BETTY BRINSON, Petitioner - Appellant, vs. SPEE DEE DELIVERY SERVICE AND CNA INSURANCE COMPANIES, Respondents - Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 8-754 / 06-2074
Filed November 13, 2008
BETTY BRINSON,
Petitioner-Appellant,
vs.
SPEE DEE DELIVERY SERVICE
AND CNA INSURANCE COMPANIES,
Respondents-Appellees.
_______________________________________________________________
Appeal from the Iowa District Court for Polk County, Don Nickerson,
Judge.
Petitioner appeals the entry of a nunc pro tunc order in a workers‟
compensation decision. AFFIRMED.
Christopher D. Spaulding of Berg, Rouse, Spaulding & Schmidt, P.L.C.,
Des Moines, for appellant.
Joseph A. Happe of Huber, Book, Cortese, Happe & Lanz, P.L.C., West
Des Moines, for appellees.
Considered by Mahan, P.J., and Vaitheswaran, J., and Schechtman, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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SCHECHTMAN, S.J.
After
a
contested
hearing,
the
deputy
workers‟
compensation
commissioner found compensability. The arbitration decision awarded temporary
total disability, and further provided, “Defendants pay claimant outstanding
medical costs related to services claimant received as a result of her injury and in
the total amount of . . . $26,794.56.”
There was no appeal.
About two months later, the employer and
insurance carrier (hereafter often referred to as the defendant), filed a motion for
a nunc pro tunc order. Defendant recited that the claimant‟s group health insurer
had paid $13,646.13 of the medical expenses and it would be improper to
reimburse the claimant for the full amount. The claimant resisted, alleging (1) the
arbitration decision is now a final decision, by operation of law, and the
commissioner had lost any jurisdiction; (2) the group health insurer failed to
assert any subrogation claim pursuant to Iowa Code section 85.38(2) (2005); (3)
no credit was sought or requested by the defendant for any such claim; and (4)
through an exchange of correspondence and voicemails, the attorneys had
agreed to payment directly to the claimant, which bound the defendant.
The deputy workers‟ compensation commissioner, without opening the
record, entered an “ORDER NUNC PRO TUNC”, which read as follows:
Defendants have requested an order expressly allocating
payment as between reimbursement to claimant and . . . claimant‟s
insurance carrier be entered nunc pro tunc in the arbitration
decision . . . . Such an order is inappropriate. Payment is to be
made to the medical providers. Any reimbursement issues are
outside the purview of this division absent a showing that claimant
actually made payments for which she is entitled to be reimbursed.
...
3
In the arbitration decision . . . through inadvertence the
apostrophe and s were omitted from the word “claimant” . . . . The
order regarding payment of medical expenses should read:
“Defendants pay claimant‟s outstanding
medical costs relating to services claimant received
as a result of her injury and in the total amount of . . .
$26,794.56.”
The claimant filed a petition to enforce agency action in district court,
asking that judgment for the full sum be entered for the claimant. The claimant,
“out of an abundance of caution” also filed a petition for judicial review attacking
the nunc pro tunc entry. These petitions were consolidated for trial. The district
court‟s standard of review was under Iowa Code chapter 17A.
The district court dismissed the petition for judicial review, concluding that
the nunc pro tunc order was appropriate, as being a clarification of the agency‟s
decision that the medical expenses were to be paid directly to the providers, and
not paid to the claimant, as she had not proven any payment from her own
resources.1
I.
Standard of Review
Our review is governed by the Iowa Administrative Procedure Act. Iowa
Code ch. 17A. Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We
review the district court‟s decision by applying the standard of section 17A.19 to
the agency action to determine if our conclusions are the same as those reached
by the district court. University of Iowa Hosps. & Clinics v. Waters, 674 N.W.2d
92, 95 (Iowa 2004).
1
Though the district court ruled specifically on the petition for judicial review, the issues
on the petition for enforcement of agency action were the same, and this appeal is
directed at each, though still similar issues.
4
II.
Nunc Pro Tunc Entry
Nunc pro tunc is a Latin phrase meaning “now for then.” Black‟s Law
Dictionary 1097 (7th ed. 1999). Such orders, though not found in a rule of civil
procedure, are used to correct obvious errors or make an order conform to the
judge‟s original intent. Graber v. Iowa Dist. Court, 410 N.W.2d 224, 229 (Iowa
1987).
Our supreme court has succinctly stated the use and scope of nunc pro
tunc orders in State v. Johnson, 744 N.W. 2d 646, 648-49 (Iowa 2008):
This court has emphasized that the function of a nunc pro tunc
order is “to make the record show truthfully what judgment was
actually rendered—„not an order now for then, but to enter now for
then an order previously made.‟” Gen. Mills, Inc. v. Prall, 244 Iowa
218, 225, 56 N.W.2d 596, 600 (1953) (quoting Chariton & Lucas
County Nat’l Bank, 213 Iowa 1206, 1208, 240 N.W 740, 741
(1932)). A court may not use a nunc pro tunc order “for the
purpose of correcting judicial thinking, a judicial conclusion or a
mistake of law.” Headley v. Headley, 172 N.W.2d 104, 108 (Iowa
1969). In reviewing a nunc pro tunc order, this court has declared
that the intent of the trial judge is critical. McVay v. Kenneth E.
Montz Implement Co., 287 N.W.2d 149, 151 (Iowa 1980).
The nunc pro tunc order is a product of the court‟s inherent power to
correct an evident mistake and is not lost by a lapse of time. Freeman v. Ernst &
Young, 541 N.W.2d 890, 893 (Iowa 1995). “It is fundamental law that courts
possess the inherent power to correct the record and enter judgments nunc pro
tunc, and the lapse of time is no obstacle to the exercise of such power.” Yost v.
Gadd, 227 Iowa 621, 631, 288 N.W. 667, 673 (1939) (citations omitted).
The claimant does not contest the authority of the deputy commissioner to
issue a nunc pro tunc entry in her briefs. She does contend that the entry does
not alter the defendant‟s duty to pay the entire $26,794.56 to her.
5
It is clear that the deputy workers‟ compensation commissioner
recognized the grammar employed in the arbitration decision could, to some
readers, convey a meaning or purpose which was contrary to workers‟
compensation law as well as the deputy‟s intent. The insertion of an apostrophe
and “s” changing the noun to the possessive case (“claimant” to “claimant’s”),
removed any doubt as to how the medical bills of the claimant were to be paid.
This grammatical change was aligned with the record and the law.
commissioner does not award a judgment, but awards benefits.
The
Iowa Code
section 86.42 provides a summary procedure to reduce a workers‟ compensation
award into an enforceable judgment. See Rethamel v. Havey, 715 N.W.2d 263,
266 (Iowa 2006). This section was apparently invoked by the claimant when she
filed her petition to enforce agency action, which was consolidated with the
petition for judicial review due to the similarity of their issues.
We conclude that the nunc pro tunc order was appropriate under these
circumstances.
III.
Application of Iowa Code section 85.38(2)
This section allows a credit for medical payments made by the employer‟s
group insurance carrier for non-occupational injuries. This issue looms its head
when, as here, there is a denial of benefits by the workers‟ compensation carrier,
and the group health insurer forwards to the medical providers some portion of
their bills, while the issue of compensability is pending.
In the pre-hearing report before the deputy commissioner, the employer
noted that any “credits against any award” were “no longer in dispute.” Further,
6
the defendant admits that no evidence was offered to the deputy commissioner
of any payment of the claimant‟s medical bills by the healthcare provider
pursuant to the relevant section relating to credit.
In Caylor v. Employers Mutual Casualty Co., 337 N.W.2d 890, 894 (Iowa
Ct. App. 1983), the claimant demanded payment for his medical bills that were
paid by the employer‟s group insurance carrier. The court disagreed stating,
“Claimant is not entitled to reimbursement for medical bills unless he shows that
he paid them from his own funds.” Caylor, 337 N.W.2d at 894.
Caylor was cited in Krohn v. State, 420 N.W.2d 463, 464 (Iowa 1988),
wherein the State, as the employer, was directed to pay specified medical
expenses totaling $9,151.63. The employee requested a judgment for that sum
in district court, which was granted.
Krohn, 420 N.W.2d at 464. The State
moved to set that judgment aside as the claimant had not personally satisfied
these medical bills, the bills had been paid by the health insurance plan, and the
State had reimbursed the group insurance carrier after the commissioner‟s
decision. Id. The employee responded that the State, as the employer, waived
its right to any credit by indicating in a prehearing form that a section 85.38(2)
credit was not involved. Id. at 465. The court vacated the judgment holding,
“When an employer‟s obligation for medical and hospital services under the
workers‟ compensation laws have been established, section 85.38(2) appears to
provide a method by which the employer may act unilaterally to satisfy those
liabilities.” Id.
7
It is clear that Brinson, as the employee/claimant, did not offer any
evidence of payment to any of the medical providers directly by her from her
funds or sources,2 and is not entitled to any judgment, payment or
reimbursement for those medical bills allowed by the deputy in the arbitration
decision. It is equally clear that the employer shall pay those providers directly,
and may unilaterally reimburse the group health insurer for sums advanced by it
to the medical providers to satisfy that portion of its obligation pursuant to the
award of benefits.
IV.
Alleged Post-Award Agreement by Attorneys
The contention by the claimant that an alleged agreement to pay the full
amount to her between the attorneys for her and the employer/carrier, occurring
after the deputy‟s decision, is without merit. It was inserted as a resistance to the
issuance of the nunc pro tunc entry, as well as an affirmative request in the
petition to enforce the agency decision. The subject was not before the deputy,
so it would not be a source for corrective action by her in a nunc pro tunc order.
Nor was it agency action to be a subject for a summary transformation of the
award to a judgment under Iowa Code section 86.42.
Lastly, the alleged
agreement arose from correspondence and telephone calls by the attorneys, in
an attempt to resolve disagreements concerning the intent of the deputy
commissioner in making the award, which intent was resolved in its nunc pro
2
Midwest Ambulance v. Ruud, 754 N.W.2d 860,867 (Iowa 2008), disallowed a credit to
the employer for payments by its group health insurance carrier. The employee, Ruud,
had received payments to her from that carrier during a period when she had exercised
her COBRA rights by paying that premium from her own funds. Midwest Ambulance,
754 N.W.2d at 867. Midwest Ambulance is distinguished as Brinson paid no portion of
the premium to the group health insurer.
8
tunc entry. It never matured into any contractual agreement approved by the
deputy commissioner or district court.
The district court is affirmed and the petition for judicial review and petition
for a judgment entry are each dismissed.
AFFIRMED.
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