IN THE COURT OF APPEALS OF IOWA

No. 20-0916

Filed October 20, 2021

CITY OF MAXWELL and EMCASCO INSURANCE COMPANY,

Petitioners-Appellees/Cross-Appellants,

vs.

DENNIS M. MARSHALL,

Respondent-Appellant/Cross-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather L. Lauber, 

Judge.

An employee appeals, and the employer cross-appeals, the district court’s 

ruling on judicial review affirming the workers’ compensation commissioner’s 

award of healing period benefits and denial of penalty benefits. AFFIRMED ON 

BOTH APPEALS.

Mark S. Soldat of Mark S. Soldat, PLC, West Des Moines, and Robert A. 

Nading of Nading Law Firm, Ankeny, for appellant.

D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des 

Moines, for appellees.

Heard by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
2

SCHUMACHER, Judge.

Dennis Marshall appeals the district court’s ruling on judicial review 

affirming the workers’ compensation commissioner’s denial of his request for 

penalty benefits. The City of Maxwell, with its insurer, EMCASCO Insurance 

Company (together “the employer”), cross-appeals on the issues of healing period 

benefits and its request to present additional evidence during the judicial review 

proceedings. Because the employer did not pay Marshall healing period benefits 

late, he is not entitled to penalty benefits. There is substantial evidence in the 

record to support the commissioner’s determination of the time period for 

Marshall’s receipt of healing period benefits. The district court did not abuse its 

discretion in denying the employer’s request to remand the case to the 

commissioner for the presentation of additional evidence. We affirm the district 

court’s decision affirming the commissioner’s rulings on the issues raised in the 

appeal and the cross-appeal.

I. Background Facts & Proceedings

Marshall was a volunteer firefighter for the City of Maxwell. On 

December 11, 2013, while responding to an emergency call, Marshall slipped on 

ice and fell, injuring his back. An MRI showed he had a large disk herniation. 

Marshall had three back surgeries in 2014—on January 27, February 19, and 

April 28. On January 17, 2015, Dr. Lynn Nelson stated Marshall reached 

maximum medical improvement (MMI).

Marshall continued to have problems with his back, but the employer would 

not authorize additional treatment due to Dr. Nelson’s determination that Marshall 

had reached MMI. Marshall sought an independent medical evaluation, which was 
3

performed on August 4 by Dr. Robin Sassman. Dr. Sassman concluded Marshall 

had not yet reached MMI and recommended an additional surgical evaluation. 

The employer authorized an evaluation by Dr. David Boarini, who did not 

recommend additional surgery. Dr. Boarini suggested “weight loss, an exercise 

plan, and use of appropriate medication.” An evaluation by Dr. David Strothman 

on January 6, 2017, recommended removal of the fusion instrumentation from an 

earlier surgery. This procedure was performed on April 10, as well as a revision 

decompression.

Marshall filed a petition seeking workers’ compensation benefits. A hearing 

was held on August 9, 2017. At that time there was no finding that Marshall 

reached MMI following his April 10 surgery and Marshall had not returned to work. 

The deputy workers’ compensation commissioner granted Marshall’s motion to 

bifurcate the proceedings, so only the issues of healing period benefits and penalty 

benefits were to be heard. The parties stipulated that the issue of permanent 

disability was not ripe at the time of the hearing.

The deputy determined Marshall was entitled to healing period benefits from 

January 17, 2015, to April 10, 2017, the time period between when Dr. Nelson 

stated he reached MMI and when Dr. Strothman performed the fourth back 

surgery.1 The deputy denied Marshall’s request for penalty benefits, finding the 

 

1 The employer did not dispute that Marshall was entitled to healing period benefits 

following the fourth back surgery.
4

employer was not consistently late paying weekly benefits.2 The deputy denied 

Marshall’s request for a rehearing on the issue of penalty benefits.

The employer appealed the deputy’s decision, and Marshall crossappealed. The workers’ compensation commissioner affirmed and adopted the 

deputy’s decision. The commissioner denied Marshall’s request for a rehearing.

The employer and Marshall filed petitions for judicial review. On March 5, 

2019, the employer filed a request to remand the case to the commissioner for the 

consideration of additional evidence that was not available at the time of the 

agency hearing on August 9, 2017. Marshall resisted the employer’s request. The 

district court denied the request to remand the case. On April 28, 2020, the district 

court affirmed the decision of the commissioner. The court denied the parties’ 

motions pursuant to Iowa Rule of Civil Procedure 1.904(2). Marshall appeals, and 

the employer cross-appeals.

II. Standard of Review

“In exercising judicial review of the agency’s action, the district court acts as 

an appellate court, and its review is circumscribed by Iowa Code chapter 17A.”

Johnston v. Iowa Dep’t of Transp., 958 N.W.2d 180, 183–84 (Iowa 2021). “When 

reviewing the district court’s decision, ‘we apply the standards of [c]hapter 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.’” Niday v. Roehl 

 

2 The deputy determined the employer missed one day of benefits and delayed 

two weeks of benefits by one day. The deputy assessed a penalty of $500. This 

penalty award has not been appealed.
5

Transp., Inc., 934 N.W.2d 29, 34 (Iowa Ct. App. 2019) (alteration in original) 

(citation omitted). 

III. Penalty Benefits

The parties stipulated that Marshall’s injury occurred on December 11, 

2013. Marshall contends that the first compensation week was December 12 to 

18, and the second compensation week was December 19 to 25. He asserts that 

he should have been paid each week following this schedule. Marshall states that 

the employer improperly determined his weekly benefits began after eleven days. 

He contends that he was consistently paid late due to this error and should be 

awarded penalty benefits under Iowa Code section 85.13(4) (2015).

3

 In order to 

receive penalty benefits, Marshall has the burden to show his benefit payments 

were late. See Drahozal v. Envoy Air, Inc., No. 20-0027, 2021 WL 1661150, at *8 

(Iowa Ct. App. Apr. 28, 2021).

 

3 Penalty benefits are governed by Iowa Code section 86.13(4), as follows:

a. If a denial, a delay in payment, or a termination of benefits 

occurs without reasonable or probable cause or excuse known to the 

employer or insurance carrier at the time of the denial, delay in 

payment, or termination of benefits, the workers’ compensation 

commissioner shall award benefits in addition to those benefits 

payable under this chapter, or chapter 85, 85A, or 85B, up to fifty 

percent of the amount of benefits that were denied, delayed, or 

terminated without reasonable or probable cause or excuse.

b. The workers’ compensation commissioner shall award 

benefits under this subsection if the commissioner finds both of the 

following facts:

(1) The employee has demonstrated a denial, delay in 

payment, or termination of benefits.

(2) The employer has failed to prove a reasonable or probable 

cause or excuse for the denial, delay in payment, or termination of 

benefits.
6

A challenge to the commissioner’s decision concerning penalty benefits is 

a challenge “to the ultimate conclusion made by the agency and is therefore a 

challenge to the agency’s application of law to the facts.” Dunlap v. Action 

Warehouse, 824 N.W.2d 545, 557 (Iowa Ct. App. 2012). “[T]he commissioner’s 

application of law to the facts as found by the commissioner will not be reversed 

unless it is irrational, illogical, or wholly unjustifiable.” Id. (alteration in original) 

(citation omitted); see also Iowa Code § 17A.19(10)(m). When the issue on appeal

concerns the agency’s application of the law to the facts, then we review for

“whether the agency abused its discretion by, for example, employing wholly 

irrational reasoning or ignoring important and relevant evidence.” Meyer v. IBP, 

Inc., 710 N.W.2d 213, 219 (Iowa 2006).

Section 85.30 provides, “Compensation payments shall be made each 

week beginning on the eleventh day after the injury, and each week thereafter 

during the period for which compensation is payable.” The Iowa Supreme Court 

stated, “[S]ection 85.30 provides for an eleven-day grace period following [an]

injury to allow an evaluation and investigation of the injury and a determination of 

the correct weekly compensation rate before the first compensation payment is 

due.” Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 235 (Iowa 1996). 

“The due date for the first week of healing period compensation is the eleventh day 

after the injury.” Goodman v. Snap-On Tools Corp., No. 03-0414, 2004 WL 

2066941, at *3 (Iowa Ct. App. Sept. 9, 2004). “The subsequent due dates fall on 

the day after the end of each compensation week thereafter, that is, the eighth day 

after the first day of each subsequent compensation week.” Id. (citing Robbennolt, 

555 N.W.2d at 235).
7

The deputy determined:

The first weekly benefit payment is due on the eleventh day 

according to Iowa Code section 85.32. [The employer] appear[s] to 

have voluntarily commenced benefits on the second day after the 

injury and paid weekly thereafter, rending each of their benefit 

payments . . . to be paid on time or early. [Marshall’s] analysis of the 

commencement of benefits is legally inaccurate. [The employer’s] 

contention and practice in this case is accurate and certainly [the 

employer] had a reasonable basis for their commencement and 

payment of benefits . . . . Therefore, I perceive no basis for an award 

of penalty benefits for [the employer’s] commencement of benefits 

and payment earlier than the statutory requirement of the eleventh 

day.

The commissioner “affirm[ed] the deputy commissioner’s conclusion that 

[Marshall’s] analysis of the commencement of benefits is legally inaccurate.” The 

commissioner concluded there was no basis for penalty benefits to be awarded in 

this case. The district court determined the commissioner’s interpretation of

section 85.30 “was neither irrational nor erroneous.” 

We conclude the commissioner properly determined Marshall did not meet 

his burden to show the healing period benefits received from the employer were 

late. See Drahozal, 2021 WL 1661150, at *8. The payments were timely under 

section 85.30. Because the payments were not late, Marshall is not entitled to 

penalty benefits under section 86.13(4).

IV. Healing Period Benefits

In the cross-appeal, the employer claims the commissioner erred by finding 

Marshall was entitled to healing period benefits for the time period from 

January 17, 2015, when Dr. Nelson stated Marshall reached MMI, to April 10, 

2017, when Dr. Strothman performed the fourth back surgery. It states that 

Marshall could have multiple MMI dates and intermittent healing periods. The 
8

employer asserts that Marshall reached MMI following his third surgery but then 

had another healing period following his fourth surgery. It disputes the 

commissioner’s finding that Marshall was entitled to healing period benefits for the 

entire time period from January 17, 2015, to April 10, 2017.

The commissioner’s factual findings are upheld on appeal if they are 

supported by substantial evidence when the record is viewed as a whole. Evenson 

v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa 2016). We consider 

whether there is substantial evidence to support the findings made by the 

commissioner, not whether the evidence could support different findings. Larson 

Mfg. Co. v. Thorson, 763 N.W.2d 842, 850 (Iowa 2009).

The employer relies upon Waldinger Corp. v. Mettler, which stated, “an 

injured employee’s need for ongoing medical care sometimes extends well beyond 

the duration of an initial period of convalescence and becomes manifest after a 

return to work or after periods of work interrupted by physician-directed time off 

work.” 817 N.W.2d 1, 8 (Iowa 2012). “[S]ection 85.34(1) leaves room for the 

possibility that continuing medical treatment provided by the employer under 

section 85.27 can result in a series of intermittent invasive treatments, periods of 

temporary disability from work and convalescence, serial MMI dates, and revised 

permanent disability ratings following a single work-related injury.” Id. at 9. The 

employer contends that Waldinger is applicable because Marshall reached MMI 

on January 17, 2015, based on Dr. Nelson’s opinion and then Marshall entered a 

new healing period after his fourth surgery on April 10, 2017.
9

The deputy commissioner concluded:

I find that [Marshall] did not actually achieve [MMI] on January 17, 

2015. Ultimately, [Marshall’s] continued symptoms were partially 

caused by the placement of the fusion instrumentation. That 

hardware ultimately had to be surgically removed and yet another 

decompression performed at the L4-5 disk level. Unfortunately, 

[Marshall’s] symptoms continued after January 17, 2015. . . . 

Therefore, I find that Mr. Marshall did not achieve [MMI] on 

January 17, 2015, and had not yet achieved [MMI] as of the date of 

the arbitration hearing.

The deputy’s findings on this issue were affirmed by the commissioner. The district 

court determined that the commissioner’s findings were supported by substantial 

evidence. The court also found “the Commissioner did not misinterpret, misapply, 

or otherwise improperly ignore Waldinger in reaching his decision.”4

We find there is substantial evidence in the record to support the 

commissioner’s determination that Marshall was not at MMI on January 17, 2015. 

At the time Dr. Nelson gave the opinion that Marshall achieved MMI, there was a 

recommendation for continued physical therapy to improve Marshall’s condition. 

Marshall continued to experience symptoms after January 17, 2015. On August 4, 

2015, Dr. Sassman stated Marshall was not yet at MMI. Marshall was evaluated 

by Dr. Boarini on March 30, 2016, and no additional surgical intervention was 

recommended at that time. Dr. Boarini suggested “weight loss, an exercise plan, 

and use of appropriate medication.” Dr. Strothman evaluated Marshall on 

January 6, 2017, and recommended the fourth surgery, which took place on 

 

4 The employer claims the deputy and commissioner did not consider its arguments 

based on Waldinger. This claim is not supported by the record. The deputy stated 

the employer was claiming that Marshall entered “a new, or intermittent, healing 

period,” following his April 2017 surgery, which is a reference to the ruling in 

Waldinger. See 817 N.W.2d at 9. The deputy’s decision was affirmed by the 

commissioner.
10

April 10. Additionally, Marshall never returned to work following January 17, 2015, 

and remained off work at the time of the agency hearing on August 9, 2017. 

The opinions of Drs. Sassman and Strothman, the recommendations for 

continued treatment, the fourth surgery, and the fact Marshall had not returned to 

work support a finding that Marshall was not at MMI on January 17, 2015. The 

commissioner could disregard the opinion of Dr. Nelson. See Broadlawns Med. 

Ctr. v. Sanders, 792 N.W.2d 302, 307 (Iowa 2010) (“It is the commissioner’s 

responsibility to weigh conflicting evidence and accept that which he finds most 

credible.”). We consider whether the evidence supports the findings actually made 

by the commissioner, not whether the evidence supports a different finding. See 

St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 649 (Iowa 2000). We conclude 

Waldinger is not applicable due to the finding that Marshall had not yet achieved 

MMI. See 817 N.W.2d at 9. Because Marshall had not reached MMI on 

January 17, 2015, he was entitled to healing period benefits following that date. 

We affirm the commissioner’s decision on this issue.

V. Remand to Commissioner

Prior to the hearing on the petition for judicial review, the employer filed an 

application for leave to present additional evidence. The employer wanted to 

present evidence that Dr. Strothman opined Marshall reached MMI on July 13, 

2018. Also, Marshall had a functional capacity evaluation on May 2, 2018. The 

employer asserted that the fourth surgery did not significantly improve Marshall’s 

level of functioning beyond his level on January 17, 2015. It asked to have the 

matter remanded to the commissioner to consider this new evidence.
11

Marshall resisted the employer’s request to remand the case to the 

commissioner. He asserted that at the time of the agency hearing on August 9, 

2017, the issue of permanent disability was not ripe for adjudication and the parties 

agreed that issue would be addressed in later proceedings. He claimed the 

evidence sought to be introduced by the employer was not relevant to the issues

before the court. 

The district court ruled:

At the time of the hearing, the Court also heard [the 

employer’s] request to consider additional evidence. [The employer]

requested the Court remand to the agency for consideration of 

updated medical information, indicating Marshall’s current medical 

condition. Marshall resisted. For the reasons set forth in Marshall’s 

resistance, [the employer’s] motion for remand to consider additional 

evidence is denied.

Our review of the district court’s decision is for an abuse of discretion. 

Interstate Power Co. v. Iowa State Com. Comm’n, 463 N.W.2d 699, 702 (Iowa 

1990); Eckles v. Iowa Dep’t of Transp., No. 09-1100, 2010 WL 2080109, at *2 

(Iowa Ct. App. May 26, 2010). “In order to show an abuse of discretion, one 

generally must show the court exercised its discretion ‘on grounds or for reasons 

clearly untenable or to an extent clearly unreasonable.’” Zenor v. Iowa Dep’t of 

Transp., 558 N.W.2d 427, 431 (Iowa Ct. App. Nov. 27, 1996) (citation omitted).

The pertinent portion of section 17A.19(7) provides:

Before the date set for hearing a petition for judicial review of agency 

action in a contested case, application may be made to the court for 

leave to present evidence in addition to that found in the record of 

the case. If it is shown to the satisfaction of the court that the 

additional evidence is material and that there were good reasons for 

failure to present it in the contested case proceeding before the 

agency, the court may order that the additional evidence be taken 

before the agency upon conditions determined by the court.
12

“Iowa Code section 17A.19(7) provides a mechanism for admission of 

additional evidence following a final agency determination.” Zenor, 558 N.W.2d at 

431. “If the district court finds the additional evidence is material and the party has 

shown a good reason for not presenting it before the agency, this section requires 

the court to remand the matter to the agency for a new determination.” Id. The 

evidence sought to be introduced must be material, which means it must be 

“‘reasonably capable’ of influencing an agency’s decision.” Galey v. Emp. Appeal 

Bd., No. 17-1199, 2018 WL 3471602, at *4 (Iowa Ct. App. July 18, 2018) (citation 

omitted); see also White-Ciluffo v. Iowa Dep’t of Educ., No. 16-0309, 2017 WL 

2469216, at *3 (Iowa Ct. App. June 7, 2017) (noting the evidence must be 

“‘sufficiently material’ to justify a remand to the agency”). Also, a party must show 

good reasons why the evidence was not previously presented to the 

commissioner. See Interstate Power Co., 463 N.W.2d at 702.

The deputy granted Marshall’s motion to bifurcate the proceedings, and the 

deputy heard evidence relating only to the claims of healing period benefits and 

penalty benefits. The parties stipulated that the issue of permanent disability was 

not ripe at the time of the agency hearing. The deputy’s ruling on this issue was 

not appealed to the commissioner.

We find the evidence the employer sought to introduce was not relevant or 

material to the issue of whether Marshall was entitled to healing period benefits 

after January 17, 2015. The fact that a doctor opined Marshall reached MMI on 

July 13, 2018, does not change the analysis of whether he reached MMI on 

January 17, 2015. Also, the functional capacity evaluation on May 2, 2018, 

showed Marshall’s level of functioning on that date and was not relevant to show 
13

his level of functioning at an earlier time. Additionally, Marshall’s functional 

capacity level goes to the issue of permanent disability, which was not before the 

agency in the present proceedings. 

We conclude the district court did not abuse its discretion by denying the 

employer’s request to remand the case to the commissioner for consideration of 

additional evidence. There is no need for the court to remand to the commissioner 

for consideration of evidence that is not material to a determination of the matter 

before the court. See McMahon v. Iowa Dep’t of Transp., 522 N.W.2d 51, 55 (Iowa 

1994).

We affirm the district court’s decision that affirmed the rulings of the workers’ 

compensation commissioner in both the appeal and the cross-appeal.5

AFFIRMED ON BOTH APPEALS.

 

5 Following oral argument before the Iowa Court of Appeals, Marshall filed a motion 

for leave to amend the appendix. We deny the motion. The document Marshall 

seeks to replace in the appendix was not part of the record submitted to the district 

court. On appeal, we consider only the record before the district court. See Iowa 

R. App. P. 6.801.