               IN THE SUPREME COURT OF IOWA
                                  No. 08–0639

                           Filed July 17, 2009


DRAKE UNIVERSITY and EMPLOYERS
MUTUAL CASUALTY COMPANY,

      Appellants,

vs.

ANGELA DAVIS,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Don C.

Nickerson, Judge.



      An employer and its insurance carrier appeal a decision of the

district court affirming an award of benefits made by the workers’

compensation commissioner.          AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED WITH INSTRUCTIONS.



      David L. Jenkins of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,
Des Moines, for appellants.



      Thomas J. Reilly and Kyle T. Reilly of Thomas J. Reilly Law Firm,

P.C., Des Moines, for appellee.
                                            2

WIGGINS, Justice.

       The workers’ compensation commissioner awarded an employee

benefits for three separate injury dates. The employer and its insurance

carrier sought judicial review of the agency action. The district court not

only affirmed the decision of the agency, but also found the employer and

its insurance carrier were not entitled to a credit for benefits paid by a

group plan under Iowa Code section 85.38(2) (2005). 1 In this appeal, we

find the employer and its insurance carrier were not deprived of

procedural due process, substantial evidence supports the agency’s

decision, the permanent total disability benefits are not subject to

apportionment under the workers’ compensation statutes, the agency

misapportioned the benefits due for the March 16, 2001, and July 31,

2002, injuries, and the district court should not have considered the

credit for benefits issue. Therefore, we affirm in part the decision of the

district court affirming the decision of the workers’ compensation

commissioner.        However, we reverse that part of the district court

judgment dealing with the apportionment of benefits for the March 16,

2001, and the July 31, 2002, injuries. Additionally, we vacate that part

of the district court judgment dealing with the credit for benefits issue
because the commissioner did not consider the issue at the agency level.

       I. Background Facts and Proceedings.

       A. Employment History. Angela Davis began working at Drake

University 2 in the facility management area in May 1982. She worked at

Drake moving up in pay scale and job title for twenty-two and one-half

       1All references in this opinion will be to the 2005 edition of the Iowa Code unless

otherwise noted.

       2Drake  University’s insurance carrier, Employers Mutual Casualty Company, is
also a party to this action. For the sake of brevity, we will refer to both parties as
“Drake.”
                                    3

years until her termination on November 3, 2004. Davis started out as

Facility Maintainer IV, the lowest position on the scale, doing custodial

work in residence halls. Drake promoted her to Facility Maintainer III

sometime in 1983.       Drake promoted her again in 1985 to Facility

Maintainer II in which position she trained new employees.        Finally,

Davis was promoted in 1990 to Facility Maintainer I, the top

classification in the custodial field at Drake.       Her responsibilities

included answering the phone, arranging work schedules, training new

employees, supervising student employees, and performing manual

custodial work.

      Although the university continued to promote her, it did have

problems with her performance. Her employment records contained five

disciplinary reports. Davis also had many run-ins with her boss, John

Selin, the director of residential services throughout her time at Drake.

Another supervisor claimed Davis did not respect her supervisors. Some

of the complaints in Davis’s employee file dealt with her job performance,

but many more dealt with her interpersonal skills. At one point, Drake

demoted her from Facility Maintainer I to Facility Maintainer II for

creating a hostile work environment. Drake later bumped her back up to

Facility Maintainer I status.

      In September 2004, Drake claimed Davis left work early without

finishing her work.    Drake informed Davis that any further incident

would result in disciplinary action against her. Drake terminated Davis

on November 3 citing inflammatory and racist comments to coworkers as

well as an ongoing pattern of inappropriate behavior toward supervisors

and coworkers as the justification for the termination.

      B.   March 16, 2001, Injury.       Davis’s first injury occurred on

March 16, 2001. She was shoveling snow outside a residential hall and
                                        4

felt a sharp pain down her back and leg. The doctors diagnosed a left

L5-S1     herniated   nucleus   pulposus     and   performed   a   left   L5-S1

diskectomy.     After her recovery, the doctors gave Davis a ten percent

permanent partial impairment rating and a permanent lift restriction of

thirty-five pounds.    Drake voluntarily paid her seventy-five weeks of

permanent disability for this injury.

         C. July 31, 2002, Injury. On July 31, 2002, while performing

her duties vacuuming in the law school, Davis felt queasiness in her

stomach and weakness in her leg.            An MRI scan revealed left L5-S1

epidural fibrosis plus a small recurrent herniated nucleus pulposus. She

received three epidural steroid injections for her injury.         The doctor

assented to Davis’s return to work with a twenty-pound lift restriction

and allowed her to do only lightweight vacuuming on an occasional

basis.    He also gave her a two percent permanent partial impairment

rating. Drake voluntarily paid her ten weeks of permanent disability for

this injury.

         D. September 14, 2004, Injury. Davis alleges her third injury

occurred on September 14, 2004. Davis was working in the field house

that day and was pulling trash across the floor when she felt queasy.

She filled out an incident report of the injury.        The incident report

contained no statement as to the specifics of her injury, but she thought

she told her supervisor how the injury occurred.         The incident report

stated Davis was going to Concentra Medical Center, but also said her

disability was ongoing and began on March 16, 2001. Davis’s supervisor

filled out the incident report and Davis signed it.

         At Concentra, Davis reported that her injury occurred around

8 a.m. and was from repetitive use of the vacuum and lifting more than

twenty pounds of trash. Concentra referred her to her previous doctor.
                                     5

She reported to this doctor that the onset of pain had increased on

September 14, 2004. She denied a specific injury. The doctor diagnosed

her with having a herniated nucleus pulposus and spondylolisthesis.

The doctor opined the spondylolisthesis was not work-related, but the

herniated nucleus was related to her work activities. He recommended

surgical intervention.

      Davis decided on November 2 to proceed with surgery. Drake fired

her the next day. Drake sought a second opinion before authorizing any

surgery.   Davis told the doctor retained by Drake about the specific

incident of dragging trash in the field house and the pain she felt after

that point. On November 17 the second doctor opined Davis’s current

complaints related back to the original injury in March 2001.         The

second doctor acknowledged his opinion was based on his review of a

July 2002 MRI and he did not have her recent MRI to study.

      Based on this report, Drake would not authorize her surgery.

Additionally, Drake informed Davis that Drake had no notice of increased

back pain or the specific September 14 incident; therefore, it would be

denying her claim for the surgery and any other subsequent treatment.

Without Drake’s authorization, Davis had the surgery on November 22.

Davis also had a permanent implantation of a dorsal column stimulator

on August 15, 2005.      A third physician rated Davis’s injury.   He gave

Davis an impairment rating of twenty-six percent for the September 14,

2004, injury, which includes a three percent impairment based on the

pain from the dorsal stimulator.

      Davis also saw a psychologist. The psychologist diagnosed Davis

with major depression disorder and opined her depression was related to

her work injury. He further opined Davis’s depression limited her ability
                                       6

to function in a normal society, and that she would likely require

indefinite psychological care in the future.

        Again, Drake referred Davis to a psychiatrist for a second opinion.

He found Davis had a twenty-plus year history of interpersonal

relationship problems. Further, he opined the idea that her depression

stemmed from injuries lacked credence because she did not seek

treatment and no psychiatric diagnosis indicated Davis was unable to

work.

        E.      Proceedings before the Iowa Workers’ Compensation

Commissioner.        Davis filed her petitions in September 2004 as files

5012800, 5012801, and 5012802.               File number 5012800 alleges an

injury date of March 16, 2001, with shoveling snow as the cause of the

injury. File number 5012801 lists the injury date as July 31, 2002, and

alleges vacuuming as the cause of the injury.              File number 5012802

alleges repetitive use of back at work as the cause with an injury date of

September 14, 2004.

        Davis    amended    her   petition    in   file   number     5012802      on

November 22.        In   that   amended      petition     Davis   stated   that   on

September 14, 2004, as she “carried out her work duties ‘dragging a bag

of trash,’ her back and leg pain was intensified and thus she reported her

injury.”     Davis asked to amend the “petition to reflect the cumulative

process by which her injury occurred culminating with the intensified

pain she felt on 9/14/04 when she was dragging a bag of trash.” She

also amended her petition to include a claim for penalty benefits under

Iowa Code section 86.13 stating Drake failed to provide reasonable

justification for refusing to commence weekly and medical benefits.

        Prior to the hearing, the parties filed hearing reports in each of the

files. The deputy commissioner approved each hearing report by signing
                                       7

an order. The orders confirmed the parties’ stipulation that the injuries

of March 16, 2001, and July 31, 2002, arose out of and were in the

course of employment. The orders also confirmed the March 16, 2001,

injury caused a permanent disability and the commencement date for the

permanent partial disability benefits for this injury would be July 21,

2001.      The orders further confirmed the parties did not dispute that

Drake paid Davis seventy-five weeks of compensation for this injury.

Finally,    the   orders   confirmed   the   parties’   stipulation   that   the

commencement date for the permanent partial disability benefits for the

July 31, 2002, injury would be August 21, 2002, and that Drake had

paid Davis ten weeks of compensation.

        The orders indicated the following issues relevant to this appeal

were in dispute: (1) whether the July 31, 2002, injury caused a

temporary or permanent disability; (2) whether Davis suffered an injury

on September 14, 2004, arising out of and in the course of her

employment; (3) the amount of benefits, if any, due from the three

injuries; (4) the apportionment of benefits among the three injuries; and

(5) the payment of medical expenses for the September 14 injury. The

parties reserved the issue of credit for benefits paid for by a group plan

for another day.

        The deputy workers’ compensation commissioner issued the

arbitration decision.      The deputy found Davis to be credible.            He

determined Davis suffered a low back injury on September 14, 2004,

when dragging trash bags and performing other duties at work.                The

deputy also found Davis did have mental health problems causally

related to her work injuries. The deputy further determined the medical

expenses submitted for this injury were fair and reasonable.
                                     8

      Additionally, the deputy determined the work injury on March 16,

2001, caused a fifteen percent permanent partial disability entitling

Davis to seventy-five weeks of benefits.    He found the July 31, 2002,

injuries caused a thirty percent permanent partial disability entitling

Davis to 150 weeks of benefits.     Finally, he found the September 14,

2004, injury caused a one hundred percent loss of earning capacity

entitling Davis to permanent total disability benefits during her period of

disability and continuing throughout her lifetime, absent improvement.

He also determined the benefits for this injury would begin on

November 3, 2004.

      The deputy recognized the overlap in benefits regarding the first

two injuries. He stated the overlap was from August 21, 2002, through

December 3, 2002, based on the stipulated commencement dates of each

benefit.    Under Iowa Code section 85.36(9)(c) (2003), the deputy

apportioned the benefits between the first and second injury.

      The deputy also recognized an overlap in benefits regarding the

second and third injuries. He did not apportion these benefits because

the legislature repealed section 85.36(9)(c), effective September 7, 2004.

2004 First Extraordinary Session Iowa Acts ch. 1001, §§ 12, 18. In its

place, the legislature enacted section 85.34(7).   Id. § 11.    This section

was effective September 7, 2004, and applied to all injuries occurring

after its effective date. Id. § 18. The deputy held section 85.34(7)(b) does

not apply to a permanent total disability when the same employer is

involved.

      Drake filed for reconsideration before the deputy.        The deputy

corrected a typographical error and reaffirmed his decision.          Drake

appealed the decision to the commissioner. The commissioner affirmed

and adopted the deputy’s decision as the final agency action. Drake then
                                       9

requested judicial review by the district court. The district court affirmed

the decision of the workers’ compensation commissioner.          The district

court also ruled Drake was not entitled to a credit for benefits under a

group plan.      Drake appealed the decision of the district court to this

court.

         II. Issues.

         Drake appeals claiming: (1) the agency violated its due process

rights when the commissioner found an injury date of September 14,

2004; (2) substantial evidence did not support the commissioner’s

findings; (3) the commissioner miscalculated the apportionment between

the March 16, 2001, injury and the July 31, 2002, injury; (4) the

commissioner misapplied the apportionment of benefit statute to the

September 14, 2004, injury; and (5) the agency failed to provide a credit

for benefits under a group plan.

         III. Analysis.

         A. Due Process. Drake claims the agency violated its due process

rights when the agency found Davis suffered a low back injury on

September 14, 2004, when dragging trash bags and performing other

duties at work. Drake bases this claim on the belief that Davis did not

allege a specific injury occurring on September 14.         Therefore, Drake

claims its procedural due process rights were violated because Drake did

not have notice and an opportunity to defend the claim.

         We can reverse, modify, or grant other relief if the agency action is

unconstitutional as applied to a party. Iowa Code § 17A.19(10)(a). We

review constitutional issues raised in an agency proceeding de novo.

Insituform Techs., Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 788

(Iowa 2007).     The Fourteenth Amendment requires that a party to an

agency proceeding have notice and an opportunity to defend.           Carr v.
                                     10

Iowa Employment Sec. Comm’n, 256 N.W.2d 211, 214 (Iowa 1977). Our

review of the record reveals Drake had notice and an opportunity to

defend Davis’s claim that she suffered a low back injury on September

14, 2004, when dragging trash bags and performing other duties at

work.

        Davis filed her petition on September 16, 2004. The petition stated

the cause of injury was the “[r]epetitive use of back at work.” Although

Drake may not have recognized it as a specific injury, Davis had filed an

incident report with the school on that date. In that incident report, her

supervisor acknowledged she was going to seek medical care at

Concentra Medical Center. Davis told the physicians at Concentra her

injury occurred around 8 a.m. and was from repetitive use of the vacuum

and lifting more than twenty pounds of trash.

        After Drake received a medical report from the physician it retained

to give an opinion as to whether Davis’s surgery was work-related,

Drake’s attorney sent a letter to Davis’s attorney stating that Drake did

not know of any incident that increased the lower back pain. The history

Davis gave to the physician retained by Drake states, “she was dragging

trash in the field house and apparently was hung up in a doorway. She

felt sharp pain in her back . . . .” The physician sent his report to Drake

on November 17.       On November 22 Davis amended her petition and

stated that on September 14, 2004, as she “carried out her work duties

‘dragging a bag of trash,’ ” she suffered intensified pain in her left leg and

back. Additionally, Drake signed a hearing report indicating it disputed

whether Davis suffered an injury on September 14.

        As early as November 2004, Drake knew the cause of Davis’s

September 14 injury was an issue in this case. It was at this time Davis

claimed the injury occurred when the trash she was dragging hung up in
                                    11

a doorway. The hearing took place in April 2006. This information and

its timing gave Drake ample notice and opportunity to defend the claim.

Drake’s claim of a due process violation is meritless.

      B. Substantial Evidence. Drake makes multiple claims alleging

substantial evidence did not support the commissioner’s findings.

Specifically, Drake claims substantial evidence does not support the

agency decision: (1) finding Davis sustained a work-related injury on

September 14, 2004; (2) awarding Davis permanent partial disability

benefits for the July 31, 2002, injury; (3) declaring Davis permanently

and totally disabled; and (4) awarding medical expenses.

      The legislature vested the determination of facts with the Iowa

Workers’ Compensation Commissioner.            Iowa Code §§ 86.14–.24.

Therefore, we review the record as a whole for substantial evidence. Id.

§ 17A.19(10)(f) (stating we review an agency’s “determination of fact

clearly vested by a provision of law in the discretion of the agency” for

substantial evidence). Substantial evidence is:

         [T]he quantity and quality of evidence that would be
      deemed sufficient by a neutral, detached, and reasonable
      person, to establish the fact at issue when the consequences
      resulting from the establishment of that fact are understood
      to be serious and of great importance.

Id. § 17A.19(10)(f)(1). Viewing the record as a whole means:

      that the adequacy of the evidence in the record before the
      court to support a particular finding of fact must be judged
      in light of all the relevant evidence in the record cited by any
      party that detracts from that finding as well as all of the
      relevant evidence in the record cited by any party that
      supports it, including any determinations of veracity by the
      presiding officer who personally observed the demeanor of
      the witnesses and the agency’s explanation of why the
      relevant evidence in the record supports its material findings
      of fact.
                                    12

Id. § 17A.19(10)(f)(3).

      A decision of an agency does not lack substantial evidence merely

because the interpretation of the evidence is open to a fair difference of

opinion. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999).

Even if we can draw different conclusions from the evidence, we must

decide whether the evidence supports the actual finding made by the

agency, not whether the evidence would support a different finding.

Raper v. State, 688 N.W.2d 29, 36 (Iowa 2004). It is not the job of the

district court or the appellate court to determine what “evidence ‘trumps’

other evidence or whether one piece of evidence is ‘qualitatively weaker’

than another piece of evidence” when it conducts a substantial evidence

review of an agency decision. Arndt v. City of Le Claire, 728 N.W.2d 389,

394 (Iowa 2007). The legislature left those determinations to the agency.

      The agency found Davis to be a credible witness. It also weighed

the testimony of the various physicians who testified as to Davis’s

physical and mental conditions. Although the record contains conflicting

evidence as to (1) whether Davis sustained a work-related injury on

September 14, 2004; (2) whether she suffered a permanent partial

disability from the July 31, 2002, injury; (3) whether Davis suffered a

permanent total disability due to the September 14, 2004, injury; and

(4) whether Davis was entitled to the medical benefits awarded by the

agency, our review of the record reveals substantial evidence supports

the agency’s findings as to these issues. Consequently, Drake’s claims

regarding the lack of substantial evidence are also without merit.

      C.    Apportionment of Benefits.       Drake makes two separate

arguments concerning the apportionment of benefits. First, it claims the

commissioner wrongly apportioned the benefits paid due to the

March 16, 2001, injury and the July 31, 2002, injury. Second, it argues
                                      13

the commissioner should have apportioned the benefits paid due to the

July 31, 2002, injury and the September 14, 2004, injury.

        1.   Apportionment between March 16, 2001, and July 31, 2002,

injuries.    Drake argues the overlap in permanent partial disability

benefits for the March 16, 2001, injury and the benefits from the

July 31, 2002, injury should have been apportioned under Iowa Code

section 85.36(9)(c) (2003). Although, the agency apportioned the benefits

between the March 16, 2001, and July 31, 2002, injuries under section

85.36(9)(c), Drake argues the agency did not compute the correct overlap

time.

        The resolution of this issue involves the agency’s application of law

to the facts.      The legislature clearly vested the agency with the

application of the law to the facts.       Iowa Code §§ 86.14–.24.   We are

required to give the agency appropriate deference because the legislature

vested the application of the law to the facts with the agency.          Id. §

17A.19(11)(c).    We give the agency the appropriate deference by only

reversing or modifying the agency action “upon an irrational, illogical, or

wholly unjustifiable application of law to fact.” Id. § 17A.19(10)(m).

        The agency determined the March 16, 2001, injury caused a fifteen

percent permanent partial disability and the July 31, 2002, injury

caused a thirty percent permanent partial disability.         The March 16

injury entitled Davis to seventy-five weeks of permanent partial disability

benefits.    Drake paid seventy-five weeks of disability compensation for

this injury at the rate of $287.18 per week. The starting date for these

payments was July 21, 2001.

        For the July 31 injury, Drake was required to pay 150 weeks of

disability compensation at the rate of $305.52 per week beginning on

August 21, 2002. The agency calculated that the overlap time extended
                                            14

from August 21, 2002, through December 3, 2002. During the overlap

period, the agency ordered Drake to pay $18.34 per week on the second

injury, the difference between the rates for these two injuries. Starting

on December 4, 2002, the agency ordered Drake to start paying $305.52

per week, the rate due on the July 31 injury.

        The agency miscalculated the period of overlap.                 The agency

ordered Drake to pay benefits for seventy-five weeks due to the March 16

injury.     If the payments started on July 21, 2001, they would end on

December 27, 2002, not December 3, as calculated by the agency. This

miscalculation by the agency is an illogical application of law to fact.

Therefore,        Drake   should     have    paid   $18.34    per     week   through

December 27, 2002, for the July 31 injury and started paying the

$305.52 per week for this injury on December 28, 2002.

        2. Apportionment between July 31, 2002, and September 14, 2004,

injuries.     Drake claims the commissioner erred by not apportioning

Davis’s permanent total disability benefits.                 We generally do not

apportion the benefits from two successive work-related injuries without

a statute allowing us to do so.            Mycogen Seeds v. Sands, 686 N.W.2d

457, 465 (Iowa 2004).           Therefore, the workers’ compensation statutes

control the apportionment of benefits.

        Presently, Iowa Code section 85.34(7) governs the apportionment of

benefits.     Section 85.34(7) became effective September 7, 2004, and

applied to all injuries occurring on or after its effective date. 2004 First

Extraordinary Session Iowa Acts ch. 1001, § 18. The injury that caused

Davis’s permanent total disability occurred on September 14, 2004.

Thus,       the    resolution   of   the    apportionment     issue    requires   an

interpretation of section 85.34(7).
                                     15

      It is well settled in Iowa that “ ‘ “[t]he interpretation of workers’

compensation statutes and related case law has not been clearly vested

by a provision of law in the discretion of the agency.” ’ ” Schadendorf v.

Snap-On Tools Corp., 757 N.W.2d 330, 334 (Iowa 2008) (quoting Lakeside

Casino v. Blue, 743 N.W.2d 169, 173 (Iowa 2007)).              Because the

legislature has not clearly vested the agency with the interpretation of

the law, we do not give the agency’s view of the law any deference and

can substitute our own judgment.             Iowa Code § 17A.19(11)(b);

Schadendorf, 757 N.W.2d at 334. Accordingly, our review is for errors at

law. Iowa Code § 17A.19(10)(c).

      Section 85.34(7)(b) applies to successive injuries at the same place

of employment with the same employer. It provides in relevant part:

            If an injured employee has a preexisting disability that
      was caused by a prior injury arising out of and in the course
      of employment with the same employer, and the preexisting
      disability was compensable under the same paragraph of
      section 85.34, subsection 2, as the employee’s present injury,
      the employer is liable for the combined disability that is
      caused by the injuries, measured in relation to the
      employee’s condition immediately prior to the first injury. In
      this instance, the employer’s liability for the combined
      disability shall be considered to be already partially satisfied
      to the extent of the percentage of disability for which the
      employee was previously compensated by the employer.

            If, however, an employer is liable to an employee for a
      combined disability that is payable under section 85.34,
      subsection 2, paragraph “u”, and the employee has a
      preexisting disability that causes the employee’s earnings to
      be less at the time of the present injury than if the prior
      injury had not occurred, the employer’s liability for the
      combined disability shall be considered to be already
      partially satisfied to the extent of the percentage of disability
      for which the employee was previously compensated by the
      employer minus the percentage that the employee’s earnings
      are less at the time of the present injury than if the prior
      injury had not occurred.
                                    16

Iowa Code § 85.34(7)(b) (emphasis added).

      In interpreting section 85.34(7)(b), we must determine legislative

intent.     Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa

2004). We look to the words the legislature chose to determine legislative

intent rather than what the legislature should or might have said. State

v. Dohlman, 725 N.W.2d 428, 431 (Iowa 2006).        We “may not extend,

enlarge or otherwise change the meaning of a statute” under the guise of

construction. Auen, 679 N.W.2d at 590.

      The plain and unambiguous language of section 85.34(7)(b)

indicates the only benefits subject to apportionment are those awarded

under section 85.34(2).     Section 85.34(2) benefits include scheduled

benefits and permanent partial disability of the body as a whole. The

agency awarded Davis permanent total disability benefits under section

85.34(3).      Permanent total disability benefits are not subject to

apportionment under section 85.34(7).

      This interpretation is consistent with section 85.34(7)’s legislative

history. The legislature stated when it enacted the new apportionment

statute that it was intended to avoid “all double recoveries and all double

reductions in workers’ compensation benefits for permanent partial

disability.” 2004 First Extraordinary Session Iowa Acts, ch. 1001, § 20

(emphasis added). Without an apportionment statute that applies to an

award of permanent total disability benefits, there is no basis for the

agency to apportion the award. See Celotex Corp. v. Auten, 541 N.W.2d

252, 256 (Iowa 1995) (holding the industrial commissioner could not

apportion benefits without a statute authorizing him to do so; therefore,

the full responsibility rule was applicable).   Therefore, the agency was

correct when it refused to apportion Davis’s permanent total disability

benefits.
                                         17

      D. Credit for Benefits Under a Group Plan. An employer may be

entitled to a credit against an award of workers’ compensation benefits

for the benefits an employee received under a group plan. Iowa Code §

85.38(2). The district court addressed the credit for benefits issue and

found Drake was not entitled to a credit.

      The agency did not address the credit for benefits issue in its final

decision. We believe the agency did not address this issue because the

parties stipulated in the hearing report that any credit to which the

employer may be entitled under section 85.38(2) was “to be determined.”

When the deputy signed the order approving the hearing report, he

entered a hand-written note next to the section dealing with section

85.38(2). The notation stated the “parties [are] not asking for this [to be]

determined now.”

      Iowa Code section 17A.19 governs judicial review of agency action.

“A person or party who has exhausted all adequate administrative

remedies and who is aggrieved or adversely affected by any final agency

action is entitled to judicial review . . . .” Iowa Code § 17A.19(1). Drake

is not aggrieved or adversely affected by a decision of the agency

regarding the credit for benefits issue because the agency never ruled on

the issue. Thus, the district court should not have considered the issue.

      IV. Disposition.

      We affirm in part the decision of the district court affirming the

judgment of the workers’ compensation commissioner.                However, we

must reverse that part of the district court judgment dealing with the

apportionment of benefits for the March 16, 2001, and the July 31,

2002, injuries.    Additionally, we must vacate that part of the district

court judgment dealing with the credit for benefits issue because the

commissioner      did   not   consider    the   issue   at   the   agency   level.
                                  18

Accordingly, we remand the case to the district court to enter judgment

consistent with this opinion and then the district court should remand

the matter to the agency for entry of a decision consistent with this

opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

WITH INSTRUCTIONS.
