Opinion
No. 2-846 / 02-0655
Filed December 30, 2002
Appeal from the Iowa District Court for Pottawattamie County, TIMOTHY O'GRADY, Judge.
Sam Guarino appeals from a district court ruling which will reduce his award of workers' compensation benefits. REVERSED AND REMANDED.
Jacob J. Peters of Peters Law Firm, P.C., Council Bluffs, for appellant.
John M. Burns of Burns Law Firm, Omaha, Nebraska, for appellee.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Sam Guarino appeals from the decision of the district court which will reduce his award of worker's compensation benefits. He claims the court improperly interpreted Iowa Code section 85.36 (1999), the statute providing the basis for computing compensation benefits. We reverse and remand.
I. Background Facts and Proceedings.
The facts of this case are not in dispute. On January 16, 1999, Guarino suffered a shoulder injury while working for Griffin Pipe Products Co. (Griffin). The injury arose out of and occurred in the course of employment while Guarino was attempting to move a pipe weighing several hundred pounds. This injury formed the basis for Guarino's petition for worker's compensation benefits.
A deputy workers' compensation commissioner heard Guarino's case in December 2000. The parties disputed whether two weeks of unpaid time off should be included to determine Guarino's average weekly wage. The record reveals that twice per year, in the summer and in December, Griffin closes down for two weeks to clean its plant. Only janitorial and managerial employees work during these periods. A routine two-week shutdown occurred in December of 1998 during the period in which the compensation rate under section 85.36 for Guarino's disability would be determined. The deputy commissioner ruled that the unpaid time off should not be considered in determining the compensable rate and awarded Guarino 175 weeks of compensation at the rate of $477.79 per week. The Iowa Workers' Compensation Commissioner affirmed this decision because the two-week shutdowns were atypical workweeks.
On judicial review of the agency's decision, the district court ruled that the agency erred in excluding the two unpaid weeks from the calculation. The court held that the two-week shutdowns were customary and not unanticipated. The court remanded the case for a recalculation of Guarino's compensation rate. Guarino appeals.
II. Scope of Review.
Our review of agency action is for errors of law. Bernau v. Iowa Dep't. of Transp., 580 N.W.2d 757, 763 (Iowa 1998). We apply the standards of the Administrative Procedure Act to the agency action to determine if our conclusions are the same as those reached by the district court. See Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001). 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).
The interpretation of statutes is a legal question for the courts, not for agencies. Locate.Plus.Com, Inc. v. Iowa Dep't. of Transp., 650 N.W.2d 609, 613 (Iowa 2002) (citations omitted). Thus, we review an issue of statutory interpretation independent of an agency's interpretation. Id. We give limited deference to the workers' compensation commissioner's interpretation of the statutes governing his agency. Venegas v. IBP, Inc., 638 N.W.2d 699, 701 (Iowa 2002) (citing Second Injury Fund v. Braden, 459 N.W.2d 467, 468 (Iowa 1990)). The proper interpretation of the workers' compensation statutes presents a question of law for this court. Id.
III. Discussion.
The sole issue presented by this appeal is whether the two-week shutdown in December of 1998 should be included in calculating Guarino's wage basis under section 85.36. Guarino's wage basis is determined by applying section 85.36 and its pertinent subpart, which provide:
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:
. . .
6. In the case of an employee who is paid on a daily or hourly basis, or by the output of the employee, the weekly earnings shall be computed by dividing by thirteen the earnings, not including overtime or premium pay, of said employee earned in the employ of the employer in the last completed period of thirteen consecutive calendar weeks immediately preceding the injury.
Iowa Code § 85.36 (1999).
The seventy-eighth General Assembly amended section 85.36(6) during the 2000 session, adding the following language.
If the employee was absent from employment for reasons personal to the employee during part of the thirteen calendar weeks preceding the injury, the employee's weekly earnings shall be the amount the employee would have earned had the employee worked when work was available to other employees of the employer in a similar occupation. A week which does not fairly reflect the employee's customary earnings shall be replaced by the closest previous week with earnings that fairly represent the employee's customary earnings.
Because the petition was filed on May 10, 1999, we apply Iowa Code section 85.36 (1999). See Iowa Code § 3.7 (2001). However, the amendments to the Iowa Administrative Procedure Act became effective July 1, 1999. Thus, the standards for judicial review apply the 2001 Code because the agency action commenced when the deputy commissioner made his decision on January 10, 2001.
Both parties rely upon our supreme court's decisions in Weishaar v. Snap-On Tools Corp., 582 N.W.2d 177 (Iowa 1998) and Thilges v. Snap-On Tools Corp., 528 N.W.2d 614 (Iowa 1995). In Weishaar, the claimant had not worked full forty-hour weeks during all of the thirteen weeks preceding the injury because she was under medical restrictions. Weishaar, 582 N.W.2d at 182. The claimant was never scheduled for less than forty hours unless she was under medical restrictions. Id. The court, therefore, held that the claimant's customary earnings were those earned during forty-hour workweeks. Id. In Thilges, the claimant had worked less than forty hours in seven of the thirteen weeks preceding the injury. Thilges, 528 N.W.2d at 619. The court held the customary hours for the full pay period for the claimant's job were forty hours because " unanticipated occurrences . . . caused her to miss work on certain days." Id. (emphasis added).
The case before us presents a different situation. The semi-annual unpaid shutdowns were not unanticipated or atypical. The claimant did not miss work due to medical restrictions or unexpected events. For over sixteen years Griffin had consistently shut its plant down twice per year. In addition, there was no work available to employees in an occupation similar to Guarino's during the two-week shutdown. Although the unpaid weeks are not atypical or unanticipated, we disagree with the employer's assertion that the full two weeks should be included in determining Guarino's wage basis.
In Hanigan v. Hedstrom Concrete Products, Inc., 524 N.W.2d 158, 160 (Iowa 1994), the court approved the commissioner's adoption of an averaging test in interpreting and applying sections 85.36(6) and (7). The court recognized that 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." Id. (quoting 2 Arthur Larson, Workmen's Compensation Law § 60.11, at 10-622 (1994)).
This case does not involve a scheduled plant closing. Hanigan was an intermittent employee, working only when Hedstrom's own truck drivers could not keep up with the work. He had worked for his employer for only two weeks in the thirteen-week period preceding his injury. The commissioner divided the total amount of his wages by the number of weeks he worked to determine his wage basis.
Guarino experiences a total of four weeks of unpaid time off each year because of regularly scheduled plant shutdowns. This is an average of one week of unpaid time off for every thirteen-week period. If we applied section 85.36(6) rigidly and limited our determination to the thirteen weeks preceding his injury, Guarino would be penalized for an untimely injury. Similarly, if Guarino were injured the day before the two week furlough, he would be rewarded and receive a wage basis which included a full thirteen weeks of pay.
Under the facts of this case, we conclude the inclusion of two unpaid weeks in the thirteen-week period under section 85.36(6) does not fairly reflect Guarino's wage basis. We conclude Guarino's wage basis should include only one week of unpaid time off for every thirteen-week period. This best reflects his customary earnings. We remand to the workers' compensation commissioner to determine Guarino's benefits consistent with this opinion.
REVERSED AND REMANDED.
VOGEL, P.J., concurs; HECHT, J. dissents.
I respectfully dissent. The purpose of our workers' compensation statute is "to benefit workers and their dependents insofar as the statute permits." Brown v. Star Seeds, Inc., 614 N.W.2d 577, 580 (Iowa 2000) (quoting Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986)). We broadly and liberally construe the commissioner's findings to uphold, rather than defeat the commissioner's decision. Second Injury Fund v. Hodgins, 461 N.W.2d 454, 455 (Iowa 1990). In reviewing the commissioner's interpretation of the statutes governing the agency, we defer to the expertise of the agency, but reserve for ourselves the final interpretation of the law. Second Injury Fund v. Braden, 459 N.W.2d 467, 468 (Iowa 1990). In this case, the agency found Griffin Pipe's production employees do not earn wages during plant shutdowns. This finding is supported by substantial evidence in the record. The agency then concluded earnings during shutdowns "are not typical earnings for a customary week of work." I would affirm the agency's legal conclusion that shutdown weeks do not reflect Guarino's customary hours. "Customary" means "commonly practiced: usual." Webster's II New College Dictionary 280 (1995). In my view, Guarino's usual hours were those worked during the forty-eight weeks when the plant was not shutdown. I note that the agency's conclusion that the shutdown weeks should be excluded when identifying the thirteen calendar weeks from which the claimant's rate is calculated is consistent with its treatment of unpaid vacation weeks, as well as unexpected plant slowdowns or shutdowns. See Price v. Romech, No. 1199029 (Industrial Commissioner, December 29, 2000) (holding shorter weeks due to plant slowdown are not included in the rate calculation) and Pack v. Firestone Tire Rubber, No. 865057 (Industrial Commissioner, September 29, 1994) (holding unpaid vacation weeks and plant shutdowns are not representative of customary hours and not used in the wage calculation).