The workers' compensation commissioner shall decide an appeal
upon the record submitted to the deputy workers' compensation commissioner
unless the workers' compensation commissioner is satisfied that additional
newly discovered material evidence exists, which could not have been discovered
and produced at the hearing with reasonable diligence. A party must file a
request for taking additional evidence in WCES within 20 days after the notice
of appeal was filed. If a party has been granted a waiver of the mandatory use
of WCES, the party shall file the request for taking additional evidence with
the division of workers' compensation and serve a copy on the other parties.
Any briefs required or allowed by this rule shall be filed promptly following
service.
(1)
Time for serving
briefs. Appellant shall serve its brief within 50 days after the date
on which notice of appeal was filed, or within 20 days after filing of the
hearing transcript, whichever date is later. Appellee shall serve its brief
within 20 days after service of the brief of appellant. If appellant serves a
reply brief, it shall be done within 10 days after service of appellee's
brief.
(2)
Cross-appeals. In the event of a cross-appeal, appellee
(cross-appellant) shall serve its brief within 20 days after service of the
brief of appellant. Appellant (cross-appellee) shall serve its responsive reply
brief within 20 days after service of the brief of appellee. Appellee
(cross-appellant) may serve a reply brief within 10 days after service of
appellant's reply brief. When more than one party appeals, the party filing the
first notice of appeal will be designated the appellant and the party filing a
subsequent notice of appeal will be designated the cross-appellant.
(3)
Multiple adverse
parties. In cases involving multiple appeals involving multiple
claimants, employers, insurance carriers or the second injury fund, the
workers' compensation commissioner shall enter an order establishing a briefing
schedule.
(4)
Form of
briefs. Respective briefs and exceptions on appeal shall include the
following:
a. Statement of the case.
b. Statement of the issues on
appeal.
c. An argument
corresponding to the separately stated issues and contentions of appellant with
respect to the issues presented and reasons for them, with specific reference
to the page or pages of the transcript which are material to the issues on
appeal.
d. A short conclusion
stating the precise relief sought.
The appellee may submit a brief on appeal replying to the
issues presented by the appellant, unless a cross-appeal is made in which case
the brief of appellee shall contain the issues and argument involved in the
cross-appeal as well as the response to the brief of
appellant.
(5)
Length of briefs. See rule
876-4.45 (17A,86).
(6)
Extensions. One
extension of up to 30 days will be granted if a motion to extend the time is
served on or before the date service of the brief is required by this rule. A
subsequent extension requires a motion showing good cause. The commissioner may
grant a party the right to serve and file a brief after the time to do so has
expired if the appeal or cross-appeal has not been dismissed or decided, the
party moves for relief within 60 days from the date service of the brief was
due, and the motion shows that the failure to timely serve the brief was due to
a good cause that could not have been avoided through the exercise of
reasonable diligence.
(7)
Issues considered on appeal. The appeal will consider the
issues presented for review by the appellant and cross-appellant in their
briefs and any issues necessarily incident to or dependent upon the issues that
are expressly raised, except as provided in rule
876-4.29 (86,17A). An issue will
not be considered on appeal if the issue could have been, but was not,
presented to the deputy workers' compensation commissioner. An issue raised on
appeal is decided de novo and the scope of the issue is viewed broadly. If the
ruling from which the appeal was taken made a choice between alternative
findings of fact, conclusions of law, theories of recovery or defenses and the
alternative selected in the ruling is challenged as an issue on appeal, de novo
review includes reconsideration of all alternatives that were available to the
deputy.
(8)
Sanctions. If an appellant's brief or cross-appellant's brief
is not served and filed within the time required by this rule, including any
extension, the party defending against the appeal or cross-appeal may move for
dismissal. If an appellant's brief or cross-appellant's brief is not served
within 30 days after the time required by these rules, including any extension,
the workers' compensation commissioner will notify the party in default that
upon 15 days from service of the notification the appeal or cross-appeal will
be dismissed for want of prosecution unless the default is remedied within that
period. If the default is not remedied, the appeal or cross-appeal will be
dismissed. If an appellee's brief or cross-appellee's brief is not served and
filed, the appeal will be decided without reference to that brief.
This rule is intended to implement Iowa Code section
86.24.
Notes
Iowa Code r. 876-4.28
ARC 4568C, IAB
7/31/19, effective 7/10/19; ARC
6841C, IAB 2/8/23, effective 3/15/23
Amended by
IAB
July 31, 2019/Volume XLII, Number 3, effective
7/10/2019
Amended by
IAB
February 8, 2023/Volume XLV, Number 16, effective
3/15/2023
