                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2230
                             Filed October 11, 2017


SANDRA CALLAHAN,
    Plaintiff-Appellant,

vs.

HORSESHOE CASINO and ZURICH AMERICAN,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.



      Sandra Callahan appeals the district court’s ruling on judicial review

upholding the decision of the workers’ compensation commissioner denying her

claim for benefits. AFFIRMED.




      Laura L. Pattermann and Eric C. Hansen of Law Offices of Gallner &

Pattermann, P.C., Council Bluffs, for appellant.

      Matthew D. Hammes and Amy M. Locher of Locher Pavelka Dostal

Braddy & Hammes, L.L.C., for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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DANILSON, Chief Judge.

       Sandra Callahan appeals the district court’s ruling upholding the workers’

compensation commissioner’s finding Callahan did not give timely notice of her

work-related injury.

       The Iowa Administrative Procedure Act requires the district court to review

agency action when a party invokes the district court’s jurisdiction. Iowa Code

§ 17A.19(10) (2014). This court reviews the district court decision to determine

whether we would reach the same result as the district court. Gits Mfg. Co. v.

Frank, 855 N.W.2d 195, 197 (Iowa 2014).

       Horseshoe Casino (Horseshoe) former employee Sandra Callahan filed a

petition for judicial review of the workers’ compensation commissioner’s decision.

The commissioner determined the employer did not have actual knowledge

before August 13, 2012, that Callahan’s back problems, which manifested

October 10, 2011, were work related. The commissioner concluded that there

was “no credible evidence in the record” to support the deputy’s finding to the

contrary, and because Callahan admittedly did not make her report of injury to

Horseshoe until August 13, 2012, well beyond the ninety-day limitation required

under Iowa Code section 85.23,1 Callahan’s claim was time barred.



1
 Iowa Code section 85.23 (2011) provides:
              Unless the employer or the employer’s representative shall have
      actual knowledge of the occurrence of an injury received within ninety
      days from the date of the occurrence of the injury, or unless the employee
      or someone on the employee’s behalf or a dependent or someone on the
      dependent’s behalf shall give notice thereof to the employer within ninety
      days from the date of the occurrence of the injury, no compensation shall
      be allowed.
      In 2017, the provision was amended to add the following sentence: “For the
purposes of this section, ‘date of the occurrence of the injury’ means the date that the
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       Callahan filed a petition for judicial review, contending the commissioner

misplaced the burden of proof of actual notice on Callahan; the commissioner’s

finding was not supported by substantial evidence; and the commissioner’s

application of law to facts was illogical, irrational, or wholly unjustifiable. After a

hearing, the district court upheld the commissioner’s ruling, and Callahan

appeals.

       The commissioner, as trier of fact, found Callahan’s cumulative injury

manifested on October 10, 2011, and Callahan gave formal notice to her

employer that her injury was work-related on August 13, 2012.               A deputy

commissioner had ruled that the employer failed to carry its burden it did not

have actual notice Callahan’s injury was work related in November or December

2011. With respect to the employer’s actual notice, the commissioner wrote:

               While it clearly appears the employer was aware for quite
       some time before August 2012, that claimant had a low back
       condition, I do not agree with the finding that the employer had
       actual knowledge before August 13, 2012, that the condition was
       work related. There simply is no credible evidence in the record to
       support such a finding. [Callahan’s] testimony regarding actual
       notice is extremely vague and flimsy and it directly contradicts her
       deposition testimony. Even if [Callahan’s] testimony at hearing
       could be believed, the deposition testimony of [employer
       representative] Rod Jobman clearly provides a basis for concluding
       that the employer did not have actual knowledge of the causation of
       Ms. Callahan’s condition at any time before Ms. Callahan reported
       the injury on August 13, 2012.

The commissioner thus concluded Callahan’s claim for permanent partial

disability benefits was barred by the notice provision of Iowa Code section 85.23.

             Making a determination as to whether evidence “trumps”
       other evidence or whether one piece of evidence is “qualitatively

employee knew or should have known that the injury was work-related.” 2017 Iowa Acts
ch. 23, § 3.
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        weaker” than another piece of evidence is not an assessment for
        the district court or the court of appeals to make when it conducts a
        substantial evidence review of an agency decision. It is the
        commissioner’s duty as the trier of fact to determine the credibility
        of the witnesses, weigh the evidence, and decide the facts in issue.
        The reviewing court only determines whether substantial evidence
        supports a finding “according to those witnesses whom the
        [commissioner] believed.”

Arndt v. City of Le Claire, 728 N.W.2d 389, 394-95 (Iowa 2007) (alterations and

emphasis in original) (citations omitted); accord Gits Mfg., 855 N.W.2d at 198.

        We have reviewed the entire record, as well as the district court’s careful

review of the law and conclusions. We first conclude the commissioner and

district court properly placed the burden of proof of the employer’s affirmative

defense upon the employer in reaching their conclusions.         There is room to

disagree with the commissioner’s conclusion that “there is no credible evidence

in the record” of actual notice.     Dr. Bruening submitted a “fitness for duty”

authorization to the employer which states in part, “Sandy may have to leave

work early if lower back pain gets aggravated.” This form was dated October 27,

2011.    But even this statement is not specific.       It does not directly state

Callahan’s condition is work related, although it might be inferred. We conclude

however, that these facts are akin to the facts in Johnson v. International Paper

Co., 530 N.W.2d 475 (Iowa Ct. App. 1995).             In Johnson, a supervisor’s

knowledge that the claimant’s leg was hurting and wanted to go home did not

equate to actual knowledge or actual notice that the condition was work related.

530 N.W.2d at 477. There is substantial evidence supporting the commissioner’s

finding that the employer did not have actual notice that Callahan’s back

problems were work related until August 2012.             We also conclude the
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commissioner’s determination that Callahan’s claim was time barred was not

illogical, irrational, or wholly unjustifiable. See Iowa Ct. R. 21.26(1)(a), (b), (d),

(e). We therefore affirm the district court.

       AFFIRMED.
