from the Iowa District Court for Polk County, Karen A.
Del Rosario Romero appeals the district court decision
affirming the workers' compensation commissioner's
denial of benefits.
C. Byrne of Neifert, Byrne & Ozga, P.C., West Des Moines,
Timothy A. Clausen of Klass Law Firm, L.L.P., Sioux City, for
Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
VAITHESWARAN, PRESIDING JUDGE.
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.
Code section 85.23 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.
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
[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.
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."
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, ...