author: STREIT, Justice.

text:
    Craig J. JENSEN, Appellant, v. James A. SATTLER and Julie M. Sattler, Appellees.
    No. 03-1251.
    Supreme Court of Iowa.
    April 29, 2005.
    Rehearing Denied June 1, 2005.

      Stephen J. Holtman, Leonard T. Strand, and Jason M. Steffens of Simmons, Per-rine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Sean W. McPartland of Lynch Dallas, P.C., Cedar Rapids, for appellees.
   STREIT, Justice.

Three years after a Cedar Rapids couple sold a man their mansion with its “touch of Beverly Hills,” it turned into a money pit. The buyer sued the couple for misrepresentation and a violation of Iowa’s Real Estate Disclosure Act. The district court ruled he had to prove fraud to recover and consolidated his claims. The court also dismissed one of the sellers from the suit because she did not sign a disclosure form. The buyer lost what remained of his case, which was tried to a jury. We reverse in part and remand for a trial on the claims the court prematurely dismissed.

I. Facts and Prior Proceedings

In December 1997, James and Julie Sattler sold their home to Craig Jensen for $660,000. The Sattlers had lived in the home since 1993. James Sattler owned Jim Sattler Construction Company, Inc., which built the house in 1992.

When James Sattler first showed Jensen the house, he handed Jensen a brochure that attested to the high quality of Sattler homes. The brochure characterized Sattler as a “hands-on” supervisor who was “on the job-site all the time.” The house was featured in the local Parade of Homes and touted as “an elegant ‘touch of Beverly Hills’ right here in Cedar Rapids!” It is a large executive home with over 8000 square feet of living space.

Prior to closing, the Sattlers gave Jensen a real estate disclosure form. See Iowa Code § 558A.2 (1997) (requiring transferors of real estate to provide buyers a written disclosure statement). James Sattler signed the form but Julie Sattler did not. Two problems were disclosed: (1) a crack in the front wall that caused water to leak into the basement “ONE TIME ONLY!” and (2) a faulty master shower valve.- Neither problem dissuaded Jensen from buying the home. Jensen moved in and for three years did not have any" problems, except for an intermittent inability to adequately cool the upper level of the house.

In 2001, Jensen claimed he discovered problems with (1) the roof and attic, (2) electrical wiring in the foyer, and (8) improper drainage around the foundation. Trouble began on New Year’s Day when Jensen found water streaming down the interior walls of the home. Inadequate attic ventilation had caused large ice dams to form on the roof. Water backed up behind the dams and seeped through the roof into the attic and down the inside of the house. Extensive damage resulted.

While repairing the water damage, Jensen found an electrical problem in the foyer. Jensen discovered sixty light bulb sockets in the foyer lighting were empty. Workers filled all the sockets with bulbs, but the electrical wiring proved insufficient, overloaded, and melted.

Lastly, Jensen had problems with the crack in the basement which the Sattlers had disclosed. The crack widened and water seeped into the basement. Jensen excavated around the crack and found the drainage tile around the foundation was clogged with dirt. The tile was only three inches in diameter and not surrounded by gravel. Jensen also claimed dirt was back-filled too high around the house.

Jensen sued the Sattlers on a common law and a statutory basis. Jensen’s pleadings show three distinct common law claims: fraudulent misrepresentation, fraudulent nondisclosure, and negligent misrepresentation. Jensen also argued the Sattlers failed to disclose defects pursuant to Iowa Code chapter 558A.

The Sattlers filed a motion for summary judgment. The district court granted most of the motion. First, the district court dismissed all claims against Julie Sattler because she did not (1) make any affirmative representations to Jensen about the house or (2) sign the disclosure statement. Second, the district court dismissed Jensen’s claims “as to any negligent misrepresentation claim against [James Sattler]” but overruled the motion “as to any claim of fraudulent misrepresentation or Chapter 558A violation by [James Sattler].” The court held “proof of the violation of the standards set out in Chapter 558A” was required to recover and later gave the jury an instruction that blended the common law and statutory claims into one common law claim of fraudulent nondisclosure. The jury found in favor of Sattler. Jensen appealed.

II. Motion on Appeal

Before reaching the merits of the appeal, we must rule upon one outstanding motion. This past June, the Sattlers filed a notice of additional authority. See Iowa R.App. P. 6.21. In their notice, the Satt-lers directed our attention to a new case and discussed how it supported their arguments on appeal.

Jensen moved to strike the argumentative portions of the Sattlers’ notice of additional authority. Jensen claimed a party may not use such a notice to interject additional written argument into an appeal. We grant Jensen’s motion to strike.

III. The Merits

Jensen claims the district court erred when it (1) held proof of fraud was required for a buyer to recover under the Iowa Real Estate Disclosure Act; (2) consolidated Jensen’s common law and statutory claims; (3) granted summary judgment in favor of Julie Sattler; and (4) erroneously excluded certain evidence from trial. The first three issues in this case involve issues of statutory interpretation, and therefore our standard of review is for errors at law. In re Detention of Willis, 691 N.W.2d 726, 728 (Iowa 2005). We review the evidentiary claims for an abuse of discretion. In re Detention of Palmer, 691 N.W.2d 413, 416 (Iowa 2005).

A. Does Iowa Code Section 558A.6(1) Require Proof of Fraud?

Iowa Code chapter 558A is Iowa’s Real Estate Disclosure Act. It requires persons interested in transferring real estate to deliver a written disclosure statement to prospective buyers. Iowa Code § 558A.2. The disclosure statement must include certain information about the “condition and important characteristics and structures on the property” as provided in rules adopted by the real estate commission. Id. § 558A.4(1); see, e.g., Iowa Admin. Code r. 193E-14.1(6) (setting forth sample disclosure statement). A person who violates the Act’s disclosure requirement is ordinarily liable for the amount of actual damage the buyer suffers. Id. § -558A.6. That said, the Act states

[t]he transferor ... shall not be liable for [any] error, inaccuracy, or omission in information required in a disclosure statement, unless that person has actual knowledge of the inaccuracy, or fails to exercise ordinary care in obtaining the information.

Id. § 558A.6(1) (emphasis added).

Jensen argues the plain language of the above-italicized portion of the statute permits a buyer to recover upon a showing the transferor did not exercise ordinary care in obtaining the information required to be disclosed. He contends this , standard is something less than fraud. The Sattlers maintain Jensen did not preserve error. In the alternative, they claim the district court correctly interpreted the statute.

1. Error Preservation

We find no mérit in the Sattlers’ error preservation claim. Jensen alleged a violation of the statute in his petition. The Sattlers filed a motion for summary judgment and a reply brief in which they repeatedly insisted Jensen had to prove fraud to recover under the statute. It is true the summary judgment record is not a model of clarity. Jensen generally resisted summary judgment, however, and in hindsight it is plain the district court’s ruling barred Jensen from introducing evidence to show the Sattlers did not exercise ordinary care in obtaining the information to disclose on the form. Jensen preserved error. See State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975) (if a trial court’s ruling is dispositive on the issue of admissibility, it is considered final for purposes of appeal and no further objection is necessary).

That Jensen preserved error is apparent from other pretrial filings. The Sattlers filed a motion in limine in which they contended the statute required a showing of fraud. They argued “[v]erbal references to a negligence standard would be highly prejudicial, misleading, and.confusing to,the jury” and requested Jensen, his counsel, and the plaintiffs witnesses be “admonished” not to make any such statements. In a contemporaneously filed,pretrial statement Jensen argued the Sattlers

can be liable for failure to make accurate disclosures' not only for actual knowledge that the conditions exist but also for failing to “exercise ordinary care in obtaining the information.” 558A.6(1).

The district court granted the Sattlers’ motion and forbade Jensen from arguing a negligence standard at trial. Error was clearly preserved. See Miller, 229 N.W.2d at 768; see also State V. Wells, 629 N.W.2d 346, 355 (Iowa 2001) (pointing out our concern is what the ruling of the trial court does or purports to' do, not the title of the motion or the prayer). Jensen was not required to file a posttrial motion to preserve error,as the Sattlers suggest. See Miller, 229 N.W.2d at ,768; see also Explore Info. Servs. v. Iowa, Ct. Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001) (holding “it is necessary to preserve error [with a rule 1.904(2)] motion only when the district court fails to resolve an issue ... properly submitted for adjudication” (emphasis in original)).

2. Exercising Ordinary Care in Obtaining the Information

Jensen argues the plain language of Iowa Code section 558A.6(1) permits a buyer of real estate to recover for damages even if the' buyer is unable to prove fraud or that the seller had actual knowledge of the error, inaccuracy, or omission in the disclosure form. Jensen points to the “exercise ordinary care in obtaining the information” language in the statute, and argues this provision is intended to create a cause of action for negligence. Cf. Knapp v. Simmons, 345 N.W.2d 118, 124 (Iowa 1984) (equating “ordinary care” with “reasonable care”). The Sattlers argue the “ordinary care” language is not synonymous with a negligence standard. They contend that if we were to rule against them a parade of horribles would ensue, permitting buyers to sue sellers whenever they failed to exercise ordinary care in obtaining the information on the disclosure form. They also argue it would be absurd because no one would ever need to prove actual knowledge. In the alternative, the Sattlers claim Iowa Code section 558A.6(1) is intended to apply only to absentee owners so they will make a reasonable investigation into the property they own, not sellers like the Sattlers who had lived in the home for years and had complete knowledge of it.

We must read the statute as it is written. See Gannon v. Bd. of Regents, 692 N.W.2d 31, 43 (Iowa 2005); see also Iowa R.App. P. 6.14(6)(to) (noting it is well established that we find intent in what the legislature said, not what it might have said). The Sattlers’ policy arguments are of little help in this case. The scope of the statute is a matter of public policy and therefore within the province of the legislature. PanDa Eng’g v. Eng’g & Land Surveying Examining Bd., 621 N.W.2d 196,199 (Iowa 2001).

The plain and unambiguous language of the statute clearly indicates a seller can be liable for something less than a knowingly inaccurate disclosure, i.e., if the seller “fails to exercise ordinary care in obtaining the information” to be put on the disclosure form. The Act places a limited affirmative duty upon sellers insofar as they must “exercise ordinary care in obtaining the information.” Iowa Code § 558A.6(1); see also Leonard A. Bernstein. & George F. Magera, Seller Disclosure Laws Gain Popularity, 9 Loy. Consumer L. Rep. 43, 49 n. 57 (1997) (including Iowa’s statute among those requiring “at least some affirmative investigation”). There is nothing in the statute indicating this duty is limited to absentee owners as the Sattlers suggest. For example, one question on the disclosure form is “Do you know the zoning classification of the property?” Iowa Admin. Code r. 193E-14.1(6). A seller must exercise ordinary care in obtaining this information whether or not the seller lives on the property. This interpretation of the statute is in harmony with the Act’s insistence that “[a]ll information required by this section and rules adopted by the [real estate] commission shall be disclosed in good faith.” Iowa Code § 558A.3(1). Section 558A.3(1) states that good faith includes “a reasonable effort ... to ascertain the information.” See also id. § 558A.3(2)(6) (using failure to exercise ordinary care language after discussion of good faith duty to amend disclosure statement).

3. Sedgwick

It is true in Sedgwick v. Bowers we stated the “court of appeals has held that [the elements of fraud] are required for recovery under an action based on chapter 558A,, and we agree.” 681 N.W.2d 607, 611 (Iowa 2004) (citing Arthur v. Brick, 565 N.W.2d 623, 625-26 (Iowa Ct.App.1997)). On further examination, we find this statement was inaccurate. In Arthur, the court of appeals was adjudicating a common law fraudulent misrepresentation claim, not a chapter 558A statutory nondisclosure claim. 565 N.W.2d at 625. In any event, Sedgwick is distinguishable from the case at bar because the plaintiff in that case apparently did not bring a claim under the ordinary care prong of the statute. 681 N.W.2d at 612 (holding that the district court’s finding that seller had not “misrepresented” condition of property was not supported by substantial evidence). Sedgwick thus did not squarely address the issue presented here. Therefore our broad language in that case, even if it were valid, is not controlling. See Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8,14 (Iowa 2004).

4. Disposition

In sum, we hold the district court erred when it held proof of fraud was required for a buyer to recover under the Iowa Real Estate Disclosure Act. It is sufficient if the buyer shows the seller failed to exercise ordinary care in obtaining the information sought on the form. Iowa Code 558A.6(1). The complexity of this case, of course, is that one of the sellers was intimately involved in the construction of the home. We reverse and remand for a trial on Jensen’s chapter 558A claim.

B. Was Consolidation of Jensen’s Common Law and Statutory Claims Proper?

Because the district court held a buyer must prove fraud on the part of the seller to recover under the Act, it consolidated Jensen’s common law and statutory claims into one claim for fraudulent nondisclosure. This was also error. The causes of action are distinct and not subject to consolidation.

Iowa Code section 558A.6 only requires the plaintiff to show actual knowledge of a problem that was required to be disclosed, not the elements of fraud. To the extent Sedgwick holds to the contrary, we overrule it. The causes of action have different elements. Compare Iowa Code § 558A.6(1) (requiring proof of “actual knowledge” or “failure to exercise ordinary care in obtaining the information”), with Robinson v. Perpetual Sews. Corp., 412 N.W.2d 562, 565 (Iowa 1987) (setting forth the seven elements for recovery in a fraud action). The plaintiff also carries a greater burden of proof on a fraud claim. See Robinson, 412 N.W.2d at 565 (pointing out proof by a mere preponderance of the evidence hot sufficient in fraud action). In addition, the Act explicitly states it “shall not limit or abridge any ... liability for disclosure created by another provision of law.” Iowa Code § 558A.7. For all these reasons, we implicitly recognized the independent nature of chapter 558A and common law claims in a prior case. See Peterson v. Bottomley, 582 N.W.2d 187, 189 (Iowa 1998) (holding district court erred when it ruled on chapter 558A claim when plaintiff only pled a common law theory).

In sum, the district court should have permitted Jensen to independently pursue his common law and statutory claims, and it erred when it ruled otherwise. A jury could have found Jensen established a violation of the statute, even if he did not prove his common law fraud claim. We reverse and remand for a new trial on both the actual knowledge and the failure to exercise ordinary care prongs of Jensen’s statutory claim.

Because Jensen does not contend the district court’s instruction erroneously characterized his common law fraud claims, however, to that extent we let the jury’s decision stand. We also affirm the district court’s dismissal of Jensen’s common law negligent misrepresentation claim, albeit apparently for a different reason than the district court. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002) (holding supreme court may affirm on an alternate ground so long as it was urged in the district court). In the district court, the Sattlers argued Jensen’s negligent misrepresentation claim should be dismissed because he had made no showing the Sattlers owed him a duty of care. We agree. The Sattlers were not in the business or profession of supplying information to Jensen; this was an arms-length and adversarial transaction. Absent a special relationship giving rise to a duty of care, a plaintiff cannot establish negligent misrepresentation. See, e.g., Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 124 (Iowa 200Í); Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 227 (Iowa 1998); Fry v. Mount, 554 N.W.2d 263, 265-66 (Iowa 1996); cf. Madren v. Super Valu, Inc., 183 F.Supp.2d 1138, 1143-44 (S.D.Iowa 2002) (applying Iowa law).

C. Mrs. Sattler

The district court dismissed Julie Sattler from the suit altogether. The court did so because she did not sign the disclosure form and there was no evidence she made any affirmative representations to Jensen. Jensen challenges dismissal of his statutory claim against Mrs. Sattler. He does not appeal dismissal of the common law claims with respect to her.

The disclosure requirements of Iowa Code chapter 558A apply to all prospective transferors of real estate. See Iowa Code §§ 558A.2, .6(1). The Act states “[a] person interested in transferring real property ... shall deliver a written disclosure statement to a person interested in being transferred the real property.” Id. § 558A.2(1). Elsewhere the Act defines a transferor as “a person who is transferring real property as provided in an instrument containing the power to transfer real estate.” Id. § 558A.1(6). Julie Sattler owned the house with her husband and was plainly a transferor under the Act. Therefore she was obligated to provide a written disclosure statement to Jensen.

The district court ruled that because Julie Sattler did not sign the disclosure form, she was not liable under chapter 558A for any defects in the' property. Neither the Act nor the administrative rules, however, provides an exception from liability for transferors who do not sign their disclosure statements. Were either to do so, of course, no transferor would ever sign a disclosure statement, and thus the manifest purpose of the Act would be defeated. Simply because Julie Sattler did not sign the disclosure form should not allow her to escape liability.

The parties do not contest that James Sattler provided Jensen with a disclosure form. Julie Sattler thereby complied .with the Act’s mandate to provide the buyer a written disclosure statement. See Iowa Code § 558A.2(1) (requiring all transferors to provide a disclosure statement). That said, she may yet be liable if Jensen can show she violated the disclosure provisions of the Act. She remains liable if Jensen can prove she had actual knowledge of the undisclosed defects or failed to “exercise ordinary care in obtaining the information.” Id. § 558A.6. We reverse and reinstate all statutory claims against Julie Sattler.

D. Evidentiary Matters

Jensen challenges two evidentiary rulings the district court made at trial. Jensen offered correction notices the City of Cedar Rapids issued to Sattler during the construction of the house and a neighbor’s testimony regarding the amount of construction work James Sattler personally performed. The district court excluded the correction notices because it determined they were irrelevant and the neighbor’s testimony because Jensen did not disclose it in a timely manner.

We afford the district court wide discretion in evidentiary matters, see State v. Price, 692 N.W.2d 1, 6 (Iowa 2005), and refusal to allow evidence is a proper sanction for violating a discovery order. Iowa R. Civ. P. 1.617(2)(6 )(2). We find no abuse of discretion in either ruling. See Heinz v. Heinz, 653 N.W.2d 334, 338 (Iowa 2002) (noting reversal under abuse of discretion standard only warranted when ruling rests on clearly untenable or unreasonable grounds). The jury’s verdict on Jensen’s common law fraud claim stands.

IV. Conclusion

We reverse and remand for another trial. Jensen shall be permitted to pursue his statutory claims against both James and Julie Sattler. Costs on appeal are assessed against the Sattlers.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      .Instruction #14 provided:
      The Plaintiff must prove all of the following propositions by a preponderance of clear, satisfactory, and convincing evidence.
      1. Special circumstances existed which gave rise to a duty of disclosure between the Plaintiff and the Defendant. The Defendant was a seller or transferor of real estate and owed a duty of disclosure pursuant to Iowa Code chapter 558A.
      2. While such relationship existed, the Defendant was aware of the following facts: There were material defects with the roof, and/or the ventilation in the attic, and/or the tiling around the foundation, and/or the dome lighting.
      3. While such relationship existed, the Defendant concealed or failed to disclose that there were material defects with the roof, and/or the ventilation in the attic, and/or the tiling around the foundation, and/or the dome lighting.
      4. The undisclosed information was material to the transaction.
      5. The Defendant knowingly failed to make the disclosure.
      6. The Defendant intended to deceive the Plaintiff by withholding such information.
      7. The Plaintiff acted in reliance upon the Defendant’s failure to disclose and was justified in such reliance.
      8. The failure to disclose was a proximate cause of the Plaintiff's damage.
      9. The nature and extent of the Plaintiff's damage.

      . At oral argument on the motion in limine, the Sattlers argued:
      The question of whether or not there might be ... any discussion in front of the jury about anything other than a fraud standard ... is ... addressed by the Court’s ruling on the motion for summary judgment.... We would certainly want to avoid [plaintiff's] counsel urg[ing] in opening any sort of negligence standard, but I don't think that’s really a problem anymore with the summary judgment motion.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Michael Byron ABRAHAMSON, Chad Eugene Krutsinger, Sonny Wayne Oxford, James Richard Stier, Fred Lee Willett, and Christopher Allen Levy, Appellants.
    No. 03-1907.
    Supreme Court of Iowa.
    May 13, 2005.
    Rehearing Denied May 31, 2005.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas .J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, and Paul M. Goldsmith, County Attorney, for appellee.
   LARSON, Justice.

The sheriff of Lucas County submitted bills for room and board provided to six defendant-inmates of the county jail, and on request of the State, the district court added those amounts to each defendant’s restitution order. The defendants objected to the State’s application on constitutional and statutory grounds. The district court overruled the objections, and the defendants appealed. The court of appeals affirmed, and we granted further review. We now affirm the court of appeals decision and the judgment of the district court.

I. Facts and Issues Raised.

These convicted criminal defendants were confined for various lengths of time at the Lucas County jail. Pursuant to Iowa Code section 356.7 (2001), the sheriff presented a bill for each inmate, computed at $50 per day, and requested the court to enter orders for restitution accordingly. This case turns largely on our interpretation of Iowa- Code section 356.7 and its interaction with the restitution provisions of sections 910.2 and 910.3.

II. Discussion.

Under section 356.7(1), a sheriff may-charge adult prisoners for room and board, and if a prisoner fails to pay, the sheriff may file a room-and-board reimbursement claim with the district court. Under subsection (2), the sheriff is to include certain information regarding the claim. See Iowa Code § 356.7(2)(a)-(g). If the sheriff wishes to have the claim included in a restitution plan, the sheriff must make a specific request to that effect in the reimbursement claim. Id. § 356.7(2)(p). Section 356.7(3), the provision that gives rise to this appeal, provides:

Upon receipt of a claim for room and board' reimbursement, the court shall approve the claim in favor of the sheriff or the county for the amount pwed by the prisoner as identified in the claim and any fees or charges associated with the filing or processing of the claim with the court. The sheriff may choose to enforce the claim in the manner provided in chapter 626 [execution to enforce judgments and orders]. Once approved by the court, the claim for the amount owed by the person shall have the force and effect of a judgment for purposes of enforcement by the sheriff.

(Emphasis added.)

The defendants complain that the italicized language of section 356.7(3) renders the statute invalid because it usurps the power of the court to assess the merits of the claim. Under section 356.7(3), a court-approved claim for room and board may be enforced in two ways: as a judgment in the traditional sense, under Iowa Code chapter 626, or as part of a restitution plan under chapter 910. Under section 356.7(2)(p), a sheriff, if he decides to collect the claim under the restitution plan, must so state in the original claim.

In this case, the sheriff chose the latter, specifically stating in his claims that he elected to. collect the amounts under the restitution alternative. The district court complied with that request and assessed the claims under Iowa Code sections 910.2 and 910.3, which impose limitations on the power of the State to require restitution. The court found the amounts requested by the sheriff were appropriate under the statutes. In making this finding, the court compared Lucas County’s charges with other counties in the -area and considered testimony by the sheriff concerning his costs, including personnel, food, vehicle costs for transportation, amounts paid to other jails to house Lucas County prisoners (which ran from $60 to $70 per day), prisoners’ clothing, utilities, maintenance, insurance, and school-of-instruction expenses for supervising prisoners. The sheriff also relied on the recommendations of experts who suggested charges of $50 to $60 per day.

These defendants, in their resistance to the sheriffs .application for reimbursement and apparently believing they would be denied a hearing on the sheriffs application because of the “shall approve” language of section 356.7(3), stated:

[T]he District Court [in entering an order under section 356.7(3) ] must be afforded the range of options available to it under Section 910.3, including:
a. awarding no restitution if the offender is not reasonably able to pay;
b. requiring community service in lieu of restitution in appropriate cases;
c. awarding restitution in such sum as the Court determines to be reasonable and proper under the circumstances; and
d. awarding restitution in the sum claimed by the sheriff.
Unless the District Court is given authority over this aspect of sentencing, then section 356.7 constitutes an unconstitutional delegation of power to the sheriff.

Actually, the defendants got exactly what they requested — a hearing that considered all of the factors under section 910.3 (necessity and reasonableness of the charges and the defendants’ ability to pay). The court found that the number of days charged was correct (a fact conceded by the defendants), the amount requested by the sheriff was “necessary, fair, and reasonable,” and the claims were timely under section 910.3. The court also analyzed and rejected the defendants’ constitutional challenges - to section 356.7. The court dealt with the defendants’ ability-to-pay issue by providing that they could file a separate application to have that issue resolved at a later date. See State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999).

Because the sheriff did not elect to collect the claim for room and board under the chapter 626 alternative, but rather treated them as claims for restitution under chapter 910 and the defendants received a full hearing on the restitution claim, it is not necessary for us to consider the argument that the “shall approve” language of the statute renders it invalid. Nevertheless, we do so to provide guidance in those cases in which a sheriff requests court approval of a claim as a condition precedent to collection of it under the regular judgment collection provisions of chapter 626, rather than through restitution.

The defendants contend section 356.7(3), by providing the court “shall approve” room-and-board claims, precludes the exercise of judicial power and therefore runs afoul of constitutional principles of due process, equal protection, and separation of powers. We disagree; this language does not mean that the court must rubber-stamp a claim. That is so because, despite the lack of an express provision for judicial scrutiny, we have “inherent discretionary authority to review any order ... for substantive, as well as procedural, irregularity, and to set the matter for hearing where necessary.” State ex rel. Allee v. Gocha, 555 N.W.2d 683, 686 (Iowa 1996) (holding statute, which directed district courts to approve orders submitted by an agency, still permitted district court to exercise its inherent judicial authority to review the orders before approving them).

To interpret section 356.7 to allow for no judicial review of the claim for board and room would almost certainly run afoul of our constitution’s provision for separation of powers:

The powers of the government of Iowa shall be divided into' three separate departments — the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted.

Iowa Const. art. Ill, § 1. As we articulated in Gocho,

[f]or the judiciary to play an undiminished role in this constitutional scheme, “nothing must impede the immediate, necessary, efficient and basic functions of the court.” A court fulfills its most basic function when exercising its power to decide the merits of a controversy and render an enforceable judgment. Reserved to us is the authority to check any legislative action encroaching on that power.

555 N.W.2d at 684-85 (citations omitted). We have also recognized that,

“[w]hen possible, statutory provisions should be construed in such a way as to avoid unconstitutionality rather than simply void them on the basis of an interpretation which renders them constitutionally infirm. If the law is reasonably open to two constructions, one that renders it unconstitutional and one that does not, the court must adopt the interpretation that upholds the law’s constitutionality.”

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Visser, 629 N.W.2d 376, 380 (Iowa 2001) (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 45.11, at 70-71 (rev.vol.2000) (footnotes omitted)).

In this case, the statutory mandate that the district court “shall approve” the claim simply means that the court shall approve it before it may be paid. “ ‘Approval’ implies the exercise of sound judgment, practical sagacity, wise discretion and final direct affirmative action.” Cunningham v. Comm’r, 249 Mass. 401, 144 N.E. 447, 455 (1924). We believe the “sound judgment, practical sagacity, [and] wise discretion” going into the order for reimbursement for room and board must be that of the court — not the sheriff. To hold otherwise would result in a serious intrusion by another branch of government into the area of responsibility constitutionally vested in the court.

We therefore interpret the “shall approve” language of section 356.7(3) as a grant of authority to the court to resolve the merits of the claim — not a mandate that it simply sign the order as a ministerial function. This is consistent with the interpretation of the words as set out above and yet preserves the court’s constitutional authority. Moreover, it confirms in the district court “the inherent discretionary authority to review any order ... and to set the matter for hearing if necessary.” Gocha, 555 N.W.2d at 686.

The defendants may claim that this reading conflicts with our decision in Jackson; however, it does not. Jackson considered the court’s discretion, or lack thereof, under section 910.2 when including correctional fees approved under section 356.7 in a restitution plan. See Jackson, 601 N.W.2d at 356. We did not address the issue raised in the present case, i.e., whether the “shall approve” language of section 356.7(3) renders the statute invalid. Today, we hold that it does not.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

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


author: CARTER, Justice.

text:
    STATE of Iowa, Appellant, v. Jerry Dwight MEADOWS, Appellee.
    No. 03-2012.
    Supreme Court of Iowa.
    May 13, 2005.

      Thomas J. Miller, Attorney General, Mark Hunacek, Assistant Attorney General, and Susan A. Wendel, Assistant County Attorney, for appellant.
    John E. Billingsley of Walker, Knopf & Billingsley, Newton, for appellee.
   CARTER, Justice.

The State of Iowa was granted discretionary review of an interlocutory ruling absolving a trucker of criminal charges for transporting an overweight load. Although the trucker had an overweight permit from the Iowa Department of Transportation (DOT) authorizing him to transport the weight he was carrying, the permit designated a route other than the one on which he was traveling when he was stopped at a DOT weigh station.

The district court ruled that the trucker was guilty of violating his permit in a manner other than weight and was not guilty of the more serious offense of transporting an overweight load. After reviewing the record and considering the arguments presented, we reverse the ruling of the district court and remand the case for further proceedings on the State’s trial information.

DOT, acting pursuant to Iowa Code section 321E.9 (2003), issued defendant a single-trip overweight permit to carry a rock crusher through Iowa from the Illinois line to the Nebraska line. The permit was valid between July 21, 2003, and July 25, 2003. It authorized a total gross weight of 119,800 pounds, which was substantially more than the legal weight limit. The route to be traveled was specified in the permit. Basically, that route was over Interstate Highway 80, but there were places along the route where the load was required to exit the interstate highway and travel in a westerly direction over numbered state highways before returning to Interstate 80.

One such deviation was to occur at the exit from Interstate 80 onto Iowa Highway 117. The designated route called for leaving Interstate 80 at Colfax, driving in a northerly direction on Highway 117 until it intersected with diagonal Highway 65, and then proceeding in a southwesterly direction on Highway 65 until reentering Interstate 80 near Altoona. The reason for this deviation was the existence of a limited-load bridge on Interstate 80 west of Colfax.

Defendant’s trip across the state began on July 22. The weight of his load exceeded that allowed by Iowa Code section 321.468, but was within the weight limits allowed by the DOT overweight permit. When the tractor trailer with which defendant was hauling the rock crusher reached Colfax, he failed to exit Interstate 80 at Iowa Highway 117. Instead, he proceeded westward on Interstate 80 over the limited-weight bridge. Soon thereafter, he encountered a DOT weigh station near Mitchellville. After the weight of defendant’s load was recorded, he was issued four citations for transporting an overweight load. One of these citations was for excessive gross weight, and the other three for excessive weight on particular axles of the vehicle.

The charges contained in the citations were made the subject of a trial information filed by the Jasper County Attorney. Following the filing of the information, defendant filed a motion to adjudicate points of law. In that motion, he requested the district court to rule that his only offense was a violation of his permit in a manner other than weight punishable under the provisions of Iowa Code section 321E.16. Following a hearing, the district court ruled in accordance with defendant’s request, thereby absolving him of the overload charges contained in the trial information. We granted the State’s application for discretionary review of that interlocutory ruling.

I. Scope of Review.

Applications for separate adjudication of points of law are no longer recognized by rule in civil proceedings but continue to be available in criminal prosecutions by virtue of the provisions of Iowa Rule of Criminal Procedure 2.11(2), which provides “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” The scope of review with respect to rulings on such motions is for correction of errors at law. State v. Olsen, 482 N.W.2d 452, 455 (Iowa Ct.App.1992) (citing Iowa R.App. P. 4 [now Iowa R.App. P. 6.4]).

II. Efficacy of DOT Permit With Regard to Loads Being Transported Over Routes Other Than Those That the Permit Designates.

In seeking reversal, the State urges that defendant is guilty of transporting an overweight load because the weight his tractor trailer was carrying exceeded that allowed under Iowa Code section 321.463, and the DOT permit he had been issued did not authorize him to carry a greater weight over the route on which he was driving when apprehended. Defendant argues that, unless the permit was revoked by administrative action, it authorized the carrying of weights within the limits of the permit. As a result, defendant asserts, his violation, if any, was in violating the terms of his permit in a manner other than weight.

The district court agreed with defendant’s argument. The court based its conclusion primarily on the provisions of an administrative regulation that provides:

If any of the dimensions or weight of the vehicle and load as operated exceeds the dimensions or weight allowed by the permit, or if the axle weights are in excess of the maximum weights allowed based on the total gross weight of the vehicle and load, the permit is invalid for ■that movemént unless the permittee modifies the dimensions or weight to comply with the permit restrictions.

Iowa Admin. Code r. 761 — 511.16(4). The district court noted that this regulation only renders a permit invalid if the limits on weight or dimensions contained in the permit are exceeded. The court concluded that, because neither this regulation nor any other administrative rule purports to invalidate an overweight permit as a result of a route deviation, defendant’s permit constituted legal authorization for the weight that he 'was transporting.

The State argues that the result reached by the district court is contrary to this court’s decision in State v. Glenn, 234 N.W.2d 396 (Iowa 1975). Glenn was a case in which a trucker who had been issued an overweight permit hauled a load that exceeded the weight limitation contained in the permit. This court held that, in so doing, he rendered his permit void and was subject to an overweight violation, not only to the extent that his load exceeded that which was authorized by the permit, but for the full extent that his load exceeded the generally applicable statutory limits. In reaching that result, we stated:

Briefly stated, the instantly involved special permit was issued for defendant’s use and protection subject to compliance with the terms thereof. Otherwise, it was automatically voided, thus making defendant amenable , to the penalty prescribed by law for overweight vehicles .as though no special permit had issued.

Glenn, 234.N.W.2d at 400. Defendant attempts to distinguish Glenn on the basis that both the permit and the applicable statutory law involved in that case provided the permit would be void if its load limits were exceeded.

In analyzing the arguments on appeal, we conclude that the district 'court improperly focused in its ruling on whether defendant’s overload permit was rendered void as a result of his deviation from the designated route. We believe the decisive issue is more properly characterized as whether the permit as written provided authorization to haul a load exceeding the weight specified in Iowa Code section 321.463 over that portion of Interstate 80 where defendant was driving when apprehended. We are convinced that the permit did not provide such authorization. If defendant’s load at that point exceeded that which was authorized by section 321.463, he was subject to conviction of any violation of the load limits contained in that statute. The district court erred in ruling otherwise.

We have considered all issues presented and conclude that the judgment of the district court should be reversed. The case is remanded to that court for further proceedings on the trial information.

REVERSED AND REMANDED.

      . Fines for overweight violations are imposed pursuant to Iowa Code section 321.463 and are much greater than those imposed for a permit violation other than weight. The statutory fines for the weight violations alleged in the trial information total $7400. Violation of a special permit in a manner other than weight carries a fine of $100. Iowa Code § 321E.16.

      . The statute on which defendant relies provides:
      A person who violates a provision of a permit issued pursuant to this chapter ... other than a provision relating to. weight, shall be subject to a scheduled fine under section 805.8A, subsection 12, paragraph "f”.
      Iowa Code § 321E.16 (emphasis added).


author: LAVORATO, Chief Justice.

text:
    Pam CLARK, Appellant, v. VICORP RESTAURANTS, INC., Employer and Kemper Insurance Company, Insurance Carrier, Appellees.
    No. 03-1870.
    Supreme Court of Iowa.
    May 20, 2005.

      Thomas 'M. Werner, Des Moines, for appellant.
    Harry W. Dahl, Des Moines, for appel-lees.
   LAVORATO, Chief Justice.

In an arbitration proceeding, a hearing deputy found that the claimant, Pam Clark, had suffered a temporary total disability as a result of a work-related injury rather than a permanent partial disability as Clark had contended. On Clark’s intra-agency appeal, the deputy commissioner affirmed and adopted as final agency action the hearing deputy’s decision on this issue. Clark petitioned the district court for judicial review and that court affirmed. Clark appealed, we transferred the case to the court of appeals, and that court reversed and remanded the case for further proceedings. We granted the application for further review filed by the employer and its carrier. On that review, we vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts.

Clark is forty-one years old, married, and has two teenage children. She is a high school graduate and has no further education or training. Since graduating from high school, she has worked in food service, at a dog kennel, for a fishing lure business, in housekeeping at a hospital and a hotel, and as a telemarketer.

Vicorp Restaurants, Inc. hired Clark in November 1989 to work as a part-time cashier/hostess at its Bakers Square restaurant in Des Moines. A few months later she also began working as a waitress at that establishment.

Clark has suffered several work-related injuries while working at Bakers Square. In July 1991 Clark suffered a neck injury while carrying a bus tub. As a result of that injury, Dr. Rodney Johnson performed a surgical anterior interbody fusion at C6-7 in April 1992. Clark was released to work in August 1992 with a twenty-five pound lifting and carrying restriction. Because of this restriction, her supervisors at Bakers Square decided Clark could work only as a cashier/hostess.

In December 1997 Clark was again injured at work. This time a pie transit flipped onto her right shoulder, injuring her neck and shoulder. As a result of those injuries, Dr. Lynn Nelson performed a cervical fusion at C5-6, and Dr. Delwin E. Quenzer performed two surgeries on Clark’s shoulder, one in April 1999 and another in November 1999. Clark returned to work at Bakers Square but under doctor’s orders was to do no lifting. She answered the phone and took pie orders, working just a few hours per day. In March 2000 Clark was able to resume her full duties as a cashier/hostess, but was told by her doctors to abide by the same twenty-five pound lifting restriction she had been under since her release by Dr. Johnson in August 1992.

On July 7, 2000, Clark sustained an injury at work that is the subject of this appeal. On that day, she was working as a host supervisor. Both restaurant managers were off-duty, and Clark was supervising. Because the restaurant was shorthanded that day, Clark acted as a waitress, cashier, host, and supervisor. While twisting to hand plates to a customer who was sitting'on the inside of a booth, Clark felt a pop in her neck. Several minutes later while moving a tub of dishes, glasses, and silverware from a table, Clark twisted and felt a pop in the lower part of her back. She continued working, and a short time later, she started to experience a headache and stiffness and soreness in her neck and back. Despite this discomfort, Clark did complete her shift.

The next day, with the permission of her supervisor, Clark sought treatment at the Iowa Lutheran Hospital emergency department. She complained of neck and back pain and numbness in her arms and legs. The assessment in the emergency department report was “musculoskeletal sprain of the cervical and lumbar spine.” X-rays were taken and Clark was given several medications. She was also told to see her family doctor. In addition, she was given a work excuse to return to work on July 12, 2000, with no lifting for two weeks of anything weighing more than ten pounds.'

Clark did not return to work on July 12 because a Vicorp risk management representative told her to stay off work until she saw either Dr. Nelson, who had performed her last neck surgery, or Dr. Quenzer, who had performed her two shoulder surgeries. On July 18 Clark saw Dr. Nelson. At the time she still had back pain. Dr. Nelson’s impression was “myofascial global back pain.” He saw no indication for surgical treatment and recommended evaluation and management of myofascial complaints by a physiatrist as well as physical therapy. Dr. Nelson did not release Clark to return to work. In his deposition.taken in April 2002, Dr. Nelson could not state within a reasonable degree of medical certainty that Clark’s complaints were a result of the July 7, 2000 incident.

On July 27 Clark saw Dr. Quenzer. At the time, Clark was complaining of numbness in both arms and legs. Dr. Quenzer’s impression was “dysesthesias of .undetermined etiology.” He recommended that Clark see a neurologist to rule out a neurological problem and a physiatrist, if there was no neurological problem, to coordinate her work status and maintenance medical care.

On August 17 in a letter to Kemper Insurance Company, Vicorp’s carrier, Dr. Quenzer opined that he was

not aware of any anatomically based diagnosis which would explain [Clark’s] current symptom complex. My opinion is that it is not possible to state with a reasonable degree of medical certainty that [my diagnosis of dysesthesias of undetermined etiology] is a result of employment at Vicorp Restaurants.

Dr. Quenzer also stated he had not restricted employment “as a result of the alleged injury of July 7, 2000.” Shortly after this letter, the carrier denied Clark’s claim for benefits. Following the denial, Clark sought permission from her employer’s carrier to go back to work. She was told she would have to get a release from her family doctor to do so. In-the meantime, with her employer’s permission, Clark went on a medical leave of absence without pay.

Following the carrier’s suggestion, Clark saw Dr. Dennis Hopkins, her family doctor, who referred her to Dr. Michael R.K. Jacoby, a neurologist. Dr.-Jacoby examined Clark on September 8 and October 11. In his report of November 3 to Dr. Hopkins, Dr. Jacoby ruled out any neuro-logic cause for her condition. In addition, Dr, Jacoby recommended that Clark see an orthopedic physician.

Acting on Dr. Jacoby’s suggestion, Clark saw Dr. Leslie Hillman, a physiatrist with the Iowa Orthopaedic Center, P.C. on November 14. On that date, Dr. Hillman examined Clark and opined that Clark was suffering from “myofascial neck and back pain” and “headaches.” Dr. Hillman ordered conservative treatment, including physical therapy.

Following a functional capacity assessment of Clark, Dr. Hillman prescribed work restrictions on December 22. They included a ten-pound lifting restriction with each individual extremity, floor-to-ehair lifting of twenty pounds bilaterally with the upper extremities, five-pound individual extremity above shoulder lifting, with avoidance of repetitive kneeling, climbing, and balancing. Dr. Hillman also limited Clark to no more than sixty minutes of repetitive use of Clark’s upper extremities. In addition, the doctor specified that Clark should sit no longer than thirty minutes at a time and stand no more than thirty minutes at a timé, with breaks.

Meanwhile, on December 11 Vicorp’s leave-of-absence coordinator notified Clark by letter that her leave of absence would expire on January 3, 2001 and advising her of the following:

By policy, the maximum amount of time on leave from the company is 180 days. If you are unable to return to work by the above date I will process your termination effective 1/04/01. When you are able to return to work, please contact your General Manager concerning possible re-hire.

Clark enjoyed her job at Bakers Square, wanted to return to work, and believed she could perform her job with these restrictions. She took a copy of Dr. Hillman’s restrictions to a Bakers Square manager on December 26. On the same day, Clark called Vicorp’s leave-of-absence coordinator and informed the coordinator of the restrictions. Several days later, the coordinator advised Clark by phone that Vi-corp had decided against letting Clark return to work.

On January 3, 2001,. the Vicorp leave-of-absence coordinator wrote Clark terminating her employment effective January 4, 2001. The letter stated:

Our records reflect that your Leave of Absence has expired as of 1/3/01.
By policy, the maximum amount of your leave from the company is 180 days. Therefore, effective 1/4/01, I processed your termination of employment. When you are able to return to work please contact your General Manager.

Thereafter, Clark’s attorney wrote Vi-corp several letters requesting her reinstatement. Vicorp responded on January 18 with a job description for a host/hostess and noted “there are significant lifting requirements from which your client has been significantly restricted.” Vicorp also noted that Clark’s doctor “has identified her restrictions to be temporary in nature.” Vicorp concluded:

When your client obtains maximum medical improvement and her medical condition has stabilized for a permanent rating, please let us know. If she is able to meet the essential functions of this job with some type of reasonable accommodation, we will reconsider her for employment. Merely asserting that she need not perform minor bussing responsibilities misses the mark. Bussing is. one of the essential functions of her job and, if she is unable to meet the physical requirements necessary, she can propose a reasonable accommodation which we can review.

The job description for the host/hostess includes a list of responsibilities, one of which is supporting servers and bussers as requested. Essential physical requirements include “[ljifting and carrying 25# and 60# maximum, pushing, pulling 250# maximum.”

Following the termination of her employment, Clark continued treating with Dr. Hillman. Dr. Hillman referred to the work restrictions in her medical notes on several occasions. On December 6, 2000, Dr. Hillman wrote:

My recommendation at this point would be for her to have a physical capacity exam through physical therapy to determine exactly what her restrictions are on lifting, sitting, standing, etc., and then fill out a work restriction and see if she can go back to work in some sort of limited capacity while she continues to improve with therapy.... She is very concerned that she will not be able to perform the, duties necessary to do that position in the future.

On December 22, 2000, Dr. Hillman wrote in her notes that she had received results of Clark’s functional capacity exam and based on those results would release Clark to modified work with the restrictions previously listed. Dr. Hillman also noted that she would like Clark “to work 4 hours daily for three weeks and then increase by 2 hours daily per week.”

On February 14, 2001, Dr. Hillman wrote in her notes that she “again would not be willing to release [Clark] to any type of full duty until she could get into a work hardening program and will need to release her as the results of her functional capacity exam.” And one month later, she wrote,

I again would be willing to release her to any type of full duty based on the results of her functional capacity exam with those limitations. If it is possible to get her more physical therapy ... we could have her do some work hardening and try to decrease those restrictions.

On January 16, 2002, responding to a letter from the carrier’s and employer’s attorney, Dr. Hillman wrote:

I feel the condition that Ms. Clark presented with was most likely an exacerbation caused by the incident on July 7, 2000, and I feel that this would have most likely caused problems that are temporary in nature.

After describing the restrictions given in December 2000 as a result of Clark’s functional capacity exam, Dr. Hillman stated in the letter that the functional capacity exam was over a year ago, and “if there are questions about permanent work restrictions, the possibility of repeating the functional capacity exam to determine safe techniques at this time could be entertained.”

Clark sought another opinion concerning her condition. She requested an evaluation from Dr. Justin L. Ban, who is now deceased. He evaluated her on January 9, 2002. His opinion was that. (1) Clark’s condition was related to the work incident on July 7, 2000, (2) she reached maximum medical improvement with respect to her sacroiliac sprain on March 14, 2001, and (3) she had a five percent permanent partial impairment because of a sacroiliac sprain. He believed Clark was capable of at least light duty work.

II. Proceedings.

On November 28, 2000, Clark filed a notice and petition with the workers’ compensation commissioner seeking benefits from Vicorp and its carrier, Kemper Insurance Company (hereinafter collectively employer), because of the alleged work-related injury of July 7, 2000. Following an arbitration hearing, a deputy commissioner found that an injury occurred on July 7, 2000 that arose out of and in the course of employment, Clark’s condition is causally related • to that injury, and that sixty weeks of temporary total disability compensation benefits should be paid to Clark. In making these findings, the deputy gave greater weight to Dr. Hillman’s opinion because she had more contact with Clark than the other doctors, Dr. Hillman specializes in rehabilitation, and Dr. Ban’s report corroborates her report regarding medical causation.

Following the ruling, Clark filed a motion to amend decision and motion for reconsideration, and the employer filed a motion for a nunc pro tunc order to correct the number of weeks awarded from 60 weeks to 35.857 weeks. In her motion, Clark alleged that the deputy did not address the issue of whether she was entitled to permanent partial disability compensation benefits, an issue the deputy identified at the beginning of the arbitration decision. Clark also alleged that she requested permanent partial disability compensation benefits because the employer terminated her employment due to work restrictions resulting from her injuries.

The deputy granted the motion for a nunc pro tunc order but denied the motion to amend and for reconsideration, noting that she had addressed the issue in her arbitration decision.

Clark filed an intra-agency appeal from the ruling on her motion. The deputy workers’ ' compensation commissioner found that the hearing deputy had indeed addressed the issue of whether Clark was entitled to permanent partial disability compensation benefits. The deputy commissioner affirmed and adopted the hearing deputy’s decision as final agency action.

Clark then filed a petition for judicial review, seeking a district court ruling reversing the agency appeal decision that failed to award Clark permanent partial disability compensation benefits. The district court affirmed the agency’s decision.

Clark appealed and we transferred the case to the court of appeals. That court reversed and remanded because of its concern that the agency may have overlooked the evidence of Clark’s termination on the issue of whether she was entitled to permanent partial disability compensation benefits. The court noted that the commissioner’s decision had no reference to the employer’s termination of employment.

We granted the employer’s application for further review.

III. Issue.

The sole issue is whether the commissioner correctly decided that Clark is not entitled to permanent partial disability compensation benefits.

IV. Scope of Review.

Iowa Code chapter 17A governs judicial review of decisions of the workers’ compensation commissioner. Iowa Code § 86.26 (2003).

In exercising its judicial review power, the district court acts in an appellate capacity. In reviewing the district court’s decision, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. If they are the same, we affirm; otherwise we reverse.

Mycogen Seeds v. Sands, 686 N.W.2d 457, 463-64 (Iowa 2004) (citations omitted).

Clark’s arguments on appeal deal with whether there was substantial evidence to support the commissioner’s decision, whether the commissioner made an error of law,- and whether the commissioner correctly applied the law to the facts. The following provisions of chapter 17A are therefore relevant:

The court may affirm the agency action or remand to the agency for further proceedings. The' court shall reverse, modify, or grant other appropriate relief from agency action, equitable or legal and including declaratory relief, if it determines that substantial rights of the person seeking judicial relief have been prejudiced because the agency action is any of the following:
c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discietion of the agency.
f. Based 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, the following terms have the following meanings:
(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.
m. Based upon an irrational, illogical, or wholly unjustifiable application of law to fact that has clearly been vested by a provision of law in the discretion of the agency.

Iowa Code § 17A.19(10)(c), (f)(1), (m).

Because the agency here has not been vested with the final authority to interpret the law by which permanent partial disability compensation benefits are awarded, we do not defer to the agency’s interpretation of such law and are free to substitute our judgment de novo for the agency’s interpretation. See Iowa Code § 17A.19(10)(c), (11)®; . Mycogen Seeds, 686 N.W.2d at 464.

The factual findings regarding the award of benefits are within the agency’s discretion, so in this case we are bound by the agency’s findings of fact if supported by substantial evidence. See Iowa Code § 17A.19(10)(/); Mycogen Seeds, 686 N.W.2d at 464-65. Because factual determinations are within the discretion of the agency, so is its application of law to the facts. Mycogen Seeds, 686 N.W.2d at 465. So here we can only reverse the agency’s application of the law to the facts if we determine such an application was “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(m); Mycogen Seeds, 686 N.W.2d at 465.

V. Analysis.

The deputy hearing officer awarded Clark temporary total disability compensation benefits. Iowa Code section 85.33(1) governs temporary total disability compensation benefits. This provision provides that the employer shall pay the employee such benefits “until the employee has returned to work or is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.” Iowa Code § 85.33(1).

Temporary total disability compensation benefits and healing-period compensation benefits refer to the same condition. Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 446 (Iowa 1999). Healing-period compensation benefits are governed by Iowa Code section 85.34(1). Such benefits are payable

until the employee has returned to work or it is medically indicated that significant improvement from the injury is not anticipated or until the employee is medically capable of returning to employment substantially similar to the employment in which the employee was engaged at the time of injury, whichever occurs first.

Iowa Code § 85.34(1).

The difference between temporary total disability compensation benefits and healing period compensation benefits

involves permanent partial disability. If permanent partial disability results, the payments made prior to payment for permanency are healing period benefits. Healing period benefits accrue from the first day following the injury or the occurrence of injury. When an injury does not result in a permanent disability, the payments made are called “temporary total disability benefits.” Payments for temporary total disability accrue from the fourth day of the disability; however, the first three days are paid for if the temporary total disability lasts more than fourteen days.

Arthur C. Hedberg, Jr. & Phillip Vonderh-aar, An Overview of the Iowa Workers’ Compensation Act, 30 Drake L. Rev. 809, 825-26 (1980-81) (footnotes omitted) [hereinafter Hedberg]; see also Iowa Code §§ 85.32, 85.33(l)-(2), 85.34(1). Because the commissioner found that Clark did not suffer permanent partial disability, temporary total disability compensation benefits were awarded rather than healing-period compensation benefits.

Temporary total disability compensation benefits and healing-period compensation benefits are made to partially reimburse the employee for the loss of earnings while the employee is recuperating from the condition the employee has suffered. Hed-berg, 30 Drake L. Rev. at 825.

Iowa Code section 85.34(2) governs payment of permanent partial disability compensation benefits, which is what Clark is seeking. Such benefits begin at the termination of healing period compensation benefits. Iowa Code § 85.34(2).

Permanent partial disabilities have been divided into either a scheduled or unscheduled loss. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 653 (Iowa 2000); see Iowa Code § 85.34(2). Clark is claiming an unscheduled loss. For an unscheduled loss, the employee’s industrial disability must be determined. Sherman v. Pella Corp., 576 N.W.2d 312, 320-21 (Iowa 1998). Industrial disability measures an employee’s lost earning capacity. Id. at 321. Several factors are considered in determining such loss. Id. These include the employee’s functional impairment, age, education, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining to the extent that any factor affects the employee’s prospects for relocation in the job market. Id.; Gray, 604 N.W.2d at 653.

“The focus is not solely on what the worker can or cannot do; industrial disability rests on the ability of the worker to be gainfully employed.” Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). A comparison of actual earnings before and after the injury is important to the earning capacity analysis. Second Injury Fund v. Nelson, 544 N.W.2d 258, 266 (Iowa 1996). Showing that the employee’s actual earnings have decreased is not always necessary “to demonstrate an injury-caused reduction in earning capacity.” Gray, 604 N.W.2d at 653.

As mentioned, the hearing deputy gave several reasons why she accorded Dr. Hill-man’s opinion greater weight on causation and extent of injury than the other doctors who had seen Clark. On the extent of injury, Dr. Hillman opined that Clark’s injury was a temporary exacerbation of her preexisting condition. Significantly, Dr. Hillman did not assign a permanent partial disability rating to Clark’s condition because, as the hearing deputy found, Dr. Hillman did not believe Clark had sustained a permanent partial disability. The deputy commissioner adopted that finding, and we conclude there was substantial evidence to support it.

Nevertheless, Clark contends that the hearing deputy, the deputy cpmmissioner, and the district court erred in rejecting her contention that her employer’s termination of her employment demonstrated, an injury-caused reduction in earning capacity. In support of this contention, Clark argues that Dr. Hillman’s work restrictions that were imposed because of her work-related injury led to the termination of her employment.

In briefs to the hearing deputy, deputy commissioner, district court, and appellate courts, Clark has relied heavily on two cases to support her position: Blacksmith v. All-American, Inc., 290, N.W.2d 348 (Iowa 1980) and McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980).

In Blacksmith, the claimant had been a truck driver and was demoted to a dock job, which paid substantially less. 290 N.W.2d at 350. Despite the fact that one of the doctors doubted any permanent disability resulted from a phlebitis attack, the employer disqualified the claimant from any truck driving and transferred him to a lower-paying job. Id. at 349-50. This court reversed and held as a matter of law that the claimant had proven the injury was a proximate cause of his reduced earn-mg capacity. Id. at 354. In reaching that conclusion, the court held:

Blacksmith did incur an increased industrial disability and is not barred from recovery by failure to prove an increased functional disability of his leg. This is the case of an employee who has no apparent functional impairment and who wants to work at the job he had before but is precluded from doing so because his employer believes the past injury disqualifies him, resulting in a palpable reduction in earning capacity. The extent of Blacksmith’s industrial disability is an issue of fact for the commissioner to resolve.

Id. (citation omitted).

In McSpadden, this court recognized the principle that an employer’s refusal to give any sort of work to a claimant after the claimant suffers a work-related injury may justify an award of disability. 288 N.W.2d at 192. The court also recognized that a claimant’s inability to find other suitable work after making bona fide efforts to find such work may provide grounds for relief. Id.

Here, the employer had a company policy that provided for a maximum of 180 days of leave time and that a leave of absence beyond that time would result in termination of employment. Clark’s 180 days ended on January 3, 2001. Dr. Hill-man released Clark to light duty work on December 22, 2000 with work restrictions. Clark notified her employer of the release on December 26, 2000, but the employer refused to accept the release and terminated her employment on January 4, 2001 because she failed to return to work within the 180-day time limit.

Clark’s job description included physical requirements of “[ljifting and carrying 25# and 60# maximum, pushing, pulling 250# maximum,” which were well beyond the restrictions imposed by Dr. Hillman. In a letter responding to Clark’s attorney, the employer noted these lifting requirements from which Clark was significantly restricted. The employer also noted that Dr. Hillman had identified the restrictions as temporary in nature. Although Clark disputes the restrictions were temporary, Dr. Hillman’s letter of January 2002 suggests the restrictions were indeed temporary when she wrote: “As [the imposition of work restrictions based upon a functional capacity exam] has been over a year, if there are questions about permanent work restrictions, the possibility of repeating the functional capacity exam to determine safe techniques at this time could be entertained.” The employer concluded its letter to Clark’s attorney by advising him that after Clark’s condition stabilized for a permanent rating, the employer would reconsider her for employment if she could meet the essential functions of the job with some type of reasonable accommodation.

These facts demonstrate two things. First, the employer terminated Clark’s employment because she did not return to work within the 180-day time limit. The reason she could not return to work within 180 days was because she could not perform all of the job requirements within that time period. Second, the employer terminated Clark’s employment pursuant to company policy long before the healing of her temporary condition and left open the possibility of rehire with some reasonable accommodation. So there was no indication on the part of the employer that it would under no circumstances rehire Clark because of the work restrictions or that the employer thought the work restrictions were permanent. In fact, in its letter of termination, the employer advised Clark that when she was able to return to work she should contact her general manager.

VI. Disposition.

In sum, there was substantial evidence to support the agency’s finding that Clark did not suffer a permanent partial disability. In reaching that conclusion, the agency properly applied the law to the facts. Therefore we cannot say that its decision was irrational, illogical, or wholly unjustifiable. Consequently, the district court was correct in upholding the agency’s decision. We therefore vacate the court of appeals decision and affirm the district court judgment.

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


text:
    In re MARRIAGE OF Marilyn A. MULLEN-FUNDERBURK and Jack D. Funderburk Upon the Petition of Marilyn A. Mullen-Funderburk n/k/a Marilyn A. Mullen, Appellant, and Concerning Jack D. Funderburk, Appellee.
    No. 04-0160.
    Supreme Court of Iowa.
    May 20, 2005.

      Lawrence J. Lammers of McCarthy, Lammers & Hines, Davenport, for appellant.
    Dennis D. Jasper, Bettendorf, for appel-lee.
   CARTER, Justice.

Marilyn A. Mullen-Funderburk, the noncustodial parent of a child entering college, appeals from the district court’s order extending her child support obligation beyond high school graduation and increasing it to the current guideline amount. The appellee is the child’s father, Jack D. Funderburk. The court of appeals held that the continuation of guideline child support beyond high school graduation was inappropriate. In lieu thereof, it provided for a postsecondary education subsidy pursuant to Iowa Code section 598.21(5A) (2003). After reviewing the record and considering the arguments presented, we affirm the decision of the court of appeals.

The Funderburks’ marriage was dissolved on August 24, 1995. At that time, they had one child, Kelly Mullen-Funder-burk, who was then one month shy of her eleventh birthday. The dissolution decree granted the parties joint custody of Kelly and provided that Jack was to exercise primary physical care. Marilyn was ordered to pay child support to Jack in the sum of $408 per month, the amount of support provided in the child support guidelines. The decree further provided: “This Decree is subject to Iowa Code section 598.1(6).”

On May 9, 2003, Marilyn filed an application to modify the decree by terminating her monthly child support payments upon Kelly’s graduation from high school and substituting a postsecondary education subsidy requiring her to pay no more than one-third of Kelly’s college expenses. Jack resisted Marilyn’s application and petitioned to modify the decree by increasing the amount of Marilyn’s monthly child support payments to the guideline amount based on the parties’ current incomes.

The hearing on the parties’ respective applications to modify the decree was not held until November 10, 2003, at which time Kelly had already begun her college education at the University of Iowa. Evidence was presented showing that Marilyn’s annual income had increased from $34,000 at the time of the decree to $72,000 in 2002. During this same period, Jack’s income had decreased from $39,000 to $37,700. Evidence was offered concerning Kelly’s expected annual college expenses and the amounts she would receive from a work-study grant and a student loan. In addition, the evidence showed that Kelly was expected to receive some income from summer jobs when classes were not in session.

In ruling on the parties’ applications, the district court concluded that, because the original decree provided that it was “subject to Iowa Code section 598.1(6),” that statute, as it existed in 1995, authorized the continuation of Marilyn’s guideline support payments through age twenty-two as long as Kelly was attending college. The court also determined that, based on the parties’ current salaries, Marilyn’s monthly support obligation under the guidelines should be increased to $745 per month. Jack has stipulated that these support payments may be made directly to Kelly.

In reviewing the district court’s decision, the court of appeals ruled that, because support beyond high school was not fixed in the 1995 decree, Marilyn’s support obligation under the decree had terminated. The court found that the continuation of monthly support payments to Kelly in an amount fixed by the child support guidelines was unwarranted because of a change in the law concerning postsecondary education subsidies. The court of appeals concluded that the proper course of action was to establish a postsecondary education subsidy in accordance with the current Iowa Code section 598.21(5A) as the measure of Marilyn’s (and also Jack’s) obligation to Kelly during her college years.

I. Standard of Review.

A proceeding to modify or implement a marriage dissolution decree subsequent to its entry is triable in equity and reviewed de novo on appeal. In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000); In re Marriage of Walters, 575 N,W.2d 739, 740 (Iowa 1998).

II. Issues on Appeal.

We have previously set forth the 1995 statutory law in effect at the time of the decree. When the time arrived to make some provision for Kelly’s undergraduate college education, that statute had been substantially altered in a manner hereafter described. Provisions for post-secondary financial assistance for children ages eighteen to twenty-two had been made more structured and definite. The legislature in 1997 had amended section 598.1(6), defining support, as it had existed in 1995, by removing postsecondary support from the definition, redefining support to terminate at age nineteen, and establishing a separate definition for a “postsecondary education subsidy,” which may extend through age twenty-two. 1997 Iowa Acts ch. 175, §§ 184, 185. In addition, the legislature in 1997 amended section 598.21 by adding a new paragraph 5A.1997 Iowa Acts ch. 175, § 190.

Notwithstanding this change in the law, Jack argues that the reference in the decree to section 598.1(6) of the Code necessarily requires the rights of the parties in the present dispute to be determined in accordance with the law in effect at the time of the decree. As support for this contention, Jack relies on our decision in Sojka, 611 N.W.2d at 505. In that case, a 1992 dissolution decree had required a father to pay with respect to his two children “one third (1/3) of the child’s tuition, books, room and board, while the child is a full-time student and under the age of twenty-two.” Following the enactment of current section 598.21(5A) in 1997, the father sought to modify that provision to comport with a postsecondary education subsidy determined in accordance with section 598.21(5A). In refusing to grant that request, this court stated, “we now hold that section 598.21(5A) applies only to dissolution decrees postdating the statute’s enactment.” Sojka, 611 N.W.2d at 505.

Sojka relied in part on our earlier decision in In re Marriage of Harless, 251 N.W.2d 212 (Iowa 1977), in which we refused to modify a decree specifying the payment of child support “until age twenty-one,” because of a reduction of the age of majority subsequent to the decree. Using language similar to that in Sojka, we stated, “[t]he better rule is the one which holds that the law in effect at the time of the decree should govern.” Harless, 251 N.W.2d at 213.

Marilyn urges that the decisions in Soj-ka and Harless are inapposite because, unlike the present case, the original decrees had established a specific level of support that was sought to be altered. She also points out that subsequent to the Harless and Sojka decisions the legislature enacted Iowa Code section 598.21(5A)(e), which provides:

e. A support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a child for college, university, or community college expenses may be modified in accordance with this subsection.

2002 Iowa Acts ch. 1018, § 17. An uncodi-fied provision in the legislative acts enacting the foregoing provision provides that this provision

relating to the modification of a support order, decree, or judgment pending on or before July 1, 1997 that provides for support of a child for college, university, or community college expenses, being deemed of immediate importance, takes effect on enactment and is retroactively applicable to support orders, decrees, or judgments as described in [Iowa Code section 598.21(5A)(e)] entered or pending before July 1,1997.

Id. § 21.

In In re Marriage of Rosenfeld, 668 N.W.2d 840 (Iowa 2003), we determined that, when no level of college-age educational support has been established in the original decree, and that issue is being decided for the first time after July 1, 1997, the decision is controlled by the statutory provisions for a postsecondary education subsidy contained in sections 598.1(8) and 598.21(5A). Rosenfeld, 668 N.W.2d at 848. We reached a similar result in In re Marriage of Goodman, 690 N.W.2d 279, 283 (Iowa 2004). Rosenfeld and Goodman are dispositive of our decision in the present case.

The reference in the decree to the statutory definition of support as it then existed may have been an effort to retain jurisdiction for purposes of deciding college-level support at thé time the issue might arise. It was certainly not self-executing for purposes of establishing the support obligation of either party during Kelly’s college years. , Such provisions are not necessary because these issues may be taken up at a later time, even if the decree is silent on the matter. In re Marriage of Pieper, 369 N.W.2d 439, 441 (Iowa 1.985); Willcox v. Bradrick, 319. N.W.2d 216, 219 (Iowa 1982). In considering this issue, it is helpful to point out that, although the procedural vehicle ordinarily used to establish the parties’ obligations to pay college expenses, following a dissolution decree that is silent as to such matters, is a petition to modify the decree, such proceedings are not truly modification actions. Where a decree has not established a fixed level of payment, the determination of that obligation is an original adjudication. It is not necessary to show a substantial change of circumstances as in the usual modification. Viewed in that manner, it also follows that such determinations should be based on both the facts and the law in eidstence when the determination is made. The court of appeals decision is fully consistent with that approach and is affirmed.

The court of appeals did not fix the amount of Kelly’s postsecondary education subsidy and left that matter for the district court on remand. We do the same. We note, however, that this determination should attempt to establish what the subsidy should have been with regard to Kelly’s prior, college attendance as well as fixing a subsidy for her future college attendance. The determination of each parent’s obligation shall be made as to both prior years and future years. Credit shall be given for college expenses already advanced by either parent. To avoid inequity, the court may reconcile the respective past obligations by requiring one parent to indemnify the other for payments beyond that required under the postsecondary education subsidy that the court retroactively establishes for prior college years, but only to the extent that the indemnifying parent has underpaid that parent’s own share of the subsidy. Costs of the appeal and in the district court are assessed to Jack. The parties shall pay their own attorney fees.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT DECREE REVERSED AND REMANDED.

      . At the time of the decree, this statute provided:

        "Support” or “support payments” means an amount which the court may require either of the parties to pay under a temporary order or a final judgment or decree, and may include alimony, child support, maintenance, and any other term used to describe these obligations.... The obligations may include support for a child who is between the ages of eighteen and twenty-two years who is regularly attending an accredited school in pursuance of a course of study leading to a high school diploma or its equivalent, or ... a full-time student in a college, university, or community college; or has been accepted for admission to a college, university, or community college and the next regular term has not yet begun. ...
      Iowa Code § 598.1(6) (1995) (emphasis added).

      . The district court's order failed to fix any required amount of financial assistance from Jack while Kelly is attending college. Unless the court subjects him to some postsecondary support obligation, Jack, whose only obligation had been the general obligation of a custodial parent to provide for his child's needs, will have no support obligation to Kelly after she attained the age of eighteen and graduated from high school. See Johnson v. Louis, 654 N.W.2d 886, 887-88 (Iowa 2002).

      . The new definition of support is contained in Iowa Code section 598.1(9). The definition of postsecondary education subsidy is contained in Iowa Code section 598.1(8).

      .For purposes of providing for parental assistance in postsecondary education, that statute provides:
      [T]he court shall determine the amount of subsidy as follows:
      (1) The Court shall determine the cost of postsecondaiy education based upon the cost of attending an in-state public institution for a course of instruction leading to an undergraduate degree and shall include the reasonable costs for only necessary postsecondary education expenses.
      (2) The court shall then determine the amount, if any, which the child may reasonably be expected to contribute, considering the child's financial resources, including but not limited to the availability of financial aid whether in the form of scholarships, grants, or student loans, and the ability of the child to earn income while attending school.
      (3) The child’s expected contribution shall be deducted from the cost of postsec-ondary education and the court shall apportion responsibility for the remaining cost of postsecondary education to each parent. The amount paid by each parent shall not exceed thirty-three and one-third percent of the total cost of postsecondary education.
      1997 Iowa Acts ch. 175, § 190 (now codified as Iowa Code § 598.21(5A)).