Defendant Wheeler was injured when she was showing a horse owned by defendant Goetzinger. Wheeler was awarded worker’s compensation for the injury and Goetzinger challenged that award, contending she was an independent contractor, not an employee, when she was injured.
In this opinion, the Court of Appeals agrees with a trial court decision upholding the compensation award. Goetzinger admitted that Wheeler was an employee when he failed to respond to a request for admissions concerning that fact. There was sufficient evidence that the injury occurred during the course of that employment relationship.
Ronald Goetzinger appeals from the district court's decision affirming the workers' compensation commissioner's award of benefits to Nancy Wheeler. He claims that Wheeler was not injured in the course of her employment and the commissioner miscalculated her wages and resulting benefits. Goetzinger additionally argues that he should not be responsible for Wheeler's medical expenses. We affirm.
I. Background Facts and Proceedings.
Nancy Wheeler worked part-time for Goetzinger training and showing horses. Wheeler was injured while showing Goetzinger's horse at the Pottawattamie County Fair on July 19, 1997. As a result, Wheeler incurred medical expenses and was unable to return to her employment as a full-time truck driver until October 16, 1997.
Goetzinger resisted Wheeler's subsequent claim for workers' compensation benefits. In the course of those proceedings, Wheeler served the following request for admission on Goetzinger: "That at the time of the injury the claimant was an employee of the defendant employer and was not an independent contractor." Because Goetzinger failed to respond within the time required, Wheeler's employment status at the time of her injury was deemed admitted by Goetzinger. Based on this determination, the workers' compensation commissioner reached the following conclusions:
Although there is some evidence in the record that could support an opposite conclusion, there is clearly evidence of that which has already been deemed admitted: Wheeler sustained injury arising out of and in the course of her employment by Ronald Goetzinger. Although Wheeler was paid by checks drawn on the account of an unrelated business controlled by Goetzinger, it is clear that it was Goetzinger who employed Wheeler, not Ron's Erection and Sales, Inc.
Considering all the factors of industrial disability, she has experienced loss of earning capacity on the order of 5%, or 25 weeks.
II. Scope of Review.
An appeal of a district court's ruling on judicial review of an agency's decision is limited to determining whether the district court correctly applied the law in exercising its judicial review function under Iowa Code section 17A.19(8) (1999). Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001). The district court, as well as this court, is bound by the commissioner's factual findings if they are supported by substantial evidence. IBP, Inc. v. Harpole, 621 N.W.2d 410, 414 (Iowa 2001).
III. Employment Relationship.
On appeal, Goetzinger contends Wheeler was not acting within the scope of her employment at the time of her injury. He admits that Wheeler was an employee during the workweek, and that she kept track of her hours and was compensated for them. He points out, however, that on the weekends when she showed horses for him, she did not keep track of her hours. Goetzinger claims that Wheeler was an independent contractor when she showed horses for him.
We note Goetzinger admitted, "That at the time of the injury the claimant was an employee of the defendant employer and was not an independent contractor." In addition, Wheeler testified the purpose of her employment was to show horses. Although she only kept track of her hours during the workweek, the purpose of this work was to prepare the horses for shows. As she stated:
Well, usually when you put a trainer or somebody in the barn to take care of your horses, the end results is to show them. I mean, you don't get something ready just to stand in the barn for individuals to look at.
We conclude there is sufficient evidence in the record to support the commissioner's conclusion Wheeler was acting within the scope of her employment at the time of the injury.
IV. Rate of Compensation.
Goetzinger claims the commissioner used the incorrect rate of compensation in determining Wheeler's workers' compensation benefits. He points out that Wheeler's self-employment income from trucking should not be considered. He also states that under section 85.36, her benefits should be based on her earnings for the thirteen weeks before the injury, not on prospective earnings.
The commissioner calculated Wheeler's rate of compensation under section 85.36(6). The average of Wheeler's wages from Goetzinger in the thirteen weeks before the injury was used. There is no error in using an average to determine wages. Hanigan v. Hedstrom Concrete Prods., Inc., 524 N.W.2d 158, 160 (Iowa 1994). In addition, Wheeler did not pay to board two of her horses with Goetzinger, and the value of this was included to determine her earnings. We conclude the commissioner properly calculated Wheeler's rate of compensation.
Goetzinger argues that he gave gifts to Wheeler after the injury and these should be offset against her healing period of benefits. He does not offer any authority for this contention, and we do not consider it on appeal. See Iowa R.App. P. 6.14(1)(c ) (failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue).
V. Medical Bills.
Goetzinger contends he should not be responsible for Wheeler's medical bills because he was not allowed to choose the medical services she received. Section 85.27 provides, "the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care." Here, however, Goetzinger denied Wheeler was an employee. In these circumstances, we determine he waived his right to choose her medical care. See West Side Transp. v. Cordell, 601 N.W.2d 691, 694 (Iowa 1999) (holding that by its conduct an employer may lose "the right to choose the care").
Goetzinger also claims he should not be responsible for any medical services after the date of Wheeler's maximum medical improvement, October 16, 1997. In addition, he asserts he should not be responsible for painkiller medications because they "are simply not part of workman's compensation." He does not offer any authority for these contentions, and we do not consider them on appeal. See Iowa R.App. P. 6.14(1)(c ).
We affirm the decision of the district court and the workers' compensation commissioner.
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