                   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
                                           4

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
                                           6


       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.
                                           10


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.
