City of Harlan v. Jim Thygesen

IN THE COURT OF APPEALS OF IOWA

No. 21-0265
Filed March 30, 2022

CITY OF HARLAN,
Plaintiff-Appellee,

vs.

JIM THYGESEN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.

Jim Thygesen appeals the district court’s ruling on judicial review reversing

the decision of the Iowa Workers’ Compensation Commissioner awarding

compensation benefits. AFFIRMED.

Jason D. Neifert of Neifert, Byrne & Ozga, P.C., West Des Moines, for

appellant.

D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des

Moines, for appellee.

Heard by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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VAITHESWARAN, Judge.

Jim Thygesen began working for the City of Harlan’s wastewater treatment

plant in 1981. Over the years, he developed hearing loss and tinnitus.

Thygesen filed a claim for workers’ compensation benefits in 2016, alleging

he sustained his injuries on “December 17, 2014; February 4, 2015” due to

“[c]umulative impact of [his] exposure to noise in the work environment.” He

alleged December 17, 2014, was the date he ‘was given audiogram results” and

February 4, 2015, was “the date assigned by the employer.” The City responded

with two affirmative defenses: (1) Thygesen failed to timely notify it of the injury

and (2) Thygesen failed to timely file his claim. A deputy workers’ compensation

commissioner rejected both affirmative defenses and awarded Thygesen

permanent partial disability benefits. On intra-agency appeal, the workers’

compensation commissioner affirmed the decision.

The City sought judicial review of the final agency decision. The district

court reversed the decision.

On appeal, Thygesen contends the district court erred in “reaching different

factual conclusions than the commissioner with respect to the date of injury and

date of discovery” of his hearing loss and tinnitus. In response, the City does not

challenge the commissioner’s fact findings but argues “the agency erred in

applying the law to the findings of fact” with respect to the timeliness of Thygesen’s

filing of his claim.1 The arguments implicate two standards of judicial review:

(1) whether the agency’s fact findings are supported by substantial evidence and

1 The City focuses exclusively on the timeliness of Thygesen’s filing; it does not
reprise its assertion that Thygesen failed to provide timely notification of his injury.
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(2) whether the agency’s application of law to fact is irrational, illogical, or wholly

unjustifiable. See Iowa Code § 17A.19(10)(f), (m) (2019).

The law is well established. An employee must bring an original proceeding

for workers’ compensation benefits “within two years from the date of the

occurrence of the injury for which benefits are claimed.” Id. § 85.26(1) (2016).2

“[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.

The cumulative injury rule is distinct from the discovery rule. Id. “[A]lthough an

injury may have occurred, the statute of limitations period does not commence until

the employee, acting as a reasonable person, recognizes its ‘nature, seriousness

and probable compensable character.’” Herrera v. IBP, Inc., 633 N.W.2d 284, 287

(Iowa 2001) (quoting Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa

1980)). In other words, “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.” Id. at 288.

The deputy commissioner, whose findings were affirmed by the

commissioner, found that Thygesen “knew he was having problems with his

hearing ten years ago” and “he thought his hearing problems were related to his

2 The provision has been amended to state, “For the purposes of this section, ‘date
of the occurrence of the injury’ means the date that the employee knew or should
have known that the injury was work-related.” 2017 Iowa Acts ch. 23, § 3. The
provision as amended applies to injuries occurring on or after July 1, 2017. 2017
Iowa Acts ch. 23, § 24. Thygesen’s injury occurred before the effective date of the
amendment.
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work.” These findings are supported by substantial evidence. The findings answer

the first question—when the injury manifested itself. See id. (“[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.”). The findings establish that

Thygesen’s injuries “manifested” many years before the 2014 and 2015 dates

alleged in his workers’ compensation petition. See id.

The cited findings do not answer the second question—when the statute of

limitations began to run in light of the discovery rule. Id. (“[B]y virtue of the

discovery rule, the statute of limitations 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.”). On that question, the

deputy commissioner found Thygesen “didn’t know then what the severity was.”

The deputy further found Thygesen’s testimony credible, a finding to which the

commissioner deferred. Again, the deputy’s finding concerning Thygesen’s lack

of knowledge about the severity of his injury is supported by substantial evidence.

See Midwest Ambulance Serv. v. Ruud, 754 N.W.2d 860, 865 (Iowa 2008) (“The

question of whether a claimant knew, or should have known, of the nature,

seriousness, and probable compensability of her injury is a question of fact to be

determined by the commissioner.”). We, too, give “deference to the credibility

determination[] of the presiding officer.” Broadlawns Med. Ctr. v. Sanders, 792

N.W.2d 302, 306 (Iowa 2010).

But there is an additional component to application of the discovery rule—

whether the claimant had “knowledge of facts sufficient to trigger a duty to
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investigate . . . the nature, seriousness, and probable compensable character of

the[] injury.” Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 683 (Iowa 2015)

(internal citation and quotations omitted). The deputy commissioner found:

The record does not support Thygesen knew or in the exercise of
reasonable diligence should have recognized the seriousness and
probable compensable character of his hearing loss in June 2012.
The record does not support Thygesen recognized the seriousness
and probable compensable character of his hearing loss before the
City received actual notice of the injury during Thygesen’s
discussions with his supervisor [] and [] the administrator for the City,
six months before he filed the February 2015 employee work injury
report.

(Emphasis added.) The commissioner affirmed the determination. It was here that

the district court parted ways with the commissioner. The court stated “[t]here is

no evidence in the record” Thygesen pursued his “duty to investigate his injury.”

Indeed, there was not. It is undisputed that the City tested Thygesen’s

hearing from March 2, 1992, through September 2, 2015. Thygesen did not

request written copies of the test results until October 2014 even though he was

verbally apprised well before that date that he had some hearing loss. Thygesen

conceded he always thought his problems were work-related. Although he claims

he did not learn of the compensable nature of the loss until he spoke to his

supervisor and city administrator in 2014, nothing prevented him from obtaining

that information when he learned his hearing loss was tied to his employment. See

Chapa v. John Deere Ottumwa Works, 652 N.W.2d 187, 190 (Iowa 2002)

(concluding a claimant had a duty to investigate the compensable nature of his

injury where he “realized the connection between the tinnitus and his work

environment in the mid-1980s”); see also Martin v. City of Harlan, No. 5057038,

2019 WL 4452349, at *6 (Iowa Workers’ Comp. Comm’n Aug. 26, 2019) (“I find the
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fact that claimant did not actually know until November 2014 that he could make a

claim makes no difference. I find that because claimant recognized the nature, the

seriousness and the work-relatedness of his hearing loss and tinnitus, that

realization should have prompted claimant long before November 2014 to

investigate whether he had a compensable workers’ compensation claim.”); cf. Int’l

Paper Co., Inc. v. Bueker, No. 08-1536, 2009 WL 1218693, at *5 (Iowa Ct. App.

May 6, 2009) (concluding substantial evidence supported a finding that the

claimant did not know the probable compensable nature of his tinnitus before 2004,

as the employer claimed).

The absence of evidence to support a finding necessarily means the

absence of substantial evidence to support the finding. We need not engage in a

forbidden “scrutinizing analysis of the commissioner’s finding” to make that

determination. See Ruud, 754 N.W.2d at 866 (quoting Terwilliger v. Snap-On

Tools Corp., 529 N.W.2d 267, 272 (Iowa 1995)). We simply need to apply the

statutory test as written, assessing “the quantity” of evidence “to establish the fact

at issue” as well as “the adequacy of the evidence in the record.” Iowa Code

§ 17A.19(10)(f)(1), (3). On our review of the record as a whole, we are persuaded

the record lacks substantial evidence to support the agency finding that Thygesen

“in the exercise of reasonable diligence,” could not “have recognized the . . .

probable compensable character of his hearing loss in June 2012.”

Even if substantial evidence supported the finding, we agree with the City

that the agency’s application of law to fact was “irrational, illogical, or wholly

unjustifiable.” See Iowa Code § 17A.19(10)(m); Ruud, 754 N.W.2d at 865. As

noted, substantial evidence supported the findings that Thygesen’s injury
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manifested a decade before he filed his claim and Thygesen knew the injury was

work-related. Under the cited law, those two facts triggered a duty to investigate

the probable compensable nature of the claim. As the district court concluded, the

agency’s contrary determination required reversal.

AFFIRMED.