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Hecht v. Highline Construction, Inc.

Court of Appeals of Iowa

September 11, 2019

MICHAEL HECHT, Plaintiff-Appellant,
v.
HIGHLINE CONSTRUCTION, INC. and WESTERN NATIONAL INSURANCE COMPANY, Defendants-Appellees.

          Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

         The claimant appeals from the district court's ruling on judicial review affirming the Workers' Compensation Commissioner's denial of permanency benefits and reversal of an award of penalty benefits.

          Randall P. Schueller of Loney & Schueller, LLC, West Des Moines, for appellant.

          Matthew A. Grotnes of Hopkins & Huebner, P.C., Des Moines, for appellees.

          Considered by Potterfield, P.J., and Doyle and Bower, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         Michael Hecht appeals from the district court's ruling on judicial review affirming the Workers' Compensation Commissioner's denial of permanency and penalty benefits. Hecht maintains the commissioner erred when he granted the untimely application of Hecht's former employer, Highline Construction, and the employer's insurer, Western National Mutual Insurance Company, to submit additional evidence. He argues his substantial rights were prejudiced when the commissioner then relied on the late-submitted evidence to modify the deputy commissioner's ruling of 30% industrial disability and the assessment of penalty benefits to an award of no permanency or penalty benefits.

         I. Background Facts and Proceedings.

         Hecht began working for Highline Construction as a mechanic for the company's equipment in April 2013. In August 2014, the air brake system of the equipment on which Hecht was working exploded about six inches from Hecht's right ear. He suffered a workplace injury as a result and underwent treatment at the company's cost. Still, he continued to do the same work for Highline until his position was eliminated in December 2014. After leaving Highline, Hecht immediately began working for Telecom Construction. The job at Telecom was similar to the one he had at Highline; Hecht was hired as a field mechanic and had to travel to fix vehicles.

         Eventually, Hecht and Highline disagreed whether Hecht had suffered a permanent impairment that entitled him to permanent partial disability benefits. The matter proceeded to a contested case in front of a deputy commissioner in May 2016. At the hearing, Hecht testified he had recently quit his job at Telecom-a fact that had not been previously disclosed-because he felt unsafe continuing as an over-the-road mechanic due to the requirement he drive a commercial vehicle. He testified:

I kind of had a scare driving. I mean it's a big over-the-road truck. It's not a quiet truck. It's not like driving your F-150 through town. You can't see everything. You can't hear anything. I mean you're a commercial driver. You're classified as a professional driver. Last thing you want to do is hurt somebody or kill somebody. Going 70 miles an hour down the road, there's a car there. You can't see them. I drove a car off the road, so it was kind of a wake-up call.

         According to Hecht, he had taken a new job as a construction manager, which earned about $25, 000 less annually than he earned working for Highline and Telecom.

         In the written ruling, the deputy concluded Hecht suffered from hearing loss and tinnitus, which was the cause of 22% partial impairment to the body as a whole and a 30% industrial disability. The deputy ordered Highline to pay Hecht 150 weeks of permanent partial disability benefits at the rate of $820.19 per ...


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