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Dubinovic v. Des Moines Public Schools

Court of Appeals of Iowa

June 5, 2019

IZUDIN DUBINOVIC, Plaintiff-Appellant,
v.
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.

          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.

          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) benefits[1] 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)

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 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 ...


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