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John Walter Podgorniak v. Asplundh Tree Expert Company and Lumbermen's Mutual Insurance Company

January 24, 2013

JOHN WALTER PODGORNIAK, PETITIONER-APPELLANT,
v.
ASPLUNDH TREE EXPERT COMPANY AND LUMBERMEN'S MUTUAL INSURANCE COMPANY, RESPONDENTS-APPELLEES.



Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

The opinion of the court was delivered by: Vaitheswaran, J.

An employee appeals the denial of penalty benefits in a review-reopening proceeding. AFFIRMED.

Heard by Eisenhauer, C.J., and Vogel and Vaitheswaran, JJ.

John Podgorniak appeals a decision of the workers' compensation commissioner on his claim for penalty benefits.

I. Background Facts and Proceedings

John Podgorniak injured his left shoulder, neck, and head while working for Asplundh Tree Expert Company. He filed workers' compensation petitions, which culminated in an order requiring the provision of alternate medical care*fn1 and the payment of "running healing period benefits."*fn2

Asplundh referred Podgorniak to certain physicians, who opined he had reached maximum medical improvement.*fn3 Based on these opinions, Asplundh terminated Podgorniak's healing period benefits.

Podgorniak filed a review-reopening petition raising several claims, including a request for "penalties" based on Asplundh's termination of healing period benefits. On the penalty question, a deputy workers' compensation commissioner determined that Asplundh and its insurer, Lumberman's Mutual Insurance Company, unreasonably delayed the payment of weekly benefits. The deputy awarded "[a] penalty of 50 percent of all healing period benefits claimant asserts were not timely paid."

On intra-agency appeal, the commissioner sitting by designation reversed the penalty award, reasoning, "The defendants' actions in terminating healing period benefits were fairly debatable." The district court affirmed that decision.

II. Analysis

Seeking further judicial review, Podgorniak now contends the district court erred by: (1) "affirming the commissioner's determination that Lumberman's had proven an excuse which was reasonable for its 10/05/06 unilateral termination of Podgorniak's 'running' healing period compensation"; and (2) "refus[ing] to consider the commissioner's failures to determine the specific payment amounts and dates of healing period compensation, the amounts of healing period compensation still due as of 11/16/09, and the amounts of healing period compensation, the payments of which were delayed and/or underpaid."*fn4

The second issue was not preserved for our review. See Soo Line R. Co. v. Iowa Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994) ("Our review is generally limited to questions raised at or before the hearing held by the agency.");see also Renewable Fuels, Inc. v. Iowa Ins. Comm'r, 752 N.W.2d 441, 446 (Iowa Ct. App. 2008) ("In cases involving judicial review of final action of an administrative agency, an issue must generally be presented to the agency to satisfy error preservation requirements.").Accordingly, we begin and end with a discussion of the first issue. Our review of the commissioner's fact findings supporting the denial of penalty benefits is for substantial evidence. See Iowa Code § 17A.19(10)(f) (2009); Schadendorf v. Snap-On Tools Corp., 757 N.W.2d 330, 335 (Iowa 2008) (reviewing agency findings supporting penalty decisions for substantial evidence); City of Madrid v. Blasnitz, 742 N.W.2d 77, 80 (Iowa 2007) ("The sole issue on appeal is whether the record before the commissioner provides substantial evidence to support an award of penalty benefits.").

Iowa Code section 86.13(4)(b) requires the agency to award a claimant penalty benefits if (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 ...


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