MIKE RUBY, Claimant
v.
GANNETT PUBLISHING SERVICES, d/b/a DES MOINES REGISTER, Employer,
and
NEW HAMPSHIRE INSURANCE COMPANY, Insurance Carrier, Defendants.
No. 5058620
Iowa Workers Compensation
Before the Iowa Workers' Compensation Commissioner
February 11, 2020
Head
Note Nos: 1801; 2500; 3000; 4000
APPEAL DECISION
JOSEPH
S. CORTESE II WORKERS' COMPENSATION COMMISSIONER.
Defendants
Gannett Publishing Services, d/b/a Des Moines Register,
employer, and its insurer, New Hampshire Insurance Company,
appeal from an arbitration decision filed on October 17,
2018, and from a ruling on limited application for rehearing
filed on November 15, 2018. Claimant Mike Ruby responds to
the appeal. The case was heard on April 25, 2018, and it was
considered fully submitted in front of the deputy
workers' compensation commissioner on June 4, 2018.
In the
arbitration decision, the deputy commissioner found
claimant's ongoing back pain was causally related to his
stipulated work-related injury which occurred on November 23,
2015. The deputy commissioner found claimant had not yet
reached maximum medical improvement (MMI) at the time of the
hearing and was entitled to a running award of temporary
benefits. The deputy commissioner found claimant's weekly
benefit rate to be $441.28. The deputy commissioner found
claimant was entitled to penalty benefits for defendants'
incorrect rate calculation. The deputy commissioner found
claimant failed to carry his burden of proof concerning
reimbursement/payment for his claimed medical expenses.
In the
ruling on limited application for rehearing, the deputy
commissioner found there was sufficient evidence to causally
connect several of claimant's claimed medical expenses to
the medical records contained in the parties' joint
exhibits. As a result, the deputy commissioner awarded
claimant $20,209.38 in medical expenses.
On
appeal, defendants assert the deputy commissioner erred by
ignoring the credibility issue and failing to conclude
claimant was not a credible witness. Defendants additionally
assert the deputy commissioner erred in concluding
claimant's ongoing low back complaints were causally
related to the 2015 work incident. If found to be
compensable, defendants argue the deputy commissioner erred
in awarding a running award of temporary benefits and medical
expenses. Lastly, defendants assert the deputy commissioner
erred in awarding penalty benefits.
Those
portions of the proposed agency decision pertaining to issues
not raised on appeal are adopted as a part of this appeal
decision.
I
performed a de novo review of the evidentiary record and the
detailed arguments of the parties. Pursuant to Iowa Code
sections 17A.5 and 86.24, those portions of the proposed
arbitration decision filed on October 17, 2018, as modified
by the ruling on limited application for rehearing filed on
November 15, 2018, that relate to the issues properly raised
on intra-agency appeal are affirmed in part and reversed in
part.
Turning
first to the issue of credibility, defendants raise several
"inconsistencies" in the record that defendants
argue amount to "serious credibility issues" for
claimant. (Defendants' Appeal Brief, pp. 17-19) I find
these inconsistences are examples of claimant either
misunderstanding or forgetting - not lying, as defendants
suggest - or are examples of defendants attempting to
exaggerate the impact of minor discrepancies.
For
example, defendants assert claimant denied ever being written
up before eventually conceding he had. However, when asked by
defendants' counsel, whether he ever had "any prior
either disciplinary-type issues or problems," claimant
was immediately forthcoming that he was once sent home for an
alcohol-related incident. (Hearing Transcript, p. 45)
Claimant was also asked about whether he had been written up
for temper or refusing to do a job. He initially responded,
"I don't believe so," but when confronted with
a specific incident from October of 2013 - nearly five years
before the hearing - he acknowledged he remembered, though he
could "not really" recall what it was about. (Tr.,
pp. 46, 49-50) I find this was an instance of claimant simply
not remembering. Defendants also assert claimant gave
contradictory testimony regarding conflicts with his
supervisor in his deposition and at the hearing. I do not
find this to be the case, however. In his deposition,
claimant acknowledged he had "difficulties"...
