                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0720
                            Filed December 21, 2016


JAMES DELIRE,
    Petitioner-Appellant,

vs.

KEY CITY TRANSPORT, INC. and GREAT WEST CASUALTY COMPANY,
     Respondents-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Employee appeals from judgment affirming a workers’ compensation

award. AFFIRMED.




      Mark J. Sullivan of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Joseph M. Barron of Peddicord, Wharton, Spencer, Hook, Barron &

Wegman, L.L.P., West Des Moines, for appellees.



      Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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MCDONALD, Judge.

       This case presents a question of statutory interpretation regarding the

calculation of weekly earnings pursuant to Iowa Code section 85.36 (2015) to be

used in determining workers’ compensation benefits.

                                           I.

       This matter has come before this court on a prior occasion. See Key City

Transp., Inc. v. Delire, No. 14-1755, 2015 WL 5285799 (Iowa Ct. App. Sept. 10,

2015). The facts and circumstances of the case are set forth in our prior opinion

and need not be repeated in great detail herein. In sum, Key City Transport hired

Delire to work as an over-the-road truck driver to make long-haul trips from Iowa

to California and back. Delire’s compensation was calculated based on mileage

plus drop fees. Delire claims the employer told him at the time of hiring he would

earn approximately $75,000 per year. Delire commenced employment with Key

City on May 23, 2008. During Delire’s first week with Key City, he did not make

any long-haul runs. He did make several local runs. In his first week, Delire

earned $257.04 in mileage and $155 in drop fees, for a total of $412.04. The

next week, Delire traveled to California and back. Delire earned $1,254.26 in

mileage and $40 in drop fees for a single drop, for a total of $1,294.26. In his

third week of work, Delire made a second trip to California and back. This time,

he earned $1,425.62 in mileage and $240 in drop fees, for a total of $1,665.62.

Delire was injured on this third trip. This is the injury at issue.

       It is necessary to discuss the procedural history of this case. In the first

trip through agency proceedings, the deputy commissioner awarded Delire

healing-period benefits and calculated Delire’s weekly earnings to be $1,494.26.
                                        3


The deputy commissioner calculated Delire’s weekly earnings based on Delire’s

second week of earnings and $200 in imputed drop fees, which the deputy

commissioner believed would be typical for a west-coast route.        The deputy

commissioner also concluded the amount was consistent with Delire’s claim he

was told he would earn approximately $75,000 per year. The commissioner

affirmed the award of benefits but recalculated Delire’s weekly earnings. The

commissioner found there was no evidence in the record on what other

employees in similar positions earned and found there were no weeks of work

representative of Delire’s earnings.   The commissioner found Delire’s weekly

earnings to be $1,346.15 based on hypothetical annual income of $70,000. The

determination of annual income was based on the commissioner’s purported

knowledge of the industry.

      The employer sought judicial review of the agency’s final action.        The

district court affirmed the award of benefits but reversed the agency’s calculation

of weekly earnings, finding it to be irrational, illogical, and unjustifiable. This

court affirmed the district court’s decision.       This court concluded “[t]he

commissioner’s use of hypothetical annual earnings to obtain weekly earnings

cannot be upheld as rational, logical, or justifiable when the acceptable methods

of determining Delire’s weekly earnings are set forth by statute.”       Key City

Transp., 2015 WL 5285799, at *7. This court remanded the case to the agency

to calculate weekly earnings in accord with the statute based on the existing

record. See id. In this appeal, Delire challenges the agency’s decision after

remand.
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                                         II.

       Agency decisions are reviewed according to the standards expressed in

Iowa Code section 17A.19. We review the agency’s decision for the correction of

legal error. See Iowa Code § 17A.19(10)(c); Evenson v. Winnebago Indus., Inc.,

881 N.W.2d 360, 366 (Iowa 2016). The court does not have to give deference to

the commissioner’s interpretation of chapter 85. See Iowa Ins. Inst. v. Core Grp.

of Iowa Ass’n for Just., 867 N.W.2d 58, 65 (Iowa 2015) (“In recent years, we

have repeatedly declined to give deference to the commissioner’s interpretations

of various provisions in chapter 85.”). The commissioner’s findings of facts are

given the effect of a jury verdict. See Evenson, 881 N.W.2d at 366. The district

court acts with appellate capacity “when it exercises its judicial review power.”

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 518 (Iowa 2012).               “When

reviewing a district court’s decision ‘we apply the standards of chapter 17A to

determine whether the conclusions we reach are the same as those of the district

court. If they are the same, we affirm; otherwise, we reverse.”         Id. (quoting

Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004)).

                                         III.

                                         A.

       Delire argues the commissioner wrongly interpreted the statutory provision

setting forth the method for calculating weekly earnings—as applicable here,

Iowa Code section 85.36(6) and (7). “The primary rule of statutory interpretation

is to give effect to the intention of the legislature.” State v. Casey’s Gen. Stores,

Inc., 587 N.W.2d 599, 601 (Iowa 1998). When interpreting statutes, “[w]e look no
                                         5

further than the language of the statute when it is unambiguous.”          Standard

Water Control Sys., Inc. v. Jones, No. 15-0458, 2016 WL 4543505, at *1 (Iowa

Ct. App. Aug. 31, 2016). It is a well-established rule of statutory construction that

“a statute must be construed to give effect to its plain language.” In re Marriage

of Caswell, 480 N.W.2d 38, 40 (Iowa 1992); see also In re Detention of Fowler,

784 N.W.2d 184, 187 (Iowa 2010) (“Our rules of statutory interpretation are well

established. . . . We do not search for meaning beyond the express terms of a

statute when the statute is plain and its meaning clear.”).

       Iowa Code section 85.36 states:

              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.

Subsection 6 sets forth the method for calculating the weekly earnings of an

employee who is paid “by the output of the employee.” It provides as follows:

              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, including shift
       differential pay but not including overtime or premium pay, of the
       employee earned in the employ of the employer in the last
       completed period of thirteen consecutive calendar weeks
       immediately preceding the injury. 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.
                                        6



Iowa Code § 85.36(6). Subsection 7 sets forth the method for calculating the

weekly earnings of an employee “who has been in the employ of the employer

less than thirteen calendar weeks immediately preceding the injury.” It provides:

             In the case of an employee who has been in the employ of
      the employer less than thirteen calendar weeks immediately
      preceding the injury, the employee’s weekly earnings shall be
      computed under subsection 6, taking the earnings, including shift
      differential pay but not including overtime or premium pay, for such
      purpose to be the amount the employee would have earned had
      the employee been so employed by the employer the full thirteen
      calendar weeks immediately preceding the injury and had worked,
      when work was available to other employees in a similar
      occupation.     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 employee has been in the
      employ of the employer.

Iowa Code § 85.36(7).

      This court remanded this matter to the agency to recalculate Delire’s

weekly earnings based on the existing record. See Key City Transp., 2015 WL

5285799, at *6–7.       Delire was employed for “less than thirteen weeks

immediately preceding the injury.”      Iowa Code § 85.36(7); see Key City

Transport, 2015 WL 5285799, at *6. Thus, subsection 7 was the applicable code

provision. There was no evidence of “the earnings of other employees” in the

record.   Id.   The commissioner thus interpreted subsection 7 to require the

calculation of Delire’s average weekly earnings based on the compensation

actually paid Delire.   The commissioner did so and found Delire’s weekly

earnings were $1,026.14.

      Delire contends the commissioner erred in interpreting and applying

section 85.36(7) when calculating his weekly earnings. Delire argues subsection
                                        7


7 required the commissioner to calculate his weekly earnings according to

subsection 6. Delire further argues, pursuant to subsection 6, his first week of

earnings should have been excluded from the calculation because it was a “week

which does not fairly reflect [Delire’s] customary earnings.”         Iowa Code

§ 85.36(6).

       We have little trouble concluding the agency’s interpretation and

application of the statute were correct. Subsection 7 contains two independent

sentences. Each sets forth a different calculation to be applied in determining

the weekly earnings of an employee employed fewer than thirteen weeks

preceding the injury. According to the plain language of the first sentence, if the

employer has other employees in a similar occupation from which to determine

weekly earnings, then the claimant’s weekly earnings should be calculated

according to subsection 6, taking into account all the exceptions therein. But, if

the weekly earnings of other employees cannot be determined based on the

evidence in the record, as is the case here, then the unambiguous language of

the second sentence states the claimant’s weekly earnings are calculated

according to the “average computed for the number of weeks the employee has

been in the employ of the employer.” Iowa Code § 85.36(7). Subsection 7 is

unambiguous: if there is not evidence in the record of the weekly earnings of

comparable employees, the claimant’s weekly earnings are calculated by finding

the claimant’s average actual weekly earnings.        We need not “search for

meaning beyond the express terms” of this subsection. Fowler, 784 N.W.2d at

187.
                                          8


         “[T]he acceptable methods of determining Delire’s weekly earnings are

set forth by statute.” Key City Transp., 2015 WL 5285799, at *7. The statutory

method is the fairest formula for determining weekly earnings where the

employee has been employed only a short time prior to injury and the record is

otherwise inadequate.     See Hanigan v. Hedstrom Concrete Prods., Inc., 524

N.W.2d 158, 160 (Iowa 1994) (“This claimant did not produce evidence of what a

truly similar employee would have earned. In view of the lack of evidence on that

matter, it would be difficult to formulate a fairer test for a wage basis than to

average the wages actually received by the employee.”). While Delire contends

“statutes for computation of wage bases are ‘meant to be applied, not

mechanically nor technically, but flexibly,’” we must still apply the law according

to its plain language. Hanigan, 524 N.W.2d at 160 (quoting 2 Arthur Larson,

Workmen’s Compensation Law § 60.11, at 10–622 (1994)); see Warren Props. v.

Stewart, 864 N.W.2d 307, 315 (Iowa 2015) (stating, in the context of chapter 85,

the court is “required to use the plain language of the statute when construing

statutes”). “[T]he principle of liberal construction does not vest th[e] court with an

editor’s pen with the power to add or detract from the legislature’s handiwork.”

Swiss Colony, Inc. v. Deutmeyer, 789 N.W.2d 129, 135 (Iowa 2010). “Fidelity to

the text best honors the legislature's expressed policy determination.” Hoyt v.

Wendling Quarries, No. 14-0800, 2015 WL 576174, at *2 (Iowa Ct. App. Feb. 11,

2015).

                                         B.

         Delire contends it was error for the agency not to infer evidence of the

earnings of other drivers in a similar occupation would have supported his
                                        9


desired calculation if there had been such evidence.         Delire contends this

evidence was in the sole control of Key City and undiscoverable by Delire and

thus an adverse inference should have been drawn. See Quint-Cities Petroleum

Co. v. Maas, 143 N.W.2d 345, 348 (Iowa 1966) (“[I]t stands without argument

that where relevant evidence is within the control of a party whose interests

would naturally call for its production, and he fails to do so without satisfactory

explanation, it may be inferred such evidence would be unfavorable to him.”);

Hassin v. Verizon Data Servs., Inc., No. 5013575/5015255, 2006 WL 2239330,

at *12 (Iowa Workers’ Comp. Comm’n July 31, 2006) (same).

      We disagree an adverse inference should have been drawn under the

circumstances. It is the claimant’s burden to establish his claim. See, e.g.,

Hanigan, 524 N.W.2d at 160 (rejecting the claimant’s argument regarding the

calculation of weekly earnings where the “claimant did not produce evidence of

what a truly similar employee would have earned”). Further, the argument was

disposed of in the prior appeal, where we concluded mere speculation regarding

Delire’s weekly compensation was impermissible. See Key City Transp., 2015

WL 5285799, at *6–7.

                                        C.

      Delire contends the remand decision failed to give deference to prior

agency findings that Delire was told he would earn approximately $75,000 per

year. It is unclear why Delire believes deference should be afforded under the

circumstances. “It is a familiar legal principle that an appellate decision becomes

the law of the case and is controlling on both the trial court and on any further

appeals in the same case.” United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d
                                          10


101, 103 (Iowa 2000).        “The law-of-the-case doctrine provides, ‘the legal

principles announced and the views expressed by a reviewing court in an

opinion, right or wrong, are binding throughout further progress of the case.’”

Travelers Prop. Cas. Co. of Am. v. Flexsteel Indus., Inc., No. 15-0103, 2016 WL

4384479, at *4 (Iowa Ct. App. Aug. 17, 2016) (quoting Lee v. State, 874 N.W.2d

631, 646 (Iowa 2016)). “Issues decided on appeal cannot, generally, be reheard,

reconsidered, or relitigated; the appellate decision is final as to all issues

decided; and the trial court is obligated to follow that decision.” Id.

       This court previously concluded “[t]he [earlier] commissioner’s use of

hypothetical annual earnings to obtain weekly earnings cannot be upheld as

rational, logical, or justifiable when the acceptable methods of determining

Delire’s weekly earnings are set forth by statute.” Key City Transp., 2015 WL

5285799, at *7.     Upon remand, the agency was bound to calculate Delire’s

weekly earnings according to the statutorily authorized method and not based on

deference to the agency’s prior decision, which this court concluded was not

rational. Delire’s attempt to relitigate this issue is blockaded by the law-of-the-

case doctrine.

                                          D.

       Delire next contends the commissioner’s remand decision was not

supported by substantial evidence. Specifically, he argues the agency should

not have considered his first week of work and should have considered the

contention Delire was promised at the time of hire that he would make up to

$75,000 per year.       We conclude the agency’s decision is supported by

substantial evidence. “Evidence is substantial when a reasonable mind could
                                         11

accept it as adequate to reach the same finding.” Bearce v. FMC Corp., 465

N.W.2d 531, 534 (Iowa 1991). It is uncontroverted Delire made $412.04 his first

week, $1,294.26 his second, and $1,665.62 his final week.                It is also

uncontroverted he worked for three weeks and two days. The commissioner

calculated Delire’s actual average weekly earnings based on his historical

earnings. This is all the statute allowed. Our case law provides this method of

determining weekly earnings is fair. The commissioner’s calculation was based

on substantial evidence.

                                         E.

       Delire’s final claim is the same argument as the others but delivered in a

different legal vehicle.   Delire contends the agency’s decision is illogical and

irrational because it does not take into account his claim he was told he would

earn approximately $75,0000 per year and because the commissioner included

his first week of work in the calculation. It was not irrational for the commissioner

to calculate Delire’s weekly earnings according to the plain language of section

85.36(7).   Nor was it irrational for the commissioner to not consider Delire’s

testimony regarding the representation made to him at the time of hire. Section

85.36(7) unambiguously sets forth the method for calculating weekly earnings

where the employee was employed fewer than thirteen weeks preceding the

injury at issue and where there is no evidence regarding the weekly earnings of

similarly situated employees.    In the mandate of the prior appeal, this court

instructed the agency to apply the statutory formula to the existing record. See

Key City Transp., 2015 WL 5285799, at *6–7. It was not irrational for the agency

to comply with the statutory formula and this court’s mandate.
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                                   IV.

    For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.
