In Delire v. Key City Transport, No. 16-0720 (Iowa App. Dec. 21, 2016), the court addressed for the second time a rate issue presented by the parties. Claimant was a trucker, who was only three weeks into his employment at the time of his injury. He believed that his yearly earnings were to be $75,000 and his original rate was based on an annual salary of $70,000. This rate was reversed in the original Court of Appeals decision and the case was remanded for further consideration.
In the second appeal, the question was whether claimant's rate should be determined based on his salary in two of the three weeks he worked (the third week was significantly less than the other two weeks) or whether all three weeks should be taken into account. The commissioner considered all three weeks. The court indicated that section 85.36(7) addressed the situation more precisely because it applied "in the case of an employee who has been in the employ of the employer less than thirteen calendar weeks immediately preceding the injury." Since no evidence was presented as to the earnings of other employees in a similar occupation, as referenced by section 85.36(7), the rate was properly computed using all weeks. The court notes that the statute specifically indicates that "if the earnings of other employees cannot be determined, the employee's weekly earnings shall be the average computed for the number of weeks the employer has been in the employ of the employer." The court found that this clause directly addressed the question presented and found that the commissioner's decision was correct.
Claimant argued that 85.36(7) required the rate to be computed under section 85.36(6) because the first week of earnings did "not fairly reflect the employee's customary earnings. . ." The court concluded that because there was no evidence of similarly situated workers, the last sentence of section 85.36(7) applied. Since that sentence compels the consideration of all weeks of employment, the rate chosen by the commissioner was appropriate. The court further found that speculation about the earnings of other workers was not sufficient to change the result and noted that the initial decision had explicitly rejected this approach.
The court also rejected claimant's arguments that the commissioner's approach was irrational, that substantial evidence did not support the decision and that the rate should have been based on the $75,000 rate. With respect to the last argument, the court concluded it had already addressed that issue and that it was law of the case.
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