John Deere Dubuque Works v. Caven

804 N.W.2d 297, 2011 Iowa App. LEXIS 400, 2011 WL 4907797
CourtCourt of Appeals of Iowa
DecidedJune 15, 2011
DocketNo. 10-1830
StatusPublished
Cited by8 cases

This text of 804 N.W.2d 297 (John Deere Dubuque Works v. Caven) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Deere Dubuque Works v. Caven, 804 N.W.2d 297, 2011 Iowa App. LEXIS 400, 2011 WL 4907797 (iowactapp 2011).

Opinion

EISENHAUER, P.J.

John Deere Dubuque Works (John Deere) appeals and Kenneth Caven cross-appeals from a ruling on judicial review by the district court. The workers’ compensation commissioner awarded Caven permanent partial disability benefits for occupational hearing loss and also ruled Caven’s tinnitus claim was not filed within the statute of limitations. Utilizing the agency’s administrative rules, the commissioner ordered John Deere to reimburse Caven for the costs of obtaining a doctor’s/practitioner’s report. John Deere claims the district court erred in affirming the agency’s costs awarded under Iowa Administrative Code Rule 876-4.33 rather than under Iowa Code section 85.39 (2007). Caven claims the district court erred in affirming the agency’s statute of limitations determination. We affirm.

I. Background.

In July 2007, Caven filed a workers’ compensation petition alleging he suffered occupational hearing loss and tinnitus as a result of his work with John Deere.1 Ca-ven hired Richard Tyler, Ph.D., an audiologist consultant. Dr. Tyler reviewed medical records and reports and interviewed Caven. On May 6, 2008, Dr. Tyler’s report opined Caven’s hearing loss and tinnitus “was probably a result of his work at John Deere. His condition is unlikely to improve.”

After hearing, in September 2008, the deputy ruled Caven’s observations about the noise levels in the factory were credible. However, the deputy specifically detailed other portions of Caven’s testimony and ruled: “[Caven’s] testimony carries little weight and this lack of credibility must be factored in when reviewing the medical evidence in this case.”

The deputy awarded permanent partial disability benefits for occupational hearing loss. This ruling is not challenged on appeal. The deputy ruled: “A reasonable conclusion from the evidence is that [Ca-ven] does have tinnitus and that his tinnitus is at least in part related to his work at John Deere.” However, the deputy determined Caven’s tinnitus claim was not filed within the two-year statute of limitations. The deputy awarded Caven $150.00 of the $972.00 claimed costs for the report of Dr. Tyler.

After his de novo review and after noting that “my ability to find the true facts that are affected by witness demeanor and credibility cannot be expected to be superi- or to that of the [presiding] deputy,” the commissioner affirmed and adopted the deputy’s arbitration decision, “except for the denial of the costs of Dr. Tyler’s report.” The commissioner awarded $972.00 to Caven under Iowa Administrative Code rule 876-4.33(6).

In July 2009, Caven sought rehearing on the tinnitus issue. Caven argued the commissioner’s appeal decision did not specifically address whether the decision in Midwest Ambulance Service v. Ruud, 754 N.W.2d 860 (Iowa 2008), compelled a different result. Cavin contended: “In 1997, [he] did not appreciate the nature, seriousness, or probable compensable character of his tinnitus claim because that condition had no adverse impact on [his] employability.” In August 2009, the commissioner ruled:

[Caven] complains that I did not specifically address the issue of [his] knowledge concerning the impact of his injury on his employment. As I stated in the appeal decision, the presiding deputy at [299]*299hearing adequately and correctly dealt with that issue ... in finding that [Ca-ven] knew long ago that the injury would adversely impact his job.

In October 2010, the district court affirmed the commissioner’s appeal decision. John Deere now appeals the basis for the costs awarded and Caven cross-appeals the statute of limitations issue.

II. Scope of Review.

Iowa Code section 17A.19 lists the instances when a court may, on judicial review, reverse, modify, or grant other appropriate relief from agency action. “In exercising its judicial review power, the district court acts in an appellate capacity.” Mycogen Seeds v. Sands, 686 N.W.2d 457, 463 (Iowa 2004). When we review the district court’s decision, “we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. If they are the same, we affirm; otherwise, we reverse.” Id. at 464.

III. John Deere Appeal: Costs.

In July 2009, the commissioner ordered full reimbursement for the costs of Dr. Tyler’s report under Iowa Administrative Code rule 876-4.33(6), stating:

While the hearing deputy limited the reimbursement for the cost of Dr. Tyler’s [report] ... to $150.00 based on agency precedent, that precedent is legally flawed and must be reversed. Almost 25 years ago, this agency held that a maximum of $150.00 would only be allowed as a cost reimbursement for any one doctor or practitioner’s written report as that is all that would be allowed as an expert witness fee had the expert’s views been obtained in an oral deposition under the costs provisions of Iowa Code section 622.72. Lytle v. Hormel Corp., 1-4, Comm’r Dec. 968 (App Dec 1985). That decision was re-affirmed in Schmitt v. Cardinal Construction, No. 947339 [1999 WL 33619546] (App. July 22, 1999). However, these decisions are contrary to the plain language of 876 IAC 4.33 which provides as follows:
Costs taxed by the worker’s compensation commissioner or a deputy commissioner shall be ... (6) the reasonable costs of obtaining no more than two doctors’ or practitioners’ reports.
While a doctor or practitioner’s deposition testimony is limited by Iowa Code section 622.69 and 622.72, no such limitation is contained in this rule for obtaining written reports, nor is there any application of those statutes to written reports. As recently instructed by the Iowa Supreme Court, this agency cannot ignore the plain wording . of its own rules. Boehme v. Fareway Stores, Inc. [762 N.W.2d 142, 146 (Iowa 2009)]; Rock v. Warhank, 757 N.W.2d 670, 673 (Iowa 2008). Therefore, the prior agency precedent set forth above shall no longer be controlling agency precedents in cases before this agency and the entire reasonable costs of doctor and practitioner’s reports may be taxed as costs pursuant to 876 IAC 4.33.

(Emphasis added.)

In August 2009, John Deere appealed to the district court arguing it should only be required to pay $150.00. After argument in February 2010, the district court ruled: “The Court agrees with the interpretation of the administrative code by the Commissioner and hereby orders [John Deere] to pay the full sum of the expense of the cost to obtain the medical report in the amount of $972.00.” (Emphasis added.)

In this appeal, John Deere “agrees that [Caven] is entitled to be reimbursed for Dr. Tyler’s entire expert fee of $972.00.” [300]*300John Deere argues, however, the “reimbursement order should be pursuant to Iowa Code section 85.39 and not Rule 876-4.33(6).”

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804 N.W.2d 297, 2011 Iowa App. LEXIS 400, 2011 WL 4907797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-deere-dubuque-works-v-caven-iowactapp-2011.