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Gilbert v. USF Holland12/19/2001
ned that he first felt pain after pulling on the dock plate, as opposed to when he straightened up, until after his claim had been denied. The employer was certainly entitled to argue that this previously undisclosed fact was a fabrication. Given the fact that not even the eyewitness corroborated this aspect of Gilbert's history, that pulling on the dock plate triggered the onset of pain, resolution of the matter rested on Gilbert's credibility, which the employer was free to challenge. As the deputy noted, there was a credibility issue in this case for the commissioner to resolve. The fact that the commissioner resolved the credibility issue in favor of the employee did not mean that there was not a reasonable dispute with respect to how the accident occurred.
Gilbert also argues that the employer had no reasonable basis to debate the causal connection between Gilbert's injury and his employment because the employer had no medical evidence controverting the testimony of Drs. Carlstrom and Minervini. We do not think the absence of medical testimony on behalf of the employer is important with respect to Gilbert's entitlement to penalty benefits. As we have pointed out, the debatable issue in this case was factually how the injury occurred. Medical testimony on causation is simply not relevant to resolution of this contested factual issue. In other words, the fact that the physicians relied on the revised history rather than the original history did not resolve the factual dispute as to how the injury occurred. Thus, the commissioner's reliance on the medical testimony as support for her finding that there was not a reasonable basis to contest compensability was erroneous.
Finally, Gilbert criticizes the employer for failing to interview the man who witnessed Gilbert's injury . Gilbert argues the employer's inadequate investigation supports the commissioner's finding that the employer did not have a reasonable basis to deny compensability. Even if we assume there was some deficiency in the employer's investigation, a question we do not address, Gilbert fails to point out what information would have been gained from an interview of the witness that was not already available to the employer in the witness's statement provided by Gilbert. Consequently, the employer's failure to interview the witness does not support the commissioner's finding that the employer's failure to pay benefits lacked a reasonable basis.
In conclusion, we hold as a matter of law there was a reasonable factual dispute as to the manner in which Gilbert's injury occurred. Therefore, there is not substantial evidence in the record to support a finding that the compensability of his injury was not fairly debatable. We vacate the court of appeals contrary decision and affirm the district court's judgment reversing the commissioner's award of penalty benefits.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
All justices concur except Streit, J., who takes no part.
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