IOWA INSURANCE INSTITUTE, IOWA DEFENSE COUNSEL ASSOCIATION, IOWA SELF-INSURERS’ ASSOCIATION, PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA, NATIONAL ASSOCIATION OF MUTUAL INSURANCE COMPANIES, and IOWA ASSOCIATION OF BUSINESS AND INDUSTRY, Appellants, vs. CORE GROUP OF THE IOWA ASSOCIATION FOR JUSTICE; CHRISTOPHER J. GODFREY, Workers’ Compensation Commissioner, Division of Workers’ Compensation; and THE IOWA DEPARTMENT OF WORKFORCE DEVELOPMENT, Appellees.
No. 13–1627
IN THE SUPREME COURT OF IOWA
Filed June 12, 2015
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.
Several professional and trade associations comprised of employers, attorneys, and insurance carriers seek further review after the district court and court of appeals affirmed the workers’ compensation commissioner‘s ruling on a petition for declaratory order. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
R. Saffin Parrish-Sams of Soldat & Parrish-Sams, PLC, West Des Moines, for appellees.
In this case we are asked to determine whether the workers’ compensation commissioner correctly interpreted
We decline to address a number of follow-on questions related to the work product doctrine in Iowa; our present holding is simply that
I. Background Facts and Proceedings.
Under the Iowa Administrative Procedure Act (IAPA), “Any person may petition an agency for a declaratory order as to the applicability to specified circumstances of a statute, rule, or order within the primary jurisdiction of the agency.”
Core Group asked the commissioner to answer ten related questions:
- Is
Iowa Code § 85.27(2) applicable to surveillance in workers’ compensation claims? - Pursuant to
Iowa Code § 85.27 , are all privileges waived with respect to surveillance videos and photographs showing the injured worker? - Pursuant to
Iowa Code § 85.27 , are all privileges waived with respect to surveillance reports concerning the injured worker?
Pursuant to Iowa Code § 85.27 , are Defendants required to produce surveillance videos, photos, and/or reports when asked for in appropriate discovery requests?- Pursuant to
Iowa Code § 85.27 , are Defendants permitted to withhold surveillance videos, photos, and/or reports until after deposing the injured worker? - Pursuant to
Iowa Code § 85.27 , when are Defendants required to produce surveillance videos, photos and/or reports? - Pursuant to
Iowa Code § 85.27 , if the information is requested in an interrogatory, is there any privilege against or valid objection to identifying the fact that surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it? - Pursuant to
Iowa Code § 85.27 , if the information is requested in an interrogatory, when must Defendants identify the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it? - In the event that [questions “a” or “b“] are answered “NO,” if Defendants assert a privilege in response to a request for production of surveillance, are they also required to provide a privilege log under
Iowa Rule of Civil Procedure 1.503(5) which identifies the fact surveillance was performed, the form of surveillance conducted, who performed it, when it was performed, and who has possession of it? - Pursuant to
Iowa Code § 85.27 , can an injured worker move to compel production of surveillance videos, photos and/or reports, and for appropriate sanctions, underIowa Rule of Civil Procedure 1.517 ?
Core Group further provided its proposed answers to these questions:
Desiring input from multiple organizations representing various interests in workers’ compensation proceedings, the commissioner
On June 26, the commissioner held a hearing on the petition for declaratory order. At the hearing, Core Group asserted
On October 23, the commissioner ruled on the petition for declaratory order. The commissioner concluded
The ruling relied on a literal interpretation of the phrase “all information” in rejecting the Institute‘s assertion that
The commissioner‘s ruling addressed questions (a) through (h) and (j) presented by Core Group and was based entirely on the commissioner‘s interpretation of
The Institute sought judicial review in the district court. See generally
The Institute appealed, and we transferred the case to the court of appeals. The court of appeals likewise affirmed the commissioner‘s declaratory order, with one member of the panel dissenting. The Institute sought, and we granted, further review.
II. Standard of Review.
We must resolve three questions: (1) whether
We also review the commissioner‘s actual interpretation of
III. Analysis.
A. The Commissioner‘s Decision to Rule on Core Group‘s Petition.
We first address the Institute‘s contention that the commissioner should not have issued a declaratory order for either of the two reasons set forth in
The original version of
Professor Arthur Bonfield, the reporter–draftsperson for the 1998 amendments, provided the following explanation regarding the revised version of
This section repeals the declaratory order provision contained in current IAPA section 17A.9. Iowa law has not previously required that an agency issue a ruling, and has not contemplated indispensable parties in the declaratory order proceeding. Under this proposed provision, however, an agency is required to issue a declaratory order unless (i) such an order is contrary to a rule properly adopted by the agency in accordance with subsection (2), or (ii) such an order substantially prejudices the rights of any person who would be an indispensable party to the proceeding and who has not consented in writing to a determination of the matter by a declaratory order. In the first case, the rule adopted by the agency must delineate the circumstances in which a declaratory order will not be issued. In the second case, note that some indispensable parties might refuse to consent because, in a declaratory order proceeding, they lack many of the procedural rights to which they are entitled in a contested case proceeding.
Arthur Earl Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 37 (1998) (hereafter Bonfield).4
The Institute asserts numerous employers and insurers did not participate in the declaratory order proceedings but should be deemed necessary parties. See
Ultimately, we conclude that even if some necessary parties did not participate in the declaratory order proceedings, the commissioner‘s decision to rule did not substantially prejudice them. According to its own petition for intervention, the Institute “collectively represent[s] the majority of workers’ compensation Defendants in Iowa, and many of their legal advocates.” In the same petition, though, the Institute stated that it did “not have authority to bind [its] members to the determination of the matters presented in this declaratory order proceeding.” See
This tightrope walk by the Institute demonstrates to us that the requirements of
2. Agency rules.
Pursuant to the mandate in
Subsection (2) allows the commissioner to refuse to rule if he or she concludes “[t]he petition does not contain facts sufficient to demonstrate that the petitioner will be aggrieved or adversely affected” if the commissioner does not issue an order.
The Institute asserts the “aggrieved or adversely affected” standard under subsection (2) is tantamount to a requirement that Core Group demonstrate standing. See
It is noteworthy that “[s]ection 17A.9 contemplates rulings based on purely hypothetical facts, and renders them subject to review.” Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983); accord City of Des Moines, 275 N.W.2d at 758; cf. Tindal v. Norman, 427 N.W.2d 871, 873 (Iowa 1988) (concluding the declaratory order procedure was inapplicable in a case presenting an actual controversy because “section 17A.9 contemplates rulings on purely hypothetical sets of facts, not on concrete challenges“). This means that in many declaratory order proceedings, it is possible no party can demonstrate the type of concrete or imminent particularized injury we typically require for standing in contested cases.
The commissioner‘s rules are discretionary; they provide that the commissioner “may refuse to issue a declaratory order . . . for the following reasons.”
Next, the Institute contends the commissioner should have declined to rule because, under subsection (5), “[t]he questions presented by the petition would more properly be resolved in a different type of proceeding“—specifically, either a contested case proceeding or a rulemaking proceeding. See
The legislature has granted agencies multifaceted authority. Agencies assert their authority in a quasi-judicial way when deciding contested cases; and beyond the realm of contested cases, agencies utilize the authority vested in them by the legislature when they promulgate rules and rule on petitions for declaratory orders. Compare
Lastly, the Institute contends that the commissioner should not have ruled on Core Group‘s petition because it had the effect of “necessarily determin[ing] the legal rights, duties, or responsibilities of other persons . . . whose position on the questions presented may fairly be presumed to be adverse to that of petitioner.”
B. Whether Section 85.27(2) Applies to Surveillance Materials.
Having concluded the commissioner acted within his discretion in ruling on the petition, we turn to the underlying question: What effect does
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee‘s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The informationshall be made available to any party or the party‘s representative upon request. Any institution or person releasing the information to a party or the party‘s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers’ compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.
Core Group contends that the phrase “all information . . . concerning the employee‘s physical or mental condition relative to the claim” means the legislature intended the section to apply to surveillance footage, photographs, and reports. Core Group further contends that the reference to “waives any privilege” includes waiver of the work product protection and that the relevant surveillance materials must be disclosed before deposing the claimant in a given case. The Institute, on the other hand, contends the section should be interpreted more narrowly to apply only to health care provider records.
1. Surveillance as work product.
Before delving into the meaning of
Like its federal counterpart,Iowa Rule of Civil Procedure 1.503(3) provides for production of “documents and tangible things” that have been “prepared in anticipation of litigation” by opposing counsel “only upon a showing that the party seeking discovery has substantial need of the materials . . . and . . . is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” This rule requires the court, however, to “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney” when ordering such discovery.
Keefe, 774 N.W.2d at 673 (alteration in original) (quoting
There are “two tiers of work product recognized by
To constitute work product, something must be (1) a document or tangible thing, (2) prepared in anticipation of litigation, and (3) prepared by or for another party or by or for that party‘s representative. See
It is clear that surveillance materials are documents or tangible things, prepared in anticipation of litigation, by or for another party or that party‘s representative. We therefore agree with the prevailing view in jurisdictions following the federal definition of work product that surveillance materials are protected, lower-tier materials, at least initially. See Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159 (N.D. Iowa 1994) (“Surveillance materials are certainly prepared in anticipation of litigation.“); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. Dist. Ct. App. 2005) (“Clearly any documents, reports or video tapes prepared by the investigators are now protected by the work product privilege.“); Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12, 17 (Ind. Ct. App. 1996) (“[I]t seems needless to record the activities of the claimant unless it is anticipated that those recordings will be used against the claimant during litigation.“); Cabral v. Arruda, 556 A.2d 47, 49 (R.I. 1989) (holding
The consensus also seems to be that surveillance loses the status of protected work product once a determination is made that the surveillance will be used at trial. Donovan v. AXA Equitable Life Ins. Co., 252 F.R.D. 82, 82 (D. Mass. 2008) (finding that surveillance, if it will be used at trial, must be produced in discovery once the plaintiff has been deposed); Dodson v. Persell, 390 So. 2d 704, 707–08 (Fla. 1980) (finding the contents of surveillance films and materials are subject to discovery where they are to be presented at trial but that allowing the discovery deposition before disclosure “is an appropriate middle road to ensure
2. Is Iowa Code section 85.27(2) ambiguous?
Our first step in interpreting section 85.27(2) is to determine whether the phrase “all information . . . concerning the employee’s physical or mental condition relative to the claim” is ambiguous.
“ ‘A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute.’ ” Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d 190, 198 (Iowa 2012) (quoting Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 424 (Iowa 2010)). We have said that “[a]mbiguity may arise from specific language used in
That is because we read statutes as a whole rather than looking at words and phrases in isolation. See, e.g., Phillips v. Chi. Cent. & Pac. R.R., 853 N.W.2d 636, 649 (Iowa 2014) (noting that statutory terms are often “clarified by the remainder of the statutory scheme” (internal quotation marks omitted)); Den Hartog v. City of Waterloo, 847 N.W.2d 459, 462 (Iowa 2014) (“We have often explained we construe statutory phrases not by assessing solely words and phrases in isolation, but instead by incorporating considerations of the structure and purpose of the statute in its entirety.”); In re Estate of Melby, 841 N.W.2d 867, 879 (Iowa 2014) (“When construing statutes, we assess not just isolated words and phrases, but statutes in their entirety . . . .”); see also
As we examine Iowa Code section 85.27 in its entirety, we see that all the other subsections relate to health care services. For example, subsection (1) provides as follows:
1. The employer, for all injuries compensable under this chapter or chapter 85A, shall furnish reasonable surgical, medical, dental, osteopathic, chiropractic, podiatric, physical rehabilitation, nursing, ambulance and hospital services and supplies therefor and shall allow reasonably necessary transportation expenses incurred for such services. The employer shall also furnish reasonable and necessary crutches, artificial members and appliances but shall not be required to furnish more than one set of permanent prosthetic devices.
Thus, when the legislature adopted subsection (2) in 1976, it stuck it within an existing provision (section 85.27) that concerned health care services. This would be an unusual place to situate a provision intended to override the litigation work product doctrine. It also tends to support the Institute’s view that section 85.27(2) pertains to records of health care services. See, e.g., State v. Robinson, 859 N.W.2d 464, 487 (Iowa 2015) (examining the context in which
Hence, after considering both the wording of section 85.27(2) and its context, we conclude that reasonable minds could differ as to whether it encompasses surveillance video of a claimant obtained for litigation purposes. This means we need to resort to our established tools of statutory interpretation.
3. Other language in section 85.27(2) itself.
In addition to considering section 85.27 as a whole, we must of course focus on the wording of section 85.27(2) itself.
Yet in some cases, we have concluded the word “all” means something short of all-inclusive. See, e.g., In re Estate of Troester, 331 N.W.2d 123, 126 (Iowa 1983) (“To interpret literally the words ‘all orders’ . . . to apply to all procedural orders would lead to a[n] undesired result.”); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880–81 (Iowa 1976) (concluding the words “all uses” in a zoning ordinance did not mean every lot was required to satisfy a minimum acreage requirement); Silver Lake Consol. Sch. Dist. v. Parker, 238 Iowa 984, 997, 29 N.W.2d 214, 221 (1947) (holding “the word ‘all’ in various parts of the school
The Institute emphasizes other aspects of the wording of Iowa Code section 85.27(2). It points out, for one thing, that the section refers to a waiver of “any privilege” and the work product doctrine is not a privilege, but rather a protection or an immunity. See
As Core Group notes, there are cases where we have used the word “privilege” to refer to the work product immunity. See, e.g., Wells Dairy, 690 N.W.2d at 43 (“
However, our occasional lack of precision does not necessarily mean the legislature was being imprecise when it adopted section 85.27(2) in 1976. See
In interpreting section 85.27(2), the caselaw that the legislature had before it in 1976 would seem more germane than any word choices we may have made since then. See Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 787 (Iowa 1971) (“We assume the legislature knew the existing state of the law and prior judicial interpretations of similar statutory provisions. We assume, too, its use of terms was in the accepted judicially established context unless there is clear evidence to the contrary.”); see also Iowa Farm Bureau Fed’n v. Envtl. Prot. Comm’n, 850 N.W.2d 403, 434 (Iowa 2014) (“The legislature is presumed to know the state of the law, including case law, at the time it enacts a statute.” (Internal quotation marks omitted.)).
Additionally, as the Institute observes,
4. Presumption against superfluous words.
Another principle of statutory interpretation is that “[w]e presume statutes or rules do not contain superfluous words.” State v. McKinley, 860 N.W.2d 874, 882 (Iowa 2015); see also
This argument is not without force, but it should not be overstated. Employers and insurers could have access to medical records that the employee does not have. Thus, it was necessary to include them in section 85.27(2). And it is true that employers and insurers do not get to assert a physician–patient privilege for the benefit of a patient who has waived that privilege. So technically speaking, it was not necessary for the legislature to have “employer” and “insurance carrier” remain part of
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee’s physical or mental condition relative to the claim and further [any employee] waives any privilege for the release of the information.
When one reads this longer, less readable version, it suggests an alternative explanation for why the legislature wrote the law the way it did: The legislature may have simply opted for cleaner, more abbreviated language. Under this view, although the wording of the last clause sweeps somewhat more broadly than necessary, the breadth does not change the substantive meaning of the statute, but merely reinforces that employers and insurers need to produce the records.
5. Avoiding absurd results.
We have long recognized that statutes should not be interpreted in a manner that leads to absurd results. See
In fact, the commissioner’s declaratory order implicitly recognizes the absurdity of such a result. On page 7 of his order, the commissioner states “that the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation are not waived by
6. Legislative history.
In construing an ambiguous statute, the court may consider “[t]he circumstances under which the statute was enacted” and “[t]he legislative history.” See
“[W]e give weight to explanations attached to bills as indications of legislative intent.” Star Equipment, Ltd. v. State, 843 N.W.2d 446, 454 (Iowa 2014) (internal quotation marks omitted); see also Postell v. Am. Family Mut. Ins. Co., 823 N.W.2d 35, 49 (Iowa 2012) (same). We have recently explained the relevance of legislative explanations:
Star Equipment, 843 N.W.2d at 454 n.3 (citations omitted).
Surveillance for litigation purposes would not normally be classified as information concerning a person’s “past” physical or mental condition. Rather, it is typically conducted after a claim has been brought. This tends to support the Institute’s proposed interpretation of
Of course, there is the truism that once information like surveillance has been gathered, it always relates to the “past.” But such a reading of the explanation would render the word “past” redundant to the word “information.” A more logical reading of the explanation is that the word “past” refers to information that had been obtained before the claim was filed. Ensuring the exchange of prior health care records appears to have been the legislature’s main purpose in enacting section 85.27(2).
7. Prior administrative interpretations.
The commissioner’s declaratory order also appears to be inconsistent with long-held administrative views of the agency. See Ramirez v. Riverview Care Ctr., Iowa Workers’ Comp. Comm’n Nos. 1243830, 1253740, 1253741, 1253742, 1253743, 2002 WL 32125248, at *2 (“Under the prevailing rule, surveillance materials may be withheld as privileged work product for a reasonable time until the party observed can be deposed or otherwise compelled to take a position on the facts pertinent to the
“Longstanding administrative interpretations are entitled to some weight in statutory construction.” Griffin Pipe Prods. Co. v. Bd. of Review, 789 N.W.2d 769, 775 (Iowa 2010). It is true, as we have already said, that we must interpret section 85.27(2) ourselves, but at a minimum the durability of the previous interpretation is worth noting. The commissioner correctly observes that these agency cases did not specifically discuss
8. The rule in other jurisdictions.
Although we have not found another jurisdiction with a statute that resembles
Missouri is the only state clearly to take a contrary approach. It requires predeposition disclosure of surveillance in workers’ compensation proceedings but on the rationale that this is a “statement” by the claimant and, therefore, discovery provisions allowing a person to obtain his or her own statement apply. See, e.g., State ex rel. Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863, 866–68 (Mo. Ct. App. 2011). Respectfully, we do not agree that an employee engaging (or not engaging) in physical activity for its own sake is making a “statement.” See
This center of gravity in the authorities suggests, at a minimum, that allowing an employer or an employer’s attorney to withhold surveillance until after the employee’s deposition does not undermine the policies behind workers’ compensation. Notably, the foregoing jurisdictions, like Iowa, place a high value on getting benefits in the hands of injured workers. See Ex parte Lumbermen’s Underwriting Alliance, 662 So. 2d 1133, 1137 n.3 (Ala. 1995) (referring to “the public policy behind the adoption of workers’ compensation acts—to provide necessary day-to-day financial support to an injured worker and the worker’s dependents”); Pietraroia v. Ne. Utils., 756 A.2d 845, 854 (Conn. 2000) (noting that the workers’ compensation act “is remedial and must be interpreted liberally to achieve its humanitarian purposes” (internal quotation marks omitted)); Metal Trims Indus., Inc. v. Stovall, 562 So. 2d 1293, 1297 (Miss. 1990) (“Because of the broad policy declarations made by the Mississippi Legislature in adopting the Worker’s Compensation Act, this Court has given liberal construction to the compensation statutes.”); Fitzgerald v. Tom Coddington Stables, 890 A.2d 933, 938 (N.J. 2006) (“We have consistently held that our statutory workers’ compensation scheme is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished.” (Internal quotation marks omitted.)); Crosby v. State Workers’ Comp. Bd., 442 N.E.2d 1191, 1195 (N.Y. 1982) (“The broad scheme of compensation for work-related injuries or death contained in the Workers’ Compensation Law has as its purpose the provision of a
Iowa’s underlying workers’ compensation goals are not unique. Other jurisdictions have found those goals can be met while allowing surveillance to be withheld until the claimant is deposed.
9. Policy considerations.
Finally, both sides to this proceeding argue that sound policy is on their side. Core Group urges that immediate disclosure of surveillance materials should occur because the workers’ compensation system “is designed to be essentially nonadversarial. Whatever its faults, real or imagined, the system presupposes that all workers will benefit more if claims are processed routinely and paid quickly.” Morrison v. Century Eng’g, 434 N.W.2d 874, 877 (Iowa 1989). Core Group contends that the workers’ compensation is a system where the parties should put their cards on the table as early as possible so that, if possible, the claim can be resolved quickly. Also, surveillance can still have impeachment value, even if the deponent has seen it beforehand.
The Institute responds that the fundamental purpose of the workers’ compensation statute is “to benefit the injured workers,” see Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010), and putting the worker under oath before he or she has seen any surveillance helps one determine whether the worker is injured as claimed. According to the Institute, truly injured workers—the intended beneficiaries of workers’ compensation law—do not need to see surveillance of themselves before they testify under oath in a deposition. It is those who testify falsely about physical limitations who get impeached effectively by video recordings they have not seen. Trial lawyers are taught at an early age not to show their impeachment
Certainly, in the workers’ compensation field, assessing the claimant’s credibility is vitally important. Many claimants suffer from workplace-related impairments that are more serious than the purely objective medical findings might indicate. They deserve to be compensated. On the other hand, some claimants exaggerate their symptoms.
In sum, there are valid policy reasons for and against requiring predeposition disclosure of surveillance in workers’ compensation claims.
10. Conclusion.
Reasonable arguments can be made for and against the commissioner’s interpretation of
Most importantly, the commissioner’s interpretation has no limiting principle. If all means all, then even an attorney–client privileged email from a claimant to her attorney discussing her impairment would have to be produced—an outcome that even the commissioner is unwilling to countenance. Hence, we find the declaratory order erroneously determined that
The commissioner’s declaratory order, as we have noted, was limited to section 85.27(2). The commissioner did not reach question (i), the only question that did not involve interpretation of section 85.27(2). We believe our opinion should be similarly limited.
In an actual workers’ compensation proceeding, a determination that section 85.27(2) does not require disclosure of surveillance would not resolve all potential discovery issues. Other potential issues include these questions: (1) Does surveillance taken for litigation purposes lose its work product status under
IV. Conclusion.
The commissioner did not err or abuse his discretion in ruling on Core Group’s petition for declaratory order. However, we conclude the commissioner erroneously interpreted
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Hecht, J., who concurs in part and dissents in part, and Zager, J., who takes no part.
HECHT, Justice (concurring in part and dissenting in part).
I agree with the majority on the procedural question, but disagree on the substantive one. In my view, the majority has overlooked the nuances attending Core Group’s petition and the important differences between workers’ compensation cases and general civil litigation. Because I find the majority’s reasoning unpersuasive, I respectfully dissent in part.
The majority relies on rules of statutory interpretation to interpret section 85.27(2), but omits one very important rule specifically applicable in workers’ compensation cases: “a fundamental purpose of the workers’ compensation statute is to benefit . . . injured workers.” Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa 2010); accord Xenia Rural Water Dist. v. Vegors, 786 N.W.2d 250, 257 (Iowa 2010) (“We apply the workers’ compensation statute broadly and liberally in keeping with its humanitarian objective . . . .”); Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 865 (Iowa 2003) (“[T]he primary purpose of chapter 85 is to benefit the worker and so we interpret this law liberally in favor of the employee.”). Applying the statute broadly and liberally consistent with our longstanding practice, I conclude the commissioner’s interpretation of section 85.27 is correct. Accordingly, I would affirm the decisions of the district court and the court of appeals.
I. Whether Section 85.27(2) Applies to Surveillance Materials.
The majority concludes the phrase “all information” in section 85.27(2) means “all medical information” and “the employee’s physical or mental condition” actually means “the employee’s past physical or mental condition.” See
I would not read implied limitations into section 85.27(2) because I conclude “all information” really means all information. “[T]he word ‘all’ has an important use. If it has no significance . . . it might as well be dropped from the language as superfluous.” Parsons v. Parsons, 66 Iowa 754, 762, 24 N.W. 564, 565 (1885). “All” has a plain meaning that “is commonly understood and usually does not admit of an exception, addition or exclusion.” Consol. Freightways Corp. of Del. v. Nicholas, 258 Iowa 115, 121, 137 N.W.2d 900, 904 (1965). When a statute contains the word “all,” this court has said it sees “no logical reason to hold [the statute] means less than it says.” Cedar Rapids Cmty. Sch. Dist. v. City of Cedar Rapids, 252 Iowa 205, 211, 106 N.W.2d 655, 659 (1960).
The decisions of this court have given the word “all” a very broad meaning. See, e.g., Luttenegger v. Conseco Fin. Servicing Corp., 671 N.W.2d 425, 434 (Iowa 2003); Barron v. State Farm Mut. Auto. Ins. Co., 540 N.W.2d 423, 426 (Iowa 1995); In re Peers’ Estate, 234 Iowa 403, 411, 12 N.W.2d 894, 898 (1944); Grimes v. Nw. Legion of Honor, 97 Iowa 315, 324, 64 N.W. 806, 808 (1895) (“[T]he legislature, by the use of the words ‘all insurance companies or associations,’ intended to cover every form of insurance.”); State v. Hutchison, 72 Iowa 561, 562–63, 34 N.W. 421, 421 (1887) (concluding a statutory prohibition against “all intoxicating liquors whatever” included alcoholic cider manufactured from apples). I would again give the word a broad meaning in this case.
I find our decision in Consolidated Freightways instructive. See Consol. Freightways Corp., 258 Iowa at 121, 137 N.W.2d at 904. There
I acknowledge that in some cases we have concluded the word “all” meant something short of all-inclusive. See, e.g., In re Estate of Troester, 331 N.W.2d 123, 126 (Iowa 1983); Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 880-81 (Iowa 1976); Silver Lake Consol. Sch. Dist. v. Parker, 238 Iowa 984, 997, 29 N.W.2d 214, 221 (1947); In re Licenses for Sale of Used Motor Vehicles, 179 N.W. 609, 611 (Iowa 1920). The majority concludes these cases are a sufficient counterweight to the truism that all means all. Notably, however, none of these cases in which we concluded the word “all” meant something less than all-inclusive presented a question requiring interpretation of our workers’ compensation statute.
When deciding workers’ compensation issues, this court has consistently refused to read terms into chapter 85 that are not there expressly, because doing so would create a narrow construction incompatible with the statute‘s benevolent purpose. See, e.g., Holstein Elec. v. Breyfogle, 756 N.W.2d 812, 816 (Iowa 2008); Cedar Rapids Cmty. Sch. v. Cady, 278 N.W.2d 298, 299 (Iowa 1979); Disbrow v. Deering Implement Co., 233 Iowa 380, 392, 9 N.W.2d 378, 384 (1943); see also
Despite the indisputably broad language in section 85.27(2) and the notion that chapter 85 should be interpreted broadly, the majority concludes the words “all information” in section 85.27(2) must mean something less than all information because the legislature placed them among other subsections referring to medical treatment for work-related injuries. I disagree. The legislature could, of course, have narrowly limited the scope of information released under subsection (2) to “records of medical services.” But it did not. See Nelson v. Lindaman, ___ N.W.2d ___, ___ (Iowa 2015) (concluding a statute should be interpreted broadly because if the legislature wanted to limit the statute‘s scope, “it would have said so, as it has in other statutes“). The legislature chose instead to define the release broadly to include “all information to which the employee, employer, or carrier has access concerning the employee‘s physical or mental condition relative to the claim.”
The majority‘s assertion that the commissioner‘s interpretation of section 85.27(2) would jeopardize a wide array of privileges is unconvincing. The declaratory order in fact addresses a single privilege—work product—not several. Indeed, the waiver of that single privilege under the commissioner‘s interpretation of the statute is limited to a very narrow category of information including only surveillance and does not purport to address whether spousal communications or priest-penitent conversations must be released. The scope of the disclosures required by the commissioner‘s order is further limited by its preservation of work product protection for the mental impressions and conclusions of employers, their insurers, or their attorneys. Thus, under the commissioner‘s interpretation of section 85.27(2), the sky would not
I also dispute that the bill book explanation of the statute in 1976 referring to “past physical or mental condition” supports the majority‘s reasoning in this case. Because surveillance is “typically conducted after a claim has been brought,” the majority concludes the general assembly did not include surveillance information within the universe of information that must be released under section 85.27(2). But this temporal analysis does not hold together when placed in the practical context of workers’ compensation cases. Surveillance materials, like medical records and reports, address a claimant‘s physical or mental condition as of a particular moment in time. At all times after such materials, records, and reports have been created, they are accurately described as evidencing a past condition of the claimant. Thus, under section 85.27(2), parties must release all relevant medical records and reports pertaining to workers’ compensation claimants whether they were generated before or after the injury that is the subject of the proceeding—or before or after the workers’ compensation contested case was commenced—because they are “past records” by the time they are released. This statutory requirement to release all relevant medical records without regard to temporal considerations is essential to proper processing and management of claims. For this reason, I believe the word “past” in the bill book explanation cannot plausibly deserve the significance suggested by the majority. Because the general assembly must have intended in section 85.27(2) that all relevant medical records be released by all parties without regard to when they were generated
Furthermore, the majority‘s reliance on the 1976 legislative explanation ignores well-established principles of statutory interpretation. We determine legislative intent “by what the legislature said, rather than what it should or might have said.”
There is yet another problem with the majority‘s interpretation of section 85.27(2) limiting the waiver to the claimant‘s interest in confidentiality of medical records: It renders part of section 85.27(2) superfluous. See Rojas v. Pine Ridge Farms, L.L.C., 779 N.W.2d 223, 231 (Iowa 2010) (“We . . . presume the legislature included all parts of the statute for a purpose, so we will avoid reading the statute in a way that
The majority dismisses this point by suggesting the legislature really meant to impose the waiver under section 85.27(2) only on employees but obscured that intent in favor of “cleaner” language expressly imposing it on all parties to workers’ compensation cases. In my view, this explanation is doubtful at best. As noted above, it fails completely to account for the general assembly‘s language waiving the employer and insurer‘s privilege in information. The majority‘s solution of the problem is to write out of the statute the troublesome words expressly eliminating a privilege otherwise held by employers and their insurance carriers. I believe the commissioner‘s understanding of the
II. Whether Section 85.27(2) Waives Work Product Protection.
The majority concludes section 85.27(2) cannot effect a waiver of work product protection because the work product doctrine provides qualified immunity from discovery rather than a “privilege.” This characterization of the work product doctrine emphasizes form over substance and adopts a semantic label without considering how work product protection actually operates.
A. Limited Scope of Inquiry.
I do not dispute that there are “two tiers of work product recognized by Iowa rule 1.503(3).” Keefe v. Bernard, 774 N.W.2d 663, 674 (Iowa 2009). I also do not dispute that surveillance materials constitute work product in the civil litigation context because they are documents or tangible things prepared by or for a party in anticipation of litigation. See
The commissioner‘s ruling did not need to explain which part of section 85.27(2) justifies a distinction between upper-tier and lower-tier work product because the distinction does not flow from the statute at all; it flows from the nature of the materials and their obvious relevance to a claimant‘s physical or mental condition. Further, as I have already noted, the commissioner‘s declaratory order proceeding did not address any other privileges. Accordingly, there is no need to address other privileges in our decision because their continuing vitality in workers’ compensation cases was not at issue in the agency and is not before the court on appeal. See Morrison v. Century Eng‘g, 434 N.W.2d 874, 876-77 (Iowa 1989) (addressing only the physician-patient privilege because that was the only question presented); see also Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026, 1137 (2003) (“The slippery slope is in some ways a helpful metaphor, but as with many metaphors, it starts by enriching our vision and ends by clouding it.“); cf. State v. Thompson, 836 N.W.2d 470, 495 n.8 (Iowa 2013) (Appel, J., concurring specially) (resisting “any slippery-slope-type argument regarding . . . other privileges” because “the only issue before the court involves the application of [a particular statute] . . . to the facts at hand“).
B. Immunity Versus Privilege.
The majority concludes section 85.27(2) does not eliminate work product protection for surveillance information because the work product doctrine provides immunity from discovery rather than an evidentiary privilege. The terms “immunity” and “privilege” have been used alternatively in our caselaw. The majority suggests our alternating use of the terms merely illustrates that the
In a general sense, both “privilege” and “immunity” concepts place the burden of proof on the party asserting protection. See Anderson v. State, 692 N.W.2d 360, 364 (Iowa 2005) (discretionary function immunity); AgriVest P‘ship v. Cent. Iowa Prod. Credit Ass‘n, 373 N.W.2d 479, 482 (Iowa 1985) (“One resisting discovery through assertion of a privilege has the burden to show the privilege exists and applies.“). But, once established, an immunity leads courts to only one possible conclusion, while a privilege does not. In other words, an opposing party cannot override a claim of immunity based upon their substantial need for information or other ground; they can only assert the immunity does not apply. But an opponent can override an adversary‘s claim of privilege with a proper showing. See, e.g., In re A.M., 856 N.W.2d 365, 373 (Iowa 2014) (applying a statutory exception to the psychotherapist-patient privilege); State v. Countryman, 572 N.W.2d 553, 561 (Iowa 1997)
The framework of rule 1.503(3) best fits the privilege framework. Although a party can establish that a requested document or item is protected work product, the party seeking that document or item can still obtain it upon a showing of substantial need and undue hardship. See
I acknowledge that work product materials including surveillance are often in the possession of attorneys rather than the employers and insurance carriers they represent. The majority concludes clients cannot unilaterally waive the work product doctrine as to materials in their attorneys’ possession. Yet, the waiver under section 85.27(2) is effected by the statute, not by employers’ or insurers’ unilateral actions. More importantly, parties to workers’ compensation proceedings must, under the statute, release not only information they have in their possession,
III. Timing of Disclosure.
Previous agency decisions had concluded that postponing disclosure until after the claimant‘s deposition preserved impeachment value. However, agency decisions interpreting the law are not binding on this court. Keystone Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 304 n.2 (Iowa 2005) (“[T]he commissioner‘s final decision is judged against the backdrop of the workers’ compensation statute and the Iowa appellate cases interpreting it, not previous agency decisions.“). And until today, we had not confronted a case presenting the temporal question at issue here.
Surveillance materials undoubtedly have some impeachment value. See Snead v. Am. Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 n.1 (E.D. Pa. 1973) (“It is in the best interests of society that valid claims be ascertained and fabricated claims be exposed.“). However, “surveillance footage . . . is hardly a smoking gun,” even when it depicts a claimant “performing tasks inconsistent with the claimed disability.” Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 848-49 (Iowa 2011).
Two Louisiana cases illustrate the important competing interests at stake in determining whether predeposition disclosure is appropriate. In Moak v. Illinois Central Railroad, the Louisiana Supreme Court concluded the timing of disclosure should turn on “when the production
While . . . surprise may have a healthy prophylactic effect against possible perjury, it is more likely that the adversarial process will function efficiently and cases will be decided fairly on the merits if the parties are aware of all the evidence. Furthermore, discovery of surveillance materials permits the kind of stipulations and admissions required for effective pre-trial procedures. It also encourages settlement or abandonment of less than meritorious claims.
Id. at 405 (citation omitted) (internal quotation marks omitted).
Several years later, the Louisiana Supreme Court distinguished Moak. Wolford v. JoEllen Smith Pyschiatric Hosp., 693 So. 2d 1164, 1166-67 (La. 1997). The court concluded the unique impeachment value of surveillance justifies a per se rule preventing disclosure before the plaintiff‘s deposition. See id. at 1167. The court explained:
Surveillance videotape picturing the plaintiff engaged in physical activity has the potential to reveal inconsistencies between the plaintiff‘s claimed injuries and resulting limitations and the plaintiff‘s actual abilities. However, any potential impeachment value would be destroyed by ordering pre-deposition disclosure of such surveillance materials. If the plaintiff were to view the surveillance videotape prior to being deposed as to his physical injuries and limitations during the time period pictured in the videotape, he would be more likely, either inadvertently or deliberately, to tailor his testimony to correspond with the actions pictured in the videotape. . . . [D]elaying the production of the videotape until after the plaintiff has been fully deposed aids in the search for the truth.
The majority relies on many other cases that essentially utilize the Wolford rule (or something like it) and allow defendants to withhold surveillance materials until after deposing the plaintiff. See, e.g., Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 587 (S.D. Tex. 1996);
First, not all courts prioritize impeachment value over “the free flow of information.” See Morrison, 434 N.W.2d at 876. For example, one New York court stated:
Although it is possible that a plaintiff will attempt to tailor his or her testimony after learning what the surveillance films reveal, it seems unlikely that he or she would risk going to trial knowing that the films are accurate, . . . . We believe it is more likely that disclosure will result in a settlement, or possibly a voluntary discontinuance of the lawsuit, in either case avoiding costly and time consuming litigation.
Kane v. Her-Pet Refrigeration, Inc., 587 N.Y.S.2d 339, 344 (App. Div. 1992); see also Wegner v. Cliff Viessman, Inc., 153 F.R.D. 154, 159-60 (N.D. Iowa 1994) (“[R]equiring discovery of surveillance by defendants . . . will not jeopardize the ability of defendants to impeach plaintiffs.“); Shields v. Burlington N. & Santa Fe Ry., 818 N.E.2d 851, 856 (Ill. App. Ct. 2004) (“[W]e see no need for special treatment of the substantive evidence in a surveillance videotape.“); Williams v. Dixie Elec. Power Ass‘n, 514 So. 2d 332, 335 (Miss. 1987) (“Once an opponent requests discoverable material, an attorney has a duty to comply with the request regardless of the advantage a surprise may bring.“).
Second, surveillance materials sometimes are not fairly described as a smoking gun. See Pease, 807 N.W.2d at 848. In a personal injury case, the New Jersey Supreme Court addressed and rejected an assertion that requiring disclosure of surveillance materials would render them toothless for impeachment purposes:
[D]efendants’ position suffers from an obvious analytical weakness: it is based on the premise that defendants’ evidence (in the form of the undercover films) is the exclusive repository of truth and virtue and its disclosure . . . will deprive them of the opportunity to demonstrate . . . the fraud plaintiff seeks to work upon them. While defendants do not state that assumption quite so bluntly, their argument rests upon it at least implicitly. The premise is one we can hardly indulge. It is no more unlikely that a defendant may resort to chicanery in fabricating motion pictures of one alleged to be the plaintiff than it is that a plaintiff may indeed be a faker.
Jenkins v. Rainner, 350 A.2d 473, 476-77 (N.J. 1976); see also Boyle, 142 F.R.D. at 437 (“[T]hose surveilled may be tempted to alter the truth, but . . . those conducting the surveillance may be subject to the same temptation . . . .“); Snead, 59 F.R.D. at 150 (questioning the purportedly unassailable nature of surveillance materials because “[a]n emergency situation may be made to appear commonplace” and a one-time event can be made to appear recurring); Orgeron v. Tri State Road Boring, Inc., 434 So. 2d 65, 68 (La. 1983) (“[P]ictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain . . . .“).10
Furthermore, as the Core Group suggests, in some instances surveillance information has no impeachment value whatsoever because it is probative of the physical impairment claimed by an injured employee. And even when surveillance information does have
But most importantly, as I have already noted, cases adjudicating discovery disputes between plaintiffs and defendants engaged in civil litigation are qualitatively different from workers’ compensation cases involving claimants and employers or insurers. Unlike personal injury actions sounding in tort or statutory actions brought under the Federal Employers’ Liability Act, the workers’ compensation system “is designed to be essentially nonadversarial.” Morrison, 434 N.W.2d at 877; see also Flint, 191 Iowa at 847, 183 N.W. at 345 (noting the workers’ compensation system is designed to “avoid litigation . . . and afford an efficient and speedy tribunal“). Thus, when considering decisions from other courts resolving work product disputes, I strongly agree with those prioritizing “the free flow of information regarding a worker‘s physical or mental condition relative to a compensation claim.” See Morrison, 434 N.W.2d at 876. Sometimes the difference between types of cases is crucial. See Williams-Yulee v. Fla. Bar, ___ U.S. ___, ___, 135 S. Ct. 1656, 1673, ___ L. Ed. 2d ___, ___ (2015) (plurality opinion) (judges are different); Miller v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2464, 183 L. Ed. 2d 407, 418 (2012) (children are different). This is one such instance. I would conclude surveillance materials are discoverable “upon
The commissioner‘s interpretation of section 85.27(2) is consistent with several other states’ rules and decisions addressing surveillance materials specifically in the workers’ compensation context. See, e.g., Camelback Contractors, Inc. v. Indus. Comm‘n, 608 P.2d 782, 785 (Ariz. Ct. App. 1980) (“[T]he hearing officer correctly determined that the surveillance tapes . . . were discoverable upon timely and properly served interrogatories.“); McNease v. Murphy Constr. Co., 682 So. 2d 1250, 1250-51 (La. 1996);12 Johnson v. Archdiocese of New Orleans, 649 So. 2d 12, 13-14 (La. Ct. App. 1994); Sires v. Nat‘l Serv. Corp., 560 So. 2d 448, 449 (La. Ct. App. 1990); State ex rel. McConaha v. Allen, 979 S.W.2d 188, 189-90 (Mo. 1998) (concluding surveillance video tapes are “statements” under Missouri‘s workers’ compensation scheme and rules of civil procedure, and thus, claimants are always entitled to view them);
IV. Fact of Surveillance.
One final question remains: whether the fact that surveillance exists—along with other factual details such as dates of surveillance and the form it takes—is itself protected from disclosure. The majority declines to answer this question. I conclude the fact of surveillance is not protected from disclosure, and neither are related factual details.
A lawyer‘s strategic decision to invest a client‘s resources on photographic or video surveillance is protected work-product. The decision not only reflects the lawyer‘s evaluation of the strengths or weaknesses of the opponent‘s case but the lawyer‘s instructions to the person or persons conducting the surveillance also reveals the lawyer‘s analysis of potentially fruitful areas of investigation. . . . Disclosure of the fact of surveillance and a description of the materials recorded would thus impinge on the very core of the work-product doctrine.
Ranft v. Lyons, 471 N.W.2d 254, 261-62 (Wis. Ct. App. 1991). However, this appears to be a minority rule. Even in those cases allowing defendants to withhold surveillance materials until deposing the plaintiff, courts generally hold factual information regarding the surveillance receives no protection. See, e.g., Fletcher v. Union Pac. R.R., 194 F.R.D. 666, 668 (S.D. Cal. 2000) (“[W]hether Defendant conducted surveillance and the dates on which any surveillance took place [a]re not privileged.“); Smith, 168 F.R.D. at 587 (requiring defendants to disclose whether they performed surveillance, when they did so, and the format of surveillance used); Doster Constr. Co., 772 So. 2d at 451; Dodson, 390 So. 2d at 707 (“[A] party must disclose the existence of material which is or may be relevant to the issues in the cause whether as substantive, corroborative, or impeachment evidence. Relevant evidence cannot be allowed to remain hidden . . . .“).
I would adopt the latter view, and I find particularly persuasive the federal court‘s reasoning in Smith:
It may well be that the decision about if, when, or how surveillance of a plaintiff should be conducted does reveal something about how the defendant‘s attorney investigates and prepares a case for trial. However, not every action that
reveals, to some minimal degree, an attorney‘s general strategy or approach to a case amounts to protected opinion work product. For example, the manner in which an attorney phrases his answers to interrogatories may reveal, to some degree, the attorney‘s strategy in defending against the plaintiff‘s claims. Nonetheless, the attorney could not refuse to answer the interrogatories on the grounds of the work product doctrine.
Smith, 168 F.R.D. at 587. Because the workers’ compensation system is nonadversarial, in this context we should uphold even more doggedly the maxim that litigation by surprise is incompatible with modern-day law practice. See Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 386 (Iowa 2012) (noting trial by surprise interferes with the search for truth); State ex rel. Hager v. Carriers Ins. Co., 440 N.W.2d 386, 389 (Iowa 1989) (advancing “the basic notion of fairness . . . aimed at elimination of trials by ambush” (internal quotation marks omitted)); cf. Simons v. State Comp. Mut. Ins. Fund, 865 P.2d 1118, 1121-22 (Mont. 1993) (excluding surveillance footage from trial when the employer did not disclose it as an anticipated trial exhibit). Requiring employers and insurers to disclose upon request the fact of surveillance, the dates of surveillance, the form of surveillance, and the investigator‘s identity serves this purpose.
V. Conclusion.
Although I agree the commissioner did not err or abuse his discretion in ruling on Core Group‘s petition for declaratory order, I disagree with the majority‘s conclusion that the commissioner erred in interpreting Iowa Code section 85.27(2). I believe the commissioner correctly interpreted section 85.27(2) as requiring parties in workers’ compensation proceedings to release to a claimant—upon request—surveillance materials and factual information about such surveillance conducted in connection with the claimant‘s case. As both the district
Notes
Section 85.27(2) provides:
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee‘s physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information shall be made available to any party or the party‘s representative upon request. Any institution or person releasing the information to a party or the party‘s representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers’ compensation commissioner for relief. The information requested shall be submitted to the workers’ compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.
The intervenors represent the interests of various employers, insurers, and attorneys. In its petition for intervention, the Iowa Insurance Institute explained it “is an association composed of Iowa based property/casualty insurance companies and out of state property/casualty insurance companies that write significant volumes of coverage in Iowa.” The Iowa Defense Counsel Association (IDCA) and the Iowa Self Insurers’ Association (ISIA) joined Iowa Insurance Institute‘s petition for intervention. IDCA explained it “is an organization comprised of approximate[ly] 335 lawyers and claims professionals actively engaged in the practice of law or in work relating to handling of claims or defense of legal actions.” ISIA is an organization whose members are self-insured Iowa employers and therefore may be involved in workers’ compensation proceedings from time to time. Property Casualty Insurers Association of America (PCI) intervened separately to raise procedural objections to the declaratory order petition. PCI‘s members also write workers’ compensation insurance in Iowa.
Two other trade associations—the National Association of Mutual Insurance Companies (NAMIC) and the Iowa Association of Business and Industry (IABI)—intervened after the case reached the district court. NAMIC and IABI joined in the legal arguments presented by the Iowa Insurance Institute, IDCA, ISIA, and PCI. In the petition for intervention, NAMIC explained it “is a trade association of approximately 1400 mutual property and casualty insurance companies, some of whom issue Workers’ Compensation coverage to employers in . . . Iowa.” IABI explained it “is an organization of over 1400 Iowa businesses [that] employ over 300,000 persons covered by Iowa‘s Workers’ Compensation Act.” We refer to all six intervenors collectively as “the Institute.”
This explanation is similar to the official comment to the 1981 model act:
[A]s subsection (a) makes clear, an agency must issue a declaratory order upon receipt of a proper petition therefor unless it determines that under the particular circumstances its issuance would either (1) be contrary to a rule issued in accordance with subsection (b) [enacted as subsection (2) in Iowa], or (2) would substantially prejudice the rights of any persons who would be indispensable parties to the proceeding and do not consent to determination of the matter by a declaratory order.