                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0822
                               Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD LINDSAY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen,

Judge.



      Chad Lindsay appeals the restitution order entered after he pled guilty to

one count of failure to obtain workers’ compensation liability insurance.

AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

       Chad Lindsay pled guilty to one count of failure to obtain workers’

compensation liability insurance for his trucking business, in violation of Iowa Code

sections 87.1 and 87.14A (2013), a Class D felony. The district court deferred

judgment, placed Lindsay on probation, and ordered him to pay costs, fees, and

restitution. After a restitution hearing, the court assessed Lindsay $75,846.91 in

victim restitution, the amount of benefits a deputy workers’ compensation

commissioner ordered Lindsay to compensate an employee for his work-related

injury. Lindsay challenges the award on appeal.1

       We review the restitution order for correction of errors at law. See State v.

Covel, 925 N.W.2d 183, 187 (Iowa 2019). “We will reverse if the court has not

properly applied the law or the court’s findings lack substantial evidentiary

support.”   Id.   Our restitution statute requires the sentencing court to order

restitution for victims of crime and prioritizes victim restitution over all other forms

of restitution. See Iowa Code § 910.2(1). The court may award victim restitution

for pecuniary damages that are causally related to the defendant’s criminal

activities. See Iowa Code § 910.3; State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa

2001). “Pecuniary damages” are “all damages to the extent not paid by an insurer



1 Because the sentencing order was not a final judgment, our supreme court
treated Lindsay’s notice of appeal as an application for discretionary review and
granted it. See Daughenbaugh v. State, 805 N.W.2d 591, 598 (Iowa 2011) (“[A]
person who receive[s] a deferred judgment, [i]s placed on probation, and [i]s
ordered to pay restitution and court costs, has no right of direct appeal because
there is no final judgment in the district court.”); State v. Stessman, 460 N.W.2d
461, 464 (Iowa 1990) (“We believe that the proper route of possible review for a
restitution order issued as part of or following a deferred judgment is an application
for discretionary review.”).
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on an insurance claim by the victim, which a victim could recover against the

offender in a civil action arising out of the same facts or event.” Iowa Code

§ 910.1(3) (emphasis added).

       Lindsay first contends the district court erred in ordering victim restitution in

the same amount the victim was awarded in the workers’ compensation action.

He argues that by pursuing a workers’ compensation claim, the employee is

precluded from recovering in a civil action. See Stroup v. Reno, 530 N.W.2d 441,

443 (Iowa 1995) (holding that an employee may elect to either pursue a civil action

in court for a workplace injury or pursue an administrative workers’ compensation

claim, “but not both”). But in determining victim restitution, the question is whether

“the victim could recover against the offender under any civil-based theory of

recovery ‘arising out of the same facts or events.’” State v. Hollinrake, 608 N.W.2d

806, 808 (Iowa 2000) (emphasis added). Iowa Code section 87.21 allows an

employee to recover personal injury damages for a workplace injury in a civil action

when an employer fails to obtain workers’ compensation liability insurance. Iowa

Code § 87.21. Because Lindsay’s criminal act supports a civil claim for recovery,

the court could award restitution to compensate the victim for the damages arising

from that criminal act. The district court properly applied the law in assessing victim

restitution.

       Lindsay also contends his counsel was ineffective for failing to request an

order from the district court allowing for a setoff against the restitution for any

payments made under to the workers’ compensation award. 2 To succeed on this


2 Because recent amendments to Iowa Code chapter 814 that limit a defendant’s
right to appeal do not apply to cases pending on July 1, 2019, see State v. Macke,
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claim, Lindsay must show his counsel breached a duty and prejudice resulted. See

State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). If counsel’s performance was

not objectively reasonable, the first prong of the test is met. See State v. Ortiz,

905 N.W.2d 174, 183 (Iowa 2017).

       Section 910.8 states that “any restitution payment by the offender to a victim

shall be set off against any judgment in favor of the victim in a civil action arising

out of the same facts or event.” “[T]he purpose of the statute is to coordinate civil

recoveries with criminal restitution to avoid double recovery.” State v. Driscoll, 839

N.W.2d 188, 191 (Iowa 2013) (citing State v. Klawonn, 688 N.W.2d 271, 275 (Iowa

2004)). Lindsay acknowledges that “the code does not appear to allow for a

restitution payment set off against a workers’ compensation arbitration award.” But

he argues that a setoff is required, citing State v. Paxton, 674 N.W.2d 106, 111

(Iowa 2004), in which the court ordered victim restitution reduced by the amount

of pecuniary damages the victim recovered from an arbitration award against the

defendant’s employer for the defendant’s criminal act. The Paxton court noted,

       any damages recoverable in a civil action would be subject to
       reduction to the extent of payments made to the victim for the same
       damages. Thus, the prohibition against double recovery, and the
       consequent credit for payments already received by the victim, is
       inherent in the statutory measure of recovery.

Id. Although a workers’ compensation proceeding is not a “civil action” per se, and

a workers’ compensation award is not specifically mentioned in section 910.8, we

believe the holdings of Paxton, Klawonn, and Driscoll apply here. The State

agrees that, “Because the law requires a set off, if and when Lindsay makes a


933 N.W.2d 226, 235 (Iowa 2019), we may consider Lindsay’s claim on direct
appeal.
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payment, he would be given credit toward the restitution payment.”            So we

conclude any payments Lindsay makes to the employee under the workers’

compensation award should be set off against the restitution award, and vice

versa.

         Lindsay had made no payments to the employee under the workers’

compensation award to compensate the employee’s pecuniary losses. Because

he had not done so when the restitution order was entered, counsel had no duty

to request a setoff, nor was there any need to request an order allowing for a setoff.

Thus, his ineffective-assistance claim fails.

         AFFIRMED.
