               IN THE SUPREME COURT OF IOWA
                               No. 07–2094

                         Filed February 27, 2009


JAMES BOEHME,

      Appellant,

vs.

FAREWAY STORES, INC. and
IOWA INSURANCE GUARANTY
ASSOCIATION, on behalf of
HOME INSURANCE COMPANY,
in Insolvency,

      Appellees.



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

Judge.



      Appellant challenges district court’s denial of his claim for workers’

compensation weekly benefits. AFFIRMED.



      John E. Swanson of Hansen, McClintock & Riley, Des Moines, for

appellant.



      Michael L. Mock of Bradshaw, Fowler, Proctor & Fairgrave, P.C.,

Des Moines, for appellees.
                                           2

STREIT, Justice.

        James Boehme was injured while working at Fareway Stores when

an ice cream cart fell on him.             Without entering into a settlement

agreement, Fareway provided Boehme with medical and weekly benefits.

Six years later, Boehme settled with the manufacturer of the ice cream

cart.     That    settlement   resulted        in   a   payment   to      Fareway   for

reimbursement of some of the past payments it had made to Boehme as
well as a credit for future workers’ compensation benefits. Accordingly,

Fareway stopped paying weekly benefits, and Boehme began maintaining

a record of the amount of weekly benefits and medical expenses that

would have been owed by Fareway but for the settlement and the

resulting credit.     When, after a period of years, Boehme believed

Fareway’s      settlement   credit   was       exhausted,   he    filed    a   workers’

compensation petition against Fareway claiming entitlement to medical

and weekly benefits, and requesting reimbursement from Fareway for

attorneys’ fees incurred in the litigation that produced the third-party

settlement.      The deputy commissioner determined Boehme’s claim for

weekly benefits was barred by the statute of limitations and his claim for

attorneys’ fees was also barred.       Boehme appealed, asserting, among
other things, the statute of limitations did not apply because of the

doctrine of equitable estoppel. The commissioner affirmed, determining

Boehme had not preserved error on his equitable estoppel claim.                     The

district court affirmed.     Because Boehme’s equitable estoppel claim is

without merit and because he did not file his claim within three years of

Fareway’s last payment, Boehme’s claim is barred by the statute of

limitations.     Further, Iowa Code section 515B.2(b) (2007) prevents

Boehme from recovering attorney’s fees from Fareway.
                                   3

      I. Background Facts and Prior Proceedings.

      On December 6, 1983, James Boehme was injured while working

at Fareway Stores, Inc. when an ice cream cart containing 900 pounds of

ice cream tipped over on top of him. Fareway and its insurance carrier,

Home Insurance Company, accepted the injury as compensable and

provided Boehme with medical benefits, healing period benefits, and

permanent partial disability benefits.    Fareway and Boehme never
entered into a settlement agreement pursuant to Iowa Code section

86.13 (2007) to establish weekly benefits, and the extent of Boehme’s

permanent disability was never determined by the commissioner.

Boehme also pursued a third-party claim against the manufacturer of

the ice cream cart. On February 9, 1990, Boehme settled that claim for

$300,000.     On February 20, 1990, Fareway and Boehme filed a

Memorandum of Third-Party Settlement with the commissioner as

required by Iowa Code section 85.22 (2007). In the agreement, Fareway

and Boehme agreed Fareway (and Home Insurance) would receive a lump

sum payment of $48,655.17 as indemnification for payments of workers’

compensation benefits made through the date of the third-party

settlement.   (The gross amount of benefits paid by Fareway/Home
Insurance to Boehme by that time was $82,906.74.) The settlement also

provided that Fareway was entitled to a credit against any future

payments of medical or weekly benefits in the total amount of

$135,026.11. The agreement contained the following specific provision:

      The parties, by their actions herein, do not stipulate or
      agree, or in any manner concede that the Claimant is
      entitled to any specified degree of permanent physical
      impairment or industrial disability, either now or in the
      future, such determination resting by law, with the Iowa
      Industrial Commissioner, upon contested case proceeding.
                                    4

Fareway stopped making weekly benefit payments to Boehme at the end

of February 1990.

      Boehme maintained a detailed record of the amount of weekly

benefits and medical expenses that would have been owed by Fareway

but for the settlement of the tort action and the resulting credit.   By

Boehme’s calculations, Fareway’s settlement credit was exhausted in

December 2002. On February 26, 2003, Boehme filed a review-opening
petition with the commissioner seeking an award of additional medical

and weekly benefits. Soon thereafter, Fareway’s workers’ compensation

insurance carrier, Home Insurance Company, filed for bankruptcy. Iowa

Insurance Guaranty Association (IIGA) appeared before the commissioner

in the insolvent insurance carrier’s place.     Fareway and IIGA filed a

motion for partial summary judgment asserting Boehme’s claim was

barred by the statute of limitations, Iowa Code section 85.26, because

more than three years had passed since Fareway’s last payment of

weekly benefits.    A deputy commissioner granted the motion, finding

Boehme’s claim for additional weekly benefits was barred by the statute

of limitations. The deputy commissioner’s decision did not address the

issue of equitable estoppel raised by Boehme at the hearing.     Boehme
filed a motion of appeal to the commissioner.

      While the appeal of the statute-of-limitations issue was pending,

the commissioner entered an order directing an evidentiary hearing be

held to address the other issues, including (1) the extent of Boehme’s

entitlement to past medical expenses, and (2) the effect of Iowa Code

chapter 515B on Boehme’s entitlement to reimbursement of attorneys’

fees incurred by Boehme in the third-party litigation. In an arbitration

decision, the deputy commissioner found (1) Boehme was entitled to past

medical expenses incurred after the date of the third-party settlement in
                                                5

the amount of $13,520.87 (to be deducted from Fareway’s third-party

settlement credit), and (2) Boehme’s claims for attorneys’ fees and

litigation expenses were barred by Iowa Code section 515B.2(b)(4) and (8)

and by the express language of the Memorandum of Third-Party

Settlement filed with the agency in February 1990.

      Boehme       filed    a    notice    of       intra-agency    appeal,   which   was

consolidated with the earlier appeal of the summary judgment ruling.
The commissioner affirmed both rulings and also determined Boehme

had failed to preserve error with respect to two issues: whether equitable

estoppel precludes Fareway from asserting a statute-of-limitations

defense, and whether future credits from a third-party settlement should

be construed as a payment of weekly benefits that extended the statute

of limitations under Iowa Code section 85.25.                   The commissioner also

determined that, even if error had been preserved, Boehme’s claims on

these issues were without merit.

      Boehme filed a petition for judicial review.                    The district court

affirmed. Boehme appealed.

      II. Scope of Review.

      We review whether the commissioner correctly interpreted the
agency’s appellate procedural rules regarding preservation of error for an

abuse of discretion. Iowa Code § 17A.19(10)(n) (2007). We review the

commissioner’s      legal       findings    for       errors   at   law.      Iowa    Code

§ 17A.19(10)(c), (m). We are bound by the commissioner’s finding of facts

so long as those findings are supported by substantial evidence. Excel

Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002); Iowa Code

§ 17A.19(10)(f).
                                    6

      III. Merits.

      A. Statute of Limitations. Under Iowa Code section 85.26, an

employee must bring a claim for workers’ compensation benefits within

two years from the date of the injury or, “if weekly compensation benefits

are paid under section 86.13, within three years from the date of the last

payment of weekly compensation benefits.” Boehme’s claim for weekly

benefits should have been brought within three years of February 1990,
when Fareway stopped making payments to Boehme.

      1. Equitable estoppel. Boehme argues the commissioner erred in

ruling he did not properly preserve the issue of whether equitable

estoppel precluded Fareway’s statute-of-limitations defense.    Although

Boehme did not mention equitable estoppel in his resistance to the

defendant’s motion for summary judgment, he did raise the issue of

equitable estoppel at the hearing on the motion for partial summary

judgment. In the arbitration decision, the deputy commissioner did not

rule on the issue.    Although Boehme’s appeal to the commissioner

acknowledged the lack of a ruling on the issue, he did not file a motion

for rehearing requesting the deputy commissioner to enter a ruling on

the issue. In the appeal decision, the commissioner determined Boehme
“did not properly preserve the issue of whether equitable estoppel

prevented the defendants’ statute-of-limitations defense as there is no

underlying ruling . . . to affirm, modify, or overrule.” The commissioner

also determined that, even if error had been preserved, the equitable

estoppel claim was without merit.        The district court affirmed the

commissioner’s appeal decision on both counts.

      Under the Iowa Administrative Code rule 876–4.28(7) (2007), “An

issue will not be considered on appeal if the issue could have been, but

was not, presented to the deputy.”      (Emphasis added.)   In the appeal
                                     7

decision, the commissioner interpreted this provision to require not only

an issue be raised, but also the issue be decided in the ruling in order for

a claim to be properly preserved on appeal. See, e.g., Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.”); Explore Info.

Sevs. v. Iowa Ct. Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001) (motion for
reconsideration “necessary to preserve error only when the district court

fails to resolve an issue, claim, or legal theory properly submitted for

adjudication”). Although we give an agency substantial deference when

it interprets its own regulations, TLC Home Health Care, L.L.C. v. Iowa

Dep’t of Human Servs., 638 N.W.2d 708 (Iowa 2002), the plain language

of the rule is clear and unambiguous. “When the language of a statute is

plain and its meaning clear, the rules of statutory construction do not

permit us to search for meaning beyond the statute’s express terms.”

Rock v. Warhank, 757 N.W.2d 670, 673 (Iowa 2008). Rule 876–4.28(7)

clearly states that an issue will not be considered on appeal if it was not

presented to the deputy. A deputy’s ruling is not a final agency action.

See Iowa Code § 86.24(5) (“The decision of the workers’ compensation
commissioner is final agency action.”); see also Myers v. F.C.A. Servs.,

Inc., 592 N.W.2d 354, 358 (Iowa 1999). Further, “[a]n issue raised on

appeal [to the commissioner] is decided de novo, and the scope of the

issue is viewed broadly.”   Iowa Admin. Code r. 876–4.28(7).      Thus, as

Boehme presented the issue to the deputy, the commissioner should

have examined Boehme’s claim that Fareway was equitably estopped

from asserting a statute-of-limitations defense. Obtaining a ruling from

the deputy commissioner on that issue was not required in order to

preserve error.
                                    8

      However, we do agree with the district court that Boehme’s

equitable estoppel claim has no merit.     Boehme contends Fareway is

estopped from asserting a statute-of-limitations defense under the

doctrine of equitable estoppel.   Under this doctrine, a party who has

fraudulently prevented the other party from seeking redress within the

limitations period cannot benefit from the statute of limitations. Hook v.

Lippolt, 755 N.W.2d 514, 525 (Iowa 2008). A party asserting equitable
estoppel must demonstrate the following by clear and convincing

evidence:

      “(1) The defendant has made a false representation or has
      concealed material facts; (2) the plaintiff lacks knowledge of
      the true facts; (3) the defendant intended the plaintiff to act
      upon such representations; and (4) the plaintiff did in fact
      rely on such representations to his prejudice.”

Id. at 524–25 (quoting Christy v. Miulli, 692 N.W.2d 694, 702 (Iowa

2005)). To establish false representation or concealment, there must be

evidence the party acted “with the intent to mislead the injured party.”

Id. at 525 (quoting Meier v. Alfa-Laval, Inc., 454 N.W.2d 576, 580 (Iowa

1990)).

      Boehme asserts that, at the time he and Fareway filed the third-

party settlement agreement with the commissioner, he understood that a

petition to establish weekly benefits did not need to be filed until the

credits from the third-party settlement had been exhausted and that

Fareway knew he misunderstood the contract. There is no evidence in

the record indicating Fareway “made a false representation or has

concealed material facts” when the agreement was signed in order to

prevent Boehme from filing a timely petition for weekly benefits. Id. at

524–25. Fareway never represented to Boehme that he could wait until
                                           9

the settlement credits ran out before filing a petition to establish weekly

benefits.1
       Further, the language of the agreement is clear and unambiguous

that Boehme’s entitlement to weekly benefits was disputed and

undetermined:

       The parties, by their actions herein, do not stipulate or
       agree, or in any manner concede that the Claimant is
       entitled to any specified degree of permanent physical
       impairment or industrial disability, either now or in the
       future, such determination resting by law, with the Iowa
       Industrial Commissioner, upon contested case proceeding.

Both parties were represented by lawyers, and Boehme’s lawyers

reviewed the settlement documents and were present when Boehme and

his wife signed them. Boehme did not establish Fareway “made a false

representation or has concealed material facts.” Id.

       Even if Fareway knew Boehme misunderstood the contract, we will

not impose a duty on counsel to inform the opposing party of the

intricacies of an agreement, its long-term consequences, or why they may

not want to sign it. Nor are we inclined to impose a duty on counsel in

an adversarial setting to tell a party that his lawyer has not correctly or

adequately advised him. It is the duty of a lawyer to represent his client

zealously. Weigel v. Weigel, 467 N.W.2d 277, 281 (Iowa 1991); see also

Iowa Ct. R. 32:1.3.        Advising the opposing party that his counsel is

wrong would conflict with this important duty.

       We agree with the commissioner and the district court that

Boehme’s equitable estoppel claim is without merit.




       1Neither  party claims Fareway waived the statute of limitations. Even if Fareway
had, any such agreement would have to be approved by the commissioner. See Iowa
Code § 86.13 (a settlement agreement regarding compensation is valid “only if signed by
all parties and approved by the workers’ compensation commissioner”).
                                    10

      2. Weekly benefits. Boehme also asserts the statute of limitations

does not preclude his claim because future credits from the third-party

settlement should be considered in the nature of weekly benefits that

would have otherwise been paid. Boehme maintained a detailed record

of the amount of weekly benefits and medical expenses that would have

been owed by Fareway but for the settlement of the tort action and the

resulting credit of $135,026.11.    He contends these virtual payments
should be considered payments of weekly benefits by Fareway to him

because Fareway was not paying weekly benefits only because of the

credit derived from the third-party settlement. Although it is likely that

Fareway would have continued to pay Boehme weekly benefits for some

period of time if not for the third-party settlement, the Memorandum of

Third-Party Settlement does not replace the need for an agency

determination of Fareway’s liability or a settlement agreement approved

by the commissioner determining weekly benefits prior to the expiration

of the statute of limitations.   See Iowa Code § 86.13; Bergen v. Iowa

Veterans Home, 577 N.W.2d 629 (Iowa 1998) (holding statute of

limitations runs from last day of voluntary payment). At best, the third-

party payments could be characterized as payments in Fareway’s stead.
However, neither the Memorandum of Third-Party Settlement nor the

conduct of the parties supports such a characterization.

      The language in the settlement agreement does not support

Boehme’s interpretation: “The parties . . . do not stipulate or agree, or in

any manner concede that the Claimant is entitled to any specified degree

of permanent physical impairment or industrial disability, either now or

in the future. . . .” As the commissioner explained in the appeal decision,

      the terms of the third party settlement contradict [Boehme’s]
      assertion that there was an agreement that the credit was
      given in lieu of weekly checks being submitted to [him].
                                    11
      There is no language in the settlement document which
      supports [Boehme’s] argument that he was entitled to
      indemnity benefits in the total amount of the credit created
      in the third party settlement. In fact, the terms of the
      settlement agreement contradict such a conclusion as the
      agreement mandated the commencement of a contested case
      to determine entitlement to any additional benefits.

We agree with the commissioner and the district court that Boehme’s

claim the settlement credits should be considered weekly benefit

payments for the purpose of determining when the statute of limitations

begins to run has no merit.

      B.    Allocation of Attorneys’ Fees, Credits, and Court Costs.

“[I]t is the obligation of the employer or insurer to contribute toward the

cost of bringing the third-party action in proportion to the benefits

received therefrom.” Marin v. DCS Sanitation, 596 N.W.2d 62, 64 (Iowa

1999); see also Ewing v. Allied Const. Servs., 592 N.W.2d 689 (Iowa

1999). Here, the insurer, Home Insurance Company, was insolvent, and

the Iowa Insurance Guaranty Association (IIGA) appeared in its place.

Under Iowa Code section 515B.2(b)(4), the IIGA is not responsible for

amounts “due an attorney . . . for services rendered to the insolvent

insurer.”    Section 515B.2(b)(8) indicates a party may present a

noncovered claim, such as attorneys’ fees, against the insolvent insurer

or its liquidator, but such noncovered claims cannot be pursued against

the insured of the insolvent insurer.

      The    deputy   commissioner       determined   Iowa   Code   section

515B.2(b)(4) and (8) prevents Boehme from recovering attorneys’ fees for

the third-party settlement from IIGA or Fareway (the insured). Further,

the deputy commissioner noted the plain language of the settlement

agreement between Boehme and Fareway indicates that attorneys’ fees

and costs associated with the third-party litigation were not meant to be

assessed against Fareway’s $135,026.11 credit. See Petty v. Faith Bible
                                     12

Christian Outreach Ctr., Inc., 584 N.W.2d 303, 306 (Iowa 1998) (holding

“where the intent of the parties is expressed in clear and unambiguous

language, we enforce the contract as written”).      Paragraph four of the

agreement states Fareway “will be entitled to take a future credit for any

and all future payment of weekly benefits and medical or associated

expenses . . . up to the amount of . . . $135,026.11.”         The deputy

commissioner reasoned that as “[m]ost of the attorneys’ fees and court
costs associated with third party litigation . . . had already been incurred

by February 9, 1990 . . . they cannot be said to be ‘future’ benefits or

expenses to be assessed against the . . . credit.”

      Boehme contends section 515B.2(b)(4) does not apply because the

attorneys’ fees and costs associated with the third-party settlement

occurred well before the insurance carrier declared bankruptcy and IIGA

stepped in. We disagree. The language of section 515B.2(b)(4) and the

contract is clear. Iowa Code section 515B.2(b)(4) prevents Boehme from

recovering attorneys’ fees from IIGA and Fareway.

      IV. Conclusion.

      Boehme’s claim is barred by the statute of limitations since he did

not file his claim within three years of Fareway’s last payment of weekly
benefits. His equitable estoppel claim and his claim that the third-party

settlement proceeds constituted payments of weekly benefits are without

merit. In addition, Iowa Code section 515B.2(b)(4) prevents Boehme from

recovering attorneys’ fees from Fareway.

      AFFIRMED.
