IN THE COURT OF APPEALS OF IOWA
No. 13-1359 Filed August 27, 2014
VALERIE DILLAVOU, Plaintiff-Appellant,
vs.
PLASIC INJECTION MOLDERS, INC., and UNITED FIRE & CASUALTY, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Valerie Dillavou appeals following the Iowa Workers’ Compensation
Commissioner’s denial of her worker’s compensation petition and the district
court’s affirmance of that denial. AFFIRMED.
Richard R. Schmidt, Des Moines, for appellant.
Charles A. Blades and Chris J. Scheldrup of Scheldrup, Blades, Schrock,
Smith, P.C., Cedar Rapids, for appellees.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
Valerie Dillavou appeals following the Iowa Workers’ Compensation
Commissioner’s denial of her worker’s compensation petition and the district
court’s affirmance of that denial. She asserts the agency’s findings of fact are
not supported by the evidence, necessitating the remand of her petition back to
the commission. We find there is substantial evidence supporting the agency’s
factual findings, and we therefore affirm.
I. Factual and Procedural Background
Dillavou works for Plastic Injection Molders, Inc. (PIM), which is co-owned
by her husband, Tom, and her brother, Greg Knopf. The relationships between
the three are hostile. Tom was convicted of tax fraud in the wake of his use of
company funds in a Nigerian investment scam. Tom was further alleged to have
embezzled company assets for personal use. Greg assisted the prosecution in
the case, and as a result Tom served eight months in a federal prison.
Subsequently, Greg learned that Dillavou asked a friend to find him and
break his legs. Tom claimed that Greg later tried to blackmail him regarding his
PIM stock. Greg claimed Tom later threatened to stop paying Greg’s PIM wages.
Dillavou and Tom attempted to have criminal charges brought against Greg for
an incident with another relative. Greg stopped coming to work.
On December 1, 2009, Greg went to PIM to pick up a paycheck. Dillavou
was there and in a terse conversation directed Greg to the office to find his
check. After Greg had retrieved the check, he and Dillavou passed each other in
the hallway on his way out of the shop. Greg’s shoulder struck Dillavou, and the 3
force of the bump caused her to fall to the ground, resulting in serious injuries to
her knee and shoulder that required ongoing treatment and ultimately surgery.
After the incident, Dillavou told her husband that Greg had intentionally
knocked her down. The two of them contacted law enforcement and told the
investigating officials that Greg had acted intentionally. Dillavou repeated that
assertion to many others, including the county attorney. She insisted on bringing
criminal charges based on that assertion. She also brought a civil claim against
Greg in intentional tort.
On July 22, 2010, Dillavou filed a petition for worker’s compensation. PIM
responded by asserting as an affirmative defense that the injury was the result of
a “willful act of a third party directed against the employee for reasons personal
to such employee.” Iowa Code § 85.16(3) (2009). The statute is a complete
defense to recovery. After PIM’s assertion of the affirmative defense, Dillavou
reversed course and adamantly proclaimed that Greg had unintentionally
knocked her down.
The deputy commissioner found that “there are enough inferences in the
record to find that [Greg] intended to knock claimant down.” The commissioner
denied Dillavou’s petition based on PIM’s affirmative defense. Dillavou appealed
the decision, and the commission affirmed the deputy commissioner’s findings
after a de novo review. Dillavou applied for judicial review in the district court.
The court affirmed the agency’s final decision. Dillavou appeals.
II. Standard and Scope of Review
Our review of agency action is for correction of errors at law. Finch v.
Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 330 (Iowa 2005). We 4
apply the standards of Iowa Code section 17A.19(10) to the agency’s decision
and compare our conclusion with the conclusion of the district court.
Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). “If they
are the same, we affirm; otherwise we reverse.” Id.
III. Discussion
Our review is not de novo; we are “bound by [the agency’s] fact-finding if it
is supported by substantial evidence.” Asmus v. Waterloo Cmty. Sch. Dist., 722
N.W.2d 653, 657 (Iowa 2006); see Iowa Code § 17A.19(10)(f). Evidence is
substantial when it is “the quantity and quality of evidence that would be deemed
sufficient by a neutral, detached, and reasonable person, to establish the fact at
issue when the consequences resulting from the establishment of that fact are
understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(a).
Dillavou claims there is not substantial evidence to support the
Commission’s finding that Greg’s act was willful and directed against her for
personal reasons under Iowa Code section 85.16(3). She first claims there is not
substantial evidence that Greg’s act was willful—i.e. the evidence compels a
factual finding that Greg accidentally bumped into her. She alternatively claims
there is not substantial evidence that the reason Greg bumped into her was
personal in nature—i.e. the substantial evidence shows that the incident was
work-related.
First, we find that there is substantial evidence that Greg acted willfully
when he bumped into Dillavou. The familial acrimony between the parties 5
pervades the factual circumstances surrounding the incident and gives rise to a
strong inference of Greg’s motive to intentionally bump into Dillavou.
Second, even though the incident took place at PIM, we agree with the
commission the physical contact between Dillavou and Greg was not related to
or within the scope of either person’s employment. The same facts that give rise
to an inference of Greg’s intent serve as substantial evidence that the incident
was personal in nature.1 Greg had not come to PIM to work and was not working
when he caused Dillavou to fall.
Dillavou asserts there is substantial evidence that the incident was
accidental.2 She also claims there is substantial evidence that the incident was
work-related. However, the deputy commissioner found the evidence presented
on these two points was not credible or persuasive. Because the deputy
commissioner was present to hear the testimony and observe the witnesses, we
give deference to that credibility determination. See Arndt v. City of LeClaire,
728 N.W.2d 389, 394–95 (Iowa 2007) (“It is the commissioner’s duty as the trier
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF IOWA
No. 13-1359 Filed August 27, 2014
VALERIE DILLAVOU, Plaintiff-Appellant,
vs.
PLASIC INJECTION MOLDERS, INC., and UNITED FIRE & CASUALTY, Defendants-Appellees. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
Valerie Dillavou appeals following the Iowa Workers’ Compensation
Commissioner’s denial of her worker’s compensation petition and the district
court’s affirmance of that denial. AFFIRMED.
Richard R. Schmidt, Des Moines, for appellant.
Charles A. Blades and Chris J. Scheldrup of Scheldrup, Blades, Schrock,
Smith, P.C., Cedar Rapids, for appellees.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ. 2
POTTERFIELD, P.J.
Valerie Dillavou appeals following the Iowa Workers’ Compensation
Commissioner’s denial of her worker’s compensation petition and the district
court’s affirmance of that denial. She asserts the agency’s findings of fact are
not supported by the evidence, necessitating the remand of her petition back to
the commission. We find there is substantial evidence supporting the agency’s
factual findings, and we therefore affirm.
I. Factual and Procedural Background
Dillavou works for Plastic Injection Molders, Inc. (PIM), which is co-owned
by her husband, Tom, and her brother, Greg Knopf. The relationships between
the three are hostile. Tom was convicted of tax fraud in the wake of his use of
company funds in a Nigerian investment scam. Tom was further alleged to have
embezzled company assets for personal use. Greg assisted the prosecution in
the case, and as a result Tom served eight months in a federal prison.
Subsequently, Greg learned that Dillavou asked a friend to find him and
break his legs. Tom claimed that Greg later tried to blackmail him regarding his
PIM stock. Greg claimed Tom later threatened to stop paying Greg’s PIM wages.
Dillavou and Tom attempted to have criminal charges brought against Greg for
an incident with another relative. Greg stopped coming to work.
On December 1, 2009, Greg went to PIM to pick up a paycheck. Dillavou
was there and in a terse conversation directed Greg to the office to find his
check. After Greg had retrieved the check, he and Dillavou passed each other in
the hallway on his way out of the shop. Greg’s shoulder struck Dillavou, and the 3
force of the bump caused her to fall to the ground, resulting in serious injuries to
her knee and shoulder that required ongoing treatment and ultimately surgery.
After the incident, Dillavou told her husband that Greg had intentionally
knocked her down. The two of them contacted law enforcement and told the
investigating officials that Greg had acted intentionally. Dillavou repeated that
assertion to many others, including the county attorney. She insisted on bringing
criminal charges based on that assertion. She also brought a civil claim against
Greg in intentional tort.
On July 22, 2010, Dillavou filed a petition for worker’s compensation. PIM
responded by asserting as an affirmative defense that the injury was the result of
a “willful act of a third party directed against the employee for reasons personal
to such employee.” Iowa Code § 85.16(3) (2009). The statute is a complete
defense to recovery. After PIM’s assertion of the affirmative defense, Dillavou
reversed course and adamantly proclaimed that Greg had unintentionally
knocked her down.
The deputy commissioner found that “there are enough inferences in the
record to find that [Greg] intended to knock claimant down.” The commissioner
denied Dillavou’s petition based on PIM’s affirmative defense. Dillavou appealed
the decision, and the commission affirmed the deputy commissioner’s findings
after a de novo review. Dillavou applied for judicial review in the district court.
The court affirmed the agency’s final decision. Dillavou appeals.
II. Standard and Scope of Review
Our review of agency action is for correction of errors at law. Finch v.
Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 330 (Iowa 2005). We 4
apply the standards of Iowa Code section 17A.19(10) to the agency’s decision
and compare our conclusion with the conclusion of the district court.
Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). “If they
are the same, we affirm; otherwise we reverse.” Id.
III. Discussion
Our review is not de novo; we are “bound by [the agency’s] fact-finding if it
is supported by substantial evidence.” Asmus v. Waterloo Cmty. Sch. Dist., 722
N.W.2d 653, 657 (Iowa 2006); see Iowa Code § 17A.19(10)(f). Evidence is
substantial when it is “the quantity and quality of evidence that would be deemed
sufficient by a neutral, detached, and reasonable person, to establish the fact at
issue when the consequences resulting from the establishment of that fact are
understood to be serious and of great importance.” Iowa Code
§ 17A.19(10)(f)(a).
Dillavou claims there is not substantial evidence to support the
Commission’s finding that Greg’s act was willful and directed against her for
personal reasons under Iowa Code section 85.16(3). She first claims there is not
substantial evidence that Greg’s act was willful—i.e. the evidence compels a
factual finding that Greg accidentally bumped into her. She alternatively claims
there is not substantial evidence that the reason Greg bumped into her was
personal in nature—i.e. the substantial evidence shows that the incident was
work-related.
First, we find that there is substantial evidence that Greg acted willfully
when he bumped into Dillavou. The familial acrimony between the parties 5
pervades the factual circumstances surrounding the incident and gives rise to a
strong inference of Greg’s motive to intentionally bump into Dillavou.
Second, even though the incident took place at PIM, we agree with the
commission the physical contact between Dillavou and Greg was not related to
or within the scope of either person’s employment. The same facts that give rise
to an inference of Greg’s intent serve as substantial evidence that the incident
was personal in nature.1 Greg had not come to PIM to work and was not working
when he caused Dillavou to fall.
Dillavou asserts there is substantial evidence that the incident was
accidental.2 She also claims there is substantial evidence that the incident was
work-related. However, the deputy commissioner found the evidence presented
on these two points was not credible or persuasive. Because the deputy
commissioner was present to hear the testimony and observe the witnesses, we
give deference to that credibility determination. See Arndt v. City of LeClaire,
728 N.W.2d 389, 394–95 (Iowa 2007) (“It is the commissioner’s duty as the trier
of fact to determine the credibility of the witnesses, weigh the evidence, and
decide the facts in issue.”).
1 Dillavou alleges that the commission and the district court erred by collapsing the analyses of the intent element and the personal nature of the incident into a single analysis. However, the commission, the district court, and this court duly considered each element separately but relied on the same facts to resolve them. 2 Dillavou notes that Greg did not bump into her the first time they talked that day, that he apologized to her after she fell, and that he has since stated under oath that the incident was accidental. None of these facts is conclusive as to Greg’s intent, and we agree with the commission that Greg’s testimony is not reliable. Dillavou also notes that Greg was acquitted of the criminal charges that arose from this incident but fails to acknowledge the heightened standard of proof—i.e. beyond a reasonable doubt— applicable in a criminal case. The acquittal is neither controlling nor persuasive here. 6
But even assuming arguendo there is credible evidence that the incident
was accidental or work-related, “[t]he fact that two inconsistent conclusions may
be drawn from the same evidence does not prevent the agency’s findings from
being supported by substantial evidence.” Asmus, 722 N.W.2d at 657. “[T]he
question on appeal is not whether the evidence supports a different finding than
the finding made by the commissioner, but whether the evidence supports the
findings actually made.” Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006).
Therefore, it is irrelevant that contrary evidence exists because there is
nevertheless substantial evidence that supports the agency’s findings of fact.
We agree that based on those findings, PIM has satisfied its burden of proof
regarding its affirmative defense, and Dillavou is not entitled to relief.
The facts are sufficient to persuade a reasonable person that Greg acted
intentionally and for reasons personal to Dillavou. Our conclusion is the same as
that of the commission and of the district court. We affirm.
AFFIRMED.