Hartman v. Clarke County Homemakers, 93-0598

• Decision Date: 26 May 1994
• Docket Number: No. 93-0598,93-0598
• Citation: 520 N.W.2d 323
• Parties: Karen HARTMAN, Petitioner-Appellee/Cross-Appellant, v. CLARKE COUNTY HOMEMAKERS and Bituminous Insurance Cos., Respondents-Appellants/Cross-Appellees.
• Court: Iowa Court of Appeals

Page 323

520 N.W.2d 323

Karen HARTMAN, Petitioner-Appellee/Cross-Appellant, v. CLARKE COUNTY HOMEMAKERS and Bituminous Insurance Cos., Respondents-Appellants/Cross-Appellees.

No. 93-0598.

Court of Appeals of Iowa.

May 26, 1994.

William D. Scherle of Hansen, McClintock & Riley, Des Moines, for appellants.

Steven C. Jayne, Des Moines, for appellee.

Heard by HAYDEN, P.J., and CADY and HUITINK, JJ.

CADY, Judge.

This workers' compensation appeal presents an issue of first impression. We are asked to decide whether earnings received as an independent contractor may be included in computing the compensation rate of a worker injured in part-time covered employment. We conclude that such earnings must be excluded from the computation. The remaining issues for review relate to apportionment of liability among non-parties and the determination of an industrial disability award.

Karen Hartman provided in-home health care for Nancy Dinham under a program administered by the Iowa Department of Human Services. Dinham suffered from multiple sclerosis. Karen is forty years old. She is married and has no dependent children.

Karen was injured on September 8, 1989, while providing care for Dinham. She had been instructed by Dinham's treating physician to regularly scrub Dinham's bed to prevent the onset of infection. Karen intended to move Dinham from the bed into another room while she performed this task. As Karen assisted Dinham out of her bed, Dinham's legs gave way. Karen instinctively shoved her back into the bed to prevent her from falling. Karen's actions resulted in an injury to her back.

At the time of the accident, Karen was an employee of the Clarke County Homemakers Services (Clarke County) as a home health aide providing care to Dinham. She also provided cleaning for two businesses, Iowa Assembly and Murray Products. Karen often hired others to help her at the businesses, directed their activities, and paid them.

Shortly after her injury, Karen was examined by Dr. Wilken, her family doctor. Dr. Wilken instructed her to stop working on January 8, 1990. Dr. Wilken noted Karen would probably not be able to do future work involving heavy lifting or frequent bending. Dr. Wilken set Karen's healing period from January 8, 1990, to December 13, 1990.

On January 15, 1990, Karen was offered light duty work with Clarke County at the same rate of pay, $5.25 per hour, she received as a home health aide. Karen, however, refused. She was subsequently terminated from Clarke County. Karen has not worked since her injury.

Karen has had a number of surgeries to correct a disc rupture and central canal stenosis. She also suffered an aggravation of a degenerative disc disease. Karen's doctors concluded her September 1989 injury resulted in an eleven percent functional impairment of the body as a whole.

Karen filed for workers' compensation benefits on May 7, 1990. The deputy industrial commissioner concluded Karen sustained a permanent partial disability of twenty-five percent, entitling her to 125 weeks of permanent partial disability benefits. The deputy commissioner also ruled Karen's earnings from her work at Iowa Assembly and Murray Products must be excluded from the rate calculation. Her benefits were calculated based on her earnings from Clarke County, Dinham, and DHS. Karen was to receive $132.82 per week.

The industrial commissioner affirmed Karen's award of benefits and refused to apportion liability among Dinham and the DHS. The commission found that since neither the DHS nor Dinham were named in the lawsuit, there was no jurisdiction to determine their liability. On judicial review, the district court affirmed the agency decision declining to apportion liability and affirmed the industrial disability award. The district court reversed as to the applicable rate of compensation. The district court ruled Karen's earnings from Iowa Assembly and Murray Products must be included in her compensation rate. Clarke County and its insurance carrier appeal and Karen cross-appeals from the district court ruling.

Clarke County argues liability should be apportioned since Karen, while its employee at the time of her injury, was also an employee of Mrs. Dinham and the DHS. Clarke County also contends Karen's earnings at Iowa Assembly and Murray Products should not be counted when calculating her benefits. Clarke County lastly maintains Karen should not have been awarded an industrial disability since she is capable of doing light duty work at approximately the same pay.

On cross-appeal, Karen argues the district court erred in affirming the industrial commissioner's award of a twenty-five percent disability.

I. APPORTIONMENT

Clarke County first claims Karen was a concurrent or dual employee at the time of her injury and liability should be apportioned among each employer. An employee may have more than one employer. Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981). It has been recognized that compensation may be apportioned among employers when a worker is injured while performing a common duty for concurrent employers. 82 Am.Jur.2d Workers' Compensation § 230 (1992). Clarke County, however, never sought to add Karen's other employers as parties to the action.

A home health care provider is defined by administrative rule as an independent contractor, and not an employee "of the State of Iowa, the Department of Human Services, any of its employees, or of its clients." Iowa Admin.Code R. 441.177(9)(1) (1988). Consequently, this rule would preclude Karen from maintaining an action for workers' compensation benefits against the department or Dinham. Similarly, it would restrict Clarke County from asserting apportionment claims against the department or Dinham.

Rules adopted by an administrative agency are given the force of law. Torner v. State, 399 N.W.2d 381, 385 (Iowa 1987). They are presumed valid and will be upheld as long as they are reasonable and consistent with legislative enactments. Fernandez v. Iowa Dep't of Human Servs., 375 N.W.2d 701, 707 (Iowa 1985).

Clarke County never directly challenged the administrative rule by joining the department or Dinham as a party. Issues not properly raised at the trial level will not be considered on appeal. McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 187 (Iowa 1980). Instead, Clarke County argues the result is inequitable and asks us to apportion its liability. We disagree and decline.

Apportionment among non-parties is contrary to Iowa Code section 85.21, which permits apportionment only among "parties to a contested case." See Iowa Code § 85.21(1) (1991). Moreover, apportionment among non-parties is incompatible with the overall scheme of the workers' compensation laws, which requires the industry to share the consequences of industrial accidents. See Caterpillar Tractor, 313 N.W.2d at 506. Clarke County simply wants its perceived unfairness visited upon Karen. We decline to do this.

II. COMPENSATION RATE

Clarke County claims Karen's compensation rate may not include the additional earnings she received as an independent contractor. The industrial commissioner found Karen was self-employed as an independent contractor for Iowa Assemblies and Murray Products at the time she was injured in her employment with Clarke County. The district court did not disturb this finding on review. Our review is to correct errors of law and we accept the findings of the industrial commissioner when supported by substantial evidence. Gallardo v. Firestone Tire & Rubber Co., 482 N.W.2d 393, 395 (Iowa 1992).

Our review of the record supports the finding that Karen was an independent contractor with Iowa Assemblies and Murray Products. See D & C. Express, Inc. v. Sperry, 450 N.W.2d 842, 844 (Iowa 1990). Accordingly, we must determine whether the rate of compensation properly included earnings as an independent contractor. This presents a question of law, which we may consider with less deference to the decision of the commissioner than to finding of fact. Id.

The compensation to be received by an injured employee is based on "weekly earnings" at the time of injury. Iowa Code § 85.36. To accommodate the various payment schemes and unique employment circumstances, a variety of methods are available to compute or determine an employee's weekly earnings. The method of computation in dispute in this case is found in Iowa Code section 85.36(10), and reads as follows:

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:

* * * * * *

10. If an 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, 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.

Clarke County asserts Karen is not entitled to include her additional earnings as an independent contractor because an independent contractor is not an "employee" under the workers' compensation statute. See Iowa Code § 85.61(13). The district court found that Karen's status as an employee for Clarke County was controlling, and the particular method of compensation for a worker in Karen's circumstances allow "earnings from all employment" to be used. The court noted the statute did not specifically restrict the type of employment or exclude employment as an independent contractor.

We are required to resolve this issue by...