IN THE SUPREME COURT OF IOWA

No. 13–1009

Filed April 3, 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 workrelated 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 699, 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 case law.

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 freshstart 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 freshstart 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.