author: LAVORATO, Chief Justice.

text:
    MYCOGEN SEEDS, Employer and Ace USA, Insurer in Novation for Reliance National Indemnity, Appellees, v. Larry SANDS, Appellant, and Dow Chemical, Employer and CNA Insurance, a/k/a Continental Casualty Company.
    No. 03-0331.
    Supreme Court of Iowa.
    Aug. 11, 2004.
    Rehearing Denied Sept. 21, 2004.

      Dennis J. Mahr, Sioux City, for appellant.
    Joseph A. Cacciatore of Dickinson, Mac-kaman, Tyler & Hagen, P.C., Des Moines, and Nathan R. McConkey of Huber, Book, Córtese, Happe & Lanz, P.L.C., Des Moines, for appellees.
   LAVORATO, Chief Justice.

In this workers’ compensation proceeding involving two successive work-related injuries, the employee, Larry Sands, appeals from a district court judgment affirming the interim commissioner’s (commissioner) decision. Sands contends the commissioner and district court erred in applying Iowa’s apportionment statute, refusing to abide by the parties’ stipulation for the commencement date of permanent partial disability payments for the first injury, denying Sands his spouse’s lost wages caused by her transportation of him for medical treatment, and failing to award him penalty benefits.

The employer, Mycogen Seeds, and its insurer on the first injury, ACE USA, cross-appeal to preserve their claim that Sands should not receive double disability payments in the event apportionment does not apply.

We affirm the district court judgment affirming the commissioner’s decision on the issues concerning apportionment, the parties’ stipulation, and penalty benefits. We reverse the district court’s judgment affirming the commissioner’s decision on the lost wages claim. We remand for further proceedings on this claim.

Because of the result we reach on the apportionment issue, we do not address the cross-appeal.

I. Background Facts.

At the time of the arbitration hearing, Sands was fifty-five years old. He is a high school graduate, but was a below average student. Recent testing showed that he had a full scale I.Q. of only seventy-four. His reading skills were at the seventh grade level.

Following his graduation from high school in 1964, Sands had held such jobs as an assembly line worker, a car jockey for a car dealership, a mechanic, and a farmer. These jobs required heavy lifting of up to fifty to seventy-five pounds at times.

In 1972 Sands began working for hybrid seed companies and continued in that work until 1997. He has worked for various companies during this time as a district sales manager. His job duties consisted of harvesting seed, working with dealers who sold seed, and delivering seed to dealers and customers. These duties required Sands to lift seed bags that weighed from twenty-eight pounds to sixty-four pounds.

He lifted 700 to 900 bags of seed per week and up to 300 bags a day during the busy season.

Sands was paid a base salary plus a bonus if he sold more seed in one year as compared to the previous year. His bonus was also based on early cash receipts, collections, and a low return of seed. From 1972 until 1997, there were only two years that Sands did not receive a bonus, and that was either because of weather conditions or a poor farm economy. The largest bonus he received in a year was $12,000.

On June 25, 1991, Sands sustained an on-the-job injury to his lower back. At the time he was lifting fifty-pound bags of seed. After receiving treatment for a suspected herniated disk, his doctor released him without restrictions and gave him no functional impairment rating. In 1994 Sands had a flare-up of low-back symptoms for which he received treatment. He eventually recovered.

On May 16, 1995, Sands was working for Keltgen Seeds. On that date, Sands again sustained an on-the-job injury while picking up unused seed from dealers. In picking up the seed bags, he felt pain in his neck and right shoulder. He sought medical attention for the injury from Dr. Wayne Meylor, D.C., who noted that Sands’ primary complaints were in his lower neck and shoulder. Several weeks later, Sands complained to Dr. Meylor of low back and hip pain.

Dr. Meylor referred Sands to Dr. Ray-' mond Sherman, M.D. for evaluation. Dr. Sherman saw Sands on September 3, 1996, following which the doctor recommended conservative treatment for the right shoulder symptoms. Dr. Sherman eventually referred Sands to Dr. Barrie Purves, M.D. for evaluation of Sands’ upper back and neck pain complaints.

Dr. Purves saw Sands on April 22, 1997. At that time, Sands told Dr. Purves that he had an acute onset of pain in his upper back into his neck as a result of the May 1995 incident. Sands also informed the doctor of his 1991 low-back injury. Following his examination of Sands, Dr. Purves opined that Sands had severe degenerative disk disease at the C5-6 and C6-7 levels. Because Sands had two years of conservative treatment, the doctor thought Sands was a reasonable candidate for a two-level disk fusion. That operation was done on April 28, 1997. Healing period benefits were paid from April 28, 1997 through May 27, 1997, at which time they were terminated.

Following the operation, Dr. Purves allowed Sands to return to light duty work on July 15, 1997, and imposed a maximum lifting restriction of thirty-five pounds.

On returning to work on July 16, 1997, Sands again suffered an on-the-job injury. At the time, Sands was still wearing a neck brace from his surgery. The injury occurred when he ducked under a fence to get into a field to look at seed that his employer was raising. While attempting to duck under the fence, Sands fell backwards onto the ground and suffered a low-back injury. At the time of this injury, Sands was working for a different company, Mycogen Seeds, which was a successor in interest to Keltgen Seeds.

Dr. Meylor saw Sands on July 16, 1997, for this latest injury. At the time, Sands was complaining of right hip and leg pain. Dr. Purves also saw Sands after this latest injury. On November 25, 1997, Dr. Purves suspected a problem with the L5-S1 disk and scheduled an MRI.

In the meantime, Dr. Purves sent Sands to Dr. Sherman for additional evaluation of Sands’ right shoulder complaints. Dr. Sherman ordered an MRI, which showed a partial thickness tear of Sands’ right rota-tor cuff. Injections into the shoulder only-provided temporary relief.

■ The MRI for the low-back injury showed a fragment of a sequestrated disk at L4-5. In December 1997 Dr. Purves opined that this was a recurrence of the back problem Sands had suffered in 1991 and that the current low back and right leg symptoms started when Sands was crawling under the fence in July 1997. Dr. Purves operated on Sands’ lumbar spine on December 15, 1997, and found that the sequestrated disk had moved away from the disk space and was free of the spinal column. The back operation was done before the shoulder surgery because of fear that Sands might sustain further damage to his back with movement on the operating table for surgery to his shoulder.

Following the operation, Dr. Purves continued to treat Sands but Sands’ right leg pain was not significantly reduced. Eventually, Dr. Purves referred Sands to a pain clinic. The pain clinic eventually referred Sands to Dr. Patrick Bowman, M.D. to try dorsal column stimulation. The procedure resulted in no significant improvement. Dr. Bowman concluded the only treatment option available to treat the pain was the installation of an intrathecal morphine pump. On February 26, 1999, Dr. Lyal Leibrock, M.D. installed the pump, which he indicated would remain installed for permanent pain control. The pump was installed because of “failed back surgery syndrome.” Dr. Leibrock indicated that Sands was at maximum medical improvement relative to the lumbar spine.

On May 20, 1999, Dr. Sherman operated on Sands’ right shoulder to repair Sands’ right rotator cuff tear, as well as performing an acromioclavicular joint resection and glenohumeral ligament repair. Dr. Sherman put Sands at maximum medical improvement on December 6, 1999, and released him with lifting restrictions. Dr. Sherman determined that Sands had sustained a fifteen percent, whole person impairment as a result of the shoulder injury. He also determined that the surgery was necessary because of the May 16, 1995 incident.

Dr. Meylor opined that Sands’ neck and shoulder injury resulted from the May 16, 1995 incident and that Sands had aggravated a preexisting low back condition as a result of the July 16,1997 incident.

Dr. Purves stated that the July 16, 1997 incident could have aggravated the preexisting condition relating to the herniated disk and led to the need for surgery.

Dr. Meylor asked Dr. Mark Kruse, D.C. to do an impairment evaluation of Sands. Based on that evaluation, Dr. Kruse’s opinion was that Sands’ low-back surgery was made necessary because of the July 16, 1997 incident and that the injury resulting from this incident caused an additional impairment to Sands’ lumbar spine.

Sands was also seen by Dr. Dean Wam-pler, M.D. for an evaluation of his condition. After reviewing Sands’ records, Dr. Wampler opined that Sands’ lumbar spine and right leg condition were not related to the July 16,1997 incident.

Sands’ wife, Patricia, drove to several of his medical appointments when he was unable to drive himself. The parties’ hometown of Le Mars has no taxi service. Patricia also needed to attend some of the appointments to learn how to catheterize her husband and help him with pain management. She lost wages of $1274.88 while attending these appointments.

Sands began receiving social security disability benefits effective December 12, 1997, and has not worked since then. On August 12, 1998, Sands’ employer notified him that it was eliminating his district as well as his current position.

II. Proceedings.

On May 17, 1999, Sands filed a petition concerning his May 16, 1995 injury before the Iowa workers’ compensation commissioner against Mycogen Seeds and Reliance National Indemnity, which is now ACE USA in novation for Reliance National Indemnity. On the same date, Sands also filed a petition concerning his July 16, 1997 injury before the commissioner against Mycogen and Continental Casualty Company. ACE provided Sands benefits for the May 16, 1995 injury, and Continental Casualty provided Sands benefits for his July 16,1997 injury.

On November 19, 1998, Continental Casualty filed a petition for determination of liability and reimbursement of benefits paid pursuant to Iowa Code section 85.21 (1997) against ACE, alleging that ACE was liable for benefits paid by Continental Casualty for Sands’ July 16, 1997 injury.

Following a hearing in which all of the above-cited facts were before a deputy commissioner, the deputy determined that, with respect to the May 16, 1995 injury, Sands had sustained a permanent disability and had sustained a forty percent industrial disability as a result of this injury. (There was no issue as to whether the injury arose out of and in the course of employment.)

The deputy also determined that permanent partial disability payments should commence December 7, 1999, in the amount of $609.07 per week. Additionally, the deputy awarded Sands healing-period benefits from April 28, 1997, through May 27, 1997, and from May 20, 1999, to December 6, 1999. The deputy determined that ACE was responsible for these payments and ordered ACE to reimburse Continental Casualty for any payments it made.

With respect to the injury sustained on July 16, 1997, the deputy found as follows. Sands proved he sustained an injury that arose out of and in the course of his employment. This injury has resulted in Sands being permanently and totally disabled. His permanent total disability benefits, in the amount of $597.12 per week, commence December 11, 1997, and continue as long as he remains permanently and totally disabled. Because he is receiving permanent total disability benefits, there are no healing period benefits.

The deputy awarded as medical expenses Patricia’s lost wages as a result of her need to drive her husband to and from medical appointments, ordered the employer and its insurer to pay unpaid medical expenses, and ordered Continental Casualty to reimburse ACE for benefits ACE paid on this claim. Finally, the deputy denied Sands penalty benefits he sought against Mycogen and ACE due to underpayment of benefits based on an incorrect rate. The deputy denied these benefits because there was a fairly debatable question whether Sands’ bonus income was regular. (The deputy however found that the bonus income should be included for purposes of determining the rate of compensation.)

All parties appealed to the workers’ compensation commissioner. In his decision, the commissioner affirmed all of the deputy’s findings and conclusions except as to the following matters. The deputy awarded healing period benefits from May 20, 1999 to December 6, 1999. The commissioner found that Sands was not entitled to such an award because he was then totally disabled by the second injury. See Iowa Code § 85.34(3) (2001).

Mycogen and ACE argued that they should not have to pay the 200 weeks of permanent partial disability based on Sands’ forty percent industrial disability.

They asserted that a double recovery would result because the deputy also found that Sands suffered a 100% industrial disability, which when combined with the 40% industrial disability allowed Sands a total of 140% industrial disability.

The commissioner agreed with Mycogen and ACE, concluding that the deputy’s award created an overlap of disability benefits. Applying Iowa Code section 85.36(9)(c) (apportionment statute), the commissioner apportioned the disability benefits in such a manner as to eliminate the overlap, resulting in benefits for a 100% industrial disability rather than 140%.

In applying section 85.36(9)(c), the commissioner also disagreed with the deputy’s finding that the commencement date for any permanent partial disability for the May 16, 1995 injury would be December 7, 1999 (the date of maximum medical improvement) based on the parties’ stipulation. Instead, the commissioner determined the permanent partial disability commenced on May 28, 1997, the date that healing period benefits were terminated. In making this determination, the commissioner ignored the parties’ stipulation and the deputy’s finding based on this stipulation.

Finally, the commissioner, contrary to the deputy’s decision, denied Sands’ request for reimbursement for his wife’s lost wages when she was needed to transport Sands to medical appointments and learn nursing care for him.

Sands filed a petition for judicial review in the district court. Mycogen and ACE filed their own petition for judicial review to preserve their argument that Sands should not receive double weekly benefits for permanent partial and total disability in the event apportionment pursuant to Iowa Code section 85.36(9)(c) did not apply. The district court consolidated the petitions and, following a hearing, affirmed the decision of the commissioner.

Sands appealed and Mycogen and ACE cross-appealed.

III. Issues.

On appeal, Sands raises the following issues:

(1) whether the commissioner erred in not applying the stipulated date for commencement of permanent partial disability for the May 16,1995 injury;
(2) whether the commissioner erred by apportioning the disability benefits pursuant to Iowa Code section 85.36(9)(c);
(3) whether the commissioner erred in denying reimbursement of Patricia Sands’ lost wages;
(4) whether the commissioner erred in denying Sands penalty benefits because Mycogen and ACE miscalculated the rate for the May 16, 1995 injury and underpaid those benefits.

Mycogen and ACE state that their cross-appeal was filed to preserve the question whether Sands is entitled to receive 200 weeks of double benefits in the event this court finds the apportionment provision of section 85.36(9)(c) does not apply.

IV. Scope of Review.

Iowa Code chapter 17A governs judicial review of the decisions of the workers’ compensation commissioner. Iowa Code § 86.26. Because the commissioner rendered his decision on May 31, 2002, the 1998 amendments to Iowa Code chapter 17A apply. See Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003).

In exercising its judicial review power, the district court acts in an appellate capacity. Grundmeyer v. Weyerhaeu ser Co., 649 N.W.2d 744, 748 (Iowa 2002). In reviewing the district court’s decision, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. Id. If they are the same, we affirm; otherwise we reverse. Id.

In this case, the issues involve the agency’s interpretation of several statutes, its factual determinations, and its application of law to the facts. As to an agency’s interpretation of the law, the court shall reverse, modify, or grant other appropriate relief from agency action if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:

Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.

Iowa Code § 17A.19(10)(c), (Z).

Here, the commissioner’s decision regarding apportionment of disability benefits, reimbursement of lost wages, and penalty benefits is based upon statutory interpretation. We see nothing in Iowa Code chapter 85 that convinces us that the legislature has delegated any special powers to the agency regarding statutory interpretation in these areas. So such interpretation has not “clearly been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(c). We therefore need not give the agency any deference regarding its interpretation and are free to substitute our judgment de novo for the agency’s interpretation. See Iowa Code § 17A.19(10)(c), (11)(6); see also Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508-10 (Iowa 2003); Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998).

As to the agency’s factual determinations, the court shall also reverse, modify, or grant other appropriate relief from agency action if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is

[bjased upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as'a whole.

Iowa Code § 17A.19(10)(f).

“Substantial evidence” is defined 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 § WA^dOX/Xl).

The phrase “when that record is viewed as a whole” in section 17A.19(10)(f) means

that the adequacy of the evidence in the record before the court to support a particular finding of fact must be judged in light of all the relevant evidence in the record cited by any party that detracts from that finding as well as all of the relevant evidence in the record cited by any party that supports it....

Iowa Code § 17A.19(10)(f)(3).

As to the agency’s factual determinations regarding apportionment, allowing reimbursement of lost wages, and penalty-benefits, such determinations “are clearly vested by a provision of law in the discretion of the agency.” Iowa Code § ÍYAIÍKIO)^). Workers’ compensation cases, such as the one here, are contested cases in which the agency is vested by Iowa Code chapter 85 with the responsibility of determining an employee’s right to benefits. Because the agency is charged with such responsibility, the agency must necessarily make factual findings to determine that right. See Iowa Code § 85.21; Zomer v. West River Farms, Inc., 666 N.W.2d 130, 132-33 (Iowa 2003). We are therefore bound by the agency’s findings of fact if supported by substantial evidence. See Mosher, 671 N.W.2d at 508. We can reverse the agency action regarding its findings of fact only if they are not supported by substantial evidence. Id. By applying the substantial evidence requirement, we are giving “appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(ll)(c).

Finally, given that factual determinations in workers’ compensation cases are “clearly vested by a provision of law in the discretion of the agency,” it follows that application of the law to those facts is likewise “vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(f). In order to determine an employee’s right to benefits, which is the agency’s responsibility, the agency, out of necessity, must apply the law to the facts. An agency’s application of the law to the facts can only be reversed if we determine such an application was “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(m). Applying this “irrational, illogical, or wholly unjustifiable” standard, we are likewise giving “appropriate deference to the view of the agency with respect to particular matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(ll)(c).

With these principles in mind, we consider the issues before us.

V. Analysis.

A. Apportionment and the parties’ stipulation. Our rule on apportionment of benefits limits apportionment to “ ‘those situations where a prior injury or illness, unrelated to the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment-related aggravation.’ ” Celotex Corp. v. Auten, 541 N.W.2d 252, 253 (Iowa 1995) (quoting Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 411 (Iowa 1984)) (emphasis added). Generally, the apportionment rule does not apply to work-related conditions or injuries. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995).

In Celotex, we also recognized the full-responsibility rule: “Apart from statute, in a situation of two successive work-related injuries, ‘the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury.’ ” 541 N.W.2d at 254 (quoting 2 Arthur Larson, The Law of Workmen’s Compensation § 59.00, at 10-492.329 (1994)). “This rule is actually another way of describing our general rule governing apportionment of disability in workers’ compensation proceedings. Absent a statute, we generally do not apportion the disability of two successive work-related injuries.” Excel Corp. v. Smithart, 654 N.W.2d 891, 897 (Iowa 2002) (citing Celotex, 541 N.W.2d at 254).

Iowa Code section 85.36(9)(c) is the only statutory provision dealing with apportionment of benefits. It provides:

In computing the compensation to be paid to any employee who, before the accident for which the employee claims compensation, was disabled and drawing compensation under the provisions of this chapter, the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries which the employee shall have suffered.

Iowa Code § 85.36(9)(c).

The intent of this statute is to prevent overlapping or stacking of disabilities. Excel, 654 N.W.2d at 899-900. For example, in this case we have a 40% permanent partial disability and a 100% permanent disability. Is Sands entitled to 140% disability as the deputy found or just 100% as the commissioner found?

In applying the statute, we employ a two-step analysis. We must first determine whether the statute applies. If we determine the statute applies, we must then decide how to apportion the compensation for the disabilities.

In determining whether the statute applies, we focus our attention on the language “was disabled and drawing compensation under the provisions of this chapter.” Iowa Code § 85.36(9)(c). The statute does not define “disabled,” so we give it its ordinary meaning in the employment context: incapacity to work because of injury. See, e.g., Iowa Code § 85.27 para. 7 (“If, after the third day of incapacity to work following the date of sustaining a compensable injury which does not result in permanent partial disability....”). “[Cjompensation under the provisions of this chapter” in Iowa Code section 85.36(9)(c) includes temporary total and temporary partial disability benefits under Iowa Code section 85.33, permanent partial disability and healing period benefits under Iowa Code section 85.34(1) and (2), and permanent total disability benefits under Iowa Code section 85.34(3).

Thus, if an employee is incapacitated to work because of a compensable injury and is receiving temporary total disability, temporary partial disability, permanent partial disability, healing period, or permanent total disability benefits and again suffers a compensable injury, the statute applies. The statute applies even though the employee is not receiving but is entitled to receive such benefits at the time of the second injury. That is because benefits are retroactive to the date they are due. See Excel, 654 N.W.2d at 899; see also Iowa Code §§ 85.32 (“Except as to injuries resulting in permanent partial disability, compensation shall begin on the fourth day of disability after the injury. If the period of incapacity extends beyond the fourteenth day following the date of injury, then the compensation due during the third week shall be increased by adding thereto an amount equal to three days of compensation.”), .34(1) (healing period benefits begin on the first day of disability after the injury and end when employee returns to work, or it is medically indicated that significant improvement from the injury is not anticipated, or until employee is medically capable of returning to employment substantially similar to employment employee was engaged in at the time of injury, whichever occurs first), .34(2) (compensation for permanent partial disability begins at termination of healing period benefits).

As mentioned, once a determination is made that the statute applies, the second step in the analysis requires a determination as to how the compensation for the disabilities is to be apportioned. This second step of the analysis focuses on the following language: “the compensation for each subsequent injury shall be apportioned according to the proportion of disability caused by the respective injuries which the employee shall have suffered.”. Iowa Code § 85.36(9)(c). “Disability” in this language includes temporary total and temporary partial disabilities, permanent partial disability, and permanent disability. Any combination of these disabilities would require apportionment.

With these principles in mind, we turn to that portion of the commissioner’s decision in which he sets out his reasoning as to why the apportionment statute applies:

The 1997 injury occurred at a time when claimant was permanently partially disabled from the 1995 injury and entitled to be receiving permanent partial disability compensation from the 1995 injury under the provisions of section 85.34(2)(%). The healing period ended May 27, 1997, and under section 85.34(2) permanent partial disability compensation was due commencing May 28, 1997. He was not actually being paid compensation for the disability at that time, however, because the employer was not complying with the law. Statutes are to be construed based upon the assumption that other pertinent laws are being followed. Accordingly, applicability of section 85.36(9)(c) must be determined as if compensation for permanent partial disability compensation from the 1995 injury were being paid when due, namely at the time the 1997 injury occurred. The fact that it was not actually being paid is a fortuitous event that should have no legal impact on the ultimate outcome.

We agree with this reasoning, and therefore agree the apportionment statute applied. As the commissioner correctly points out, Sands was entitled to permanent partial disability when the initial healing period ended on May 27, 1997. And even though Sands was not receiving such compensation at the time, he is considered to have been receiving such compensation because benefits are retroactive to the date he was injured. See Excel, 654 N.W.2d at 899. Therefore, when Sands was injured a second time on July 16,1997, he was- “receiving” compensation. Even if the deputy was correct that there was an additional healing period in 1999 for the first injury because of the surgery to the shoulder, that fact does not change the employer’s obligation to pay permanent partial disability in the interim.

The parties stipulated that the permanent partial disability commenced on December 7, 1999. The commissioner correctly disregarded this stipulation because the statute requires permanent partial disability to begin “at the termination of the healing period.” See Iowa Code § 85.34(2). The deputy and the commissioner found that the initial healing period ended on May 27, 1997. Therefore, by law, permanent partial disability commenced on May 28,1997.

That leaves for our consideration the second step in the analysis — how to apportion the compensation for the disabilities. Sands was entitled to 200 weeks of permanent partial disability beginning May 27, 1997. He was also entitled to permanent total disability commencing December 11, 1997. Therefore on December 11, 1997, Sands was entitled to both permanent partial disability and permanent total disability, resulting in overlapping disabilities. We note that Sands did not challenge the commissioner’s method of apportionment. Rather, he only challenged the commissioner’s determination that the apportionment statute applied. Any attempt to attack the commissioner’s method of apportionment is now too late. See Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 196 (Iowa 2003) (refusing to consider an issue raised for the first time on appeal); Iowa R. Civ. P. 1.1603(3).

For all these reasons, we conclude the commissioner correctly determined the apportionment statute applied. Accordingly, we conclude the district court correctly affirmed the commissioner’s decision on this issue. Because of the conclusion we reach on the apportionment issue, we do not address the cross-appeal.

B. Spouse’s lost wages. On this issue the commissioner stated:

Although subsection 7 of section 85.27 provides for reimbursement of lost wages, the section speaks in terms of wages lost by the employee. There is no provision for wages lost by another person. Because of this, there is no statutory authority for this agency to award lost wages to claimant’s spouse for her time lost from work driving claimant to his medical appointments.

We agree with Sands that, contrary to the commissioner’s determination, there indeed is statutory authority for payment of the wages in question. The first paragraph of Iowa Code section 85.27 provides:

The employer, for all injuries compen-sable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, po-diatric, physical rehabilitation, nursing, ambulance and hospital services and ■ supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services.

Iowa Code § 85.27 para. 1.

Although there is no Iowa case authority on point, we find persuasive a Florida case that decided the precise issue under a similar statute. See Mills v. Walderir-Sparkman, Inc., 493 So.2d 64 (Fla.Dist.Ct. App.1986). The Florida statute provided:

“An injured employee is entitled, as a part of his remedial treatment, care, and attendance, to reasonable actual cost of transportation to and from the doctor’s office, hospital, or other places of treatment by the most economical means of transportation available and suitable in the individual case.”

Id. at 65 (quoting Fla. Stat. § 440.13(4) (1982)).

In Mills, the claimant’s husband drove her to her medical appointments, and she sought reimbursement for mileage and her husband’s lost wages. Id. The commissioner denied the entire claim. Id. The court concluded the statute “clearly entitles a claimant to reimbursement of ‘reasonable actual cost of transportation’ ” and remanded the case so transportation costs could be determined under the following conditions. Id. The claimant has to prove the “mode of transportation taken was reasonable and economical under the circumstances, taking into consideration the medical condition of the claimant.” Id. Additionally, the claimant must produce evidence regarding the cost of the chosen manner of travel compared to the cost of “other reasonably available means of transportation.” Id. At this point, the burden shifts to “the employer and carrier to supply evidence that a more reasonable and economical transportation method exists, of which claimant could have been aware, but chose not to take advantage of.” Id. at 65-66. The commissioner then weighs the evidence presented and determines how much the claimant should be reimbursed. Id. at 66.

The court summarized its ruling as follows:

Therefore, lost wages can qualify as a reimbursable cost but only if the manner of travel was the most economical reasonable way to be transported, the amount was reasonable as to the quality and quantity of services rendered, and the wages were actually lost by the person providing the transportation.

Id.

We think this interpretation and procedure are reasonable for our purposes, especially since we construe the workers’ compensation statute in favor of the employee. Stone Container Corp. v. Castle, 657 N.W.2d 485, 489, 492 (Iowa 2003) (concluding a laptop computer qualified as reasonable medical appliance for a catastrophically injured employee for whom the computer provided “access to the outside world”). Accordingly, we hold that under section 85.27, an employee may be reimbursed for wages lost by the employee’s spouse because of the spouse’s absence from work when providing the employee with transportation to obtain authorized medical treatment. The lost wages are allowed under the language “reasonably necessary transportation expenses incurred for such services” in paragraph 1 of section 85.27. Because the commissioner incorrectly interpreted section 85.27, we must reverse the district court judgment affirming the commissioner’s decision on this issue. Our adoption of the procedure set out in Mills requires us to remand the case to allow the parties to present the necessary evidence called for by the procedure and allow the commissioner to rule on that evidence.

C. Penalty benefits. Sands contends he is entitled to penalty benefits against Mycogen and ACE concerning his first injury because he was underpaid benefits based on an incorrect rate due to his bonuses not being included in his wages.

Iowa Code section 86.13 dealing with penalty benefits provides:

If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the workers’ compensation commissioner shall award benefits in addition to those benefits payable under this chapter, or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.

Iowa Code § 86.13 para. 4.

Pursuant to this statute, an employee “is entitled to penalty benefits if there has been a delay in payment unless the employer proves a reasonable cause or excuse.” Christensen v. Snap-on Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996).

A reasonable 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. A “reasonable basis” for denial of the claim exists if the claim is “fairly debatable.”

Id. Whether the issue was fairly debatable turns on whether there was a factual dispute that, if resolved in favor of the employer and its insurer, would have supported their denial of compensability. Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 199 (Iowa 2001).

Penalty benefits were consistently denied by the deputy, the commissioner, and the district court on the ground that the claim was fairly debatable. Mycogen and ACE contend here, as they did in proceedings before all three tribunals, that they indeed had a reasonable excuse in not including the bonuses in calculating Sands’ weekly compensation rate. That excuse, they argue, is that Sands’ bonuses were irregular.

Iowa Code section 85.61(3) provides that “irregular bonuses” are not to be included in the gross earnings for purposes of calculating a worker’s weekly compensation rate. The commissioner ruled as follows on this issue:

[Mycogen and ACE] basically had two arguments as to why the bonuses were not regular. First, that they were not paid every year claimant worked for the employer. Second, that the bonuses were irregular because they varied in amount. Although neither of these arguments has prevailed on appeal, they were legitimate arguments [Mycogen and ACE] were entitled to make and therefore the inclusion of the bonus amounts in claimant’s rate was fairly debatable. Benefits were voluntarily paid, but at a rate that did not include the disputed bonuses. It was reasonable to rely on Noel v. Rolscreen [Co.], 475 N.W.2d 666 (Iowa Ct.App.1991). A penalty is not appropriate.

We agree with the commissioner’s determination. In Noel, the court of appeals held that irregular bonuses are not considered as part of an employee’s gross earnings as defined in Iowa Code section 85.36 (1989). 475 N.W.2d at 668. The court rejected the employee’s argument that Iowa Code section 85.61(12), predecessor to Iowa Code section 85.61(3), supported her position, concluding that the bonus in question was not a regular bonus because it varied in amount, was dependent on several conditions for amount, and was not fixed in terms of entitlement or amount until late in the fiscal year. Id. at 667-68. The bonuses here varied in amount, were dependent on several conditions for amount, and were not fixed in terms of entitlement or amount until late in the year.

Accordingly, there was substantial evidence to support the commissioner’s determination. In reaching the same conclusion, the district court correctly affirmed the commissioner’s decision on this issue.

VI. Disposition.

In sum, we conclude the commissioner correctly determined the apportionment statute applied and that there was substantial evidence to support his decision regarding penalty benefits. We reject Sands’ contention that the commissioner erroneously rejected the parties’ stipulation. Accordingly, we affirm the district court judgment affirming the commissioner’s decision on these issues.

We conclude the commissioner erroneously concluded that there was no statutory authority for the lost wages claim. We therefore reverse the district court judgment affirming the commissioner’s decision on this issue. We remand the case to the district court for remand to the commissioner to allow further proceeding as spelled out in this opinion regarding the lost wages claim.

Because of the result we reach on the apportionment issue, we do not address the cross-appeal.

We have carefully considered all of the issues raised. Those we have not addressed either lack merit or were not properly preserved.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    CITIZENS FOR RESPONSIBLE CHOICES, an Iowa Nonprofit Corporation, Appellant, v. CITY OF SHENANDOAH and City of Clarinda, Appellees.
    No. 03-1437.
    Supreme Court of Iowa.
    Sept. 1, 2004.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, a P.C., Des Moines, and Frank Murray Smith of Frank M. Smith Law Office, Des Moines, for appellant.
    Andrew R. Anderson and Chad R. Anderson of Faegre <⅞ Benson LLP, Des Moines, and Robert E. Norris, Shenandoah, for appellees.
   CARTER, Justice.

Citizens for Responsible Choices (Citizens), a nonprofit corporation whose members object to a public improvement project that includes a recreational lake and public park, appeal from an order granting a motion to dismiss its claims for declaratory relief. The appellees are the City of Shenandoah and the City of Clarinda (the cities).

Citizens maintains that it has a valid claim for declaring the proposed project unlawful on three separate theories: (1) The proposed revenue bond financing of the project is in violation of Iowa Code chapter 384 (2003); (2) the project, as proposed, will be located closer than seventy miles to a border of the state in violation of Iowa Code section 461A.77; and (3) the proposed project is a misuse of a designated agricultural area contrary to Iowa Code section 352.6. The district court sustained the cities’ motion to dismiss these claims on both ripeness and standing grounds. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Citizens’ amended and substituted petition alleges the following facts. The cities propose to construct two projects: a water treatment plant and distribution system, and a recreational lake and public park. Land owned or rented by members of Citizens will be acquired by eminent domain for purposes of those projects. The cities propose to pay for the projects, including the recreational lake and public park portion thereof, through the issuance of revenue bonds financed by the users of municipal water utilities.

Citizens asserts in its petition that use of revenue bond financing for the recreational lake and public park is not authorized by Iowa Code section 384.80 and following sections in that chapter. That pleading also asserts that, because the proposed water recreational area will be closer than seventy miles to a border of the state, it would violate the provisions of Iowa Code section 461A.77. Finally, it is alleged that Iowa Code section 352.6 precludes the use of their members’ lands for nonagricultural purposes because those lands have been declared to be an agricultural area.

I. Alleged Procedural Irregularities.

Before discussing the merits of the district court’s ruling, Citizens complains of what it asserts were procedural irregularities therein.

A. Lack of court approval for amendment to petition. The first irregularity that is suggested is the fact that the cities had answered Citizens’ original petition and filed no motions to assail that pleading. When Citizens thereafter filed and served a motion for leave to amend its petition, the cities filed a document stating “Defendants do not resist Plaintiffs’ Motion for Leave to Amend.” They then moved to dismiss the amended and substituted petition, although no ruling had yet been made by the court allowing the amendment. In fact, there is no such ruling anywhere in the record, and no amended petition was served and filed other than as an exhibit to the motion for leave to amend.

A hearing was held on the motion to dismiss the amended and substituted petition. Citizens made no objection to considering that motion on the ground that the amended petition had not been allowed by the court or that the amended petition had not been independently served and filed as such. We are satisfied that the amended petition was accepted by both parties and the court as if it had been substituted for the original petition. Consequently, Citizens has waived any right to now complain of a lack of a court order approving the amended petition.

B. Failure to hold an eviden-tiary hearing. Citizens urges that motions challenging the jurisdiction of the court require an evidentiary showing in support thereof. Based on this premise, it asserts that the district court improperly granted the cities’ motion on jurisdictional, ripeness, or standing grounds. In considering former rule of civil procedure 104(a), currently Iowa Rule of Civil Procedure 1.421(1), we recognized that “affidavits and other evidentiary showings” could be used in support of and in resistance to “preanswer jurisdictional challenges.” Moyer v. City of Des Moines, 505 N.W.2d 191, 193 n. 3 (Iowa 1993). That does not mean, however, that an evidentiary hearing is required in all instances to sustain a motion based on subject matter jurisdiction, ripeness, or standing. Averments in a pleading are conclusive admissions of the facts pleaded. Sheerin v. Holin Co., 380 N.W.2d 415, 417 (Iowa 1986); Grantham v. Potthoff-Rosene Co., 257 Iowa 224, 230, 131 N.W.2d 256, 259 (1964). Consequently, such motions may be granted if the grounds thereof are established by the allegations of a plaintiffs petition. The district court properly considered the motion to dismiss based on the allegations of the petition and, in addition, on the standing issue, on the concessions made in Citizens’ response to the motion.

II. Ripeness.

One of the grounds on which the district court sustained the cities’ motion to dismiss was a determination that the case was not ripe for adjudication. The court ruled that it was not certain that the projects would take place. In challenging this conclusion, Citizens argues that its petition alleges these projects are well on their way, application for public funding has been made, and partial public financing has already been obtained. It urges that the mere designation of its members’ lands for inclusion in the project has caused them economic harm. The cities respond to these arguments by urging that, as shown by Citizens’ own petition, many contingencies exist that might preclude fruition of these projects.

Iowa Rule of Civil Procedure 1.1102 provides:

Any person interested in an oral or written contract, or a will, or whose rights, status or other legal relations aré affected by any statute, municipal ordinance, rule, regulation, contract or franchise, may have any question of the construction or validity thereof or arising thereunder determined, and obtain a declaration of rights, status or legal relations thereunder.

In applying this rule, we have recognized that “[o]ne of the most troublesome questions in this field of law is, when does a justiciable controversy arise, as distinguished from a mere abstract question?” Wesselink v. State Dep’t of Health, 248 Iowa 639, 643, 80 N.W.2d 484, 486 (1957). In answering that question, we have said:

The basic question is said to be whether the facts alleged show there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant a declaratory judgment.

Katz Inv. Co. v. Lynch, 242 Iowa 640, 648, 47 N.W.2d 800, 805 (1951).

We search, then, for an “antagonistic assertion and denial of right” and, if found and other proper allegations appear, the court may then entertain the question of whether the plaintiffs’ claim is proper and justified.

Wesselink, 248 Iowa at 644, 80 N.W.2d at 487.

Citizens’ petition alleges that the cities have stated in an application to the state for financial assistance that $14,576,000 will be raised for the recreational lake project by the sale of revenue bonds. The petition further alleges that “the revenue bonds defendants [the cities] intend to sell will be paid for by their respective water utilities.” (Emphasis added.) The issuance of any revenue bonds would require a public hearing before the governing bodies of the cities at which residents of the cities or persons owning property therein could object to the proposal. Iowa Code § 384.83(2)(a). Thereafter, the governing bodies must “take additional action for the issuance of the bonds or abandon the proposal to issue bonds.” Id. We are convinced that for purposes of a declaratory judgment there is no justiciable controversy prior to the final decision of the governing bodies to issue the revenue bonds.

Citizens urges that it should not be required to await the public hearing and counsel vote before challenging the project because its members are not residents or property owners within the cities and thus are ineligible to file objections under section 384.83(2)(a). This circumstance does not alter the contingent status of the revenue-bond proposal, a circumstance that renders Citizens’ challenge premature and lacking in ripeness.

A similar conclusion as to lack of ripeness exists with respect to Citizens’ attempt to obtain an adjudication that the proposed project would violate the provisions of Iowa Code section 461A.77 because it includes a proposed water recreational area that will be closer than seventy miles to a border of the state. Section 461A.77 is located among a group of statutes pertaining to the creation of water recreational areas by municipalities. The provision prohibiting the location of such projects within seventy miles of the border of another state refers to “water recreational areas ... established hereunder.” (Emphasis added.) We interpret this to mean it applies to water recreational areas established in accordance with Iowa Code section 461A.59 and other statutes contained in that division of the Code. It is clearly stated, however, in section 461A.78 that “[t]his division [of the Code] shall not be the exclusive method for establishing a water recreational area.” Nothing in Citizens’ petition asserts that steps have been undertaken by the cities to establish a water recreational area under sections 461A.59 and following. Unless and until that is done, we are convinced there is no justiciable controversy with regard to the applicability of section 461A.77.

III. Standing.

As an alternative to its adjudication based on lack of ripeness, the district court concluded that Citizens lacked standing to challenge the issuance of revenue bonds to finance this project. That ruling was premised on Citizens’ admission in its resistance to the motion to dismiss that none of its members were taxpayers or utilities customers of either of the appellee cities. Citizens responds by contending that its members will be damaged by the project that the revenue bonds will make possible.

“ ‘Standing to sue’ has been defined to mean that a party must have ‘sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.’ ” Birkhofer ex rel. Johannsen v. Brammeier, 610 N.W.2d 844, 847 (Iowa 2000) (quoting Black’s Law Dictionary 1405 (6th ed.1990)). Our cases have determined that a complaining party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected. Id.; In re Marriage of Mitchell, 531 N.W.2d 132, 134 (Iowa 1995); Hawkeye Bancorporation v. Iowa College Aid Comm’n, 360 N.W.2d 798, 801 (Iowa 1985). In the Hawkeye Bancorporation case, we emphasized that having a legal interest in the litigation and being injuriously affected are separate requirements for standing, both of which must be satisfied. 360 N.W.2d at 801.

Whether litigants have standing does not depend on the legal merit of their claims, but rather whether, if the wrong alleged produces a legally cognizable injury, they are among those who have sustained it. Ioiua Civil Liberties Union v. Critelli 244 N.W.2d 564, 567 (Iowa 1976). We are satisfied that these principles support the district court’s conclusion that Citizens lacked standing to challenge the issuance of the revenue bonds. The bonds would produce no adverse effect on Citizens’ members. Their injury, if any, would come as a result of a project that is financed by the bonds. That nexus does not give Citizens standing to sue on this issue.

IV. Uses Limited by Designated Agricultural Areas.

The district court’s decision contained no special mention of Citizens’ claims based on uses prohibited in a designated agricultural area by Iowa Code section 352.6. We are satisfied that Citizens’ claim based on that statute is not ripe for adjudication based on the same considerations that were discussed in Division II of this opinion. Moreover, because the cities urged in their motion to dismiss that this allegation fails to state a claim upon which relief may be granted, we observe that our decision in In re Condemnation of Certain Rights, 666 N.W.2d 137, 139-40 (Iowa 2003), forecloses the adjudication that Citizens has requested with regard to that statute.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

      . Under rule 1.421(1), preanswer jurisdictional challenges include both lack of personal jurisdiction and lack of subject matter jurisdiction. While lack of ripeness or standing are technically not matters of subject matter jurisdiction, they are closely related doctrines. We have previously determined that the ripeness of a petition for declaratory judgment may be determined on a preanswer motion to dismiss. Gospel Assembly Church v. Iowa Dep’t of Revenue, 368 N.W.2d 158, 159 (Iowa 1985). We are satisfied that standing may also be challenged in such a motion, although in the present case this matter was raised by the district court sua sponte.

      . The case of Comes v. City of Atlantic, 601 N.W.2d 93 (Iowa 1999), relied on by Citizens, does not aid its claim of justiciability. Comes was not a declaratory judgment action. It was an attempt to enjoin the condemnation of the plaintiffs property for airport expansion until such time as all necessary permits and approvals for the project had been obtained. In reversing the district court’s issuance of an injunction against condemnation until final approval of the project, we recognized that land may be rightfully acquired by eminent domain for anticipated future uses. The only application of that case to the present dispute would be as an aid to the cities in seeking condemnation of the lands of Citizens’ members in advance of the final approval of its project. It does not support Citizens’ right to challenge the project at this stage of its formulation.

      . This admission was made for purposes of avoiding the cities' claim that Citizens had failed to exhaust an administrative remedy available with respect to the issuance of the revenue bonds. That remedy is only available to residents of the cities and persons owning property therein.


text:
    Marlys HANSEN and Tom Hansen, Appellants, v. CENTRAL IOWA HOSPITAL CORPORATION, d/b/a Iowa Methodist Medical Center, Appellee.
    No. 03-0626.
    Supreme Court of Iowa.
    Sept. 1, 2004.
    Rehearing Denied Sept. 21, 2004.

      Jerry Crawford and Jim Quilty, Des Moines, for appellants.
    Thomas A. Finley, Connie Diekema, and Tamara K. Hackmann of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaff-ney, P.C., Des Moines, for appellee.
   LAVORATO, Chief Justice.

In this medical negligence case, Marlys Hansen sued Central Iowa Hospital Corporation, d/b/a Iowa Methodist Medical Center (IMMC), for injuries and damages she allegedly received in a fall while a patient at the hospital. Her husband, Tom Hansen, joined in the suit, claiming loss of consortium. The district court disallowed testimony from Marlys’s treating physician because the Hansens did not designate him as an expert pursuant to Iowa Code section 668.11 (2003). A jury found IMMC negligent but denied any damages because it also found that such negligence was not a proximate cause of the fall and the Han-sens’ damages. The district court thereafter denied the Hansens’ motion for new trial. The Hansens appealed, contending the district court abused its discretion in excluding the physician’s testimony and in denying their motion for new trial.

We transferred the case to the court of appeals, and that court affirmed. We granted the Hansens’ application for further review and now vacate the court of appeals decision and reverse the district court judgment. We remand the case for a new trial.

I. Background Facts and Proceedings.

On June 1, 1999, Marlys was hospitalized at IMMC because of back pain, a condition of long duration. Because Mar-lys was unstable on her feet and had a history of falls due to her back condition, IMMC placed her on “fall precautions.” “Fall precautions” meant that while Mar-lys was in the hospital, she should not get up without assistance, her bed side rails should be up, and her call light should be within reach. However, during the night of June 5, hospital staff placed a commode next to Marlys’s bed and told her to use it for her restroom needs throughout the night.

During the night, Marlys tried to go from her bed to the commode. While attempting to get to the commode, Marlys fell because the bed rolled. The wheels on the bed were not locked. When she tried to get up, she fell a second time.

On June 9 Marlys was discharged from the hospital. Once at home, she felt pain that was different from any pain she had previously experienced. The pain did not subside. She reported increased pain to her physical therapist. Her pain became so intolerable that she quit her job.

After the 1999 hospitalization, Marlys fell on other occasions. Some of those falls required her to seek medical treatment.

Dr. Kenneth Pollack, an anesthesiologist specializing in chronic pain problems, surgically implanted a morphine pump into Marlys’s back. Even with the morphine pump, Marlys has continued to have pain.

On June 1, 2001, Marlys sued IMMC and Dr. Daniel McGuire, alleging medical negligence resulting in the falls from which Marlys sustained injuries. Marlys’s husband, Tom, joined in the suit for loss of consortium. A scheduling order dated October 8 established December 24 as the deadline for plaintiffs to designate expert witnesses.

On December 21 the Hansens filed a designation of experts, naming Jane Fleming, R.N. as an expert who would “be called to testify regarding standard of care, breach and causation.” They reserved the right to call additional witnesses. The Hansens also identified an accountant who would be called to testify regarding economic damages.

On December 26 the Hansens moved to extend the time to designate medical experts. On January 31, 2002, the Hansens dismissed Dr. McGuire from the suit without prejudice. On February 1 the Han-sens withdrew their motion to extend the time to designate medical experts, citing the dismissal of Dr. McGuire from the case.

On April 19 IMMC filed its designation of expert witnesses. IMMC designated all of Marlys’s treating health care providers as potential witnesses concerning causation and their diagnosis and treatment of her.

On November 26 the Hansens moved for leave to substitute Sandra R. Willems-Stewart, R.N., in lieu of Jane Fleming, R.N. The district court granted the motion.

On January 14, 2003, the Hansens filed what they termed a compliance with Iowa Rule of Civil Procedure 1.508 (discovery of experts). In this document they stated:

COMES NOW the Plaintiffs, Marlys Hansen and Tom Hansen, and for compliance with Iowa Rule of Civil Procedure 1.508 stateQ to the Court as follows:
1. Dr. Kenneth Pollack has treated Plaintiff Marlys Hansen with regard to chronic pain management. Based on a review of the records, and his November 25, 2002 deposition, it is anticipated that Dr. Pollack may be .called to testify regarding the plaintiffs medical condition, as well as causation and damage issues.
2. Based on a review of the records and her January 13, 2003 deposition, Sandra Willems-Stewart, R.N. may be called to testify regarding standards of nursing care.

On January 21 IMMC moved in limine to prevent the Hansens from using physicians as expert witnesses who were not properly designated as such. IMMC asserted that the Hansens were attempting to use a treating doctor to give opinions on causation. On the same day, IMMC moved to strike Dr. Pollack as an expert witness on the grounds that Dr. Pollack was not designated as an expert witness who would provide causation testimony as required by Iowa Code section 668.11. In support of its motion to strike, IMMC cited Cox v. Jones, 470 N.W.2d 28 (Iowa 1991).

On February 3 the Hansens filed a resistance to IMMC’s motion in limine and reply in opposition to its motion to strike. They argued they were not required to designate Dr. Pollack as an expert pursuant to section 668.11 because he was a treating physician. They cited Carson v. Webb, 486 N.W.2d 278 (Iowa 1992), in support of their position.

On February 10, just before the jury trial was to start, the district court sustained IMMC’s motion to strike Dr. Pollack’s testimony on causation. It did so because the Hansens had failed to designate Dr. Pollack as an expert pursuant to section 668.11. Before the court’s ruling, the Hansens argued that this court in Carson v. Webb had indicated that when a treating physician has formed an opinion in the course of the physician’s treatment, the physician need not be designated as an expert as required by Iowa Code section 668.11. During the trial, the Hansens made an offer of proof of Dr. Pollack’s testimony on causation, which the district court denied because the Hansens had failed to designate him as an expert pursuant to section 668.11.

Sandra Willems-Stewart, R.N., the Han-sens’ expert, testified that IMMC breached nursing standards of care. She testified that “[mjaking sure that the wheels on a bed are in the locked position would be one of an expected standard of care for a patient who is at risk for falls.”

On February 14 the jury returned a verdict, finding IMMC negligent. However, the jury also found that IMMC’s negligence was not a proximate cause of any damage to the Hansens.

The district court denied the Hansens’ motion for new trial in which they contended that, among other things, the district court erred in excluding Dr. Pollack’s testimony on causation. In denying the motion, the court reaffirmed its earlier decision to exclude Dr. Pollack’s testimony, because the Hansens had failed to designate him as an expert pursuant to section 668.11. The court also noted that Dr. Pollack’s testimony was insufficient on causation because he did not state his opinion in terms of “a medical degree of certainty.”

The Hansens appealed; we transferred the case to the court of appeals, which affirmed.

II. Issues.

On further review, we consider two issues. First, did the district court abuse its discretion when it excluded the testimony of a treating physician on the question of causation? Second, if so, did such denial deprive the Hansens of a fair trial thereby entitling them to a new trial?

III. Scope of Review.

To the extent that we are required to interpret Iowa Code section 668.11, our review is for correction of errors at law. In re Det. of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003) (review of a district court’s construction and interpretation of a statute is for correction of errors at law). On the question of whether the district court properly exercised its discretion in excluding Dr. Pollack’s testimony, our review is for abuse of discretion. Bell v. Cmty. Ambulance Serv. Agency, 579 N.W.2d 330, 338 (Iowa 1998) (review of exclusion of expert testimony is for abuse of discretion).

Our review of rulings on motions for new trial depends on the grounds for new trial asserted in the motion and ruled upon by the district court. Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). If the motion and the ruling are based on a discretionary ground, we review the ruling for abuse of discretion. Id. If the motion and ruling are based on a legal issue, our review is for correction of errors at law. Id. at 696-97. Here, the motion and ruling were based on a discretionary ground. See Iowa R. Civ. P. 1.1004(1). Our review is therefore for abuse of discretion.

IV. Exclusion of the Expert Testimony.

As mentioned, the district court excluded Dr. Pollack’s testimony on causation because the Hansens failed to designate him as an expert witness in accordance with Iowa Code section 668.11. In its ruling on the Hansens’ motion for new trial, the court in addition found the doctor’s opinion on causation to be “insufficient to be admissible” because the opinion was not “expressed to a medical degree of certainty.”

A. Iowa Code section 668.11. This provision provides:

1.A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert’s name, qualifications and the purpose for calling the expert within the following time period:
a. The plaintiff within one hundred eighty days of the defendant’s answer unless the court for good cause not ex parte extends the time of disclosure.
b. The defendant within ninety days of plaintiffs certification.
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert’s testimony is given by the court for good cause shown.
3. This section does not apply to court appointed experts or to rebuttal experts called with the approval of the court.

Iowa Code § 668.11.

It is uncontroverted that the Hansens did not designate Dr. Pollack as their expert on causation within one hundred eighty days of IMMC’s answer and offered no good cause to extend the time. The Hansens contend they were not required to do this because Dr. Pollack formulated all of his opinions about causation during his treatment of Marlys and not in anticipation of litigation. As such, the Hansens argue, Dr. Pollack’s testimony on causation clearly falls within this court’s interpretation of section 668.11 as stated in Carson v. Webb, 486 N.W.2d 278 (Iowa 1992).

Not surprising, IMMC contends otherwise. To support its position, IMMC relies heavily on this court’s decision in Cox v. Jones, 470 N.W.2d 23 (Iowa 1991). In Cox, a medical malpractice case, the district court excluded the testimony of a treating physician on the standard of care because of the plaintiffs’ failure to designate the physician as an expert within the time frame of section 668.11. 470 N.W.2d at 25. In affirming the decision, we held that a treating physician must be designated as an expert pursuant to section 668.11 if the physician is to give opinions on reasonable standards of care and causation. Id.

A year later in Carson v. Webb, we dispelled any notion that a treating physi-dan’s opinions on causation would automatically mean that the treating physician would have to be designated under section 668.11. 486 N.W.2d at 280-81. In that case, the district court excluded opinion evidence from treating physicians that could not be the subject of lay testimony because the plaintiff had failed to designate those physicians as expert witnesses as provided in Iowa Rule of Civil Procedure 125(c) (now 1.508) (requiring disclosure of expert witness no less than thirty days before trial; noncompliance with this provision permits district court in its discretion to exclude or limit the testimony of such witness). Id. at 280.

The plaintiffs contended, and we agreed, that the district court’s ruling was overly restrictive. Id. In reaching this conclusion, we relied on Day v. McIlrath, 469 N.W.2d 676 (Iowa 1991) (per curiam).

In Day, a personal injury action filed on behalf of a minor, the defendant propounded an interrogatory to the plaintiffs, asking them to identify all expert witnesses to be called at trial and to state each expert’s subject matter of testimony, qualifications, opinions, and mental impressions. 469 N.W.2d at 677. The plaintiffs objected to this interrogatory insofar as it applied to the minor plaintiffs treating physicians. Id. In support of their objection, the plaintiffs asserted that the testimony of a treating physician is not discoverable under rule 125 because the treating physician’s mental impressions and opinions were not “ ‘acquired or developed in anticipation of litigation or for trial.’ ” Id. The district court disagreed and directed the plaintiffs to answer the interrogatories with regard to treating physicians, as well as other experts. Id. We granted the plaintiffs’ application for interlocutory appeal challenging the district court order. Id. We reversed, first noting that rule 125 provides as follows:

“[Djiscovery of facts known, mental impressions, and opinions held by an expert whom the other party expects to call as a witness at trial, otherwise discoverable under the provisions of R.C.P. 122”a” and acquired or developed in anticipation of litigation for trial may be obtained [in a specified manner].
Nothing in this rule shall be construed to preclude a witness from testifying as to (1) knowledge of the facts obtained by the witness prior to being retained as an expert or (2) mental impressions or opinions formed by the witness which are based on such knowledge.”

Id. (quoting Iowa R. Civ. P. 125) (alterations in original).

We then interpreted this language as follows:

The question raised here is whether the factual knowledge, mental impressions and opinions of a treating physician were “acquired or developed in anticipation of litigation or for trial,” thereby requiring rule 125 disclosure with regard to a treating physician. We answer this question in the negative. A treating physician ordinarily learns facts in a case, and forms mental impressions or opinions, substantially before he or she is retained as an expert witness, and often before the parties themselves anticipate litigation. We believe a treating physician ordinarily focuses, while treating a patient, on purely medical questions rather than on the sorts of partially legal questions (such as causation or percentage of disability) which may become paramount in the context of a lawsuit.

Id. Relying on this language from Day, we said in Carson,

Applying our observation in Day to the present facts, we believe that the district court erred in concluding that plaintiffs failure to disclose her treating physicians in interrogatory answers required exclusion of all opinion evidence that could not be the subject of lay testimony. Rather, the paramount criterion is whether this evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.

486 N.W.2d at 280-81.

We then took the opportunity in Carson to point out that our view of rule 125 as explained in the above quote was not inconsistent with our interpretation of section 668.11 in Cox. Id. at 281. In support of this observation, we noted that the expert opinion testimony excluded in Cox concerned reasonable standards of medical care and causation. Id. Reasonable standards of medical care under the facts in Cox were not, we stressed, a matter for which the physician was required to formulate an opinion in treating a patient. Id. But more important, we also stressed that the element of causation was not even involved in Cox. Id. So what we said in Cox on causation was dictum.

Finally, in Carson, we had this to say about our discussion of “causation” in Cox and in Day:

We do not believe, however, that the language concerning expert opinion of “causation” in Cox (with respect to section 668.11) or in Day (with respect to rule 125) was meant in either case to establish that all expert opinions of treating physicians as to causation are matters for which disclosure is required under the statute or rule. Some conclusions concerning causation relate directly to the treatment of a patient and are thus outside the scope of section 668.11 or rule 125.

Id. n. 3. Lest there be any question that this language is merely dictum as to cases arising under section 668.11, we adopt this reasoning for section 668.11 cases and more specifically this case.

Carson makes clear that disclosure under section 668.11 may be required when a treating physician gives an opinion about reasonable standards of medical care. This is because the physician ordinarily is not required to formulate such an opinion in order to treat the patient. To that extent, Cox is correct in stating that an opposing party should therefore be able to expect that a treating physician’s testimony will not include opinions on reasonable standards of care. Cox, 470 N.W.2d at 25. That was the rationale in Cox for holding that physicians who give such opinions should be within the ambit of section 668.11. Id.

However, as Carson points out, that is not the case with respect to causation because some conclusions concerning causation relate directly to the treatment of a patient and for that reason are outside the scope of section 668.11. 486 N.W.2d at 281 n. 3. Therefore,

the paramount criterion is whether this evidence, irrespective of whether technically expert opinion testimony, relates to facts and opinions arrived at by a physician in treating a patient or whether it represents expert opinion testimony formulated for purposes of issues in pending or anticipated litigation.

Id. at 281. This “paramount criterion” was more fully explored in the context of rule 125 in Morris-Rosdail v. Schechinger, 576 N.W.2d 609 (Iowa Ct.App.1998).

In Morris-Rosdail, a personal injury action, the district court granted a defense motion to exclude testimony from two treating doctors regarding the plaintiffs need for future surgery and permanent impairment. 576 N.W.2d at 610. The district court granted the motion because the plaintiff had failed to disclose the doctors’ opinions in response to the defendant’s interrogatory. Id. at 611. The court of appeals first noted that rule 125 distinguishes between facts and opinions of experts derived prior to being retained as experts and those acquired or developed in anticipation of litigation or for trial. Id. at 611-12. The court also noted that the rule does not preclude an expert from testifying to facts and opinions derived prior to being retained as an expert and for this reason treating physicians are generally not subject to rule 125. Id. at 612. The court then recognized, citing Carson, that “the threshold question [is] whether the facts and opinions were formulated by a physician in treating a patient or whether they were formulated by a physician for purposes of the issues in pending or anticipated litigation.” Id. The court aptly noted that

[although the disclosure requirements of rule 125 are generally limited to physicians retained for purposes of litigation and exclude treating physicians, the application of the rule does not necessarily depend on the label or role of the physician. Instead, it hinges on the reason and time frame in which the underlying facts and opinions were acquired by the physician. Thus, even treating physicians may come within the parameters of rule 125 when they begin to assume a role in the litigation analogous to that of a retained expert. This generally occurs when a treating physician begins to focus less on the medical questions associated in treating the patient and more on the legal questions which surface in the context of a lawsuit.

Id. (citation omitted).

The court of appeals reversed the district court decision excluding the physicians’ testimony because the record showed both experts were treating physicians and there-was no evidence that their opinion testimony was subsequently acquired or developed in anticipation of trial. Id. In short, “[t]here was a lack of substantial evidence to support a finding the excluded opinions were within the scope of rule 125.” Id.

According to Dr. Pollack’s deposition testimony, he first treated Marlys in 1995 for lower extremity pain after back surgery by another physician. Eventually, he ordered a surgical procedure in which a vascular surgeon removed the sympathetic nerve chain in the low back. This procedure was partially successful in relieving her pain. Thereafter in November 1998, he performed a procedure to destroy nerve fibers carrying pain messages from the joints in the low back. Later, he implanted a device in her back to interfere with the pain messages.

Dr. Pollack recalled that Marlys told him about her June 1999 fall at IMMC and that she thereafter had significant increases in pain and discomfort which limited her ability to function. Her pain level was severe enough that she would consider just about anything that might help. To address this pain, Dr. Pollack tried several procedures to alleviate it, including increasing her dosages of pain medications. The medications were not sufficient to address her pain, so in September 1999 Dr. Pollack installed a pump in her back to deliver morphine to treat the pain.

All of the foregoing deposition testimony is in the record. The following portion of Dr. Pollack’s deposition testimony was the subject of an offer of proof by the Hansens, which the district court refused to admit into evidence:

Q. Based on the history of a fall in June of 1999 as Marlys Hansen reported it to you and as she reported to you the significant increase in pain and discomfort thereafter, do you form any conclusions as one of her treaters as to whether that increase in pain and discomfort was causally correlated with the fall she reported to you?
A. The time sequence suggests that there was some correlation between the events that occurred and her subsequent increased pain.
Q. Why is the timing significant?
A. When people have had previous lumbar spine surgery, they often have a lot of scar tissue which can cause nerve irritation or nerve entrapment. I frequently see people who have been doing very well for some number of months or years after they have had back surgery and then a specific event occurs like a fall or an automobile accident which rapidly causes onset of increased leg pain or new leg pain.
So the timing becomes very important if you’re trying to establish a cause and effect relationship. Had the pain increased three months or six months or a year after a fall, it would be very hard for me to draw a conclusion that there is potentially a cause and effect relationship.
But if it were a matter of hours or days or even a week or two, it becomes much more likely that there was a cause and effect relationship.
Q. And based on the history then as Marlys reported it to you of a fall and pain of a significantly increased level shortly thereafter, does that make it more likely than not that there’s some causal connection between the fall and the increase in pain?
A. I think again that the history suggests a probability that there is some causal relationship between the incident she described and the pain increase, and I partially base that on the fact that there’s documentation of a significant increase of pain within a fairly short time after that fall.
Now, I would like it to be clear that she did not talk to me about her increased symptoms as it relates to the fall at that time. It was not until much later.

From the foregoing deposition testimony, it is clear that Dr. Pollack was Mar-lys’s treating physician long before the fall at IMMC and after the fall. It is also clear from the offer of proof that he formed his causation opinion as a treater. Moreover, there is no record evidence that Dr. Pollack’s causation opinion was formulated as a retained expert for purposes of issues in pending or anticipated litigation.

Dr. Pollack treated Marlys for the increased pain following the fall in question with various procedures and increased medication. Therefore, his causation opinion directly related to his treatment. Because Dr. Pollack was treating Marlys for this increased pain, it is only reasonable that the jury should hear what the doctor thought was the cause of that increased pain.

For all these reasons, we agree with Marlys that Dr. Pollack’s causation opinion was not within the ambit of section 668.11. The district court therefore abused its discretion in not admitting the offer of proof on that ground.

That brings us to the related issue.

B. Medical testimony insufficient on causation. As mentioned, the district court in its ruling on the motion for new trial gave an additional reason for excluding Dr. Pollack’s opinion testimony on causation: the testimony was “insufficient to be admissible” because the opinion was not “expressed to a medical degree of certainty.” We disagree.

The rule is that expert testimony indicating probability or likelihood of a causal connection is sufficient to generate a question on causation. Winter v. Honeggers’ & Co., 215 N.W.2d 816, 823 (Iowa 1974). Buzzwords like “reasonable degree of medical certainty” are therefore not necessary to generate a jury question on causation. In the offer of proof on causation, Dr. Pollack’s deposition testimony was as follows:

[T]he history suggests a probability that there is some causal relationship between the incident she described and the pain increase, and I partially base that on the fact that there’s documentation of a significant increase of pain within a fairly short time after the fall.

This was sufficient to generate a jury question on causation.

V. New Trial.

The Hansens’ motion for new trial was based in part on the exclusion of Dr. Pollack’s deposition testimony on causation. The relevant rule provision states:

On motion, the aggrieved party may have an adverse verdict, decision, or report or some portion thereof vacated and a new trial granted if any of the following causes materially affected movant’s substantial rights:
1.1004(1) ... any order of the court ... or abuse of discretion which prevented the movant from having a fair trial.

Iowa R. Civ. P. 1.1004(1).

Clearly, the exclusion of Dr. Pollack’s testimony on causation materially affected the Hansens’ rights in light of the fact that his was the only medical testimony on this issue and the jury found IMMC negligent but its negligence was not a proximate cause of the Hansens’ damages. The district court’s exclusion of this testimony was an abuse of discretion, which denied the Hansens a fair trial. The district court therefore abused its discretion in denying them a new trial.

VI. Disposition.

Because we conclude the district court abused its discretion in excluding Dr. Pollack’s deposition testimony on causation and in denying the Hansens’ motion for a new trial, we reverse and remand the case for a new trial.

We have carefully considered all of the issues raised. Those we have not addressed either lack merit or were not properly preserved.

DECISION OP COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except LARSON and TERNUS, JJ., who take no part.


author: /s/Paul H. Anderson Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John August KRUEGER, a Minnesota Attorney, Registration No. 211503.
    No. A04-303.
    Supreme Court of Minnesota.
    July 12, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent John August Krueger committed professional misconduct warranting public discipline, namely, notarizing a client release that contained a forged client signature; endorsing settlement checks that contained a forged client signature and withdrawing attorney fees from the settlement proceeds; failure to supervise a non-lawyer employee thus enabling the employee to negotiate and settle personal injury claims on behalf of a deceased client and to secure the forged client signatures on the release and settlement checks; and failure to timely file state and federal individual income tax returns in 1996 and 1997, in violation of Rules 4.1, 5.3(a), (b) and (c), 5.5 and 8.4(c) and (d), Minnesota Rules of Professional Conduct (MRPC).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights pursuant to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 30-day suspension from the practice of law followed by two years of supervised probation. The parties recommend that the reinstatement hearing provided for in Rule 18, RLPR, be waived and that reinstatement be conditioned upon (1) payment of $900 in costs and $825 as disbursements under Rule 24, RLPR; (2) successful completion of the professional responsibility portion of the state bar examination within one year of the date of this court’s order; (3)- compliance with Rule 26, RLPR; and (4) satisfaction of the continuing legal education requirements under Rule 18(e), RLPR.

Upon reinstatement, respondent shall be placed on supervised probation for a period of two years on the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and shall promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules' of Professional Conduct.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent’s supervisor within two weeks from the date this stipulation is executed. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph d below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly or at such more frequent intervals as may reasonably be requested by the Director.
e. Within thirty days from the execution of this stipulation, respondent shall provide to the Director and to the probation supervisor a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Such office procedures shall ensure that respondent has procedures in place to ensure the supervision of non-lawyer assistants consistent with respondent’s obligations under the MRPC. Respondent shall provide progress reports as requested.
f. Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of the court’s order and thereafter shall be made available to the Director at such intervals as the Director deems necessary to determine compliance.
g. Respondent shall timely file all required state and federal tax returns, including individual and employer withholding returns, and timely pay the taxes due thereon. Respondent shall affirmatively report to the Director, on or before the due date of the required returns, his compliance with filing and payment requirements. Such reports shall include copies of the required returns. On or before the filing deadline, respondent shall provide the Director with copies of all applications for filing extensions and proof of approval of such applications. Respondent shall provide all of the documents and information required herein without specific reminder or request.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent John August Krueger is suspended for 30 days effective 14 days after the filing of this order and that he pay $900 in costs and $825 as disbursements pursuant to Rule 24, RLPR. Reinstatement is conditioned upon compliance with the jointly agreed-to conditions set forth above. Upon reinstatement respondent shall be placed upon supervised probation for a period of two years based upon the conditions set forth above.

BY THE COURT

/s/Paul H. Anderson

Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST William F. POST, Jr., a Minnesota Attorney, Registration No. 15443X.
    No. A04-1295.
    Supreme Court of Minnesota.
    Sept. 16, 2004.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William F. Post, Jr., has committed professional misconduct warranting public discipline, namely, respondent was convicted of felony driving while intoxicated (DWI) in violation of Rule 8.4(b), Minn. R. Prof. Conduct.

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under to Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered in to a stipulation with the Director in which they jointly recommend that the appropriate discipline is a six-month stayed suspension and unsupervised probation for a period of five years subject to the following conditions:

a. Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Respondent shall abide by the Minnesota Rules of Professional Conduct.
c. Respondent shall comply with the terms of his criminal probation, which include the following:
i. Respondent shall maintain total abstinence from alcohol and other mood-altering chemicals, except that respondent may use prescription drugs in accordance with the directions of a prescribing physician who is fully advised of respondent’s chemical dependency before issuing the prescription.
ii. Respondent shall complete treatment for chemical dependency and any aftercare that may be recommended or prescribed by the treating facility.
iii. Respondent shall attend bi-weekly meetings of Alcoholics Anonymous or any other out-patient alcohol treatment program required by respondent’s criminal probation.
iv. Respondent shall wear an alcohol monitoring device while serving the electronic home monitoring portion of his sentence.
v. Respondent shall complete a 30-day period of wearing a SCRAM bracelet each year, as required by his criminal probation.
vi. Respondent shall submit to random drug screening.
d. Upon completion of respondent’s 30-day period of incarceration and/or work release, if eligible, respondent shall wear a SCRAM bracelet for a one-year period. Respondent shall not be required to wear the SCRAM bracelet any time during this one-year period if he is subject to the electronic home monitoring and alcohol sensor requirements of his criminal probation. Respondent agrees to pay the costs associated with the use of the SCRAM device and home monitoring. Respondent shall provide the Director with authorizations to monitor and receive reports regarding his compliance with the SCRAM device and home monitoring. Any positive read for ingested alcohol will be grounds for revoking the stay of execution of respondent’s six-month stayed suspension.
e. Upon completion of wearing a SCRAM bracelet for a one-year period, upon the request of the Director, respondent shall, at his own expense, no more than six times per month, submit to random urinalysis for drug screening at a facility approved by the Director. These drug screenings shall be in addition to any required through respondent’s criminal probation. Respondent shall direct the drug screening facility to provide the results of all urinalysis testing to the Director’s Office. If, after six months, all such tests have been negative, then the frequency of the random tests may be reduced or terminated at the Director’s discretion. Respondent shall cooperate with the phone-in program established by the Director for the random tests. Any failure to phone in accordance with the random test program shall be considered the same as receipt of a positive test result. Any positive test will be grounds for revoking the stay of execution of respondent’s six-month stayed suspension.
f. Respondent shall, by the tenth day of each month, without a specific reminder or request, submit to the Director an attendance verification for Alcoholics Anonymous, or any other treatment program required under the terms of his criminal probation, on a form provided by the Director, which provides the name, address, and telephone number of the person personally verifying the attendance.
g. Should respondent be discharged from his criminal probation earlier than the five-year period imposed in the district court’s June 16, 2004, sentencing order, the Director may, in his discretion reduce the duration of respondent’s disciplinary probation in accordance with respondent’s discharge by community corrections.

Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent William F. Post, Jr., is suspended for a period of six months, stayed upon the condition that he comply with the above-mentioned conditions of his probation for a period of five years. Respondent shall pay $900 in costs pursuant to Rule 24, RLPR.

BY THE COURT

/s/Paul H. Anderson

Associate Justice