                 IN THE SUPREME COURT OF IOWA

                                 No. 69 / 06-0977

                               Filed October 5, 2007


CITY OF MADRID, IOWA, and EMC INSURANCE COMPANIES,

      Appellants,

vs.

ANGELA BLASNITZ,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Arthur E.

Gamble, Judge.



      Insurer     seeks    further   review   of   court     of    appeals   decision

remanding       workers’       compensation    case     to        commissioner    for

determination of insurer’s liability for penalty benefits.             DECISION OF

COURT OF APPEALS VACATED.                     DISTRICT COURT JUDGMENT

AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.



      Lori A. Brandau and Michael L. Mock of Bradshaw, Fowler, Proctor

& Fairgrave, P.C., Des Moines, for appellants.



      Jim   Lawyer        of   Lawyer,   Lawyer,      Dutton       &   Drake,    LLP,

West Des Moines, for appellee.
                                         2

TERNUS, Chief Justice.

        This appeal involves a workers’ compensation insurer’s challenge

to an award of penalty benefits by the workers’ compensation

commissioner. The district court ruled the commissioner had applied an

incorrect standard in determining the employer’s liability for penalty

benefits under Iowa Code section 86.13 (2003) and concluded the case

should be remanded to the commissioner for reconsideration of penalty

benefits under the appropriate test.           Upon the employer’s appeal, the

court    of   appeals   affirmed   the       district   court’s   remand   to   the

commissioner.

        We conclude the commissioner’s award of penalty benefits was not

supported by substantial evidence because the underlying workers’

compensation claim was fairly debatable as a matter of law under the

record before the commissioner.          Therefore, we vacate the court of

appeals decision, affirm the judgment of the district court in part and

reverse in part, and remand the case for entry of a judgment consistent

with this opinion.

        I. Background Facts and Proceedings.

        On August 1, 2003, the appellee, Angela Blasnitz, filed a petition

for arbitration seeking workers’ compensation benefits for a shoulder

injury she was ultimately found to have sustained on January 17, 2003.

Her employer, City of Madrid, Iowa, and its workers’ compensation

insurer, EMC Insurance Companies, denied her claim, contending she

had not sustained a shoulder injury on the date alleged. (We will refer to

these parties jointly as the insurer.)             An arbitration decision was

eventually entered by a deputy workers’ compensation commissioner,

awarding disability, medical, and penalty benefits.
                                      3

      On intra-agency appeal, the workers’ compensation commissioner

affirmed, adopting the deputy’s decision with some “additional analysis”

concerning     the   penalty   benefits   issue.    Before   reviewing   the

commissioner’s analysis of this issue, it is helpful to summarize the

pertinent facts found by the commissioner, as well as the relevant

documentary evidence and testimony introduced at the hearing.

      In January 2003 the claimant was employed as a police officer for

the City of Madrid. On January 17, 2003, she was dispatched to a call at

the home of Michael and Susan Palmer to investigate a domestic

disturbance.     The claimant testified at her workers’ compensation

hearing that she slipped and fell in the Palmer home, striking her right

shoulder and elbow.      At the time of the incident, the claimant was

wearing a remote microphone for her patrol vehicle recording system,

and she can be heard to fall on the tape. Her fall was not visible on the

tape, however.

      The claimant stated in answers to interrogatories that she had

immediate pain in her shoulder and elbow. The patrol car tape shows

her conducting a vehicle stop after her fall, sometimes using her right

arm above her shoulder. She does say “ouch” once while searching the

vehicle. The claimant did not record that she sustained an injury when

she completed her patrol activity report for her January 17, 2003 shift.

The claimant had been injured three times while working for the city

before the January 17, 2003 incident, and on each occasion, she had

noted her injury in her patrol activity log on the day the injury occurred.

      The claimant testified she had a discussion with the police chief

the day after her fall regarding an injury to her shoulder.      The chief,

however, denied he had a conversation with the claimant on January 18

or January 19, as he did not work on either date.
                                     4

      The police chief gave the claimant a three-day suspension on

February 19, 2003, for failing to follow an office directive with respect to

an unrelated matter. On the final day of her suspension, February 24,

2003, the claimant sought her initial treatment for her shoulder, neck

and arm. She reported to her chiropractor on that date that she had her

first symptoms after a fall on her right shoulder approximately three

weeks earlier. The claimant wrote a note to her employer the next day,

February 25, 2003, stating that she fell “at the 10-16” and hurt her back

and shoulder. In response to this note, the insurer authorized medical

care with a Dr. Kirkland, who the claimant saw on March 19, 2003. The

claimant reported to Dr. Kirkland that she slipped and fell on either

January 17, 2003, or December 17, 2002, while responding to a call, but

according to his records, she really could not remember.           Also on

March 19, 2003, the claimant reported to Therapeutic Associates that

the injury occurred ninety days prior. On March 26, 2003, she told a

physical therapist that she injured her shoulder on January 17, 2003,

when responding to a domestic-dispute call. She gave the same history

to a physician she consulted on May 7, 2003, who determined the

claimant had a rotator cuff tear in her right shoulder.       The claimant

subsequently had two surgeries to repair the tear.

      On three occasions in April 2003, the insurer made surveillance

videos of the claimant. In one video, she can be seen bridling, leading,

and grooming three horses for approximately ninety minutes, using both

arms, sometimes above shoulder level.       At one point, she appears to

briefly shake her right arm and hold her right shoulder. On May 21,

2003, the insurer took a recorded statement from Mr. Palmer, one of the

subjects of the claimant’s January 17 domestic-disturbance call.

Mr. Palmer told the insurer that the claimant fell straight down on
                                    5

January 17, 2003, and landed on her bottom. The insurer wrote to the

claimant on May 22, 2003, denying her claim.

      On June 2, 2003, the claimant called Mr. Palmer and asked him to

sign a statement for her because “she was having trouble with the

workmen’s comp.”     The next day, June 3, 2003, Mr. Palmer gave a

second statement to the insurer, stating that on January 17, 2003, “he

had turned slightly and he turned back around and claimant had her

feet in the air and her back was against the wall.” He explained that he

“just wasn’t thinking right” when he gave his first statement. Eventually,

Mr. Palmer’s deposition was taken on March 12, 2004. He testified that

he did not see the claimant fall on January 17, 2003, but he did offer to

help her up after her fall. He further testified she said she was fine, she

did not act like she had been injured, and she did not rub her right arm

or shoulder. Mr. Palmer also suggested in his deposition that the parties

should question his wife about the incident as she was sitting on the

couch facing the door where and when the claimant slipped.

      The insurer then contacted Mrs. Palmer, who gave a statement on

March 17, 2004. Mrs. Palmer stated that she saw the claimant fall and

did not recall that the claimant struck her right shoulder or arm in the

course of her fall. Mrs. Palmer testified consistently with her statement

when her deposition was subsequently taken on May 11, 2004.            She

testified she saw the claimant fall, but did not see her hit anything. She

said the claimant fell straight down on her bottom with her feet straight

out in front of her. Mrs. Palmer said her husband asked the claimant if

she was okay, and the claimant said she was okay and did not act

injured.

      In addition to the testimony of the Palmers, the police chief

testified at the hearing that the claimant told him in mid-2002 that she
                                      6

had been kicked in the right arm by her horse. The police chief said he

observed a large bruise on her arm at that time. The police chief and

another officer also testified they believed the claimant had been

untruthful in the past. Finally, the claimant’s surgeon stated there are

activities involved in caring for and showing horses that could cause a

rotator cuff tear.

      In affirming the deputy’s decision to award penalty benefits, the

commissioner stated:

      Not every defense or factual dispute is sufficient to constitute
      the reasonable or probable cause or excuse as contemplated
      by section 86.13. Only a very unimaginative mind would be
      unable to find a shred of evidentiary fact that could be
      pointed to as a reason to deny compensability of any claim.
      Eyewitness accounts of the same incident commonly vary.
      Memories fade. A view of the totality of the evidence is
      required to determine whether reasonable or probable cause
      or excuse existed.       Substantial evidence that has a
      reasonable chance of prevailing is required . . . .

(Emphasis added.) The commissioner then briefly reviewed the evidence,

noting the record “contains some inconsistencies.”          Notwithstanding

these inconsistencies, he concluded,

      Claimant was employed as a peace officer, a position that
      judges and juries typically consider to be one that brings
      credibility. . . . When the totality of the facts in this case are
      considered and weighed, I find that it was not reasonable to
      consider the untimely evidence from Ms. Palmer to be of
      sufficient import and reliability to have a reasonable chance
      of outweighing all the contrary evidence that supported the
      compensability of claimant’s claim. It cannot be stated
      better than how the deputy characterized it on page 14 of his
      decision, “In light of the overwhelming weight of other
      evidence, Ms. Palmer’s statements do not make claimant’s
      claim fairly debatable.”

(Emphasis added.)

      The insurer sought judicial review of the commissioner’s award of

penalty benefits, claiming (1) the commissioner had erroneously imposed
                                          7

a burden on the insurer to show that its position had a reasonable

chance of prevailing, and (2) the commissioner’s award of penalty

benefits was not supported by substantial evidence.                 See Iowa Code

§ 17A.19(10)(c), (f).       The claimant argued in response that the

commissioner’s standard was merely a restatement of the fairly

debatable test and substantial evidence in the record supported the

commissioner’s penalty-benefits award. The district court concluded the

commissioner had applied an incorrect legal standard and reversed the

award of penalty benefits. The court was unwilling, however, to rule as a

matter of law that the compensability of the claimant’s claim was fairly

debatable. Instead, the court decided “it would be more appropriate to

remand” the case to the commissioner for reconsideration “in light of the

appropriate legal standard.” The court observed the commissioner may

determine on remand that the issue was fairly debatable or may award

penalty benefits in a different amount, and that “decision would then be

subject to subsequent judicial review on a substantial evidence

standard.”

        The insurer appealed the district court’s ruling on the substantial-

evidence issue, and the case was transferred to the court of appeals.

That court agreed with the district court, ruling the appropriate relief

was to remand the case to the commissioner so he could have an

opportunity to consider an award of penalty benefits under the correct

test.    The insurer filed an application for further review, which we

granted.       The sole issue on appeal is whether the record before the

commissioner provides substantial evidence to support an award of

penalty benefits.1 See id. § 17A.19(10)(f). Stated another way, we must

        1The  claimant does not contend on appeal that it would be inappropriate to
address the substantial-evidence issue in view of the commissioner’s application of the
incorrect legal standard, which appeared to be the concern prompting the district court
                                           8

decide whether the compensability of the claimant’s claim was fairly

debatable as a matter of law.          See Garcia v. Naylor Concrete Co., 650

N.W.2d 87, 91 (Iowa 2002) (“However, in challenging an agency finding, a

party may not succeed merely by showing that the evidence would

support a different conclusion than the one that the agency reached. In

order to succeed, it must be demonstrated that, as a matter of law, the

finding that the agency made was not supported by substantial

evidence.” (Citation omitted.)).

       II. Standard of Review.

       “Under the Iowa Administrative Procedure Act, a reviewing court

may reverse the decision of the workers' compensation commissioner if it

is unsupported by substantial evidence in the record . . . .” Univ. of Iowa

Hosps. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004) (citing Iowa

Code § 17A.19(10) (2001)). “Substantial evidence”

       means the 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.

Iowa Code § 17A.19(10(f)(1).         “In assessing evidentiary support for the

agency's factual determinations, we consider evidence that detracts from

the agency's findings, as well as evidence that supports them, giving

deference to the credibility determinations of the presiding officer.”

Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242, 247 (Iowa 2006) (citing

Iowa Code § 17A.19(10)( f )(3)).



to remand the case back to the commissioner. Therefore, we proceed directly to a
discussion of whether there is substantial evidence in the record to support the award
of penalty benefits. See generally Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d
501, 514, 518 (Iowa 2003) (concluding (1) agency had incorrectly interpreted the term
“dependent adult” as used in governing statute and (2) agency’s finding that the nursing
home resident was a “dependent adult” was not supported by substantial evidence).
                                    9

      III. Applicable Law.

      Penalty benefits in a workers’ compensation case are authorized by

section 86.13, which states:

            If a delay in commencement or termination of benefits
      occurs without reasonable or probable cause or excuse, the
      workers’ compensation commissioner shall award benefits in
      addition to those benefits payable under this chapter or
      chapter 85, 85A, or 85B, up to fifty percent of the amount of
      benefits that were unreasonably delayed or denied.

Iowa Code § 86.13, para. 4. A claimant seeking to recover under this

statute must establish “a delay in the commencement of benefits or a

termination of benefits.”   Keystone Nursing Care Ctr. v. Craddock, 705

N.W.2d 299, 307 (Iowa 2005). The burden then shifts to the insurer “to

prove[] a reasonable cause or excuse” for the delay or denial.

Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996).

“A reasonable cause or excuse exists if either (1) the delay was necessary

for the insurer to investigate the claim or (2) the employer had a

reasonable basis to contest the employee’s entitlement to benefits.” Id.

      The claimant does not argue the insurer took too long to

investigate the claim before its May 23, 2003 denial.         Rather, the

claimant contends the insurer did not have a reasonable basis to contest

her entitlement to benefits. In the Christensen case, we held the “fairly

debatable” standard used in the tort of bad faith denial of insurance

claims should be used for purposes of section 86.13 penalty benefits in

determining whether a workers’ compensation insurer had a reasonable

basis to deny a claimant’s claim. Id.

      This court recently stated the following principles with respect to

the reasonable-basis element of a bad-faith tort claim:

      A reasonable basis exists for denial of policy benefits if the
      insured’s claim is fairly debatable either on a matter of fact
      or law. A claim is “fairly debatable” when it is open to
                                    10
      dispute on any logical basis.          Stated another way, if
      reasonable minds can differ on the coverage-determining
      facts or law, then the claim is fairly debatable.
            The fact that the insurer’s position is ultimately found
      to lack merit is not sufficient by itself to establish the first
      element of a bad faith claim. The focus is on the existence of
      a debatable issue, not on which party was correct.
             Whether a claim is fairly debatable can generally be
      decided as a matter of law by the court. That is because
      “ ‘where an objectively reasonable basis for denial of a claim
      actually exists, the insurer cannot be held liable for bad faith
      as a matter of law.’ ” As one court has explained, “[c]ourts
      and juries do not weigh the conflicting evidence that was
      before the insurer; they decide whether evidence existed to
      justify denial of the claim.”

Bellville v. Farm Bureau Mut. Ins. Co., 702 N.W.2d 468, 473-74 (Iowa

2005) (citations omitted) (emphasis added).

      IV. Discussion.

      It is apparent the commissioner erroneously weighed the evidence

in deciding whether the claimant’s claim was fairly debatable. Moreover,

the commissioner focused on only one item of evidence—Mrs. Palmer’s

statement—in evaluating the reasonableness of the insurer’s denial.

Finally, the commissioner improperly suggested the employer should

have considered the claimant to be credible simply because she was

employed as a peace officer. Using the proper analysis and considering
all the facts before the commissioner that would support the insurer’s

denial, we conclude the insurer cannot be held liable for penalty benefits

as a matter of law.

      Several facts and circumstances supported the insurer’s position

that the claimant did not injure her shoulder in her January 17, 2003

fall, including the following: (1) Mr. Palmer initially stated the claimant

fell straight down and landed on her bottom; (2) Mr. Palmer modified his

account of this incident only after the claimant called him, and even

then, he continued to testify that the claimant said she was not injured
                                         11

immediately after her fall (in contrast to the claimant’s testimony that

she felt immediate pain); (3) Mrs. Palmer stated the claimant fell straight

down on her bottom; (4) the claimant’s surgeon testified that if the

claimant fell flat on her bottom and did not hit her arm on anything, the

fall would not have caused the injury for which he treated her; (5) the

claimant failed to record her injury in her activity log, in contrast to three

prior work-related injuries that she noted in her activity logs on the day

the injuries occurred2; (6) the police chief denied he was told of the

claimant’s injury the day after it occurred, as claimed by the claimant; (7)

the claimant failed to seek medical treatment until five weeks after her

fall; (8) the claimant gave inconsistent statements to treatment providers

as to the date of her injury; (9) although at the hearing the claimant

denied using her right arm above shoulder level to conduct a sobriety

test in a stop three hours after her fall, her patrol car video tape shows

the claimant using her right arm above shoulder level several times

during the stop; (10) the claimant stated to the police chief in mid-2002

that she had been kicked in the right arm by her horse and the police

chief observed a large bruise on her arm; (11) the claimant’s surgeon

testified there are activities involved in caring for and showing horses

that could cause a rotator cuff tear; and (12) the police chief and another

police officer believed the claimant had been untruthful at times. Only

one conclusion can be drawn from the undisputed existence of the

foregoing statements, testimony, and records:                 the insurer had a



       2On February 20, 2002, the claimant noted in her patrol activity log that she

twisted her left ankle on large rocks in a parking lot. On August 2, 2002, she noted in
her log that she was assaulted by a suspect and subsequently seen at the Boone
County Hospital. On November 30, 2002, the claimant recorded in her activity log that
she had dropped a clipboard on the top of her left foot, causing it to turn black and
blue.
                                     12

reasonable basis to contend the claimant did not sustain a rotator cuff

tear when she fell on January 17, 2003.

      The claimant argues that many of the facts shown at the hearing

were unknown to the insurer when it denied payment for the claimant’s

surgery on June 20, 2003, and the facts known by the insurer on that

date were not sufficient to render the insurer’s denial reasonable.

Contrary to the claimant’s contention, it is uncontroverted in the record

that, by June 20, 2003, the insurer had a statement from Mr. Palmer in

which he stated the claimant fell straight down on her bottom, and it had

medical records in which the claimant gave inconsistent histories of her

injury. These facts made the claimant’s claim fairly debatable. Those

facts arising later or coming to the attention of the insurer subsequent to

June 20, 2003, merely provided further support for the insurer’s decision

to persist in its denial.

      We note the claimant, in discussing the facts pertinent to the

validity of her claim for benefits, ignores Mr. Palmer’s initial statement,

apparently due to the fact that he subsequently gave a second statement

more favorable to the claimant. But the insurer is not required to accept

the evidence most favorable to the claimant and ignore contradictory

evidence.     See Bellville, 702 N.W.2d at 479 (stating insurer is not

required to view the facts in a light most favorable to the claimant);

Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 200 (Iowa 2001) (stating

employer could reasonably argue later inconsistent version of incident

was   a     fabrication).   Here,   reasonable   persons   could   discount

Mr. Palmer’s assertion that he “just wasn’t thinking right” when he gave

his first statement and disbelieve his second statement, concluding

Mr. Palmer changed his account of what happened to assist the claimant

in recovering workers’ compensation benefits. Similarly, the insurer was
                                     13

not required to believe the claimant simply because she was a police

officer, as implied by the commissioner.

      The claimant also relies on the fact the commissioner rejected the

insurer’s evidence when the commissioner ruled the claimant sustained

a shoulder injury on January 17, 2003. But the fact the commissioner

was not convinced by the evidence supporting the insurer’s denial does

not negate the existence of a genuine dispute with respect to whether the

claimant’s January 2003 fall was the cause of her injury. Bellville, 702

N.W.2d at 473 (stating the fact the insurer’s position is ultimately found

to lack merit will not by itself establish the insurer had no reasonable

basis for its denial of benefits); Gilbert, 637 N.W.2d at 200 (same).

      In view of the facts that created a genuine dispute with respect to

the cause of the claimant’s rotator cuff tear, we conclude the claimant’s

claim was fairly debatable as a matter of law. See id. at 474 (“[I]f it is

undisputed that evidence existed creating a genuine dispute . . . , a court

can almost always decide that the claim was fairly debatable as a matter

of law.”).   Consequently, the commissioner’s award of penalty benefits

was not supported by substantial evidence. See Gilbert, 637 N.W.2d at

201 (“In conclusion, we hold as a matter of law there was a reasonable

factual dispute as to the manner in which Gilbert's injury occurred.

Therefore, there is not substantial evidence in the record to support a

finding that the compensability of his injury was not fairly debatable.”).

The district court should have remanded this case to the commissioner

for entry of an order denying penalty benefits.

      V. Disposition.

      The record before the commissioner established that the claimant’s

entitlement to benefits was fairly debatable as a matter of law.

Consequently, there is not substantial evidence to support a finding that
                                   14

the insurer’s denial of that claim was “without reasonable or probable

cause or excuse” so as to entitle the claimant to penalty benefits.

Because there is not substantial evidence to support the commissioner’s

award of such benefits, that part of the commissioner’s decision must be

reversed.

      We vacate the court of appeals decision because that court

concluded the penalty-benefits issue should be remanded for a ruling by

the commissioner.   We affirm that part of the district court’s decision

reversing the commissioner’s award of penalty benefits. We reverse that

part of the district court judgment remanding the matter to the

commissioner for reconsideration of the penalty-benefits claim. Finally,

we remand this case to the district court for entry of an order reversing

the commissioner’s award of penalty benefits and directing the

commissioner to deny the claimant’s request for penalty benefits.

      DECISION OF COURT OF APPEALS VACATED.                   DISTRICT

COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART;

CASE REMANDED.
