Hawkins v. TMC Transportation, No. 3-635 / 03-0004 (Iowa App. 11/17/2003)
| Decision Date | 17 November 2003 |
| Docket Number | No. 3-635 / 03-0004.,3-635 / 03-0004. |
| Parties | MARK HAWKINS, Appellant, v. TMC TRANSPORTATION and ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellees. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
Mark Hawkins appeals the decision of the district court denying workers' compensation benefits.
REVERSED AND REMANDED.
N. Richard Willia of Willia, Stahle & Andreasen, L.L.P., Sioux City, for appellant.
William H. Grell of Huber, Book, Cortese, Happe & Lanz, P.L.C., Des Moines, for appellees.
Heard by Mahan, P.J., and Eisenhauer, J. and Hendrickson, S.J.*
The petitioner-appellant, Mark Hawkins (Hawkins), appeals the order of the district court in a judicial review proceeding. The district court affirmed the decision of Iowa Workers' Compensation Commissioner denying benefits because of untimely notice of an alleged work-related injury. We reverse.
The appellant, Mark Hawkins, was employed by TMC Transportation (TMC) as an over-the-road truck driver. He claims that on March 15, 1999, he wrenched his back pulling a truck tarp. The next day he called the fleet manager for TMC and reported he had injured his back . Hawkins indicated he would seek chiropractic care on his own. The fleet manager acknowledges that Hawkins reported he had injured his back but denies being told the injury occurred while pulling on the truck tarp.
TMC claims it learned that Hawkins's injury was work-related in July 1999 after Hawkins was sent to a physician by TMC for an evaluation to determine his fitness to continue at TMC. Upon learning that the injury was work-related more than ninety days from the date of the incident, TMC paid for surgery and post-surgical expenses, as well as partial and temporary total disability from July 2, 1999, to October 17, 1999, and permanent partial disability from October 18, 1999, to October 30, 1999. Thereafter, Hawkins filed an arbitration petition seeking additional compensation benefits. TMC asserted it had not received timely notice and denied further liability.
The deputy workers' compensation commissioner who heard the evidence concluded that Hawkins had given timely notice and further that TMC, by virtue of having paid benefits, was precluded from raising the affirmative defense of lack of timely notice. The commissioner reversed the deputy commissioner, and the district court affirmed the commissioner.
The issues raised on appeal are:
1. Did the commissioner improperly place the burden of proving timely notice on Hawkins?
2. Is there substantial evidence to support the commissioner's finding that Hawkins failed to give timely notice of a work-related injury?
3. Because some benefits were paid, does Iowa Code section 86.13 (2001) preclude TMC from raising a notice defense?
In Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498-99 (Iowa 2003), the court set forth principles to apply to judicial review of administrative decisions. Our review under Iowa Code chapter 17A is for correction of errors at law, not de novo. Locate.Plus.Com, Inc. v. Iowa Dep't of Transp., 650 N.W.2d 609, 612 (Iowa 2002). Chapter 17A was amended in 1998, with amendments effective for agency actions commenced after July 1, 1999, however, the court in Wal-Mart Stores, Inc. concluded that the amendments did not change the substantive law but reaffirmed long-established principles of administrative review. Wal-Mart Stores, 657 N.W.2d at 499. The "courts are not to simply rubberstamp the agency fact finding but engage in a fairly intensive review of the record to ensure that the fact finding is itself reasonable." Id.
In DeLong v. Iowa State Highway Comm'n, 229 Iowa 700, 703, 295 N.W. 91, 92 (1940), the court held the claim of lack of notice is an affirmative defense and the burden of proof would be on the party asserting it. In this case, TMC is asserting the affirmative defense of lack of timely notice. The commissioner stated in his ruling:
It is found that Mark [Hawkins] has failed to carry his burden of proof to show that he gave notice of work injury on March 15, 1999, to his employer within 90 days as required by Iowa Code § 85.23.
Clearly, the commissioner was in error in making this statement. The commissioner, however, did also accurately state in his conclusions that the defendant has the burden to prove by the preponderance of the evidence an affirmative defense. The district court found that despite the misstatement of the law, the commissioner properly placed the burden on TMC to show it had not received notice of Hawkins's injury within the required time.
We agree with the reasoning of the district court on this issue.
Hawkins claims this court should give "very little, if any deference" to the commissioner's decision. He provides no authority for this claim, which runs contrary to the statutory provision that findings are binding on this court unless unsupported by substantial evidence. See Iowa Code § 17A.19(10)(f) (2001). Assessing the credibility of witnesses is the province of the agency, not the reviewing court. See E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 830 (Iowa 1994). Although Hawkins claims the commissioner's findings are limited and tainted, our review is circumscribed by statute. Hawkins basically tries to retry the case on appeal. An agency decision is supported by substantial evidence when a reasonable person could reach the same conclusions after considering the record in its entirety. Al-Khattat v. Engineering & Land Surveying Examining Bd., 644 N.W.2d 18, 23 (Iowa 2002). Even if the evidence is capable of supporting a conclusion different from the agency's, we affirm if we can find substantial evidence in the record to support the agency's determination. S.E. Iowa Coop. Elec. Ass'n v. Iowa Utils. Bd., 633 N.W.2d 814, 818 (Iowa 2001).
Hawkins claims he told Lillie he injured his back pulling on a tarp. Lillie admits receiving the call, but denies Hawkins told her the cause of his injury. Hawkins requested and received a change in schedule so he could be home on weekends to receive treatment. TMC does not pay for chiropractic treatments. Hawkins did not submit the chiropractic bills to TMC for payment, but instead submitted them to his own insurance carrier. After Hawkins's medical evaluation in July and subsequent surgery, TMC paid for the surgery and some permanency benefits. TMC claims the first notice it had that Hawkins's injury was work related was when he told the examining doctor in July—after which TMC paid the benefits. There is substantial evidence in the record to support the commissioner's decision.
While we have found there is substantial evidence in the record to support the conclusion Hawkins did not give a timely notice of a work-related injury as required by Iowa Code section 85.23, the question becomes whether the employer waived the lack of timely notice defense by subsequently paying benefits.
Iowa Code section 85.23 provides:
Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence . . . no compensation shall be allowed.
Iowa Code section 86.13 provides, in part:
If an employer or insurance carrier pays weekly compensation benefits to an employee, . . . . The payments establish conclusively that the employer and insurance carrier have notice of the injury for which benefits are claimed but the payments do not constitute an admission of liability under this chapter or chapter 85, 85A, or 85B.
The commissioner and the district court concluded Iowa Code section 86.13 should be read to mean that voluntary payments by the...
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