LINDA JORDAN , Petitioner - Appell ant , vs. SECOND INJURY FUND OF IOWA , Respondent - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-683 / 08-0346
Filed October 15, 2008
LINDA JORDAN,
Petitioner-Appellant,
vs.
SECOND INJURY FUND OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick Grady, Judge.
Linda Jordan appeals from the district court order affirming the workers’
compensation commissioner’s finding that her claim against the Second Injury
Fund was time barred. AFFIRMED.
Thomas M. Wertz and Matthew D. Dake of Wertz Law Firm, P.C., Cedar
Rapids, for appellant.
Thomas J. Miller, Attorney General, and Anne E. Updegraff, Assistant
Attorney General, for appellee.
Considered by Mahan, P.J., and Vaitheswaran and Doyle, JJ.
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MAHAN, P.J.
Linda Jordan appeals from the district court order affirming the workers’
compensation commissioner’s finding that her claim against the Second Injury
Fund was time barred. She contends the commissioner erred in not requiring the
Fund to prove a date certain of when the last check was placed in the mail and
that the commissioner misapplied the law by requiring her to produce evidence of
when the check was mailed. She argues the commissioner’s finding that her
claim was untimely is not supported by substantial evidence.
I. Background facts and proceedings. On April 1, 2004, Jordan filed a
claim for benefits naming her former employer, Rockwell International, and the
Second Injury Fund (the Fund).
Rockwell submitted sworn answers to
interrogatories in which it stated that the last benefits payment was made by
check issued on March 29, 2001. Rockwell also averred that it was Rockwell’s
policy to mail checks no later than the Friday of the week a check is issued;
therefore, the last check was mailed to Jordan on Friday, March 30, 2001. The
payment was mailed to Jordan’s Cedar Rapids address. The Fund alleged a
statute of limitations defense. Jordan dismissed her claim against Rockwell.
A hearing was held before a deputy workers’ compensation commissioner.
Jordan testified at the hearing that:
(1) she received a letter from Rockwell
indicating her final payment would be March 28, 2001; (2) she contacted a
Rockwell representative because the payment was late; and (3) she received the
March 29, 2001 check on April 5, 2001, and deposited it on April 6, 2001. Jordan
testified she had received the letter from Rockwell in an envelope bearing a
postmark of March 7, 2001, but which was dated February 26, 2001.
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The deputy commissioner noted that it was the Fund’s burden to prove the
claimant was not entitled to benefits because she had not filed in a timely
manner. The deputy noted Rockwell’s interrogatory answer as to its mailing
policy. The deputy also found “suspect” Jordan’s offer of Rockwell’s termination
of benefits letter to support a proposition that Rockwell did not timely mail items.
The deputy concluded that the greater weight of evidence was that the check
was mailed before April 1, 2001. The deputy ruled Jordan’s April 1, 2004 claim
was barred by the applicable statute of limitations.
Jordan appealed to the workers’ compensation commissioner.
The
commissioner conducted a de novo review and concluded the Fund had met its
burden of proving the statute of limitations defense. The commissioner found
that the written testimony of Rockwell established that the last benefit check was
mailed before April 1, 2001. This ruling was affirmed by the district court in its
ruling on Jordan’s petition for judicial review.
Jordan now appeals contending, in essence, the Fund should be required
to establish a date certain for the mailing of the last benefits check in order to bar
her claim for recovery.
II. Applicable law.
Iowa Code section 85.26(1) (2003) provides that
proceedings for workers’ compensation benefits “shall not be maintained in any
contested case unless the proceeding is commenced . . . if weekly compensation
benefits are paid . . ., within three years from the date of the last payment of
weekly compensation benefits.”
(Emphasis added.)
Our supreme court has
concluded this three-year statute of limitations runs from the date of the last
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payment of weekly compensation benefits and is not extended by the discovery
rule. See Bergen v. Iowa Veterans Home, 577 N.W.2d 629, 630 (Iowa 1998).
Payments of benefits are “made” when they are mailed to the claimant,
not when they are received. Kiesecker v. Webster City Custom Meats, Inc., 528
N.W.2d 109, 112 (Iowa 1995). The court has held: “weekly benefit payments
should be considered paid when placed in the United States mail addressed to
the claimant.” Robbenolt v. Snap-On Tools Corp., 555 N.W.2d 229, 236 (Iowa
1996).
We review decisions of the workers’ compensation commissioner under
Iowa Code chapter 17A. See Iowa Code § 86.26 (2005). Our review of the
commissioner’s decision is for errors at law, not de novo. Second Injury Fund v.
Braden, 459 N.W.2d 467, 468 (Iowa 1990). We broadly and liberally construe
the commissioner’s findings to uphold, rather than defeat the decision. Second
Injury Fund v. Hodgins, 461 N.W.2d 454, 455 (Iowa 1990). We must examine
whether the commissioner’s conclusions are supported by substantial evidence
in the record made before the agency when the record is viewed as a whole.
Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). Evidence is
substantial if a reasonable mind would accept it as adequate to reach a
conclusion. John Deere Dubuque Works of Deere & Co. v. Weyant, 442 N.W.2d
101, 105 (Iowa 1989). An agency’s decision does not lack substantial evidence
because inconsistent conclusions may be drawn from the same evidence.
Shank, 516 N.W.2d at 812.
III. Merits.
The commissioner concluded that Rockwell’s interrogatory
answer was sufficient to establish that Jordan’s last benefits check was mailed
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“before April 1, 2001.” Jordan does not argue that the check was not mailed at
all: there is no doubt she received it. She argues, however, that there is no
evidence of when the check was mailed and that a date certain is required to bar
her recovery. She contends the Fund should not have been allowed to rely on
Rockwell’s typical mailing practices to establish the date of mailing.
The Fund responds that there are two acceptable methods to satisfy the
burden of proof of mailing. One method requires that evidence be introduced
(1) of the contents and the execution of the paper; (2) that it was enclosed in an
appropriate wrapper for transmission through the mail; (3) of the correct address
of the person to receive it; (4) that the wrapper was properly addressed; (5) that
postage was prepaid; and (6) that the article was deposited in the mail. See
Public Finance Co. v. Van Blaricome, 324 N.W.2d 716, 718-19 (Iowa 1982)
(noting earlier stated six-prong test). The other method was recognized in Van
Blaricome, which found that evidence of office custom is sufficient, absent proof
to the contrary, to raise a presumption of mailing. Id. at 720-21. The Fund
contends the commissioner properly allowed the presumption of mailing to
establish that Jordan’s last benefits check was mailed before April 1, 2001.
Jordan argues that the common law “proof of mailing” rule should not be applied
to defeat her workers’ compensation claim.
Our supreme court has refused to apply the common law presumption of
mailing and its ancillary rules of proof where it would be “directly contrary to the
rule of evidence adopted by the legislature.” Lange v. Iowa Dep’t of Revenue,
710 N.W.2d 242, 247 (Iowa 2006) (noting that statute at issue requires
“competent evidence that the . . . tax return . . . was deposited in the United
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States mail” on or before the due date).
But such a statutory evidentiary
requirement is not involved here. We can find no reason to reject the common
law presumption in the circumstances presented here.
Jordan was required by section 85.26 to bring her action within three
years from the date of the last payment of weekly benefits. We agree that the
evidence presented before the agency was sufficient to raise a presumption that
Jordan’s last benefits check was mailed before April 1, 2001.
Jordan has
provided no authority that the Fund was required to prove a date certain. The
deputy made a specific finding that Jordan’s attempt to establish that Rockwell’s
mailing was not timely was “suspect.” The deputy found “little credibility in the
evidence that the March 7 postmarked envelope belongs to the February 26,
2001 notice letter.” We are required to give such credibility findings considerable
deference. Thus, the presumption afforded the Fund was not defeated.
We conclude substantial evidence supports the agency’s finding that the
employer sent the final payment to Jordan before April 1, 2001. Accordingly,
there was substantial evidence in the record to establish that Jordan’s April 1,
2004 claim was barred by the three-year statute of limitations found in Iowa Code
section 85.26. We affirm.
AFFIRMED.
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