The Waldinger Corporation, Emcasco Insurance Company, and Second Injury Fund of Iowa v. Michael B. Mettler

IN THE SUPREME COURT OF IOWA No. 10–0502 Filed July 6, 2012

THE WALDINGER CORPORATION, EMCASCO INSURANCE COMPANY, and SECOND INJURY FUND OF IOWA, Appellants,

vs.

MICHAEL B. METTLER, Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.

Workers’ compensation claimant seeks further review of court of appeals decision reversing workers’ compensation commissioner’s award of healing period benefits. COURT OF APPEALS DECISION AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; AND CASE REMANDED.

D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellants Waldinger Corporation and Emcasco Insurance Company. Thomas J. Miller, Attorney General, and Deborah M. Stein, Assistant Attorney General, for appellant Second Injury Fund.

Harry W. Dahl, Des Moines, for appellee. 2

HECHT, Justice.

On further review, we are asked to determine whether Iowa’s

workers’ compensation statute allows a claimant to recover healing

period benefits—after he has reached maximum medical improvement

and returned to substantially similar work following a work-related

injury—for a period of approximately thirteen weeks of postsurgical

convalescence during which he was unable to work. The workers’

compensation commissioner awarded such benefits in this case, but the

court of appeals reversed the award on the ground that Iowa Code

section 85.34(1) (2011) does not authorize the benefits under the

circumstances of this case. 1 We conclude the statute does authorize an

award of healing period benefits in this case. Accordingly, we vacate that

portion of the decision of the court of appeals, affirm the district court’s

judgment affirming the award, and remand for further proceedings

consistent with this opinion.

I. Background Facts and Proceedings.

Upon graduation from high school in 1969, Michael Mettler began

working as a plumber. After five years, he became a journeyman

plumber in 1974. He joined the Army reserves and was called to active duty in the early 1980s. While in the military service, he fell from a

stepladder and landed on his elbows, breaking both upper extremities

and requiring surgery. He also injured his right ankle during his service.

Mettler remained on active military duty until 2001 when he received an

honorable discharge.

1The commissioner’s award occurred in 2009. However, because there have been no substantive changes in chapter 85 material to our decision, we will refer to the 2011 Code unless otherwise indicated. 3

Mettler returned to work as a union plumber for the Waldinger

Corporation. Soon after, he reported pain in his right ankle which he

attributed to walking on uneven construction sites and climbing ladders

and scaffolding. Mettler and Waldinger stipulated that Mettler sustained

a work-related injury to his right lower extremity on August 9, 2001. In

January 2002, Dr. Lee diagnosed posterior talar dome lesions and

discussed with Mettler options including restricting activities,

transferring to a desk job, or having surgery. Mettler opted for surgery.

On February 6, 2002, Dr. Lee performed surgery which included

medial malleolar osteotomy, ankle arthrotomy with excision of multiple

loose bodies, repair of an OCD lesion, and an osteochondral graft.

Dr. Lee’s postsurgical diagnosis included talar dome lesions, arthritis,

and ankle synovitis. Mettler received some relief from the surgery and,

after a period of convalescence, returned to work at Waldinger on

May 10, 2002.

In July 2002, Mettler saw Dr. Lee again and again reported right

ankle discomfort. Dr. Lee recommended a second ankle surgery. On

September 25, 2002, Dr. Lee performed arthroscopic surgery with

extensive debridement of degenerative changes and synovitic tissue in

Mettler’s right ankle. Dr. Lee noted significant degenerative changes

during the arthroscopic procedure and predicted Mettler’s right ankle

would likely get progressively worse over time. Dr. Lee released Mettler

to return to work on October 11, 2002, and informed him that he had

reached maximum medical improvement (MMI) on November 15, 2002.

Dr. Lee rated Mettler’s right lower extremity permanent impairment at

five percent in a letter to Waldinger’s workers’ compensation insurer on

December 24, 2002. 4

Mettler “turned” his ankle in February 2003 and returned to

Dr. Lee. Mettler reported on this occasion that he still had significant

pain and discomfort in his ankle. In October of 2003, Dr. Lee suggested

a series of injections which were administered in early 2004. Mettler

received little if any relief from the injections, and Dr. Lee recommended

Mettler limit his physical activity on his right ankle as much as possible

and informed Mettler that work in a seated position was most

appropriate for him.

On July 1, 2004, Dr. Lee performed a second right ankle

arthroscopy with extensive debridement. Mettler responded well to this

surgery and, after a healing period, returned to work for Waldinger. After

seeing Mettler on April 6, 2005, Dr. Lee wrote to Waldinger expressing

his opinion that he expected Mettler to experience ankle problems in the

future and have worsening degenerative changes that might require

ankle fusion or replacement. Dr. Lee’s letter reported that Mettler was

again at maximum medical improvement and rated his permanent

impairment at seven percent of the right lower extremity.

Mettler again consulted Dr. Lee on June 30, 2005, with right ankle

complaints, and in September 2005, Dr. Lee opined an ankle fusion or

replacement were among the possible treatment options. Mettler sought

an independent medical examination with Dr. Kuhnlein. Dr. Kuhnlein

diagnosed osteoarthritis with chronic pain and an unstable ankle joint,

concluded Mettler had reached MMI, and agreed with Dr. Lee’s prediction

that Mettler would need right ankle arthrodesis in the future.

Dr. Kuhnlein rated Mettler’s impairment at thirteen percent to the right

lower extremity.

Mettler’s employment with Waldinger ended in 2006, but he

continued working as a plumber for other employers. In October of 5

2006, Mettler filed an original notice and petition with the Iowa Workers’

Compensation Commissioner alleging a claim against Waldinger and

asserting entitlement to benefits from the Second Injury Fund. 2 In July 2007, Mettler again saw Dr. Lee for ankle pain. Although

Mettler inquired about an ankle replacement procedure, Dr. Lee

recommended another ankle arthroscopy. On September 18, 2007,

Dr. Lee performed a third ankle arthroscopy with extensive debridement

of Mettler’s right ankle. He released Mettler to return to work without

restrictions on December 7, 2007. In a letter written in April 2008,

Dr. Lee opined that Mettler’s right ankle condition was a result of the

August 9, 2001 work-related injury, rated Mettler’s impairment at fifteen

percent of the right lower extremity, and recommended Mettler be

restricted to sedentary work.

Following a hearing and an intra-agency appeal, the commissioner

found Mettler reached MMI on April 6, 2005, and awarded permanent

partial disability benefits for a scheduled loss of fifteen percent of the

right lower extremity with interest as provided in Iowa Code section

85.30. The commissioner further ordered Waldinger to pay healing

period benefits for the period from the date of the third arthroscopic

surgery, September 18, 2007, until Mettler returned to work as a

plumber on December 7, 2007. The commissioner also found Mettler

had sustained an industrial disability of fifteen percent for which the

Second Injury Fund owed benefits under Iowa Code section 85.64.

2Mettler’s claim against the Second Injury Fund under Iowa Code section 85.64 alleged prior injuries to his left knee, left elbow, and right knee as qualifying prior losses. Waldinger’s answer alleged that Mettler’s lower extremity disability, if any, should be apportioned so that only disability attributable to the work-related injury would be allocated to Waldinger. 6

Waldinger filed a petition for judicial review contending the

commissioner erred in awarding healing period benefits following the

September 2007 surgery, in finding fifteen percent disability to Mettler’s

right lower extremity, and in failing to apportion Mettler’s lower extremity

disability under Iowa Code section 85.34(7) to account for the fact that

Mettler had lost part of the use of his right leg before he began working

for Waldinger. Mettler filed a cross-petition for judicial review requesting

his claim against the Second Injury Fund be remanded to the agency on

the ground that the agency miscalculated and understated his loss of

earnings as a factor in the assessment of industrial disability for

purposes of the award against the Second Injury Fund. The district

court affirmed the commissioner’s award for lower extremity disability

and rejected Waldinger’s contention that the disability should be

apportioned. The court also affirmed the award of healing period

benefits, but remanded the Second Injury Fund claim to the agency for

further proceedings as Mettler requested.

Waldinger and the Second Injury Fund appealed the district

court’s ruling, and we transferred the appeal to the court of appeals. The

court of appeals affirmed the commissioner’s determination that

Waldinger was liable for the entirety of Mettler’s lower extremity disability

but reversed the district court’s rulings remanding the industrial

disability claim against the Second Injury Fund and awarding healing

period benefits. Mettler filed an application urging us to review the two

issues which were reversed by the court of appeals. We granted further

review, however, to decide only whether the commissioner correctly

interpreted Iowa Code section 85.34(1) to allow an award of healing

period benefits for a period of disability commencing on September 18,

2007, the date of Mettler’s last surgery, until December 7, 2007, when he 7

returned to work as a plumber. We vacate the decision of the court of

appeals on the healing period issue and affirm the district court’s

judgment affirming the commissioner’s award of healing period benefits

under section 85.34(1). As our further review does not address them, the

decision of the court of appeals on all other matters raised in this appeal

shall be final.

II. Scope of Review.

Mettler’s claim for healing period benefits turns on whether the

workers’ compensation commissioner properly interpreted Iowa Code

section 85.34(1). This court has previously concluded in several cases

that the legislature did not grant the commissioner authority to interpret

chapter 85. See Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d

328, 330 (Iowa 2005); Mycogen Seeds v. Sands, 686 N.W.2d 457, 464

(Iowa 2004). However, we recently explored the analytical framework for

determining on judicial review the extent to which we give deference to

an agency’s interpretations of law. See Renda v. Iowa Civil Rights

Comm’n, 784 N.W.2d 8, 10 (Iowa 2010). Under the Renda framework,

our review of an agency’s interpretation of a statutory provision depends

on whether the legislature has clearly vested the agency with

discretionary authority to interpret the particular statutory provision. Id.

As we have not yet applied to section 85.34(1) the analytical framework

announced in Renda, we must consider the question of the extent to

which, if at all, the commissioner’s interpretation of section 85.34(1) is

entitled to deference on judicial review.

The legislature’s vesting of authority in an agency to interpret a

statute need not be expressed and may be found upon “an examination

of the phrases or statutory provisions to be interpreted, their context, the

purpose of the statute, and other practical considerations.” Id. at 11 . 8

Our inquiry “must always involve an examination of the specific

statutory language at issue, as well as the functions of and duties

imposed on the agency.” Id. at 12 . In the absence of explicit guidance

from the legislature, it is usually inappropriate to determine whether an

agency has authority to interpret an entire statute. Id. at 13 .

“Accordingly, broad articulations of an agency’s authority, or lack of

authority, should be avoided in the absence of an express grant of broad

interpretive authority.” Id. at 14 . Thus, our conclusions in prior cases

that the legislature granted the commissioner no authority to interpret

Iowa Code chapter 85, see, e.g., Mycogen Seeds, 686 N.W.2d at 464 , were

overbroad and are incompatible with the new analytical framework

announced in Renda.

The legislature has granted to the commissioner the authority to

“[a]dopt and enforce rules necessary to implement” chapters 85, 85A,

85B, 86 and 87. Iowa Code § 86.8 (1)(a). This legislative grant of broad

rulemaking authority is relevant to our determination of whether

interpretive discretion has been vested in the commissioner pertaining to

section 85.34(1), but it is not conclusive. Compare City of Marion v. Iowa

Dep’t of Revenue & Fin., 643 N.W.2d 205, 207 (Iowa 2002) (finding agency vested with authority to promulgate rules “necessary and

advisable for its detailed administration” had discretion to interpret the

term “athletic sport,” a term not defined in the statute), with Iowa Land

Title Ass’n v. Iowa Fin. Auth., 771 N.W.2d 399, 402 (Iowa 2009)

(concluding the legislature’s delegation to the Iowa Finance Authority of

the authority to adopt rules “necessary for the implementation of the title

guaranty program” did not clearly vest the agency with authority to

interpret the terms “hardship” and “public interest” in Iowa Code section

16.91(5)). After surveying this court’s decisions in these cases and 9

others, we noted in Renda that our determination of whether the

legislature has clearly vested interpretive authority in an agency turns

not merely on a grant of broad rulemaking power, but on other case-

specific factors as well. Renda, 784 N.W.2d at 13–14. We must look

carefully “at the specific language the agency has interpreted as well as

the specific duties and authority given to the agency with respect to

enforcing particular statutes.” Id. at 13.

If we conclude authority has clearly been vested in the

commissioner for the interpretation of a statutory provision, we will

affirm the commissioner’s interpretation unless it is “[b]ased upon an

irrational, illogical, or wholly unjustifiable interpretation.” Iowa Code

§ 17A.19(10)(l). If, however, the commissioner has not been vested with

the authority to interpret the provision, we will accord no deference to

the commissioner’s interpretation. Id. § 17A.19(10)(c); see also Neal v.

Annett Holdings, Inc., 814 N.W.2d 512, 519 (Iowa 2012) (according no

deference to commissioner’s interpretation because the legislature did

not grant the commissioner authority to interpret the term “suitable

work” under Iowa Code section 85.33(3)).

III. Discussion.

Iowa Code section 85.34(1) provides:

Healing Period. 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 injury, whichever occurs first. 10

Iowa Code § 85.34 (1).

Waldinger contends the commissioner erred in interpreting section

85.34(1) as allowing an award to Mettler of healing period benefits for a

period of postsurgical convalescence that occurred after he reached MMI3

on April 6, 2005, or returned to substantially similar work. Put another

way, Waldinger contends the proper interpretation of the statute does not

authorize the commissioner to order the resumption of healing period

benefits for approximately thirteen weeks during which Mettler was

unable to work as a consequence of the surgery performed on

September 18, 2007, because he had previously returned to

substantially similar work and reached MMI.

Mettler takes a different view of the statute, contending the

commissioner correctly interpreted section 85.34(1) as allowing for the

possibility of more than one healing period following a work-related

injury. Mettler contends the commissioner correctly interpreted the

statute as allowing a resumption of the healing period when, after

multiple surgeries, periods of convalescence, returns to work, and ratings

of permanent impairment by medical providers, a claimant again

becomes temporarily disabled from work as a consequence of ordinary

and necessary surgical treatment for the work-related injury.

3“MMI” is a term of art commonly used by the commissioner, attorneys practicing in the field of workers’ compensation law, and medical providers expressing opinions affecting claimants’ entitlement to healing period benefits and permanent partial disability benefits under Iowa Code section 85.34. The term is used as an alternative means of expressing the point at which “it is medically indicated that significant improvement from the injury is not anticipated.” Iowa Code § 85.34 (1). A treatise on Iowa workers’ compensation law uses “maximum recuperation” as an alternative moniker for the MMI concept. See 15 James R. Lawyer, Iowa Practice Series: Workers’ Compensation, § 13:3, at 135 (2011). 11

To resolve the issue, we must first determine whether the

legislature clearly vested in the commissioner the authority to interpret

the phrase the employer shall pay to the employee compensation for a healing period . . . 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. Id. A. Commissioner’s Authority to Interpret Iowa Code Section

85.34(1). Iowa Code chapter 85 authorizes a range of benefits for a

worker who sustains a permanent partial disability in the course and

scope of his employment. Among these are health care benefits for the

treatment of the injury under section 85.27; healing period benefits

sustaining the injured employee during convalescence and disability

from work under section 85.34(1); and permanent partial disability

benefits under section 85.34(2)(a–t) for “scheduled” losses and section

85.34(2)(u) for all other injuries resulting in permanent partial disability.

The legislature has expressly delegated to the commissioner the

duty to implement and enforce these remedies against employers for

injuries sustained by their employees in the course and scope of

employment. See id. §§ 86.8(1)(a), 85.20. Under the Renda analysis,

however, our inquiry requires us to determine whether the legislature

nonetheless clearly granted the commissioner authority to interpret

section 85.34(1). Renda, 784 N.W.2d at 11–12.

In Office of Consumer Advocate v. Iowa Utilities Board, we

concluded the legislature’s directive to “adopt rules prohibiting an

unauthorized change in telecommunication service” evidenced a clear 12

vesting of authority in the Iowa Utilities Board to interpret the

unauthorized-change-in-service provisions in section 476.103. 744

N.W.2d 640, 643 (Iowa 2008); see also Evercom Sys., Inc. v. Iowa Utils.

Bd., 805 N.W.2d 758 , 762–63 (Iowa 2011). We find no similar express

statutory grant of interpretive authority to the commissioner pertaining

to the commencement and termination of a healing period under section

85.34(1).

Section 85.34(1) leaves undefined several statutory terms and

phrases including “a healing period,” “disability,” “return[] to work,”

“significant improvement from the injury,” and “employment

substantially similar.” Although the commissioner is expressly directed

to “[a]dopt and enforce rules necessary to implement” chapter 85, this

directive standing alone did not constitute a clear vesting of interpretive

authority. Iowa Land Title, 771 N.W.2d at 402 . Having reviewed the

language of the statute and considered the specific duties and authority

given to the commissioner under the provision, we are not persuaded

that the legislature clearly vested in the commissioner interpretive

authority for section 85.34(1). Accordingly, our review of the

commissioner’s interpretation of section 85.34(1) is for correction of

errors at law. NextEra Energy Res., LLC v. Iowa Utils. Bd., 815 N.W.2d

30, 37 (Iowa 2012).

B. Review of the Commissioner’s Interpretation of Section

85.34(1). The court of appeals decision reversing the commissioner’s

award of healing period benefits to Mettler for the period following the

2007 surgery relied on language from our decision in Ellingson v.

Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999). In that case, Ellingson

sought healing period benefits for times she was unable to work based on

a “retrogression” of her disability at times after the commissioner found 13

she had reached MMI. Ellingson, 599 N.W.2d at 447 . Rejecting

Ellingson’s claim for additional healing period benefits for times after the

date upon which the commissioner found she had reached MMI, we said:

In contrast, once it has been established through a decision of the commissioner or a reviewing court that further significant improvement is not anticipated, all temporary disability benefits from a single injury are finally terminated to be followed by any permanent partial disability benefit payments that are established by the commissioner’s order.

Id. We now conclude our interpretation in Ellingson of section 85.34(1)

as a categorical prohibition of an award of healing period benefits for

disability from work occurring after the date MMI has been achieved was

erroneous, and we therefore overrule it.

Our decision today acknowledges that section 85.34(1) makes

provision for “a healing period.” Relying on our decision in Ellingson and

reading the article “a” in the statute literally, the court of appeals

concluded that Mettler was not entitled to another healing period for the

time he was temporarily totally disabled from work following the

September 2007 surgery. We now conclude the article “a” in the phrase

“a healing period” was not intended by the legislature to limit healing

period benefits to a single period of temporary disability per injury. In

other contexts, we have found the article “a” to be unclear.

“A” means “one” or “any,” but less emphatically than either. It may mean one where only one is intended, or it may mean any one of a great number. It is placed before nouns of the singular number, denoting an individual object or quality individualized.

The article “a” is not necessarily a singular term; it is often used in the sense of “any” and is then applied to more than one individual object. . . . [T]he meaning depends on context.

Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211 (Iowa 2001) (internal

quotations marks and citation omitted). As used in the context of section 14

85.34(1), we conclude the legislature intended “a” to express the sense of

“any.”

When, after achieving MMI, a claimant is rendered temporarily

disabled from work, as Mettler was, as a consequence of surgical

treatment provided under section 85.27 for a work-related injury, a new

healing period begins under section 85.34(1). Our suggestion to the

contrary in Ellingson was flawed for two reasons. First, it diminished the

promise of continuing medical care for work-related injuries under

section 85.27 by eliminating the healing period remedy intended to

replace wages lost during convalescence from ordinary and necessary

treatment in scenarios presenting more than one period of temporary

disability from work following a single injury. Further, it ignored the fact

that a single injury can cause a new period of temporary disability even

after a claimant has achieved MMI.

The employer’s obligation to provide medical treatment under

section 85.27 for work-related injuries is not limited to the duration of a

healing period. See 15 James R. Lawyer, Iowa Practice Series: Workers’

Compensation, § 15:1, at 182–83 (2011) [hereinafter Lawyer]. As in

Mettler’s case, 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. On

occasion, as in Mettler’s case, an authorized treating physician

prescribes and provides surgical treatment after the injured employee

has returned to work or was thought to have achieved MMI. We see no

principled reason why Mettler, or any similarly situated claimant, should

be disqualified from a healing period remedy when ordinary and

necessary medical care for a work-related injury temporarily removes 15

them again from the work force. 4 The commissioner’s interpretation of

section 85.34(1) allowing a new healing period for a new period of

disability during Mettler’s convalescence from the 2007 surgery,

notwithstanding the 2005 MMI date, correctly recognized that, at least

until Mettler’s claim is time-barred, the availability of a healing period

remedy turned on whether a new period of disability from work caused

by the August 9, 2001 injury began on the day of the September 18,

2007 surgery.

Among the alternative markers of the end of the healing period is

the phrase “the employee has returned to work.” Certainly, some

attempts to return to work are unsuccessful and temporary. “Where the

language is of doubtful meaning, or where an adherence to the strict

letter would lead to injustice, to absurdity, or to contradictory provisions,

the duty of ascertaining the true meaning devolves upon the court.”

Case v. Olson, 234 Iowa 869, 872 , 14 N.W.2d 717, 719 (1944); accord 2A

Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction § 45:12, at 101 (7th ed. 2007) (“It is fundamental, however,

that departure from the literal construction of a statute is justified when

such a construction would produce an absurd and unjust result and

would clearly be inconsistent with the purposes and policies of the act in

question.”). Our interpretation of section 85.34(1) announced today

avoids the absurd and unjust result that would arise if the statute were

interpreted to allow only one course of healing period benefits for a single

injury. We cannot conclude the legislature intended to deny additional 4As this appeal proceeds from an agency arbitration decision, we do not address

whether a claimant’s access to a healing period remedy for an injury ends as a matter of law with the expiration of the limitations period for filing a review reopening proceeding under Iowa Code section 85.26(2). 16

healing period benefits when an injured employee’s return to work proves

unsuccessful and a new period of temporary disability from work begins

or—as in Mettler’s case—invasive medical treatment for the work-related

injury again renders him temporarily disabled from work.

Among the other indicators of the end of a healing period is the

employee’s achievement of MMI. Characterized by the legislature as that

point in the convalescence from which “it is medically indicated that

further significant improvement from the injury is not anticipated,”

section 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.

Furthermore, our interpretation of the statutory provision is

consistent with our long-standing principle of construction of the

workers’ compensation statute. The workers’ compensation statute was

adopted “for the benefit of the working [person] and should be, within

reason, liberally construed.” Barton v. Nevada Poultry Co., 253 Iowa 285,

289 , 110 N.W.2d 660, 662 (1961). Our interpretation of section 85.34(1)

also notably conforms to the commissioner’s long-standing interpretation

of section 85.34(1) in cases involving intermittent periods of disability

from work following a work-related injury. See 15 Lawyer, § 13:3, at

138–39 (“Healing period for an injury may terminate and then begin

again.”). Accordingly, we conclude the commissioner correctly

interpreted section 85.34(1) as allowing a new course of healing period

benefits during Mettler’s temporary disability from work following surgery

from September 18 through December 7, 2007, notwithstanding his prior 17

returns to work and earlier achievements of MMI following previous

surgeries performed in the treatment of a single work-related injury.

The court of appeals also concluded the commissioner’s award of

healing period benefits must fail because the record contained no

evidence supporting a finding that Mettler’s “doctors anticipated

reasonable improvement from the [2007 surgery].” As we affirm in this

case the commissioner’s interpretation of section 85.34(1) allowing an

award of healing period benefits for a new period of disability beginning

after the claimant reached MMI under the circumstances presented here,

we need not address whether the record supports a finding that

significant improvement was anticipated from the 2007 surgery. 5 The

dispositive question is whether the treatment provided to Mettler under

section 85.27 resulted in a new period of disability from work during the

period of convalescence at a time before the claim for benefits for the

injury of August 9, 2001, was time-barred. It clearly did.

IV. Conclusion.

We vacate only that part of the decision of the court of appeals

reversing the award of healing period benefits. The disposition by the

court of appeals of all other issues raised on appeal is affirmed. COURT OF APPEALS DECISION AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGEMENT AFFIRMED IN

PART AND REVERSED IN PART; AND CASE REMANDED.

All justices concur except Waterman, J., who concurs specially and

Mansfield, J., who takes no part.

5It seems to us a reasonable inference, however, that the surgeon who performed the 2007 surgery anticipated some improvement in the injured ankle as a consequence of the treatment. 18

#10–0502, Waldinger Corp. v. Mettler

WATERMAN, Justice (concurring specially).

I respectfully specially concur. I agree with the majority’s outcome

because it is consistent with the workers’ compensation commissioner’s

interpretation of Iowa Code section 85.34(1) (2011). My adherence to

stare decisis precludes me from joining the full opinion. This decision

turns on the interpretation of a term of art—“healing period”—that is

unique to the workers’ compensation law administered by the

commissioner. The majority interprets that language itself without

acknowledging the agency’s interpretive authority or the deference owed

to its interpretation of that specialized term within its expertise. See

Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8 , 11–12 (Iowa 2010). I

would apply Renda and defer to the agency’s interpretation of the

healing-period provision to reach the same result.