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CELOTEX CORP. v. AUTEN12/20/1995
the employment, independently produces some ascertainable portion of the ultimate industrial disability which exists following the employment-related aggravation.
Varied Enters., Inc., 353 N.W.2d at 411 (emphasis added). Implicit in our qualifying language "unrelated to the employment" is our recognition of the following general rule: [541 NW2d Page 256]
Apart from statute, in a situation of two successive work-related injuries, the employer is generally held liable for the entire disability resulting from the combination of the prior disability and the present injury .
Our workers' compensation law does allow the employer credit in certain situations not relevant here. See, e.g., Iowa Code §§ 85.34 (employer entitled to credit for weekly healing period benefits for the same injury producing permanent partial disability); 85.34(3) (employer entitled to credit for permanent partial disability payments made where employee sustains permanent partial disability and permanent total disability arising from same injury); 85.34(4) (employer entitled to credit for specific benefit amounts paid in excess of amounts required by workers' compensation statutes). However, our workers' compensation law does not expressly provide for apportionment in the case of successive injuries sustained by an employee in the same employment, regardless of whether or not the employee receives compensation for the prior injury.
Moreover, neither party, for good reason, claims that our second injury provisions apply. The injuries here do not involve the loss or loss of use of a hand, arm, foot, leg, or eye. See Iowa Code § 85.64; Second Injury Fund v. Shank, 516 N.W.2d 808, 812 (Iowa 1994) (second injury fund provisions apply only if employee has (1) either lost, or lost use of a hand, arm, foot, leg, or eye; (2) employee sustained loss, or loss of use of another such member or an organ through a work-related injury; and (3) there must be some permanent disability from the injuries).
That leaves us with this question: Should we here, by judicial fiat, allow apportionment with respect to successive work-related injuries and thereby give the employer a credit for the prior disability award? We decline to do so for the reasons that follow.
The legislature stopped short of allowing apportionment as to all successive work-related injuries. See Iowa Code § 85.36(10)(c). Section 85.36(10)(c) allows apportionment as to any employee who is disabled and receiving workers' compensation benefits when the employee is again injured on the job . Those are not the facts here. Auten was not receiving workers' compensation benefits when he was injured in 1987. He last received such benefits in 1984. The legislature has also allowed the employer a credit for a prior disability award where the employee suffered a permanent partial disability and total disability from the same injury . See Iowa Code § 85.34(3). So had the legislature intended to allow apportionment as to all successive work-related injuries, it could easily have said so. Because it did not, we think the legislature did not intend to allow apportionment under the facts of this case. The result we reach is in keeping with our fundamental rule of construing our workers' compensation law in favor of the employee and compensability. Bearce, 465 N.W.2d at 536. See also Gray, 105 N.C. App. 480, 414 S.E.2d 102 (reaching same result on similar facts and reasoning); American Casualty Ins. Co., 207 Tenn. 294, 339 S.W.2d 15 (same).
The industrial commissioner correctly refused to apportion a part of Auten's permanent total disability to his two prior work-related injuries. Because the district court and court of appeals were l
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