text:
    STATE of Iowa, Appellant, v. Timothy Christopher ALBRECHT, Appellee.
    No. 01-1803.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, J. Patrick White, County Attorney, and M. Victoria Dominguez and Karen D. Egerton, Assistant County Attorneys, for appellant.
    Linda Del Gallo, State Appellate Defender, Martha J. Lucey, Assistant Appellate Defender, .and Ronald Bailey, Drake Student Legal Intern, for appellee.
   LAVORATO, Chief Justice.

The State seeks discretionary review of a district court ruling granting Timothy Christopher Albrecht’s motion to suppress the results of an intoxilyzer test. We reverse and remand for further proceedings.

In the early morning hours of January 14, 2001, Iowa City Police Officer Gabriel Cook stopped a vehicle driven by Albrecht because it had an expired registration. While speaking to Albrecht, the officer detected a strong odor of alcohol and noticed that Albrecht’s eyes were bloodshot and watery.

The officer administered a horizontal gaze nystagmus test, which resulted in a failing score of six, indicating a seventy-seven percent probability that Albrecht’s blood alcohol concentration (BAC) was above the legal limit of .10. Albrecht admitted to the officer that he had been drinking. Following Albrecht’s admission, the officer administered a preliminary breath test (PBT) using an Alco-Sensor III, which gave a reading of .109.

Officer Cook testified that before administering the PBT, he asked Albrecht when he had his last drink but could not recall Albrecht’s response. However, the officer also testified that if Albrecht had responded that he had been drinking within the last fifteen minutes, he — Officer Cook— would have observed Albrecht for fifteen minutes before administering the PBT.

Because of the weather, Albrecht was taken to the Iowa City Police Department where the officer administered additional sobriety tests. Following these tests, the officer invoked the implied-consent procedure of Iowa Code section 321J.6 (1999). The officer indicated on the implied consent form that he was basing his request on Albrecht’s PBT. Albrecht submitted to an intoxilyzer test, which resulted in a BAC reading of .121. The officer then arrested Albrecht for operating while intoxicated.

Later, the State charged Albrecht with operating while intoxicated in violation of Iowa Code section 321J.2. Albrecht moved to suppress the results of the intoxilyzer test. In his motion, Albrecht conceded there were reasonable grounds to believe he had been operating while intoxicated for purposes of Iowa Code section 321J.6. However, he contended the officer failed to administer the PBT in compliance with Iowa Code section 321 J.5 and Iowa Administrative Code rule 661 — 7.5. Because there was no valid PBT, Albrecht contended, the requirement of Iowa Code section 321J.6(l)(<f) was not met, and the officer therefore lacked grounds to invoke implied consent.

The district court agreed with Albrecht and granted his motion to suppress. We granted the State’s application for discretionary review.

I. Iowa Code section 321J.2 makes it an offense to operate a motor vehicle while under the influence of an alcoholic beverage or while having an alcohol concentration of .10 or more. Iowa Code § 321J.2(1).

Iowa Code section 321J.6, Iowa’s implied consent law, provides authority for chemical testing of bodily substances from persons suspected of driving while intoxicated. That statute provides in relevant part:

1. A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A is deemed to have given consent to the withdrawal of specimens of the person’s blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321 J.2A, and if
d. The preliminary breath screening test was administered and it indicated an alcohol concentration equal to or in excess of [.10].

Iowa Code § 321J.6(l)(d) (emphasis added). The other conditions listed in section 321J.6(1) are not at issue in this case. As this statutory provision makes clear, [t]he legislature has ... limited the circumstances under which [the implied-consent procedure may be invoked]. The withdrawal of bodily substances and the chemical test must be “administered at the written request of a peace officer having reasonable grounds to believe that the [defendant] was operating a motor vehicle in violation of section 321J.2.” In addition, one of six specified conditions must exist.

State v. Lindeman, 555 N.W.2d 693, 695 (Iowa 1996) (citations omitted).

As mentioned, Albrecht concedes reasonable grounds existed in this case. Therefore, the condition at issue here is whether the officer administered a valid PBT. Substantial compliance with section 321J.6 is sufficient to invoke the implied-consent procedure provided the underlying requirements of the section were not compromised. Id. at 696. Those requirements include protecting the health of the person being tested, guaranteeing accuracy of the test result for use in judicial proceedings, and protecting citizens from indiscriminate testing or harassment. State v. Hopkins, 465 N.W.2d 894, 896 (Iowa 1991). The remedy for not substantially complying with the implied-consent procedure is the exclusion of the test results because this is the only way a defendant’s right to refuse a test can be preserved. State v. Kjos, 524 N.W.2d 195,197 (Iowa 1994).

II. Whether the officer administered a valid PBT turns on the requirements of Iowa Code section 321J.5 and Iowa Administrative Code rule 661 — 7.5.

Section 321J.5 addresses the PBT:

1. When a peace officer has reasonable grounds to believe that either of the following have occurred, the peace officer may request that the operator provide a sample of the operator’s breath for a preliminary screening test using a device approved by the commissioner of public safety for that purpose:
a. A motor vehicle operator may be violating or has violated section 321J.2 or 321 J.2A.
b. The operator has been involved in a motor vehicle collision resulting in injury or death.

Iowa Code § 321J.5(1) (emphasis added).

Iowa Administrative Code rule 661 — 7.5 implements the requirements of section 321J.5:

(1) A peace officer desiring to perform preliminary screening tests of a person’s breath shall use an Iowa department of public safety division of criminal investigation criminalistics laboratory-approved device.
(2) Any peace officer using an approved device shall follow the instructions furnished by the manufacturer for use of such a device....

Iowa Admin. Code r. 661 — 7.5 (1999) (emphasis added).

The instructions for the Alco-Sensor III, the device used to administer the PBT in this case, direct the person administering the PBT to “[i]nstruct subject to give sample. Be sure to observe 15 minute waiting period before beginning of test.” A footnote to this particular instruction provides:

If the Aleo-Sensor III is being used as a SCREENER, the subject can be asked if he/she has used any alcohol in the last 15 minutes. If the response is negative, test the subject immediately; if otherwise, wait 15 minutes before testing. If the test result is positive, wait 2 to 5 minutes and take a second test. A similar result indicates true blood alcohol level. A much lower result strongly suggests mouth alcohol was present at the time of the first test.
If the Aleo-Sensor III is being used EVIDENTIALLY, the subject must be kept under observation for 15 minutes as previously described.

(Emphasis added.)

Thus, according to section 321J.5(1) and rule 661 — 7.5(1), officers must use a device approved by the commissioner of public safety when administering a PBT. According to rule 661 — 7.5(2) officers must follow the manufacturer’s instructions when administering the test. The manufacturer’s instructions for the Aleo-Sensor III instruct the person administering the test to take a second test if the first test is positive. Therefore, Albrecht argues, a valid PBT can only be obtained by administering two PBTs if the first test is positive.

The district court agreed with Albrecht, concluding:

Since the PBT was not administered in accordance with the manufacturer’s specifications the conditions of subsection [(d) of section 321J.6] were not met. The second requirement of section 321J.6 was not met by any of the other statutory criteria. Thus, the officer did not meet the conditions precedent to a valid request for a breath sample under the implied consent rules.
This court is well aware that the practice of law enforcement officers in this jurisdiction is to administer only one PBT under almost all circumstances. This ruling is not intended to find that the results of a single PBT are not usually accurate. Even the manufacturer’s representative has previously testified to the accuracy of a single test. In most cases, the PBT result merely confirms what the officer has already determined and the officer then places the person under arrest. The arrest meets one of the second criteria (Section 3121J.6(l)(a) [“A peace officer has lawfully placed the person under arrest for violation of section 321J.2.”]) and the lack of a second PBT does not invalidate the implied consent test. However, the statute and administrative rules require compliance with the manufacturer’s operating instructions and those instructions require two tests. If that is the sole basis upon which implied consent is invoked, then strict compliance with the statute and rules must be required.
In that the admissibility of an implied consent test result of above .10 BAC constitutes proof of a per se violation of section 321J.2, this court finds that the statutory requirements must be strictly adhered to. A failure to do so must result in suppression of the test result.

III. The State strenuously challenges the district court’s analysis and conclusion. Essentially, the State argues the district court ignored well-established rules of statutory construction when the court in effect concluded that language found in the manufacturer’s instruction manual for the PBT device overrides the plain meaning of the applicable statutes and the legislative intent underlying those statutes. For reasons that follow, we agree.

Here, the admissibility of the intoxilyzer test results depends on our interpretation of statutory provisions and an accompanying administrative rule. Our review is therefore for correction of errors at law. See State v. Palmer, 554 N.W.2d 859, 864 (Iowa 1996).

Our ultimate goal in interpreting statutes is to discover the true intention of the legislature. Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761 (Iowa 1998). In searching for legislative intent, we consider not only the language of the statute, but also its subject matter, the object sought to be accomplished, the purpose to be served, underlying policies, remedies provided, and the consequences of various interpretations. United Fire & Cas. Co. v. Acker, 541 N.W.2d 517, 519 (Iowa 1995). Additionally, we construe a statute in a way that would avoid impractical or -absurd results. Id. And we look at the whole statute, not just the separate parts. Id.

When interpreting statutes, we attempt to harmonize all relevant legislative enactments, including rules and regulations of administrative agencies, “so as to give meaning to all if possible.” Messina v. Iowa Dep’t of Job Serv., 341 N.W.2d 52, 56 (Iowa 1983). The rules of statutory construction and interpretation also govern the construction and interpretation of administrative rules and regulations. Id.

We do not search for meaning beyond the express terms of a statute when the statute is plain and its meaning is clear. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). We resort to rules of statutory construction only when the explicit terms of a statute are ambiguous. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999). “A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996).

The plain meaning of the statutory provisions in Iowa Code chapter 321J defies the district court’s interpretation. Our review of those provisions reveals no requirement that a peace officer administer two PBTs before invoking the implied-consent procedure in section 321J.6.

Section 321 J.5(l) permits an officer to request “a [breath] sample” for “a preliminary screening test.” Iowa Code § 321J.5(1) (emphasis added); see also Iowa Code § 321J.5(2) (“this preliminary screening test”). The only requirement in section 321J.5(1) is that the PBT device be “approved by the commissioner of public safety for that purpose.” Section 321J.6(1)(d) refers to “the preliminary breath screening test.” Iowa Code § 321J.6(1)(d) (emphasis added). The language in these statutory provisions clearly contemplates that a peace officer need only administer one PBT.

Even if were we to go outside the plain meaning of these statutory provisions, the legislative intent and purpose behind the use of the PBT supports the State’s position. For example, in Iowa, the PBT is used only for screening purposes and is not used to obtain a precise measurement of a driver’s BAC. Indeed, Iowa Code section 321J.5 limits the evidentiary use of PBT results:

The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made or whether to request a chemical test authorized in this chapter, but shall not be used in any court action except to prove that a chemical test was properly requested of a person pursuant to this chapter.

Iowa Code § 321J.5(2).

Because of the PBT’s unreliability, “the legislature chose to make the ‘results’ inadmissible in evidence.” State v. Deshaw, 404 N.W.2d 156, 158 (Iowa 1987). However, the PBT “provide[s] peace officers with the tool of a quick, convenient test to assist officers in determining whether an arrest should be made.” Id. The PBT no longer fulfills the legislative intent that it serve as a “quick, convenient test” when officers must administer a second PBT.

Like the State, we do not view the manufacturer’s instructions as requiring two PBTs when the PBT is used as a screening device. As mentioned, a footnote to the manufacturer’s instructions states: “If the ALCO-SENSOR III is being used as a SCREENER, the subject can be asked if he/she has used any alcohol in the last 15 minutes.” (Emphasis added.) We agree with the State that the use of the word “can” indicates administering two tests is an.optional step when the PBT is used for screening purposes.

A representative of the manufacturer of the Aleo-Sensor III device gave testimony supporting this interpretation during a suppression hearing in a similar case. The district court admitted the transcript of the representative’s testimony into evidence at Albrecht’s suppression hearing because Albrecht’s counsel was counsel for the defendant in the other case. Therefore, Albrecht’s counsel had been permitted to cross-examine the representative on the same issue.

The representative testified that while the fifteen minute period is important in those states where the device is used as an evidentiary device, it is not necessary when the device is used for screening purposes. He also testified that a second test is unnecessary when the device is used as a screener. In addition, he pointed out that the Aleo-Sensor III device is used as an evidential instrument in some states and that the device’s manual could not cover all uses of the instrument.

Moreover, the second test is referred to in the manufacturer’s instructions only in connection with the screening process. Significantly, there is no mention of a second test when the Aleo-Sensor III device is used for evidentiary purposes. At first blush, this does seem somewhat nonsensical. One would think that more assurance of reliability would be required when the device is used for evidentiary purposes.

One way to explain this seemingly illogical difference is to focus on the fifteen-minute waiting period. When the device is used for screening purposes, the officer can simply ask the suspect whether he or she has had alcohol within the last fifteen minutes and then test if the response is negative. In that way, the officer can minimize the length of the investigatory detention.

But when the device is used for eviden-tiary purposes, the officer must keep the suspect under observation for at least fifteen minutes in all cases regardless of the suspect’s response about recent consumption of alcohol. Apparently then, the fifteen-minute period is key on the question of reliability and takes care of any concern about the presence of mouth alcohol, a concern the manufacturer’s instructions are trying to address. The fact that a second test is not required when the device is used for evidentiary purposes suggests that the fifteen-minute period is sufficient to allay any concern about the presence of mouth alcohol without the need for a second test. We therefore conclude the manufacturer’s instructions do not require a second test and for this reason the instructions are not inconsistent with our statutes or administrative rules.

Here Officer Cook did ask Albrecht whether he had consumed alcohol within the last fifteen minutes. It is true the officer could not remember what Albrecht had responded. But the officer testified he would not have given the PBT at that point if Albrecht had said he had consumed alcohol within the last fifteen minutes because that was his standard procedure. Therefore, a reasonable inference is that Albrecht had not consumed alcohol within the last fifteen minutes before the PBT was administered. There is nothing in the record to indicate that the PBT result was unreliable.

For all these reasons, we conclude a second test was not required under our statutes and administrative rules. Officer Cook had reasonable grounds to believe Albrecht was operating while intoxicated. The PBT that the officer administered to Albrecht indicated an alcohol concentration exceeding .10. Therefore, Officer Cook properly invoked implied consent and for that reason the intoxilyzer test result was admissible. The district court erred in concluding otherwise. We therefore reverse and remand for further proceedings.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    FEDERAL AMERICAN INTERNATIONAL, INC., Appellee, v. OM NAMAH SHIVA, INC., Appellant, and National Bank of Monmouth; Midwest Bank of Western Illinois; Central State Bank; Iowa Business Growth Company; Small Business Administration, An Agency of the United States; Roger’s Backhoe Service, Inc.; L & M Waste Systems, Inc.; Gypsum Supply Company; and Hahn Ready-Mix, Defendants.
    No. 01-1771.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Mark McCormick and Margaret C. Callahan of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, and Paul J. Bieber of Gomez, May, Cartee & Schutte, Davenport, for appellant.
    William R. Jahn, Jr. of Aspelmeier, Fisch, Power, Engberg & Helling, P.L.C., Burlington, for appellee.
   STREIT, Justice.

This appeal comes to us from a contract dispute between Federal American International, Inc. and Om Namah Shiva, Inc. concerning the construction of a Comfort Inn. Shiva contends the district court erred in foreclosing Federal American’s mechanic’s lien because Federal American failed to prove substantial performance of the contract. Federal American seeks dismissal contending we lack jurisdiction to hear an untimely appeal. We sustain Federal American’s motion to dismiss the appeal.

I. Background and Facts

Om Namah Shiva, Inc. hired Federal American International, Inc. to design and construct a Comfort Inn motel. Federal American did not complete the project, complaining it was not paid for increased costs reflected on change orders, and filed a petition to foreclose a mechanic’s lien against Shiva in the amount of $336,645. Shiva filed a counterclaim against Federal American arguing Federal American was not entitled to the mechanic’s lien because it did not substantially perform under the contract. In the alternative, Shiva asserted if the court should foreclose the mechanic’s hen, it should be in the amount of $191,249. The district court foreclosed the mechanic’s lien in the amount of $288,175 plus interest, attorney fees, and costs. The court awarded Shiva no relief on its counterclaim against Federal American for breach of contract.

On September 19, 2001, nine days after the court filed its final decree, Shiva requested an extension of time to file a motion to enlarge the district court’s findings pursuant to Iowa Rule of Civil Procedure 1.904(2). On October 9, 2001, the district court denied the extension. Shiva filed its notice of appeal twenty-two days later on October 31, 2001. Federal American filed a motion to dismiss the appeal in this court arguing the notice of appeal was untimely and as such the court lacks jurisdiction to hear this ease. We ordered the matter to be submitted with this appeal. Because we find the issue of jurisdiction dispositive, we do not address the merits of the appeal.

II. Timeliness of Appeal

The only question on appeal is whether the time for filing the notice of appeal was tolled when Shiva filed an application for extension of time to file a posttrial motion. The district court entered a final decree on September 10, 2001, with respect to the litigation over Federal American’s petition to foreclose the mechanic’s lien. Nine days later on September 19, 2001, Shiva requested an extension of time until December 1, 2001 (an eighty-three day extension), to file its 1.904(2) motion to enlarge findings. The court denied the request for an extension on October 9. It was not until fifty-one days after the court’s September 10, 2001, final decree that Shiva filed its notice of appeal. Shiva argues this appeal is timely because it filed the notice of appeal within thirty days of the court’s denial of Shiva’s petition for an extension of time. Federal American contends the appeal must be dismissed because the time for filing a notice of appeal was not tolled when Shiva filed a motion for extension of time.

Although the facts are not identical, we considered a very similar issue in Lutz v. Iowa Swine Exports Corp., 300 N.W.2d 109 (Iowa 1981). In Lutz, the plaintiff and defendant agreed on a ten-day extension within which to file a posttrial motion. The trial court gave an oral approval of the extension of time but also required the plaintiff to file a written motion confirming the oral order. The written motion was timely filed, but the court never entered a written order extending the deadline. On appeal, we considered whether the filing of an improper posttrial motion extends the time for filing an appeal. We stated that an untimely posttrial motion is defective and does not toll the running of the thirty-day period within which to file an appeal. Id. at 110 (citing Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978)). Because the trial court in Lutz did not make a written order to extend the time for filing the posttrial motion, the notice of appeal should have been filed within thirty days of the final judgment. In Lutz, the notice of appeal was not filed within thirty days of the final judgment; therefore we lacked jurisdiction to hear the merits of the appeal.

Both Lutz and the case before us deal with applications for extension of time to file a posttrial motion. In Lutz we stated that without a written order by the district court extending the time for filing the motion, the time for appeal is not tolled. The same result is compelled in the present case.

Iowa Rule of Appellate Procedure 6.5 answers the question of whether an application for extension of time to file a post-trial motion tolls the time for appeal. Though the general rule for filing a notice of appeal is thirty days after a final judgment, order, or decree, there are certain enumerated exceptions. Rule 6.5 articulates the only types of posttrial motions which are deemed to extend the time for filing a notice of appeal: motion for a new trial, motion for judgment notwithstanding the verdict, and motion to enlarge the district court’s findings of fact and conclusions of law pursuant to Iowa Rule of Civil Procedure 1.904(2). We have before described the conditions under which we will consider a motion a 1.904(2) motion as tolling the time for filing a notice of appeal.

Except as may be provided by separate rule, a rule [1.904(2)] motion lies only when addressed to a ruling made upon trial of an issue of fact without a jury. This is because rule [1.904(2)] ordinarily applies only when rule [1.904(1)] applies, and rule [1.904(1)] dictates procedures to be followed by a court in finding facts and stating legal conclusions when “trying an issue of fact without a jury....”

Kunau v. Miller, 328 N.W.2d 529, 530 (Iowa 1983). The issue then is whether Shiva filed one of the three types of motions that toll the time for appeal.

When Shiva filed its motion to extend the time it had to file the 1.904(2) motion, it did not in fact file a motion to enlarge the legal and/or factual bases upon which the district court granted Federal American’s petition to foreclose the mechanic’s lien. The only motion Shiva filed asked the court to allow extra time to file its substantive 1.904(2) motion. Shiva’s motion was not titled a 1.904(2) motion; it did not address the merits of the final decree. See Kunau, 328 N.W.2d at 530 (1.904(2) motion “lies only when addressed to a ruling made upon trial of an issue of fact without a jury”). The motion was merely a request to give Shiva extra time to gather the transcripts it wanted to include in the ultimate 1.904(2) motion.

Shiva put all of its eggs in one basket relying upon the district court’s grant of an extension of time. Shiva had no reason to believe such a grant would be forthcoming. In the absence of a written order filed with the clerk, nothing is certain. See Iowa R. Civ. P. 1.453 (“A judge may enter judgments, orders or decrees ... effective when filed with the clerk, or as provided by rule 1.442(5).”). Our rules of civil and appellate procedure require a party to operate under an assumption that the court will deny the extension. In any case, a party must comply with the thirty-day period of time within which to appeal from the final decree. Nothing prevented Shiva from filing its notice of appeal within thirty days of the final decree to ensure its ability to pursue this case.

As a final matter, Shiva asserts Federal American has waived its jurisdictional argument because it did not “raise the issue at any stage of the process in district court.” This contention is unavailing. Federal American argues it did not waive jurisdiction because a challenge to subject matter jurisdiction may be raised at any time. See Smith v. Smith, 646 N.W.2d 412, 414 (Iowa 2002) (citing Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 428 (Iowa 1996)). However, the issue before us deals not with subject matter jurisdiction but with the court’s authority to “ ‘entertain a particular case.’ ” See Schooler v. Iowa Dep’t of Transp., 576 N.W.2d 604, 607 (Iowa 1998) (quoting Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989)). “‘Subject matter jurisdiction refers to the authority of a court to hear and determine cases of the general class to which the proceedings in question belong, not merely the particular case then occupying the court’s attention.’ ” Id. (quoting Christie, 448 N.W.2d at 450). The question of a court’s authority to hear a particular case arises only after the court already has subject matter jurisdiction.

In the matter before us, although this is not the type of jurisdiction issue that can be raised at any time, Federal American did not waive this argument. Shiva appears to argue that because the district court never had an opportunity to rule on the jurisdictional challenge, the argument has been waived. Specifically, Shiva asserted, “the district court in denying the motion to enlarge time relied only on the ground of predicted lack of merit.” At the time the court made this ruling, it could not have addressed jurisdiction because no appeal had yet been filed. After Shiva filed its notice of appeal, Federal American filed a motion to dismiss in this court where it argued the appeal was untimely. This was the earliest stage in the litigation process that Federal American could have challenged jurisdiction. Because Federal American challenged the court’s jurisdiction in its motion to dismiss, it did not waive this argument.

III. Conclusion

In sum, Shiva did not file a motion for new trial, motion for judgment notwithstanding the verdict, or a motion to enlarge the court’s findings of facts and conclusions of law under Iowa Rule of Civil Procedure 1.904(2). Shiva filed a motion to extend the time to file a 1.904(2) motion — a posttrial motion that does not toll the time for appeal. See Iowa R.App. P. 6.5. The thirty-day period to appeal began with the district court’s final decree on September 10, 2001. To comply with the thirty-day requirement of Iowa Rule of Appellate Procedure 6.5, Shiva needed to file its notice of appeal within thirty days of the court’s September 10, 2001 decree, i.e., Shiva needed to file its notice of appeal no later than October 9, 2001. Because Shiva did not file its notice until fifty-one days after the final decree on October 31, 2001, this appeal is untimely. We are without jurisdiction; therefore, Federal American’s motion to dismiss the appeal is sustained.

APPEAL DISMISSED.

      . Ordinarily, a party must file a 1.904(2) motion within ten days after a final judgment, order, or decree. See Iowa R. Civ. P. 1.904; State ex rel. Miller v. Santa Rosa Sales & Mktg., Inc., 475 N.W.2d 210, 213 (Iowa 1991).

      . When the district court denied Shiva’s motion to extend time, it did not address the merits of the case other than to say,
      The defendant essentially concedes ... it does not know at this point and without the benefit of the transcript of the proceedings on what basis or bases it would seek a different conclusion from the trial court’s in a 179(b) proceeding. The Court assumes the defendant's case based on the trial transcript would be more appropriately addressed by an appellate court.


author: TERNUS, Justice.

text:
    STONE CONTAINER CORP. and National Union Fire Insurance Company, Appellants, v. Walker H. CASTLE, Appellee.
    No. 01-1291.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Thomas M. Plaza and Judith Ann Higgs of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, for appellants.
    Harold K Widdison, Sioux City, for ap-pellee.
   TERNUS, Justice.

The issue presented in this case is whether the industrial commissioner correctly required an injured worker’s employer to pay for a laptop computer pursuant to the employer’s obligation to “furnish reasonable and necessary ... appliances” under Iowa Code section 85.27 (1999). The district court affirmed the commissioner’s award, but the court of appeals, in a split decision, reversed. In view of the unique circumstances presented by the case before us, we think the commissioner was right. Accordingly, we vacate the court of appeals decision and affirm the district court judgment.

I. Record on Appeal.

Before we review the propriety of the agency’s decision, we consider the employer’s objection to certain factual assertions made by the employee on appeal. Although the employer does not dispute the accuracy of the facts upon which the employee relies, it argues there is no support in the record for these facts because the deputy industrial commissioner who heard the evidence inadvertently failed to tape record the full hearing. As a result, there is only a partial transcript of the testimony presented to the agency.

Iowa’s Administrative Procedure Act governs the record on judicial review:

Within thirty days after filing of the petition [for judicial review,] or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of any contested case which may be the subject of the petition. By stipulation of all parties to the review proceedings, the record of such a case may be shortened.... The court may require or permit subsequent corrections or additions to the record.

Iowa Code § 17A.19(6). The district court file does not reveal any stipulation by the parties to shorten the record, nor does it show that either party requested any corrections or additions to the record. More importantly, the accuracy of the facts relied upon by the employee was never contested by the employer in the district court; the employer simply made the legal argument that a computer was not an “appliance” within the meaning of section 85.27 under the facts of this case. It is perhaps for this reason that the district court did not require any additions to the record, despite having only a partial transcript of the testimony.

Under these circumstances, we will not entertain the employer’s belated argument on appeal that the employee lacks record support for his factual assertions. If the employer was dissatisfied with the record on judicial review, this matter should have been raised and resolved in the district court.

II. Background Facts and Proceedings.

The appellee, Walker Castle, suffered catastrophic injuries in an industrial accident while working for the appellant, Stone Container Corporation. Castle, who was nineteen years old at the time, lost both his legs at the hip joint, as well as his buttocks, rectum and a testicle. He has undergone numerous surgeries, including skin grafts and colon resections. Castle suffers from chronic phantom limb pain, a “painful sensation of the presence of a limb that has been amputated.” Webster’s Medical Desk Dictionary 536 (1986).

In addition, Castle is very sensitive to temperature due to his extensive skin grafts and scaring. Normal room temperature causes his skin to break down. As a result, he is forced to spend most of his time in seclusion in his room at Opportunities Unlimited where the temperature can be kept cooler. Moreover, he is often unable to use his wheelchair because his skin problems prevent him from sitting. Therefore, he uses a “prone cart” that permits him to he on his stomach and chest.

Castle also suffers from post-traumatic stress disorder and other psychological injuries as a result of the accident. He has lived in a medically supervised environment from the time he was injured in April 1997.

Prior to the accident, Castle had no education or training beyond high school. He did not own a computer. At his request, however, Stone Container’s worker’s compensation carrier, appellant, National Union Fire Insurance Company, provided Castle with a laptop computer in October 1997. (In the remainder of this opinion, we will refer to the insurer and the employer jointly as the employer.) Following that acquisition, Castle completed ten hours of college course work.

Eventually Castle’s computer ceased to work and could not be repaired, prompting him to file an application for alternate medical care pursuant to Iowa Code section 85.27, on August 30, 2000. Castle requested the employer be required to provide him with a laptop computer, including adaptations that would facilitate his use of it in his wheelchair and the prone cart.

At the hearing on Castle’s application, his attorney asserted Castle needed a computer to assist him “in his educational pursuits, rehabilitation pursuits, and the computer ... would serve ... to replace function that he has lost ... due to his injuries.” Castle called two employees of Opportunities Unlimited who supported his claim: a computer teacher who was certified by Microsoft, and a licensed occupational therapist. The employer argued in response that a computer did not qualify as medical care under section 85.27 and therefore the employer had no obligation to provide Castle with one.

The deputy industrial commissioner, who had been delegated the authority to issue a final agency decision on Castle’s request, concluded the computer and adaptive devices were appropriate expenses under section 85.27. Relying on the common meaning of the statutory terms as well as an administrative rule defining “appliance,” see Iowa Admin. Code r. 876 — 8.5, the deputy stated that “[t]he computer is, in this case[,] an appliance because of the rehabilitative and therapeutic use it provides in an occupational therapy setting to increase [Castle’s] vocational and personal independence, which were lost as a result of his injuries.”

As previously noted, this ruling was affirmed by the district court on judicial review, but was reversed by the court of appeals. We granted Castle’s application for further review.

III. Scope of Review.

Our review of the agency decision is for correction of errors of law, Noble v. Lamoni Prods., 512 N.W.2d 290, 292 (Iowa 1994), and is governed by Iowa’s Administrative Procedure Act, Iowa Code chapter 17A, see Iowa Code § 86.26. In addition to the standards of review set out in section 17A. 19(10), our review is guided by three other principles of law. First, administrative rules have “the force and effect of law as long as they are ‘reasonable and consistent with legislative enactments.’ ” Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 835 (Iowa 2002) (citation omitted). In addition, we must “give appropriate deference to the view of the agency with respect to matters that have been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.11(1)(c). Finally, we interpret the worker’s compensation statute liberally, keeping in mind that the law was enacted “for the benefit of the working person.” Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993); accord IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001).

Although the employer relies on several legal grounds for reversal, see Iowa Code § 17A.19(10)(6), (f), (l)-(n), these grounds all rest on the basic argument that the deputy was wrong in concluding that an employer could be obligated to provide its injured employee with a computer under section 85.27. Therefore, we will address the employer’s specific contentions within our discussion of this larger issue. We first consider a preliminary contention of the employer that the agency failed to notify the parties that it would take official notice of certain “facts” in making its decision as required by Iowa Code section 17A.14(4).

IV. Official Notice Under Section 17A.14(4).

The employer argues that the deputy industrial commissioner improperly used a medical dictionary as a resource to determine the meaning of terms used in section 85.27 and the implementing administrative rule. The employer claims the deputy was required to give the parties advance notice of his intent to consult this source pursuant to Iowa Code section 17A.14(4). This statute states in pertinent part:

Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Parties shall be notified at the earliest practicable time, either before or during the hearing, or by reference in preliminary reports, preliminary decisions or otherwise, of the facts proposed to be noticed and their source, ... and the parties shall be afforded an opportunity to contest such facts before the decision is announced unless the agency determines as part of the record or decision that fairness to the parties does not require an opportunity to contest such facts.

Iowa Code § 17A.14(4) (emphasis added).

The employer’s attempt to apply this statute to the use of a dictionary, medical or otherwise, as a guide to interpretation of legislative enactments is misguided. A dictionary is simply one source of meaning upon which agencies and courts routinely and properly rely in interpreting statutory terms. E.g., Harker, 633 N.W.2d at 326 (citing general dictionary to define term used in worker’s compensation statute); Ciha, 552 N.W.2d at 155 (using legal dictionary to interpret industrial commissioner’s rule defining “appliance”). See generally State v. Westeen, 591 N.W.2d 203, 208 (Iowa 1999) (stating that dictionary provides a ready source for the common meaning of statutory terms). Judicial notice, on the other hand, “is a substitute for formal proof of a matter by evidence.” 29 Am.Jur.2d Evidence § 24, at 79 (1994). The common meaning of statutory terms is not a matter upon which a party would offer formal proof and, consequently, is not a fact of which an agency must take official notice within the contemplation of section 17A.14(4). Cf. Office of Consumer Advocate v. Utils. Bd., 452 N.W.2d 588, 596 (Iowa 1990) (applying section 17A.14(4) to board’s “official notice of the equity rate used by the Missouri commission”). We see no basis for reversal on this point.

V. Computer as an “Appliance.

A. Applicable legal principles. In pertinent part, 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. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.
For purposes of this section, the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care.... If the employee has reason to be dissatisfied with the care offered, the employee should communicate the basis of such dissatisfaction to the employer, in writing if requested, following which the employer and the employee may agree to alternate care reasonably suited to treat the injury. If the employer and employee cannot agree on such alternate care, the commissioner may, ■ upon application and reasonable proofs of the necessity therefor, allow and order other care....

Iowa Code § 85.27 (emphasis added). Reduced to its essentials, section 85.27 requires an insurer to furnish reasonable medical services and supplies and reasonable and necessary appliances to treat an injured employee.

The scope of the latter obligation is partially explained in Iowa Administrative Code rule 876 — 8.5. That rule contains the following definition of the word “appliance” as used in section 85.27:

Appliances are defined as hearing aids, corrective lenses, orthodontic devices, dentures, orthopedic braces, or any other artificial device used to provide function or for therapeutic purposes.
Appliances which are for the correction of a condition resulting from an injury ... are compensable under Iowa Code section 85.27.

Iowa Admin. Code r. 876 — 8.5 (emphasis added). Thus, under the agency’s interpretation of section 85.27, an employer must provide any device that furnishes an action or affords a function impaired or lost as a result of the employee’s injury, or that treats or remedies a condition resulting from the injury.

B. Employer’s arguments. We turn now to the employer’s contentions on appeal. The employer does not challenge the agency’s rule defining “appliance.” Rather, it claims a computer does not fall within this definition, or within section 85.27 generally. More specifically, the employer argues that section 85.27 obligates it to provide only (1) reasonable and necessary medical or surgical care, or (2) devices that improve function. A computer, asserts the employer, is not medical care and does not supply function. The employer appears to take the position that because a computer would not restore physical mobility to Castle, it does not “provide function” lost by Castle as a result of his injuries. See Iowa Admin. Code r. 876 — 8.5.

C. Analysis. Because we think the peculiar facts of this case support the deputy’s conclusion that a computer constitutes an appliance within the meaning of section 85.27, we confíne our discussion to that issue. We begin our analysis with a brief review of two prior cases that have applied section 85.27 under unique, but somewhat similar, circumstances: Manpower Temporary Services v. Sioson, 529 N.W.2d 259 (Iowa 1995) and Quaker Oats Co. v. Ciha, 552 N.W.2d 143 (Iowa 1996).

In Sioson, work-related injuries rendered the employee, Sioson, a quadriplegic. 529 N.W.2d at 261. Due to her condition, Sioson was equipped with an electric “puff and sip” wheelchair. Id. When she traveled long distances, however, she had to use a manual wheelchair because her electric wheelchair was too large and heavy to be loaded in and transported by a passenger vehicle. Id. Because a manual wheelchair and the process of shifting her from one wheelchair to the other posed risks of injury and medical complications, Sioson requested that the employer provide her with a specially equipped van so she could use the electric wheelchair when she left her home. Id.

In affirming the commissioner’s award of this expense to the employee, the key question addressed by this court was whether the modified van was an “appliance” within the meaning of section 85.27. Id. at 264. We concluded that under the “extremely rare” factual situation presented in Sioson it was:

We begin with the unusually strong medical evidence of necessity and of the record that [Sioson’s] family status and past lifestyle reveal no other use of the van. That evidence refutes any contention that the van is a frill or luxury and reveals what can be described as an appliance, not greatly different from crutches or a wheelchair. The point is that a van is necessary in order to make [Sioson’s] wheelchair fully useful.
... [W]e have agreed with the dictionary definition that describes the term “appliance” as “a means to an end.” The “end” of the van is merely an extension of [Sioson’s] 300-pound wheelchair. Without a van she is, more than need be, a prisoner of her severe paralysis. The commissioner could thus reasonably view the van as an appliance, a necessary part of [Sioson’s] care.

Id. (citations omitted).

Our Ciha case also involved an employee who suffered from quadriplegia as a result of a work-related accident. 552 N.W.2d at 147. In that case, the employer refused to pay the expense of modifying a van so as to allow the employee, Ciha, to drive to work. Id. at 154. The commissioner allowed the expense, noting “[a]n appliance has been held to be a device that serves to replace a physical function lost by the injury.” Id. (citing Iowa Admin.Code r. 343— 8.5 (1996) (later renumbered as rule 876— 8.5)). We affirmed, relying on our discussion in Sioson that an “appliance” is “a means to an end.” Id. at 155. We concluded the van modifications were “merely an extension of Ciha’s wheelchair,” and therefore were properly allowed by the commissioner as an appliance, “a necessary part of Ciha’s care.” Id. at 156.

These cases stand, in part, for the principle that an expense falls within the scope of section 85.27 if it covers the cost of a device that replaces a function lost by the employee as a result of the employee s work-related injury. We reject the employer’s contention that an appliance must be necessary for medical care, which was one anticipated use of the van in Sioson— transportation of Sioson to doctor appointments. The determinative circumstance in Sioson and Ciha was the fact that the van and van modifications provided physical mobility lost by the employees due to their quadriplegia. We think a similar circumstance exists under the unique facts before us.

Castle, even more so than Sioson and Ciha, is a prisoner of his injuries. Like them, he has lost the ability to physically move about without the assistance of a mechanical device. But unlike them, a van cannot replace this lost function for long-distance movement because, for now, Castle must remain in the controlled environment of his room to avoid additional medical complications. A computer in this case is comparable to the van in Sioson and Ciha: it provides Castle with access to the outside world — access that has been denied to him by his devastating injuries, and access that can only be gained through this artificial device.

Granted, a computer does not provide physical mobility; but we do not think such precise substitution is required under the liberal interpretation we are required to give to our worker’s compensation statute. As we implied in Sioson and Ciha, it is the end function that is important; an appliance, whatever its form, is simply a means to get there. Here, the end function is the ability to interact with the outside world, not simply physical mobility. Viewed in this manner, a computer is a viable and necessary means to this end.

In summary, we conclude the agency properly interpreted section 85.27 in ruling a computer is an appliance for which Castle’s employer is responsible. This conclusion makes it unnecessary to consider Castle’s alternative contention that the computer is an appliance because it is an “artificial device used ... for therapeutic purposes” within the meaning of rule 876 — 8.5.

Having rejected the employer’s contention that the deputy commissioner erred in her interpretation of the governing law, we also disagree with the employer’s assertion there is not substantial evidence to support the deputy’s findings. The employer argues “the evidence in this case was of inferior quality” because “[n]o qualified medical provider expressed the opinion that Castle needed a computer.” It does not take a “qualified medical provider” to make apparent the effect on Castle of his undeniable injuries. Nor is testimony from a “qualified medical provider” required to allow the deputy to conclude that a computer would replace, electronically, the function lost by Castle as a result of his injuries, the ability to physically move about in the world. We conclude, therefore, that the agency’s decision does not lack the necessary factual support simply because Castle did not have medical testimony, in addition to that offered by his occupational therapist, to support his application.

Finding no error in the agency decision, we affirm the district court judgment reaching the same conclusion. We vacate the court of appeals’ contrary decision.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . Opportunities Unlimited is a nonprofit group residential facility that provides rehabilitation and nursing care for persons who have suffered traumatic injuries.

      . In the briefs originally filed by the parties on appeal, they disagreed on whether appellate review was subject to the 1998 amendments to chapter 17A. See 1998 Iowa Acts ch. 1202, § 24 (codified at Iowa Code § 17A.19(8)-(12) (Supp.1999)). Although the court of appeals rejected Castle’s argument that the amendments did not apply, Castle does not raise this issue in his application for further review and, in fact, relies on the amended statute to support his argument that the court of appeals should not have reversed the district court’s ruling. Because the parties are apparently now in agreement that the amended statute governs this appeal, we apply the 1998 amendments.


author: NEUMAN, Justice.

text:
    WAL-MART STORES, INC., Appellee, v. Richard CASELMAN, Appellant.
    No. 01-0704.
    Supreme Court of Iowa.
    Feb. 26, 2003.

      Paul J. McAndrew, Jr., Coralville, for appellant.
    Chad M. Vonkampen of Simmons, Per-rine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellee.
   NEUMAN, Justice.

This appeal challenges the decision rendered on judicial review of an administrative proceeding for workers’ compensation benefits. The district court disagreed with the compensation commissioner’s factual findings regarding the extent of the workers’ disability as well as the commissioner’s conclusions regarding its award of penalty benefits. The question on appeal is whether the district court applied the proper standard of review and whether the record, properly reviewed, supports the commissioner’s decision.

In keeping with Iowa Code section 17A.19(10)(f) (Supp.1999), we have examined the “record before the court ... viewed as a whole.” Based on our review, we believe that substantial evidence supports the commissioner’s findings and award. We therefore reverse the district court’s contrary decision and remand for entry of an order affirming the agency.

I. Background.

Rick Caselman has been a truck driver for Wal-Mart Stores, Inc., since October 1991. He injured his back in August 1997 while unloading merchandise at a Wal-Mart store in Shenandoah, Iowa. The injury occurred while Caselman was muscling a 130-pound docking plate into place. Conservative treatment using bed rest and anti-inflammatory medications provided only partial relief. An MRI revealed a herniated disc at the L5-S1 level. In October 1997, Caselman underwent surgery for a laminectomy and discectomy. Although the surgery was reportedly successful, continuing back and leg pain has impaired Caselman’s ability to return to his former employment with Wal-Mart. The extent of his impairment is the fighting issue on this appeal.

The parties agree that Caselman’s work injury caused some degree of industrial disability. Our factual focus, therefore, must be on the extent of his loss of earning capacity. Thilges v. Snap-On Tools Corp., 528 N.W.2d 614, 616 (Iowa 1995); Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985). As this court said in Guyton,

[bjodily impairment is merely one factor in gauging industrial disability. Other factors include the worker’s age, intelligence, education, qualifications, experience, and the effect of the injury on the worker’s ability to obtain suitable work. When the combination of factors precludes the worker from obtaining regular employment to earn a living, the worker with only a partial functional disability has a total industrial disability.

Guyton, 373 N.W.2d at 103 (citations omitted); accord IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 632-33 (Iowa 2000).

With these principles in mind, we turn to the record made before the agency.

A. Facts. Caselman was forty-three years old at the time of the hearing. He is a high school graduate but academics have never been his strong suit. He graduated thirty-fifth out of a class of thirty-eight. All of his adult employment has involved unskilled manual labor, most of it physically demanding. He has worked over twenty years as a truck driver, including a two-year period when he owned his own rig. As a younger man he held a number of minimum-wage jobs including grounds maintenance, pizza cook, and service station attendant.

For roughly a year following his hiring by Wal-Mart in 1991, Caselman hauled freight out of the company’s terminal in Mt. Pleasant, Iowa. He then drove a Wal-Mart moving van for several' years, loading, transporting, and unloading household furnishings for company executives and managers who had been transferred to new locations. During 1995 he resumed freight-hauling out of the company’s terminal in Ottawa, Kansas, until, in August 1995, he began driving “claims” runs. This assignment, which involved picking up returned merchandise from a variety of Wal-Mart stores, continued until August 1997 when the injury occurred which is the focus of this appeal.

By all accounts, Caselman has been a valued Wal-Mart employee. Yearly written evaluations based on customer service, safety, team participation, technical skills and driver traits routinely rank him in the “highly effective” category. The general transportation manager at the company’s Ottawa terminal described him as a “good driver” with a “very good work record.” Evidently a strong and relatively healthy person before his work-related injury, Ca-selman’s work history reveals that he took only one day of sick leave in all his prior years with Wal-Mart. He has been financially rewarded for his hard work, earning nearly $90,000 in gross wages during the year before he injured his back.

Post-surgery is another story. Casel-man returned to work at Wal-Mart on December 1, 1997 doing light work at the distribution center. By late January 1998 his surgeon, Dr. Parkins, authorized his return to driving, with a limitation in hours behind the wheel and a weight-lifting restriction. That worked well. Accustomed to working ten-hour days, Caselman drove out and back for a total of six hours on the road (with breaks), finishing up the day with four hours in the office or guard shack. In mid-February, Dr. Parkins released Caselman without restrictions. He resumed full duty, able to secure runs that put him on the road only five hours each way. That changed in early March. Ca-selman was dispatched on a long run, seven hours in one direction, and the pain in his back and leg returned. He was unable to sleep due to the pain. Despite his protest, Wal-Mart continued, to dispatch. Caselman on long runs. He was told that giving him, shorter runs would show unacceptable “favoritism.” His pain worsened over the month and his right leg began cramping and falling asleep.. On March 31, as he was driving into Kansas City from St. Louis, his leg went to sleep and he “could not control it.” He parked his truck, notified Wal-Mart and was relieved of his duty. He has not worked since that day.

Shortly after the incident in Kansas City, Caselman was examined by a Wal-Mart physician, Dr. David Edalati. The doctor’s report recounted Caselman’s leg numbness, and directed that unless Casel-man could be limited to four-hour drives he should be taken off work for one week. He also ordered an examination by Casel-man’s orthopedic surgeon. Within the week, Caselman was examined by the surgeon, Dr. Parkins. The doctor reported that Caselman “generally does well ... when he does not have to drive more than three hours in one direction for a total of 6 hours per day.” He entered a work restriction consistent with that finding.

When Caselman returned to Wal-Mart he was told that its policy had changed and he could not return to work unless he could perform 100 percent. He was encouraged to quit and take long-term disability. A memo in Wal-Mart’s file reveals a request that Dr. Parkins consider cutting back on his restriction, thereby permitting Caselman to “drive 4 hours, rest, then drive 4 more hours.” The memo goes on to state that “Wal-Mart will accommodate light duty for one month” but if the restrictions are permanent “then we will -need to do a rating. Even though long hauls are not done much he still has to be able to drive for 8 hrs.” A few days later, Dr. Parkins re-examined Caselman, and amended his restrictions accordingly. In October 1998, Dr. Parkins reported that Caselman had reached maximum medical improvement (MMI) and gave him a permanent partial impairment rating of “12% of the body as a whole.”

At Wal-Mart’s request, Caselman also received an independent medical evaluation of his back injury by Dr. David Clymer. His report essentially mirrored Dr. Parkin’s findings and recommendation with respect to MMI, impairment rating and restrictions — driving limited to four hours each way with a rest period, a thirty-pound weight-lifting restriction, and a twelve percent permanent impairment of the whole body. His report, however, tended to emphasize the subjective nature of Caselman’s low back discomfort and leg pain, speculating it is probably related to “some ongoing nerve irritation due to fibrosis at the site of the disc and previous surgical exploration.”

Dr. Keith Riggins performed an independent medical evaluation at Caselman’s request. An orthopedic surgeon who retired due to his own physical disability, Dr. Riggins is a fellow of three separate academies: Orthopedic Surgeons, Disability Evaluating Physicians and Occupational and Environmental Medicine. On examining Caselman, he noted certain self-limitation or “variability” in Caselman’s range of motion which he suspected was due .to segmental instability in the spine. That suspicion was not born out by later x-rays. Dr. Riggins nevertheless described Casel-man as

compromised in his ability to engage in activities which require:
-repetitive or persistent forward flex-ion of the trunk or placing the trunk in ungainly positions.
-lifting weights greater than 20 lbs. maximum.
-lifting weights greater than 10 lbs. on a frequent basis.
Weights lifted should be confined to the interval between knee and shoulder, not picked up from the floor and not placed above shoulder level.

Dr. Riggins gave Caselman an impairment rating of eleven percent “of the whole person.”

Two vocational rehabilitation specialists offered their assessments of Caselman’s vocational options. Dan Zumalt, selected by Wal-Mart, reported that Caselman was most highly motivated to return to his former job as a truck driver with Wal-Mart. Zumalt recognized, however, that Caselman’s work restrictions likely prevented his return there. Zumalt did not believe Caselman was suited, intellectually or physically, for other types of work. So Zumalt explored thirty other truck driving opportunities in the region. He concluded that twenty-one (70%) would not accommodate the driving time and weight limitations imposed by Caselman’s physicians. Based on the remaining seven companies he contacted, Zumalt estimated that Casel-man could “return to the open labor market and earn $33,000 annually plus benefits (average $11.40/hr @ 50 hrs/wk).” He made no attempt, however, to secure any of those positions for Caselman.

Barbara Laughlin, a vocational rehabilitation consultant hired by Caselman, noted that Zumalt did not include Dr. Riggins’ restrictions when contacting the seven trucking companies upon whose assessment of employability he relied. She made those calls and learned that none of them would accommodate Caselman’s restrictions. In her view, both the salary and work-hour capacities projected by Zu-malt were unrealistic. The great distance from Caselman’s home to any major metropolitan area limits his access to diverse nonskilled labor positions. Lighter, sedentary work involving clerical/computer skills exceed Caselman’s training and, realistically, his intellectual abilities or interest. She reported that Caselman is highly motivated to return to his job at Wal-Mart, with necessary restrictions, but her conversations with Wal-Mart officials led her to believe “they would not be able to hire him.” She concluded, ultimately, that Ca-selman “has suffered a loss of access to the labor market of approximately 100%.”

Caselman’s wife and son also testified regarding the impact of his back injury on his daily activities. Once active and fun-loving, Caselman is now chronically tired and grouchy. He neither drinks nor smokes. Because pain disrupts his sleep, he and his wife no longer share the same bed, nor have they enjoyed normal sexual relations since his injury. Caselman had been an avid outdoorsman, for years devoting his time off the road to long hunting trips with his sons. Although he bought a hunting license in 1998, the season lasted only two hours for him. He reportedly could not endure the pain in his back and leg. With effort he does the family grocery shopping and yard work at a slow pace, activities which necessitate spending much of the rest of the day recovering on his back.

Further facts will be detailed as they relate to the issues on appeal.

B. Legal proceedings. Based on the record sketched above, the deputy workers’ compensation commissioner found Ca-selman “suffered a 100 percent loss of his earning capacity as a result of the work injury” and, accordingly, found him entitled to permanent total disability benefits under Iowa Code section 85.34(8) (1999) “for the duration of his disability.” The deputy also found that Wal-Mart mistakenly paid Caselman benefits based on Kansas law, rather than Iowa law, and did not repay the difference until months after the error was discovered. Evidently consistent with a pattern repeated in other cases, on a minimum of ten occasions Wal-Mart paid Caselman’s benefit checks from four to eighteen days late. These unexplained delays prompted the deputy to award penalty benefits of $8000.

The deputy’s decision was affirmed on intra-agency appeal. On Wal-Mart’s subsequent petition for judicial review pursuant to Iowa Code chapter 17A, the district court adopted nearly verbatim Wal-Mart’s brief, reversing the agency decision. This appeal by Caselman followed.

II. Scope of Review.

Our review under Iowa Code chapter 17A is for correction of errors at law, not de novo. Locate.Plus.Com, Inc. v. Iowa Dept of Transp., 650 N.W.2d 609, 612 (Iowa 2002). At the outset, however, the parties disagree about the nature of that review. Chapter 17A was amended in 1998, with amendments “effective for, agency action commenced after July 1, 1999.” Id.; see 1998 Iowa Acts ch. 1202, § 46 (act “applicable to agency proceedings commenced on or after [July 1, 1999]”). Because Caselman filed his claim for benefits in August 1998, he argues the former version of chapter 17A should apply. Wal-Mart counters that the new version of the statute appliqs because the amended act’s provisions pertaining to judicial review apply “to the agency action at the time it was taken.” 1998 Iowa Acts ch. 1202, § 24 (now codified at Iowa Code § 17A.19(8)(b) (2001)). This would include the enlarged definition of “substantial evidence” which, Wal-Mart argues, demands more scrutiny than prior case law would suggest.

Wal-Mart has the better argument, at least on its first point. The statutory amendment pertaining to judicial review is consistent with the well-established rule that “statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered.” Ontjes v. McNider, 224 Iowa 115, 118, 275 N.W. 328, 330 (1937); accord Giles v. State, 511 N.W.2d 622, 624 (Iowa 1994); James v. State, 479 N.W.2d 287, 290 (Iowa 1991). The deputy’s decision, filed in November 1999, was affirmed by the agency in August 2000. Wal-Mart’s petition for judicial review was filed in September 2000 and ruled upon in April 2001. Because the agency action under review did not occur until after the revised statute took effect, the district court correctly applied the amended statutory language in its decision on judicial review.

We do not agree, however, with Wal-Mart’s contention that the new “substantial evidence” definition requires a “higher threshold” of proof to support the agency’s decision. We recently held the revisions were not intended “to increase the intensity of judicial review ... but to ensure that courts actually follow the level of review consistent with the act.” Lo-eate.Plus.Com, 650 N.W.2d at 612. The amended statutory language merely provides more express guidance in the application of pertinent legal principles. Id. In the words of the reporter/draftsman of the amendments, Iowa Code section 17A.19(10)(f), as amended, is not “revolutionary” but merely provides a “much more detailed statement of the law intended under the existing IAPA.” Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act (1998) at 68 (1998). Pertinent to this appeal, the amended statute merely reaffirms the notion that courts must not “simply rubber stamp the agency fact finding without engaging in a fairly intensive review of the record to ensure that the fact finding is itself reasonable.” Id.

Recent decisions of this court have noted the amended statute’s reaffirmation of other long-established principles of administrative review. Two are particularly pertinent here. First, section 17A.19(10)(f)(3) specifically requires the court to consider record proof that detracts from any challenged finding as well as evidence that supports it. Dawson v. Iowa Bd. of Med. Exam’rs, 654 N.W.2d 514, 518 (Iowa 2002); accord Titan Tire Corp. v. Employment Appeal Bd., 641 N.W.2d 752, 755 (Iowa 2002) (citing Bums v. Bd. of Nursing, 495 N.W.2d 698, 699 (Iowa 1993)). Second, the amendments to section 17A.19(10)(f) are “[ejntirely consistent” with the well-established rule that evidence is not insubstantial merely because it would have supported contrary inferences. Missman v. Iowa Dep’t of Transp., 653 N.W.2d 363, 367 (Iowa 2002). With these rules in mind we turn to the substantive issues before us.

III. Sufficiency of Evidence to Support Commissioner’s Awards.

A. Permanent total disability. The fighting issue on appeal is whether the record before the agency furnished substantial evidence to support the commissioner’s award of permanent total disability benefits. Wal-Mart argued in district court, and urges in response to Caselman’s appeal, that “[t]he overwhelming medical evidence in this case was that Claimant was able to continue his career as a truck driver.” Indeed, this is the precise language used by the district court to justify its reversal of the commissioner’s ruling. We are convinced, however, that the record — when viewed more objectively — reveals facts that are far less conclusive and that would, in fact, support the inferences drawn by the commissioner.

Crucial to the deputy commissioner’s decision were credibility findings bearing on Caselman’s subjective assessment of his inability to meet the standards required by Wal-Mart — or any other trucking company — in terms of strength and stamina. See Iowa Code § 17A.19(10)(f)(3) (adequacy of evidence must be judged in light of “determinations of veracity by the presiding officer who personally observed the demeanor of the witnesses”). The deputy began his factual findings this way:

From my observation of [Caselman’s] demeanor at hearing including body movements, vocal characteristics, eye contact and facial mannerisms while testifying in addition to consideration of the other evidence, I find Richard credible, including his self-described physical limitations. What doubt I may have had about the self-assessment of his limitations was extinguished by the testimony at hearing by Richard’s superior at Wal-Mart, the transportation manager, Lisa Martins. Martins stated that Richard was an honest employee and she had no reason to disbelieve Richard’s statements concerning his limitations or the numbness in his leg which prevents a return to truck driving.

(Emphasis added.) Caselman’s testimony, corroborated by the testimony of others experienced in the trucking field, described at great length the physical tasks in semi-truck driving, even of the “drop and load” variety. Caselman’s most recent assignment at Wal-Mart involved picking up returned merchandise from a variety of stores. This routinely involved loading items weighing from five to 160 pounds, often without the availability of dollies or store-staff help. More fundamental demands of semi-truck driving, however, range from the basic necessity of pulling one’s weight up into the cab to the more demanding tasks of engaging the fifth-wheel pin, cranking the trailer dolly, adjusting the rear wheels, transferring hoses, opening cargo doors and moving docking plates into place. As correctly noted by the deputy, all these routine tasks “require more force than allowed by any doctor in this case.” For this reason, we believe it reasonable for the deputy to characterize Wal-Mart’s vocational counselor’s contrary conclusion as “not makfing] much sense.” The deputy credited, instead, the report of McLaughlin who entertained “grave reservations” about Caselman’s ability to perform the job of truck driver safely, notwithstanding his strong motivation to do so.

Wal-Mart also argued on judicial review that the testimony of Caselman’s independent examining physician, Dr. Riggins, must be given little weight because he was “selected” by Caselman’s counsel and, hence, not “independent.” Echoing Wal-Mart’s brief, the district court’s ruling asserts that the deputy “disregarded the evidence of [six other] doctors and relied on the ‘suspicions’ expressed by Claimant’s doctor, Dr. Keith Riggins.” The deputy’s credibility assessment on this point, however, defeats the court’s expressed concern. In the deputy’s words,

the work restrictions imposed by the physicians, including those of Dr. Rig-gins, are causally related to the work injury. Dr. Riggins’ views must be given considerable weight as they are the most recent, they are from a board certified orthopedic surgeon and they are the most consistent with Richard’s credible testimony.

(Emphasis added.) Substantial evidence in the record supports the deputy’s credibility finding. By contrast to the other physicians and orthopedic surgeons who testified, Dr. Riggins is the only one who is board certified not only in orthopedic surgery but in the evaluation of disabilities and occupational medicine. A reasonable fact finder could assume that his tendency to accord greater weight to Caselman’s subjective complaints of pain merely reflects his enhanced credentials in making such assessments, rather than some attempt to satisfy a “paying” customer. The court’s contrary implication is not warranted under this record.

The district court also criticized the deputy for “ignoring” the fact that Caselman has twice applied for, and been denied, social security disability benefits. Even more is made of the fact that the deputy did not mention the conclusions drawn by the doctors who reviewed Caselman’s medical history in that connection. The record reveals, however, that those doctors never examined Caselman. And given the markedly different standards applicable to receipt of awards in these different realms, we do not believe the deputy’s failure to address Wal-Mart’s argument on this score detracts materially from its other findings.

It would unduly lengthen this opinion — and add little to our jurisprudence— to recount in further detail all of the facts that support and detract from the deputy commissioner’s findings and conclusions. Our task is to “broadly and liberally apply [the deputy’s] findings to uphold rather than to defeat the agency’s decision.” Al-Gharib, 604 N.W.2d at 632. While those with desk jobs might question how a person with no more than a common back injury could be suddenly rendered totally and permanently disabled, the record before us contains substantial evidence to support that conclusion. The fact that different inferences could be drawn from the same record does not diminish the soundness of the deputy commissioner’s findings and conclusions “[w]hen that record is viewed as a whole.” See Iowa Code § 17A.19(10)(f)(3).

Quoting the commissioner in Alr-Gharib, this court observed that “[t]otal disability does not mean a state of absolute helplessness.” Ab-Gharib, 604 N.W.2d at 633. The question is whether Caselman’s work-related injury has “wholly disable[d][him] from performing work that [his] experience, training, intelligence, and physical capacities would otherwise permit [him] to perform.” Id. Credible evidence in the record made before the agency supports the deputy’s conclusion that Caselman is no longer able to engage in employment for which he is fitted. See id. And although, in the deputy’s words, the parties’ vocational experts held “radically divergent” views on this point, that fact did not thereby free the court to substitute its judgment for the presiding officer who observed the testimony first-hand. We therefore reverse the judgment of the district court and remand for entry of an order affirming the agency’s award.

B. Penalty award. Caselman also challenges the district court’s reversal of the agency’s $8000 award of penalty benefits. He claims substantial evidence supports the award based on the commissioner’s finding that Wal-Mart delayed unreasonably in rectifying its original error of paying under lower, Kansas rates and thereafter making several payments late. Wal-Mart counters that reversal and remand were justified under the record. It does not deny, however, that some amount of penalty benefits are warranted in this case.

At the outset Wal-Mart challenges the commissioner’s consideration of other recent cases in which penalty benefits had been assessed against the company. However in laying out the factors the commissioner may consider when imposing penalty benefits, this court has specifically included “the prior penalties imposed against the employer.” Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 238 (Iowa 1996); accord Meyers v. Holiday Express Corp., 551 N.W.2d 602, 605 (Iowa 1996). Such evidence was properly considered by the deputy in fashioning the award and furnished no grounds for reversal of the award by the district court on judicial review.

Penalty benefits are authorized under Iowa Code section 86.13. The relevant portion of that statute states:

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 ... up to fifty percent of the amount of benefits that were unreasonably delayed or denied.

Iowa Code § 86.13.

The key to determining whether penalty benefits should be awarded is whether the employer’s actions were reasonable. Gilbert v. USF Holland, Inc., 637 N.W.2d 194, 198 (Iowa 2001); Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996); Meyers, 557 N.W.2d at 504-05; Robbennolt, 555 N.W.2d at 236-37. Delay may be justified if “(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.” Meyers, 557 N.W.2d at 504. In other words, a reasonable basis for delay is synonymous with a fairly debatable claim. Meyers, 557 N.W.2d at 504.

Two delays in payment are at issue here. First, when Wal-Mart commenced paying Caselman’s workers’ compensation benefits, it applied the lower Kansas rate rather than the rate required by Iowa law. Wal-Mart argues that it was at least fairly debatable that Caselman was entitled to Kansas, rather than Iowa, workers’ compensation benefits. Its argument is not persuasive.

Kansas law grants it jurisdiction of worker’s injury claims outside the state if Kansas is the principal place of employment. Kan. Stat. Ann. § 44-506 (1999). Caselman was dispatched out of Kansas but worked in several states, made his employment contract in Iowa, and was injured in Iowa. The deputy observed that Wal-Mart would have challenged Iowa’s jurisdiction if there had been a fairly debatable basis for Wal-Mart’s claim that Kansas law applied. Moreover, the company admitted in August 1998 that paying benefits under Kansas law was in error but it failed to pay the differential until October 1998. Although Wal-Mart eventually paid interest as a result of the error, we agree that substantial evidence supports the deputy’s finding that Wal-Mart’s position on the point was not fairly debatable. A penalty award was thus justified.

The deputy also assessed the penalty because weekly disability checks were not delivered to Caselman on time. Workers’ compensation checks must be mailed or personally delivered on the date the payment is due. Meyers, 557 N.W.2d at 505. Imposition of a penalty is unjustified only if the employer has a reasonable excuse for the delay and “conveys that reason to the employee contemporaneously with the beginning of the delay.” Id. at 504.

Wal-Mart admits that at least two or three checks were late. Based on Casel-man’s testimony, however, the deputy could have found that between ten and twenty checks were mailed late. So also could the deputy infer from the record a lack of contemporaneous explanation for the delay. For example, not until sending a letter dated April 7 to Caselman’s counsel did the company explain the reason for delay of payments due March 16 and March 30.

The district court rejected these findings, seemingly satisfied that the delay merely resulted from “a recurring problem with Wal-Mart’s auto pay computer program for workers’ compensation benefits.” Like the deputy, we do not believe this explanation comports with the spirit of section 86.13. While isolated delays occasioned by computer glitches may be unavoidable and, hence, reasonable, recurring and unexplained technical problems affecting the timely receipt of benefits are not. In short, the record amply supports the penalty award imposed by the agency. We therefore reverse and remand for entry of an order affirming that award.

REVERSED AND REMANDED.

      . The statute, as amended, authorizes the court on judicial review to reverse the agency decision
      [biased 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. For purposes of this paragraph ...
      (1) ''Substantial evidence” means the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.
      Iowa Code § 17A.19(10)(f) (2001).


author: BLATZ, Chief Justice.

text:
    STATE of Minnesota, Appellant, v. Eric NMN KROMAH, et al., Respondents, Charden Marlowe Gomez, Respondent.
    No. C8-02-1034.
    Supreme Court of Minnesota.
    Feb. 24, 2003.

      Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, Sr. Assistant County Attorney, Minneapolis, MN, Stephen L. Redding, Sr. Assistant County Attorney, Minneapolis, MN, for Appellant.
    Leonardo Castro, Chief Fourth District Public Defender, Patrick Sullivan, David Murrin, Assistant Hennepin County Public Defenders, Minneapolis, MN, Caroline Durham, Minneapolis, MN, for Respondents.
   OPINION

BLATZ, Chief Justice.

The state appeals a pretrial district court decision suppressing DNA evidence in eight separately charged cases involving different defendants and offenses. For ease of reference, these eight defendants will be referred to as the “Kromah, et al., defendants.” The court concluded that the DNA testing methodology, known as PCR-STR, and the kits that utilized the PCR-STR methodology were “generally accepted in the scientific community and that the BCA [Minnesota Bureau of Criminal Apprehension] lab’s matches have foundational reliability” as required under the Frye-Mack test. Nonetheless, relying on the Minnesota Court of Appeals decision in State v. Traylor, 641 N.W.2d 335 (Minn.App.2002), the district court concluded that the DNA evidence was inadmissible because the BCA did not comply with the Technical Working Group on DNA Analysis Method (TWGDAM) guidelines. The state contends that the district court’s conclusion was in error and that the DNA Advisory Board (DAB) standards complied with by the BCA have superseded the TWGDAM guidelines. We reverse, and remand to the district court for further proceedings consistent with our holding in State v. Traylor, No. C6-01-244, 656 N.W.2d 885 (Minn.2003).

The Kromah, et al., defendants have been charged with an array of crimes including murder, criminal sexual conduct, kidnapping, and assault. In each case, blood or semen samples were taken and the DNA analysis performed by the BCA allegedly connected each defendant to a victim or a crime scene. It is this evidence that the state intended to introduce at trial that is the subject of this appeal.

Based on the court of appeals decision in Traylor, each of the Kromah, et al., defendants brought a pretrial motion to suppress the DNA evidence. The eight cases were joined for the purpose of conducting a combined Frye-Mack pretrial hearing. Because the grounds for the defendants’ motions to suppress involved all the issues raised in Traylor, the court granted the state’s motion to supplement the record with the exhibits and transcripts from the Traylor hearing.

At the conclusion of the Frye-Mack hearing, the district court granted the defendants’ motion to suppress the DNA evidence. The court based its ruling on the court of appeals holding in Traylor that the TWGDAM guidelines must be followed. Because the district court determined that the TWGDAM guidelines required the primer sequences to be known to the scientific community at large and because the primer sequences were not known, the court concluded that the BCA’s testing procedures were not in compliance with the TWGDAM guidelines. It is from this decision that the state petitioned our court for accelerated review in an effort to join the Kromah, et al., cases with the Traylor case. We granted the state’s petition but did not consolidate the Traylor and Kromah, et al., cases. Instead, we heard and considered the cases contemporaneously.

The threshold issue that we must address in a pretrial appeal is whether the state has demonstrated that the suppression of the DNA evidence will have a critical impact on the outcome of the trial. State v. Webber, 262 N.W.2d 157, 159 (Minn.1977). “Critical impact is met when the suppression of the evidence significantly reduces the likelihood of a successful prosecution.” In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn.1999) (citing State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987)). The Kromah, et al., defendants contend that the state has not made a showing of critical impact, and therefore, review by this court is improper.

Review of the record reveals that the facts are not sufficiently developed for us to conclude that the suppression of the DNA evidence significantly reduces the likelihood of a successful prosecution in each of these cases. Nonetheless, the issue in each of these cases — the suppression of DNA testing using the PCR-STR methodology — is identical to the issue in State v. Traylor, 641 N.W.2d 335, 341 (Minn.App.2002), rev. granted (Minn. May 14, 2002). Important to our consideration to grant the petition for accelerated review in the first instance was our expectation that the record in the joined cases, which was developed two years after the record in Traylor, would provide a more complete and updated record for our review in deciding the complex issues surrounding DNA testing. For this reason and in the interest of judicial economy, we exercise our inherent authority to review these eight cases in this particular and unique situation.

We turn to the next issue of whether the district court erred in suppressing the DNA evidence in these eight cases. Treating the court of appeals decision in Traylor as stare decisis, the district court examined the BCA’s compliance with the TWGDAM guidelines and ruled that the TWGDAM guidelines were not met. Because compliance with the TWGDAM guidelines is not mandated, we reverse and remand the matter to the district court for further proceedings to determine if the BCA has complied with the appropriate standards and procedures for DNA testing. See State v. Traylor, No. C6-01-244, 656 N.W.2d 885 (Minn.2003)

Finally, in addition to contesting the admissibility of the DNA evidence, the Kro-mah, et al., defendants contest the district court’s findings regarding the presentation of the DNA statistical evidence. The state contends the defendants waived this issue because they did not cross-appeal the district court’s ruling on the presentation of statistical evidence or cross-petition when the state filed its petition for accelerated review. We agree with the state and decline to address the issue at this stage in the proceeding.

Nonetheless, we encourage district courts to be mindful of the impact of quantitative probability statistics on DNA analysis. In State v. Joon Kyu Kim, we disallowed the admission of quantitative statistical probability evidence, recognizing the danger that a jury may equate such evidence with the likelihood that the defendant was guilty. 398 N.W.2d 544, 548-49 (Minn.1987). Although in State v. Bloom we provided a DNA exception to the Kim rule that quantitative statistical probability evidence is inadmissible, we did so without overturning Kim. 516 N.W.2d 159, 167-68 (Minn.1994). Thus, courts need to be fully cognizant of the potentially prejudicial nature of the statistical probability evidence and ensure that DNA identification evidence is not presented in a misleading or unfairly prejudicial way. Bloom, 516 N.W.2d at 168-69.

Reversed and remanded.

HANSON, J., took no part.

      . The following eight cases have been joined for purposes of this appeal: State v. Kromah, No. 01092843 (Hennepin County Dist. Ct. June 19, 2002); State v. Gomez, No. 01031426 (Hennepin County Dist. Ct. June 19, 2002); State v. Wilson, No. 02007849 (Hennepin County Dist. Ct. June 19, 2002); State v. Newman, No. 02020774 (Hennepin County Dist. Ct. June 19, 2002); State v. Szutz, No. 01104493 (Hennepin County Dist. Ct. June 19, 2002); State v. Johnson, No. 01080426 (Hennepin County Dist. Ct. June 19, 2002); State v. Gumeau, No. 02013492 (Hennepin County Dist. Ct. June 19, 2002); and State v, Dahlin, No. 01004420 (Hennepin County Dist. Ct. June 19, 2002).

      . In Minnesota a two-pronged standard, known as Frye-Mack, must be satisfied before DNA evidence may be admitted. The first prong of the Frye-Mack standard, general acceptance in the relevant scientific community, looks at whether experts in the field widely share the view that the results of scientific testing are scientifically reliable. State v. Roman Nose, 649 N.W.2d 815, 819 (Minn.2002). The second prong, foundational reliability, examines whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls. Id.

      . Though the district court noted that it was not bound by the court of appeals decision in Traylor because we had granted review, the district court nonetheless considered the decision as stare decisis.

      . The potentially prejudicial or misleading nature of DNA evidence is of increasing concern with the current DNA identification techniques. Because of the number of loci that can now be tested, the traditional probability statistical methods yield statistics such as one out of the world's population or one in 800 billion. See State v. Thoms, No. CO-01-1373, 2002 WL 1420724 at *1 (Minn.App. July 2, 2002), rev. denied (Minn. Sept. 17, 2002); Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357, 358 (2001). With numbers of this magnitude, district courts should be mindful of the potential impact such numbers may have on jurors and take steps to ensure that the presentation of the statistical evidence is not unfairly prejudicial or misleading.


author: PAUL H. ANDERSON, Associate Justice.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST John Dov SCOTT, a Minnesota Attorney, Registration No. 270635.
    No. C9-03-260.
    Supreme Court of Minnesota.
    March 4, 2003.
   ORDER

PAUL H. ANDERSON, Associate Justice.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent John Dov Scott has committed professional misconduct warranting public discipline, namely, respondent made false statements of fact to the court in his own marital dissolution and custody matter in violation of Minn. R. Prof. Conduct 3.3(a)(1), 8.4(c) and 8.4(d).

Respondent admits that his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLRP), 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; compliance with Rule 26, RLPR, successful completion of the professional responsibility examination under Rule 18(e), RLPR within one year; and payment of $900 in costs pursuant to Rule 24, RLPR. The parties further recommend that respondent be reinstated following the expiration of the suspension provided that at least 15 days before the expiration of the suspension period, respondent files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education and has fully complied with Rules 24 and 26, RLPR.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent John Dov Scott is suspended from the practice of law for 30 days, effective 14 days from the date of this order, subject to the agreed-upon conditions set forth above. Respondent shall pay $900 in costs and disbursements under Rule 24, RLPR.


author: /s/Paul H. Anderson Associate Justice

text:
    Craig S. REEVES, Relator, v. SOUTHSIDE DISTRIBUTORS, INC., and Crawford & Company, Respondents, and Suburban Radiologic, Fairview Health Services, Intervenors.
    No. C4-02-2133.
    Supreme Court of Minnesota.
    March 5, 2003.
    Dennis R. Letourneau, St. Louis Park, MN, for Relator.
    Michael Forde, Kelly M. Brewbaker, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Employer/Insurer-Respondent.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed November 5, 2002, be, and the same is, affirmed without opinion. See Minn. R. Civ.App. P. 136.01.

BY THE COURT:

/s/Paul H. Anderson Associate Justice

BLATZ, C.J., took no part in the consideration or decision of this case.