., Des Moines, for appellee.
Considered by Vogel, C.J., and Potterfield and Doyle, JJ. Tabor, J., takes
no part.
2
POTTERFIELD, Judge.
Izudin Dubinovic appeals the district court judicial review decision affirming
the final agency action of the workers’ compensation commissioner denying his
claim for penalty benefits. Dubinovic contends the commissioner and the district
court erred in declining to award penalty benefits for an alleged delay of healing
period benefits and permanency benefits. Upon our review, we affirm.
I. Background Facts and Proceedings.
Dubinovic worked for the Des Moines Public Schools (DMPS) as a
custodian. His weekly earnings were $443.15. Dubinovic sustained an on-the-job
injury to his right wrist on December 20, 2012. The parties stipulated the injury
arose out of and in the course of Dubinovic’s employment. Dr. Barron Bremner
treated Dubinovic and released him to work with no restrictions on March 7, 2013.
Dr. Bremner continued to treat Dubinovic and recommended he participate in
physical therapy.
The parties stipulated that Dubinovic was owed temporary total disability
(TTD) benefits1 from December 21 through March 8. And the parties agree DMPS
made the following payments to Dubinovic:
Period Payment
December 14 – December 28 $1376 (wages)
December 29 – January 11 $1359.20 (wages)
January 11 – January 25 $1078.40 (wages)
January 29, 2013 $2039.12 (four weeks TTD)
January 31, 2013 $446.10 (one week TTD)
1
These benefits are alternatively referred to throughout the record as healing period
benefits. See Pitzer v. Rowley Interstate, 507 N.W.2d 389, 391 n.1 (Iowa 1993) (“Healing
period compensation is a description given to temporary workers’ compensation weekly
benefits that precede an allowance of permanent partial disability benefits. Ordinarily, the
determination of what label to place on temporary benefits must await the determination
of whether some degree of permanent disability has been sustained by the claimant.”
(citation omitted)).
3
February 20, 2013 $446.10 (one week TTD)
February 25, 2013 $446.10 (one week TTD)
March 5, 2013 $446.10 (one week TTD)
March 12, 2013 $446.10 (one week TTD)
On July 2, 2013, DMPS made a voluntary 2% permanent partial disability
(PPD) payment to Dubinovic. On November 5, 2013, Dr. Bremner concluded
Dubinovic was at maximum medical improvement. On January 30, 2014, Dr.
Bremner assigned a 2% right upper extremity impairment rating. In January 2015,
Dr. Mark Taylor performed an independent medical examination and assigned
Dubinovic an 8% permanent impairment to his upper right extremity.
Dubinovic filed a workers’ compensation petition, seeking benefits for the
December 2012 injury to his wrist.2 The issues raised concerned the extent of
disability resulting from the injury and Dubinovic’s entitlement to penalty benefits.
Following a hearing, the deputy commissioner issued an arbitration decision
ordering DMPS pay Dubinovic “healing period benefits” of $443.15 per week from
December 21, 2012, to March 9, 2013, and permanent impairment benefits in the
amount of 8% of the upper right extremity. The deputy commissioner denied
Dubinovic’s request for penalty benefits, noting Dubinovic’s “medical records
show[ed] a discrepancy between [his] reports of no pain to his treating doctors,
and his report of constant pain to the examining doctor.” The deputy found DMPS
paid TTD benefits and PPD benefits in a timely manner and DMPS acted
reasonably in paying the lower rating of impairment “because of the inconsistent
2
Dubinovic’s appeal in Dubinovic v. Des Moines Public Schools, No. 18-0194, 2019 WL
2152896 (Iowa Ct. App. May 15, 2019) was based on the same petition. The agency
consolidated the two claims, but they were addressed by the district court in separate
rulings on judicial review. Dubinovic appealed both of the court’s judicial-review rulings.
4
reports of pain made by claimant, which did make the obligation to pay the higher
amount fairly debatable.”
Dubinovic filed a motion for rehearing, which the deputy denied. On intra-
agency appeal, the commissioner adopted the deputy’s decision. Dubinovic
sought judicial review. The district court affirmed the commissioner’s decision.
The district court denied Dubinovic’s motion to reconsider, enlarge, and/or amend.
Dubinovic appeals, contending the commissioner erred in declining to
award penalty benefits for an alleged delay of healing period benefits and
permanency benefits.
II. Standard of Review.
The issue raised on appeal involves the application of law to fact. See Iowa
Code § 17A.19(10)(m) (2017); Dunlap v. Action Warehouse, 824 N.W.2d 545, 557
(Iowa Ct. App. 2012). “[T]he commissioner’s application of law to the facts as
found by the commissioner will not be reversed unless it is ‘irrational, illogical, or
wholly unjustifiable.’” Dunlap, 824 N.W.2d at 557 (quoting Neal v. Annett Holdings,
Inc., 814 N.W.2d 512, 518 (Iowa 2012)). To the extent the court finds it necessary
to consider the commissioner’s fact findings, review is for substantial evidence.
See Iowa Code § 17A.19(10)(f).
III. Discussion.
The commissioner declined to award any penalty benefits because TTD
benefits and PPD benefits were paid “in a timely manner” and it was not
unreasonable to withhold paying a higher impairment rating than that provided by
Dubinovic’s treating physician, Dr. Bremner. Iowa Code section 86.13(4)(a) states:
5
If a denial, a delay in payment, or a termination of benefits
occurs without reasonable or probable cause or excuse known to the
employer or insurance carrier at the time of the denial, delay in
payment, or termination of benefits, the workers’ compensation
commissioner shall award benefits in addition to those benefits
payable under this chapter, or chapter 85, 85A, or 85B, up to fifty
percent of the amount of benefits that were denied, delayed, or
terminated without reasonable or probable cause or excuse.
The commissioner shall award penalty benefits if two factors are met:
“(1) The employee has demonstrated a denial, delay in payment, or termination of
benefits” and “(2) The employer has failed to prove a reasonable or probable cause
or excuse for the denial, delay in payment, or termination of benefits.” Iowa Code
§ 86.13(4)(b).
Dubinovic’s claim can be disposed of on the first factor because he has not
shown a delay in payment or a denial of benefits. See Wegner v. Hormel Foods
Corp., No. 14-0300, 2015 WL 799774, at *3 (Iowa Ct. App. Feb. 25, 2015) (“The
first prerequisite to imposition of a penalty is a showing of a delay in payment or a
denial of benefits.”).
With regard to TTD penalty benefits, the parties agree the healing period
was from December 21, 2012, through March 8, 2013. Dubinovic acknowledges
DMPS made the wage payments and TTD payments to him, but he claims the
payments were several days late. DMPS responds, “[T]here was no initial delay
in payment as Dubinovic asserted because he was still being paid by the school
district and, further, any minor delay in payment of healing period was sufficiently
cured by an overpayment of the weekly rate.” Dubinovic was paid by DMPS until
January 25, and he received TTD benefits payments between January 29 and
6
March 12 for amounts higher than his weekly earnings. 3 The commissioner’s
decision to deny Dubinovic’s request for TTD penalty benefits was not irrational,
illogical, or wholly unjustifiable.
With regard to PPD penalty benefits, Dr. Bremner determined Dubinovic
was at maximum medical improvement in November 2013 and assigned no
permanent restrictions to Dubinovic. Meanwhile, in July 2013, DMPS paid a
voluntary 2% permanent impairment rating to Dubinovic. Dubinovic cannot show
a delay or denial by DMPS in paying PPD benefits where a payment was made
before he was declared to be at maximum medical improvement by his treating
physician. See Iowa Code § 86.13(4)(a) (noting a penalty shall be imposed “[i]f a
denial, a delay in payment, or a termination of benefits occurs without reasonable
or probable cause or excuse known to the employer”); cf. Christensen v. Snap-On
Tools Corp., 554 N.W.2d 254, 261 (Iowa 1996) (“Here there was a two-month
delay between Dr. DeBartolo’s report and Snap–On’s receipt of a report from its
independent medical expert. We think this delay falls within a reasonable time for
the investigation of Christensen’s medical evidence that she suffered a
10$permanent impairment, particularly in light of the prior medical records
indicating she would recover from her injury.”); Davidson v. Bruce, 594 N.W.2d
833, 839 (Iowa Ct. App. 1999) (“In this case, Davidson returned to work full-time
in July of 1991 without restrictions and did not make a claim for permanent partial
disability benefits at that time. Despite this, he asserts that Wausau had an
affirmative duty to investigate whether he had a permanent impairment. We do
3
Dubinovic’s weekly earnings were $443.15; he was overpaid approximately $3 per week
for five weeks of TTD payments between January and March 2013.
7
not believe that Christensen nor any other case law supports the placement of
such a burden on the employer under these circumstances. We find that
assessment of a penalty is inappropriate until the employer has been informed that
an employee has reached maximum medical improvement and then delays in
seeking an impairment rating or commencing payment. We find that the
Commissioner’s award of penalty benefits beginning with the delay after Davidson
reached maximum medical improvement was appropriate.”). The commissioner’s
decision to deny Dubinovic’s request for PPD penalty benefits was not irrational,
illogical, or wholly unjustifiable.
We affirm the commissioner’s denial of Dubinovic’s claim for penalty
benefits.
AFFIRMED.