Iowa Insurance Institute, Iowa Defense Counsel Association, Iowa Self-Insurers' Association, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, and Iowa Association of Business and Industry v. Core Group of the Iowa Association for Justice Christopher J. Godfrey, Workers' Compensation Commissioner, Division of Workers' Compensation And Th

• Court: Supreme Court of Iowa
• Decided: June 12, 2015
• Docket: 13–1627
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 13–1627

Filed June 12, 2015

IOWA INSURANCE INSTITUTE, IOWA DEFENSE COUNSEL ASSOCIATION, IOWA SELF-INSURERS’ ASSOCIATION, PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA, NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES, and IOWA ASSOCIATION OF BUSINESS AND INDUSTRY,

Appellants,

vs.

CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE; CHRISTOPHER J. GODFREY, Workers’ Compensation Commissioner, Division of Workers’ Compensation; and THE IOWA DEPARTMENT OF WORKFORCE DEVELOPMENT,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.

Several professional and trade associations comprised of

employers, attorneys, and insurance carriers seek further review after

the district court and court of appeals affirmed the workers’

compensation commissioner’s ruling on a petition for declaratory order.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED. 2

Joseph A. Happe, Stephen M. Morain, Elizabeth R. Meyer, and

Sarah K. Franklin of Davis, Brown, Koehn, Shors & Roberts, P.C., Des

Moines, for appellants.

R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des

Moines, for appellees. 3

MANSFIELD, Justice.

In this case we are asked to determine whether the workers’

compensation commissioner correctly interpreted Iowa Code section

85.27(2) as overriding the work product immunity and therefore

requiring the disclosure of surveillance video of any claimant seeking

workers’ compensation benefits before the claimant is deposed. For the

reasons set forth herein, we conclude that section 85.27(2) is limited to

health-care-related privileges such as the physician–patient privilege.

Section 85.27(2), in other words, does not affect privileges and

protections related to the litigation process such as the work product

doctrine. Accordingly, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand this proceeding to

the commissioner.

We decline to address a number of follow-on questions related to

the work product doctrine in Iowa; our present holding is simply that

section 85.27(2) does not affect the work product doctrine and does not

give the commissioner authority to require the disclosure of anything

that would otherwise be protected as work product.

I. Background Facts and Proceedings.

Under the Iowa Administrative Procedure Act (IAPA), “Any person

may petition an agency for a declaratory order as to the applicability to

specified circumstances of a statute, rule, or order within the primary

jurisdiction of the agency.” Iowa Code § 17A.9(1)(a) (2011). The Iowa

Workers’ Compensation Commissioner has adopted a corresponding rule

allowing any person to petition the commissioner for a declaratory order.

Iowa Admin. Code r. 876—5.1. On April 20, 2012, pursuant to section

17A.9(1)(a) and rule 876—5.1, the Workers’ Compensation Core Group of 4

the Iowa Association for Justice (Core Group) 1 filed a petition for

declaratory order with the commissioner. The petition sought a

determination whether Iowa Code section 85.27(2) 2 mandates that

employers or insurance carriers defending workers’ compensation claims

must immediately provide copies of surveillance videos, photographs,

and reports concerning the claimant’s physical or mental condition upon

receiving a properly phrased discovery request.

Core Group asked the commissioner to answer ten related

questions:

a) Is Iowa Code § 85.27(2) applicable to surveillance in workers’ compensation claims?

b) Pursuant to Iowa Code § 85.27, are all privileges waived with respect to surveillance videos and photographs showing the injured worker?

c) Pursuant to Iowa Code § 85.27, are all privileges waived with respect to surveillance reports concerning the injured worker?

1CoreGroup members are attorneys who represent injured workers in workers’ compensation claims. 2Section 85.27(2) provides: Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information shall be made available to any party or the party’s representative upon request. Any institution or person releasing the information to a party or the party’s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers’ compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly. Iowa Code § 85.27(2). 5 d) Pursuant to Iowa Code § 85.27, are Defendants required to produce surveillance videos, photos, and/or reports when asked for in appropriate discovery requests?

e) Pursuant to Iowa Code § 85.27, are Defendants permitted to withhold surveillance videos, photos, and/or reports until after deposing the injured worker?

f) Pursuant to Iowa Code § 85.27, when are Defendants required to produce surveillance videos, photos and/or reports?

g) Pursuant to Iowa Code § 85.27, if the information is requested in an interrogatory, is there any privilege against or valid objection to identifying the fact that surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

h) Pursuant to Iowa Code § 85.27, if the information is requested in an interrogatory, when must Defendants identify the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

i) In the event that [questions “a” or “b”] are answered “NO,” if Defendants assert a privilege in response to a request for production of surveillance, are they also required to provide a privilege log under Iowa Rule of Civil Procedure 1.503(5) which identifies the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it?

j) Pursuant to Iowa Code § 85.27, can an injured worker move to compel production of surveillance videos, photos and/or reports, and for appropriate sanctions, under Iowa Rule of Civil Procedure 1.517?

Core Group further provided its proposed answers to these

questions: Section 85.27(2) applies to surveillance materials; all

privileges otherwise justifying withholding of surveillance materials when

requested in discovery are waived; and employers or insurance carriers

must disclose surveillance materials promptly when requested without

first taking the claimant’s deposition.

Desiring input from multiple organizations representing various

interests in workers’ compensation proceedings, the commissioner 6

invited interested parties to intervene. See generally Iowa Code

§ 17A.9(4); Iowa Admin. Code r. 876—5.3. Four professional and trade

associations, including the Iowa Insurance Institute, intervened. 3

On June 26, the commissioner held a hearing on the petition for

declaratory order. At the hearing, Core Group asserted section 85.27(2)

applies to surveillance materials because surveillance footage,

photographs, and reports are “information . . . concerning the employee’s

physical or mental condition relative to the claim.” See Iowa Code

§ 85.27(2). In response, the Institute as a threshold matter contended

the commissioner should decline to rule on the petition for declaratory

order because the issue would be better resolved in a contested case

proceeding. The Institute urged that the declaratory order framework

might leave out several necessary parties and that Core Group lacked

standing to petition for a declaratory order. See Iowa Code

3The intervenors represent the interests of various employers, insurers, and attorneys. In its petition for intervention, the Iowa Insurance Institute explained it “is an association composed of Iowa based property/casualty insurance companies and out of state property/casualty insurance companies that write significant volumes of coverage in Iowa.” The Iowa Defense Counsel Association (IDCA) and the Iowa Self Insurers’ Association (ISIA) joined Iowa Insurance Institute’s petition for intervention. IDCA explained it “is an organization comprised of approximate[ly] 335 lawyers and claims professionals actively engaged in the practice of law or in work relating to handling of claims or defense of legal actions.” ISIA is an organization whose members are self-insured Iowa employers and therefore may be involved in workers’ compensation proceedings from time to time. Property Casualty Insurers Association of America (PCI) intervened separately to raise procedural objections to the declaratory order petition. PCI’s members also write workers’ compensation insurance in Iowa. Two other trade associations—the National Association of Mutual Insurance Companies (NAMIC) and the Iowa Association of Business and Industry (IABI)— intervened after the case reached the district court. NAMIC and IABI joined in the legal arguments presented by the Iowa Insurance Institute, IDCA, ISIA, and PCI. In the petition for intervention, NAMIC explained it “is a trade association of approximately 1400 mutual property and casualty insurance companies, some of whom issue Workers’ Compensation coverage to employers in . . . Iowa.” IABI explained it “is an organization of over 1400 Iowa businesses [that] employ over 300,000 persons covered by Iowa’s Workers’ Compensation Act.” We refer to all six intervenors collectively as “the Institute.” 7

§ 17A.9(1)(b)(2) (“[A]n agency shall not issue a declaratory order that

would substantially prejudice the rights of a person who would be a

necessary party and who does not consent in writing to the

determination of the matter by a declaratory order proceeding.”); Iowa

Admin. Code r. 876—5.9(1)(2) (providing the commissioner “may refuse

to issue a declaratory order” if “[t]he petition does not contain facts

sufficient to demonstrate that the petitioner will be aggrieved or adversely

affected” if an order is not issued). The Institute further asserted that if

the commissioner ruled on the petition, he should conclude section

85.27(2) does not mandate that employers disclose surveillance materials

before deposing a claimant.

On October 23, the commissioner ruled on the petition for

declaratory order. The commissioner concluded section 85.27(2) applies

to surveillance materials and waives the work product privilege except to

the extent that requested materials contain “mental impressions,

conclusions, opinions, or legal theories of an attorney or other

representative of a party concerning the litigation.” See Squealer Feeds v.

Pickering, 530 N.W.2d 678, 689 (Iowa 1995) (internal quotation marks

omitted), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus.

Refrigeration, Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). He further

concluded employers or insurers must produce surveillance materials

upon request from a claimant and may not withhold the materials until

after deposing the claimant.

The ruling relied on a literal interpretation of the phrase “all

information” in rejecting the Institute’s assertion that section 85.27(2)

refers only to the release of medical records and reports. Additionally,

the commissioner acknowledged surveillance materials are used to test a

claimant’s veracity, but noted “the veracity [being tested] relates to the 8

claimant’s physical or mental condition” and is therefore included within

section 85.27(2). Finally, the commissioner concluded predeposition

disclosure of surveillance materials does not vitiate all impeachment

value, stating, “An implausible answer as to why a claimant was shown

in surveillance performing certain physical activities will still impeach a

claimant’s testimony.”

The commissioner’s ruling addressed questions (a) through (h) and

(j) presented by Core Group and was based entirely on the

commissioner’s interpretation of Iowa Code section 85.27(2). The

commissioner did not reach question (i), the only question that did not

involve interpretation of section 85.27(2).

The Institute sought judicial review in the district court. See

generally Iowa Code § 17A.19(10) (setting forth grounds on which a

district court reviewing agency action may grant relief from that agency

action). The district court affirmed the commissioner’s ruling in its

entirety.

The Institute appealed, and we transferred the case to the court of

appeals. The court of appeals likewise affirmed the commissioner’s

declaratory order, with one member of the panel dissenting. The

Institute sought, and we granted, further review.

II. Standard of Review.

We must resolve three questions: (1) whether section 17A.9

prohibited the commissioner from ruling on the petition for declaratory

order, (2) whether the commissioner should have declined to issue a

ruling for reasons set forth in the agency’s rules, and (3) whether the

commissioner’s interpretation of section 85.27(2) is correct.

Iowa Code section 17A.9(1)(b)(2) states an agency “shall not issue a

declaratory order that would substantially prejudice the rights of a 9

person who would be a necessary party.” Relying on this section, the

Institute asserts the declaratory order proceedings left out necessary

parties who would be substantially prejudiced, and therefore, the

commissioner’s decision to rule exceeded his authority. The parties

agree that our review of this point is for correction of errors at law.

Section 17A.9(1)(b)(1) provides that an agency shall not issue a

declaratory order when it “determines that issuance of the order under

the circumstance would be contrary to a rule” adopted by the agency.

Iowa Code § 17A.9(1)(b)(1). The commissioner’s rules list several

circumstances when the commissioner “may refuse to issue a declaratory

order.” Iowa Admin. Code r. 876—5.9(1). We review the commissioner’s

exercise of this discretion for an abuse of discretion.

We also review the commissioner’s actual interpretation of Iowa

Code section 85.27(2) for errors at law. See Iowa Code § 17A.19(10)(c).

In recent years, we have repeatedly declined to give deference to the

commissioner’s interpretations of various provisions in chapter 85. See

Staff Mgmt. v. Jimenez, 839 N.W.2d 640, 648 (Iowa 2013) (“In our prior

cases, we held the legislature has not delegated any interpretive

authority to the workers’ compensation commissioner to interpret Iowa

Code chapter 85.”); Waldinger Corp. v. Mettler, 817 N.W.2d 1, 7 (Iowa

2012) (holding that the commissioner was not clearly vested with

interpretive authority for section 85.34(1)); Neal v. Annett Holdings, Inc.,

814 N.W.2d 512, 519 (Iowa 2012) (concluding the legislature “did not

vest the authority to interpret the phrase ‘suitable work’ for purposes of

Iowa Code section 85.33(3) in the . . . commission[er]”); Burton v. Hilltop

Care Ctr., 813 N.W.2d 250, 261 (Iowa 2012) (“[W]e will substitute our

own interpretation of sections 85.36 and 85.61(3) if we find the

commissioner’s interpretation was erroneous.”); Swiss Colony, Inc. v. 10

Deutmeyer, 789 N.W.2d 129, 133 (Iowa 2010) (“Using the refined

standard in Renda [v. Iowa Civil Rights Commission, 784 N.W.2d 8, 11

(Iowa 2010)], we are not convinced the legislature intended to vest the

commissioner with the authority to interpret Iowa Code section

85.34(5).”). Additionally, any terms of section 85.27(2) at issue here are

“not uniquely within the subject matter expertise of the agency.” Renda,

784 N.W.2d at 14.

III. Analysis.

A. The Commissioner’s Decision to Rule on Core Group’s

Petition. We first address the Institute’s contention that the

commissioner should not have issued a declaratory order for either of the

two reasons set forth in Iowa Code section 17A.9. Iowa Code section

17A.9 establishes the procedure for agencies to issue declaratory orders.

In a recent case, we held a party “fail[s] to exhaust administrative

remedies by not seeking a declaratory order under section 17A.9(1)(a)

prior to petitioning for judicial review.” Sierra Club Iowa Chapter v. Iowa

Dep’t of Transp., 832 N.W.2d 636, 643, 648 (Iowa 2013). We determined

the legislature intended declaratory orders to serve as a practical

alternative to judicial declaratory judgments. See id. at 646–47.

The original version of Iowa Code section 17A.9 was only two

sentences long. See Sierra Club, 832 N.W.2d at 643. In 1998, the

general assembly adopted an amended version of section 17A.9, based

upon the 1981 amendments to the Model State Administrative Procedure

Act. See id. The post-1998 version of section 17A.9 provides that an

agency “shall” issue a declaratory order when petitioned to do so unless

the agency determines that issuance of an order “would be contrary to a

rule” or the order “would substantially prejudice the rights of a person

who would be a necessary party and who does not consent in writing to 11

the determination of the matter by a declaratory order proceeding.” Iowa

Code § 17A.9(1)(b)(1)–(2). The section goes on to require each agency to

adopt rules “describ[ing] the classes of circumstances in which the

agency will not issue a declaratory order.” Id. § 17A.9(2).

Professor Arthur Bonfield, the reporter–draftsperson for the 1998

amendments, provided the following explanation regarding the revised

version of Iowa Code section 17A.9 and the situations when declaratory

orders should not be issued:

This section repeals the declaratory order provision contained in current IAPA section 17A.9. Iowa law has not previously required that an agency issue a ruling, and has not contemplated indispensable parties in the declaratory order proceeding. Under this proposed provision, however, an agency is required to issue a declaratory order unless (i) such an order is contrary to a rule properly adopted by the agency in accordance with subsection (2), or (ii) such an order substantially prejudices the rights of any person who would be an indispensable party to the proceeding and who has not consented in writing to a determination of the matter by a declaratory order. In the first case, the rule adopted by the agency must delineate the circumstances in which a declaratory order will not be issued. In the second case, note that some indispensable parties might refuse to consent because, in a declaratory order proceeding, they lack many of the procedural rights to which they are entitled in a contested case proceeding.

Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act,

Report on Selected Provisions to Iowa State Bar Association and Iowa

State Government 37 (1998) (hereafter Bonfield). 4

4This explanation is similar to the official comment to the 1981 model act: [A]s subsection (a) makes clear, an agency must issue a declaratory order upon receipt of a proper petition therefor unless it determines that under the particular circumstances its issuance would either (1) be contrary to a rule issued in accordance with subsection (b) [enacted as subsection (2) in Iowa], or (2) would substantially prejudice the rights of any persons who would be indispensable parties to the proceeding and do not consent to determination of the matter by a declaratory order. 12

1. Whether a necessary party would be substantially prejudiced.

The Institute asserts numerous employers and insurers did not

participate in the declaratory order proceedings but should be deemed

necessary parties. See Iowa Code § 17A.9(1)(b)(2). However, the Institute

has not identified any specific necessary parties that did not participate

in the declaratory order proceedings and has not explained how the

interests of any nonparticipants might differ from the broad range of

interests represented by the Institute.

Ultimately, we conclude that even if some necessary parties did not

participate in the declaratory order proceedings, the commissioner’s

decision to rule did not substantially prejudice them. According to its

own petition for intervention, the Institute “collectively represent[s] the

majority of workers’ compensation Defendants in Iowa, and many of their

legal advocates.” In the same petition, though, the Institute stated that it

did “not have authority to bind [its] members to the determination of the

matters presented in this declaratory order proceeding.” See Iowa

Admin. Code r. 876—5.12 (indicating that a declaratory order “is binding

[only] on the . . . commissioner, the petitioner, and any intervenors who

consent to be bound”).

This tightrope walk by the Institute demonstrates to us that the

requirements of Iowa Code 17A.9(1)(b)(2) have been satisfied. Practically

speaking, the commissioner’s declaratory order—especially once reviewed

by this court—can affect nonparties as a precedent. But of course that is

true of any declaratory order, and any contested case proceeding as well.

See Iowa Admin. Code r. 876—5.12 (“A declaratory order has the same

_____________________________________ Model State Admin. Procedure Act § 2-103 cmt. (amended 1981), 15 U.L.A. 27 (2000). 13

status and binding effect as a final order issued in a contested case

proceeding.”). We think the prejudice must be more than just

precedential effect, 5 especially when a broad range of interests were

represented in the declaratory order proceeding and the Institute cannot

identify an interest that was not represented. The commissioner

correctly concluded section 17A.9(1)(b)(2) did not preclude a ruling on

Core Group’s petition.

2. Agency rules. Pursuant to the mandate in section 17A.9(2), the

commissioner has adopted regulations guiding the decision whether to

rule on declaratory order petitions. See Iowa Code § 17A.9(2); Iowa

Admin. Code r. 876—5.9. The agency’s rule provides the commissioner

“shall not issue a declaratory order where prohibited by Iowa Code

section 17A.9(1).” Iowa Admin. Code r. 876—5.9(1). Additionally, the

regulations provide the commissioner “may refuse to issue a declaratory

order on some or all questions” if one or more criteria are satisfied. Id. r.

876—5.9(1). Three of these criteria are pertinent here: subsections (2),

(5), and (9). Id. r. 876—5.9(1)(2), (5), (9).

Subsection (2) allows the commissioner to refuse to rule if he or

she concludes “[t]he petition does not contain facts sufficient to

demonstrate that the petitioner will be aggrieved or adversely affected” if

the commissioner does not issue an order. Id. r. 876—5.9(1)(2).

Subsection (5) allows the commissioner to decline to rule if he or she

determines “[t]he questions presented by the petition would more

5The term “indispensable party” normally means someone whose interests will be more directly affected than by the precedential effect of a ruling. See Sear v. Clayton Cnty. Zoning Bd. of Adjustment, 590 N.W.2d 512, 517 (Iowa 1999) (stating that parties who had obtained a variance as the result of a zoning decision were indispensable parties to a certiorari proceeding challenging the decision because “[b]y annulling the special variance they had been granted, the actions of the district court necessarily affected the Sears’ interest in their land”). 14

properly be resolved in a different type of proceeding or by another body

with jurisdiction over the matter.” Id. r. 876—5.9(1)(5). Subsection (9)

authorizes the commissioner to refuse to rule if he or she determines a

ruling “would necessarily determine the legal rights, duties, or

responsibilities of other persons . . . whose position on the questions

presented may fairly be presumed to be adverse to that of petitioner.” Id.

r. 876—5.9(1)(9).

The Institute asserts the “aggrieved or adversely affected” standard

under subsection (2) is tantamount to a requirement that Core Group

demonstrate standing. See id. r. 876—5.9(1)(2); see also Bonfield at 37–

38 (noting that “an agency may include in its rules reasonable standing,

ripeness, and other requirements for obtaining a declaratory order”). We

have often referred to similar language as a requirement that parties

seeking judicial review under chapter 17A demonstrate standing. See

City of Des Moines v. Pub. Emp’t Relations Bd., 275 N.W.2d 753, 759

(Iowa 1979); see also Richards v. Iowa Dep’t of Revenue & Fin., 454

N.W.2d 573, 575 (Iowa 1990); Iowa Power & Light Co. v. Iowa State

Commerce Comm’n, 410 N.W.2d 236, 239 (Iowa 1987). We have not

decided, however, what standing a party must have to initiate declaratory

order proceedings. 6

It is noteworthy that “[s]ection 17A.9 contemplates rulings based

on purely hypothetical facts, and renders them subject to review.”

Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983); accord City of

Des Moines, 275 N.W.2d at 758; cf. Tindal v. Norman, 427 N.W.2d 871,

6InWomen Aware v. Reagen, the agency declined to rule on a petition for declaratory order in part because the petition “failed to show petitioners had standing to challenge [the agency’s prior decision].” 331 N.W.2d 88, 89 (Iowa 1983). However, we resolved that case on other grounds without reaching the standing issue. See id. at 93. 15

873 (Iowa 1988) (concluding the declaratory order procedure was

inapplicable in a case presenting an actual controversy because “section

17A.9 contemplates rulings on purely hypothetical sets of facts, not on

concrete challenges”). This means that in many declaratory order

proceedings, it is possible no party can demonstrate the type of concrete

or imminent particularized injury we typically require for standing in

contested cases.

The commissioner’s rules are discretionary; they provide that the

commissioner “may refuse to issue a declaratory order . . . for the

following reasons.” Iowa Admin. Code r. 876—5.9(1) (emphasis added).

Whether or not Core Group would be aggrieved or adversely affected if its

request for a declaratory order were denied, the commissioner could have

concluded “the importance and nature of the questions [to be] decided”

would justify dispensing with a strict standing requirement. City of Des

Moines, 275 N.W.2d at 759 (concluding the mootness doctrine should not

preclude judicial review of a declaratory order proceeding due to the

important questions at issue). We conclude the commissioner did not

abuse his discretion in deciding to rule on Core Group’s petition

notwithstanding rule 876—5.9(1)(2).

Next, the Institute contends the commissioner should have

declined to rule because, under subsection (5), “[t]he questions presented

by the petition would more properly be resolved in a different type of

proceeding”—specifically, either a contested case proceeding or a

rulemaking proceeding. See Iowa Admin. Code r. 876—5.9(1)(5).

Relatedly, the Institute asserts the commissioner’s ruling establishes an

improper one-size-fits-all rule that does not allow for consideration of

factual nuances in future contested cases. At the same time, the

Institute also criticizes the commissioner’s ruling for promulgating a 16

sweeping rule, when declaratory orders are intended to provide only

comparatively narrow advice for parties requesting them. See Arthur

Earl Bonfield, The Iowa Administrative Procedure Act: Background,

Construction, Applicability, Public Access to Agency Law, the Rulemaking

Process, 60 Iowa L. Rev. 731, 813 (1975) (suggesting agencies “should

require great specificity and precision” in petitions for declaratory orders

so that agencies are not “bombarded with petitions seeking answers to

. . . excessively general fact situations”).

The legislature has granted agencies multifaceted authority.

Agencies assert their authority in a quasi-judicial way when deciding

contested cases; and beyond the realm of contested cases, agencies

utilize the authority vested in them by the legislature when they

promulgate rules and rule on petitions for declaratory orders. Compare

Iowa Code § 17A.4, with id. § 17A.9, with id. §§ 17A.15–.16. Agency

action through the exercise of one of these manifestations of authority

does not foreclose action through another. See Lenning v. Iowa Dep’t of

Transp., 368 N.W.2d 98, 102 (Iowa 1985) (concluding agencies can

develop legal principles through contested cases and rulemaking

procedures, without limiting themselves to one or the other); Young

Plumbing & Heating Co. v. Iowa Natural Res. Council, 276 N.W.2d 377,

382 (Iowa 1979) (“Either means may be used so long as the statutory

procedure is complied with.”). While the commissioner would have been

within his discretion in declining to issue a declaratory order here, he did

not abuse that discretion in going forward. The issues that he reached

were purely legal, as acknowledged by the Institute at oral argument.

And the commissioner received input from diverse parties, as would have

likely occurred in a rulemaking. Accordingly, the prospect that the

commissioner could address the discoverability of surveillance materials 17

in a contested case or in an agency rule does not foreclose his issuance

of a declaratory order on the same subject.

Lastly, the Institute contends that the commissioner should not

have ruled on Core Group’s petition because it had the effect of

“necessarily determin[ing] the legal rights, duties, or responsibilities of

other persons . . . whose position on the questions presented may fairly

be presumed to be adverse to that of petitioner.” Iowa Admin. Code r.

876—5.9(9). We find no abuse of discretion under the circumstances

presented here. As explained above, the commissioner solicited, and

received, submissions from parties opposed to Core Group’s petition.

B. Whether Section 85.27(2) Applies to Surveillance Materials.

Having concluded the commissioner acted within his discretion in ruling

on the petition, we turn to the underlying question: What effect does

Iowa Code section 85.27(2) have on surveillance materials? Specifically,

we must determine whether “all information . . . concerning the

employee’s physical or mental condition relative to the claim” includes

work product that was obtained after the claim was filed and that may

shed light on the employee’s condition or whether the phrase is limited to

records and information normally kept by health care providers.

Furthermore, if section 85.27(2) applies to work product, we must also

determine whether it requires that the relevant information must be

turned over to the requesting party immediately or whether the employer

can withhold the material until the claimant is deposed.

Section 85.27(2) provides:

Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information 18 shall be made available to any party or the party’s representative upon request. Any institution or person releasing the information to a party or the party’s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers’ compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.

Iowa Code § 85.27(2).

Core Group contends that the phrase “all information . . . concerning the employee’s physical or mental condition relative to the

claim” means the legislature intended the section to apply to surveillance

footage, photographs, and reports. Core Group further contends that the

reference to “waives any privilege” includes waiver of the work product

protection and that the relevant surveillance materials must be disclosed

before deposing the claimant in a given case. The Institute, on the other

hand, contends the section should be interpreted more narrowly to apply

only to health care provider records.

1. Surveillance as work product. Before delving into the meaning

of Iowa Code section 85.27(2) ourselves, we believe it is helpful to discuss

the potential status of surveillance as work product under the Iowa Rules

of Civil Procedure. 7 Iowa Rule of Civil Procedure 1.503(3) protects

materials “prepared in anticipation of litigation.” Iowa R. Civ. P. 1.503(3);

see also Keefe v. Bernard, 774 N.W.2d 663, 673 (Iowa 2009). The Iowa

rule resembles Federal Rule of Civil Procedure 26(b)(3), “and the history

7Those rules generally apply in workers’ compensation proceedings unless

otherwise superseded. See Iowa Admin. Code r. 876—4.35 (“The rules of civil procedure shall govern the contested case proceedings before the workers’ compensation commissioner unless the provisions are in conflict with these rules and Iowa Code chapters 85, 85A, 85B, 86, 87 and 17A, or obviously inapplicable to the workers’ compensation commissioner.”). 19

and cases under the federal rule provide guidance in interpreting the

Iowa counterpart.” Ashmead v. Harris, 336 N.W.2d 197, 199 (Iowa 1983)

(citing Fed. R. Civ. P. 26(b)), abrogated on other grounds by Wells Dairy,

690 N.W.2d at 47–48.

Iowa Rule of Civil Procedure 1.503(3) and Federal Rule of Civil

Procedure 26(b)(3) provide specific parameters for the work product

doctrine:

Like its federal counterpart, Iowa Rule of Civil Procedure 1.503(3) provides for production of “documents and tangible things” that have been “prepared in anticipation of litigation” by opposing counsel “only upon a showing that the party seeking discovery has substantial need of the materials . . . and . . . is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” This rule requires the court, however, to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney” when ordering such discovery.

Keefe, 774 N.W.2d at 673 (alteration in original) (quoting Iowa R. Civ. P.

1.503(3)); see also Fed. R. Civ. P. 26(b)(3).

There are “two tiers of work product recognized by Iowa rule

1.503(3).” Keefe, 774 N.W.2d at 674; see also Squealer Feeds, 530

N.W.2d at 689 (“[A] claimant must focus on the availability from other sources of the facts necessary to establish his claim . . . . [I]n no event

are the mental impressions, conclusions, opinions, or legal theories of an

attorney or other representative of a party concerning the litigation

discoverable.” (Internal quotation marks omitted.)). In the lower tier,

work product containing or consisting of relevant facts may be

“discoverable upon a showing of substantial need and undue hardship.”

Keefe, 774 N.W.2d at 674 (internal quotation marks omitted). The upper

tier insulates from discovery any work product revealing attorneys’ 20

mental impressions and conclusions—“[t]hose materials are absolutely

immune.” Squealer Feeds, 530 N.W.2d at 689.

To constitute work product, something must be (1) a document or

tangible thing, (2) prepared in anticipation of litigation, and (3) prepared

by or for another party or by or for that party’s representative. See Iowa

R. Civ. P. 1.503(3). In 2004, we adopted a new standard for determining

whether a document or tangible thing is prepared in anticipation of

litigation. See Wells Dairy, 690 N.W.2d at 48. If a document or tangible

thing may fairly be said to have been prepared or obtained because

litigation is foreseeable or ongoing, it constitutes work product; litigation

need not be the primary reason for creating or obtaining the materials.

See id. (“Rule 1.503(3) merely requires a document to be prepared in

anticipation of litigation. It does not require the primary purpose

motivating the creation of the document to be to aid in litigation.”).

It is clear that surveillance materials are documents or tangible

things, prepared in anticipation of litigation, by or for another party or

that party’s representative. We therefore agree with the prevailing view

in jurisdictions following the federal definition of work product that

surveillance materials are protected, lower-tier materials, at least

initially. See Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D.

Iowa 1994) (“Surveillance materials are certainly prepared in anticipation

of litigation.”); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. Dist. Ct. App.

2005) (“Clearly any documents, reports or video tapes prepared by the

investigators are now protected by the work product privilege.”); Pioneer

Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t

seems needless to record the activities of the claimant unless it is

anticipated that those recordings will be used against the claimant

during litigation.”); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding 21

that surveillance material is “work product” that is “qualifiedly immune

from discovery”); In re Weeks Marine, 31 S.W.3d 389, 391 (Tex. Ct. App.

2000) (“[T]he surveillance report that includes photographs of Martinez

and the video tape are privileged as work product.”). But see Shields v.

Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 855 (Ill. App. Ct. 2004)

(finding that surveillance is not work product under the Illinois

definition, which differs from the federal definition and does not offer

protection to materials that do not reveal “any mental processes or other

such conceptual data”); Moak v. Ill. Cent. R.R., 631 So. 2d 401, 404 (La.

1994) (finding that surveillance is not work product under Louisiana law

because Louisiana’s work product exclusion refers only to “writing” and

not to other tangible things like videos or photographs); Dominick v.

Hanson, 753 A.2d 824, 826 (Pa. Super. Ct. 2000) (“Although this

evidence constitutes work product because it is prepared solely in

anticipation of litigation, [Pennsylvania Rule of Civil Procedure] 4003.3

provides that work product is discoverable, with the exception of the

mental impressions and opinions of the party’s attorney and other

representatives.”).

The consensus also seems to be that surveillance loses the status

of protected work product once a determination is made that the

surveillance will be used at trial. Donovan v. AXA Equitable Life Ins. Co.,

252 F.R.D. 82, 82 (D. Mass. 2008) (finding that surveillance, if it will be

used at trial, must be produced in discovery once the plaintiff has been

deposed); Dodson v. Persell, 390 So. 2d 704, 707–08 (Fla. 1980) (finding

the contents of surveillance films and materials are subject to discovery

where they are to be presented at trial but that allowing the discovery

deposition before disclosure “is an appropriate middle road to ensure

that all relevant evidence reaches the trier of fact in a fair and accurate 22

fashion”); see also Wegner, 153 F.R.D. at 159 (finding a substantial need

exists for production when the materials will be used against the plaintiff

at trial); Pioneer Lumber, 673 N.E.2d at 17 (“Bartels has a substantial

need for the tape only if Pioneer and Wiesemann intend to present it at

trial.”); Cabral, 556 A.2d at 50 (holding that a substantial need exists for

production of surveillance once a decision is made to use it at trial, but

the surveillance can be withheld until after deposition).

2. Is Iowa Code section 85.27(2) ambiguous? Our first step in

interpreting section 85.27(2) is to determine whether the phrase “all

information . . . concerning the employee’s physical or mental condition

relative to the claim” is ambiguous. Iowa Code § 85.27(2). Again, in the

view of Core Group, it applies to any information that may bear upon the

employee’s physical or mental condition, including otherwise protected

work product. According to the Institute, it applies only to information

that addresses the employee’s physical or mental condition directly, as a

health care provider record would, rather than inferentially. 8

“ ‘A statute is ambiguous if reasonable minds could differ or be

uncertain as to the meaning of the statute.’ ” Mall Real Estate, L.L.C. v.

City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (quoting Sherwin– Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424 (Iowa 2010)).

We have said that “[a]mbiguity may arise from specific language used in

8One parallel to this current debate exists under federal bankruptcy law. Title 11, section 523(a)(2)(B) excepts from discharge debts that were obtained by use of a materially false written statement “respecting the debtor’s . . . financial condition.” 11 U.S.C. § 523(a)(2)(B) (2012). Different views have emerged in the courts over how to interpret the phrase “statement . . . respecting the debtor’s . . . financial condition.” See In re Kosinski, 424 B.R. 599, 608–10 (B.A.P. 1st Cir. 2010). Under one view, any statement that has a bearing on the debtor’s financial condition is included; under another, the statement must at least informally describe the debtor’s overall financial condition. See id. 23

a statute or when the provision at issue is considered in the context of

the entire statute or related statutes.” Id. (quoting Sherwin–Williams Co.,

789 N.W.2d at 425). In other words, even if the meaning of words might

seem clear on their face, their context can create ambiguity.

That is because we read statutes as a whole rather than looking at

words and phrases in isolation. See, e.g., Phillips v. Chi. Cent. & Pac.

R.R., 853 N.W.2d 636, 649 (Iowa 2014) (noting that statutory terms are

often “clarified by the remainder of the statutory scheme” (internal

quotation marks omitted)); Den Hartog v. City of Waterloo, 847 N.W.2d

459, 462 (Iowa 2014) (“We have often explained we construe statutory

phrases not by assessing solely words and phrases in isolation, but

instead by incorporating considerations of the structure and purpose of

the statute in its entirety.”); In re Estate of Melby, 841 N.W.2d 867, 879

(Iowa 2014) (“When construing statutes, we assess not just isolated

words and phrases, but statutes in their entirety . . . .”); see also Iowa

Code § 4.1(38) (“Words and phrases shall be construed according to the

context and the approved usage of the language . . . .”).

As we examine Iowa Code section 85.27 in its entirety, we see that

all the other subsections relate to health care services. For example,

subsection (1) provides as follows:

1. The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.

Iowa Code § 85.27(1); see also id. § 85.27(3) (providing that disputed

“health service provider charges” may be referred to the commissioner for 24

determination); id. § 85.27(4) (discussing the furnishing and cost of

“reasonable services and supplies to treat an injured employee”); id.

§ 85.27(5) (requiring an employer to “repair or replace” any “artificial

member or orthopedic device . . . damaged or made unusable by

circumstances arising out of and in the course of employment”); id.

§ 85.27(6) (providing that while a contested case is pending before the

commissioner, “no debt collection . . . shall be undertaken against an

employee . . . for the collection of charges for . . . treatment rendered an

employee by any health service provider”); id. § 85.27(7) (discussing when

an employee is entitled to pay following “sustaining a compensable

injury”).

Thus, when the legislature adopted subsection (2) in 1976, it stuck

it within an existing provision (section 85.27) that concerned health care

services. This would be an unusual place to situate a provision intended

to override the litigation work product doctrine. It also tends to support

the Institute’s view that section 85.27(2) pertains to records of health

care services. See, e.g., State v. Robinson, 859 N.W.2d 464, 487 (Iowa

2015) (examining the context in which Iowa Code section 804.20 appears

in the Code and concluding that it “applies to the period after arrest but

prior to the formal commencement of criminal charges”).

Hence, after considering both the wording of section 85.27(2) and

its context, we conclude that reasonable minds could differ as to whether

it encompasses surveillance video of a claimant obtained for litigation

purposes. This means we need to resort to our established tools of

statutory interpretation.

3. Other language in section 85.27(2) itself. In addition to

considering section 85.27 as a whole, we must of course focus on the

wording of section 85.27(2) itself. 25

Core Group justifiably attaches significance to the words “all

information.” See Iowa Code § 85.27(2). In a number of past

pronouncements, we have indicated that the word “all” is quite broad.

For example, we have said that the word “is commonly understood and

usually does not admit of an exception, addition or exclusion.” Consol.

Freightways Corp. of Del. v. Nicholas, 258 Iowa 115, 121, 137 N.W.2d

900, 904 (1965); see also Luttenegger v. Conseco Fin. Servicing Corp., 671

N.W.2d 425, 433–34 (Iowa 2003) (noting that when a statute describes

“all charges . . . including” four examples, the word “including” cannot

create an exclusive list because that “would conflict with the word ‘all’ ”

(internal quotation marks omitted)); Barron v. State Farm Mut. Auto. Ins.

Co., 540 N.W.2d 423, 426 (Iowa 1995); Cedar Rapids Cmty. Sch. Dist. v.

City of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960)

(“The word ‘all’ is commonly understood, and when so used does not

admit of an exception or exclusion not specified.”); In re Peers’ Estate,

234 Iowa 403, 411, 12 N.W.2d 894, 898 (1944) (“[W]e cannot by judicial

interpretation nullify the definite pronouncements of the legislature

which has particularly declared that the statute in question applies to ‘all

claims.’ ”).

Yet in some cases, we have concluded the word “all” means

something short of all-inclusive. See, e.g., In re Estate of Troester, 331

N.W.2d 123, 126 (Iowa 1983) (“To interpret literally the words ‘all orders’

. . . to apply to all procedural orders would lead to a[n] undesired

result.”); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880–81 (Iowa

1976) (concluding the words “all uses” in a zoning ordinance did not

mean every lot was required to satisfy a minimum acreage requirement);

Silver Lake Consol. Sch. Dist. v. Parker, 238 Iowa 984, 997, 29 N.W.2d

214, 221 (1947) (holding “the word ‘all’ in various parts of the school 26

laws” applied only to all public schools); In re Licenses for Sale of Used

Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920) (concluding the words “all

vehicles” did not include all used vehicles). In short, our precedents do

not foreclose us from looking at the word “all” contextually.

The Institute emphasizes other aspects of the wording of Iowa Code

section 85.27(2). It points out, for one thing, that the section refers to a

waiver of “any privilege” and the work product doctrine is not a privilege,

but rather a protection or an immunity. See Iowa Code § 85.27(2). This,

in the Institute’s view, demonstrates that section 85.27(2) does not speak

to work product.

As Core Group notes, there are cases where we have used the word

“privilege” to refer to the work product immunity. See, e.g., Wells Dairy,

690 N.W.2d at 43 (“Iowa Rule of Civil Procedure 1.503(3) creates a

qualified privilege . . . .”); Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612

N.W.2d 801, 804–05, 807 (Iowa 2000) (using “work product privilege” in

three section headings and referring multiple times to the work product

privilege).

However, our occasional lack of precision does not necessarily

mean the legislature was being imprecise when it adopted section

85.27(2) in 1976. See 1976 Iowa Acts ch. 1084, § 3 (codified at Iowa

Code § 85.27(2)). Our pre-1976 caselaw had rather carefully

distinguished information covered by the work product immunity from

information that was privileged. See Robbins v. Iowa-Ill. Gas & Elec. Co.,

160 N.W.2d 847, 855–56 (Iowa 1968) (“[T]he work product of an attorney

is clearly distinguishable from the attorney-client privilege. The two

concepts often appear side-by-side in the cases since both may involve

protection of trial preparations. The attorney-client privilege is, however,

generally viewed as an evidentiary privilege belonging to the client and 27

designed to encourage full disclosure by him to his attorney. On the

other hand, the work product concept refers to material prepared or

acquired in anticipation of litigation not necessarily privileged but

immune from discovery . . . .” (Citation omitted.)); Bengford v. Carlem

Corp., 156 N.W.2d 855, 867 (Iowa 1968) (“[S]uch questions are not

objectionable either as privileged or work product.”); Schaap v. Chi. &

N.W. Ry., 261 Iowa 646, 649, 155 N.W.2d 531, 533 (1968) (“Privileged

information is, of course, protected as is the attorney’s work product.”).

In interpreting section 85.27(2), the caselaw that the legislature

had before it in 1976 would seem more germane than any word choices

we may have made since then. See Jahnke v. Inc. City of Des Moines,

191 N.W.2d 780, 787 (Iowa 1971) (“We assume the legislature knew the

existing state of the law and prior judicial interpretations of similar

statutory provisions. We assume, too, its use of terms was in the

accepted judicially established context unless there is clear evidence to

the contrary.”); see also Iowa Farm Bureau Fed’n v. Envtl. Prot. Comm’n,

850 N.W.2d 403, 434 (Iowa 2014) (“The legislature is presumed to know

the state of the law, including case law, at the time it enacts a statute.”

(Internal quotation marks omitted.)).

Additionally, as the Institute observes, Iowa Code section 85.27(2)

is only directed at employees, employers, and insurers. Work product,

however, is often in the possession or control of the attorney, and a client

cannot unilaterally waive the work product doctrine as to materials he or

she does not have. See Hanson v. U.S. Agency for Int’l Dev., 372 F.3d

286, 294 (4th Cir. 2004) (“[T]he ability to protect work product normally

extends to both clients and attorneys, and the attorney or the client,

expressly or by conduct, can waive or forfeit it, but only as to himself.”

(Alteration in original.) (Internal quotation marks omitted.)); MapleWood 28

Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 (S.D. Fla.

2013) (“Immunity from production of work-product materials may be

asserted by either the attorney or the client, and each can waive that

immunity, but only as to herself, as both the attorney and the client

benefit from the privilege.”). This tends to support the view that the

section is concerned with medical records that might otherwise be

covered by the physician–patient privilege or other health care privileges,

not work product materials.

4. Presumption against superfluous words. Another principle of

statutory interpretation is that “[w]e presume statutes or rules do not

contain superfluous words.” State v. McKinley, 860 N.W.2d 874, 882

(Iowa 2015); see also Iowa Code § 4.4(2) (setting forth the presumption

that “[t]he entire statute is intended to be effective”).

Iowa Code section 85.27(2) provides, among other things, that

“[a]ny employee, employer or insurance carrier making or defending a

claim for benefits . . . waives any privilege for the release of the

information.” Iowa Code § 85.27(2). Core Group points out that if

“privilege” is limited to health-care-related privileges, the language of the

section is broader than it needs to be, because employers and insurers

do not have such privileges to waive.

This argument is not without force, but it should not be overstated.

Employers and insurers could have access to medical records that the

employee does not have. Thus, it was necessary to include them in

section 85.27(2). And it is true that employers and insurers do not get to

assert a physician–patient privilege for the benefit of a patient who has

waived that privilege. So technically speaking, it was not necessary for

the legislature to have “employer” and “insurance carrier” remain part of 29

the subject for the last clause of the sentence. Thus, the legislature

could have used more words and drafted the statute as follows,

Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further [any employee] waives any privilege for the release of the information.

When one reads this longer, less readable version, it suggests an

alternative explanation for why the legislature wrote the law the way it

did: The legislature may have simply opted for cleaner, more abbreviated

language. Under this view, although the wording of the last clause

sweeps somewhat more broadly than necessary, the breadth does not

change the substantive meaning of the statute, but merely reinforces

that employers and insurers need to produce the records.

5. Avoiding absurd results. We have long recognized that statutes

should not be interpreted in a manner that leads to absurd results. See

Iowa Code § 4.4(3) (setting forth a presumption that “[i]n enacting a

statute . . . [a] just and reasonable result is intended”); id. § 4.6(5) (noting

that when a statute is ambiguous, we should consider “[t]he

consequences of a particular construction”). In order to apply this well-

established rule, we sometimes consider fact patterns other than the one

before the court to determine if a particular statutory interpretation

would have untoward consequences. See, e.g., State v. Hoyman, ___

N.W.2d ___, ___ (Iowa 2015); Andover Volunteer Fire Dep’t v. Grinnell Mut.

Reins. Co., 787 N.W.2d 75, 86 (Iowa 2010); Bell Bros. Heating & Air

Conditioning v. Gwinn, 779 N.W.2d 193, 207 (Iowa 2010); State v.

Carpenter, 616 N.W.2d 540, 544 (Iowa 2000). That is part of the judicial

function—to consider alternative statutory interpretations and see where

those alternatives logically lead. 30

Applying this principle in the case at hand reveals a problem with

Core Group’s reading of the statute. If “all information” means all

information and not merely, in context, all health care provider

information, Core Group’s interpretation would eliminate all privileges

and protections—e.g., work product, attorney work product, attorney–

client, priest–penitent—to the extent the item refers to the employee’s

physical condition. We believe that is an absurd result that could not

have been intended by the legislature.

In fact, the commissioner’s declaratory order implicitly recognizes

the absurdity of such a result. On page 7 of his order, the commissioner

states “that the mental impressions, conclusions, opinions, or legal

theories of an attorney or other representative of a party concerning the

litigation are not waived by Iowa Code section 85.27(2).” While we

understand the impulse to carve out and preserve upper-tier work

product, the declaratory order fails to explain what in section 85.27(2)

shields upper-tier but not lower-tier work product from discovery. The

order is internally inconsistent—a serious flaw in our view.

6. Legislative history. In construing an ambiguous statute, the

court may consider “[t]he circumstances under which the statute was

enacted” and “[t]he legislative history.” See Iowa Code § 4.6(2)–(3). Here

the bill explanation indicates that section 85.27(2) relates to “the release

of information concerning a person’s past physical or mental condition.”

See H.F. 863, 66th G.A., 2d Sess. explanation (1976) (emphasis added).

“[W]e give weight to explanations attached to bills as indications of

legislative intent.” Star Equipment, Ltd. v. State, 843 N.W.2d 446, 454

(Iowa 2014) (internal quotation marks omitted); see also Postell v. Am.

Family Mut. Ins. Co., 823 N.W.2d 35, 49 (Iowa 2012) (same). We have

recently explained the relevance of legislative explanations: 31 The legislature enacts the bill—not the accompanying explanation. But, the internal rules governing the general assembly require the title and explanation to be accurate. An explanation or title included when a bill is introduced may become irrelevant when the text of the bill is materially changed by subsequent amendments. But, when the explanation accompanies the text of the bill enacted without a relevant substantive change, the explanation is part of the legislative history that can be examined in our efforts to determine the meaning of the text.

Star Equipment, 843 N.W.2d at 454 n.3 (citations omitted).

Surveillance for litigation purposes would not normally be

classified as information concerning a person’s “past” physical or mental

condition. Rather, it is typically conducted after a claim has been

brought. This tends to support the Institute’s proposed interpretation of

Iowa Code section 85.27(2).

Of course, there is the truism that once information like

surveillance has been gathered, it always relates to the “past.” But such

a reading of the explanation would render the word “past” redundant to

the word “information.” A more logical reading of the explanation is that

the word “past” refers to information that had been obtained before the

claim was filed. Ensuring the exchange of prior health care records

appears to have been the legislature’s main purpose in enacting section

85.27(2).

7. Prior administrative interpretations. The commissioner’s

declaratory order also appears to be inconsistent with long-held

administrative views of the agency. See Ramirez v. Riverview Care Ctr.,

Iowa Workers’ Comp. Comm’n Nos. 1243830, 1253740, 1253741,

1253742, 1253743, 2002 WL 32125248, at *2 (“Under the prevailing

rule, surveillance materials may be withheld as privileged work product

for a reasonable time until the party observed can be deposed or

otherwise compelled to take a position on the facts pertinent to the 32

surveillance. They may not be withheld after the 30-day case

preparation deadline in the hearing assignment order.” (Citations

omitted.)); Hansen v. Graham Constr., Iowa Workers’ Comp. Comm’n No.

1171846, 2000 WL 33992554, at *8 (“[D]efendants, upon a proper

discovery request, are to provide to claimant the results of any

surveillance conducted but may postpone doing so until claimant has

been deposed.”); Hoover v. Iowa Dep’t of Agric., Iowa Workers’ Comp.

Comm’n No. 529205, 1993 WL 13021598, at *4 (approving defendants’

withholding of surveillance material from disclosure in discovery until

after the claimant’s deposition “to protect the impeachment value of the

evidence until after claimant’s deposition, where sufficient time remained

before hearing for claimant to avoid prejudice by examining the evidence

and cross-examining the surveillance witnesses”).

“Longstanding administrative interpretations are entitled to some

weight in statutory construction.” Griffin Pipe Prods. Co. v. Bd. of Review,

789 N.W.2d 769, 775 (Iowa 2010). It is true, as we have already said,

that we must interpret section 85.27(2) ourselves, but at a minimum the

durability of the previous interpretation is worth noting. The

commissioner correctly observes that these agency cases did not

specifically discuss Iowa Code section 85.27(2). Still, section 85.27(2) is

a bread-and-butter statute regularly administered by the agency. If it

was viewed as having any relevance to the discoverability of surveillance,

it seems likely that one of these decisions would have mentioned it.

8. The rule in other jurisdictions. Although we have not found

another jurisdiction with a statute that resembles Iowa Code section

85.27(2), it appears that most jurisdictions to have considered the issue

allow the responding employer to withhold production of surveillance

until after the employee’s deposition—while requiring the surveillance to 33

be produced before the hearing. See, e.g., Ex parte Doster Constr. Co.,

772 So. 2d 447, 451 (Ala. 2000) (“[T]he quest for the truth should be

furthered through protecting the videotape before the employee is

deposed.”); Congleton v. Shellfish Culture, Inc., 807 So. 2d 492, 495–96

(Miss. Ct. App. 2002) (upholding as “fair to both parties” a procedure

under which the employer provided notice of the existence of surveillance

prior to the employee’s deposition, but did not produce the surveillance

itself until after the deposition); De Marco v. Millbrook Equestrian Ctr.,

732 N.Y.S.2d 121, 122 (App. Div. 2001) (affirming a determination by the

workers’ compensation board that the employer was not obligated to turn

over a copy of the surveillance video until after the employee’s

deposition); see also Comm’n on Official Legal Pubs., Connecticut Practice

Book § 13-3(c), at 214 (2015) (requiring production of films, photographs,

and audiotapes “thirty days after the completion of the deposition of the

party who is the subject” of surveillance); N.J. Admin. Code § 12:235-

3.11(a)(4)(i) (West, Westlaw current through amendments dated May 18,

2015) (“A party is not required to provide or exhibit electronic

information, including surveillance tapes, to another party prior to the

other party’s testimony under oath.”).

Missouri is the only state clearly to take a contrary approach. It

requires predeposition disclosure of surveillance in workers’

compensation proceedings but on the rationale that this is a “statement”

by the claimant and, therefore, discovery provisions allowing a person to

obtain his or her own statement apply. See, e.g., State ex rel. Feltz v. Bob

Sight Ford, Inc., 341 S.W.3d 863, 866–68 (Mo. Ct. App. 2011).

Respectfully, we do not agree that an employee engaging (or not

engaging) in physical activity for its own sake is making a “statement.”

See Iowa R. Evid. 5.801(a) (defining a statement as “(1) an oral or written 34

assertion or (2) nonverbal conduct of a person, if it is intended by the

person as an assertion”). The commissioner does not rely on such a

justification for his declaratory order.

This center of gravity in the authorities suggests, at a minimum,

that allowing an employer or an employer’s attorney to withhold

surveillance until after the employee’s deposition does not undermine the

policies behind workers’ compensation. Notably, the foregoing

jurisdictions, like Iowa, place a high value on getting benefits in the

hands of injured workers. See Ex Parte Lumbermen’s Underwriting

Alliance, 662 So. 2d 1133, 1137 n.3 (Ala. 1995) (referring to “the public

policy behind the adoption of workers’ compensation acts—to provide

necessary day-to-day financial support to an injured worker and the

worker’s dependents”); Pietraroia v. Ne. Utils., 756 A.2d 845, 854 (Conn.

2000) (noting that the workers’ compensation act “is remedial and must

be interpreted liberally to achieve its humanitarian purposes” (internal

quotation marks omitted)); Metal Trims Indus., Inc. v. Stovall, 562 So. 2d

1293, 1297 (Miss. 1990) (“Because of the broad policy declarations made

by the Mississippi Legislature in adopting the Worker’s Compensation

Act, this Court has given liberal construction to the compensation

statutes.”); Fitzgerald v. Tom Coddington Stables, 890 A.2d 933, 938 (N.J.

2006) (“We have consistently held that our statutory workers’

compensation scheme is remedial social legislation and should be given

liberal construction in order that its beneficent purposes may be

accomplished.” (Internal quotation marks omitted.)); Crosby v. State

Workers’ Comp. Bd., 442 N.E.2d 1191, 1195 (N.Y. 1982) (“The broad

scheme of compensation for work-related injuries or death contained in

the Workers’ Compensation Law has as its purpose the provision of a 35

swift and sure source of benefits to injured employees or the dependents

of deceased employees.”

Iowa’s underlying workers’ compensation goals are not unique.

Other jurisdictions have found those goals can be met while allowing

surveillance to be withheld until the claimant is deposed.

9. Policy considerations. Finally, both sides to this proceeding

argue that sound policy is on their side. Core Group urges that

immediate disclosure of surveillance materials should occur because the

workers’ compensation system “is designed to be essentially

nonadversarial. Whatever its faults, real or imagined, the system

presupposes that all workers will benefit more if claims are processed

routinely and paid quickly.” Morrison v. Century Eng’g, 434 N.W.2d 874,

877 (Iowa 1989). Core Group contends that the workers’ compensation

is a system where the parties should put their cards on the table as early

as possible so that, if possible, the claim can be resolved quickly. Also,

surveillance can still have impeachment value, even if the deponent has

seen it beforehand.

The Institute responds that the fundamental purpose of the

workers’ compensation statute is “to benefit the injured workers,” see

Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010), and

putting the worker under oath before he or she has seen any surveillance

helps one determine whether the worker is injured as claimed.

According to the Institute, truly injured workers—the intended

beneficiaries of workers’ compensation law—do not need to see

surveillance of themselves before they testify under oath in a deposition.

It is those who testify falsely about physical limitations who get

impeached effectively by video recordings they have not seen. Trial

lawyers are taught at an early age not to show their impeachment 36

material to a witness and ask him or her to “explain” it, but to get the

witness to commit to a story before revealing the impeachment evidence.

This is viewed as an effective way to expose the witness who is not telling

the truth.

Certainly, in the workers’ compensation field, assessing the

claimant’s credibility is vitally important. Many claimants suffer from

workplace-related impairments that are more serious than the purely

objective medical findings might indicate. They deserve to be

compensated. On the other hand, some claimants exaggerate their

symptoms.

In sum, there are valid policy reasons for and against requiring

predeposition disclosure of surveillance in workers’ compensation claims.

10. Conclusion. Reasonable arguments can be made for and

against the commissioner’s interpretation of Iowa Code section 85.27(2).

In the end, however, we are persuaded that the section is directed at

health care provider records and not at any information that might have

any bearing on an employee’s physical or mental condition, including

work product surveillance. Section 85.27(2) does not refer to attorneys,

does not mention discovery barriers other than “privileges” (which the

work product immunity is not), and falls within a code provision that is

otherwise limited to health care services.

Most importantly, the commissioner’s interpretation has no

limiting principle. If all means all, then even an attorney–client privileged

email from a claimant to her attorney discussing her impairment would

have to be produced—an outcome that even the commissioner is

unwilling to countenance. Hence, we find the declaratory order

erroneously determined that Iowa Code section 85.27(2) applies to

surveillance. 37

C. Other Issues. The commissioner’s declaratory order, as we

have noted, was limited to section 85.27(2). The commissioner did not

reach question (i), the only question that did not involve interpretation of

section 85.27(2). We believe our opinion should be similarly limited.

In an actual workers’ compensation proceeding, a determination

that section 85.27(2) does not require disclosure of surveillance would

not resolve all potential discovery issues. Other potential issues include

these questions: (1) Does surveillance taken for litigation purposes lose

its work product status under Iowa Rule of Civil Procedure 1.503(3) when

a determination is made that the surveillance will be used at the

hearing? (2) Does a party have substantial need for access to

surveillance and is the party unable to obtain the substantial equivalent

without undue hardship if the surveillance is going to be used at the

hearing? (3) If a party can withhold access to surveillance on the basis

that it is work product, what disclosures must the party make in a

privilege log? See Iowa R. Civ. P. 1.503(3), (5)(a). These matters arise, as

well, in ordinary civil litigation and are discussed only in passing in the

parties’ briefs. We believe a ruling on these civil procedure questions

would have a wide impact outside of workers’ compensation and should

await a case or cases in which they are fully briefed and squarely

presented.

IV. Conclusion.

The commissioner did not err or abuse his discretion in ruling on

Core Group’s petition for declaratory order. However, we conclude the

commissioner erroneously interpreted Iowa Code section 85.27(2). See

Iowa Code § 85.27(2). For the foregoing reasons, we set aside the

commissioner’s order interpreting Iowa Code section 85.27(2) as 38

requiring the production of postclaim surveillance to the employee before

the employee’s deposition.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except Hecht, J., who concurs in part and

dissents in part, and Zager, J., who takes no part. 39 #13–1627, Iowa Ins. Inst. v. Core Grp. HECHT, Justice (concurring in part and dissenting in part).

I agree with the majority on the procedural question, but disagree

on the substantive one. In my view, the majority has overlooked the

nuances attending Core Group’s petition and the important differences

between workers’ compensation cases and general civil litigation.

Because I find the majority’s reasoning unpersuasive, I respectfully

dissent in part.

The majority relies on rules of statutory interpretation to interpret section 85.27(2), but omits one very important rule specifically applicable

in workers’ compensation cases: “a fundamental purpose of the workers’

compensation statute is to benefit . . . injured workers.” Jacobson

Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010); accord Xenia

Rural Water Dist. v. Vegors, 786 N.W.2d 250, 257 (Iowa 2010) (“We apply

the workers’ compensation statute broadly and liberally in keeping with

its humanitarian objective . . . .”); Griffin Pipe Prods. Co. v. Guarino, 663

N.W.2d 862, 865 (Iowa 2003) (“[T]he primary purpose of chapter 85 is to

benefit the worker and so we interpret this law liberally in favor of the

employee.”). Applying the statute broadly and liberally consistent with our longstanding practice, I conclude the commissioner’s interpretation

of section 85.27 is correct. Accordingly, I would affirm the decisions of

the district court and the court of appeals.

I. Whether Section 85.27(2) Applies to Surveillance Materials.

The majority concludes the phrase “all information” in section

85.27(2) means “all medical information” and “the employee’s physical or

mental condition” actually means “the employee’s past physical or

mental condition.” See Iowa Code § 85.27(2). It does so on the ground

that other subsections of section 85.27 are more directly applicable in 40

particular medical contexts, and because the bill book containing the

house file enacted in 1976 features an explanation stating the bill made

revisions “concerning a person’s past physical or mental condition.” H.F.

863, 66th G.A., 2d Sess. explanation (Iowa 1976). I disagree.

I would not read implied limitations into section 85.27(2) because I

conclude “all information” really means all information. “[T]he word ‘all’

has an important use. If it has no significance . . . it might as well be

dropped from the language as superfluous.” Parsons v. Parsons, 66 Iowa

754, 762, 24 N.W. 564, 565 (1885). “All” has a plain meaning that “is

commonly understood and usually does not admit of an exception,

addition or exclusion.” Consol. Freightways Corp. of Del. v. Nicholas, 258

Iowa 115, 121, 137 N.W.2d 900, 904 (1965). When a statute contains

the word “all,” this court has said it sees “no logical reason to hold [the

statute] means less than it says.” Cedar Rapids Cmty. Sch. Dist. v. City

of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960).

The decisions of this court have given the word “all” a very broad

meaning. See, e.g., Luttenegger v. Conseco Fin. Servicing Corp., 671

N.W.2d 425, 434 (Iowa 2003); Barron v. State Farm Mut. Auto. Ins. Co.,

540 N.W.2d 423, 426 (Iowa 1995); In re Peers’ Estate, 234 Iowa 403, 411,

12 N.W.2d 894, 898 (1944); Grimes v. Nw. Legion of Honor, 97 Iowa 315,

324, 64 N.W. 806, 808 (1895) (“[T]he legislature, by the use of the words

‘all insurance companies or associations,’ intended to cover every form of

insurance.”); State v. Hutchison, 72 Iowa 561, 562–63, 34 N.W. 421, 421

(1887) (concluding a statutory prohibition against “all intoxicating liquors

whatever” included alcoholic cider manufactured from apples). I would

again give the word a broad meaning in this case.

I find our decision in Consolidated Freightways instructive. See

Consol. Freightways Corp., 258 Iowa at 121, 137 N.W.2d at 904. There 41

we concluded the plain meaning of the word “all” rebutted a contention

“that the words ‘all states’ and ‘total fleet miles’ . . . refer to ‘all

apportioning states’ and to ‘total fleet miles in apportioning states.’ ” Id. I

similarly reject the majority’s conclusion that in the context of section

85.27(2) “all information” actually means “all medical information” and

“the employee’s physical or mental condition” actually means “the

employee’s past physical or mental condition.” See Iowa Code § 85.27(2).

We should “not write such . . . provision[s] into the statute in the guise of

interpretation.” Clarke Cnty. Reservoir Comm’n v. Abbott, 862 N.W.2d

166, ___ (Iowa 2015).

I acknowledge that in some cases we have concluded the word “all”

meant something short of all-inclusive. See, e.g., In re Estate of Troester,

331 N.W.2d 123, 126 (Iowa 1983); Johnson v. Bd. of Adjustment, 239

N.W.2d 873, 880–81 (Iowa 1976); Silver Lake Consol. Sch. Dist. v. Parker,

238 Iowa 984, 997, 29 N.W.2d 214, 221 (1947); In re Licenses for Sale of

Used Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920). The majority

concludes these cases are a sufficient counterweight to the truism that

all means all. Notably, however, none of these cases in which we

concluded the word “all” meant something less than all-inclusive

presented a question requiring interpretation of our workers’

compensation statute.

When deciding workers’ compensation issues, this court has

consistently refused to read terms into chapter 85 that are not there

expressly, because doing so would create a narrow construction

incompatible with the statute’s benevolent purpose. See, e.g., Holstein

Elec. v. Breyfogle, 756 N.W.2d 812, 816 (Iowa 2008); Cedar Rapids Cmty.

Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering

Implement Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943); see also 42

Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75,

88 (Iowa 2010) (Hecht, J., concurring specially) (writing separately to

question an interpretation of a statute that “results in an embellishment

of the words chosen by the legislature”). Unfortunately, today’s majority

is not faithful to this well-established maxim.

Despite the indisputably broad language in section 85.27(2) and

the notion that chapter 85 should be interpreted broadly, the majority

concludes the words “all information” in section 85.27(2) must mean

something less than all information because the legislature placed them

among other subsections referring to medical treatment for work-related

injuries. I disagree. The legislature could, of course, have narrowly

limited the scope of information released under subsection (2) to “records

of medical services.” But it did not. See Nelson v. Lindaman, ___ N.W.2d

___, ___ (Iowa 2015) (concluding a statute should be interpreted broadly

because if the legislature wanted to limit the statute’s scope, “it would

have said so, as it has in other statutes”). The legislature chose instead

to define the release broadly to include “all information to which the

employee, employer, or carrier has access concerning the employee’s

physical or mental condition relative to the claim.” Iowa Code § 85.27(2).

It is in my view perfectly sensible that the legislature intended a broad

understanding of the words “all information” in this context.

Surveillance showing a workers’ compensation claimant’s physical

activity can provide information that is exquisitely relevant to the

determination of physical capacity and disability—matters which depend

in significant part upon medical opinions and substantially impact

medical diagnosis and treatment. Accordingly, I conclude the

commissioner correctly interpreted “all information” in subsection (2) to

include surveillance information. 43

I also find unpersuasive the majority’s conclusion that the

commissioner’s interpretation of section 85.27(2) would lead to absurd

results. There is nothing absurd about a statutory framework requiring

all parties to a workers’ compensation case to open their files and release

all information about the claimant’s physical or mental condition. The

commissioner’s interpretation requiring such disclosure comports quite

comfortably with the purpose of workers’ compensation proceedings—to

enable prompt, inexpensive resolution of claims. See Flint v. City of

Eldon, 191 Iowa 845, 847, 183 N.W. 344, 345 (1921) (noting the purpose

and intent of workers’ compensation “is to avoid litigation, lessen the

expense incident thereto, . . . and afford an efficient and speedy tribunal

to determine and award compensation”). That purpose is more likely

achieved when parties are required to reveal to each other all information

relevant to claimants’ physical or mental condition, rather than holding

some of it back in the hope of maximizing a potential litigation

advantage.

The majority’s assertion that the commissioner’s interpretation of

section 85.27(2) would jeopardize a wide array of privileges is

unconvincing. The declaratory order in fact addresses a single

privilege—work product—not several. Indeed, the waiver of that single

privilege under the commissioner’s interpretation of the statute is limited

to a very narrow category of information including only surveillance and

does not purport to address whether spousal communications or priest–

penitent conversations must be released. The scope of the disclosures

required by the commissioner’s order is further limited by its

preservation of work product protection for the mental impressions and

conclusions of employers, their insurers, or their attorneys. Thus, under

the commissioner’s interpretation of section 85.27(2), the sky would not 44

fall and the evidentiary floodgates would not open. Surveillance

information left unprotected by the work product privilege would only

include videos, photographs, and surveillance reports evidencing the

physical or mental condition of the claimant.

I also dispute that the bill book explanation of the statute in 1976

referring to “past physical or mental condition” supports the majority’s

reasoning in this case. Because surveillance is “typically conducted after

a claim has been brought,” the majority concludes the general assembly

did not include surveillance information within the universe of

information that must be released under section 85.27(2). But this

temporal analysis does not hold together when placed in the practical

context of workers’ compensation cases. Surveillance materials, like

medical records and reports, address a claimant’s physical or mental

condition as of a particular moment in time. At all times after such

materials, records, and reports have been created, they are accurately

described as evidencing a past condition of the claimant. Thus, under

section 85.27(2), parties must release all relevant medical records and

reports pertaining to workers’ compensation claimants whether they were

generated before or after the injury that is the subject of the proceeding—

or before or after the workers’ compensation contested case was

commenced—because they are “past records” by the time they are

released. This statutory requirement to release all relevant medical

records without regard to temporal considerations is essential to proper

processing and management of claims. For this reason, I believe the

word “past” in the bill book explanation cannot plausibly deserve the

significance suggested by the majority. Because the general assembly

must have intended in section 85.27(2) that all relevant medical records

be released by all parties without regard to when they were generated 45

because they evidence the physical or mental condition of the claimant, I

believe the commissioner correctly concluded all surveillance materials

and reports probative of physical or mental condition must be released

upon request.

Furthermore, the majority’s reliance on the 1976 legislative

explanation ignores well-established principles of statutory

interpretation. We determine legislative intent “by what the legislature

said, rather than what it should or might have said.” Iowa R. App. P.

6.904(3)(m) (providing this rule of statutory interpretation is “so well

established that authorities need not be cited” to support it); see also

Iowa Code § 4.6(3), (7) (permitting courts interpreting a statute to

consider legislative history and statements of policy only if the statute

itself is ambiguous). Here, “the word ‘all’ . . . is not limited in any way.

That is clear, so we need not engage in statutory construction.” Barron,

540 N.W.2d at 426. Additionally, “[t]he legislature enacts the bill—not

the accompanying explanation.” Star Equip., Ltd. v. State, 843 N.W.2d

446, 454 n.3 (Iowa 2014). I see a significant difference between the

accompanying explanation of section 85.27(2) and other indications of

legislative intent expressly approved by the legislature and included

within—not just alongside—a particular enactment. See, e.g., LSCP,

LLLP v. Kay-Decker, 861 N.W.2d 846, 861 (Iowa 2015); Roberts Dairy v.

Billick, 861 N.W.2d 814, 820 (Iowa 2015).

There is yet another problem with the majority’s interpretation of

section 85.27(2) limiting the waiver to the claimant’s interest in

confidentiality of medical records: It renders part of section 85.27(2)

superfluous. See Rojas v. Pine Ridge Farms, L.L.C., 779 N.W.2d 223, 231

(Iowa 2010) (“We . . . presume the legislature included all parts of the

statute for a purpose, so we will avoid reading the statute in a way that 46

would make any portion of it redundant or irrelevant.”). Section 85.27(2)

expressly extends the interests waived to those of “[a]ny employee,

employer, or insurance carrier making or defending a claim for benefits.”

Iowa Code § 85.27(2) (emphasis added). But if, as the majority

concludes, the waiver implemented in section 85.27(2) is limited to

medical records and information for which a claimant could claim a

physician–patient privilege, employers and their insurance carriers will

never be subject to it. Employers and their insurance carriers have no

physician–patient privilege in such information to waive, and their

inclusion in section 85.27(2) among those waiving an interest would be

entirely superfluous. We should give effect to every part of the statute, if

possible. See Rojas, 779 N.W.2d at 231; Beier Glass Co. v. Brundige, 329

N.W.2d 280, 285 (Iowa 1983) (“[W]e construe a statute . . . based on our

presumption the legislature intended every part for a purpose.”). The

commissioner’s declaratory order gives effect to the words “employer or

insurance carrier” by correctly concluding the waiver effected by the

statute requires release of surveillance information evidencing a

claimant’s physical or mental condition.

The majority dismisses this point by suggesting the legislature

really meant to impose the waiver under section 85.27(2) only on

employees but obscured that intent in favor of “cleaner” language

expressly imposing it on all parties to workers’ compensation cases. In

my view, this explanation is doubtful at best. As noted above, it fails

completely to account for the general assembly’s language waiving the

employer and insurer’s privilege in information. The majority’s solution

of the problem is to write out of the statute the troublesome words

expressly eliminating a privilege otherwise held by employers and their

insurance carriers. I believe the commissioner’s understanding of the 47

statute—one consistent with the canon that we interpret statutes to give

meaning to all their words when possible—breathes life into all of its

words. Because the employer or insurer has no protected or protectable

interest in the claimant’s medical records whether the claimant

possesses them or not, I conclude the general assembly must have

intended a waiver of some interest other than the physician–patient

privilege. I find the commissioner’s interpretation of section 85.27(2)

more persuasive than the majority’s in part because it gives meaning to

the words of the statute extending the waiver to surveillance information

held by the employer or its insurance carrier—information that would

otherwise be protected by the work product doctrine.

II. Whether Section 85.27(2) Waives Work Product Protection.

The majority concludes section 85.27(2) cannot effect a waiver of

work product protection because the work product doctrine provides

qualified immunity from discovery rather than a “privilege.” This

characterization of the work product doctrine emphasizes form over

substance and adopts a semantic label without considering how work

product protection actually operates.

A. Limited Scope of Inquiry. I do not dispute that there are “two

tiers of work product recognized by Iowa rule 1.503(3).” Keefe v.

Bernard, 774 N.W.2d 663, 674 (Iowa 2009). I also do not dispute that

surveillance materials constitute work product in the civil litigation

context because they are documents or tangible things prepared by or for

a party in anticipation of litigation. See Iowa R. Civ. P. 1.503(3).

However, the types of surveillance materials for which Core Group

requested a declaratory order—videos, photos, and factual reports—will

never fall within the upper tier of work product, because they do not

reveal mental impressions and conclusions. Accordingly, the majority’s 48

warning that section 85.27(2) might waive other privileges—for example,

priest–penitent privilege—and the inconsistency it perceives in the

commissioner’s ruling are in my view red herrings.

The commissioner’s ruling did not need to explain which part of

section 85.27(2) justifies a distinction between upper-tier and lower-tier

work product because the distinction does not flow from the statute at

all; it flows from the nature of the materials and their obvious relevance

to a claimant’s physical or mental condition. Further, as I have already

noted, the commissioner’s declaratory order proceeding did not address

any other privileges. Accordingly, there is no need to address other

privileges in our decision because their continuing vitality in workers’

compensation cases was not at issue in the agency and is not before the

court on appeal. See Morrison v. Century Eng’g, 434 N.W.2d 874, 876–77

(Iowa 1989) (addressing only the physician–patient privilege because that

was the only question presented); see also Eugene Volokh, The

Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1137 (2003)

(“The slippery slope is in some ways a helpful metaphor, but as with

many metaphors, it starts by enriching our vision and ends by clouding

it.”); cf. State v. Thompson, 836 N.W.2d 470, 495 n.8 (Iowa 2013) (Appel,

J., concurring specially) (resisting “any slippery-slope-type argument

regarding . . . other privileges” because “the only issue before the court

involves the application of [a particular statute] . . . to the facts at hand”).

B. Immunity Versus Privilege. The majority concludes section

85.27(2) does not eliminate work product protection for surveillance

information because the work product doctrine provides immunity from

discovery rather than an evidentiary privilege. The terms “immunity”

and “privilege” have been used alternatively in our caselaw. The majority

suggests our alternating use of the terms merely illustrates that the 49

court’s word choices are occasionally imprecise. I can accept that

premise, but only if we also accept that the general assembly uses

imprecise language on occasion, too, and that it may have done so in this

particular statute. Unlike the majority, I do not presume the general

assembly’s use of the word “privilege” and the Institute’s characterization

of work product protection as a procedural immunity are dispositive of

the issue before us.9 Instead, I evaluate substance rather than form—

and because work product protection operates in practice in the same

manner as other evidentiary privileges, I consider it a privilege for

purposes of section 85.27(2).

In a general sense, both “privilege” and “immunity” concepts place

the burden of proof on the party asserting protection. See Anderson v.

State, 692 N.W.2d 360, 364 (Iowa 2005) (discretionary function

immunity); AgriVest P’ship v. Cent. Iowa Prod. Credit Ass’n, 373 N.W.2d

479, 482 (Iowa 1985) (“One resisting discovery through assertion of a

privilege has the burden to show the privilege exists and applies.”). But,

once established, an immunity leads courts to only one possible

conclusion, while a privilege does not. In other words, an opposing party

cannot override a claim of immunity based upon their substantial need

for information or other ground; they can only assert the immunity does

not apply. But an opponent can override an adversary’s claim of privilege

with a proper showing. See, e.g., In re A.M., 856 N.W.2d 365, 373 (Iowa

2014) (applying a statutory exception to the psychotherapist–patient

privilege); State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997)

9With respect to the analogous federal rule, the authors of a preeminent federal practice manual suggest the difference between “privilege” and “immunity” is purely a matter of nonsubstantive semantics. 8 Charles Alan Wright et al., Federal Practice & Procedure § 2023, at 492–94 (3d ed. 2010) (“This matter of nomenclature should . . . not continue to be of importance.” (Emphasis added.)). 50

(recognizing two exceptions to the marital-communications privilege);

Chung v. Legacy Corp., 548 N.W.2d 147, 150–51 (Iowa 1996) (exploring

the patient–litigant exception that overrides the physician–patient

privilege when the party claiming the privilege places their condition at

issue).

The framework of rule 1.503(3) best fits the privilege framework.

Although a party can establish that a requested document or item is

protected work product, the party seeking that document or item can still

obtain it upon a showing of substantial need and undue hardship. See

Iowa R. Civ. P. 1.503(3). Because the work product doctrine, like

evidentiary privileges, is subject to override upon an opponent’s proper

showing, it is more like a privilege than an immunity. Cf. Bob McKiness

Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411

(Iowa 1993) (looking “beyond the labels to the actual nature of the action”

to determine the applicable statute of limitations); Essex Ins. Co. v.

Fieldhouse, Inc., 506 N.W.2d 772, 775 (Iowa 1993) (examining substance

rather than form “[r]egardless of the label”). I reject the majority’s

conclusion that the “immunity” label is dispositive of the issue before us,

preferring instead an analytical framework that examines the substance

of the question rather than its form.

I acknowledge that work product materials including surveillance

are often in the possession of attorneys rather than the employers and

insurance carriers they represent. The majority concludes clients cannot

unilaterally waive the work product doctrine as to materials in their

attorneys’ possession. Yet, the waiver under section 85.27(2) is effected

by the statute, not by employers’ or insurers’ unilateral actions. More

importantly, parties to workers’ compensation proceedings must, under

the statute, release not only information they have in their possession, 51

but also information to which they have access. Parties to workers’

compensation proceedings have access to surveillance videos,

photographs, and reports in the possession of their attorneys.

Accordingly, I believe the clear language of the statute extends the

limited waiver of the work product privilege to surveillance materials in

the possession of attorneys for employers and their insurance carriers.

III. Timing of Disclosure.

Previous agency decisions had concluded that postponing

disclosure until after the claimant’s deposition preserved impeachment

value. However, agency decisions interpreting the law are not binding on

this court. Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304

n.2 (Iowa 2005) (“[T]he commissioner’s final decision is judged against

the backdrop of the workers’ compensation statute and the Iowa

appellate cases interpreting it, not previous agency decisions.”). And

until today, we had not confronted a case presenting the temporal

question at issue here.

Surveillance materials undoubtedly have some impeachment

value. See Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148,

150 n.1 (E.D. Pa. 1973) (“It is in the best interests of society that valid

claims be ascertained and fabricated claims be exposed.”). However,

“surveillance footage . . . is hardly a smoking gun,” even when it depicts

a claimant “performing tasks inconsistent with the claimed disability.”

Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 848–49 (Iowa

2011).

Two Louisiana cases illustrate the important competing interests

at stake in determining whether predeposition disclosure is appropriate.

In Moak v. Illinois Central Railroad, the Louisiana Supreme Court

concluded the timing of disclosure should turn on “when the production 52

of surveillance films, tapes or photographs will most likely assist the

search for truth.” Moak v. Ill. Cent. R.R., 631 So. 2d 401, 406 (La. 1994).

The court determined predeposition disclosure is often appropriate:

While . . . surprise may have a healthy prophylactic effect against possible perjury, it is more likely that the adversarial process will function efficiently and cases will be decided fairly on the merits if the parties are aware of all the evidence. Furthermore, discovery of surveillance materials permits the kind of stipulations and admissions required for effective pre-trial procedures. It also encourages settlement or abandonment of less than meritorious claims.

Id. at 405 (citation omitted) (internal quotation marks omitted).

Several years later, the Louisiana Supreme Court distinguished

Moak. Wolford v. JoEllen Smith Pyschiatric Hosp., 693 So. 2d 1164,

1166–67 (La. 1997). The court concluded the unique impeachment value

of surveillance justifies a per se rule preventing disclosure before the

plaintiff’s deposition. See id. at 1167. The court explained:

Surveillance videotape picturing the plaintiff engaged in physical activity has the potential to reveal inconsistencies between the plaintiff’s claimed injuries and resulting limitations and the plaintiff’s actual abilities. However, any potential impeachment value would be destroyed by ordering pre-deposition disclosure of such surveillance materials. If the plaintiff were to view the surveillance videotape prior to being deposed as to his physical injuries and limitations during the time period pictured in the videotape, he would be more likely, either inadvertently or deliberately, to tailor his testimony to correspond with the actions pictured in the videotape. . . . [D]elaying the production of the videotape until after the plaintiff has been fully deposed aids in the search for the truth.

Id.

The majority relies on many other cases that essentially utilize the

Wolford rule (or something like it) and allow defendants to withhold

surveillance materials until after deposing the plaintiff. See, e.g., Smith

v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 587 (S.D. Tex. 1996); 53

Boyle v. CSX Transp., Inc., 142 F.R.D. 435, 437 (S.D. W. Va. 1992);

Dodson v. Persell, 390 So. 2d 704, 708 (Fla. 1980). But these cases

constituting what the majority characterizes as a consensus are not

persuasive here for several significant reasons.

First, not all courts prioritize impeachment value over “the free

flow of information.” See Morrison, 434 N.W.2d at 876. For example, one

New York court stated:

Although it is possible that a plaintiff will attempt to tailor his or her testimony after learning what the surveillance films reveal, it seems unlikely that he or she would risk going to trial knowing that the films are accurate, . . . . We believe it is more likely that disclosure will result in a settlement, or possibly a voluntary discontinuance of the lawsuit, in either case avoiding costly and time consuming litigation.

Kane v. Her-Pet Refrigeration, Inc., 587 N.Y.S.2d 339, 344 (App. Div.

1992); see also Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159–60

(N.D. Iowa 1994) (“[R]equiring discovery of surveillance by defendants . . .

will not jeopardize the ability of defendants to impeach plaintiffs.”);

Shields v. Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 856 (Ill. App. Ct.

2004) (“[W]e see no need for special treatment of the substantive evidence

in a surveillance videotape.”); Williams v. Dixie Elec. Power Ass’n, 514 So. 2d 332, 335 (Miss. 1987) (“Once an opponent requests discoverable

material, an attorney has a duty to comply with the request regardless of

the advantage a surprise may bring.”).

Second, surveillance materials sometimes are not fairly described

as a smoking gun. See Pease, 807 N.W.2d at 848. In a personal injury

case, the New Jersey Supreme Court addressed and rejected an assertion

that requiring disclosure of surveillance materials would render them

toothless for impeachment purposes: 54 [D]efendants’ position suffers from an obvious analytical weakness: it is based on the premise that defendants’ evidence (in the form of the undercover films) is the exclusive repository of truth and virtue and its disclosure . . . will deprive them of the opportunity to demonstrate . . . the fraud plaintiff seeks to work upon them. While defendants do not state that assumption quite so bluntly, their argument rests upon it at least implicitly. The premise is one we can hardly indulge. It is no more unlikely that a defendant may resort to chicanery in fabricating motion pictures of one alleged to be the plaintiff than it is that a plaintiff may indeed be a faker.

Jenkins v. Rainner, 350 A.2d 473, 476–77 (N.J. 1976); see also Boyle,

142 F.R.D. at 437 (“[T]hose surveilled may be tempted to alter the truth,

but . . . those conducting the surveillance may be subject to the same

temptation . . . .”); Snead, 59 F.R.D. at 150 (questioning the purportedly

unassailable nature of surveillance materials because “[a]n emergency

situation may be made to appear commonplace” and a one-time event

can be made to appear recurring); Orgeron v. Tri State Road Boring, Inc.,

434 So. 2d 65, 68 (La. 1983) (“[P]ictures or videotapes must be

approached with great caution because they show only intervals of the

activities of the subject, they do not show rest periods, and do not reflect

whether the subject is suffering pain . . . .”). 10 Furthermore, as the Core Group suggests, in some instances surveillance information has no impeachment value whatsoever because

it is probative of the physical impairment claimed by an injured

employee. And even when surveillance information does have

10I also find unpersuasive the Institute’s assertion that the claimant always knows the activities in which he or she has participated during surveillance, so disclosure would merely duplicate existing knowledge. While it is true enough in theory that a person knows what they do from day to day, I doubt most claimants have a memory so encyclopedic that they can generate, weeks or months later, the substantial equivalent of surveillance materials depicting precise moments on specific days. See Olszewski v. Howell, 253 A.2d 77, 78 (Del. Super. Ct. 1969) (“[E]ven assuming the plaintiff[] can recall the events of the two days in question, the precise evidence which the defendant has, the film, is now unique and cannot be reproduced.”). 55

impeachment value, “if [it is] at all effective will [it] not also be

substantive evidence going directly to . . . injuries and damages?”

Spencer v. Beverly, 307 So. 2d 461, 462 (Fla. Dist. Ct. App. 1975)

(Downey, J., specially concurring). Whether or not such information has

impeachment value, it is in my view probative of a claimant’s physical or

mental condition and the commissioner therefore correctly declared it

should be released under section 85.27(2) when requested. See Iowa

Code § 85.27(2).

But most importantly, as I have already noted, cases adjudicating

discovery disputes between plaintiffs and defendants engaged in civil

litigation are qualitatively different from workers’ compensation cases

involving claimants and employers or insurers. Unlike personal injury

actions sounding in tort or statutory actions brought under the Federal

Employers’ Liability Act, the workers’ compensation system “is designed

to be essentially nonadversarial.” Morrison, 434 N.W.2d at 877; see also

Flint, 191 Iowa at 847, 183 N.W. at 345 (noting the workers’

compensation system is designed to “avoid litigation . . . and afford an

efficient and speedy tribunal”). Thus, when considering decisions from

other courts resolving work product disputes, I strongly agree with those

prioritizing “the free flow of information regarding a worker’s physical or

mental condition relative to a compensation claim.” See Morrison, 434

N.W.2d at 876. Sometimes the difference between types of cases is

crucial. See Williams-Yulee v. Fla. Bar, ___ U.S. ___, ___, 135 S. Ct. 1656,

1673, ___ L. Ed. 2d ___, ___ (2015) (plurality opinion) (judges are

different); Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2464,

183 L. Ed. 2d 407, 418 (2012) (children are different). This is one such

instance. I would conclude surveillance materials are discoverable “upon 56

request,” even if requested before the claimant’s deposition. 11 Iowa Code

§ 85.27(2).

The commissioner’s interpretation of section 85.27(2) is consistent

with several other states’ rules and decisions addressing surveillance

materials specifically in the workers’ compensation context. See, e.g.,

Camelback Contractors, Inc. v. Indus. Comm’n, 608 P.2d 782, 785 (Ariz.

Ct. App. 1980) (“[T]he hearing officer correctly determined that the

surveillance tapes . . . were discoverable upon timely and properly served

interrogatories.”); McNease v. Murphy Constr. Co., 682 So. 2d 1250,

1250–51 (La. 1996); 12 Johnson v. Archdiocese of New Orleans, 649 So. 2d

12, 13–14 (La. Ct. App. 1994); Sires v. Nat’l Serv. Corp., 560 So. 2d 448,

11In Squealer Feeds, we stated “a claimant is not entitled to obtain the file of his adversary . . . merely upon request.” Squealer Feeds v. Pickering, 530 N.W.2d 678, 688 (Iowa 1995), abrogated on other grounds by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38, 47–48 (Iowa 2004). However, the question at issue in Squealer Feeds required the court to interpret and apply the civil procedure rule establishing work product protection—not answer the question presented here under section 85.27(2). See id. Thus, my conclusion is not incompatible or inconsistent with our holding in Squealer Feeds. See Iowa Admin. Code r. 876—4.35 (providing that the provisions of chapter 85 supersede rules of civil procedure when the two conflict). 12The Louisiana Supreme Court distinguished McNease in Bell v. Treasure Chest

Casino, L.L.C., 950 So. 2d 654, 655–56 (La. 2007). However, Bell involved security camera footage that would show the actual occurrence of an injury, not surreptitious surveillance of a claimant’s postinjury activities. See id. at 656. Additionally, Bell is a personal injury case, whereas McNease is a workers’ compensation case. Compare id. at 655, with McNease, 682 So. 2d at 1250. As I have noted, this distinction is crucial given the informal nature of workers’ compensation proceedings. Indeed, in New York the distinction is also significant, but for a different reason: workers’ compensation cases are not subject to the general rule of discovery that all films, photographs, and videos are discoverable upon demand. Compare De Marco v. Millbrook Equestrian Ctr., 732 N.Y.S.2d 121, 122 (App. Div. 2001) (concluding the general discovery statute governing disclosure of surveillance is not binding on the workers’ compensation board), with Tran v. New Rochelle Hosp. Med. Ctr., 786 N.E.2d 444, 448 (N.Y. 2003) (“[N]otwithstanding the danger of tailored testimony, [the general statute governing disclosure of surveillance] requires full disclosure with no limitation as to timing, unless and until the Legislature declares otherwise.”). I again emphasize that personal injury cases are not always valuable analytical guides when resolving issues in the workers’ compensation arena. 57

449 (La. Ct. App. 1990); State ex rel. McConaha v. Allen, 979 S.W.2d 188,

189–90 (Mo. 1998) (concluding surveillance video tapes are “statements”

under Missouri’s workers’ compensation scheme and rules of civil

procedure, and thus, claimants are always entitled to view them); Minn.

R. 1420.2200(8)(A)–(B) (Westlaw current through May 13, 2015)

(requiring disclosure of surveillance materials at the same time a party

discloses the existence of surveillance, which must occur “upon discovery

demand but no later than 30 days prior to the hearing date”); 34 Pa.

Code § 131.61(a) (Westlaw current through Pa. Bulletin, Vol. 45, No. 22,

dated May 30, 2015) (requiring parties to exchange all information,

including “tapes, films and photographs,” as part of their initial

disclosures, without waiting for a discovery request).

Some other states utilize different procedures. See, e.g., Ex parte

Doster Constr. Co., 772 So. 2d 447, 451 (Ala. 2000); Congleton v. Shellfish

Culture, Inc., 807 So. 2d 492, 495–96 (Miss. Ct. App. 2002); De Marco v.

Millbrook Equestrian Ctr., 732 N.Y.S.2d 121, 122 (App. Div. 2001).

However, none of these states’ workers’ compensation schemes features

any statute or rule resembling section 85.27(2). Accordingly, I would

hold the commissioner’s declaratory order correctly concluded the

statute mandates predeposition disclosure upon request of surveillance

materials. Iowa Code § 85.27(2).

IV. Fact of Surveillance.

One final question remains: whether the fact that surveillance

exists—along with other factual details such as dates of surveillance and

the form it takes—is itself protected from disclosure. The majority

declines to answer this question. I conclude the fact of surveillance is

not protected from disclosure, and neither are related factual details. 58

The caselaw reveals two competing views on this issue in the

personal injury context. A decision of the Wisconsin Court of Appeals

succinctly describes the position the Institute espouses here:

A lawyer’s strategic decision to invest a client’s resources on photographic or video surveillance is protected work-product. The decision not only reflects the lawyer’s evaluation of the strengths or weaknesses of the opponent’s case but the lawyer’s instructions to the person or persons conducting the surveillance also reveals the lawyer’s analysis of potentially fruitful areas of investigation. . . . Disclosure of the fact of surveillance and a description of the materials recorded would thus impinge on the very core of the work- product doctrine.

Ranft v. Lyons, 471 N.W.2d 254, 261–62 (Wis. Ct. App. 1991). However,

this appears to be a minority rule. Even in those cases allowing

defendants to withhold surveillance materials until deposing the plaintiff,

courts generally hold factual information regarding the surveillance

receives no protection. See, e.g., Fletcher v. Union Pac. R.R., 194 F.R.D.

666, 668 (S.D. Cal. 2000) (“[W]hether Defendant conducted surveillance

and the dates on which any surveillance took place [a]re not privileged.”);

Smith, 168 F.R.D. at 587 (requiring defendants to disclose whether they

performed surveillance, when they did so, and the format of surveillance

used); Doster Constr. Co., 772 So. 2d at 451; Dodson, 390 So. 2d at 707

(“[A] party must disclose the existence of material which is or may be

relevant to the issues in the cause whether as substantive, corroborative,

or impeachment evidence. Relevant evidence cannot be allowed to

remain hidden . . . .”).

I would adopt the latter view, and I find particularly persuasive the

federal court’s reasoning in Smith:

It may well be that the decision about if, when, or how surveillance of a plaintiff should be conducted does reveal something about how the defendant’s attorney investigates and prepares a case for trial. However, not every action that 59 reveals, to some minimal degree, an attorney’s general strategy or approach to a case amounts to protected opinion work product. For example, the manner in which an attorney phrases his answers to interrogatories may reveal, to some degree, the attorney’s strategy in defending against the plaintiff’s claims. Nonetheless, the attorney could not refuse to answer the interrogatories on the grounds of the work product doctrine.

Smith, 168 F.R.D. at 587. Because the workers’ compensation system is

nonadversarial, in this context we should uphold even more doggedly the

maxim that litigation by surprise is incompatible with modern-day law

practice. See Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa 2012) (noting trial by surprise interferes with the search for truth);

State ex rel. Hager v. Carriers Ins. Co., 440 N.W.2d 386, 389 (Iowa 1989)

(advancing “the basic notion of fairness . . . aimed at elimination of trials

by ambush” (internal quotation marks omitted)); cf. Simons v. State

Comp. Mut. Ins. Fund, 865 P.2d 1118, 1121–22 (Mont. 1993) (excluding

surveillance footage from trial when the employer did not disclose it as

an anticipated trial exhibit). Requiring employers and insurers to

disclose upon request the fact of surveillance, the dates of surveillance,

the form of surveillance, and the investigator’s identity serves this

purpose.

V. Conclusion.

Although I agree the commissioner did not err or abuse his

discretion in ruling on Core Group’s petition for declaratory order, I

disagree with the majority’s conclusion that the commissioner erred in

interpreting Iowa Code section 85.27(2). I believe the commissioner

correctly interpreted section 85.27(2) as requiring parties in workers’

compensation proceedings to release to a claimant—upon request—

surveillance materials and factual information about such surveillance

conducted in connection with the claimant’s case. As both the district 60

court and the court of appeals reached the same conclusion as the

commissioner, I would affirm their decisions.