Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                    No. 22-2075
                             Filed December 20, 2023


ARCHER DANIELS MIDLAND,
    Petitioner-Appellant/Cross-Appellee,

vs.

RICHIE WILLIAMS,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

Judge.


       An employer appeals the district court’s ruling on judicial review of the

workers’ compensation commissioner decision. An employee cross-appeals the

district court’s ruling affirming that he is not entitled to healing period benefits.

REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.


       Peter J. Thill and Brandon W. Lobberecht of Betty, Neuman & McMahon,

P.L.C., Davenport, for appellant/cross-appellee.

       Andrew M. Giller of Rush & Nicholson, P.L.C., Cedar Rapids, for

appellee/cross-appellant.


       Considered by Ahlers, P.J., Badding, J., and Danilson, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
                                        2


AHLERS, Presiding Judge.

       In 2018, while working at Archer Daniels Midland (ADM), Richie Williams

fell on his right side and sustained an injury. Williams eventually underwent

surgery to his right shoulder. After recovering from surgery, Williams returned to

work without restrictions.

       Williams filed a claim for workers’ compensation benefits for his injury. He

sought industrial disability benefits based on a claim that his injuries occurred

proximal to the glenohumeral joint, so the injury was to his body as a whole rather

than a scheduled shoulder injury under Iowa Code section 85.34(2)(n) (2018). He

also sought healing period benefits for days he called in sick to work before his

surgery. Following a hearing, the deputy workers’ compensation commissioner

found that the injury was to a scheduled member (i.e., the shoulder) rather than to

Williams’s whole body and he was not entitled to healing period benefits for days

when he called in sick to work.1        Both parties appealed to the workers’

compensation commissioner on multiple issues, and the commissioner affirmed

the deputy commissioner’s decision.

       Both parties sought judicial review of the commissioner’s decision through

Iowa Code chapter 17A.2 Williams sought reversal of the commissioner’s decision

that his injury was limited to a scheduled shoulder injury and that he was not

entitled to healing period benefits. ADM argued that Williams failed to preserve



1  The hearing involved other issues that were resolved by the deputy
commissioner, but we confine our discussion to the issues that are raised on
appeal.
2 The parties raised several issues, but we again confine our discussion to the

issues raised on appeal.
                                         3


error on his challenge to the scheduled nature of his injury because he took a

different tack on judicial review when claiming his injury extended to his whole

body. The district court determined the issue was preserved and reversed the

commissioner, remanding to the agency to make further disability findings as to all

body parts affected.    The district court affirmed the commissioner’s decision

denying Williams’s claim for healing period benefits for his sick days.

       ADM appeals, arguing Williams failed to preserve error on the issue of

whether the injury extended to his whole body. Williams cross-appeals, arguing

the district court erred by failing to reverse the commissioner’s decision denying

him healing period benefits.

       Iowa Code chapter 17A guides our review of agency decision-making.

Chavez v. M.S. Tech. LLC,
972 N.W.2d 662
, 666 (Iowa 2022). We assess whether

we come to the same conclusions as the district court.
Id.
 When reviewing

decisions of the workers’ compensation commissioner interpreting Iowa Code

chapter 85, we review for correction of errors at law rather than deferring to the

agency’s interpretation “because the legislature has not clearly vested the

commissioner with authority to interpret that chapter.”
Id.
 That said, “[w]e accept

the commissioner’s factual findings when supported by substantial evidence.”
Id.

(quoting Gumm v. Easter Seal Soc’y of Iowa,
943 N.W.2d 23
, 28 (Iowa 2020)).

“Evidence is substantial if a reasonable mind would find it adequate to reach the

same conclusion.” Evenson v. Winnebago Indus., Inc.,
881 N.W.2d 360, 366
 (Iowa

2016) (quoting Coffey v. Mid Seven Transp. Co.,
831 N.W.2d 81, 89
 (Iowa 2013)).

Evidence is not insubstantial just because it could lead reasonable minds to

different conclusions.
Id.
                                          4


I.     Error Preservation

       We begin with ADM’s claim that Williams did not preserve error on his

argument that he is entitled to body-as-a-whole benefits because he suffered

injuries to his shoulder and arm.      This issue stems from the differences in

compensation for injuries to scheduled body parts and unscheduled body parts.

Iowa Code section 85.34(2)(a)‒(u) provides a schedule of injuries to specified body

parts and how they are compensated, while section 85.34(2)(v) covers injuries that

do not fall under the scheduled-member subsections.3 See Chavez, 972 N.W.2d

at 666–67 (describing the difference between scheduled injuries and unscheduled

injuries). In addition to providing a greater potential number of weekly benefits

than any scheduled injury, section 85.34(2)(v) also calls for disability to be based

on the worker’s industrial disability, which is based on loss of earning capacity

rather than strictly functional impairment.
Id.

       To better understand the issue over error preservation, a timeline in the

development of this case, legislative amendments, and interpretation of those

amendments is useful.        Prior to 2017, shoulder injuries were considered

unscheduled injuries to the body as a whole. See Second Inj. Fund v. Nelson,
544 N.W.2d 258, 269
 (Iowa 1995) (“We have previously held that an injury to a joint

such as a hip or shoulder should be treated as an injury to the body as a whole,

not as a scheduled injury.”).     However, “[i]n 2017, the legislature amended



3 Iowa Code section 85.34(2)(n) provides: “For the loss of a shoulder, weekly

compensation during four hundred weeks.” And Iowa Code section 85.34(2)(v)
provides: “In all cases of permanent partial disability other than those [previously
described,] the compensation shall be paid during the number of weeks in relation
to five hundred weeks . . . .”
                                          5


section 85.34(2) to add ‘shoulder’ to the list of scheduled injuries and set the

benefits schedule for ‘the loss of a shoulder’ to ‘weekly compensation during four

hundred weeks.’” Chavez, 972 N.W.2d at 667 (citation omitted). But the legislation

did not define “shoulder.” Id.

       The lack of definition in the new legislation led to legal tussles over what

constitutes a “shoulder.” Resolution of those tussles started to shape the definition

of the term, beginning with two decisions by the workers’ compensation

commissioner in Deng v. Farmland Foods, Inc., File No. 5061883,
2020 WL 5893577
 (Iowa Workers’ Comp. Comm’n Sept. 29, 2020), and Chavez v. MS

Technology, LLC, File No. 5066270,
2020 WL 6037534
 (Iowa Workers’ Comp.

Comm’n Sept. 30, 2020). In Deng, the commissioner determined that the term

“shoulder” in section 85.34(2)(n) is not limited to the glenohumeral joint but also

includes the muscles that make up the rotator cuff. Deng,
2020 WL 5893577
,

at *10. In Chavez, the commissioner built on the foundation laid in Deng and

concluded that a labral tear, a subacromial decompression, or both would be

injuries to the “shoulder.” Chavez,
2020 WL 6037534
, at *3–4.

       The commissioner’s decision in Chavez posed a problem for Williams,

because, as he admitted in his brief to the deputy, the injured parts of his body “fall

within the [c]ommissioner’s definition of the shoulder [the commissioner]

articulated in Chavez.” Of course, having the same injury that was found to be a

shoulder injury in Chavez hampered Williams’s ability to argue before the agency

that his injuries were unscheduled injuries to his body as a whole. To try to

overcome that problem, Williams took one and only one tack. He argued the

commissioner’s Chavez decision on the issue of what body parts constitute the
                                          6


shoulder was “wrongly decided” and he “hereby preserves this issue for appeal.”

After losing this argument before the deputy due to the commissioner’s Chavez

decision, Williams appealed to the commissioner and repeated his argument on

this issue verbatim.

       After briefs were submitted to the commissioner on intra-agency appeal, the

supreme court filed its decision ruling on the commissioner’s interpretation of the

term “shoulder” in Chavez. 972 N.W.2d at 667–68. The supreme court agreed

with the commissioner’s interpretation and held that “shoulder” is not limited to the

glenohumeral joint but also includes “all of the muscles, tendons, and ligaments

that are essential for the shoulder to function.”
Id. at 668
. In Williams’s case, the

commissioner affirmed the deputy’s decision limiting Williams to benefits from a

scheduled shoulder injury.

       As Williams pursued judicial review of the commissioner’s ruling, his entire

argument before the agency on the extent of his injury—that the commissioner’s

Chavez decision was wrongly decided—was dead in the water due to the supreme

court’s decision on judicial review. So, Williams charted an entirely new course.

He argued that he sustained an injury to both his shoulder and his arm. This new

argument triggered the error-preservation issue here.

       The district court found that Williams preserved this issue for judicial review

because the parties have always disputed whether Williams’s injury qualified as a

scheduled-member shoulder injury or a body-as-a-whole industrial disability. We

respectfully disagree.   “[J]udicial review of administrative action is limited to

questions considered by the agency.”           Pruss v. Cedar Rapids/Hiawatha

Annexation Special Loc. Comm.,
687 N.W.2d 275, 285
 (Iowa 2004). To preserve
                                            7


error on an issue, Williams needed to raise the issue during the agency

proceedings and not for the first time during judicial review.            Staff Mgmt. v.

Jimenez,
839 N.W.2d 640, 647
 (Iowa 2013) (“We have held a party preserves error

on an issue before an agency if a party raises the issue in the agency proceeding

before the agency issues a final decision and both sides have had an opportunity

to address the issue.”). The question is whether Williams’s argument that the injury

extends to the body as a whole because he suffered impairment in both his arm

and shoulder is a wholly new argument or simply “additional ammunition for the

same argument.” See JBS Swift & Co. v. Ochoa,
888 N.W.2d 887, 893
 (Iowa

2016).

         Neither party introduced evidence to support or rebut the contention that the

elbow/arm impairment was separate from the shoulder impairment, nor did either

party make any arguments before the agency to support or rebut the contention

that the elbow/arm impairment should cause the injury to be classified as an

industrial disability.   See Jimenez,
839 N.W.2d at 647
 (recognizing error is

preserved if there is a final ruling and both sides have been able to address the

issue). The argument must be made specifically enough “to alert the court and

opposing counsel to the claims he now raises.” Pharaoh-Carlson v. Hy-Vee, Inc.,

No. 13-1446,
2015 WL 566666
, at *4 (Iowa Ct. App. Feb. 11, 2015). The specifics

of Williams’s argument are factually different such that neither the agency nor ADM

were alerted to it until it was raised on judicial review. On judicial review, the district

court found error on an issue the agency never actually considered. And even if

that was a mistake on the part of the agency, it was Williams’s responsibility to

obtain a ruling on the issue. See KFC Corp. v. Iowa Dep’t of Revenue,
792 N.W.2d 
                                         8


308, 329 (Iowa 2010) (“When an agency fails to address an issue in its ruling and

a party fails to point out the issue in a motion for rehearing, we find that error on

these issues has not been preserved.”).

       This is not an instance where Williams clearly made the argument but

simply failed to cite a specific legal authority. See Ochoa,
888 N.W.2d at 893
. Nor

is it a case where it is clear that he was arguing the issue but did not specifically

name the theory upon which he relied. See Off. of Consumer Advoc. v. Iowa State

Com. Comm’n,
465 N.W.2d 280
, 283‒84 (Iowa 1991) (finding error was preserved

when a party raised a Fourteenth Amendment due process claim even though it

never specifically mentioned the due process clause because it could not have

been arguing anything other than procedural unfairness). Rather, it is a case of

Williams finding an alternative way to make his case late in the process and trying

to dress it up as a preserved issue. We are not persuaded that Williams raised

this issue before the agency. Thus, we find the district court erred in deciding the

issue was preserved for judicial review. Cf. Schoenberger v. Acuity, No. 22-1613,
2023 WL 2908622
, at *2–3 (Iowa Ct. App. Apr. 12, 2023) (finding error preserved

where claimant raised his industrial disability argument based on the combination

of shoulder and arm injuries on appeal to the commissioner). As a result, we

reverse on ADM’s appeal and remand for entry of an order denying Williams’s

petition for judicial review as it relates to challenging the commissioner’s ruling that

his injury is limited to a scheduled shoulder injury.

II.    Healing Period Benefits

       Williams called in sick from work several times due to his shoulder pain and

sought healing period benefits for those days. The commissioner denied his
                                          9


request, and Williams seeks reversal of the commissioner’s decision denying him

healing period benefits.

       From the date Williams injured his shoulder until he underwent surgery for

the injury, Williams worked at ADM under restrictions. The deputy commissioner

found that ADM did not provide a formal or written offer of suitable work but instead

simply had Williams find work to do within his restrictions. At least once, Williams

was reprimanded for not working when he was unable to find something he could

do. During this period when Williams had returned to work under restrictions, he

experienced shoulder pain and called in sick, resulting in him missing fifty-two days

of work.

       The commissioner4 found the work ADM provided to Williams suitable and

that Williams “does not have license to just call in when his injured body part is

particularly sore and then later claim healing period for those dates.”          The

commissioner also addressed ADM’s failure to put the offer of work in writing. The

commissioner determined that, in an instance where the employee returned to

work, the failure to provide a written offer of work does not give the employee the

option to collect healing period benefits for days the employee does not feel well

enough to come in.

       Williams insists ADM did not meet its responsibility to offer him suitable work

for two reasons. First, he claims the work was not suitable because it is not clear



4 Because the commissioner adopted the deputy commissioner’s proposed ruling,

we treat the two decisions as one and refer to them collectively as the
commissioner’s ruling. See Schutjer v. Algona Manor Care Ctr.,
780 N.W.2d 549
,
556 n.2 (Iowa 2010) (following the same method for referencing the two decisions
of the agency).
                                         10


from the record that Williams was able to avoid work outside his restrictions.

Second, he points out that the offer was not in writing, as required by

section 85.33(3)(b). As part of his argument, he contends his return to work should

not preclude him from collecting healing period benefits for his sick days.

       As to Williams’s first argument, substantial evidence supports the

commissioner’s finding that the work offered to Williams was suitable. See Neal

v. Annett Holdings, Inc.,
814 N.W.2d 512, 519, 524
 (Iowa 2012) (noting that the

question whether an employer offered suitable work is ordinarily a fact question,

the resolution of which must be affirmed if supported by substantial evidence).

ADM allowed Williams to return to work while only working within his restrictions.

Williams’s supervisor, whom the commissioner found credible, explained the light-

duty jobs given to Williams during this time. Williams argues that the reprimand

he received for sitting around when he couldn’t find a task to do raises the question

of whether he was allowed to avoid work outside his restrictions. But nothing in

the record suggests ADM ever asked Williams to do anything outside his

restrictions. We cannot find lack of substantial evidence that Williams was offered

suitable work simply because one could look at the reprimand and perhaps

conclude that the work offered to Williams was not within his restrictions. See

Evenson,
881 N.W.2d at 366
 (“An agency’s decision does not lack substantial

evidence because inconsistent conclusions may be drawn from the same

evidence.” (quoting Coffey,
831 N.W.2d at 89
)). The evidence in the record is

sufficient to allow a reasonable factfinder to conclude that ADM offered Williams

suitable work. See
id.
                                         11


       We also do not find it appropriate to permit ADM’s failure to put the offer of

work in writing to lead to the extreme result Williams requests. Section 85.33(3)(a)

precludes an employee from receiving healing period benefits if the employer

offers suitable work and the employee refuses. Under section 85.33(3)(b), the

offer of work must be in writing. The employee’s refusal must also be in writing.
Iowa Code § 85.33
(3)(b). Williams suggests that because the offer was not in

writing, ADM cannot now argue that it offered suitable work. He reasons that

because the offer of work was not in writing, it is not necessary to address whether

he refused the work and we should reverse the denial of healing period benefits.

But we find this section simply adds a hurdle to an employer’s defense—a defense

not applicable here due to Williams’s acceptance of the work. See Cent. Iowa

Fencing, Ltd. v. Hays, No. 21-1530,
2022 WL 2826011
, at *6 (Iowa Ct. App. July

20, 2022) (holding that an employer may not defend against a claim for healing

period benefits by asserting that the employee refused work when the offer of work

was not in writing). Because ADM is not claiming Williams refused work, it is not

defending his claim for healing period benefits on that basis. Williams’s undisputed

return to work made any failure to put the offer of work in writing inconsequential.

The writing requirement does not independently create grounds for an employee

to recover healing period benefits, as Williams’s argument suggests.

       Regardless, Williams is only entitled to benefits for the days he did not work

if we find he was otherwise eligible to receive them. But Williams returned to work,

and, under section 85.34(1), doing so cuts off his entitlement to healing period
                                          12


benefits.5 Williams urges us not to use his return to work as a barrier to granting

him healing period benefits.       He suggests that to find his return to work

discontinued his healing period would create unfair results by punishing employees

who accept unsuitable work and allow employers to act unscrupulously. But the

statute is clear that an employee is entitled to healing period benefits only until the

employee returns to work.6 We cannot read in an exception to the statute to avoid

potential undesirable outcomes. See Goche v. WMG, L.C.,
970 N.W.2d 860
, 866

(Iowa 2022) (“[I]t is not our role to rewrite the Iowa statute in the guise of

interpretation.”). We come to the same conclusion as the commissioner that, upon

returning to work, Williams no longer qualified for healing period benefits.

       Because substantial evidence supports the finding that ADM offered

Williams suitable work, Williams accepted that work, and Williams returned to

work, he cannot now argue for healing period benefits for the days he called in sick

following his return to work. Therefore, on cross-appeal, we affirm the district

court’s decision denying Williams’s petition for judicial review of                the

commissioner’s decision denying additional healing period benefits.


5 Iowa Code section 85.34(1) states:

              If an employee has suffered a personal injury causing
      permanent partial disability for which compensation is payable as
      provided in subsection 2 of this section, the employer shall pay to the
      employee compensation for a healing period, as provided in section
      85.37, beginning on the first day of disability after the injury, and until
      the employee has returned to work or it is medically indicated that
      significant improvement from the injury is not anticipated or until the
      employee is medically capable of returning to employment
      substantially similar to the employment in which the employee was
      engaged at the time of the injury, whichever occurs first.
6 Of course, a new healing period as a result of additional treatment or

reaggravating the injury is not precluded. See Waldinger Corp. v. Mettler,
817 N.W.2d 1, 8
 (Iowa 2012).
                                          13


III.   Conclusion

       On ADM’s appeal issue, we reverse and remand. We reverse that part of

the district court’s decision granting Williams’s petition for judicial review

challenging the commissioner’s decision to compensate Williams for a scheduled

shoulder injury only. We remand to the district court to issue an order denying

Williams’s petition for judicial review on that issue.

       As to Williams’s cross-appeal, we affirm the district court’s decision denying

Williams’s petition for judicial review challenging the commissioner’s decision to

deny additional healing period benefits. Costs on appeal are assessed to Williams.

       REVERSED AND REMANDED ON APPEAL; AFFIRMED ON CROSS-

APPEAL.