IN THE COURT OF APPEALS OF IOWA
No. 18-1051
Filed May 15, 2019
ANITA GUMM,
Plaintiff-Appellant,
vs.
EASTER SEAL SOCIETY OF IOWA, INC., AMERICAN COMPENSATION INS.
CO., and SFM INSURANCE COMPANY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul Scott, Judge.
Anita Gumm appeals the denial of her petition for judicial review upholding
the Workers’ Compensation Commissioner’s denial of her petition asserting she
sustained a cumulative workplace injury. REVERSED AND REMANDED.
Joseph S. Powell of Thomas J. Reilly Law Firm, P.C., Des Moines, for
appellant.
Lee P. Hook and Tyler S. Smith of Peddicord Wharton, LLP, West Des
Moines, for appellees Easter Seal Society of Iowa, Inc. and SFM Insurance
Company.
Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar Rapids,
for appellee American Compensation Ins. Co.
Considered by Doyle, P.J., Mullins, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
DOYLE, Presiding Judge.
Anita Gumm appeals the denial of her petition for judicial review upholding
the Workers’ Compensation Commissioner’s denial of her petition asserting she
sustained a cumulative workplace injury. Upon our review, we reverse the district
court’s ruling and remand to the commissioner for further proceedings.
I. Background and Standard of Review.
In 2008, Anita Gumm slipped while working and fractured her right ankle.
In 2009, it was determined Gumm was at maximum medical improvement for her
injury, and she was assigned a 17% extremity impairment rating for the ankle
fracture. She received permanent partial disability benefits and returned to full
work activity without restrictions.
In 2014, Gumm filed a workers’ compensation petition claiming she
sustained a cumulative injury after she returned to work subsequent to the 2008
fracture. She alleged injury dates of March 6, 2012, May 16, 2013, and/or January
15, 2014. Ultimately, the agency found that Gumm failed to establish she
sustained a cumulative injury following the 2008 fracture. A deputy commissioner
found:
Claimant has not shown she suffered a “distinct and discreet”
disability attributable to the post-fracture work activities. Her
continued work activities may have played a role in aggravating the
right ankle condition and resulted in the need for further treatment,
however, by the standard of the Ellingson [v. Fleetguard, Inc., 599
N.W.2d 440 (Iowa 1999),] case, this form of aggravation is
insufficient. Claimant suffered a significant fracture-dislocation and
developed the inevitable posttraumatic arthritis that would be
expected from such an injury. As a result of the arthritic condition,
claimant required arthroscopy, arthrodesis, and more conservative
treatment of the right ankle. These procedures represent sequelae
of the original October 28, 2008 injury, not distinct cumulative
injuries. Claimant also developed bilateral knee and back complaints
3
as a result of an altered gait following arthrodesis; these complaints
also reflect sequelae of the original October 28, 2008 injury and are
not distinct cumulative injuries.
The decision was affirmed by the agency and a petition for judicial review followed.
The district court upheld the agency’s determination and denied Gumm’s petition.
Gumm now appeals, renewing her arguments asserted before the district court.
Our analysis is shaped largely by the deference we are statutorily obligated
to afford the agency. See Mike Brooks, Inc. v. House, 843 N.W.2d 885, 888-89
(Iowa 2014). In judicial review proceedings, the district court acts in an appellate
capacity, reviewing the commissioner’s decision to correct legal error. See id. at
888. On appeal, we apply the standards of Iowa Code chapter 17A (2017) to
decide if we reach the same conclusion as the district court. See id. at 889. The
commissioner is vested with the authority to apply the law to the facts. See Drake
Univ. v. Davis, 769 N.W.2d 176, 183 (Iowa 2009). Because whether the
commissioner misapplied the cumulative-injury doctrine to Gumm’s situation
depends on the application of law to facts, we will not disturb the decision unless
it is “irrational, illogical, or wholly unjustifiable.” See Neal v. Annett Holdings, Inc.,
814 N.W.2d 512, 526 (Iowa 2012); see also Iowa Code § 17A.19(10)(i), (m). “A
decision is ‘irrational’ when it is ‘not governed by or according to reason.’ A
decision is ‘illogical’ when it is ‘contrary to or devoid of logic.’ A decision is
‘unjustifiable’ when it has no foundation in fact or reason.” Sherwin-Williams Co.
v. Iowa Dep’t of Revenue, 789 N.W.2d 417, 432 (Iowa 2010) (citations omitted).
II. Discussion.
Starting with the applicable law, we note disabilities arising from one-time
traumas are not the only kind of injuries covered by our workers’ compensation
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statute. See McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 373 (Iowa
1985). Disabilities gradually developing over a period of time from repetitive
physical trauma in the workplace—a cumulative injury—also subject employers to
liability. See id. at 372-74. In other words, a cumulative injury “develops over time
from performing work-related activities and ultimately produces some degree of
industrial disability.” Ellingson v. Fleetguard, Inc., 599 N.W.2d 440, 444 (Iowa
1999), overruled on other grounds by Waldinger Corp. v. Mettler, 817 N.W.2d 1
(Iowa 2012). When an employee whose work activities collectively cause the
worker to suffer a debilitating condition, our “cumulative injury rule” allows the
employee to receive compensation when the employee becomes aware of the
injury. See Excel Corp. v. Smithart, 654 N.W.2d 891, 896-97 (Iowa 2002),
superseded by statute, 2004 Iowa Acts 1st Extraordinary Sess. ch. 1001, § 12, as
recognized in JBS Swift & Co. v. Ochoa, 888 N.W.2d 887, 898 (Iowa 2016).
Cumulative-injury cases typically involve an injury resulting from years of
continuous, repetitive movement that has taken a physical toll on a worker’s body.
See, e.g., Larson Mfg., Co., Inc. v. Thorson, 763 N.W.2d 842, 846-49 (Iowa 2009)
(chronicling daily tasks of worker at storm door factory). In such cases, a series of
smaller hurts advances toward manifestation as an employee requires medical
treatment and modification of work activities due to deterioration in function. See
id. at 859. But the acceptance of gradual injury as the mechanism of harm does
not exclude the idea that acute injuries can contribute to the employee’s
compensable disability under the cumulative-injury doctrine. In the first Iowa case
to recognize cumulative injury as a viable theory of recovery under the workers’
compensation code, our supreme court recognized two acute injuries to the
5
worker’s wrist as “the beginning of a series of hurts.” McKeever Custom Cabinets,
379 N.W.2d at 373. Similarly, in Floyd v. Quaker Oats, the court rejected the
employer’s argument that “to show a cumulative injury a claimant must produce
evidence of having suffered a distinct and discrete disability solely attributable to
work activities over time, as opposed to an aggravation of a preexisting injury from
an identified traumatic event.” 646 N.W.2d 105, 108 (Iowa 2002). The fly in the
ointment here is the Ellingson case.
In Ellingson, Ellingson was seeking benefits for “two separate compensable
injuries”—the initial injury and the “distinct and discreet cumulative neck injury from
which an episode of disability was manifested on June 17, 1992.” 599 N.W.2d at
443. The agency “found that the only compensable injury established by the
evidence was the January 4, 1985 injury.” Id. More specifically:
While claimant seeks to assert a cumulative injury occurring on or
about June 17, 1992, the treating physician opines that claimant’s
ongoing condition has its origins in her work incident of January 4,
1985. Claimant’s continuing symptoms and her need for additional
surgery and other medical care causally relate back to the January
4, 1985 work injury. Hence, claimant has not established a separate
injury arising out of or in the course of her employment on or about
June 17, 1992.
Id. at 444-45. On appeal from judicial review, the supreme court held,
To the extent that the evidence reveals a subsequent aggravation of
Ellingson’s January 4, 1985 injury, this is a relevant circumstance in
fixing the extent of her permanent disability. Aggravating work
activities were doubtless a causal factor with respect to the total
degree of disability that she exhibited at the time of the hearing. It is
clear, however, that she may not establish a cumulative-injury claim
by merely asserting that her disability immediately following the
January 4, 1985 injury was increased by subsequent aggravating
work activities. That circumstance only serves to increase the
disability attributable to the January 4, 1985 injury. To show a
cumulative injury she must demonstrate that she has suffered a
distinct and discreet disability attributable to post-1985 work activities
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rather than as an aggravation of the January 4, 1985 injury. In
presenting that claim to the commissioner, she could only prevail if
the commissioner, as primary fact finder, found that a factual basis
for a cumulative-injury disability existed. The commissioner did not
make that finding.
Id. at 444. The court affirmed the district court upholding the agency’s ruling on
the issue. Id. at 445.
Here, Gumm maintains she sustained a cumulative aggravation of her acute
October 2008 injury after she returned to work, contrary to the agency’s
determination. Gumm insists the facts of her case are like those in Floyd:
She sustained an acute injury in October of 2008, and the parties
stipulated that injury resulted in a 17% lower extremity impairment
rating. That stipulation was accepted and incorporated by reference
into the agency’s decision. Like . . . Floyd, Gumm did not seek to
litigate the extent of disability benefits for the October 2008 injury due
to the statute of limitations having run. The parties further stipulated
that Easter Seals would receive a credit for the 17% previously paid
for the 2008 injury, requiring Gumm to establish an increase in
disability above 17% in order to recover.
In Floyd, Floyd sought compensation via two separate petitions. See 646
N.W.2d at 107. One petition sought compensation for his scheduled injury that
occurred on September 3, 1993. See id. at 106-07. The other claimed “a
cumulative injury subsequent to September 3, 1993.” Id. at 107. Facing a statute
of limitations defense, Floyd voluntarily dismissed without prejudice the petition
involving the September 3 injury. Id. The second petition proceeded, and the
deputy commissioner determined Floyd “had sustained a cumulative injury of
3.75% from day-to-day work activities after September 3, 1993.” Id. The employer
in Floyd argued Floyd did not establish a cumulative injury because there was no
showing that Floyd “suffered a distinct and discreet disability solely attributable to
work activities over time, as opposed to an aggravation of a preexisting injury from
7
an identified traumatic event.” Id. at 108. The court found Floyd “should be
permitted to recover by way of a cumulative-injury claim for any increase in
functional disability shown to have occurred as the result of day-to-day activities in
the workplace subsequent to the September 3, 1993 injury.” Id. at 108 (emphasis
added).
At first blush, the holdings of the two cases are seemingly incompatible, but
reconciliation turns on the specific circumstances of the litigation in the two cases.
The supreme court distinguished the two cases, explaining:
The significant factor in the Ellingson case was that the extent
of the 1985 injury was being litigated in the same proceeding in which
the separate cumulative-injury claim was being urged. Moreover, the
evidence conclusively showed that the ultimate extent of industrial
disability was affected by job-related activities that aggravated the
1985 neck injury. As a result of that circumstance, this court held
that the compensable consequences of the aggravation of the 1985
neck injury must be adjudicated as part of the disability flowing from
that injury.
In the present case, [Floyd’s] arbitration petition seeking
benefits for the September 3, 1993 injury was voluntarily dismissed
in the face of a statute-of-limitations defense by the employer. The
industrial commissioner concluded that the dismissal of that petition
precluded any consideration of the September 3, 1993 injury as a
compensable event. Given this circumstance, we believe that
claimant should be permitted to recover by way of a cumulative-injury
claim for any increase in functional disability shown to have occurred
as the result of day-to-day activities in the workplace subsequent to
the September 3, 1993 injury.
Id.1 Our takeaway is that the Floyd holding creates a carefully circumscribed
exception to the Ellingson holding. In other words, if a claimant is precluded by
the statute of limitations from bringing an original proceeding or review-reopening,
the claimant may recover by way of a cumulative-injury claim for any increase in
1
We note that Justice Carter authored both Ellingson and Floyd.
8
functional disability shown to have occurred as the result of day-to-day activities in
the workplace subsequent to the original injury without having to show he or she
suffered a “distinct and discreet” disability attributable to the post-original-trauma
work activities.
After analyzing the facts of this case and applicable law, the district court
concluded:
Here, the agency found that Gumm’s day-to-day work
activities may have played a role in aggravating her ankle, however
it found this alone was not enough to establish a cumulative injury
under Ellingson. The agency found that Gumm’s ankle had never
fully healed, and therefore she did not show by a preponderance of
the evidence that she suffered a cumulative-trauma injury. Thus, the
agency ultimately determined that any disability flowing from the
original ankle injury would need to be adjudicated and calculated as
one injury. A plain reading of Floyd suggests that it is immaterial
whether or not the ankle fully healed if part of the industrial disability
could be attributed to the acute injury and the rest of the disability
could be attributed to post-injury work-related aggravation. The court
recognizes the difficulty in reconciling the seemingly incompatible
holdings of Ellingson and Floyd. Regardless, the agency, as the
finder of fact, found that all of Gumm’s disability stemmed from the
traumatic injury that occurred on October 28, 2008 and the natural
results therefrom, and therefore applied the holding from Ellingson
to conclude that Gumm did not suffer a cumulative-trauma injury.
The agency’s application of the law was not irrational, illogical, or
wholly unjustifiable in finding that Gumm failed to establish a
cumulative injury by a preponderance of the evidence.
We agree with the agency that under the holding of Ellingson, Gumm failed to show
she suffered a “distinct and discreet” disability attributable to her post-fracture work
activities. But, that does not end the matter. The question boils down to whether
the agency erred in failing to apply the Floyd holding.
9
Gumm, like Floyd, faced a statute of limitations defense. See Iowa Code
§ 85.26(1).2 Gumm’s last weekly payments were paid in May 2010. She filed her
petition in February 2014, after the statute of limitations expired. Under similar
circumstances, the supreme court held, “we believe that claimant should be
permitted to recover by way of a cumulative-injury claim for any increase in
functional disability shown to have occurred as the result of day-to-day activities in
the workplace subsequent to the [traumatic] injury.” Floyd, 646 N.W.2d at 108.
We reach the same conclusion, particularly given “that our workers’ compensation
statute is to be liberally construed to implement its remedial purposes.” Swiss
Colony, Inc. v. Deutmeyer, 789 N.W.2d 129, 135 (Iowa 2010). Accordingly, we
conclude the judgment of the district court must be reversed and the case
remanded to the commissioner for further proceedings.
REVERSED AND REMANDED.
Danilson, S.J., concurs; Mullins, J., dissents.
2
Iowa Code § 85.26(1) provides:
An original proceeding for benefits under this chapter or chapters
85A, 85B, or 86, shall not be maintained in any contested case unless the
proceeding is commenced . . . if weekly compensation benefits are paid
under section 86.13, within three years from the date of the last payment
of weekly compensation benefits.
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MULLINGS, Judge (dissenting).
I respectfully dissent. I agree this case does not fit neatly within the
analytical frameworks of either Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa
2002), or Ellingson v. Fleetguard, Inc., 599 N.W.2d 440 (Iowa 1999). Floyd can
be understood as an exception to Ellingson, basically concluding if there is no
compensation for the underlying injury, that injury can be included as part of a
cumulative injury claim. See Floyd, 646 N.W.2d at 108. The “no compensation”
in Floyd was because a statute of limitations barred the claim. See id.
In the present case, Gumm successfully resolved a claim for the underlying
injury. I read the majority opinion to allow Gumm to pursue additional benefits for
the underlying injury because the statute of limitations prevents her from claiming
additional benefits for the underlying injury. I respectfully submit such a conclusion
is an extension of Floyd, which I do not believe is or should be authorized. I would
affirm.