Opinion
No. 2-066 / 01-0316.
Filed July 19, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
Petitioners appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's determination of the proper weekly compensation rate for respondent's work-related injury. AFFIRMED.
Michael Mock, Des Moines, for appellant.
David Stamp, Waterloo, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Farm Services, Inc. and EMC Insurance Companies appeal from the district court's ruling on judicial review affirming the workers' compensation commissioner's determination of the proper weekly compensation rate for Eugene Parker's work related injury. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS
Eugene Parker is a retired machinist who was seventy-one years old at the time of the evidentiary hearing before the agency. To supplement his social security benefits Parker began working for Farm Services, Inc. (FS). FS provides fertilizer as well as other products and services to farmers. Parker was collecting social security retirement benefits and did not want to earn so much he would forfeit a portion of these benefits. Therefore, Parker did not work year around but only during the spring planting and fall harvest, the busiest times for FS. The majority of Parker's job duties entailed driving a truck to deliver fertilizer to farmers in the field. However, he also performed some additional jobs as needed by FS, including truck repair and assisting in erecting farm buildings. He was paid $6 per hour by FS.
Although Parker only worked in the spring and fall he usually worked full-time when he did work, being scheduled to work sixty hours per week and often working more than forty hours per week. In the fall of 1992 Parker worked a total of 366.75 hours and his total earnings in 1992 from FS were $2,848.50, including overtime pay. Parker returned to FS in the spring of 1993. Between May 8, and May 17, 1993 Parker worked 39.5 hours and earned $237.00. On May 17, 1993 Parker sustained a work related injury to his left leg arising out of and in the course of his employment with FS. He never returned to work at FS after the injury.
Parker reached maximum medical improvement in February 1994 and was given an impairment rating of thirty-five percent of his left leg. Parker filed a petition with the Iowa Workers' Compensation Commission on September 24, 1997. In August of 1999 FS and its insurer EMC Insurance Companies (hereinafter collectively referred to as FS) stipulated to several facts. Specifically the parties agreed that: (1) Parker was entitled to healing period benefits from May 18, 1993 through February 7, 1994; (2) the injury caused a permanent scheduled member loss of the use of Parker's left leg; and (3) as a result of a thirty-five percent loss of leg use Parker was entitled to seventy-seven weeks of permanent partial disability benefits beginning February 8, 1994. Thus, the sole issue in dispute before the agency was Parker's proper "wage basis" under Iowa Code section 85.36.
Hearing was held before a deputy workers' compensation commissioner on August 16, 1999 and an arbitration decision was issued on August 31, 1999. The arbitration decision concluded that even though Parker's earnings varied greatly during the weeks he worked, his customary workweek at the time of his injury consisted of sixty hours, or six consecutive ten-hour days. The deputy concluded Parker's gross weekly earnings were $600.00 and based his determination of the proper rate of compensation on this figure.
As the district court noted, the deputy apparently reached this incorrect amount by mistakenly multiplying a sixty-hour workweek by $10.00 per hour instead of $6.00 per hour.
FS appealed the deputy's arbitration decision and on April 25, 2000 Chief Deputy Commissioner Cramer issued an appeal decision as the final agency action in the case. The appeal decision found the deputy had incorrectly computed Parker's rate of weekly compensation and examined the proper means by which to calculate his earnings. The chief deputy found that the facts and circumstances of this case do not lend themselves to an easy application of Iowa Code section 85.36 (1993) and determined that subsections (8), (9) and (10) of section 85.36 did not apply.
The workers' compensation commissioner had previously issued an order on April 12, 2000 delegating authority to the chief deputy to issue the final agency decision pursuant to Iowa Code section 86.3 (1993).
Unless otherwise indicated all references and citations to the Iowa Code herein are to the 1993 Code.
The chief deputy instead adopted an averaging test, relying on the case of Hanigan v. Hedstrom Concrete Products, Inc., 524 N.W.2d 158 (Iowa 1994), which he believed to provide a fair test for the wages of an "intermittent employee" such as Parker who worked full-time when scheduled to work. The chief deputy also looked to the first paragraph of section 85.36 in order to determine the wage basis of customary hours in resolving the rate issue. Accordingly, the chief deputy divided Parker's total hours worked in 1992 (459.25) by the total number of weeks worked (thirteen) in order to get his average number of hours worked per week (35.33). He then multiplied this customary average number of hours worked per week (35.33) by Parker's hourly wage ($6.00) to arrive at gross earnings of $211.98 for purposes of calculating his weekly rate of workers' compensation benefits of $151.90.
FS filed an application for rehearing on May 15, 2000 which was denied by the chief deputy.
FS filed a timely petition for judicial review of the final agency decision in district court on June 19, 2000. The district court concluded the agency's factual determinations that Parker was a full-time, intermittent employee and his employment was not seasonal were supported by substantial evidence. Accordingly, the court rejected FS's contentions that either section 85.36(9) or section 85.36(10) should have been applied by the agency. The court also determined section 85.36(7) did not apply to Parker because the record was devoid of evidence regarding whether "work was available to other employees in a similar occupation" as required by this subsection. The district court concluded the Iowa Code does not provide a provision to compute the weekly earnings that adequately addresses the case at hand and thus it was not error for the agency to compute Parker's weekly earnings based on an averaging test in accordance with Hanigan.
FS appeals from the district court's decision, contending the agency's award of a weekly compensation rate based on gross wages of $211.98 per week is erroneous and lacking any factual or legal support. Specifically, FS argues that because Parker's employment was intended by both parties to be part-time and seasonal, he routinely worked fewer than forty hours per week and fewer than twelve weeks per year, and he earned less than $2500 per year from his employment with FS, he should be classified as either a "part-time" employee under section 85.36(10) or a "seasonal" employee under section 85.36(9). Accordingly, FS asserts the agency's appeal decision lacks substantial evidentiary support in the record, commits legal error by failing to properly interpret and apply section 85.36, and is arbitrary, capricious, and an abuse of discretion for its refusal to apply or distinguish prior agency case precedents. FS asks that the case be reversed and remanded to the agency for a proper determination of Parker's weekly compensation rate under either section 85.36(9) or (10).
II. STANDARDS OF REVIEW
Our review of a final decision of the workers' compensation commissioner, like that of the district court, is for correction of errors of law. Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994). In determining whether the district court erred in exercising its power of judicial review, we apply the standards of Iowa Code section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court. Williamson v. Wellman Fansteel, 595 N.W.2d 803, 806 (Iowa 1999); E.N.T. Assocs. v. Collentine, 525 N.W.2d 827, 829 (Iowa 1994). The agency's findings are akin to a jury verdict, and we broadly apply them to uphold the agency decision. Shank, 516 N.W.2d at 812.
We may reverse, modify, or remand to the commissioner for further proceedings if that agency's action was affected by an error of law, or if it is not supported by substantial evidence when the record is viewed as a whole. Quaker Oates Co. v. Ciha, 552 N.W.2d 143, 150 (Iowa 1996). Evidence is substantial if reasonable minds would find it adequate to reach the same findings. Murillo v. Blackhawk Foundry, 571 N.W.2d 16, 17 (Iowa 1997). The commissioner's conclusions do not lack substantial evidential support merely because inconsistent conclusions could be drawn from the same evidence. Id. The ultimate question is not whether the evidence supports a different finding, but whether it supports the finding the commissioner actually made. Id.
The district court correctly noted that although it owed little deference to an agency's construction or interpretation of the statute, because the statute's application was contingent upon factual determinations its review of the agency's decision was largely governed under the substantial evidence standard. We believe the district court was correct because whether section 85.36(9) or section 85.36(10) applies here is largely dependent upon the facts. Therefore we, like the district court, initially review the record as a whole to determine if there is substantial evidence to support the agency's factual determinations.
III. MERITS
The issue on appeal concerns Parker's proper wage basis under Iowa Code section 85.36. FS specifically argues that either subsection (9) or (10) of section 85.36 must be applied here and the application of the averaging test found in Hanigan is an erroneous application of the law. Parker asserts the district court did not err because there was substantial evidence in the record to support the agency's findings of fact which underlie its determination of Parker's proper weekly wage basis.
Section 85.36, and its pertinent subparts, describes benefit calculation this way:
The basis of compensation shall be the weekly earnings of the injured employee at the time of the injury. Weekly earnings means gross salary, wages, or earnings of an employee to which such employee would have been entitled had the employee worked the customary hours for the full pay period in which the employee was injured, as regularly required by the employee's employer, for the work or employment for which the employee was employed, computed or determined as follows and then rounded to the nearest dollar:
. . .
9. In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the weekly earning shall be taken to be one-fiftieth of the total earning which the employee has earned from all occupations during the twelve calendar months immediately preceding the injury.
10. If an employee earns either no wages or less than the usual weekly earning of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.
Iowa Code § 85.36 (1993) (emphasis added).
A. Section 85.36(9)
The district court found there was substantial evidence to support the agency's determination that section 85.36(9) did not apply to the facts and circumstances of this case because Parker worked as a laborer and delivery truck operator. The plain language of section 85.36(9) provides that "occupations" are "seasonal" when they cannot be performed throughout the year. We give statutory words their ordinary meaning unless a contrary intent is evident or doing so would lead to absurdity, injustice or contradictions between statutes. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986). The plain language of the statute demonstrates that it is the employee's "occupation," not simply his or her employment, which must be exclusively seasonal in order for section 85.36(9) to apply. This reading of the statute is in accord with prior decisions of the workers' compensation commissioner and other jurisdictions.
The legislature repealed subsection (9) in 1995. See 1995 Iowa Acts, ch. 140, § 1.
See, e.g., Young v. Valley Supply Co., Inc., File No. 872593 (Appeal Dec., Nov. 1992) (finding employment as a construction worker is not seasonal even if employer's business was).
See Nilson v. Clay County, 534 N.W.2d 598, 601-02 (S.D. 1995) (holding election judge was not seasonal employee because although it was intermittent employment it could be carried on throughout the year.); Elrod v. Prairie Valley, Inc., 335 N.W.2d 317, 319 (Neb. 1983) (finding corn sorting and husk removal in conjunction with drying of corn was temporary employment and not seasonal for purposes of computing average weekly wage in workers' compensation case.).
According to evidence in the record Parker's occupation as a laborer and delivery truck driver required him to perform tasks that can be performed year around. Parker was performing tasks in his capacity as a truck driver such as hauling various things (including, but not exclusively, anhydrous ammonia), picking up and loading a variety of materials when needed, and performing needed repairs on trucks. He was also a "parts runner," helped build storage bins, worked on machinery, and performed various other "odd jobs" as needed. All of the jobs performed by Parker could be done year around. Therefore, we agree with the district court that there was sufficient evidence in the record to support the agency's determination Parker's occupation was not "seasonal," even if FS categorized his employment as such. Accordingly, we agree with the agency and the district court that section 85.36(9) is not applicable here.
B. Section 85.36(10)
To use the method of "weekly earnings" calculation outlined in section 85.36(10), there must be a preliminary factual finding that the employee "earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality. . . ." Iowa Code § 85.36(10); King v. City of Mt. Pleasant, 474 N.W.2d 564, 566 (Iowa 1991). FS argued that because Parker was a part-time employee he must have earned less than regular full-time employees.
The district court found that although there was evidence in the record showing at times Parker worked less than full-time, there was also evidence demonstrating at times he worked more than full-time. The commissioner had specifically found that Parker "worked full time when he worked." In rejecting FS's argument the court correctly noted that evidence is not insubstantial merely because it would have supported contrary inferences or because two inconsistent conclusions could be drawn from it, but rather the question is whether the evidence supports the findings actually made by the agency, in which case the findings are binding on a reviewing court. City of Hampton v. Iowa Civil Rights Comm'n, 554 N.W.2d 532, 536 (Iowa 1996). Based on this well-established principle of judicial review, the court concluded that because there was evidence showing Parker had at times worked full-time the agency's factual determination that Parker was not a part-time employee for purposes of section 85.36(10) was supported by substantial evidence in the record. We agree with the district court's reasoning and conclusion and adopt them as our own. There is substantial evidence in the record to support the agency's determination that Parker is not a part-time employee as defined in section 85.36(10) and therefore this subsection does not apply to the facts and circumstances of this case.
C. Reliance on Hanigan
Having determined neither section 85.36(9) nor section 85.36(10) is applicable here, we agree with the district court that the Iowa Code does not include a provision to compute weekly earnings that adequately addresses the facts in the case at hand. Therefore, the agency was left with the challenge of finding a fair alternate means of computing Parker's wage basis. Keeping in mind that workers' compensation statutes for computation of wage bases are meant to be applied, not mechanically nor technically, but flexibly, with a view always to achieving the ultimate objective of reflecting fairly the claimant's probable future earning loss, Hanigan, 524 N.W.2d at 160, the agency properly relied on Hanigan for assistance in calculating Parker's wage basis.
In Hanigan our supreme court approved the agency's use of an averaging test to determine the claimant's wage basis when none of the employment categories in section 85.36 fit the particular facts and circumstances of Hanigan's employment. Id. The use of an averaging test in Hanigan is similar to the manner in which the agency determined Parker's gross earnings and his proper rate for weekly compensation benefits here. We agree with the district court that the averaging test applied by the chief deputy accurately comports with the primary purpose of the workers' compensation statutes. It was not error to compute weekly earnings in this manner because none of the provisions of section 85.36 fit the facts and circumstances of Parker's employment.
D. FS's remaining claims
FS claims the agency decision is arbitrary, capricious, and an abuse of discretion because it fails to apply or distinguish prior agency precedents. "Arbitrary," when applied to test the propriety of agency action, means "the action complained of was without regard to the law or consideration of the facts of the case." Burgess v. Great Plains Bag Corp., 409 N.W.2d 676, 678 (Iowa 1987). The term "capricious" is practically synonymous with the term "arbitrary." Churchill Truck Lines, Inc. v. Transp. Regulation Bd., 274 N.W.2d 295, 299 (Iowa 1979). An "abuse of discretion" is synonymous with "unreasonableness," is premised on a lack of rationality, and focuses on whether the agency has made a decision clearly against reason and evidence. Frank v. Iowa Dep't of Transp., 386 N.W.2d 86, 87 (Iowa 1986). "Unreasonable" agency action means "action in the face of evidence as to which there is no room for difference of opinion among reasonable minds or not based on substantial evidence." Id. (quoting Churchill, 274 N.W.2d at 300). For the following reasons, somewhat summarily stated in order to not unnecessarily further lengthen this opinion, we reject FS's claims.
FS cites three agency decisions as precedent. However, it does not state whether judicial review was sought in any of the three or, if so, whether the agency decision survived judicial review. We thus cannot determine whether the cases in fact constitute valid agency precedent.
FS acknowledges that in the first case cited by it the claimant "was hired as a part-time worker" and that in the other two cases the employees "did not customarily work full-time." The facts of the three cited cases are thus readily distinguishable from the facts of this case in which the agency found Parker was scheduled to work sixty hours per week at certain times of the year and in fact had worked over thirty-five hours per week and was thus an intermittent full-time employee, findings we have found to be supported by substantial evidence.
Finally, the agency's decision in this case is based largely on our supreme court's decision in Hanigan, 524 N.W.2d 158, and is thus not made without regard to the law or premised on a lack of rationality.
IV. CONCLUSION
Based on our consideration of all of the evidence in the record, we find our conclusions to be the same as those of the district court. We agree there is substantial evidence in the record to support the agency's factual determinations that Parker was neither in a seasonal occupation under section 85.36(9) nor a part-time employee pursuant to section 85.36(10). Furthermore, we also agree the agency did not commit an error of law in applying an averaging test in accord with Hanigan. The agency's decision is not arbitrary, capricious, or characterized by an abuse of discretion. We affirm the judgment of the district court affirming the decision of the agency.
AFFIRMED.