              IN THE SUPREME COURT OF IOWA
                            No. 56 / 04-1645

                        Filed September 1, 2006


LARRY HOLLAND,

      Appellant,

vs.

SHAEFFER PEN CORP. and LIBERTY MUTUAL INSURANCE COMPANY,

      Appellees.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Des Moines County,

William L. Dowell, Judge.



      Appeal by claimant in workers’ compensation case. DECISION OF

COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT

AFFIRMED; CASE REMANDED.



      Nicholas G. Pothitakis, Burlington, for appellant.



      Jean Dickson Feeney of Betty, Neuman & McMahon, L.L.P.,

Davenport, for appellees.
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PER CURIAM.

      Larry Holland filed a workers’ compensation claim seeking benefits

from his employer, Shaeffer Pen Corp., and its workers’ compensation

insurance carrier, Liberty Mutual Insurance Company.             A deputy

commissioner denied benefits, and the commissioner affirmed. On judicial

review, the district court affirmed as well. See Iowa Code § 17A.19 (2003).

On the claimant’s appeal, the court of appeals reversed and remanded to

the workers’ compensation commissioner. The employer sought further

review, which we granted. We vacate the decision of the court of appeals

and affirm the ruling of the district court.

      Three issues are raised on further review, all of which are controlled

by clear precedent of this court.

    I. The Court of Appeals Reversal Based on Findings of a Deputy
Commissioner.

      The deputy workers’ compensation commissioner stated in her

arbitration decision that the claimant was not credible. She supported that

conclusion in part on her finding that, because the claimant was so

immature, he was “likely to reconstruct events in a manner that better

serves his perceived self-interests than more objective reviews of events
would suggest.”

      The court of appeals held that this conclusion was unsupported by

medical evidence and therefore had “allowed [the deputy’s] diagnosis of

Holland to bias the rest of her opinion.” The employer argues that this was

error because on the intra-agency appeal the commissioner expressly

declined to give any weight to the comment in question. The commissioner

reached the same conclusion, i.e., that the claimant was not credible, but

did so on the basis of other evidence.         The other evidence included
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inconsistent testimony by the claimant himself, testimony by other

witnesses, and a lack of support in medical documents.

      We have held that, on judicial review, a court is to base its decision

on   the    commissioner’s   findings       because   “the   deputy   industrial

commissioner’s proposed findings are not in consideration on judicial

review.” Myers v. FCA Servs., Inc., 592 N.W.2d 354, 358 (Iowa 1999); see

Iowa Code § 17A.19(1) (aggrieved party may seek review of “final agency

action”). A deputy’s decision, of course, is not final agency action. We

conclude it was error for the court of appeals to reverse the judicial-review

decision of the district court on the basis of the proposed findings of the

deputy commissioner. As already noted, there was adequate evidence in the

record to support the commissioner’s conclusion that the claimant lacked

credibility.

     II. Application of the “Arbitrary, Capricious, and Abuse-of-
Discretion” Standard of Review Under Iowa Code Section
17A.19(10)(n).

      On the issue of the claimant’s credibility, the court of appeals

observed:

      Essentially, once the deputy commissioner decided Holland
      lacked emotional maturity, his case was over. We therefore
      conclude that the deputy’s characterization of Holland,
      credibility determinations, and treatment of the evidence were
      unreasonable, arbitrary, capricious, and an abuse of discretion
      under section 17A.19(10)(n).

Holland’s employer argues that the application of an “arbitrary, capricious,

or abuse-of-discretion” standard is contrary to recent precedent by this

court and thus constitutes legal error.

      First, as we have already discussed, it is the decision of the

commissioner—not the deputy—that is reviewed by the court.                  The

commissioner specifically disavowed any finding on credibility based on the
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comment in question. Second, judicial review of fact-findings is not to be

based on abuse-of-discretion or arbitrary-and-capricious standards.

Rather, the commissioner is required “to base his factual determination on

substantial evidence and properly apply the pertinent legal principles to

those facts.” Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328,

332 (Iowa 2005).

      While it is true that the commissioner has discretion to reject

evidence it deems not to be credible, her credibility determination

necessarily is based on facts, and as noted, factual determinations are

subject to review under a substantial-evidence standard. Id. at 331-33; see

also Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304 (Iowa

2005).

      In Dunlavey v. Economy Fire & Casualty Co., 526 N.W.2d 845 (Iowa

1995), we held:

            When an expert’s opinion is based upon an incomplete
      history, the opinion is not necessarily binding upon the
      commissioner. The commissioner as trier of fact has the duty
      to determine the credibility of the witnesses and to weigh the
      evidence, together with the other disclosed facts and
      circumstances, and then to accept or reject the opinion.
             Our review of such a determination by the commissioner is
      limited to whether the commissioner’s finding is supported by
      substantial evidence in the record made before the agency when
      that record is viewed as a whole.

Id. at 853-54 (citations omitted) (emphasis added).

      Contrary to the holding of the court of appeals, we conclude the

district court did not err in failing to assess the commissioner’s credibility

determinations on an abuse-of-discretion standard.

      III. Sufficiency of the Evidence.
      The court of appeals held that the decision of the workers’

compensation commissioner was not supported by substantial evidence
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because it was based largely on a lack of the claimant’s credibility. Because

the court of appeals concluded that the commissioner erred in making that

determination, it held that the commissioner’s decision must fail for lack of

substantial evidence. Based on our conclusion that the commissioner did

not err in making a credibility determination, we disagree with this

assessment.

      We vacate the decision of the court of appeals, affirm the decision of

the district court, and remand for entry of an order affirming the

commissioner’s ruling.

      DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF

DISTRICT COURT AFFIRMED; CASE REMANDED.

      This is not a published opinion.
