IN THE SUPREME COURT OF IOWA
No. 13–1009
Filed April 3, 2015
Amended June 11, 2015
ROBERTS DAIRY and CRAWFORD & COMPANY,
Appellees,
vs.
GRADY BILLICK,
Appellant.
Appeal from the Iowa District Court for Polk County,
Christopher L. McDonald, Judge.
A workers’ compensation claimant appeals the district court’s
ruling on judicial review of a decision of the Iowa Workers’ Compensation
Commissioner. REVERSED AND REMANDED WITH INSTRUCTIONS.
Thomas J. Currie of Currie & Liabo Law Firm, P.L.C., Cedar
Rapids, for appellant.
Stephen W. Spencer and Joseph M. Barron of Peddicord, Wharton,
Spencer, Hook, Barron & Wegman, L.L.P., West Des Moines, for
appellees.
2
HECHT, Justice.
An employee sought workers’ compensation benefits for a series of
work-related injuries. His current employer contends its liability for
industrial disability benefits must be apportioned because the employee
previously suffered disability as a consequence of two separate injuries
sustained while working for other employers. The workers’ compensation
commissioner concluded apportionment of industrial disability is not
mandated by law under the circumstances of this case. On judicial
review, the district court concluded the commissioner’s decision was
based on a misinterpretation of amendments to our workers’
compensation statutes passed in 2004. The district court reversed the
commissioner’s decision and remanded the case to the agency for further
findings relevant to the apportionment issue. Finding no error in the
commissioner’s interpretation of the relevant statutes, we reverse the
district court’s ruling and remand with instructions.
I. Background Facts and Proceedings.
The following facts are supported by substantial evidence in the
agency record for this case. In 1985, Grady Billick sustained a back
injury while working for Squealer Feed Company in Iowa. He later
settled his workers’ compensation claim against that company for
payment based on an eighty-five percent industrial disability.
In 1993, Billick was again injured while working for Milky Way
Transport. On that occasion, he lost control of a tanker truck he was
driving in inclement weather. The truck crashed and Billick sustained
injuries to his head, neck, left shoulder, ribs, back, and left arm. His
workers’ compensation claim for these injuries was settled under
Missouri law for an amount representing 18.5% permanent partial
disability of the body as a whole.
3
Billick began working for Roberts Dairy (Roberts) in 2001. The
employment required Billick to drive a semi-truck and deliver milk
products from Iowa City to various retail stores across the state. The
trucks were generally loaded by others, but Billick was required to
unload them himself upon arrival at points of delivery.
Billick suffered four work-related injuries while working for
Roberts. In March 2004, a dolly carrying milk crates struck Billick’s left
ankle and trapped it against a dock plate. Despite treatment, including
an arthroscopic surgery, Billick was left with permanent impairment and
experiences residual pain and swelling in his left lower extremity.
In June 2004, shelving in a Wal-Mart store collapsed while Billick
was making a delivery there for Roberts. The shelving struck Billick’s
head, neck, and left shoulder, and knocked him to the ground. He
received treatment for left shoulder and neck pain which led to shoulder
surgery. Billick was assigned a partial permanent physical impairment
rating for this injury.
In 2006, rusty bolts on a trailer strap came loose when Billick used
the strap while pulling a truck door shut. He lost his balance, fell out of
the truck, and injured his left arm and elbow. An MRI study performed
on the day of this injury revealed a thoracic compression fracture.
Billick lost no work as a consequence of this injury.
In 2007, a misaligned loading dock at a store in Altoona caused
several milk crates to fall off a dolly. The crates struck Billick in the
chest and shoulder. While driving back to Iowa City after sustaining this
injury in Altoona, another vehicle’s erratic movement caused Billick to
steer his truck off the road. The emotional trauma resulting from the
near-crash combined with and superimposed on the chest injury he
4
suffered earlier that day made Billick quite distraught and produced a
physical–mental injury.
Billick filed four workers’ compensation petitions against Roberts.
The claims were consolidated for hearing. The commissioner’s appeal
decision awarded Billick healing period benefits for various periods of
temporary total disability, permanent partial disability benefits for a loss
of twelve percent of his left lower extremity, and permanent partial
disability benefits for the loss of thirty-five percent of his earning capacity
for the unscheduled components of injury.
The commissioner rejected Roberts’s contention that its liability for
Billick’s industrial disability should be apportioned because Billick was
previously compensated for his losses of earning capacity arising from
the 1985 and 1993 injuries through settlements in Iowa with Squealer
Feed and with Milky Way in Missouri. Both parties sought judicial
review of the commissioner’s appeal decision.
Although the parties’ petitions for judicial review challenged—and
the district court’s decision addressed—numerous aspects of the agency
decision, the only issue before us on appeal is whether the
commissioner’s ruling on the apportionment issue based upon his
interpretation of the legislature’s 2004 amendments to Iowa Code
chapter 85 was correct. The district court concluded the commissioner
misapprehended the relevant statutes and therefore reversed and
remanded the case to the agency for further findings of fact relevant to
the apportionment issue.
Billick appeals from the district court’s decision on judicial review.
We retained the appeal to interpret the 2004 amendments and decide
whether the commissioner erred in concluding Roberts’s liability for
5
permanent partial disability benefits cannot be apportioned under the
circumstances of this case.
II. Scope of Review.
“Iowa Code chapter 17A governs judicial review of the decisions of
the workers’ compensation commissioner.” Mycogen Seeds v. Sands, 686
N.W.2d 457, 463 (Iowa 2004). Under chapter 17A, we are free to
substitute our own interpretation of statutes “whose interpretation[s]
ha[ve] not clearly been vested” in the agency. Iowa Code § 17A.19(10)(c)
(2007); see also Mycogen Seeds, 686 N.W.2d at 464. To determine
whether the legislature clearly vested an agency with authority to
interpret particular statutes, we consider “the phrases or statutory
provisions to be interpreted, their context, the purpose of the statute,
and other practical considerations . . . as well as the functions of and
duties imposed on the agency.” Renda v. Iowa Civil Rights Comm’n, 784
N.W.2d 8, 11–12 (Iowa 2010).
The legislature has not expressly granted the commissioner the
power to interpret Iowa Code sections 85.34(2)(u) and (7)(a)—the statutes
at issue in this case. It has “granted to the commissioner the authority
to ‘[a]dopt and enforce rules necessary to implement’ chapters 85, 85A,
85B, 86 and 87.” Waldinger Corp. v. Mettler, 817 N.W.2d 1, 5 (Iowa
2012) (alteration in original) (quoting Iowa Code § 86.8(1)(a) (2011)).
However, standing alone this does “not constitute a clear vesting of
interpretive authority.” Id. at 7. Sections 85.34(2)(u) and (7)(a) leave
undefined several terms and phrases bearing on this case, such as
“earning capacity” and “preexisting disability.” See Iowa Code
§§ 85.34(2)(u), (7)(a) (2007). The presence of undefined terms and
phrases in these sections suggests the legislature did not clearly vest the
6
agency with authority to interpret those terms and phrases. See
Waldinger Corp., 817 N.W.2d at 7.
We conclude the legislature did not clearly vest the commissioner
with authority to interpret the subsections of Iowa Code section 85.34 at
issue in this case. “Accordingly, our review of the commissioner’s
interpretation . . . is for correction of errors at law.” Id.
III. The Parties’ Positions.
Billick asserts the district court erred in reversing the
commissioner’s determination that Roberts is not, as a matter of law,
entitled to apportionment under the circumstances presented here. He
contends the commissioner correctly concluded the 2004 amendments to
Iowa Code section 85.34 did not modify the fresh-start rule for an
industrial disability claim made by a claimant who was previously
compensated for a loss of earning capacity suffered as a consequence of
an unscheduled injury that occurred while working in the course and
scope of employment for a different employer. Billick contends an
interpretation of section 85.34 allowing Roberts a credit for any disability
compensated by previous employers would inflict upon him an
unwarranted reduction in benefits not intended by the legislature when it
amended the Iowa Workers’ Compensation Act in 2004. Further, Billick
suggests the district court’s interpretation of the 2004 amendments
circumvents the fundamental purpose and intent of Iowa Code chapter
85—which is to benefit injured workers and their dependents. See
McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 188 (Iowa 1980).
Conversely, Roberts asserts the commissioner’s interpretation of
the 2004 amendments contravenes the legislature’s clearly stated
purpose underlying the enactments and would allow Billick a double
recovery for his consecutive losses of earning capacity. See 2004 Iowa
7
Acts 1st Extraordinary Sess. ch. 1001, § 20. Roberts contends the
legislature’s 2004 amendments were intended to abrogate the concept of
full responsibility by specifically indicating employers will not be held
responsible for disability sustained through a prior work injury. Roberts
further contends the commissioner erred in denying it credit for 425
weeks of permanent partial disability benefits paid by Billick’s prior
employers. Accordingly, Roberts requests that we affirm the district
court’s ruling remanding this case to the commissioner for new findings
on the extent of Billick’s loss of earning capacity.
IV. Analysis.
A. Law Antedating the 2004 Amendments. The resolution of the
issue presented for our decision turns on the legal effect of the
legislature’s 2004 amendments to Iowa Code section 85.34. Because the
legislature expressly intended the amendments to “modif[y] the fresh
start and full responsibility rules of law announced by the Iowa
[S]upreme [C]ourt in a series of judicial precedents,” 2004 Iowa Acts 1st
Extraordinary Sess. ch. 1001, § 20, our analysis begins with an overview
of those rules as they had been previously applied.
1. The fresh-start rule. The fresh-start rule is a theoretical
construct presuming that when an employee who has sustained a work-
related injury resulting in permanent partial industrial disability begins
employment with a new employer, the employee enjoys a renewed
earning capacity. A preeminent workers’ compensation treatise explains
the reasoning behind this rule:
The capacities of a human being cannot be arbitrarily
and finally divided and written off by percentages. The fact
that a person has once received compensation . . . for 50
percent of total disability does not mean that ever after he or
she is in the eyes of compensation law but half a person,
never again entitled to receive a compensation award going
8
beyond the other 50 percent of total. After having received
the prior payments, he or she may, in future years, be able
to resume gainful employment. . . . If so, there is no reason
why a disability which would bring anyone else total
permanent disability benefits should yield that person only
half as much.
8 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law §
92.02[7][c], at 92-10 (rev. ed. 2014); see also Ziegler v. U.S. Gypsum Co.,
252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960) (“It is . . . well settled
that when an employee is hired, the employer takes him subject to any
active or dormant health impairments incurred prior to this
employment.”). Under the fresh-start rule, if the employee sustains a
new work-related injury after commencing work for a new employer, any
resulting loss of earning capacity is measured as a diminution of the
new, complete earning capacity that existed at the time the employment
with the new employer commenced.
2. The full-responsibility rule. The full-responsibility rule is a
functional corollary of the fresh-start rule. Floyd v. Quaker Oats, 646
N.W.2d 105, 110 (Iowa 2002) (noting our decision in Celotex Corp. v.
Auten, 541 N.W.2d 252 (Iowa 1995), “was a recognition . . . that
application of the full-responsibility rule in body-as-a-whole disability
situations is based on the premise of a fresh start with respect to
industrial disability” (emphasis added)). “When there are two successive
work-related [unscheduled] injuries, the employer liable for the second
injury ‘is generally held liable for the entire disability resulting from the
combination of the prior disability and the present injury.’ ” Second
Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995) (quoting Celotex
Corp., 541 N.W.2d at 254).
3. Venegas v. IBP. The practical consequence of the employee’s
fresh start and the successor employer’s full responsibility in the context
9
of successive unscheduled injuries before the 2004 amendments was
illustrated by our decision in Venegas v. IBP, Inc., 638 N.W.2d 699 (Iowa
2002). In Venegas, the claimant sustained a back injury that caused a
thirty-five percent permanent partial industrial disability while working
for an employer in California. Id. at 700. Years later, while working for a
different employer in Iowa, the claimant sustained another back injury
resulting in a fifty-five percent industrial disability. See id. at 700–01.
The commissioner apportioned the award of industrial disability benefits
for the latter injury and ordered the second employer to pay benefits
representing an award of twenty percent disability. Id. 1 However, on
judicial review, the district court concluded apportionment was
unwarranted “and that IBP was responsible for the total amount of
[Venegas’s] industrial disability.” Id. at 701. We agreed and held the
full-responsibility rule should apply due to the fresh start Venegas
gained when he began work in Iowa for a new employer. See id. at 701–
02.
B. The 2004 Amendments to Section 85.34. In a special
session of the general assembly held in 2004, two amendments to section
85.34 were adopted. The first of these was an amendment to section
85.34(2)(u), which provided as follows:
1Prior to the 2004 amendments, we noted the full-responsibility rule could also
apply where a claimant sustained successive injuries resulting in permanent disability
while working for a single employer. Excel Corp. v. Smithart, 654 N.W.2d 891, 898 (Iowa
2002). Notwithstanding, we concluded apportionment was necessary in Smithart
because the claimant was receiving workers’ compensation weekly benefits for a prior
work-related injury when the new injury occurred. Id. at 899. Under Iowa Code section
85.36(9)(c) (2001), apportionment was mandated because the benefits owed to Smithart
for the two injuries overlapped. See Smithart, 654 N.W.2d at 899–900. The legislature
repealed section 85.36(9)(c) in 2004. 2004 Iowa Acts 1st Extraordinary Sess. ch. 1001,
§ 12.
10
u. In all cases of permanent partial disability other
than those hereinabove described or referred to in
paragraphs “a” through “t” hereof, the compensation shall be
paid during the number of weeks in relation to five hundred
weeks as the reduction in the employee’s earning capacity
caused by the disability bears in relation to the body of the
injured earning capacity that the employee as a whole
possessed when the injury occurred.
2004 Iowa Acts 1st Extraordinary Sess. ch. 1001, § 10. 2 The second
significant aspect of the amendments was the addition of a new section
numbered 85.34(7). It provides, in relevant part, as follows:
7. SUCCESSIVE DISABILITIES.
a. An employer is fully liable for compensating all of
an employee’s disability that arises out of and in the course
of the employee’s employment with the employer. An
employer is not liable for compensating an employee’s
preexisting disability that arose out of and in the course of
employment with a different employer or from causes
unrelated to employment.
b. If an injured employee has a preexisting disability
that was caused by a prior injury arising out of and in the
course of employment with the same employer, and the
preexisting disability was compensable under the same
paragraph of section 85.34, subsection 2, as the employee’s
present injury, the employer is liable for the combined
disability that is caused by the injuries, measured in relation
to the employee’s condition immediately prior to the first
injury. In this instance, the employer’s liability for the
combined disability shall be considered to be already
partially satisfied to the extent of the percentage of disability
for which the employee was previously compensated by the
employer.
If, however, an employer is liable to an employee for a
combined disability that is payable under section 85.34,
subsection 2, paragraph “u”, and the employee has a
preexisting disability that causes the employee’s earnings to
be less at the time of the present injury than if the prior
injury had not occurred, the employer’s liability for the
combined disability shall be considered to be already
partially satisfied to the extent of the percentage of disability
2In our reproduction of this amendment, underlining indicates additions and
strikethrough indicates deletions.
11
for which the employee was previously compensated by the
employer minus the percentage that the employee’s earnings
are less at the time of the present injury than if the prior
injury had not occurred.
c. A successor employer shall be considered to be the
same employer if the employee became part of the successor
employer’s workforce through a merger, purchase, or other
transaction that assumes the employee into the successor
employer’s workforce without substantially changing the
nature of the employee’s employment.
Id. § 11.
The legislation included a statement of the general assembly’s
legislative intent in adopting these amendments to section 85.34. In
relevant part, the statement explained the statutory changes would
“prevent all double recoveries and all double reductions in workers’
compensation benefits for permanent partial disability.” Id. § 20. The
statement of legislative intent further clarified that the amendments to
section 85.34 “modifie[d] the fresh start and full responsibility rules of
law announced by the Iowa [S]upreme [C]ourt in a series of judicial
precedents.” Id. Yet, the statement notably revealed the general
assembly did not intend to eliminate the fresh-start rule altogether. It
instead recognized the continuing vitality of the fresh-start rule as
modified by the amendments:
The competitive labor market determines the value of a
person’s earning capacity through a strong correlation with
the level of earnings a person can achieve in the competitive
labor market. The market reevaluates a person as a working
unit each time the person competes in the competitive labor
market, causing a fresh start with each change of
employment.
Id. The statement emphasized in clear terms that the general assembly
intended no change of existing law “that is not expressly provided” in the
enactment. Id.
12
C. Effect of the 2004 Amendments. The commissioner
concluded the amended section 85.34 did not alter the fresh-start rule in
cases involving successive injuries resulting in industrial disability
sustained in the course of employment with different employers. Noting
new section 85.34(7)(b) established a formula for apportioning disability
only for successive work-related injuries sustained while working for the
same employer, the commissioner determined Roberts’s liability for
permanent partial disability benefits in this case cannot be apportioned
to account for any disability Billick sustained as a result of his injuries
sustained in 1985 and 1993 while working for other employers.
The district court rejected the commissioner’s interpretation
limiting apportionment to instances of successive injuries sustained
while working for the same employer. The court acknowledged that the
2004 amendments did not completely abrogate the fresh-start rule,
noting that “[e]ach and every time a worker enters the competitive labor
market and obtains a new wage—whether higher or lower than the prior
wage—the worker . . . necessarily establishes a new baseline earning
capacity.” However, the court concluded the commissioner’s formulation
of the modified fresh-start rule erroneously exposed Roberts to liability—
in violation of section 85.34(7)(a)—for disability arising from injuries
sustained by Billick in 1985 and 1993 while working for different
employers. See Iowa Code § 85.34(7)(a) (“An employer is not liable for
compensating an employee’s preexisting disability that arose out of and
in the course of employment with a different employer . . . .”). The
commissioner’s failure to order apportionment, the court concluded,
exposed Roberts to liability for Billick’s double recovery of permanent
partial disability benefits—an outcome the general assembly sought to
avoid. See 2004 Iowa Acts 1st Extraordinary Sess. ch. 1001, § 20.
13
The district court concluded the new section 85.34(7)(a)—when
read in conjunction with the amendment of section 85.34(2)(u) 3—
unambiguously abrogated the full-responsibility rule and extended the
rule of apportionment to successive work-related injuries with different
employers. Concluding the commissioner’s industrial disability decision
did not reveal whether it apportioned Roberts’s liability for Billick’s loss
of earning capacity, the court remanded to the commissioner for findings
on Billick’s earning capacity before and after the injuries sustained while
working for Roberts.
Our review of the discordant readings of the 2004 amendments
begins with the proposition that we presume “the legislature is familiar
with the holdings of this court relative to legislative enactments.” Mallory
v. Paradise, 173 N.W.2d 264, 266 (Iowa 1969); see also State v. Jones,
298 N.W.2d 296, 298 (Iowa 1980) (“The legislature is presumed to know
the state of the law, including case law, at the time it enacts a statute.”).
We have often indicated we presume the legislature was aware of our
decisions when it crafted new statutes. See, e.g., Simbro v. Delong’s
Sportswear, 332 N.W.2d 886, 889 (Iowa 1983) (“We assume that at the
time the legislature amended [section 85.34(2)(s)] it was familiar with the
existing case law that evaluated scheduled disability on a functional
basis.”); Beier Glass Co. v. Brundige, 329 N.W.2d 280, 285 (Iowa 1983)
(presuming the legislature was aware of our cases interpreting the word
“benefits” and the term “weekly compensation”). Thus, we presume the
general assembly knew the preexisting law pertaining to the fresh-start
3Section 85.34(2)(u) bases compensation for permanent partial disability for
unscheduled injuries “caused by [work-related] disability” on diminution of “the earning
capacity . . . the employee possessed when the injury occurred.” Iowa Code
§ 85.34(2)(u).
14
and full-responsibility rules developed in Nelson, Celotex Corp., and
Venegas when it drafted and passed the 2004 amendments. This
presumption is most appropriate here because the statement of intent
accompanying the 2004 amendments expressly observed the enactment
was intended to modify the fresh-start and full-responsibility rules
announced in this court’s decisions. See 2004 Iowa Acts 1st
Extraordinary Sess. ch. 1001, § 20.
At the time the 2004 amendments were adopted, the law applied
the fresh-start and full-responsibility rules to claims for permanent
partial unscheduled disability arising from successive work-related
injuries whether the injuries were sustained while working for the same
employer or for different employers. Venegas, 638 N.W.2d at 701–02
(successive injuries with different employers); Celotex Corp., 541 N.W.2d
at 252, 256 (successive injuries with same employer). Thus, the general
assembly was aware liability for successive work-related injuries was not
generally apportioned. 4 It is undisputed that the legislature intended to
modify the rules with the 2004 amendments. See 2004 Iowa Acts 1st
Extraordinary Sess. ch. 1001, § 20. The fighting question presented
here, however, is the extent to which the amendments modified the
preexisting rules as they had developed and were applied in our caselaw.
Upon review, we conclude the commissioner’s reading of section
85.34 as amended is correct. We do not believe the amendment is
without ambiguity. One of the new sections reads, “An employer is not
liable for compensating an employee’s preexisting disability that arose
out of and in the course of employment with a different employer . . . .”
4Apportionment was permitted, however, for ascertainable portions of
permanent partial disability causally related to preexisting nonwork-related injuries or
conditions prior to the 2004 amendments. See Nelson, 544 N.W.2d at 264.
15
Iowa Code § 85.34(7)(a). This might suggest that when an employee is
determined to have suffered a work-related industrial disability, any
resulting award of disability should be offset to account for any previous
work-related industrial disability sustained in the course and scope of
employment with, and compensated by, a previous employer. However,
the section does not expressly say that, and even more importantly, Iowa
Code section 85.34 provides no mechanism for apportioning the loss
between the present and previous employers. This is in direct contrast to
Iowa Code section 85.34(7)(b), which explains exactly how the offset is to
be calculated when an employee suffers successive injuries while
working for the same employer. If the legislature wanted to require a
credit or offset of disability benefits in cases of successive unscheduled
injuries with different employers, it logically would have prescribed how
it should be determined.
We also give considerable weight to the general assembly’s
statement of purpose when it adopted the 2004 amendments. See Iowa
Code § 4.6(7) (stating that we may rely on the legislature’s “preamble or
statement of policy” in interpreting an ambiguous statute); Taft v. Iowa
Dist. Ct., 828 N.W.2d 309, 317 (Iowa 2013). In this case, the general
assembly’s statement of purpose was unmistakably clear. The
legislature recognized that market forces “reevaluate[] a person as a
working unit each time the person competes in the competitive labor
market, causing a fresh start with each change of employment.” 2004
Iowa Acts 1st Extraordinary Sess. ch. 1001, § 20. We conclude therefore
the general assembly unmistakably reaffirmed the vitality of the fresh-
start rule in cases involving successive injuries in the course and scope
of employment with different employers. With each fresh start, the
employee’s earning capacity is reset. If a percentage of that refreshed
16
earning capacity is subsequently lost as a consequence of a permanent
partial unscheduled injury, compensation for that percentage is owed.
The measure of such compensation is based on “the number of weeks in
relation to five hundred weeks as the reduction in the employee’s earning
capacity caused by the disability bears in relation to the earning capacity
that the employee possessed when the injury occurred.” Iowa Code
§ 85.34(2)(u). When a successive injury is sustained in the course and
scope of employment with a different employer, the earning capacity
possessed by the employee when the injury occurred is an earning
capacity refreshed by market forces when the new employment began.
The notion underlying the 2004 amendments that a refreshed
earning capacity is established upon commencement of new employment
is based in part on the proposition that earning capacity is not static.
Physical and mental injuries sometimes heal over time, and
rehabilitation sometimes restores functional capacity, at least in part.
See Bearce v. FMC Corp., 465 N.W.2d 531, 536 (Iowa 1991) (finding the
claimant gained a fresh start because after a prior injury he rehabilitated
and improved his physical condition). Further, postinjury education
sometimes substantially enhances earning capacity prior to
commencement of new employment. Thus, the changing nature of
factors affecting a claimant’s postinjury earning capacity in the
competitive labor market is an essential feature of the rationale for the
modified fresh-start rule. See Excel Corp. v. Smithart, 654 N.W.2d 891,
898 (Iowa 2002) (“[A]n industrial disability is not a final indicator of the
degree to which a worker can use his or her body to earn wages, and it
does not consider the human capacity and spirit to overcome a disability
through rehabilitation, adjustments, simple perseverance, or other
methods.”).
17
We respectfully disagree with the district court’s conclusion that
the commissioner’s interpretation of the amendments—preserving the
fresh-start rule in cases of successive unscheduled injuries with different
employers—cannot be squared with the clear language of section
85.34(7)(a), which provides that “[a]n employer is not liable for
compensating an employee’s preexisting disability that arose out of and
in the course of employment with a different employer . . . .” Iowa Code
§ 85.34(7)(a). Under the modified fresh-start rule, the new employer is
not liable for disability arising out of unscheduled injuries sustained
during past employment with a former employer. The new employer’s
liability under section 85.34(2)(u) for permanent partial disability caused
by a successive injury is measured by comparing the claimant’s earning
capacity “when the injury occurred” with “the reduction in earning
capacity caused by the disability.” Id. § 85.34(2)(u). The earning
capacity when the injury occurred is a refreshed capacity provided by the
fresh-start rule. When, as a consequence of a successive work-related
injury, part of that refreshed earning capacity is lost, compensation is
owed under section 85.34(2)(u). See id. In this context, the fresh-start
rule holds the employer liable for a work-related permanent partial loss
of the new earning capacity refreshed by market forces and existing at
the time of the successive injury—not for a preexisting disability arising
from employment with a different employer. 5 Thus, we conclude the
commissioner did not err in determining the causal connection
requirement in section 85.34(2)(u) can be harmonized with the language
5Under this reading of section 85.34(7)(a), the subsection might be viewed as
unnecessary, since it restates what the law would be anyway. See Iowa Code § 4.4(2)
(setting forth the presumption that “[t]he entire statute is intended to be effective”).
However, for the reasons we have already explained, we think this reading is much
more logical and persuasive than the district court’s reading of the 2004 amendments.
18
in section 85.34(7)(a) protecting employers from liability for disability
arising from employment with a different employer.
The district court also concluded the commissioner’s
understanding of section 85.34—as amended by the 2004 enactment—
violated the general assembly’s purpose of preventing double recoveries
for successive work-related injuries. We again disagree. As we have
explained, the 2004 amendments preserve the fresh-start rule for an
employee sustaining successive injuries resulting in permanent partial
disability in the course of employment with different employers. Under
the rule, the injured employee recovers for a permanent partial loss of a
fully refreshed earning capacity redefined by market forces at the time
new employment began—not for an additional loss of whatever earning
capacity may have been extant prior to commencement of the new
employment. In this sense, the employee’s recovery for a successive loss
of earning capacity sustained in the employment with a new employer is
not a double recovery for a prior loss. It is instead a full recovery of that
which has been lost as a consequence of the successive injury: a
percentage of the refreshed earning capacity.
Under the interpretation of section 85.34 advanced by Roberts,
Billick’s recovery in this case would be reduced pro tanto, in an amount
equal to 425 weeks of compensation he received for the 1985 and 1993
injuries sustained while working for former employers. We reject that
interpretation because it is inconsistent with the fresh-start rule and
because it assumes earning capacity is static—an assumption we have
rejected above. Moreover, the pro-tanto-reduction approach Roberts
advocates would not credit increases in earning capacity resulting from
restoration of physical capacity, education, training, or work experience
achieved prior to commencement of new employment with a different
19
employer and a successive injury. Indeed, if section 85.34(7)(a) required
apportionment for successive unscheduled permanent partial disabilities
sustained while working for different employers, no employee could ever
actually gain a fresh start. The legislature intended to modify the fresh-
start rule, not eliminate it. 2004 Iowa Acts 1st Extraordinary Sess. ch.
1001, § 20.
“We determine legislative intent from the words chosen by the
legislature, not what it should or might have said.” Auen v. Alcoholic
Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). If the general
assembly had intended to eliminate the fresh-start rule and require
apportionment of successive injuries producing permanent partial
disability in the course and scope of employment with different
employers, we think it would have said so. See Hook v. Trevino, 839
N.W.2d 434, 443–44 (Iowa 2013) (“If the legislature had intended
volunteer immunity to apply to the state, it presumably would have said
so expressly, as it did for the emergency response immunity in the
Municipal Tort Claims Act.”); Iowa Med. Soc’y v. Iowa Bd. of Nursing, 831
N.W.2d 826, 841 (Iowa 2013) (“If the legislature had intended to give
another agency or organization the power to determine recognition by the
medical profession, it would have said so . . . .”). Instead, the 2004
amendments to section 85.34 prescribed a formula for apportioning only
disability arising from successive injuries in the course and scope of
employment with the same employer. Notably, the general assembly
disavowed any intent to change chapter 85 except as expressly provided
in the amendments. 2004 Iowa Acts 1st Extraordinary Sess. ch. 1001,
§ 20. Accordingly, we conclude the commissioner correctly rejected
Roberts’s apportionment claim in this case.
20
V. Conclusion.
The commissioner correctly concluded the legislature’s 2004
amendments did not modify the fresh-start rule for claimants sustaining
successive work-related unscheduled injuries with different employers.
Because Billick gained a fresh start when he began his employment with
Roberts in 2001, Roberts is not entitled to apportion its liability for
permanent partial disability benefits in this case. The district court’s
contrary interpretation of section 85.34 was erroneous. Accordingly, we
reverse the district court’s ruling and remand the case to the district
court with instructions to affirm the commissioner’s appeal decision.
REVERSED AND REMANDED WITH INSTRUCTIONS.