IN THE COURT OF APPEALS OF IOWA
No. 16-2230
Filed October 11, 2017
SANDRA CALLAHAN,
Plaintiff-Appellant,
vs.
HORSESHOE CASINO and ZURICH AMERICAN,
Defendants-Appellees.
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Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
Sandra Callahan appeals the district court’s ruling on judicial review
upholding the decision of the workers’ compensation commissioner denying her
claim for benefits. AFFIRMED.
Laura L. Pattermann and Eric C. Hansen of Law Offices of Gallner &
Pattermann, P.C., Council Bluffs, for appellant.
Matthew D. Hammes and Amy M. Locher of Locher Pavelka Dostal
Braddy & Hammes, L.L.C., for appellee.
Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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DANILSON, Chief Judge.
Sandra Callahan appeals the district court’s ruling upholding the workers’
compensation commissioner’s finding Callahan did not give timely notice of her
work-related injury.
The Iowa Administrative Procedure Act requires the district court to review
agency action when a party invokes the district court’s jurisdiction. Iowa Code
§ 17A.19(10) (2014). This court reviews the district court decision to determine
whether we would reach the same result as the district court. Gits Mfg. Co. v.
Frank, 855 N.W.2d 195, 197 (Iowa 2014).
Horseshoe Casino (Horseshoe) former employee Sandra Callahan filed a
petition for judicial review of the workers’ compensation commissioner’s decision.
The commissioner determined the employer did not have actual knowledge
before August 13, 2012, that Callahan’s back problems, which manifested
October 10, 2011, were work related. The commissioner concluded that there
was “no credible evidence in the record” to support the deputy’s finding to the
contrary, and because Callahan admittedly did not make her report of injury to
Horseshoe until August 13, 2012, well beyond the ninety-day limitation required
under Iowa Code section 85.23,1 Callahan’s claim was time barred.
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Iowa Code section 85.23 (2011) 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 of the injury, no compensation shall
be allowed.
In 2017, the provision was amended to add the following sentence: “For the
purposes of this section, ‘date of the occurrence of the injury’ means the date that the
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Callahan filed a petition for judicial review, contending the commissioner
misplaced the burden of proof of actual notice on Callahan; the commissioner’s
finding was not supported by substantial evidence; and the commissioner’s
application of law to facts was illogical, irrational, or wholly unjustifiable. After a
hearing, the district court upheld the commissioner’s ruling, and Callahan
appeals.
The commissioner, as trier of fact, found Callahan’s cumulative injury
manifested on October 10, 2011, and Callahan gave formal notice to her
employer that her injury was work-related on August 13, 2012. A deputy
commissioner had ruled that the employer failed to carry its burden it did not
have actual notice Callahan’s injury was work related in November or December
2011. With respect to the employer’s actual notice, the commissioner wrote:
While it clearly appears the employer was aware for quite
some time before August 2012, that claimant had a low back
condition, I do not agree with the finding that the employer had
actual knowledge before August 13, 2012, that the condition was
work related. There simply is no credible evidence in the record to
support such a finding. [Callahan’s] testimony regarding actual
notice is extremely vague and flimsy and it directly contradicts her
deposition testimony. Even if [Callahan’s] testimony at hearing
could be believed, the deposition testimony of [employer
representative] Rod Jobman clearly provides a basis for concluding
that the employer did not have actual knowledge of the causation of
Ms. Callahan’s condition at any time before Ms. Callahan reported
the injury on August 13, 2012.
The commissioner thus concluded Callahan’s claim for permanent partial
disability benefits was barred by the notice provision of Iowa Code section 85.23.
Making a determination as to whether evidence “trumps”
other evidence or whether one piece of evidence is “qualitatively
employee knew or should have known that the injury was work-related.” 2017 Iowa Acts
ch. 23, § 3.
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weaker” than another piece of evidence is not an assessment for
the district court or the court of appeals to make when it conducts a
substantial evidence review of an agency decision. It is the
commissioner’s duty as the trier of fact to determine the credibility
of the witnesses, weigh the evidence, and decide the facts in issue.
The reviewing court only determines whether substantial evidence
supports a finding “according to those witnesses whom the
[commissioner] believed.”
Arndt v. City of Le Claire, 728 N.W.2d 389, 394-95 (Iowa 2007) (alterations and
emphasis in original) (citations omitted); accord Gits Mfg., 855 N.W.2d at 198.
We have reviewed the entire record, as well as the district court’s careful
review of the law and conclusions. We first conclude the commissioner and
district court properly placed the burden of proof of the employer’s affirmative
defense upon the employer in reaching their conclusions. There is room to
disagree with the commissioner’s conclusion that “there is no credible evidence
in the record” of actual notice. Dr. Bruening submitted a “fitness for duty”
authorization to the employer which states in part, “Sandy may have to leave
work early if lower back pain gets aggravated.” This form was dated October 27,
2011. But even this statement is not specific. It does not directly state
Callahan’s condition is work related, although it might be inferred. We conclude
however, that these facts are akin to the facts in Johnson v. International Paper
Co., 530 N.W.2d 475 (Iowa Ct. App. 1995). In Johnson, a supervisor’s
knowledge that the claimant’s leg was hurting and wanted to go home did not
equate to actual knowledge or actual notice that the condition was work related.
530 N.W.2d at 477. There is substantial evidence supporting the commissioner’s
finding that the employer did not have actual notice that Callahan’s back
problems were work related until August 2012. We also conclude the
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commissioner’s determination that Callahan’s claim was time barred was not
illogical, irrational, or wholly unjustifiable. See Iowa Ct. R. 21.26(1)(a), (b), (d),
(e). We therefore affirm the district court.
AFFIRMED.
Sandra Callahan v. Horseshoe Casino and Zurich American
Combined Opinion