               IN THE SUPREME COURT OF IOWA
                             No. 11 / 05-1694

                            Filed March 5, 2007


JOHN ARNDT,

      Appellee,

vs.

CITY OF LE CLAIRE and
HIGHLAND INSURANCE GROUP,

      Appellants.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      The employer and insurer appeal from a district court ruling on a

petition for judicial review.    DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      William D. Scherle and Alexander E. Wonio of Hansen, McClintock &

Riley, Des Moines, for appellants.



      Daniel D. Bernstein of William J. Bribriesco and Associates,

Bettendorf, for appellee.
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WIGGINS, Justice.

      The Iowa workers’ compensation commissioner found the claimant’s

injuries were not work related.       On judicial review, the district court

reversed the decision of the commissioner finding substantial evidence did

not support the commissioner’s decision.          The employer and insurer

appealed and our court of appeals affirmed. On further review, we find the

district court and the court of appeals improperly weighed the evidence in

reversing the commissioner’s decision. Accordingly, we vacate the decision

of the court of appeals, reverse the judgment of the district court, and

remand the case for the district court to enter a judgment affirming the

decision of the commissioner.

      I. Background Facts and Proceedings.

      At the time of his alleged injury, John Arndt worked for the City of

Le Claire as the public works supervisor. Arndt claims when he was at

work on June 14, 2001, while climbing onto a road grader, he slipped on

some grease and fell backward. When attempting to break his fall, Arndt

twisted his knee and popped his shoulder. There were no witnesses to the

incident. After the fall, Arndt claims he went back to the garage and told

another City employee, Colleen Rhodes, that he twisted his knee. Arndt
alleges the next day he told Ed Choate, his supervisor, that he injured his

knee by falling off a road grader. Choate told Arndt to go see a doctor.

Arndt told Choate he did not want to see a doctor at that time. He stated he

would rather “wait it out and see if it was a little sprain.” Choate did not fill

out an employer’s first report of injury form at this time.
      On June 28 Arndt had an appointment with a chiropractor he had

previously seen.    On this visit, Arndt reported to the chiropractor he

“twisted [his] right knee one month ago.” Arndt did not seek any additional

treatment until October when he began to see the chiropractor more
                                     3
regularly. On his October 1 visit, Arndt reported right knee and right

shoulder pain. On October 5 Arndt again visited the chiropractor and

stated his right shoulder was better, but still sore. On October 8 Arndt saw

the chiropractor for another follow-up visit. The chiropractor noted Arndt

expressed he had pain when he stood for a long period of time and his right

knee would swell.

      In October Arndt told Choate his knee was “really bad, swollen up all

the time and [it was] hard to get [his] pants on and off at night.” Choate

told Arndt if he sought medical treatment to avoid making a workers’

compensation claim. He also told Arndt to have his own insurance pay for

any treatment. Choate testified he thought because Arndt was seeing a

doctor at a point in time that was so far removed from the injury date, he

was unsure if workers’ compensation would cover the bill.

      On October 25 Arndt saw an orthopedic specialist.               At the

orthopedist’s office, Arndt completed a medical history information form.

On the form, he indicated his own private insurance would pay for his

medical treatment, not his employer’s workers’ compensation insurance.

He also put a question mark on the line provided for the patient to indicate

the date of the accident or the onset of symptoms. Arndt testified when he

was filling out the form, he did not know the exact date he was injured. The

orthopedist’s office took a history from Arndt. The history reflected Arndt

told the orthopedist’s nurse that he “slipped off of a ladder at home and

twisted his knee and injured his shoulder.” The history continues,

      [a]pparently as he fell he forcefully twisted the knee and felt a
      twinge along the medial aspect of the knee. He grabbed the
      ladder to stop his fall and forcefully pulled hard on the
      shoulder. This episode occurred 4 months ago.
                                     4
      The orthopedist diagnosed Arndt with injuries to his right shoulder

and knee. These injuries required Arndt to have surgery on his knee and

shoulder.

      In December Choate determined a workers’ compensation claim could

be filed for Arndt’s injury. Choate filled out an employer’s first report of

injury on December 6. The report listed the date of injury as June 14,

2001, and that Arndt first reported the injury to Choate on June 15.

      On February 11, 2002, Arndt filed a notice and petition claiming

workers’ compensation benefits for the injuries he claimed to have

sustained while falling off a road grader at work on June 14, 2001. During

the hearing, the deputy workers’ compensation commissioner accepted the

employer’s first report of injury into the record. In doing so, the deputy

commissioner stated he put the report into the record only for the purpose

allowed by Iowa Code section 86.11 (2001).

      In addition to Arndt’s medical records, the City introduced a letter

from the orthopedist regarding the cause of Arndt’s injuries. The letter

stated:

      [Arndt’s] history was taken by the office nurse in which he
      stated that he slipped off a ladder, twisted [his] knee and
      grabbed [the] ladder and pulled [his] shoulder at home.

      ...

      For the date of accident, or onset of symptoms, he put a
      question mark. When he came into the office he gave the
      receptionist his regular insurance card and stated this was
      under his insurance.

      He never stated, at any time, during any of his visits to the
      office, that this was a work comp claim and we had no way of
      knowing. He has never given anyone any information at any of
      the visits to the office. He initialed his patient information
      sheet for the receptionist upon arrival of each visit. The very
      purpose of asking the patient to initial the patient information
      sheet on each return visit is to clarify any changes in insurance
      or work comp status. The patient is asked upon arrival to the
                                    5
      office for his appointment to review the patient information
      sheet to see if there are any changes in address, phone
      number, insurance or work comp status.

      The deputy workers’ compensation commissioner found Arndt did not

prove by a preponderance of the evidence that he “sustained an injury

arising out of and in the course of employment on June 14, 2001.” The

deputy commissioner found there were too many inconsistencies regarding

when the accident occurred. The deputy commissioner also found “[a]s late

as October 25, 2001, [Arndt] reported to medical personnel that his injury

was on a ladder at home and was to be covered by his private insurance.”
      Arndt appealed the decision to the Iowa workers’ compensation

commissioner. The commissioner found at best, there was equipoise of

evidence. Therefore, he affirmed the deputy commissioner’s finding that

Arndt had not met his burden of proof.

      Arndt sought judicial review of the commissioner’s decision. The

district court reversed the commissioner’s decision, finding “there was not

substantial evidence in the record to support the decision of the Workers’

Compensation Commissioner or the decision of the Deputy Commissioner

in the arbitration decision.”

      The City appealed and we transferred the case to the court of appeals.

The court of appeals issued an opinion affirming the district court decision.

The City petitioned for rehearing and the court of appeals granted the

petition.   On rehearing the City argued the court of appeals based its

decision “in whole or in part on evidence not admitted at trial.” The City

asserted the employer’s first report of injury was admitted into evidence for

the sole purpose of establishing when the employer received notice of the

injury, and “notice was not an issue in this case and therefore the report

was not formally admitted into evidence and is not a valid part of the record

made at the hearing.” The court of appeals addressed this concern and
                                       6
“disagree[d] that notice was not an issue in this case.” The court of appeals

found

        [t]he fact that Arndt reported the injury to his employer on the
        day after he claimed he was injured is a fact the deputy
        commissioner found relevant enough to include in his findings
        and a fact that we believe we may consider notwithstanding the
        strictures of Iowa Code section 86.11.

Then the court of appeals found substantial evidence did not support the

commissioner’s decision. The court of appeals reasoned,

        [t]o affirm the agency decision, we would have to ignore the
        date on which the employee notified the employer of his injury
        as found by the deputy commissioner, as well as testimony
        from the employer’s representative confirming that a work-
        related injury occurred on June 14, 2001.

        The City petitioned for further review, which we granted.

        II. Scope of Review.

        A district court reviews agency action pursuant to the Iowa

Administrative Procedure Act. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414

(Iowa 2001) (citing Iowa Code § 17A.19(8)). When we review a district court

decision reviewing agency action, our task is to determine if we would reach

the same result as the district court in our application of the Act. City of
Des Moines v. Employment Appeal Bd., 722 N.W.2d 183, 189-90 (Iowa

2006).

        The district court may reverse or modify an agency’s decision if the

agency’s decision is erroneous under a ground specified in the Act and a

party’s substantial rights have been prejudiced. Iowa Code § 17A.19(10).

The district court or an appellate court can only grant Arndt relief from the

commissioner’s decision if a determination of fact by the commissioner “is

not supported by substantial evidence in the record before the court when

that record is viewed as a whole.” Id. § 17A.19(10)(f). Just because the

interpretation of the evidence is open to a fair difference of opinion does not
                                      7
mean the commissioner’s decision is not supported by substantial evidence.

ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 603 (Iowa

2004).   An appellate court should not consider evidence insubstantial

merely because the court may draw different conclusions from the record.

Fischer v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005).

      III. Analysis.

      The claimant has the burden of proof to show by a preponderance of

the evidence that the injury arose out of and was in the course of the

claimant’s employment. Dunlavey v. Econ. Fire and Cas. Co., 526 N.W.2d

845, 849 (Iowa 1995). The commissioner found Arndt failed to prove his

injury arose out of and was in the course of his employment.

      The district court, however, found there was evidence in the record

supporting Arndt’s claim his injury was work related.          This evidence

consisted of Arndt’s testimony that his injuries occurred when he fell off a

road grader on June 14, 2001, and the testimony of his supervisor, Choate,

that on the day after the alleged injury, Arndt reported to Choate he was

injured by falling off a road grader at work. Choate testified on June 15, the

day after the alleged accident, he believed Arndt when Arndt told him that

his injury occurred on June 14 by falling off a road grader. Additionally, on

the day of the hearing, Choate testified he still believed Arndt was truthful

when Arndt told him that the injury occurred on June 14 by falling off a

road grader.

      In addition to the evidence the district court relied on to reach its

decision, the court of appeals relied on the employer’s first report of injury

to support Arndt’s claim his injury occurred on June 14. The City claims

the court of appeals was wrong to consider the first report to prove Arndt’s

injury occurred on June 14. We agree.

      The deputy commissioner admitted the first report into the record for
                                      8
the “very limited purpose” allowed by Iowa Code section 86.11 when Arndt’s

attorney referred to the employer’s first report of injury during Arndt’s

testimony. The Code provides the filing of an employer’s first report of

injury with the workers’ compensation commissioner “shall be without

prejudice to the employer.” Iowa Code § 86.11. Section 86.11 allows the

first report of injury to be admitted in evidence or used in any trial or

hearing before any court, the workers’ compensation commissioner, or a

deputy workers’ compensation commissioner for the limited purpose of

showing the employer had notice of the occurrence of an injury as required

by section 85.23. Id. § 86.11. Accordingly, the court of appeals incorrectly

relied on the first report of injury as evidence of the injury date.

      When the district court reviewed the record, it determined Arndt’s

medical records did not constitute substantial evidence to support the

commissioner’s decision because the nurse who took Arndt’s history did not

testify. The court of appeals agreed with the district court and stated, “the

district court simply considered all the record evidence and determined that

the employer’s admissions of a work-related injury on June 14, 2001

trumped the qualitatively weaker statements attributed to Arndt by medical

personnel.” (Emphasis added.)
      The Iowa Administrative Procedure Act defines substantial evidence

as:

      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)(1). The commissioner admitted Arndt’s medical

records into evidence without objection. The commissioner was entitled to

give the medical records the weight he felt they deserved.
                                      9
      Making a determination as to whether evidence “trumps” other

evidence or whether one piece of evidence is “qualitatively 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. See Tim O'Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d

611, 614 (Iowa 1996) (stating under a substantial evidence review it is not

the task of the reviewing court “to weigh the evidence or the credibility of

the witnesses”).   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. See Dunlavey, 526 N.W.2d at 853 (stating in deciding

whether to accept the opinion of an expert witness “[t]he 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”). The reviewing

court only determines whether substantial evidence supports a finding

“according to those witnesses whom the [commissioner] believed.” Tim O’Neill

Chevrolet, Inc., 551 N.W.2d at 614 (emphasis added). Consequently, both

the district court and the court of appeals improperly weighed the evidence

to overrule the commissioner’s findings.

      Contrary to the district court’s and court of appeals’ opinions, we find

there is substantial evidence in the record to support the commissioner’s

finding that Arndt failed to prove his injury arose out of and was in the

course of his employment.         One piece of evidence supporting the

commissioner’s decision is Arndt’s statement to his chiropractor that his

injury occurred one month before his June 28 visit to the chiropractor.

This places Arndt’s injury date to be around May 28, not June 14 as he

claims.

      Another piece of evidence supporting the commissioner’s decision is
                                      10
the orthopedist’s medical records. These records include a history taken

from Arndt indicating Arndt told the orthopedist’s nurse that his injury

occurred when he slipped off a ladder at home, twisted his knee, and

injured his shoulder.

      A final piece of evidence supporting the commissioner’s decision is the

information form filled out by Arndt at the orthopedist’s office. On the form,

Arndt marked the space provided to inform the office of the date or the

onset of symptoms with a question mark. He also indicated on the form his

own private insurance, not his employer’s workers’ compensation

insurance, would be paying for his medical treatment.

      Accordingly,      substantial   evidence    supports    the    workers’

compensation commissioner’s decision finding Arndt’s injury did not arise

out of and was not in the course of his employment.

      IV. Disposition.

      Because the district court and the court of appeals improperly

weighed the evidence to overrule the workers’ compensation commissioner’s

finding that Arndt’s injury did not arise out of and was not in the course of

his employment, we vacate the decision of the court of appeals, reverse the

judgment of the district court, and remand the case for the district court to
enter a judgment affirming the decision of the workers’ compensation

commissioner.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Hecht, J., who takes no part.
