David Myers v. R.R. Donnelly & Sons Company and New Hampshire Insurance Company ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0306
Filed September 13, 2017
DAVID MYERS,
Plaintiff-Appellant,
vs.
R.R. DONNELLY & SONS COMPANY and
NEW HAMPSHIRE INSURANCE COMPANY,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
An employee appeals the district court’s decision affirming the ruling of the
workers’ compensation commissioner finding his request for benefits was
untimely. AFFIRMED.
Robert R. Rush and Christoph P. Rupprecht of Rush & Nicholson, P.L.C.,
Cedar Rapids, for appellant.
Timothy W. Wegman and Joseph M. Barron of Peddicord Wharton, L.L.P.,
West Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
David Myers appeals the district court’s decision affirming the ruling of the
workers’ compensation commissioner finding his request for benefits was
untimely. We find there is substantial evidence in the record to support the
commissioner’s determination Myers did not file a petition with the commissioner
within two years after the discovery date of his cumulative back injury. We affirm
the decision of the district court and the commissioner.
I. Background Facts & Proceedings
Myers became employed by R.R. Donnelly & Sons Co. in 1984. He was
employed as a press operator until 2011, when he was moved to packing and
handling because he could no longer perform the duties of a press operator.
Myers developed back pain and sought medical treatment for his condition
beginning in at least 1999. He had temporary work restrictions on and off from
2003. Myers testified he knew by 2009 his work was aggravating his back.
Myers was unable to work for extended periods of time and received both long-
term and short-term disability benefits from the employer. On November 20,
2012, Myers received permanent restrictions of no lifting more than forty pounds
and no repetitive bending, lifting, and twisting. He was terminated from his
employment because the employer could not accommodate his work restrictions.
On April 2, 2013, Myers filed a claim for workers’ compensation benefits,
claiming he had a cumulative back injury. The employer asserted Myers’s claim
was untimely under Iowa Code section 85.26(1) (2013), which requires a claim to
be “commenced within two years from the date of the occurrence of the injury for
which benefits are claimed.”
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An administrative hearing was held on June 16, 2014. A deputy workers’
compensation commissioner determined Myers’s injury date was February 25,
2009, when Dr. Randy Shelerud diagnosed Myers with “disabling mechanical
back and bilateral buttock pain,” and referred him for surgical consultation.
Myers was placed on work restrictions for six months at that time. The deputy
found the manifestation date for his injury was March 3, 2011, when Dr. Jeffrey
Nasstrom, his family physician, noted Myers had been developing increasing
back pain and Myers stated his work was intolerable. The deputy concluded
Myers knew the nature, seriousness, and probable compensable character of his
injury no later than March 3, 2011. Because Myers’s claim was filed more than
two years after this date, the deputy concluded the claim was untimely under
section 85.26(1).
Myers appealed to the workers’ compensation commissioner. The
commissioner agreed Myers’s injury date was February 25, 2009. The
commissioner determined the applicable date under the discovery rule was
February 21, 2011, when Dr. Nasstrom evaluated Myers, resulting in a letter
stating, “Unfortunately, he has been developing increasing back pain with
radicular symptoms. He notes it has been increasingly intolerable to work at this
time.” The commissioner also noted Myers had received extensive medical
treatment for his back from 2006 through February 2011 and he had received
substantial amounts of short-term disability benefits in 2009. The commissioner
concluded Myers’s claim was untimely and he was not entitled to workers’
compensation benefits.
Myers filed a petition for judicial review. The district court found:
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The record in this case supports that Myers has had issues
with his back since as early as 1999; has had extensive medical
treatment for his back; and has had numerous periods off work and
on short term disability due to his back condition. There is
substantial evidence in this record that Myers knew or should have
known the seriousness of his condition at least by February 21,
2011. In addition, there is substantial evidence to support the
Commissioner’s conclusion that Myers should have known the
compensable nature of his injury by that date as well. It is clear
from the record that Myers’s back condition was worsened by his
employment as evidenced by the restrictions placed on him over
the years as well as his own testimony that his employer knew he
was off because of his back “and they [Donnelley] knew that my
tasks at work aggravated my back.” The time period referenced in
this question was 2009, 2010, or 2011 based upon the prior several
questions. Thus, Myers knew or should have known the nature,
seriousness and probable compensable character of his injury or
condition at least by February 21, 2011.
The district court affirmed the commissioner’s ruling Myers’s claim was barred by
the statute of limitations in section 85.26(1). Myers now appeals the decision of
the district court.
II. Standard of Review
We review the commissioner’s legal findings for the correction of errors at
law. IBP, Inc. v. Burress, 779 N.W.2d 210, 213 (Iowa 2010). We are bound by
the commissioner’s findings of fact so long as those findings are supported by
substantial evidence. Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 333
(Iowa 2016). “‘Substantial evidence’ means the quantity and quality of evidence
that would be deemed sufficient by a neutral, detached, and reasonable person,
to establish the fact at issue when the consequences resulting from the
establishment of that fact are understood to be serious and of great importance.”
Iowa Code § 17A.19(10)(f)(1). “[T]he commissioner as the fact finder has the
responsibility for determining credibility of witnesses, and we are bound by the
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commissioner’s findings if supported by substantial evidence.” Sherman v. Pella
Corp., 576 N.W.2d 312, 320 (Iowa 1998).
III. Merits
Myers states the district court erred by affirming the commissioner’s
decision finding his claim was barred by the statute of limitations. He claims
there is not substantial evidence in the record to support a finding he knew or
should have been of the nature, seriousness, and probable compensable
character of his injury by February 21, 2011. Myers states the evidence does not
show he knew by that date his back condition was serious enough to have a
permanent adverse impact on his employment and was probably compensable
as a work injury.
If an employee is not receiving weekly compensation benefits, there is a
two-year limitations period for filing a workers’ compensation claim. Baker v.
Bridgestone/Firestone, 872 N.W.2d 672, 676 (Iowa 2012) (citing Iowa Code
§ 85.26(1)).
The manifestation date for an injury is “the date on which both the fact of
the injury and the causal relationship of the injury to the claimant’s employment
would have become plainly apparent to a reasonable person.” Oscar Mayer
Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa 1992) (citation omitted).
“[T]he Commissioner’s determination regarding the date on which the injury
manifests itself, so long as supported by substantial evidence as is required by
Iowa Code section 17A.19(8)(f), will not be disturbed on appeal.” Id. at 830.
In applying the discovery rule to a cumulative injury, the Iowa Supreme
Court has stated:
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To summarize, 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 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, i.e., the claimant knows or should know the
“nature, seriousness, and probable compensable character” of his
injury or condition.
Herrera v. IBP, Inc., 633 N.W.2d 284, 288 (Iowa 2001).
Under the discovery rule, “That limitation period does not begin to run until
the claimant knows or in the exercise of reasonable diligence should know ‘the
nature, seriousness[,] and probable compensable character’ of his or her injury.”
Baker, 872 N.W.2d at 685 (citation omitted). A claimant’s knowledge of the three
triggering factors may be actual or imputed from the record. Larson Mfg. Co.,
Inc. v. Thorson, 763 N.W.2d 842, 854 (Iowa 2009).
Myers does not dispute he knew the nature of his injury by February 21,
2011. He claims he did not understand the serious nature of his injury by that
date. “This ‘seriousness’ component of inquiry notice . . . is not triggered by
‘every minor ache, pain, or symptom.’” Perkins v. HEA of Iowa, Inc., 651 N.W.2d
40, 46 (Iowa 2002) (citations omitted). On February 25, 2009, Dr. Shelerud
diagnosed Myers with “chronic and disabling mechanical back, bilateral buttock
pain.” Dr. Shelerud referred Myers for back surgery at the Mayo Clinic, but Dr.
Bradford Currier, an orthopedic surgeon, determined surgery was not needed at
that time. On February 10, 2011, Myers was placed on restrictions for six
months. Furthermore, based on an evaluation on February 21, 2011,
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Dr. Nasstrom noted Myers had been developing increasing back pain and found
work to be intolerable. We conclude there is substantial evidence in the record to
show Myers knew or should have known his condition was serious by February
21, 2011.
Myers also claims there is not substantial evidence in the record to show
he knew the probable compensable character of his injury by February 21, 2011.
He states he did not realize his condition was related to his employment until
September 14, 2012, when he was informed by Dr. Nasstrom his job was
contributing to his back pain. During the agency hearing, Myers testified:
Q: And was it your understanding in your mind though that
you felt the back problems during that timeframe was related to the
work activities at R.R. Donnelly? A: Yeah, they could directly relate
them to that on the activities I did.
Q: And that would have been 2009, 2010, 2011 when you’re
working on the press – A.: Yes.
Q: – during that time frame?
Myers’s testimony shows he was aware during the timeframe of 2009 to 2011 his
back problems were related to his employment. In addition, the commissioner
noted Myers received work restrictions and was taken off of work for extensive
periods of time, which led to the conclusion Myers knew his work was causing
significant back problems. We determine there is substantial evidence in the
record to show Myers knew of the compensable character of his injury by
February 21, 2011.
We conclude the commissioner’s finding the statute of limitations began to
run on February 21, 2011, is supported by substantial evidence. Myers knew the
nature, seriousness, and compensable character of his injury by that date.
Myers filed his claim for workers’ compensation benefits on April 2, 2013, more
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than two years later. The commissioner properly determined Myers’s claim was
barred by the two-year statute of limitations in section 85.26(1). The
commissioner’s decision was not illogical, irrational, or wholly unjustifiable. See
Iowa Code § 17A.19(10)(m). We affirm the decision of the district court and the
workers’ compensation commissioner.
AFFIRMED.