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Romero v. Curly's Foods

Court of Appeals of Iowa

November 6, 2019

MARIA DEL ROSARIO ROMERO, Plaintiff-Appellant,
v.
CURLY'S FOODS, and SAFETY NATIONAL, Defendants-Appellees.

          Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.

         Maria Del Rosario Romero appeals the district court decision affirming the workers' compensation commissioner's denial of benefits.

          James C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines, for appellant.

          Timothy A. Clausen of Klass Law Firm, L.L.P., Sioux City, for appellees.

          Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         Maria Del Rosario Romero injured her shoulder while working at Curly's Foods. Romero filed a claim with the workers' compensation commission alleging the injury "to be, at least in substantial part, cumulative in nature, due to her repetitive/exertional work activities for the employer." Following a hearing, a deputy commissioner found, "Claimant's direct testimony at hearing pointed to May 2013 as the date claimant began experiencing shoulder difficulties." The deputy further found, "[C]laimant . . . knew she suffered from a condition or injury and the condition or injury was caused by her employment and dated back to May of 2013." Finally, the deputy found, "Curly's did not have notice of claimant's cumulative injury until . . . March 28, 2014." The deputy concluded, "[C]laimant did not tender notice within 90 days of the date the bilateral shoulder condition manifested itself in May of 2013," as required by Iowa Code section 85.23 (2015). Accordingly, the deputy disallowed the claim. The workers' compensation commissioner agreed with the deputy's decision. On judicial review, the district court affirmed the agency decision. Romero appealed.

         Iowa Code section 85.23[1] stated:

Unless the employer or the employer's representative shall have actual knowledge of the occurrence of an injury received within ninety days from the date of the occurrence of the injury, or unless the employee or someone on the employee's behalf or a dependent or someone on the dependent's behalf shall give notice thereof to the employer within ninety days from the date of the occurrence of the injury, no compensation shall be allowed.

         The Iowa Supreme Court has construed "the date of the occurrence of the injury" in multiple opinions over the last several decades. "[W]hen the disability develops over a period of time[, ] then the compensable injury itself is held to occur at the later time." McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 373 (Iowa 1985). This is known as the cumulative injury rule. Id. Under the rule, the date of injury is "the time at which the disability manifests itself." Herrera v. IBP, Inc., 633 N.W.2d 284, 287 (Iowa 2001) (quoting Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992)).

[A] cumulative injury is manifested when the claimant, as a reasonable person, would be plainly aware (1) that he or she suffers from a condition or injury, and (2) that this condition or injury was caused by the claimant's employment. Upon the occurrence of these two circumstances, the injury is deemed to have occurred. Nonetheless, by virtue of the discovery rule, the [limitations period for giving notice] will not begin to run until the employee also knows that the physical condition is serious enough to have a permanent adverse impact on the claimant's employment or employability, i.e., the claimant knows or should know the "nature, seriousness, and probable compensable character" of his injury or condition.

Id. at 288 (quoting Orr v. Lewis Cent. Sch. Dist, 298 N.W.2d 256, 257 (Iowa 1980)); see Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985) (indicating discovery rule also applies to toll limitations period for notice requirement contained in section 85.23). "The preferred analysis is to first determine the date the injury is deemed to have occurred . . . and then to examine whether the statutory period commenced on that date or whether it commenced upon a later date based upon application of the discovery rule." Herrera, 633 N.W.2d at 288.

         Romero does not challenge the manifestation date. She focuses on the commissioner's application of the discovery rule. In her view, "While it may very well be correct that [her] cumulative bilateral shoulder injury occurred or 'manifested' in May of 2013, as the Agency concluded, the evidence is clear that [she] did not reasonably discover or know at that time, or at any time before May of 2014, that her bilateral shoulder injury would cause a 'permanent adverse impact' upon her employment."

         Romero relies on Larson Manufacturing Company, Inc. v. Thorson,763 N.W.2d 842, 852-55 (Iowa 2009). There, the commissioner concluded the employee's claims were not barred by the two-year statute of limitations set forth in section 85.26 "because Thorson did not know, nor should she have known, the conditions [in 1996] would have a permanent adverse impact on her employment until she received [a physician's] report in 2000." Thorson, 763 N.W.2d at 848-49. The supreme court affirmed the agency decision. Id. at 855. The court stated, "Although the record could support a finding of an earlier discovery date, the finding made by the commissioner is supported by substantial evidence in the record." Id.; see also Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 681-82 (Iowa 2015) ("[The Thorson court] reaffirmed that the phrase 'permanent adverse impact' provides an abbreviated or alternative characterization of the three elements of the discovery rule test: nature, ...


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