IN THE SUPREME COURT OF IOWA No. 08–0639
Filed July 17, 2009
DRAKE UNIVERSITY and EMPLOYERS MUTUAL CASUALTY COMPANY,
Appellants,
vs.
ANGELA DAVIS,
Appellee.
Appeal from the Iowa District Court for Polk County, Don C.
Nickerson, Judge.
An employer and its insurance carrier appeal a decision of the
district court affirming an award of benefits made by the workers’
compensation commissioner. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED WITH INSTRUCTIONS.
David L. Jenkins of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellants.
Thomas J. Reilly and Kyle T. Reilly of Thomas J. Reilly Law Firm,
P.C., Des Moines, for appellee. 2
WIGGINS, Justice.
The workers’ compensation commissioner awarded an employee
benefits for three separate injury dates. The employer and its insurance
carrier sought judicial review of the agency action. The district court not
only affirmed the decision of the agency, but also found the employer and
its insurance carrier were not entitled to a credit for benefits paid by a
group plan under Iowa Code section 85.38(2) (2005). 1 In this appeal, we
find the employer and its insurance carrier were not deprived of
procedural due process, substantial evidence supports the agency’s
decision, the permanent total disability benefits are not subject to
apportionment under the workers’ compensation statutes, the agency
misapportioned the benefits due for the March 16, 2001, and July 31,
2002, injuries, and the district court should not have considered the
credit for benefits issue. Therefore, we affirm in part the decision of the
district court affirming the decision of the workers’ compensation
commissioner. However, we reverse that part of the district court
judgment dealing with the apportionment of benefits for the March 16,
2001, and the July 31, 2002, injuries. Additionally, we vacate that part
of the district court judgment dealing with the credit for benefits issue because the commissioner did not consider the issue at the agency level.
I. Background Facts and Proceedings.
A. Employment History. Angela Davis began working at Drake
University 2 in the facility management area in May 1982. She worked at
Drake moving up in pay scale and job title for twenty-two and one-half
1All references in this opinion will be to the 2005 edition of the Iowa Code unless
otherwise noted.
2Drake University’s insurance carrier, Employers Mutual Casualty Company, is also a party to this action. For the sake of brevity, we will refer to both parties as “Drake.” 3
years until her termination on November 3, 2004. Davis started out as
Facility Maintainer IV, the lowest position on the scale, doing custodial
work in residence halls. Drake promoted her to Facility Maintainer III
sometime in 1983. Drake promoted her again in 1985 to Facility
Maintainer II in which position she trained new employees. Finally,
Davis was promoted in 1990 to Facility Maintainer I, the top
classification in the custodial field at Drake. Her responsibilities
included answering the phone, arranging work schedules, training new
employees, supervising student employees, and performing manual
custodial work.
Although the university continued to promote her, it did have
problems with her performance. Her employment records contained five
disciplinary reports. Davis also had many run-ins with her boss, John
Selin, the director of residential services throughout her time at Drake.
Another supervisor claimed Davis did not respect her supervisors. Some
of the complaints in Davis’s employee file dealt with her job performance,
but many more dealt with her interpersonal skills. At one point, Drake
demoted her from Facility Maintainer I to Facility Maintainer II for
creating a hostile work environment. Drake later bumped her back up to
Facility Maintainer I status.
In September 2004, Drake claimed Davis left work early without
finishing her work. Drake informed Davis that any further incident
would result in disciplinary action against her. Drake terminated Davis
on November 3 citing inflammatory and racist comments to coworkers as
well as an ongoing pattern of inappropriate behavior toward supervisors
and coworkers as the justification for the termination.
B. March 16, 2001, Injury. Davis’s first injury occurred on
March 16, 2001. She was shoveling snow outside a residential hall and 4
felt a sharp pain down her back and leg. The doctors diagnosed a left
L5-S1 herniated nucleus pulposus and performed a left L5-S1
diskectomy. After her recovery, the doctors gave Davis a ten percent
permanent partial impairment rating and a permanent lift restriction of
thirty-five pounds. Drake voluntarily paid her seventy-five weeks of
permanent disability for this injury.
C. July 31, 2002, Injury. On July 31, 2002, while performing
her duties vacuuming in the law school, Davis felt queasiness in her
stomach and weakness in her leg. An MRI scan revealed left L5-S1
epidural fibrosis plus a small recurrent herniated nucleus pulposus. She
received three epidural steroid injections for her injury. The doctor
assented to Davis’s return to work with a twenty-pound lift restriction
and allowed her to do only lightweight vacuuming on an occasional
basis. He also gave her a two percent permanent partial impairment
rating. Drake voluntarily paid her ten weeks of permanent disability for
this injury.
D. September 14, 2004, Injury. Davis alleges her third injury
occurred on September 14, 2004. Davis was working in the field house
that day and was pulling trash across the floor when she felt queasy.
She filled out an incident report of the injury. The incident report
contained no statement as to the specifics of her injury, but she thought
she told her supervisor how the injury occurred. The incident report
stated Davis was going to Concentra Medical Center, but also said her
disability was ongoing and began on March 16, 2001. Davis’s supervisor
filled out the incident report and Davis signed it.
At Concentra, Davis reported that her injury occurred around
8 a.m. and was from repetitive use of the vacuum and lifting more than
twenty pounds of trash. Concentra referred her to her previous doctor. 5
She reported to this doctor that the onset of pain had increased on
September 14, 2004. She denied a specific injury. The doctor diagnosed
her with having a herniated nucleus pulposus and spondylolisthesis.
The doctor opined the spondylolisthesis was not work-related, but the
herniated nucleus was related to her work activities. He recommended
surgical intervention.
Davis decided on November 2 to proceed with surgery. Drake fired
her the next day. Drake sought a second opinion before authorizing any
surgery. Davis told the doctor retained by Drake about the specific
incident of dragging trash in the field house and the pain she felt after
that point. On November 17 the second doctor opined Davis’s current
complaints related back to the original injury in March 2001. The
second doctor acknowledged his opinion was based on his review of a
July 2002 MRI and he did not have her recent MRI to study.
Based on this report, Drake would not authorize her surgery.
Additionally, Drake informed Davis that Drake had no notice of increased
back pain or the specific September 14 incident; therefore, it would be
denying her claim for the surgery and any other subsequent treatment.
Without Drake’s authorization, Davis had the surgery on November 22.
Davis also had a permanent implantation of a dorsal column stimulator
on August 15, 2005. A third physician rated Davis’s injury. He gave
Davis an impairment rating of twenty-six percent for the September 14,
2004, injury, which includes a three percent impairment based on the
pain from the dorsal stimulator.
Davis also saw a psychologist. The psychologist diagnosed Davis
with major depression disorder and opined her depression was related to
her work injury. He further opined Davis’s depression limited her ability 6
to function in a normal society, and that she would likely require
indefinite psychological care in the future.
Again, Drake referred Davis to a psychiatrist for a second opinion.
He found Davis had a twenty-plus year history of interpersonal
relationship problems. Further, he opined the idea that her depression
stemmed from injuries lacked credence because she did not seek
treatment and no psychiatric diagnosis indicated Davis was unable to
work.
E. Proceedings before the Iowa Workers’ Compensation
Commissioner. Davis filed her petitions in September 2004 as files
5012800, 5012801, and 5012802. File number 5012800 alleges an
injury date of March 16, 2001, with shoveling snow as the cause of the
injury. File number 5012801 lists the injury date as July 31, 2002, and
alleges vacuuming as the cause of the injury. File number 5012802
alleges repetitive use of back at work as the cause with an injury date of
September 14, 2004.
Davis amended her petition in file number 5012802 on
November 22. In that amended petition Davis stated that on
September 14, 2004, as she “carried out her work duties ‘dragging a bag
of trash,’ her back and leg pain was intensified and thus she reported her
injury.” Davis asked to amend the “petition to reflect the cumulative
process by which her injury occurred culminating with the intensified
pain she felt on 9/14/04 when she was dragging a bag of trash.” She
also amended her petition to include a claim for penalty benefits under
Iowa Code section 86.13 stating Drake failed to provide reasonable
justification for refusing to commence weekly and medical benefits.
Prior to the hearing, the parties filed hearing reports in each of the
files. The deputy commissioner approved each hearing report by signing 7
an order. The orders confirmed the parties’ stipulation that the injuries
of March 16, 2001, and July 31, 2002, arose out of and were in the
course of employment. The orders also confirmed the March 16, 2001,
injury caused a permanent disability and the commencement date for the
permanent partial disability benefits for this injury would be July 21,
2001. The orders further confirmed the parties did not dispute that
Drake paid Davis seventy-five weeks of compensation for this injury.
Finally, the orders confirmed the parties’ stipulation that the
commencement date for the permanent partial disability benefits for the
July 31, 2002, injury would be August 21, 2002, and that Drake had
paid Davis ten weeks of compensation.
The orders indicated the following issues relevant to this appeal
were in dispute: (1) whether the July 31, 2002, injury caused a
temporary or permanent disability; (2) whether Davis suffered an injury
on September 14, 2004, arising out of and in the course of her
employment; (3) the amount of benefits, if any, due from the three
injuries; (4) the apportionment of benefits among the three injuries; and
(5) the payment of medical expenses for the September 14 injury. The
parties reserved the issue of credit for benefits paid for by a group plan
for another day.
The deputy workers’ compensation commissioner issued the
arbitration decision. The deputy found Davis to be credible. He
determined Davis suffered a low back injury on September 14, 2004,
when dragging trash bags and performing other duties at work. The
deputy also found Davis did have mental health problems causally
related to her work injuries. The deputy further determined the medical
expenses submitted for this injury were fair and reasonable. 8
Additionally, the deputy determined the work injury on March 16,
2001, caused a fifteen percent permanent partial disability entitling
Davis to seventy-five weeks of benefits. He found the July 31, 2002,
injuries caused a thirty percent permanent partial disability entitling
Davis to 150 weeks of benefits. Finally, he found the September 14,
2004, injury caused a one hundred percent loss of earning capacity
entitling Davis to permanent total disability benefits during her period of
disability and continuing throughout her lifetime, absent improvement.
He also determined the benefits for this injury would begin on
November 3, 2004.
The deputy recognized the overlap in benefits regarding the first
two injuries. He stated the overlap was from August 21, 2002, through
December 3, 2002, based on the stipulated commencement dates of each
benefit. Under Iowa Code section 85.36(9)(c) (2003), the deputy
apportioned the benefits between the first and second injury.
The deputy also recognized an overlap in benefits regarding the
second and third injuries. He did not apportion these benefits because
the legislature repealed section 85.36(9)(c), effective September 7, 2004.
2004 First Extraordinary Session Iowa Acts ch. 1001, §§ 12, 18. In its
place, the legislature enacted section 85.34(7). Id. § 11. This section
was effective September 7, 2004, and applied to all injuries occurring
after its effective date. Id. § 18. The deputy held section 85.34(7)(b) does
not apply to a permanent total disability when the same employer is
involved.
Drake filed for reconsideration before the deputy. The deputy
corrected a typographical error and reaffirmed his decision. Drake
appealed the decision to the commissioner. The commissioner affirmed
and adopted the deputy’s decision as the final agency action. Drake then 9
requested judicial review by the district court. The district court affirmed
the decision of the workers’ compensation commissioner. The district
court also ruled Drake was not entitled to a credit for benefits under a
group plan. Drake appealed the decision of the district court to this
court.
II. Issues.
Drake appeals claiming: (1) the agency violated its due process
rights when the commissioner found an injury date of September 14,
2004; (2) substantial evidence did not support the commissioner’s
findings; (3) the commissioner miscalculated the apportionment between
the March 16, 2001, injury and the July 31, 2002, injury; (4) the
commissioner misapplied the apportionment of benefit statute to the
September 14, 2004, injury; and (5) the agency failed to provide a credit
for benefits under a group plan.
III. Analysis.
A. Due Process. Drake claims the agency violated its due process
rights when the agency found Davis suffered a low back injury on
September 14, 2004, when dragging trash bags and performing other
duties at work. Drake bases this claim on the belief that Davis did not
allege a specific injury occurring on September 14. Therefore, Drake
claims its procedural due process rights were violated because Drake did
not have notice and an opportunity to defend the claim.
We can reverse, modify, or grant other relief if the agency action is
unconstitutional as applied to a party. Iowa Code § 17A.19(10)(a). We
review constitutional issues raised in an agency proceeding de novo.
Insituform Techs., Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 788
(Iowa 2007). The Fourteenth Amendment requires that a party to an
agency proceeding have notice and an opportunity to defend. Carr v. 10
Iowa Employment Sec. Comm’n, 256 N.W.2d 211, 214 (Iowa 1977). Our
review of the record reveals Drake had notice and an opportunity to
defend Davis’s claim that she suffered a low back injury on September
14, 2004, when dragging trash bags and performing other duties at
Davis filed her petition on September 16, 2004. The petition stated
the cause of injury was the “[r]epetitive use of back at work.” Although
Drake may not have recognized it as a specific injury, Davis had filed an
incident report with the school on that date. In that incident report, her
supervisor acknowledged she was going to seek medical care at
Concentra Medical Center. Davis told the physicians at Concentra her
injury occurred around 8 a.m. and was from repetitive use of the vacuum
and lifting more than twenty pounds of trash.
After Drake received a medical report from the physician it retained
to give an opinion as to whether Davis’s surgery was work-related,
Drake’s attorney sent a letter to Davis’s attorney stating that Drake did
not know of any incident that increased the lower back pain. The history
Davis gave to the physician retained by Drake states, “she was dragging
trash in the field house and apparently was hung up in a doorway. She
felt sharp pain in her back . . . .” The physician sent his report to Drake
on November 17. On November 22 Davis amended her petition and
stated that on September 14, 2004, as she “carried out her work duties
‘dragging a bag of trash,’ ” she suffered intensified pain in her left leg and
back. Additionally, Drake signed a hearing report indicating it disputed
whether Davis suffered an injury on September 14.
As early as November 2004, Drake knew the cause of Davis’s
September 14 injury was an issue in this case. It was at this time Davis
claimed the injury occurred when the trash she was dragging hung up in 11
a doorway. The hearing took place in April 2006. This information and
its timing gave Drake ample notice and opportunity to defend the claim.
Drake’s claim of a due process violation is meritless.
B. Substantial Evidence. Drake makes multiple claims alleging
substantial evidence did not support the commissioner’s findings.
Specifically, Drake claims substantial evidence does not support the
agency decision: (1) finding Davis sustained a work-related injury on
September 14, 2004; (2) awarding Davis permanent partial disability
benefits for the July 31, 2002, injury; (3) declaring Davis permanently
and totally disabled; and (4) awarding medical expenses.
The legislature vested the determination of facts with the Iowa
Workers’ Compensation Commissioner. Iowa Code §§ 86.14–.24.
Therefore, we review the record as a whole for substantial evidence. Id.
§ 17A.19(10)(f) (stating we review an agency’s “determination of fact
clearly vested by a provision of law in the discretion of the agency” for
substantial evidence). Substantial evidence is:
[T]he quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
Id. § 17A.19(10)(f)(1). Viewing the record as a whole means:
that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it, including any determinations of veracity by the presiding officer who personally observed the demeanor of the witnesses and the agency’s explanation of why the relevant evidence in the record supports its material findings of fact. 12
Id. § 17A.19(10)(f)(3).
A decision of an agency does not lack substantial evidence merely
because the interpretation of the evidence is open to a fair difference of
opinion. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).
Even if we can draw different conclusions from the evidence, we must
decide whether the evidence supports the actual finding made by the
agency, not whether the evidence would support a different finding.
Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004). It is not the job of the
district court or the appellate court to determine what “evidence ‘trumps’
other evidence or whether one piece of evidence is ‘qualitatively weaker’
than another piece of evidence” when it conducts a substantial evidence
review of an agency decision. Arndt v. City of Le Claire, 728 N.W.2d 389,
394 (Iowa 2007). The legislature left those determinations to the agency.
The agency found Davis to be a credible witness. It also weighed
the testimony of the various physicians who testified as to Davis’s
physical and mental conditions. Although the record contains conflicting
evidence as to (1) whether Davis sustained a work-related injury on
September 14, 2004; (2) whether she suffered a permanent partial
disability from the July 31, 2002, injury; (3) whether Davis suffered a
permanent total disability due to the September 14, 2004, injury; and
(4) whether Davis was entitled to the medical benefits awarded by the
agency, our review of the record reveals substantial evidence supports
the agency’s findings as to these issues. Consequently, Drake’s claims
regarding the lack of substantial evidence are also without merit.
C. Apportionment of Benefits. Drake makes two separate
arguments concerning the apportionment of benefits. First, it claims the
commissioner wrongly apportioned the benefits paid due to the
March 16, 2001, injury and the July 31, 2002, injury. Second, it argues 13
the commissioner should have apportioned the benefits paid due to the
July 31, 2002, injury and the September 14, 2004, injury.
1. Apportionment between March 16, 2001, and July 31, 2002,
injuries. Drake argues the overlap in permanent partial disability
benefits for the March 16, 2001, injury and the benefits from the
July 31, 2002, injury should have been apportioned under Iowa Code
section 85.36(9)(c) (2003). Although, the agency apportioned the benefits
between the March 16, 2001, and July 31, 2002, injuries under section
85.36(9)(c), Drake argues the agency did not compute the correct overlap
time.
The resolution of this issue involves the agency’s application of law
to the facts. The legislature clearly vested the agency with the
application of the law to the facts. Iowa Code §§ 86.14–.24. We are
required to give the agency appropriate deference because the legislature
vested the application of the law to the facts with the agency. Id. §
17A.19(11)(c). We give the agency the appropriate deference by only
reversing or modifying the agency action “upon an irrational, illogical, or
wholly unjustifiable application of law to fact.” Id. § 17A.19(10)(m).
The agency determined the March 16, 2001, injury caused a fifteen
percent permanent partial disability and the July 31, 2002, injury
caused a thirty percent permanent partial disability. The March 16
injury entitled Davis to seventy-five weeks of permanent partial disability
benefits. Drake paid seventy-five weeks of disability compensation for
this injury at the rate of $287.18 per week. The starting date for these
payments was July 21, 2001.
For the July 31 injury, Drake was required to pay 150 weeks of
disability compensation at the rate of $305.52 per week beginning on
August 21, 2002. The agency calculated that the overlap time extended 14
from August 21, 2002, through December 3, 2002. During the overlap
period, the agency ordered Drake to pay $18.34 per week on the second
injury, the difference between the rates for these two injuries. Starting
on December 4, 2002, the agency ordered Drake to start paying $305.52
per week, the rate due on the July 31 injury.
The agency miscalculated the period of overlap. The agency
ordered Drake to pay benefits for seventy-five weeks due to the March 16
injury. If the payments started on July 21, 2001, they would end on
December 27, 2002, not December 3, as calculated by the agency. This
miscalculation by the agency is an illogical application of law to fact.
Therefore, Drake should have paid $18.34 per week through
December 27, 2002, for the July 31 injury and started paying the
$305.52 per week for this injury on December 28, 2002.
2. Apportionment between July 31, 2002, and September 14, 2004,
injuries. Drake claims the commissioner erred by not apportioning
Davis’s permanent total disability benefits. We generally do not
apportion the benefits from two successive work-related injuries without
a statute allowing us to do so. Mycogen Seeds v. Sands, 686 N.W.2d
457, 465 (Iowa 2004). Therefore, the workers’ compensation statutes
control the apportionment of benefits.
Presently, Iowa Code section 85.34(7) governs the apportionment of
benefits. Section 85.34(7) became effective September 7, 2004, and
applied to all injuries occurring on or after its effective date. 2004 First
Extraordinary Session Iowa Acts ch. 1001, § 18. The injury that caused
Davis’s permanent total disability occurred on September 14, 2004.
Thus, the resolution of the apportionment issue requires an
interpretation of section 85.34(7). 15
It is well settled in Iowa that “ ‘ “[t]he interpretation of workers’
compensation statutes and related case law has not been clearly vested
by a provision of law in the discretion of the agency.” ’ ” Schadendorf v.
Snap-On Tools Corp., 757 N.W.2d 330, 334 (Iowa 2008) (quoting Lakeside
Casino v. Blue, 743 N.W.2d 169, 173 (Iowa 2007)). Because the
legislature has not clearly vested the agency with the interpretation of
the law, we do not give the agency’s view of the law any deference and
can substitute our own judgment. Iowa Code § 17A.19(11)(b);
Schadendorf, 757 N.W.2d at 334. Accordingly, our review is for errors at
law. Iowa Code § 17A.19(10)(c).
Section 85.34(7)(b) applies to successive injuries at the same place
of employment with the same employer. It provides in relevant part:
If an injured employee has a preexisting disability that was caused by a prior injury arising out of and in the course of employment with the same employer, and the preexisting disability was compensable under the same paragraph of section 85.34, subsection 2, as the employee’s present injury, the employer is liable for the combined disability that is caused by the injuries, measured in relation to the employee’s condition immediately prior to the first injury. In this instance, the employer’s liability for the combined disability shall be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer.
If, however, an employer is liable to an employee for a combined disability that is payable under section 85.34, subsection 2, paragraph “u”, and the employee has a preexisting disability that causes the employee’s earnings to be less at the time of the present injury than if the prior injury had not occurred, the employer’s liability for the combined disability shall be considered to be already partially satisfied to the extent of the percentage of disability for which the employee was previously compensated by the employer minus the percentage that the employee’s earnings are less at the time of the present injury than if the prior injury had not occurred. 16
Iowa Code § 85.34(7)(b) (emphasis added).
In interpreting section 85.34(7)(b), we must determine legislative
intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa
2004). We look to the words the legislature chose to determine legislative
intent rather than what the legislature should or might have said. State
v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006). We “may not extend,
enlarge or otherwise change the meaning of a statute” under the guise of
construction. Auen, 679 N.W.2d at 590.
The plain and unambiguous language of section 85.34(7)(b)
indicates the only benefits subject to apportionment are those awarded
under section 85.34(2). Section 85.34(2) benefits include scheduled
benefits and permanent partial disability of the body as a whole. The
agency awarded Davis permanent total disability benefits under section
85.34(3). Permanent total disability benefits are not subject to
apportionment under section 85.34(7).
This interpretation is consistent with section 85.34(7)’s legislative
history. The legislature stated when it enacted the new apportionment
statute that it was intended to avoid “all double recoveries and all double
reductions in workers’ compensation benefits for permanent partial
disability.” 2004 First Extraordinary Session Iowa Acts, ch. 1001, § 20
(emphasis added). Without an apportionment statute that applies to an
award of permanent total disability benefits, there is no basis for the
agency to apportion the award. See Celotex Corp. v. Auten, 541 N.W.2d
252, 256 (Iowa 1995) (holding the industrial commissioner could not
apportion benefits without a statute authorizing him to do so; therefore,
the full responsibility rule was applicable). Therefore, the agency was
correct when it refused to apportion Davis’s permanent total disability
benefits. 17
D. Credit for Benefits Under a Group Plan. An employer may be
entitled to a credit against an award of workers’ compensation benefits
for the benefits an employee received under a group plan. Iowa Code §
85.38(2). The district court addressed the credit for benefits issue and
found Drake was not entitled to a credit.
The agency did not address the credit for benefits issue in its final
decision. We believe the agency did not address this issue because the
parties stipulated in the hearing report that any credit to which the
employer may be entitled under section 85.38(2) was “to be determined.”
When the deputy signed the order approving the hearing report, he
entered a hand-written note next to the section dealing with section
85.38(2). The notation stated the “parties [are] not asking for this [to be]
determined now.”
Iowa Code section 17A.19 governs judicial review of agency action.
“A person or party who has exhausted all adequate administrative
remedies and who is aggrieved or adversely affected by any final agency
action is entitled to judicial review . . . .” Iowa Code § 17A.19(1). Drake
is not aggrieved or adversely affected by a decision of the agency
regarding the credit for benefits issue because the agency never ruled on
the issue. Thus, the district court should not have considered the issue.
IV. Disposition.
We affirm in part the decision of the district court affirming the
judgment of the workers’ compensation commissioner. However, we
must reverse that part of the district court judgment dealing with the
apportionment of benefits for the March 16, 2001, and the July 31,
2002, injuries. Additionally, we must vacate that part of the district
court judgment dealing with the credit for benefits issue because the
commissioner did not consider the issue at the agency level. 18
Accordingly, we remand the case to the district court to enter judgment
consistent with this opinion and then the district court should remand
the matter to the agency for entry of a decision consistent with this
opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
WITH INSTRUCTIONS.