MERCY MEDICAL CENTER – NORTH IOWA, Petitioner-Appellant, vs. DEBRA J. FISTLER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-301 / 08-1784
Filed July 2, 2009
MERCY MEDICAL CENTER – NORTH IOWA,
Petitioner-Appellant,
vs.
DEBRA J. FISTLER,
Respondent-Appellee.
______________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
An employer appeals the decision of the workers‘ compensation
commissioner awarding her healing period benefits for a cumulative injury.
AFFIRMED.
Lee P. Hook and Joseph M. Barron of Peddicord, Wharton, Spencer,
Hook, Barron & Wegman, L.L.P., Des Moines, for appellant.
Robert S. Kinsey III of Brown, Kinsey, Funkhouser & Lander, P.L.C.,
Mason City, for appellee.
Considered by Mahan, P.J., and Mansfield, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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BEEGHLY, S.J.
I.
Background Facts & Proceedings
Debra Fistler was employed by Mercy Medical Center – North Iowa, as a
custodian. Her job involved work above shoulder height. In 2002 she had pain
in her right shoulder, and was diagnosed with calcific tendinitis.1 Fistler had
surgery on her right shoulder on August 22, 2002. She returned to work without
restrictions.
In 2004, Fistler again experienced pain in her right shoulder. An x-ray in
September 2004 showed the calcific tendinitis had regrown. At a pre-operative
physical on October 1, 2004, Dr. James Coddington told Fistler her problems
were caused by repetitive over-head motions.
Fistler testified she told her
supervisors, Charlene Olswold, Debbie Patterson, and Hal Hudson, the same
day that Dr. Coddington had informed her that her shoulder problem was work
related. Fistler had a second surgery on her right shoulder on October 5, 2004.
Fistler returned to work in January 2005 with restrictions.
She had
continuing pain, which was aggravated by overhead work, such as scrubbing and
dusting. She had a third surgery on May 4, 2006, on her right shoulder. She had
continuing work restrictions and had not returned to work. Dr. Coddington, Dr.
Darron Jones, Dr. James Nepola, and Dr. Kary Schulte all gave the opinion that
Fistler‘s shoulder condition was aggravated by work at or above shoulder level.
Fistler filed a claim for workers‘ compensation benefits on October 10,
2005. At the time of the administrative hearing on October 17, 2006, she had not
―Calcific tendinitis‖ is a calcium deposit in a chronically inflamed tendon, especially a
tendon of the shoulder. Taber’s Cyclopedic Medical Dictionary 285 (18th ed. 1997).
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reached maximum medical improvement, and the parties agreed that the issue of
permanent industrial disability was not ripe for consideration, but the issue of
healing period benefits would be considered. The employer claimed Fistler‘s
claims were barred by the notice provision of Iowa Code section 85.23 (2005),
and the statute of limitations found in section 85.26.
A deputy workers‘ compensation commissioner determined that the
manifestation date and discovery date for Fistler‘s injury was October 5, 2004 ―as
this was the date when the claimant was both aware of the job related nature of
her condition and that it was a serious injury from which she may not recover
fully.‖
The deputy found ―[u]ntil her doctors told her that her condition was
materially aggravated by working overhead there was no reason for her to
believe it was work related.‖ The deputy found Fistler‘s testimony credible that
she had informed her supervisors she had a work-related injury on October 1,
2004. The deputy concluded Fistler‘s claims were not barred by sections 85.23
or 85.26.
Fistler was awarded healing period benefits.
The workers‘
compensation commissioner affirmed and adopted the deputy‘s findings.
The employer filed a petition for judicial review. The district court noted
that the commissioner had found ―Fistler was credible in regard to her testimony
at the hearing in this matter.‖ The court found the commissioner‘s findings were
supported by substantial evidence in the record when viewed as a whole. The
court stated, ―the ultimate question is not whether the evidence supports a
different finding, but whether the evidence supports the findings actually made.‖
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The court affirmed the decision of the commissioner.
The employer now
appeals.
II.
Standard of Review
Our review is governed by the Iowa Administrative Procedure Act. Iowa
Code ch. 17A; Acuity Ins. v. Foreman, 684 N.W.2d 212, 216 (Iowa 2004). We
review the district court‘s decision by applying the standards of section 17A.19 to
the agency decision to determine if our conclusions are the same as those
reached by the district court. Univ. of Iowa Hosps. & Clinics v. Waters, 674
N.W.2d 92, 95 (Iowa 2004).
III.
Merits
Section 85.23 provides that a injured employee must give notice to the
employer, or the employer must have actual notice of the injury, within ninety
days of the occurrence of the injury. George A. Hormel & Co. v. Jordan, 569
N.W.2d 148, 153 (Iowa 1997). Under section 85.26(1), an action for benefits
must be filed within two years from the date of the occurrence of the injury for
which benefits are claimed.
For a cumulative injury, the date of occurrence is the date when the injury
manifests itself. Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824, 829 (Iowa
1992). ―‘Manifestation‘ is best characterized as ‗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.‘‖ Id.
(citation omitted).
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The determination of the date of manifestation is a factual finding, and the
commissioner is given a substantial amount of latitude in making this
determination. Id. As long as the commissioner‘s determination of the date of
manifestation is supported by substantial evidence, the findings will not be
disturbed on appeal. Id. at 830.
We are bound by the commissioner‘s factual findings if they are supported
by substantial evidence in the record as a whole. Meyer v. IBP, Inc., 710 N.W.2d
213, 218 (Iowa 2006). Evidence is substantial when a reasonable person could
accept it as adequate to reach the same finding. Asmus v. Waterloo Community
School Dist., 722 N.W.2d 653, 657 (Iowa 2006). The ultimate question is not
whether the evidence might support a different finding, but whether the evidence
supports the findings actually made. IBP, Inc. v. Harpole, 621 N.W.2d 410, 420
(Iowa 2001).
In this case, the commissioner found the date of manifestation of the injury
was October 5, 2004. The deputy found that the calcific tendinitis in Fistler‘s right
shoulder was ―a condition for which a job connection is not readily recognized
without the assistance of a medical professional.‖ We find there is substantial
evidence in the record to support the commissioner‘s finding that a reasonable
person, such as Fistler, would not be aware that her cumulative shoulder injury
was work related until she was informed of this by Dr. Coddington on October 1,
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2004.2 Fistler testified she was not given any reason to suspect that the deposit
of calcium in her right shoulder tendon was related to her work. We affirm the
commissioner‘s determination that the date of manifestation was October 5,
2004.
This does not end our inquiry, however. See Herrera v. IBP, Inc., 633
N.W.2d 284, 288 (Iowa 2001) (noting that the preferred analysis is to first
determine the date the injury is deemed to have occurred, and then consider
application of the discovery rule). Although the date of manifestation is important
to notice and statute of limitations issues, the time periods actually begin to run
on the date of discovery. Larson Mfg. Co., Inc. v. Thorson, 763 N.W.2d 842, 854
(Iowa 2009).
Under the discovery rule, the time periods begin to run when the
employee, as a reasonable person, is aware:
(1) he or she suffers from a
condition or injury; (2) that this condition or injury was caused by working
conditions; and (3) his or her physical condition is serious enough to have a
permanent adverse impact on employment or employability.
Herrera, 633
N.W.2d at 288. The employee, acting as a reasonable person, must recognize
the nature, seriousness, and probable compensable character of the injury.
George A. Hormel, 569 N.W.2d at 153.
―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
Dr. Coddington‘s notes of February 14, 2003 state, ―Tendonitis of the right shoulder
with impingement, seems to be aggravated by recent work above her head.‖ However,
Fistler denied that Dr. Coddington told her at that time about a connection between work
and her tendonitis and Dr. Coddington could not recall whether he communicated the
information in his notes to Fistler.
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fact to be determined by the commissioner.‖ Midwest Ambulance Serv. v. Ruud,
754 N.W.2d 860, 865 (Iowa 2008). The commissioner‘s findings on this issue
should be affirmed if they are supported by substantial evidence. Id. The burden
is on the unsuccessful party to show that the commissioner‘s findings were
lacking in substantial evidence. Id.
The commissioner found the date of discovery was October 5, 2004,
stating, ―this was the date when the claimant was both aware of the job-related
nature of her condition and that it was a serious injury from which she may not
recover fully.‖ The employer contends there is not substantial evidence in the
record to support the commissioner‘s determination that the discovery date for
Fistler‘s claims was October 5, 2004. It claims Fistler should have been aware,
as a reasonable person, of the causal relationship between her injury and her
employment in 2002 or 2003, at or shortly after the time of her first surgery, and
that her condition was serious.
The employer claims the commissioner
employed an incorrect rule, in that the commissioner looked at what Fistler knew,
as opposed to what a reasonable person would know.
Our review of the deputy‘s decision, which was adopted by the
commissioner, shows the correct rule was properly cited and applied. In applying
the rule, the deputy stated, ―The reasonableness of claimant‘s conduct is to be
judged in light of claimant‘s education and intelligence. Claimant must know
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enough about the condition or incident to realize that it is both serious and work
connected.‖3
We conclude the commissioner considered what a reasonable
person in Fistler‘s situation would have known, and not only what Fistler
specifically knew.
In discussing the date of manifestation, we have already discussed the
first two elements of the discovery rule—whether Fistler suffered an injury and
whether her injury was caused by her employment, and found there was
substantial evidence in the record to support the commissioner‘s findings. See
Herrera, 633 N.W.2d at 288. There is also substantial evidence in the record to
support the commissioner‘s findings on the third issue, that it was not until
October 5, 2004, that Fistler, as a reasonable person, knew her physical
condition was ―serious enough to have a permanent adverse impact on [her]
employment or employability.‖ See id.
Fistler‘s first surgery was fairly limited in scope. Fistler testified that in the
first surgery the doctor ―said he was going to go in with just a needle and try to
break up the calcification.‖ She was off work for a short period of time and
returned to work without restrictions. Her second surgery, performed on October
5, 2004, was more extensive. Fistler stated ―the second surgery consisted of
was an open surgery, where he had to cut into the rotator cuff, quite a large cut,
because it was a large calcium deposit that he had to remove.‖ She was off work
3
Fistler had only an eighth grade education. She was fifty-five years old at the time of
the administrative hearing. Her employment history was primarily as a housekeeper or
custodian. See Kuhle v. Lecy Chiropractic, 711 N.W.2d 244, 248 (S.D. 2006) (holding in
a workers‘ compensation case that the claimant‘s education should be taken into
account in determining whether a ―reasonable‖ person would have been on inquiry
notice).
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for a longer period of time after the second surgery, and still had work restrictions
at the time of the administrative hearing.
We conclude there is substantial
evidence in the record to support the commissioner‘s determination that Fistler
first knew she had a serious condition as of October 5, 2004.
We find there is substantial evidence to support the commissioner‘s
findings that the ninety-day notice period for section 85.23, and the two-year
statute of limitations for section 85.26 both began to run on October 5, 2004.
Fistler‘s notice to her employer on October 1, 2004, was within the ninety-day
period. Furthermore, her petition filed on October 10, 2005, was within the twoyear statute of limitations. We affirm the decision of the district court and the
workers‘ compensation commissioner.
AFFIRMED.
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