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IN THE COURT OF APPEALS OF IOWA No. 8-580 / 08-0057 Filed December 17, 2008 BEVERLY MANNES, Petitioner-Appellee/Cross-Appellant, vs. FLEETGUARD, INC., and TRAVELERS INSURANCE COMPANY, Respondents-Appellants/Cross-Appellees. ________________________________________________________________ Appeal from the Iowa District Court for Winnebago County, James M. Drew, Judge.

Fleetguard Inc. and Travelers Insurance Co. appeal from the district court ruling on judicial review remanding a decision of the workers compensation commissioner. AFFIRMED.

Richard G. Book of Huper, Book, Cortese, Happe & Lanz, P.L.C., West Des Moines, for appellant. Mark S. Soldat of Soldat & Parrish-Sams, P.L.C., West Des Moines, for appellee-Beverly Mannes. Thomas J. Miller, Attorney General, and Anne Updegraff, Assistant Attorney General, for appellee-Second Injury Fund.

Heard by Eisenhauer, P.J., and Doyle, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

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EISENHAUER, J. Fleetguard Inc. and its workers compensation carrier, Travelers Insurance Co., appeal from the district court ruling on judicial review remanding a decision of the workers compensation commissioner. They contend the court erred as a matter of law in remanding the matter to the commissioner (1) for re-taxation of costs, (2) to determine whether Beverly Mannes is entitled to partial disability benefits, (3) for a determination of whether penalty benefits should be awarded, and (4) to clarify whether the full responsibility rule was followed in determining Manness industrial disability. We affirm. I. Background Facts and Proceedings. Beverly Mannes has been

employed by Fleetguard and its predecessor since 1972. She has worked as a product assembler and forklift operator. Over the years, she has suffered a multitude of work-related injuries. On October 5, 2001, Mannes filed petitions for workers compensation benefits for two injuries: an overuse injury to both arms alleged to have been suffered on or about May 16, 2000, and an overuse injury to the neck and shoulders alleged to have been suffered on or about September 1, 2001. Following a hearing in March 2003, the deputy commissioner found Mannes was entitled to temporary partial benefits and ten weeks of permanent partial disability benefits with respect to the May 16, 2000 injury. Manness claim for benefits relating to the September 1, 2001 injury was denied, as was her claim for penalty benefits.

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Following an appeal, the workers compensation commissioner affirmed the arbitration decision and assessed costs of the appeal to Mannes. Manness request for rehearing was denied with the exception of a recalculation of temporary partial disability benefits due. On judicial review, the district court found the deputy commissioner "failed to decide whether [Mannes] suffered from a cumulative work injury to the neck and back at any time." It reversed the workers compensation commissioners appeal decision and remanded to the agency to determine whether and when a cumulative injury occurred to Manness neck and back. In Mannes v. Fleetguard, Inc., No. 05-0150 (Iowa Ct. App. Mar. 29, 2006), this court affirmed the district court with slight modification. On remand to the agency, the deputy commissioner determined that on September 5, 2001, Mannes sustained a cumulative injury to her neck and shoulders. Mannes was found to have sustained a ten percent industrial

disability to the body as a whole and was entitled to fifty weeks of permanent partial disability benefits. Manness request for rehearing was denied. Mannes again filed a petition for judicial review. In its decision, the district court found the agencys remand decision failed to address the issues of costs and penalty benefits. The court could not determine if the issues of temporary partial benefits and the full responsibility rule were considered. Accordingly, it remanded these issues to the agency. II. Scope and Standard of Review. We review decisions of

administrative agencies for correction of errors at law. Kostelac v. Feldman's,

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Inc., 497 N.W.2d 853, 856 (Iowa 1993). We are bound by the commissioner's findings of fact if supported in the record as a whole and will reverse the agency findings only if we determine substantial evidence does not support them. Meyer v. IBP, Inc., 710 N.W.2d 213, 218 (Iowa 2006). The definitive question is not whether the evidence supports a different finding, but whether the evidence supports the findings actually made. Id. at 218. III. Costs. In the April 25, 2003 arbitration decision, the deputy

commissioner found Mannes failed to prove a cumulative injury to her neck and back. It then taxed costs to Mannes. In the March 5, 2004 appeal decision, the workers compensation commissioner affirmed the deputy commissioner and ordered Mannes to pay the costs of the appeal. On judicial review, the district court reversed and remanded the decision to determine whether Mannes sustained a cumulative injury and when any such injury manifested. The

commissioner was also directed to take "further action consistent with this ruling." This court affirmed. On remand, the deputy commissioner found Mannes did suffer a cumulative injury to her neck and back and was entitled to compensation. However, the issue of costs was not addressed. Mannes pointed out this

deficiency in her rehearing application, which states, "[T]here should be a retaxation of costs." Her rehearing was denied by operation of law pursuant to Iowa Code section 17A.16(2) (2007) when it was not ruled on within twenty days. The district court found the decision failed to address the issue and therefore remanded. The appellants contend this was error because Mannes did

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not preserve the issue by raising it in a rule 1.904(2) motion. The district court disagreed, finding the remand "for further action consistent with this ruling" made it "implicit in Judge Riffels ruling that the issue of costs should have been revisited if an opposite result on the claim was reached as that would have been ,,further action consistent with this ruling . . . ." When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The question is whether the district court failed to rule on the issue. We conclude the directive to take further action consistent with the first judicial review ruling authorized the re-taxation of costs should the outcome of the remand differ. It was unnecessary for Mannes to revisit the issue with a motion to enlarge or amend. Accordingly, error was preserved. Furthermore we agree with the

courts conclusion that "further action consistent with this ruling" includes consideration of who pays the costs. We affirm the district court on this issue. IV. Temporary Partial Benefits. The appellants next contend the district court erred in remanding the issue of whether Mannes is entitled to temporary partial benefits. Mannes made a claim for temporary partial benefits relating to her cumulative neck and back injury for the period of October 11, 2001, through February 21, 2002. The agency found the issue of temporary partial benefits was resolved by file 5000737, the case involving Manness bilateral arm injury of May 16, 2000. In that case, temporary partial benefits were awarded for the

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period of time of July 27, 2000, through January 4, 2001. Manness application for rehearing on this issue was denied. On judicial review, the district court held: The court is unable to determine whether the deputy actually considered Manness claim. It appears to the court that the issue was passed over. Either way, remand is appropriate so that the commissioner can directly rule on Manness claim for 10/11/01

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