IN THE COURT OF APPEALS OF IOWA

No. 19-0818

Filed April 1, 2020

DEBRA TRUE,

Plaintiff-Appellant,

vs.

HERITAGE CARE AND REHABILITATION and CANNON COCHRAN 

MANAGEMENT SERVICES, INC.,

Defendants-Appellees.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, 

Judge.

Debra True appeals a ruling she waived her claim to penalty benefits under 

the workers’ compensation act. AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED.

Max Schott, Shannon Bravo, and James Neal of Schott Mauss and 

Associates, PLLC, Des Moines, for appellant.

Chris J. Scheldrup and Dillon J. Carpenter of Scheldrup-Wiltfang Corridor 

Law Group, P.C., Cedar Rapids, for appellees.

Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.

Debra True appeals the workers’ compensation commissioner’s 

interpretation of an administrative rule and the commissioner’s finding that she 

waived her claim to penalty benefits by not pursing it in her initial claim under the 

workers’ compensation act. The commissioner’s interpretation of the rule was not 

wholly unreasonable, and substantial evidence supports the finding True waived 

her pre-hearing penalty-benefit claims by failing to follow the procedures in the

administrative rule. However, because a later claim may have arisen after the 

initial hearing and ruling, we reverse and remand with directions that the matter be 

remanded to the commissioner to consider True’s post-hearing penalty-benefit 

claim.

I. Background Facts & Proceedings

On January 23, 2010, True injured her right shoulder while working as a 

dietary aide at Heritage Care and Rehabilitation (Heritage Care). Heritage Care 

provided True medical benefits pursuant to Iowa Code section 85.27(1) (2010). 

True did not miss any work, so she was not entitled to temporary disability benefits. 

Medical records indicated a “chronic longstanding” shoulder injury.

On March 1, 2011, True filed a petition with the workers’ compensation 

commission (WCC). The petition sought medical benefits only. 

On January 20, 2012, three days before the statute of limitations expired, 

True filed a motion to amend her petition seeking “weekly benefit rate; nature and 

extent of temporary and permanent disability benefits; [section] 85.39 

[independent medical examination (IME)] expenses; mileage; and penalty” to the 

petition’s statement of disputes for the case. True paid the filing fee for an original 
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notice and petition in arbitration when she filed her motion to amend. The deputy 

commissioner (deputy) initially denied the motion.

A hearing—scheduled for the medical-benefits claim but addressing only 

True’s motion to amend her petition—occurred February 24. The parties submitted 

a hearing report identifying disputed issues. The issues listed on the report were 

permanent partial disability, alternate care, and an independent evaluation 

reimbursement. Penalty benefits were not included on the report. During the 

hearing, True’s attorney interrupted Heritage Care’s counsel’s argument with the 

following exchange:

[ATTORNEY FOR HERITAGE CARE]: If claimant and her 

counsel chose to amend this petition, they could have done so any 

time since it was filed . . . . 

Are we prejudiced? Is the employer prejudiced? Absolutely. 

Twenty-four hours ago, we assumed that this was going to be a med 

only hearing. . . .

Penalty benefits, which is new issue that now has been 

sought—

[ATTORNEY FOR TRUE]: That’s not on the hearing report. 

Excuse me.

[ATTORNEY FOR HERITAGE CARE]: Did you withdraw 

that? Excuse me. Okay.

After discovering the filing fee had been paid with the motion to amend, the 

deputy determined the motion should have been treated as an original notice and 

petition in arbitration. The deputy noted the petition was timely and directed True 

to refile her notice of petition. 

The petition True refiled on February 28 listed as disputes: “Weekly benefit 

rate; nature and extent of temporary and permanent disability benefits; [section] 

85.39 IME expenses; mileage; and date of injury.” The refiled petition did not plead 

“Penalty” as an issue in dispute. However, True’s January 20 petition did seek
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penalty benefits. True did not file a motion to amend to dismiss the penaltybenefits claim or file a notice of bifurcation to delay the question of the penalty 

benefits. 

A hearing on the January 20 petition was held on May 21. The hearing 

report submitted identified the following disputed issues: True’s entitlement to 

permanent disability, True’s gross weekly earnings, and Heritage Care’s statuteof-limitations affirmative defense. On June 20, the deputy found True suffered a 

permanent partial disability and awarded her corresponding benefits. 

In the agency appeal, the commissioner‘s ruling addressed the motion to 

amend and statute-of-limitations question. The commissioner held True “fully, as 

opposed to substantially, complied with the administrative rules relating to the 

timeliness of her petition and the payment of the applicable filing fee.” The 

January 20 petition, not the February 28 restatement, was the timely and 

controlling pleading for True’s additional claims.

In an earlier appeal, this court affirmed the commissioner’s decision, noting 

a motion to amend was the proper procedural course in this case, the motion was 

filed before the statute of limitations had expired, and the employer was not 

prejudiced by the amendment. Heritage Care & Rehab. v. True, No. 14-0579, 

2015 WL 1055089, at *4 (Iowa Ct. App. Mar. 11, 2015). Heritage Care paid True 

the owed benefits plus interest on March 25, 2015.

On April 1, 2015, True filed a new petition relating to the prior action and

identifying “Penalty” as the disputed benefits. A hearing report submitted by the 

parties further specified the issue as “Penalty for: failure to conduct a reasonable 

investigation; failure to contemporaneously communicate the investigation findings 
5

to Ms. True; delay in obtaining impairment rating; and unreasonable delay in 

payment of benefits.” At the time of the hearing, True was still employed by and 

had not missed any work at Heritage Care due to her disability.

In a December 19, 2016 decision, the deputy found True had waived her 

penalty-benefits claim by failing to bifurcate the penalty issue pled in the 

January 20, 2012 motion to amend and failing to present the penalty claim for 

adjudication at the administrative hearing on her petition.

On intra-agency appeal, the commissioner found the deputy’s analysis of 

the penalty benefits issue well-reasoned and affirmed the deputy’s findings of fact 

and conclusions of law—specifically the conclusion that True had waived her claim 

for penalty benefits. The district court also affirmed, noting the January 20, 2012 

amendment—as the last timely-filed petition—constituted the controlling pleading 

for benefits. The court found True’s failure to brief, include in the hearing report, 

or argue at the May 2012 hearing her claim for penalty benefits acted as an implied 

waiver of the issue. The court concluded that because True waived her right to 

penalty benefits in the May 2012 hearing, True could not refile for the benefits.

True appeals.

II. Standard of Review

A district court decision rendered in an appellate capacity is 

examined for correction of errors at law. In making such a 

determination, we apply the standards of Iowa Code 

section 17A.19[(10)], which provides an agency decision may be 

reversed where substantial rights of a party have been prejudiced 

and the action is unsupported by substantial evidence or affected by 

errors of law, to determine if our conclusion would be the same as 

that of the district court. If so, we must affirm; if not, reversal is 

appropriate.
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Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996) (citation 

omitted); see also Puntenney v. Iowa Utils. Bd., 928 N.W.2d 829, 836 (Iowa 2019). 

“‘[W]e give an agency substantial deference when it interprets its own regulations,’

so long as such interpretation is not in violation of the rule’s plain language and 

clear meaning.” Des Moines Area Reg’l Transit Auth. v. Young, 867 N.W.2d 839, 

842 (Iowa 2015).

III. Analysis

True concedes the commissioner’s interpretation of the plain language of 

Iowa Administrative Code rule 876–4.2 is entitled to “appropriate deference” when 

discretion to do so has been vested in the agency by a provision of law. See 

Puntenney, 928 N.W.2d at 836. The commissioner may award penalty benefits if 

benefits were unreasonably delayed or denied. Iowa Code § 86.13(4)(a). The 

Code provides, 

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.

Id.

But True asserts the commissioner’s interpretation of Iowa Administrative 

Code rule 876—4.2 cannot be upheld as a matter of law or is otherwise 

unjustifiable. We disagree. 

Rule 876—4.2 addresses penalty-benefits claims:

Entitlement to denial or delay benefits provided in Iowa Code 

section 86.13 shall be pled, and if pled, discovery shall be limited to 
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matters discoverable in the absence of such pleading unless it is 

bifurcated. The claimant may bifurcate the denial or delay issue by 

filing and serving a notice of bifurcation at any time before a case is 

assigned for hearing, in which case discovery on that issue may 

proceed only after the final decision of the agency on all other issues.

This rule is intended to implement Iowa Code sections 86.13, 

86.18 and 86.24.

True pled penalty benefits in her January 20 amendment, meeting the “shall 

be pled” threshold of the rule. However, following the January 20 pleading, True 

took no further action on her claim for penalty benefits—neither pursuing them in 

the initial proceeding or serving a notice of bifurcation. 

True claims to have withdrawn the original penalty issue by not including it 

in her refiled petition in February 2012. The commissioner’s ruling and our opinion 

in the first proceedings made it clear the January 20 filing was the amended petition 

in effect, not the post-statute-of-limitations February refiled petition. See Heritage 

Care, 2015 WL 1055089, at *4. An additional amendment subsequent to the 

January 20 filing to withdraw penalty benefits from the petition would have required 

leave from the deputy or commissioner or written consent from Heritage Care, 

none of which can be found in the record. See Iowa Admin. Code r. 876—4.9(5). 

True could not withdraw the penalty benefits issue after the January 20 

amendment by simply ignoring it and not listing it as a claimed benefit in her refiled 

petition in February.

The commissioner ruled True’s failure to pursue or bifurcate her penaltybenefits claim constituted waiver of all claim for penalty benefits. True is 

attempting to litigate in a piecemeal fashion assorted claims under the workers’ 

compensation law. As the deputy stated, “Claimant does not have the right to a 
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‘second bite of the apple.’” Without specifically identifying the principle, the 

commissioner’s analysis applies the doctrine of claim preclusion.

The doctrine of claim preclusion requires a party “to try the entire claim or 

defense in the case at trial.” Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 

398 (Iowa 1998). “[A] party must litigate all matters growing out of the claim, and 

claim preclusion will apply ‘not only to matters actually determined in an earlier 

action but to all relevant matters that could have been determined.’” Id. (citation 

omitted). In other words, “[c]laim preclusion may preclude litigation on matters the 

parties never litigated in the first claim.” Pavone v. Kirke, 807 N.W.2d 828, 835 

(Iowa 2011).

Claim preclusion requires three elements: 

(1) the parties in the first and second action are the same parties or 

parties in privity, (2) there was a final judgment on the merits in the 

first action, and (3) the claim in the second suit could have been fully 

and fairly adjudicated in the prior case (i.e., both suits involve the 

same cause of action).

Id. Here, the parties are identical and there was a final judgment on the merits of 

the first action, satisfying the first and second elements. See Gansen v. Gansen, 

874 N.W.2d 617, 620 (Iowa 2016). 

Rule 876—4.2 is relevant to the third element of claim preclusion. The rule 

recognizes there may be instances where additional facts may be needed for a full 

and fair adjudication of penalty benefits. It allows a claimant who believes 

additional discovery may be necessary to file and serve a notice of bifurcation, 

allowing the issue to be addressed later. Iowa Admin. Code r. 876—4.2. The rule 

functions to create an exception to claim preclusion when the claimant follows the 
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specified procedure. The exception does not exist outside the procedural 

requirements.

True initially pled her penalty-benefits claim as required under the rule. 

However, upon determining to wait to argue her claim for penalty benefits, True 

says she “constructively withdrew” the claim by not arguing it at the May 2012 

hearing and that her refiling of the claim after the final adjudication of the initial 

claim essentially turned her “constructive withdrawal” into a “constructive 

bifurcation” without notice or permission from the commissioner. 

The rule provides a specific procedure by which True could bifurcate her 

claim—a procedure she did not follow. We will not read a constructive bifurcation 

process into the rule. By pleading and then failing to argue or bifurcate her penaltybenefits claim, True waived her right to penalty benefits that had accrued prior to 

the May 2012 hearing.

While True waived her right to any pre-hearing penalty benefits, the doctrine 

of claim preclusion does not apply to any new cause of action that arose after the 

hearing—post-adjudication delays could not have been fully and fairly adjudicated 

in the prior proceeding. See Iowa Code § 611.19 (permitting successive actions 

when a new cause of action arises from the same contract or transaction). After 

the initial pleading, a claimant may file a new penalty-benefits claim due to an 

employer’s behavior after the first claim. 

For example, in Simonson v. Snap-On Tools Corp., 588 N.W.2d 430, 436 

(Iowa 1999), our supreme court determined a penalty-benefits ruling in the initial 

action only barred claims based on alleged delays for the time period leading up 

to initial arbitration ruling. Because Simonson’s second claim for penalty benefits 
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arose from a later period of time, the commissioner had jurisdiction to consider the 

claim. Simonson, 588 N.W.2d at 437 (“[N]othing in the court of appeals decision 

concerning benefits for the period prior to April 10, 1990 limited Simonson’s right 

to pursue a subsequent claim for delay in benefits during a later different period of 

time, or the commissioner’s jurisdiction to consider such a claim.”); see also 

Simonson v. Snap-On Tools Corp., No. 00-1999, 2002 WL 31113546, at *4 (Iowa 

Ct. App. Sept. 25, 2002) (noting an employer’s duty to act reasonably is a 

continuing one and requires the employer to reevaluate a claim as additional 

information becomes available).

Therefore, although True waived or is otherwise precluded from any claim 

for unreasonable delay that may have occurred prior to the hearing in May 2012, 

she may pursue a claim for penalty benefits for unreasonable delays in the 

payment of benefits based on facts arising after the award. We express no opinion 

as to the merits or defenses of such a claim.

We affirm the agency’s dismissal of True’s penalty-benefit claims for delays 

before May 21, 2012. We reverse the decision in part and remand to the district 

court with directions to remand to the workers’ compensation commissioner for an

evaluation of whether Heritage Care’s delay in paying permanent partial disability 

benefits between June 20, 2012, and March 25, 2015 was unreasonable. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.