                   IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0417
                              Filed January 28, 2015


WAL-MART STORES, INC. and AMERICAN
HOME ASSURANCE CORP. AIG,
    Plaintiffs-Appellants,

vs.

LARRY PLUMMER,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      An employer appeals the district court’s affirmance of the final decision of

the worker’s compensation commissioner. AFFIRMED.



      Mark   Bosscher    of   Peddicord,   Wharton,    Spencer,   Hook,    Barron

& Wegman, West Des Moines, for appellants.

      Ryan T. Beattie of Beattie Law Firm, P.C., Des Moines, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

         Wal-Mart seeks judicial review of a workers’ compensation decision in

favor of employee Larry Plummer.1 Wal-Mart contends (I) “[t]his Court should

reinstate the ruling by the Deputy that the alleged January 21, 2010 injury did not

arise out of and in the course of employment,” (II) “[t]his Court should reverse the

part of the Commissioner’s Appeal Decision that awarded the ‘not credible’

Claimant benefits for the alleged July 17, 2010 injury,” and (III) “[t]his Court

should reverse the award of sanctions against [Wal-Mart and its counsel]

because [Plummer] failed to preserve this issue for appeal and because the

Commissioner’s ruling violates Iowa law and Agency precedent.”

    I.      January 21, 2010 Injury

         Personal injuries must “arise out of and in the course of employment” to

be compensable. Iowa Code § 85.3(1) (2013). “Arising out of” refers to the

“cause and origin of the injury.” See Miedema v. Dial Corp., 551 N.W.2d 309,

311 (Iowa 1996). “In the course of” refers to the “time, place and circumstances

of the injury.” Id.; See also Iowa Code § 85.61(7) (“‘[P]ersonal injury arising out

of and in the course of the employment’ shall include injuries to employees

whose services are being performed on, in, or about the premises which are

occupied, used, or controlled by the employer.”).

         Larry Plummer worked the third shift at Wal-Mart, which ended at 6 a.m.

On January 21, 2010, Plummer completed his shift, clocked out, and spent

approximately thirty minutes shopping.       On his way out, he and a coworker


1
  Laura Ostrander of the Ostrander Law Firm moved to withdraw from representation of
the appellants. The motion is granted.
                                         3


assisted a customer. While providing the assistance, Plummer slipped and fell.

He completed an incident report designated for customers rather than

employees.

      Plummer sought workers’ compensation benefits for an injury to his back.

A deputy workers’ compensation commissioner concluded the injury did not arise

out of and in the course of employment because, at the time he fell, he was no

longer on the clock. On intra-agency appeal, the commissioner reversed the

decision. The commissioner did not specifically address the deputy’s “off-the-

clock” finding.   Instead, the commissioner examined the causal connection

between the fall and subsequent medical treatment. The commissioner found

Plummer’s visit to his physician four days after the fall was “causally related to

the fall” but found no causal connection with back surgery Plummer underwent

about seven weeks later.     The commissioner ordered Wal-Mart to cover the

medical expenses associated with the physician’s visit, and nothing more.

      Wal-Mart contested the ruling in a filing the commissioner construed as an

application for rehearing.     The commissioner denied the application and

reaffirmed his prior ruling. Wal-Mart petitioned for judicial review. The district

court affirmed the agency decision and this appeal followed.

      Wal-Mart concedes Plummer was on Wal-Mart premises when he fell but

asserts “he was not performing any ‘services’ on those premises because he had

shopped as a customer off the clock, he was not permitted to stay on the clock

while shopping, and he filled out a customer incident report.” The argument

implicates the “in the course of” rather than the “arising out of” requirement. This

is a mixed question of law and fact. Meyer v. IBP, Inc., 710 N.W.2d 213, 218
                                          4


(Iowa 2006). We are bound by the operative facts if they are supported by

substantial evidence. Id.; see Iowa Code § 17A.19(10)(f). We will overturn the

agency’s application of law to fact only if it is “irrational, illogical, or wholly

unjustifiable.”   Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa

2010).

         The commissioner found Plummer “went shopping in the store for a short

time period” after completing his shift. The commissioner further found “[w]hile

leaving the store approximately 30 minutes later, he slipped on ice and fell on the

small cement ramp in front of the store entrance when assisting a customer.”

These findings are supported by substantial evidence.              Indeed, they are

essentially undisputed.

         We turn to the agency’s application of law to fact.        By ordering the

payment of medical expenses, the commissioner implicitly determined the “in the

course of” requirement was satisfied, notwithstanding the lapse of time between

Plummer’s completion of his shift and the fall. See Acuity Ins. v. Foreman, 684

N.W.2d 212, 220 (Iowa 2004) (addressing implicit finding of agency), abrogated

on other grounds by Kohlhaas v. Hog Slat, Inc. 777 N.W.2d 387, 391–92 (Iowa

2009). This determination was not irrational, illogical, or wholly unjustifiable.

         In Bailey v. Batchelder, 576 N.W.2d 334, 340 (Iowa 1998), the Iowa

Supreme Court stated, “[w]hat constitutes a reasonable amount of time depends

‘not only on the length of time involved but also on the circumstances

occasioning the interval and the nature of the employee’s activity.’” (citing Carter

v. Volunteer Apparel, Inc., 833 S.W.2d 492, 494 (Tenn. 1992)). The court held

as a matter of law that the claimant’s presence in the parking lot fifty minutes
                                          5

before her shift “was reasonable and thus within the course of employment.” Id.

at 341.

         Plummer was technically off the clock for thirty minutes, far less than the

time deemed to be “in the course of employment” in Bailey. Additionally, he

essentially acted as an employee when he stopped to assist a customer. The

commissioner reasonably could have rejected Wal-Mart’s defense under these

circumstances. See The Sherwin-Williams Co. v. Iowa Dep’t of Revenue, 789

N.W.2d 417, 432 (Iowa 2010) (“A decision is ‘irrational’ when it is ‘not governed

by or according to reason.’” (citing Webster’s Third New International Dictionary

1195)).

   II.      July 17, 2010 Injury

         On July 17, 2010, Plummer was attempting to remove a broken pad on a

floor-scrubber when he felt a pop in his back and sudden pain in his left and right

legs. The commissioner determined the injury arose out of and in the course of

employment and “resulted in the need for significant medical care, a healing

period, and permanent disability.”

         Wal-Mart contends the commissioner failed to consider the deputy

commissioner’s findings that Plummer and his expert witness were not credible.

Those adverse credibility findings, the retailer notes, were bolstered by

surveillance videos of Plummer showing him engaged in heavy manual labor

outside his home, as well as his inconsistent deposition testimony.

         In fact, the commissioner acknowledged these credibility issues.        He

determined Plummer “exaggerated his symptoms both in his deposition and at
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hearing.”     Because of this exaggeration, the commissioner limited Plummer’s

permanent partial disability award to twenty percent of the body as a whole.

          Nonetheless, the commissioner rejected the deputy commissioner’s

“overly negative” view of Plummer, finding the surveillance footage and portions

of Plummer’s deposition testimony did less to undermine Plummer’s testimony

than the deputy suggested.        The commissioner also adopted the opinion of

Plummer’s expert “irrespective of any credibility problems claimant may have,”

after citing the expert’s cognizance of Plummer’s prior medical history.

          The commissioner’s findings concerning the July 17, 2010 injury were

supported by substantial evidence. Accordingly, we affirm them.

   III.      Sanctions Ruling

          Plummer filed two applications for alternate medical care pursuant to Iowa

Code section 85.27(4). He requested authorization to see a particular physician

for care and surgery. Plummer later dismissed the first application. A deputy

commissioner partially denied the second but ordered Wal-Mart to refer Plummer

to a spine expert for “treatment and evaluation.”

          On intra-agency review, Plummer challenged Wal-Mart’s compliance with

the alternate care order and requested sanctions. In its final agency decision,

the commissioner concluded Wal-Mart failed to comply with the order for

treatment and evaluation.       The commissioner reasoned that the physician to

whom Wal-Mart referred Plummer specialized in pain management rather than

neurosurgery, Wal-Mart’s counsel was aware of this fact, and “the conditional

treatment” was “nothing more than denying prompt care while shopping for
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opinions more agreeable to the defense than those of [other physicians].” The

commissioner imposed sanctions of $242.82.

         Preliminarily, Wal-Mart raises an error preservation concern based on

Plummer’s failure to raise the sanctions issue before the deputy commissioner.

We believe the concern is less about error preservation than about the

commissioner’s authority to consider an issue raised for the first time on intra-

agency review.

         A department rule vests the commissioner with authority to impose

sanctions. See Iowa Admin. Code r. 876-4.36;2 see also Marovec v. PMX Indus.,

693 N.W.2d 779, 783–84 (Iowa 2005).               The commissioner possesses this

authority whether or not a deputy commissioner has previously ruled on the

issue. See Iowa Code § 17A.15(3) (affording agency on intra-agency review “all

the power which it would have in initially making the final decision,” except as it

may decide to limit those issues). Accordingly, we turn to the merits.

         “[W]hether or not to impose [a sanction] is a judgment call on the

commissioner’s part” and “we are duty bound by statute to give deference to the

commissioner’s decision on these matters.” Marovec, 693 N.W.2d at 786. Our

review is for an abuse of discretion. Id. at 782.




2
    The rule states:
                 If any party to a contested case or an attorney representing such
         party shall fail to comply with these rules or any order of a deputy
         commissioner or the workers’ compensation commissioner, the deputy
         commissioner or workers’ compensation commissioner may impose
         sanctions which may include dismissing the action without prejudice,
         excluding or limiting evidence, assessing costs or expenses, and closing
         the record in whole or in part to further activity by the party.
                                          8


         Wal-Mart contends the commissioner read too much into the deputy’s

order to send Plummer to a spine expert for “treatment and evaluation.” In its

view, the order “permitted Wal-Mart to have [Plummer] first evaluated by Dr.

LaMorgese and then treated if the doctor opined his current complaints were still

related to some sort of work injury.”     The argument ignores established law

precluding an alternate care application from going forward if liability is an issue.

See R.R. Donnelly & Sons v. Barnett, 670 N.W.2d 190, 196–97 (Iowa 2003)

(citing Iowa Admin. Code r. 876-4.48(7)). Wal-Mart admitted liability for an injury

to Plummer’s back on July 17, 2010.

         We recognize there are circumstances in which an employer may admit

liability in the alternative care proceeding and subsequently amend its position on

liability.   See generally Bell Bros. Heating & Air Conditioning v. Gwinn, 779

N.W.2d 193, 207–08 (Iowa 2010).          However, the theory of judicial estoppel

ordinarily does not permit this course of action. See Winnebago Indus., Inc. v.

Haverly, 727 N.W.2d 567, 575 (Iowa 2006).           Judicial estoppel is especially

relevant where the commissioner disposes of the alternate care application in

reliance on the employer’s admission of liability.      See Tyson Foods, Inc. v.

Hedlund, 740 N.W.2d 192, 198–99 (Iowa 2007); see also Spencer v. Annett

Holdings, Inc., 905 F.Supp.2d 953, 985 (S.D. Iowa 2012). That is precisely what

happened here.       Accordingly, we are unpersuaded by Wal-Mart’s attempt to

distinguish evaluation from treatment.

         We conclude the commissioner did not abuse its discretion in imposing

sanctions on Wal-Mart and its counsel.
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      We affirm the district court’s affirmance of the commissioner’s final

decision.

      AFFIRMED.
