                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1441
                              Filed October 1, 2014


MELINDA MAY VITZTHUM,
     Plaintiff-Appellant/Cross-Appellee,

vs.

KLM ACQUISITION CORPORATION, d/b/a ALUMA, LTD. and LIBERTY
MUTUAL FIRE INSURANCE, a/k/a LM INSURANCE CORPORATION,
     Defendant-Appellees/Cross-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.



      Melinda Vitzthum appeals and Aluma, her employer, cross-appeals from

the district court’s orders regarding the Iowa Workers’ Compensation

Commission’s final disposition on Vitzthum’s compensation petition and appeal.

AFFIRMED.




      Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for

appellant/cross-appellee.

      Amanda M. Phillips of Law Offices of James W. Nubel, Omaha, NE, for

appellees/cross-appellants.



      Heard by Potterfield, P.J., and Tabor and Mullins, JJ.
                                        2


POTTERFIELD, P.J.

      Melinda Vitzthum appeals from the district court, which affirmed in part

and remanded in part the proceedings before the Iowa Workers’ Compensation

Commission.     The defendants, KLM Acquisition Corp.—doing business as

Aluma, Ltd.—and its insurer, Liberty Mutual Fire Insurance (collectively, “Aluma”)

cross-appeal.   Together they raise five issues: (1) the correct rate of weekly

benefits to which Vitzthum is entitled; (2) whether Aluma has a reasonable or

probable cause or excuse to avoid penalties for late payments; (3) whether

Aluma has a reasonable or probable cause or excuse to avoid penalties for

underpayments; (4) whether the district court was correct to remand for

additional fact-finding; and (5) whether the assessment of arbitration and court

costs below was proper.

      I. Factual and Procedural Background

      Vitzthum was injured at work on June 30, 2008. Aluma agreed to pay

healing period benefits, calculated the rate of those benefits at $292.65 per

week, and began issuing checks based on that calculation on July 10, 2008. A

regular ongoing weekly payment schedule had solidified by the end of August

2008. Vitzthum initially accepted the weekly checks without dispute.

      On June 25, 2010, Vitzthum filed a petition for arbitration before the Iowa

Workers’ Compensation Commission. Part of the petition involved a claim for a

higher weekly benefits rate—$305.29—to be applied prospectively and

retroactively. Another element of the petition was a claim for additional benefits

assessed as penalties against Aluma on three bases: first, for making late

payments; second, for paying less than the proper benefit rate; and third, for
                                           3


“underpayments resulting from payments insufficient to satisfy both the accrued

interest and principal of compensation.”

       In its arbitration decision, the commission held that the correct weekly

benefit rate was $298.39. It ordered that Aluma pay twenty-five percent of the

total amount underpaid as a penalty.           It denied Vitzthum’s other bases for

penalties. Vitzthum appealed before the commission. In the appeal decision by

the designated appellate deputy commissioner, the commission held the weekly

benefit rate should in fact have been $305.29 (as Vitzthum claimed) from the

outset. However, it reversed the previous assignment of penalty benefits and

instead ruled that Vitzthum was not entitled to penalties under any of her three

theories.

       Vitzthum filed for judicial review in the district court. The district court

affirmed the weekly benefit rate of $305.29 and remanded for further fact-finding

on the issue of penalty benefits based on the underpayment of the correct weekly

rate for payments made on or after July 1, 2009, the date an amendment to the

Iowa Code provision regarding penalties became effective.          See Iowa Code

§ 86.13(4)(c) (2011).    The district court affirmed all other aspects of the

commissioner’s holdings regarding penalty benefits and the calculation of the

weekly benefit rate.    Vitzthum appeals, asserting error in the district court’s

affirmance of the denial of her other claims for penalties and in the assignment of

costs. Aluma cross-appeals, claiming the district court’s remand for further fact-

finding on the issue of penalties was improper and the commission’s calculation

of a weekly benefit rate of $305.29 was in error.
                                       4


      II. Standard and Scope of Review

      Our review of agency action is for correction of errors at law. Finch v.

Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 330 (Iowa 2005). We

apply the standards of Iowa Code section 17A.19(10) to the agency’s decision

and compare our conclusion with the conclusion of the district court.

Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). “If they

are the same, we affirm; otherwise we reverse.” Id.

      We are “bound by [the agency’s] fact-finding if it is supported by

substantial evidence.” Asmus v. Waterloo Cmty. Sch. Dist., 722 N.W.2d 653,

657 (Iowa 2006); see Iowa Code § 17A.19(10)(f). Evidence is substantial when it

is “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)(a). “[T]he question

on appeal is not whether the evidence supports a different finding than the

finding made by the commissioner, but whether the evidence supports the

findings actually made.” Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006).

      III. Discussion

      We first address Aluma’s claim on cross-appeal that the appellate deputy

commissioner’s calculation of benefits was erroneous.        We then consider

whether Vitzthum is entitled to penalty benefits on the theories she puts forward

on appeal. We consider the issue on cross-appeal of the district court’s limited

remand on the issue of underpayment penalties simultaneously with Vitzthum’s
                                              5


claim that the district court’s remand should be expanded. We finally consider

the assessment of costs to the parties.

                 A. Calculation of Benefits

         Aluma asserts on cross-appeal that the district court erred by affirming the

commission’s holding that Vitzthum’s weekly benefit rate payable is $305.29

instead of Aluma’s calculated rate of $292.65 per week.                  Aluma rests its

argument on a single case decided by the commission, which stands for the

proposition that some employers allow unusual employee weekly schedules that

elude sensible outcomes under the typical statutory calculations. See Daniels v.

T & L Cleaning Servs., File No. 1283486, 2002 WL 32125261, at *1 (Iowa

Workers’ Comp. Comm’n Oct. 8, 2002).

         However, we agree with the appellate deputy commissioner, who stated: “I

do not see much evidence in the record to show that [Aluma’s] practice is all that

unusual.” Even though Aluma’s practice of offering additional personal days may

theoretically be conceptualized as offsetting employees’ overtime, that offset is

not so unusual that the statutory calculus does not reach a sound conclusion as

to the proper weekly rate. Therefore, the usual calculation method found in Iowa

Code section 85.36(6) still controls.1


1
    Iowa Code § 85.36(6) provides,
         In the case of an employee who is paid on a daily or hourly basis, or by
         the output of the employee, the weekly earnings shall be computed by
         dividing by thirteen the earnings, including shift differential pay but not
         including overtime or premium pay, of the employee earned in the employ
         of the employer in the last completed period of thirteen consecutive
         calendar weeks immediately preceding the injury. If the employee was
         absent from employment for reasons personal to the employee during
         part of the thirteen calendar weeks preceding the injury, the employee’s
         weekly earnings shall be the amount the employee would have earned
         had the employee worked when work was available to other employees of
                                          6


        The appellate deputy commissioner’s conclusions of law offer a sound

explanation of his reasons for independently reaching the calculated amount.

That evidence includes the fact that three of the thirteen weeks prior to

Vitzthum’s injury were non-representative weeks because she took time off.

Additionally, the appellate deputy commissioner corrected calculation errors that

occurred in the initial commission proceedings as a result of including premium

overtime pay.

        Even if his calculations were to differ from those of either or both of the

parties, there remains substantial evidence in the record to support his

conclusion. We affirm the district court and decline to disturb the commission’s

final conclusion on the proper weekly benefit rate and resulting amount past

due.2

              B. Penalty Benefits—Reasonable or Probable Cause or Excuse

        In Vitzthum’s first two issues on appeal, she ascribes error to the district

court’s affirmance of the denial of penalty benefits. She alleges Aluma made

every benefit payment past its due date and underpaid those benefits due to its

erroneous benefit rate calculation. She asserts Aluma must pay penalty benefits

because there was no showing of a reasonable excuse for the delay or

underpayment that would insulate Aluma from mandatory penalties. On cross-

appeal, Aluma asserts the district court’s remand for further fact-finding regarding


        the employer in a similar occupation. A week which does not fairly reflect
        the employee’s customary earnings shall be replaced by the closest
        previous week with earnings that fairly represent the employee’s
        customary earnings.
2
  The appellate commissioner held, “At the time of the hearing, the amount due was
$2233.32 and interest due on that amount accrues at the rate of $.6119 per day from the
date of the hearing on April 11, 2011. This will be awarded.”
                                           7


potential penalty benefits resulting from underpayments made on or after July 1,

2009 should be vacated.

                      1. Applicable Law

         Iowa Code section 86.13(4)(a) provides,

         If a denial [or] a delay in payment . . . of benefits occurs without
         reasonable or probable cause or excuse known to the employer or
         insurance carrier at the time of the denial [or] delay . . . , the
         workers’ compensation commissioner shall award [penalty]
         benefits . . . up to fifty percent of the amount of benefits that were
         denied [or] delayed . . . without reasonable or probable cause or
         excuse.

         For penalties to be assessed, the employee must first affirmatively show

that there has been a delay in payment or a denial of benefits. Keystone Nursing

Care Ctr. v. Craddock, 705 N.W.2d 299, 307 (Iowa 2005). Then the burden

shifts to the employer to prove a reasonable or probable cause or excuse for the

delay. Schadendorf v. Snap-On Tools Corp., 757 N.W.2d 330, 334–35 (Iowa

2008).

         A reasonable or probable 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.” IBP, Inc. v.

Burress, 779 N.W.2d 210, 222 (Iowa 2010) (quoting Christensen v. Snap-On

Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996)). “A reasonable basis for denial

of the claim exists if the claim is fairly debatable.” Id. (quotations omitted). A

claim is fairly debatable “when it is open to dispute on any logical basis.” Rodda

v. Vermeer Mfg., 734 N.W.2d 480, 483 (Iowa 2007) (emphasis added). Whether
                                            8

a claim is fairly debatable may be determined as a matter of law. 3 Id. It is

irrelevant whether the employer’s basis for the delay or denial is correct in the

final legal analysis; rather, “[t]he issue is whether there was a reasonable basis

for the employer’s position that no benefits were owing.” Craddock, 705 N.W.2d

at 308.

       Even if the employer’s basis was not objectively reasonable, we must

nevertheless determine whether it “knew, or should have known, that the basis

for denying the employee’s claim was unreasonable” before assigning penalties

under section 86.13. Rodda, 734 N.W.2d at 483; see Burton v. Hilltop Care

Center, 813 N.W.2d 250, 267 (Iowa 2012). The requirement that the employer

must have known or should have known that its basis for delaying payment or

underpaying was unreasonable is a by-product of Iowa courts’ interpretation of

section 86.13 incorporating a bad faith standard from tort law. See City of Madrid

v. Blasnitz, 742 N.W.2d 77, 81–82 (Iowa 2007) (citing Christensen, 554 N.W.2d

at 260). “Courts . . . do not weigh the conflicting evidence that was before the

insurer; they decide whether evidence existed to justify denial of the claim.” Id.

(citations omitted). “The purpose or goal of the statute is both punishment and

deterrence.” Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 237 (Iowa

1996). Our case law makes clear that the intended punishment and deterrence

is for employers or insurers that attempt to escape or lessen their payments to

injured workers in bad faith. See Blasnitz, 742 N.W.2d at 82.



3
  Aluma has never contested Vitzhum’s entitlement to benefits. The “fairly debatable”
discussion in this case therefore relates to its calculation of the amount of benefits and
dates of payment.
                                         9


       On July 1, 2009, after Vitzthum began receiving benefits, an additional

provision added to section 86.13 came into effect. Iowa Code section 86.13(4)(c)

adds three statutory requirements to the employer’s burden of proof when an

employer or insurance carrier asserts a reasonable or probable cause or excuse:

       (1) The excuse was preceded by a reasonable investigation and
       evaluation by the employer or insurance carrier into whether
       benefits were owed to the employee.
       (2) The results of the reasonable investigation and evaluation were
       the actual basis upon which the employer or insurance carrier
       contemporaneously relied to deny [or] delay payment
       of . . . benefits.
       (3) The employer or insurance carrier contemporaneously
       conveyed the basis for the denial [or] delay in payment . . . of
       benefits to the employee at the time of the denial [or] delay . . . .

The payments made to Vitzthum in this case commenced before and continued

beyond this statute’s effective date. Because there is no contrary case law or

legislative intent apparent, these additional requirements are “presumed to be

prospective in [their] operation.” Iowa Code § 4.5.

                     2. Delay in Payment of Benefits

       Vitzthum asserts she has “proved without contradiction the elements

necessary to prove Aluma did not make timely compensation payments.” She

claims Aluma must pay penalty benefits because every payment made since its

second payment has been delayed.4 Aluma, on the other hand, asserts Vitzthum

has not met her initial burden of proof. It asserts the record is sufficient to show

that it has made all its payments on time according to its reasonable (or at least

fairly debatable) calculation of amounts due.




4
  Vitzthum claims “186 payment delays of 9153 days” and a total of $41,024.81 in
delayed payments.
                                         10


       After Vitzthum’s first hearing before the commission, the deputy

commissioner held that there was no delay in payments because she believed

Vitzthum’s “request for penalty appears premised on the concept that payments

are made when the check is received versus when the check is mailed.” On

appeal before the commission, the appellate deputy stated, “I [] do not see where

defendants untimely paid its version of the weekly benefits and due dates.” On

judicial review, the district court’s ruling on Vitzthum’s assertions of delay

apparently considered only the claim that the payments were delayed because

they were not paid in full as a result of Aluma’s miscalculations. Vitzthum’s

position is that there was an actual delay plus a miscalculation. We reach both

issues and arrive at the same result as the district court.

       There are two unique characteristics of Vitzthum’s claim that made it

difficult for the commission and district court to respond: (1) her unilaterally

declared due dates and (2) the prospective application of benefit and interest due

dates to develop post facto a rolling delay from each benefit period to the next.

       First, Vitzthum has presented in various iterations and at various stages of

the proceedings copious tabular data to express her opinion as to the due date of

each payment. At no stage in the proceedings has the commission or the court

expressed any formal approval or adoption of these dates in their findings of fact

or conclusions of law.5     Vitzthum claims her asserted due dates have been


5
  The appellate deputy commissioner did “adopt” Vitzthum’s calculated benefit rate and
total amount owing. Vitzthum declares, “By approving [Vitzthum’s computations of the
amount of benefit payments and resulting underpayment], the appeal deputy necessarily
found the correctness of the due dates used in them.” We find this assertion
unpersuasive. The appellate deputy commissioner issued no ruling as to Vitzthum’s due
dates; he only concluded that the total amount due by his calculations was the same as
the amount Vitzthum had put forward. Additionally, this is the same deputy that denied
                                          11

calculated according to the dictates of Robbennolt, 555 N.W.2d at 234–36. She

fails, however, to demonstrate how the language of Robbennolt mandates the

precise due dates she asserted. Robbennolt requires “weekly compensation [to

be] timely paid at the end of each compensation week.” Id. at 235. “[W]eekly

compensation payments are ‘made’ when they are mailed to the claimant.” Id.

       Aluma’s payment schedule involved issuing a check to Vitzthum at the

end of a calendar week.       For example, on Friday, October 24, 2008, Aluma

issued a check for the payment of benefits accrued from Monday, October 20,

2008, to Sunday, October 26, 2008.          This squarely meets the description of

timely payment in Robbennolt. Id.

       However, according to Vitzthum’s calculations each weekly payment

should have accrued from Thursday of each week (e.g. October 16, 2008) to

Wednesday of the following week (e.g. October 22, 2008). It is not clear from the

record why Vitzthum rejects Aluma’s Monday-to-Sunday weekly payment and

instead demands payment on a Thursday-to-Wednesday basis.6                    Because

Vitzthum has failed to support her unilaterally declared due dates with any

particularized legal citation or factual assertion, we find that Aluma’s payment

scheme comports with Robbennolt.

       Second, Vitzthum alleges every payment made by Aluma was delayed

due to a disagreement (and possible error) regarding benefits owed in the six

delay penalty benefits because he did “not see where defendants untimely paid its
version of the weekly benefits and due dates.” That deputy therefore in fact rejected
Vitzthum’s purported due dates insofar as he held they do not bear upon the issue of
delay penalties.
6
  In one of Vitzthum’s many data tables, she calculates the weeks for which benefits are
due. In her appeal brief to the commission, she includes a column entitled “7-day
Week,” and that column lists eight seven-day weeks and—without explanation—
calculations for two five-day “weeks,” a four-day “week,” and a two-day “week.”
                                           12


weeks immediately following the injury.7 According to Vitzthum, the asserted

error created a rolling delay for each subsequent payment. For example, Aluma

specifically denoted the check issued on October 24, 2008, as payment for the

week of October 20, 2008. But Vitzthum asserts it was in fact a late payment for

benefits that were due and unpaid on October 2, 2008. In this way, Vitzthum

characterizes every payment made as a payment on benefits already owing and

past due.    Based on that theory, Vitzthum retroactively accrues each benefit

period as a future debt rather than a contemporaneous payment from Aluma.

       There is no indication Vitzthum believed this rolling late payment scheme

was in effect as she received the payments. On the facts of this case, Vitzthum’s

“rolling delay” concept casts the impression of a litigation strategy designed to

maximize potential penalty benefits. But we find no support for such a concept in

our law, and indeed, Vitzthum has not cited any.8

       On the theory presented,9 Vitzthum has failed to meet her initial burden of

proof that there was an unexcused delay in payment of benefits. Each payment

Aluma made corresponds with the work week for which it was issued—the


7
   Vitzthum’s calculations are presented in tabular data, but the design of the tables
makes it difficult to compare her calculated benefits with those actually paid. The record
indicates that the alleged errors in benefits payments made soon after her injury related
to Vitzthum’s claimed temporary partial benefits periods. Aluma issued benefit
payments that coincide with all of her claimed healing period benefits.
8
  Vitzthum makes generalized gestures towards the United States rule, but that rule only
applies “regarding allocation of interest when payment is made toward retiring a
judgment.” Christensen, 554 N.W.2d at 261–62 (emphasis added). Vitzthum’s
reference to the rule may serve as a sufficient analogy for her rolling delay concept, but
it is not applicable law on these facts. Aluma’s benefit payments were not made toward
retiring a judgment upon which interest had begun to accrue.
9
   We note Vitzthum may have had a valid claim for a delay in payment relative to
temporary partial benefits owed and unpaid for the periods of July 7 to July 28, 2008,
and August 2 to August 17, 2008. However, she has not presented that claim, relying
instead on her rolling delay penalty theory.
                                           13


payments cannot be considered back-payments toward a running balance of

which neither Aluma nor Vitzthum herself had any knowledge.

       Even assuming arguendo that we could recognize the rolling delay as a

proper basis for penalty benefits on these facts, we note that Aluma’s belief its

payments were timely and complete constitutes a reasonable excuse. It was

fairly debatable that the Monday-through-Friday payment system comports with

the law in Robbennolt. Because there is substantial evidence in the record to

support the district court’s implicit affirmance of the commissioner’s denial of

these penalty benefits, we affirm.

                      3. Underpayment of Benefits

       Vitzthum also asserts Aluma must pay penalty benefits due to the de facto

denial of benefits owed as a result of Aluma’s incorrect calculation of the correct

benefit rate.10 The commission did not award penalty benefits on this basis,

finding that Aluma had demonstrated a reasonable excuse for its underpayment

because it had a fairly debatable basis for its computations. The district court

agreed that the basis for Aluma’s computation was fairly debatable and that it

therefore was not subject to penalty benefits for all benefits paid prior to the

statutory amendment’s effective date on July 1, 2009.                The district court

remanded to the commission the issue of possible penalty benefits owed on

benefits paid after the statutory amendment went into effect, as the applicable

law included additional burdens of proof on Aluma under Iowa Code section

86.13(4)(c).

10
   Vitzthum calculates the total amount of unpaid principal as $1832.27 by multiplying the
difference between her calculated weekly benefit rate and Aluma’s rate by the number of
weeks paid.
                                       14

      On appeal, Vitzthum argues that there was not a fairly debatable basis for

Aluma’s underpayments prior to July 1, 2009, subjecting it to penalty benefits for

both pre- and post-amendment underpayments. On cross appeal, Aluma argues

its fairly debatable basis was sufficient to obviate Vitzthum’s claim for penalty

benefits even under the new statutory requirements, rendering the district court’s

remand to the commission unnecessary.        In other words, the district court’s

remand suggests some of the benefit underpayments may be subject to penalty;

Vitzthum argues that all of the benefit underpayments are subject to penalty;

Aluma argues that none of the benefit underpayments are subject to penalty.

      Since the commission held that Aluma’s calculations were indeed

erroneous, Vitzthum has satisfied her burden to demonstrate there was a denial

of benefits. Our analysis, therefore, is Aluma’s burden to show a reasonable or

probable cause or excuse for the underpayments.

      As to the pre-amendment benefits, we agree with the district court that the

assessment of penalty benefits is not justified. Aluma had a reasonable basis for

paying Vitzthum its calculated rate of $292.65 per week, because relevant

authority could have led it to believe the thirteen weeks upon which it based its

calculations formed a proper basis even though Vitzthum’s actual work hours

fluctuated both above and below forty hours a week with some regularity. See

Daniels, 2002 WL 32125261, at *1 (holding where “earnings varied greatly from

week to week due to available work[, t]he most appropriate method to calculate []

customary earnings was to average them over the previous 13 weeks before the

injury as done by the defense”).
                                           15


       Vitzthum misstates the applicable law when she insinuates Aluma is

subject to penalties because there was not “any ‘debate,’ let alone a ‘fair debate’”

regarding its rate computation method. This is not what the law requires. The

law requires that Aluma’s reason for its rate computation method be “fairly

debatable.” Burress, 779 N.W.2d at 222. We agree with the commission and

with the district court that—regardless of its ultimate correctness—Aluma had a

fairly debatable basis for its rate of benefit payments made to Vitzthum before

July 1, 2009. 11

       As to the post-amendment benefits, we agree with the district court that

the deputy commissioner failed to analyze the three requirements of section

86.13(4)(c). Furthermore, we note the deputy failed to satisfactorily analyze the

effect of the prospective nature of the 2009 amendments. The deputy applied

only the pre-amendment requirements to the facts.12

       On judicial review, the district court relied on a footnote in Burton to

suggest the additional requirements may apply to individual post-amendment

payments.     Burton, 813 N.W.2d at 267, n.4.           Aluma, however, argues the

prospective nature of the amendments should relate to the date of the predicate


11
   Vitzthum’s characterization of Aluma’s reasonable or probable cause or excuse for
underpayment (i.e. fairly debatable miscalculation) as an ex post facto excuse
manufactured during litigation to avoid liability is unpersuasive. The miscalculation
occurred at the outset of Aluma’s payment regime in July 2009. Whether Aluma’s
calculations were disclosed when it began payments or during these proceedings, the
excuse is not ex post facto because those calculations existed at the outset of the
compensation period.        The “excellent, recurring, and timely question” regarding
legislative intent and ex post facto excuses that Vitzthum raises in the routing statement
of her appellate brief is not actually implicated by the facts of the case before us.
12
   The appellate deputy commissioner’s decision indicates some confusion as to the
timing of the injury and the effective date of the amended legislation, which resulted in
the application of the pre-amendment law to the post-amendment benefit payments
without consideration of the effect of the amendment.
                                          16


injury rather than the dates of individual payments.13               Under Aluma’s

interpretation of the amendment, the new requirements do not apply to any of the

payments in this case because Vitzthum’s injury occurred prior to the

amendment’s effective date. The district court’s interpretation of the statute, on

the other hand, would alter the burden of Aluma’s payment obligations mid-

performance.

       There are three requirements under the post-amendment law of a

reasonable or probable cause or excuse for underpayment. First, Aluma must

have undertaken a “reasonable investigation” to determine what benefits it owed

to Vitzthum.       Iowa Code § 86.13(4)(c)(1).        Second, Aluma must have

“contemporaneously relied” on the results of that investigation as the “actual

basis” for its underpayments.      Id. § 86.13(4)(c)(2).   Third, Aluma must have

“contemporaneously conveyed the basis for the denial [] of benefits to the

employee at the time of the denial . . . .”        Id. § 86.13(4)(c)(3).      If these

requirements are applicable, the commission must make sufficient findings of fact

to support them.

       Because the commission’s conclusions of law do not sufficiently determine

the effect of the 2009 amendments and its findings of fact do not determine any

attendant substantive satisfaction of the post-amendment requirements, we

agree with the district court that the case must be remanded for further

proceedings to interpret the effect of the 2009 amendments and for a disposition

13
  Aluma notes that Burton is factually distinguishable because every individual payment
occurred prior to the effective date of the amended legislation. Burton, 813 N.W.2d at
267, n.4. However, the footnote suggests the amendments would have changed the
employer’s burden for payments after the effective date. In this case, individual
payments were issued both before and after the amendment went into effect.
                                           17


on the matter of penalty benefits for underpayments made on or after July 1,

2009.

              C. Assignment of Costs

        In compensation cases, “[a]ll costs incurred in the hearing before the

commissioner shall be taxed in the discretion of the commissioner.” Id. § 86.40.

If the case is later subject to judicial review, “[t]he taxation of costs on judicial

review shall be in the discretion of the court.” Id. § 86.32. We therefore review

for abuse of discretion. Robbennolt, 555 N.W.2d at 238.

        We find that neither the commission nor the district court abused their

discretion in their assignment of costs. Vitzthum contends that Robbennolt, 555

N.W.2d at 238, and Solland v. Second Injury Fund of Iowa, 786 N.W.2d 248, 249

(Iowa 2010),14 mandate remand to the commission for recalculation of costs

based on her success on the merits. However, neither case issues or references

any such mandate. We find re-taxation on remand unnecessary.

        It is true that, in principle, the relative success of the parties should be

considered when assigning costs. Robbennolt, 555 N.W.2d at 238. Both the

commission and the district court appropriately did so. Before the commission,

Vitzthum was successful on some claims (i.e., the weekly healing period rate

calculus) and unsuccessful on the others (i.e., her penalty benefit claims). The

commission appropriately divided the costs equally.



14
   We note that the Solland court considered the taxation of costs pursuant to Iowa Code
section 625.1 (“Costs shall be recovered by the successful against the losing party.”), so
its reasoning is inapposite in this case. Here, costs were taxed according to Iowa Code
section 625.3 (“Where the party is successful as to a part of the party's demand, and
fails as to part, unless the case is otherwise provided for, the court on rendering
judgment may make an equitable apportionment of costs.”).
                                        18


       At the district court level, her success was a very narrow remand.

Because she was only partially successful, the district court has great discretion

in dividing costs.   See Lake v. Schaffnit, 406 N.W.2d 437, 442 (Iowa 1987)

(holding the district court’s assignment of 100% of costs to the defendant proper

despite the fact that he was successful in ascribing 49% of the fault to the

plaintiff); see also Iowa Code § 625.3 (“Where the party is successful as to a part

of the party's demand, and fails as to part, . . . the court on rendering judgment

may make an equitable apportionment of costs”).               The district court’s

apportionment of costs accounts for the fact that Vitzthum’s was relatively

unsuccessful on judicial review; her petition was denied as to all but the narrow

remand.

       Neither the agency nor the district court abused their wide discretion to

assign costs because neither party entirely prevailed. To reassess those costs

or to allow Vitzthum to reargue these assignments on remand would be to allow

her to attempt to recover costs on her multitude of rejected petitions and motions.

All heretofore taxed costs are affirmed. Each party is to bear its own costs of this

appeal.

       IV. Conclusion

       We agree with the district court and find there is substantial evidence

supporting the appellate deputy commissioner’s final disposition on most issues

presented.    First, we find there is substantial evidence supporting the

commissioner’s final calculation of the proper weekly benefit rate and amount

due.   Second, there is substantial evidence supporting the appellate deputy

commissioner’s denial of penalty benefits based on a theory of delayed
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payments. Third, there is substantial evidence supporting the appellate deputy

commissioner’s denial of penalty benefits based on a theory of underpayment for

benefits paid prior to July 1, 2009.     Fourth, all assignment of costs by the

commission and the district court were proper and within their discretion. We

affirm.

          However, we find there is not yet sufficient evidence to support the

appellate deputy commissioner’s denial of penalty benefits based on a theory of

underpayment for benefits paid on or after July 1, 2009. The commission must

explicitly interpret the effect of the 2009 amendments relative to the facts of this

case and then expand its findings of fact to coincide with the applicable rule of

law. We affirm the district court’s order to remand for further proceedings.

          AFFIRMED.
