IN THE SUPREME COURT OF IOWA
No. 09–1633
Filed May 4, 2012
JULIE K. BURTON,
Appellant,
vs.
HILLTOP CARE CENTER and IOWA LONG TERM CARE
RISK MANAGEMENT ASSOCIATION,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, D.J. Stovall,
Judge.
Hilltop Care Center seeks further review from the court of appeals
decision that reversed in part and affirmed in part the district court
decision on a petition for judicial review of the workers’ compensation
commissioner. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED.
E.W. Wilcke, Spirit Lake, and Harry W. Dahl, Des Moines, for
appellant.
Michael L. Mock, Parker, Simons & McNeill, P.L.C., West Des
Moines and Ann C. Spellman of Bradshaw, Fowler, Proctor & Fairgrave,
P.C., Des Moines, for appellee.
2
ZAGER, Justice.
This case comes before us on an application for further review from
the court of appeals. After receiving the workers’ compensation
commissioner’s final decision, both parties filed cross-petitions for
judicial review in the district court. The district court affirmed in part,
reversed in part, and remanded for additional fact-finding. Both parties
filed cross-appeals. We transferred the case to the court of appeals,
which affirmed in part and reversed in part on appeal and affirmed on
cross-appeal. Hilltop Care Center (Hilltop) 1 sought further review, which
we granted. We now vacate the decision of the court of appeals and
reverse the district court in part. We remand the case to the district
court with the following instructions on judicial review: to remand the
case to the commissioner for a factual determination as to Hilltop’s claim
that an accounting error caused it to accidentally overpay Burton
$916.67 per month (the difference between a $1000 per month raise and
$1000 per year raise) for fifteen months; to affirm the commissioner’s
decision to include Burton’s bonus in calculating her weekly earnings; to
reconsider the commissioner’s imposition of a penalty in light of its
factual findings regarding Hilltop’s claim that it overpaid Burton; and to
affirm the commissioner’s determinations as to the cause, nature and
extent of Burton’s injuries.
I. Background Facts and Procedural History.
Julie Burton (Burton) began working at Hilltop as a dietary
supervisor in December of 2002. As part of her duties Burton was
required to supervise kitchen staff, lift heavy items, and move equipment.
Burton’s previous work history involved working as a bartender and
1Appellees–cross-appellants Hilltop Care Center and the Iowa Long Term Care
Risk Management Association will be referred to collectively as Hilltop.
3
caterer. Both of these jobs required lifting heavy items, such as full kegs
of beer. During her previous employment, Burton went through five
pregnancies and continued to work at these jobs during and after her
pregnancies.
While working at Hilltop, Burton was subject to several
performance reviews, and she received several raises. Of particular note
in this case, in January 2005, Burton received a salary increase of
$1000. Hilltop claims this was supposed to have been a raise of $1000
per year. However, through what Hilltop claims was an accounting error,
Burton’s salary was increased $1000 per month. Burton’s salary
reflected this $1000 per month raise from January of 2005 until Burton
left Hilltop in April of 2006. Burton’s supervisor continued to review her
performance in 2006, and Burton received an additional raise at the start
of that year.
This case involves two injuries: a foot injury and an abdominal
injury. Burton’s foot injury arose out of a fall from a ladder. On
Saturday, January 28, 2006, Burton was standing on a ladder at work
when it collapsed, trapping her leg. Burton went to the emergency room
and had her foot placed in a splint. On Monday, Burton went to Dr.
Brian Ford, her primary care physician, who referred her to Dr. Timothy
Blankers, a podiatrist. She saw Dr. Blankers on January 31. Dr.
Blankers placed Burton’s ankle in an air-cast and recommended
nonweight-bearing activities. Burton returned to work that day. Dr.
Blankers recommended Burton return to weight bearing activities on
February 14.
Burton filed a petition with the workers’ compensation
commissioner on June 23. Dr. Blankers examined Burton again on April
10, 2007, and suggested an impairment of 7% of the foot and that a
4
range of 3% to 7% was appropriate. An arbitration hearing was held
before a deputy commissioner on May 21, 2007, and a decision was
issued on October 26. The deputy found the injury was a scheduled
member injury causing permanent disability, and the 7% impairment to
the foot equated to a 4.9% functional impairment to the leg.
Burton’s abdominal injuries are more complicated. In late 2004,
Burton began to experience problems with vaginal bleeding between
periods. In May of 2005, Burton saw Dr. Ford and complained of
menopausal symptoms and heavy bleeding. At this time, Burton was not
told that her condition was work related, and she was not given any
lifting restrictions. Later on in 2005, Burton began to experience
problems with incontinence, in addition to the heavy bleeding.
On April 7, 2006, Burton visited Dr. Ford due to problems with
incontinence and menometrorrhagia and was referred to Dr. Jane
Gaetze, an obstetrician–gynecologist. Burton saw Ford again on May 3
for vaginal and rectal bleeding and had a colonoscopy performed on May
5 by Dr. Brian Luepke. Burton saw Dr. Gaetze on May 11. Dr. Gaetze
informed Burton that she would need a total hysterectomy and various
other repairs to correct her abdominal injuries. Dr. Gaetze performed
the surgery on May 24, 2006. After the surgery, Dr. Gaetze told Burton
that her abdominal injuries were work related and were the result of
repeated heavy lifting and physical labor. On July 14, 2006, Dr. Gaetze
authorized Burton to return to work without any physical limitations.2
On October 9, however, Dr. Gaetze permanently restricted Burton from
lifting anything over fifty pounds. By this time, however, Burton was no
2Dr. Gaetze later imposed a ten to fifteen pound lifting restriction on Burton as a
result of rectal bleeding while shoveling snow in early 2007. The commissioner
determined this ten to fifteen pound restriction was not related to Burton’s employment
at Hilltop.
5
longer working at Hilltop. On April 24, 2006, Burton was told that she
could no longer be a dietary supervisor at Hilltop. Rather than accept a
lower paying position, Burton resigned.
On July 31, 2006, Burton filed her second petition with the
commissioner, alleging she sustained a repetitive or cumulative injury to
her blood vessels, soft tissues, abdomen, and uterus while working at
Hilltop. After the same arbitration hearing, the deputy commissioner
found the abdominal injuries were work-related conditions and awarded
Burton a thirty percent industrial disability.
The arbitration decision covering both the foot and abdominal
injuries was issued on October 26, 2007. As part of this decision, the
deputy commissioner also calculated a weekly compensation rate for
Burton and addressed the issues involving her bonus and request for
penalty benefits. The deputy determined Hilltop should have included
the $1000 per month pay increase and Burton’s annual bonus when it
determined her weekly compensation. The deputy also imposed a
penalty on Hilltop for not including the bonus and for basing Burton’s
compensation on a $1000 per year raise. Hilltop filed a motion for
rehearing, which the deputy commissioner denied. Hilltop and Burton
both appealed to the commissioner from various aspects of the deputy’s
decision. On August 26, 2008, the commissioner affirmed and adopted
the deputy’s arbitration decision.
Hilltop and Burton then filed cross-petitions for judicial review
under chapter 17A. The district court entered its ruling on April 27,
2009. The district court reversed the commissioner’s calculation of
benefits based on the $1000 per month raise Hilltop actually paid Burton
and instead used the $1000 per year figure Hilltop claimed was accurate.
Because Hilltop had used what the district court found to be the correct
6
wages, it reversed the award of penalty benefits. The district court also
found the commissioner erred in his calculation of weekly benefits based
on the bonus payment and remanded that issue to the commissioner for
further analysis. The district court affirmed the commissioner’s findings
and award of benefits regarding Burton’s foot injury and also affirmed
the commissioner’s findings as to the discovery, notice, and award of
benefits regarding her abdominal injury. Burton appealed, and Hilltop
cross-appealed. We transferred the case to the court of appeals. The
court of appeals reversed the district court’s ruling and determined that
the $1000 per month raise and bonus should be included in the
calculation of Burton’s compensation rate, but did not reinstate the
penalty benefit finding the issue was reasonably debatable. The court of
appeals otherwise affirmed the commissioner’s findings regarding
Burton’s foot and abdominal injuries. Hilltop applied for further review,
which we granted.
II. Issues.
There were several issues presented to the court of appeals on
appeal and cross-appeal. “On further review, we have the discretion to
review any issue raised on appeal.” State v. Marin, 788 N.W.2d 833, 836
(Iowa 2010). In exercising our discretion, we can choose which issues to
address. See id.; see also Hills Bank & Trust Co. v. Converse, 772 N.W.2d
764, 770 (Iowa 2009). Since Hilltop has not presented any new
arguments, or pointed to any errors in the court of appeals decision
which affirmed the district court’s decision affirming the commissioner’s
findings as to the extent, notice, or cause of Burton’s foot or abdominal
injuries, we will let the district court’s decision stand as the final decision
on these issues. We will, however, address the compensation rate and
penalty issues.
7
III. Standard of Review.
Burton and Hilltop both sought judicial review of the decision of
workers’ compensation commissioner.
Iowa Code section 17A.19(10) governs judicial review of
agency decision making. We will apply the standards of
section 17A.19(10) to determine whether we reach the same
results as the district court. “The district court may grant
relief if the agency action has prejudiced the substantial
rights of the petitioner, and the agency action meets one of
the enumerated criteria contained in section 17A.19(10)(a)
through (n).”
Evercom Sys., Inc. v. Iowa Utilities Bd., 805 N.W.2d 758, 762 (Iowa 2011)
(citations omitted).
Under Iowa Code section 17A.19(10) (2007), our standard of review
depends on the aspect of the agency’s decision that forms the basis of
the petition for judicial review. See Meyer v. IBP, Inc., 710 N.W.2d 213,
219 (Iowa 2006). If an agency has been clearly vested with the authority
to make factual findings on a particular issue, then a reviewing court can
only disturb those factual findings if they are “not supported by
substantial evidence in the record before the court when that record is
reviewed as a whole.” Iowa Code § 17A.19(10)(f); see also Meyer, 710
N.W.2d at 218. This review is limited to the findings that were actually
made by the agency and not other findings that the agency could have
made. Meyer, 710 N.W.2d at 218.
When an agency has been clearly vested with the authority to
make factual determinations, “it follows that application of the law to
those facts is likewise ‘vested by a provision of law in the discretion of the
agency.’ ” Mycogen Seeds v. Sands, 686 N.W.2d 457, 465 (Iowa 2004)
(quoting Iowa Code § 17A.19(10)(f)). When the application of law to fact
has been clearly vested in the discretion of an agency, a reviewing court
may only disturb the agency’s application of the law to the facts of the
8
particular case if that application is “irrational, illogical, or wholly
unjustifiable.” Iowa Code § 17A.19(10)(m); see also Mycogen Seeds, 686
N.W.2d at 465.
A reviewing court may also be asked to review an agency’s
interpretation of law. The level of deference afforded to an agency’s
interpretations of law depends on whether the authority to interpret that
law has “clearly been vested by a provision of law in the discretion of the
agency.” Compare Iowa Code § 17A.19(10)(c), with id. § 17A.19(10)(l). If
the agency has not been clearly vested with the authority to interpret a
provision of law, such as a statute, then the reviewing court must reverse
the agency’s interpretation if it is erroneous. Id. § 17A.19(10)(c). If the
agency has been clearly vested with the authority to interpret a statute,
then a court may only disturb the interpretation if it is “irrational,
illogical, or wholly unjustifiable.” Id. § 17A.19(10)(l).
The level of deference owed to the workers’ compensation
commissioner’s interpretations will be determined on a case-by-case
basis. Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787
N.W.2d 75, 80 n.3 (Iowa 2010). Thus, in determining the level of
deference owed to the commissioner, we will not make “broad
articulations of an agency’s authority.” Renda v. Iowa Civil Rights
Comm’n, 784 N.W.2d 8, 14 (Iowa 2010). Instead, we consider the
agency’s interpretive authority for each particular phrase under
consideration. Andover Volunteer Fire Dep’t, 787 N.W.2d at 80. We note
that the legislature did not require the agency be expressly vested with
the authority to interpret a statute; instead, the legislature only required
the interpretative authority be clearly vested in the agency. Renda, 784
N.W.2d at 11; see also Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129,
133 (Iowa 2010) (“In the absence of such an explicit grant of authority,
9
we must determine whether the legislature, nevertheless, ‘clearly’ vested
the agency with the power to interpret the statute by implication.”).
When determining whether an agency has been clearly vested with the
authority to interpret a provision of law,
[w]e do not focus our inquiry on whether the agency does or
does not have the broad authority to interpret the act as a
whole. Instead, when determining whether the legislature
has clearly vested the agency with authority to interpret,
“each case requires a careful look at the specific language
the agency has interpreted as well as the specific duties and
authority given to the agency with respect to enforcing
particular statutes.”
Andover Volunteer Fire Dep’t, 787 N.W.2d at 79–80 (quoting Renda, 784
N.W.2d at 13) (internal citation omitted).
When a term is not defined in a statute, but the agency must
necessarily interpret the term in order to carry out its duties, we are
more likely to conclude the power to interpret the term was clearly vested
in the agency. See Renda, 784 N.W.2d at 12. This is especially true
“when the statutory provision being interpreted is a substantive term
within the special expertise of the agency.” Id. at 14. However, “[w]hen a
term has an independent legal definition that is not uniquely within the
subject matter expertise of the agency,” or when the language to be
interpreted is “found in a statute other than the statute the agency has
been tasked with enforcing,” we are less likely to conclude that the
agency has been clearly vested with the authority to interpret that
provision of the statute. Id.
With these principles of review in mind we now turn to the parties’
claims in the present case.
IV. Compensation Rate Dispute.
The parties disagree over the proper basis of computation of
Burton’s benefits. First, the parties dispute whether sections 85.36 and
10
85.61(3) permit the commissioner to include as “gross earnings” the
amount an employer allegedly overpaid an employee due to an
accounting error when calculating weekly benefits. Second, the parties
dispute whether Burton’s 2005 year-end bonus should be included as
part of “gross earnings” as defined under section 85.61(3) when
calculating weekly benefits. In pertinent part, section 85.36 states:
The basis of compensation shall be the weekly
earnings of the injured employee at the time of the injury.
Weekly earnings means gross salary, wages, or earnings of
an employee to which such employee would have been
entitled had the employee worked the customary hours for the
full pay period in which the employee was injured, as
regularly required by the employee’s employer for the work
or employment for which the employee was employed,
computed or determined as follows and then rounded to the
nearest dollar:
....
3. In the case of an employee who is paid on a
semimonthly pay period basis, the semimonthly gross
earnings multiplied by twenty-four and subsequently divided
by fifty-two.
(Emphasis added.) “Gross earnings” is defined as
recurring payments by employer to the employee for
employment, before any authorized or lawfully required
deduction or withholding of funds by the employer, excluding
irregular bonuses, retroactive pay, overtime, penalty pay,
reimbursement of expenses, expense allowances, and the
employer’s contribution for welfare benefits.
Iowa Code § 85.61(3) (emphasis added). We will now apply these statutes
to the present case.
A. Hilltop’s Claim that Burton’s $1000 per Month Raise Was
the Result of an Accounting Error and Should Not Have Been
Included as Gross Earnings in Determining Her Compensation. The
parties agree that Burton was paid twice a month. The parties also agree
that in January 2005, Burton’s salary increased by $1000 per month.
11
Hilltop claims the $1000 per month increase was an accounting error
and Burton’s raise was only meant to be $1000 per year. As a result of
receiving a $1000 per month raise, Burton was paid $1625.00 per pay
period. Had she received a $1000 per year raise, she would have been
paid $1166.67 per pay period. Hilltop focuses on the phrase “to which
such employee would have been entitled” in section 85.36 and claims
that, because the increase was due to an accounting error, Burton was
not “entitled” to $1000 per month, and her basis of compensation should
be what her salary should have been without the error. Burton argues
that the “entitled” language does not apply to this dispute because
Burton worked a full pay period prior to her injury. She also argues that
her benefits should be based on the salary she actually received from
Hilltop and that the district court erred when it determined on its own
that her wages were improperly inflated due to an accounting error. We
will discuss each of these arguments.
The commissioner heard testimony on this issue from Burton and
from Sandra Ferguson, the administrator at Hilltop. The commissioner
acknowledged Hilltop’s claims in his combined findings of fact and
conclusions of law. The commissioner stated:
Defendants have argued that the computation of gross
salary should reflect the amount they meant to pay the
claimant rather than what they actually paid the claimant.
In their brief, defendants cite part of a sentence in the above
statute in an attempt to support their position. “Weekly
earnings means gross salary, wages, or earnings of an
employee to which such employee would have been entitled
had the employee worked the customary hours for the full
period . . . .” This section does not support the defendant’s
argument. The above quoted section is to be used if a
claimant has not worked a full pay period. It is not applicable
in a case where an employe[r] has been paying an employee
wage for over a year and a quarter. The claimant worked her
full hours during each pay period. The defendants provided
no case or other legal authority to support their position.
The Claimant received the salary from the defendant, had a
12
review of her performance by her supervisor at the higher
wage rate and the claimant paid income tax based upon the
receipt of the high wage rate.
(Emphasis added.) In ruling on Hilltop’s motion for rehearing, the
commissioner stated,
Defendants have objected to the inclusion of wages
they paid the claimant from January 2005 through her last
day of employment, April 24, 2006. The defendants have
characterized the wages they paid the claimant for over 15
months as being inflated wages and have alleged that it was
an administrative error on their part for paying it to the
claimant for almost a year and a half. The record shows the
claimant was paid bimonthly with checks stamped with her
employer’s signature. The record shows also that the
claimant was evaluated annually and was subject to
frequent monitoring by her supervisor. Further the
claimant’s salary which included the raise was within the
mean average wage of food service supervisors according to
the defendants[’] own expert.
As detailed in the arbitration decision Iowa Code
section 85.36 defines how earnings are to be calculated in
order to determine an[] employee’s weekly earnings. In
determining what an employee’s weekly earnings are for an
employee who is paid bimonthly, the gross earnings were
multiplied by 24 and subsequently divided by 52. Gross
earnings are defined by Iowa Code section 85.61(3) as
follows[:]
3. “Gross earnings” means recurring
payments by employer to the employee for
employment, before any authorized or lawfully
required deduction or withholding of funds by
the employer, excluding irregular bonuses,
retroactive pay, overtime, penalty pay,
reimbursement of expenses, expense allowances,
and the employer’s contribution for welfare
benefits.
Under the facts of this case, the claimant received
recurring payments by the employer to the employee for
employment. Those payments were used in calculation of
the weekly earnings. The defendants[’] request for rehearing
based on calculation of the wages is denied.
These passages are a tapestry of interwoven findings of fact, application
of law to fact, and interpretations of law. Prior to reviewing these
13
statements, our first task is to categorize the nature of each statement
made by the agency.
Interconnected findings of fact, interpretations of law, and
applications of law to fact pose a uniquely difficult problem on judicial
review. We have advised attorneys about the need to avoid lumping
together challenges based on questions of law, questions of fact, and
application of law to fact. Under section 17A.19(10), our approach when
reviewing an agency’s decision making varies depending on the type of
decision we are asked to review. In Meyer, we explained that
[t]hese different approaches to our review of mixed questions
of law and fact make it essential for counsel to search for
and pinpoint the precise claim of error on appeal. If the
claim of error lies with the agency’s findings of fact, the
proper question on review is whether substantial evidence
supports those findings of fact. If the findings of fact are not
challenged, but the claim of error lies with the agency’s
interpretation of the law, the question on review is whether
the agency’s interpretation was erroneous, and we may
substitute our interpretation for the agency’s. Still, if there
is no challenge to the agency’s findings of fact or
interpretation of the law, but the claim of error lies with the
ultimate conclusion reached, then the challenge is to the
agency’s application of the law to the facts, and the question
on review is whether the agency abused its discretion by, for
example, employing wholly irrational reasoning or ignoring
important and relevant evidence. In sum, when an agency
decision on appeal involves mixed questions of law and fact,
care must be taken to articulate the proper inquiry for review
instead of lumping the fact, law, and application questions
together within the umbrella of a substantial-evidence issue.
710 N.W.2d at 219 (citations omitted).
Chapter 17A imposes a similar duty on agency decision makers.
Section 17A.16(1) requires that findings of fact and conclusions of law be
stated separately and that factual findings, “if set forth in statutory
language, shall be accompanied by a concise and explicit statement of
underlying facts supporting the findings.” This requirement is consistent
with “the commissioner’s duty as the trier of fact to determine the
14
credibility of the witnesses, weigh the evidence, and decide the facts in
issue.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394–95 (Iowa 2007).
In the past, we have stated that
the commissioner need not discuss every evidentiary fact
and the basis for its acceptance or rejection so long as the
commissioner’s analytical process can be followed on appeal.
So also have we held the commissioner’s duty to furnish a
reasoned opinion is satisfied if “it is possible to work
backward . . . and to deduce what must have been [the
agency’s] legal conclusions and [its] findings of fact.”
Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997)
(citations omitted). However, when the commissioner only acknowledges
that a factual dispute exists and then lumps together findings of fact,
conclusions of law, and applications of law to fact, we do not feel that
section 17A.16(1) has been satisfied. Combining all three elements of
agency decision making in such a condensed, tangled manner makes for
inefficient and ineffective judicial review of agency action. This is
especially true in cases such as this one where the parties gave
conflicting accounts to the commissioner and the commissioner’s
credibility assessments have an impact on the ultimate decision in the
case. With these principles of judicial review of agency decision making
in mind, we now address the respective claims of the parties.
Both parties agree that this case requires us to review, among
other things, the commissioner’s legal interpretation that the “would
have been entitled” language in section 85.36 is inapplicable when an
employee has worked a full pay period following an injury and is also
inapplicable when the employee has been paid this amount for a year
and a quarter. Burton and the commissioner both feel the emphasized
language is only applicable when a claimant has not worked a full pay
period. Hilltop argued to the district court that Burton was not “entitled”
15
to a raise of $1000 per month, and therefore, her earnings should be
adjusted accordingly. The district court agreed with Hilltop, holding an
“accounting error is not tantamount to an entitlement to the elevated
wage to Hilltop’s detriment” and that Burton’s salary should be based on
what she was “entitled” to receive, not what she actually received.
Deciding whether language contained in a statute applies to a
dispute is clearly an interpretation of law. In order to properly review the
agency’s interpretation of section 85.36, including the definition of the
term “gross earnings” referenced therein, we must first determine
whether the legislature has clearly vested the commissioner with the
authority to interpret section 85.36 and to determine when and how that
section applies to a given dispute.
To conclude that the commissioner was “clearly vested” with the
authority to interpret a statute, we
must have a firm conviction from reviewing the precise
language of the statute, its context, the purpose of the
statute, and the practical considerations involved, that the
legislature actually intended (or would have intended had it
thought about the question) to delegate to the agency
interpretive power with the binding force of law over the
elaboration of the provision in question.
Renda, 784 N.W.2d at 11 (quoting Arthur E. Bonfield, Amendments to
Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa
State Bar Association and Iowa State Government 63 (1998)).
In Mycogen Seeds, we reviewed the commissioner’s decision that
section 85.36(9)(c), the apportionment statute, applied to a particular
situation. 686 N.W.2d at 464, 466–67. In that case, we determined that
the legislature had not delegated any special powers of interpretation to
the agency. Id. at 464. Therefore, we reviewed the commissioner’s
decision that section 85.36(9)(c) was applicable under section
16
17A.19(10)(c) and would reverse if the decision to apply the
apportionment statute were erroneous. Id. We ultimately agreed with
the commissioner that the apportionment statute was applicable in the
situation before the court. Id. at 467.
As in Mycogen Seeds, we feel the commissioner has not been
clearly vested with the authority to determine whether or how sections
85.36 or 85.61(3) apply to a given dispute. Section 86.8(1) gives the
commissioner the authority to adopt and enforce rules needed to
implement the workers’ compensation laws. However, this grant of rule-
making authority does not give the commissioner authority to determine
when portions of those laws are applicable. See Renda, 784 N.W.2d at
13 (“[W]e have not concluded that a grant of mere rulemaking authority
gives an agency the authority to interpret all statutory language.”).
Therefore, we will substitute our own interpretation of sections 85.36
and 85.61(3) if we find the commissioner’s interpretation was erroneous.
Iowa Code § 17A.19(10)(c). We now turn to the question of whether the
“would have been entitled” language applies to situations where the
claimant works the customary hours for the full pay period in which the
employee was injured. See id. § 85.36.
Section 85.36 reads:
The basis of compensation shall be the weekly
earnings of the injured employee at the time of the injury.
Weekly earnings means gross salary, wages, or earnings of
an employee to which such employee would have been
entitled had the employee worked the customary hours for the
full pay period in which the employee was injured, as
regularly required by the employee’s employer for the work
or employment for which the employee was employed,
computed or determined as follows and then rounded to the
nearest dollar:
....
17
3. In the case of an employee who is paid on a
semimonthly pay period basis, the semimonthly gross
earnings multiplied by twenty-four and subsequently divided
by fifty-two.
(Emphasis added.) “Gross earnings” is defined as “payments by
employer to the employee for employment.” Id. § 85.61(3) (emphasis
added).
Disputes over the language of section 85.36 have typically involved
situations where the general formula for calculating the employee’s basis
of compensation would have included weeks where the employee did not
work “customary” hours that were “regularly required” by the employer.
See, e.g., Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 198–200 (Iowa
2010) (interpreting section 85.36 to determine whether employee’s
earnings in certain weeks were “customary”); Griffin Pipe Prods. Co. v.
Guarino, 663 N.W.2d 862, 865–67 (Iowa 2003) (interpreting “would have
been entitled” provision when employee did not work two of the thirteen
weeks prior to his injury because employer’s plant was closed for two
weeks for regular maintenance). The purpose and focus of the “would
have been entitled” language is to ensure “that a nonrepresentative week
be excluded from the calculation of an employee’s compensation rate.”
Griffin Pipe, 663 N.W.2d at 866–67.
We need not resolve the question of whether section 85.36’s “would
have been entitled” language applies when an employee works a full pay
period during the week in which she was injured. Instead, we read
section 85.61(3), which defines gross earnings, as containing a
requirement that an employee’s gross earnings only include that money
the employee receives for employment. 3 Applying this language requires
3As with section 85.36, we are unable to find any indication that the legislature
clearly vested the commissioner with the authority to interpret section 85.61(3), and
therefore, we have the authority to correct any erroneous interpretations the
commissioner may have made. Iowa Code § 17A.19(10)(c).
18
the commissioner to only include that money paid to the employee for
employment in the employee’s gross earnings.
When interpreting this statute in prior cases, we have required the
commissioner to look beyond the numbers appearing on an employee’s
paycheck when determining the employee’s weekly gross earnings under
sections 85.36 and 85.61(3). In Area Education Agency 7 v. Bauch, 646
N.W.2d 398 (Iowa 2002), we addressed a situation where the amount of
an employee’s weekly gross earnings was at issue. In Bauch, a special
education consultant who worked for a school had a contract that
required her to work 198 days per year, the equivalent of approximately
ten months. 646 N.W.2d at 399. Bauch was paid a total of $40,318.20
per year which, pursuant to her contract, was to be paid out in twelve
equal monthly payments of $3359.85. Id. Bauch’s salary was reduced
$203.63 per day for each unexcused absence. Id.
Bauch filed a claim with the workers’ compensation commission
after slipping on a wet floor and breaking her elbow and wrist. Id. The
commissioner determined that, because Bauch lost $203.63 per day for
each day she missed, her daily earnings were $203.63, and therefore,
under section 85.36(6), her gross weekly earnings were five times that
amount ($1018.15). Id. at 399–400. The AEA petitioned for judicial
review, and the district court reversed the commissioner. Id. at 400. The
district court found that since Bauch was paid on a monthly basis, her
weekly earnings must be calculated under section 85.36(4). Id. The
district court then took the amount of Bauch’s monthly paycheck
($3359.85), multiplied it by twelve and divided by fifty-two for a gross
weekly earning total of $775.35. Id.
On appeal, we were required to interpret the same statutory
provisions at issue in this case. Id. at 401. We held that the district
19
court correctly determined Bauch was paid on a monthly basis and that
her weekly earnings should be calculated under section 85.36(4), as
opposed to section 85.26(6). Id. at 402. However, we went on to hold
that the district court erred in calculating Bauch’s weekly benefits based
solely on the amount shown on Bauch’s monthly paychecks ($3359.85).
Id. Since Bauch only worked ten months out of the year, she actually
earned one-tenth of her annual salary ($4031.82) each month she
worked. Id. Simply put, ten months out of the year, Bauch earned more
than she was paid. Under sections 85.36(4) and 85.61(3), we held
Bauch’s weekly gross earnings should be calculated as the amount she
earned each month she worked ($4031.82), multiplied by twelve and
divided by fifty-two, or $930.43. Id. at 402–03.
By taking this approach in Bauch, we rejected an overly formulistic
approach to the calculation of an employee’s weekly earnings under
sections 85.36 and 85.61. Instead of allowing the commissioner to
simply cut and paste the amount shown on an employee’s paycheck into
the formula contained in the appropriate subsection of section 85.36,
Bauch requires the commissioner to determine what an employee
actually earns for employment each pay period and use that number to
calculate weekly earnings. Id. at 402. By simply using the number
written on the paycheck, the district court had “seemingly overlooked the
statute’s definition of ‘gross earnings.’ ” Id. The same error occurred in
this case.
Having interpreted sections 85.36 and 85.61 as requiring the
commissioner to determine what an employee actually earns for
employment, we now return to the facts of this case. In determining
Burton’s weekly earnings and her basis of compensation, the
commissioner stated,
20
The parties dispute the correct wage calculation that
should be applied in this case. The defendants assert that
the correct wage should be calculated based on the wages
they feel the claimant was entitled to rather than the wages
that they paid the claimant as a result of an accounting
error.
The commissioner then awarded benefits based on the $1000 per month
raise, reasoning that it was irrelevant whether an error occurred because
Hilltop “has been paying an employee wage for over a year and a quarter[]
[and] [t]he claimant worked her full hours during each pay period.” In
denying the petition for rehearing, the commissioner stated, “Under the
facts of this case, the claimant received recurring payments by the
employer to the employee for employment. Those payments were used in
calculation of the weekly earnings.” As we have already discussed,
section 85.61(3) requires more than “recurring” payments; those
payments must also be earned through employment. Money received
due to an accounting error would not be money that was earned for
employment as the statute requires.
The commissioner acknowledged the dispute over Burton’s salary,
but it failed to make a finding on the matter. Instead, the commissioner
simply listed the evidence supporting each side’s position. For example,
in the initial ruling, the commissioner stated, “The claimant worked her
full hours during each pay period. . . . The claimant received the salary
from the defendant, had a review of her performance by her supervisor at
the higher wage rate and the claimant paid income tax based upon the
receipt of the high wage rate.” In ruling on the motion for rehearing, the
commissioner stated, “The record shows the claimant was paid
bimonthly with checks stamped with her employer’s signature. The
record shows also that the claimant was evaluated annually and was
subject to frequent monitoring by her supervisor. Further the claimant’s
21
salary which included the raise was within the mean average wage of
food service supervisors according to the defendants[’] own expert.”
Regarding Hilltop’s position, the commissioner noted Hilltop’s
administrator
testified that the clamant, as well as two other salaried
employees, received the wrong rate of pay beginning in 2005.
She testified that the claimant was given a raise in 2005 and
was supposed to receive $1000 per year but was paid $1000
per month. She stated that the error was discovered after
the claimant left her employment, when the claimant filed for
unemployment. [The administrator] testified that she has
not requested any reimbursement of the wages paid in error
and did not inform the claimant of the error until after the
claimant had filed a request for workers’ compensation.
While these are relevant considerations for determining whether Burton’s
raise was an accounting error, a summary of evidence is not in and of
itself a finding of fact and will not be reviewed as such.
Under chapter 17A, a court’s task on judicial review is not to
determine whether the evidence might support a particular factual
finding; rather, it is to determine whether the evidence supports the
finding made. Meyer, 710 N.W.2d at 218. The district court stated, “In
this case, Ms. Burton received a higher monthly rate of pay due to an
accounting mistake.” As detailed above, there is evidence in the record
to support such a factual finding. There is also evidence to support the
opposite finding. What is critical under the structure set up in chapter
17A is that the commissioner never made such a finding to begin with.
Therefore, when the district court determined the higher salary was due
to an accounting mistake, “The district court exceeded the scope of
permissible judicial review of agency decisions by making findings . . .
that the commissioner never made, when the facts in the record
necessary to make the finding supported two reasonable conclusions.”
Meyer, 710 N.W.2d at 225. Without a factual finding by the
22
commissioner as to which party’s story was more credible, a court is left
with nothing to review under chapter 17A.
The commissioner ultimately concluded that Burton’s
compensation should be based on the salary that she actually received.
However, the findings of fact, conclusions of law, and application of law
to fact are so interconnected that we are unable to determine whether
the commissioner’s final decision was based on his legal conclusion that
a mistake on Hilltop’s part was irrelevant because Burton had been
overpaid “for over a year and a quarter,” or a factual determination that
Burton’s pay raise was not in fact the result of an accounting error.
Accordingly, we find it necessary to remand this case to the
commissioner with instructions to make a factual determination as to
whether Burton’s $1000 per month raise was, as Hilltop claims, the
result of an accounting error. Without such an explicit factual finding
and credibility determinations, we are unable to conduct the review
required by chapter 17A. If the commissioner determines the $1000 per
month increase in Burton’s paychecks was the result of an accounting
error, then the increase was not a payment given to Burton “for
employment” but was instead a payment given to her by accident. As
such, it would not meet the definition of “gross earnings” under section
85.61(3) and could not, therefore, be included in Burton’s weekly gross
earnings under section 85.36. However, if the commissioner finds that
the $1000 per month raise was not the result of an accounting error,
then it would be money given to Burton “for employment” and therefore
should be included in her gross earnings under section 85.61(3), and her
weekly gross earning under section 85.36.
B. Including Burton’s Bonus in Her Gross Earnings. Under
section 85.61(3), the employee’s gross earnings do not include “irregular
23
bonuses.” The commissioner found Burton received “a regular annual
bonus” of $270.71 on December 16, 2005. The commissioner divided
this bonus by fifty-two to determine how much of the bonus Burton
earned per week, which was $5.20, and then multiplied it by eleven. The
commissioner used the number eleven because eleven of the thirteen
weeks of employment preceding the foot injury occurred in 2005, and the
commissioner concluded that for each of those eleven weeks, Burton
earned one-fifty-second of her regular annual bonus. The commissioner
did not add $5.20 per week to Burton’s salary in January of 2006
because Burton did not receive a bonus in 2006.
The district court remanded the issue for further analysis in light
of Noel v. Rolscreen Co., 475 N.W.2d 666 (Iowa Ct. App. 1991). In Noel,
the court of appeals held a bonus was not “regular” under 85.61(3)
because it was “subject to a condition precedent, varie[d] in amount, and
[wa]s not fixed in terms of entitlement or amount until late in the fiscal
year.” 475 N.W.2d at 668. In this case, the court of appeals found Noel
was distinguishable because the bonus had already been paid and had
been consistently paid in the past. The commissioner in this case did
not discuss the factors identified in Noel and simply stated, “According to
the testimony at the hearing this was part of a regular annual bonus that
the claimant received . . . .”
The commissioner is tasked with finding facts in order to
determine an employee’s gross earnings. When an agency has been
vested with the authority to find facts, it is also vested with the authority
to apply the law to those facts. Mycogen Seeds, 686 N.W.2d at 465.
When an agency has been clearly vested with the authority to apply law
to fact, we will only disturb the agency’s application if it is irrational,
illogical, or wholly unjustifiable. See Drake Univ. v. Davis, 769 N.W.2d
24
176, 183 (Iowa 2009); see also Iowa Code § 17A.19(10)(m). In clarifying
this standard, we have stated,
A decision is “irrational” when it is “not governed by or
according to reason.” A decision is “illogical” when it is
“contrary to or devoid of logic.” A decision is “unjustifiable”
when it has no foundation in fact or reason.
Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 432
(Iowa 2010) (citations omitted).
With this standard in mind, we turn to the commissioner’s
application of section 85.61(3) to the facts of this case. Hilltop argues,
and the district court found, the commissioner erred when he concluded
Burton’s bonus was regular without discussing the factors listed in Noel.
In Noel, the court of appeals was reviewing the commissioner’s decision
that a bonus was irregular and was not part of an employee’s gross
earnings. 475 N.W.2d at 667. The employee in Noel was paid on an
hourly basis, and under section 85.36(6), her weekly earnings were to be
calculated “by dividing by thirteen the earnings, not including overtime
or premium pay, of said employee earned in the employ of the employer
in the last completed period of thirteen consecutive calendar weeks
immediately preceding the injury.” Id. The employee was injured on
April 27, and the commissioner did not include the employee’s
anticipated Christmas bonus in her weekly earnings for the thirteen
weeks prior to April 27. Id. In order to receive a bonus for a given year,
an employee had to be an active employee on November 30 of that year.
Id. The amount of the bonus was based on the number of years of
continuous service and the employee’s gross wages. Id. The bonus was
voluntary and could be discontinued or altered by the employer at any
time, for any reason. Id.
25
The court of appeals affirmed the commissioner’s decision that the
bonus was not “weekly earnings” under section 85.36 because it was not
paid or received in the thirteen weeks prior to the injury. Id. at 667–68.
Additionally, the court affirmed the commissioner’s decision that the
bonus was not “gross earnings” under the definition found in section
85.61 because it was “not a regular bonus.” Id. at 668. Specifically, the
court noted the bonus was “a bonus of varying amounts, and is
dependent on several conditions for amount. It is subject to a condition
precedent, varies in amount, and is not fixed in terms of entitlement or
amount until late in the fiscal year.” Id.
We believe the district court and Hilltop rely too heavily on Noel
when reviewing the commissioner’s decision that Burton’s bonus was
“regular.” First, in Noel, the commissioner did not include the bonus in
the employee’s weekly earnings. Id. at 667. In this case, if the
commissioner had found Burton’s bonus was irregular, we would give
that decision the same level of deference and would only reverse if the
decision that the bonus was irregular were illogical, irrational, or wholly
unjustified. Iowa Code § 17A.19(10)(m). Second, the court of appeals did
not indicate that the factors in Noel were an exclusive or exhaustive list.
See Noel, 475 N.W.2d at 668. We have only cited Noel on one previous
occasion. See Mycogen Seeds, 686 N.W.2d at 469–70. In that case, we
stated reliance on Noel was reasonable, and therefore, the commissioner
could properly determine a penalty was not appropriate, but we did not
say that Noel contained an exclusive and exhaustive list of factors for
determining whether a bonus was “regular.” See id.
In light of the applicable standard of review, we do not feel a strict
reading of Noel is appropriate. The question before the district court was
whether the commissioner’s decision that Burton’s bonus was “regular”
26
was irrational, illogical, or wholly unjustified. Iowa Code
§ 17A.19(10)(m). The factors listed in Noel were relevant to the
commissioner’s conclusion in that case. However, their relevance to any
other case depends solely on the facts of that case. The true nature of
the inquiry requires a reviewing court to look at those facts that were and
were not considered by the agency in applying law to fact and then to
determine whether, on the whole, the agency’s application of law to fact
was irrational, illogical, or wholly unjustified. Since no two cases present
the same set of facts, we will not handcuff the agency by limiting its
inquiry. So long as the application of law to fact is not illogical,
irrational, or wholly unjustified, the agency’s decision will be upheld on
judicial review.
The commissioner relied on “the testimony at the hearing” to
conclude Burton’s bonus was regular. The testimony reveals that Burton
was hired in December of 2002, and she received a bonus in 2003, 2004,
and 2005. There is no indication of the amount of Burton’s bonus in
2003, but in 2004 Burton’s bonus was $200 and in 2005 it was $250
after withholding and $270.71 before. Sandra Ferguson, Burton’s
supervisor and the administrator of Hilltop, testified that the bonus was
“A thank you for the past year’s attentiveness or—just a thank you.
Thank you for being part of the operation.” When asked if management
felt Burton was entitled to a bonus, Ferguson stated, “As a thank you for
being part of the operation, yes.” Burton received these bonuses even
though Ferguson had to have “numerous discussions” with Burton about
Burton’s management style soon after Burton was hired. The
commissioner did not include Burton’s bonus for the weeks she worked
in 2006 because Burton was not paid a bonus in 2006.
27
According to the testimony at the hearing, every full year Burton
worked at Hilltop, she received a bonus. This bonus was paid despite
the fact that Burton’s supervisor had to have discussions about her work
with her. It was also paid to Burton for being “a part of the operation.”
Burton’s supervisor also testified that Burton was entitled to the bonus.
These are all logical reasons that would justify the commissioner’s
determination that Burton’s bonus was not irregular. Since the decision
to include Burton’s bonus in her gross earnings has a factual
foundation, was governed by reason, and was not devoid of logic, the
district court should have affirmed the commissioner on this issue. See
Sherwin-Williams, 789 N.W.2d at 432. Accordingly, the district court’s
holding is reversed.
V. Penalty Benefits Arising Out of Burton’s Foot Injury.
The commissioner imposed a $500 penalty for Hilltop’s failure to
include the $1000 per month in Burton’s weekly earnings. The
commissioner made it clear that the penalty was based on the failure to
include the $1000 per month raise when calculating Burton’s benefits
and was not based on the failure to include the bonus. For seven and a
half weeks, Hilltop paid Burton $402.18 per week instead of $547.10, for
a total deficiency of $1086.90. The commissioner ordered a penalty of
$500.
Hilltop claims that the issue of penalty benefits was not properly
raised before the commissioner. We disagree. Burton’s original petitions
for both her foot and abdominal injuries indicate that Burton was
seeking penalties under section 86.13. Penalties were discussed at the
hearing in front of the deputy and in both parties’ posthearing briefs.
They were awarded in the arbitration decision. In its request for a
rehearing, Hilltop did not argue that the issue of penalty benefits was not
28
properly before the deputy; instead, Hilltop argued the merits of the
decision to award those benefits. The issue of penalty benefits was
properly presented to the agency.
Iowa Code section 86.13 provides for penalty benefits. It reads, in
pertinent part,
If a delay in commencement or termination of benefits
occurs without reasonable or probable cause or excuse, the
workers’ compensation commissioner shall award benefits in
addition to those benefits payable under this chapter, or
chapter 85, 85A, or 85B, up to fifty percent of the amount of
benefits that were unreasonably delayed or denied.
Iowa Code § 86.13.4 We have held that a reasonable cause or excuse
“exists if either (1) the delay was necessary for the insurer to
investigate the claim or (2) the employer had a reasonable
basis to contest the employee’s entitlement to benefits. A
‘reasonable basis’ for denial of the claim exists if the claim is
‘fairly debatable.’ ”
IBP, Inc. v. Burress, 779 N.W.2d 210, 222 (Iowa 2010) (quoting
Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996)).
“ ‘A claim is “fairly debatable” when it is open to dispute on any logical
basis.’ Whether a claim is ‘fairly debatable’ can generally be determined
by the court as a matter of law.” Rodda v. Vermeer Mfg., 734 N.W.2d
480, 483 (Iowa 2007) (citation omitted). “[T]he reasonableness of the
employer’s denial or termination of benefits does not turn on whether the
employer was right. The issue is whether there was a reasonable basis
for the employer’s position that no benefits were owing.” Keystone
Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 307–08 (Iowa 2005). If
there was no reasonable basis for the employer to have denied the
4Section 86.13 was amended in 2009. 2009 Iowa Acts ch. 179, § 110. Any
delay in benefits by Hilltop would have occurred prior to the 2009 amendment.
Therefore, when discussing the issue of penalty benefits, we will continue to cite to the
2007 Code.
29
employee’s benefits, then the court must “determine if the defendant
knew, or should have known, that the basis for denying the employee’s
claim was unreasonable.” Rodda, 734 N.W.2d at 483.
Hilltop believed Burton’s salary had been artificially inflated by an
accounting error. As noted above, the commissioner never made a
factual finding on this issue. Without such a finding, we are unable to
determine whether Hilltop had a “reasonable basis” to deny Burton her
benefits. Resolution of this issue hinges on the factual finding of the
commissioner on remand. Accordingly, we reverse the decision of the
district court and remand to the district court with instructions to
remand the case to the commissioner. On remand, we ask the
commissioner to reconsider the penalty benefits issue in light of whatever
factual findings the commissioner makes regarding Hilltop’s belief that
Burton was overpaid due to an accounting error.
VI. Disposition.
When calculating Burton’s basis of compensation, Hilltop used the
salary it claims that it should have been paying Burton, rather than the
salary it was actually paying her, which was $916.67 more per month.
The commissioner used the salary Burton was actually paid and ordered
Hilltop to pay benefits on that basis. The commissioner also awarded
penalty benefits based on Hilltop’s decision to calculate Burton’s benefits
based on what Hilltop felt Burton’s salary should have been. The
commissioner also determined that Burton’s holiday bonus was a regular
bonus that should have been included in Burton’s gross earnings.
On judicial review, the district court found Burton’s basis of
compensation should only include the salary Burton was “entitled” to
receive, and Burton was not entitled to the disputed $916.67 per month.
Accordingly, the penalty benefits were reversed. The district court
30
remanded the case to the commissioner for further analysis of whether
Burton’s bonus was “regular.” The remainder of the commissioner’s
decision was affirmed. Burton appealed the decision not to include the
extra $916.67 per month for calculation of benefits, the remand for
further consideration of whether the bonus was regular, and the reversal
of the penalty benefits. Hilltop cross-appealed, claiming the district
court erred in not setting aside the commissioner’s determination
regarding the extent of the foot injury, the compensable nature of the
abdominal injury, and the permanent disability resulting from the
abdominal injury. On the appeal, the court of appeals reversed the
district court’s ruling regarding the basis of compensation, but affirmed
the district court on all other issues. On cross-appeal, the court of
appeals affirmed.
On further review, we vacate the decision of the court of appeals
and affirm in part and reverse in part the decision of the district court.
We remand the case to the district court with the following instructions
on judicial review: to remand the case to the commissioner for a factual
determination as to Hilltop’s claim that it accidentally overpaid Burton
$916.67 per month; to affirm the commissioner’s decision to include
Burton’s bonus in her weekly earnings; to reconsider the commissioner’s
imposition of a penalty in light of the factual findings regarding Hilltop’s
claim that it overpaid Burton; and to affirm the commissioner’s
determinations as to the cause, nature, and extent of Burton’s injuries.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CASE REMANDED.
All justices concur except Hecht, J., who concurs specially, and
Mansfield, J., who takes no part.
31
#09–1633, Hilltop v. Burton
HECHT, Justice (concurring specially).
I write separately to emphasize that the court’s opinion amounts to
a disavowal of the less demanding standard of judicial review applied in
Bridgestone/Firestone v. Accordino, 561 N.W.2d 60, 62 (Iowa 1997).
Although the opinion does not expressly say “Accordino is hereby
disavowed,” I believe disavowal has, as a practical matter, occurred.
The commissioner’s ruling on the parties’ motions for rehearing
expressly determined that “[u]nder the facts of this case, [Burton]
received recurring payments . . . for employment.” The court’s opinion
today concludes the quoted language of the commissioner is not a
sufficiently clear finding by the commissioner that the payments were not
the result of a mistake by the employer. Under the Accordino standard of
review, I believe this court would clearly have been required to reach a
different conclusion. Under Accordino, “the commissioner’s duty to
furnish a reasoned opinion [is] satisfied if ‘it is possible to work backward
. . . and to deduce what must have been [the agency’s] legal conclusions
and [its] findings of fact.’ ” Id. at 62 (quoting Norland v. Iowa Dep’t of Job
Serv., 412 N.W.2d 904, 909 (Iowa 1987)); see also Schutjer v. Algona
Manor Care Ctr., 780 N.W.2d 549, 560–61 (Iowa 2010) (applying
Accordino standard to “work backward” and ascertain implicit credibility
findings in workers’ compensation commissioner’s decision).
If this court had applied the Accordino standard, I believe the
commissioner’s determination that Hilltop’s recurring payments were “for
employment” would clearly have sufficed as a finding of fact rejecting
Hilltop’s claim of overpayment. This belief is based on the context in
which the commissioner’s words appear in the ruling in close proximity
following the reference to Hilltop’s assertion that the claimed
32
overpayment was the consequence of a mistake. The commissioner’s
express determination that the payments by Hilltop to Burton were “for
employment” also follows in close proximity within the ruling the finding
that Hilltop delivered bimonthly paychecks throughout the period from
January 2005 until April of 2006—a period during which Burton “was
evaluated annually and was subject to frequent monitoring by her
supervisor.” Even more significant in the contextual understanding of
the commissioner’s determination that the recurring payments were “for
employment” is the fact that this determination follows the
commissioner’s finding that the rate at which Burton was paid was
“within the mean average of food service supervisors according to the
defendants[’] own expert.” Thus, under the less demanding standard of
review followed under the former Accordino standard, when read in
context with the other language in the commissioner’s ruling, I believe
the determination that Hilltop’s payments to Burton were “for
employment” would have been viewed as an implicit but nonetheless
clearly expressed finding of fact rejecting Hilltop’s assertion that the
$1000 per month raise was the result of a mistake and not “for
employment.”
But the court has concluded the less demanding Accordino
standard should not be applied for very sound reasons. Foremost among
them is the reality that the enterprise of “working backward” to divine
facts the agency must have found and conclusions of law the agency
likely made is, at best, problematic for courts exercising judicial review. I
would strongly prefer to expressly disavow the Accordino standard to
ensure this court consistently applies the more demanding standard
announced in this case and eliminate the temptation to apply the more
lenient Accordino standard when the agency has reached an outcome
33
preferred by a majority of the court while applying the more demanding
standard when the agency has reached an outcome not favored by the
majority.