                IN THE SUPREME COURT OF IOWA
                                No. 07–1887

                            Filed July 10, 2009


IBP, INC.,

      Appellee,

vs.

LEE BURRESS,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Robert J.

Blink, Judge.



      Employee     challenges   district   court’s   determination   that   his

brucellosis was an occupational disease and not an injury. DECISION

OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT

REVERSED.



      Jason D. Neifert of Max Schott & Associates, P.C., Des Moines, for

appellant.



      Timothy A. Clausen and Sharese Manker of Klass Law Firm, L.L.P.,

Sioux City, for appellee.
                                           2

STREIT, Justice.

       Pigs give us bacon and ham.             They can also give meat packers

brucellosis.    Lee Burress contracted brucellosis while working at IBP,

Inc.’s meat-packing plant. He did not discover he had the disease until

six years after he left IBP’s employment.             Soon thereafter, he filed a

petition for workers’ compensation benefits. The deputy commissioner

determined brucellosis was an injury, not an occupational disease. The

commissioner affirmed. The district court reversed, concluding Burress

suffered from an occupational disease, not an injury.                   The court of

appeals reversed the district court.               Because Burress contracted

brucellosis from a traumatic event, it is an injury, and he is entitled to

benefits under Iowa Code chapter 85 (2009). 1

       I. Background Facts and Proceedings.

       Lee Burress worked at IBP, Inc.’s meat-packing plant from 1987

until 1997. During his first few years working there, Burress worked as

a jowl and side shaver, a hog sticker (killing the hog by sticking a knife in

its throat), and a head dropper (cutting the head off the hog).                  These

positions involved significant contact with hogs and hog blood.                 On at

least one occasion, Burress cut his finger while dropping heads. During
his final eight years at IBP, Burress worked in the trolley room, where he

was responsible for running automated carts to various places within the

plant. Although he did not have much contact with hogs in this position,

he would occasionally come into contact with hog blood. During these

eight years, he cut his finger and elbow and sustained a superficial

puncture wound to his face.              Burress stopped working for IBP in

September 1997.

       1
        No substantive difference exists in the relevant current code sections and those
in force at the time the action arose. Therefore, all references are to the 2009 Iowa
Code unless otherwise indicated.
                                          3

       In July 2003, Burress began experiencing hip pain. The source of

the hip pain was unclear. Burress underwent hip surgery in September

2003 and developed an infection that lasted for several months.                     In

December      2003,     Burress     was    diagnosed      with    brucellosis    with

osteomyelitis. In December 2004, Dr. William Nauseef told Burress he

had contracted brucellosis from hog blood, with skin abrasions being the

most common “portal of entry.”

       On January 3, 2005, Burress filed a workers’ compensation

petition alleging he had developed “chronic infection, hips, bone” as a

result of his “[c]ontact with blood products and tissue from slaughtered

hogs.” In its answer to the petition, IBP alleged the claimed injury is an

occupational disease, not an injury, under Iowa Code chapter 85A, and,

therefore, recovery is barred under section 85A.12. 2

       Following a hearing, the deputy commissioner determined “[s]ince

it is most likely [Burress] contracted brucellosis as a result of trauma,

the injury is an injury under chapter 85, not an occupational disease.”

The deputy commissioner also found Burress did not become “aware of

the probable compensable character of his condition until sometime in

early December of 2004,” and his petition was filed within two years, as
prescribed by chapter 85.         The deputy commissioner awarded Burress

permanent partial disability benefits.

       IBP   filed    an   application    for   rehearing,    which     the   deputy

commissioner denied.           On intra-agency appeal, the commissioner

affirmed and adopted the deputy commissioner’s arbitration decision

with one modification, that Burress met the definition of being




       2Under section 85A.12, an employer is relieved from liability one year after the

worker’s last exposure.
                                       4

permanently and totally disabled and was thus entitled to permanent

total disability benefits. IBP filed a petition for judicial review.

      The district court reversed the agency’s decision, concluding

Burress suffered from an occupational disease, not an injury. The court

determined Burress failed to file his petition within one year after the last

exposure, as required by Iowa Code section 85A.12. Burress appealed.

      We transferred the case to the court of appeals, which reversed the

district court’s decision, finding the commissioner’s determination

Burress had suffered an injury was supported by substantial evidence.

IBP appealed.

      II. Scope of Review.

      We review the commissioner’s legal findings for correction of errors

at law. Iowa Code § 17A.19(10)(c), (m); Perkins v. HEA of Iowa, Inc., 651

N.W.2d 40, 43 (Iowa 2002).         “Our task is to determine whether the

district court, acting in its appellate capacity in these judicial review

proceedings, applied the law correctly.”       Noble v. Lamoni Prods., 512

N.W.2d 290, 292 (Iowa 1994).         We are bound by the commissioner’s

findings of fact so long as those findings are supported by substantial

evidence.   Excel Corp. v. Smithart, 654 N.W.2d 891, 896 (Iowa 2002);

Iowa Code § 17A.19(10)(f).       Under Iowa Code section 17A.19(10), “a

reviewing court may reverse the decision of the workers’ compensation

commissioner if it is unsupported by substantial evidence in the record

or characterized by an abuse of discretion.”         Univ. of Iowa Hosps. &

Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). “ ‘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
                                         5

Code § 17A.19(10)(f)(1).           An abuse of discretion occurs when the

commissioner’s exercise of discretion is “clearly erroneous or rests on

untenable grounds.” Waters, 674 N.W.2d at 96.

       III. Merits.

       Today we must determine whether the brucellosis Burress

contracted is an injury or an occupational disease. The legislature has

set forth two workers’ compensation schemes:               one for injuries under

Iowa Code chapter 85 and one for occupational diseases under chapter

85A.       In order to qualify for workers’ compensation benefits under

chapter 85, the employee must demonstrate “(1) the claimant suffered a

‘personal injury,’ (2) the claimant and the respondent had an employer-

employee relationship, (3) the injury arose out of the employment, and

(4) the injury arose in the course of the employment.” Meyer v. IBP, Inc.,

710 N.W.2d 213, 220 (Iowa 2006).              Comparatively, to recover under

chapter 85A, “the disease must be causally related to the exposure to

harmful conditions of the field of employment,” and “those harmful

conditions must be more prevalent in the employment concerned than in

everyday life or in other occupations.” McSpadden v. Big Ben Coal Co.,

288 N.W.2d 181, 190 (Iowa 1980).

       If Burress suffers from an occupational disease, his claim is barred

by the statute of repose. See Iowa Code § 85A.12 (“An employer shall not

be liable for any compensation for an occupational disease . . . unless

disablement or death results . . . within one year . . . after the last

injurious exposure to such disease in such employment . . . .”) However,

if   his   brucellosis   is   an   injury,   his   claim   is   not   time   barred.

Swartzendruber v. Schimmel, 613 N.W.2d 646, 650 (Iowa 2000) (holding

the two-year statute of limitations under Iowa Code section 85.26 does

not begin to run “until the employee discovers, or should discover in the
                                        6

exercise of diligence, the nature, seriousness, and probable compensable

character of the injury or disease”).

      Thus, whether Burress’ brucellosis is an injury or an occupational

disease is the key issue. Section 85A.8 defines occupational disease:

            Occupational diseases shall be only those diseases
      which arise out of and in the course of the employee’s
      employment. Such diseases shall have a direct causal
      connection with the employment and must have followed as
      a natural incident thereto from injurious exposure
      occasioned by the nature of the employment. Such disease
      must be incidental to the character of the business,
      occupation or process in which the employee was employed
      and not independent of the employment. Such disease need
      not have been foreseen or expected but after its contraction
      it must appear to have had its origin in a risk connected with
      the employment and to have resulted from that source as an
      incident and rational consequence. A disease which follows
      from a hazard to which an employee has or would have been
      equally exposed outside of said occupation is not
      compensable as an occupational disease.

Although section 85A.8 defines occupational disease, chapter 85 does

not adequately define the term “injury.” Under section 85.61(4)(b), the

word “injury” “shall not include a disease unless it shall result from the

injury and they shall not include an occupational disease as defined in

section 85A.8.”

      Our case law has filled the gap and explained the differences

between an occupational disease and an injury.

      “[A]n ‘injury’ is distinguished from a ‘disease’ by virtue of the
      fact that an injury has its origin in a specific identifiable
      trauma or physical occurrence or, in the case of repetitive
      trauma, a series of such occurrences. A disease, on the
      other hand, originates from a source that is neither
      traumatic nor physical . . . .”

Noble, 512 N.W.2d at 295 (quoting Luttrell v. Indus. Comm’n, 507 N.E.2d

533, 541–42 (Ill. App. Ct. 1987)). Thus, the main distinction between an

injury and an occupational disease is the method of contraction.
                                            7
       “The statutory definition describes an occupational disease
       in terms of a worker’s ‘exposure’ to conditions in the
       workplace. . . . The term ‘exposure’ indicates a passive
       relationship between the worker and his work environment
       rather than an event or occurrence, or series of occurrences,
       which constitute injury under the Worker’s Compensation
       Act.”

Id. (quoting Duvall v. ICI Americas, Inc., 621 N.E.2d 1122, 1125 (Ind. Ct.
App.    1993)).       We    have     also       determined   that,   under     certain

circumstances, a disease can be an injury for purposes of chapter 85.

       “The contraction of disease is deemed an injury by accident
       in most states if due to some unexpected or unusual event or
       exposure. Thus, infectious disease may be held accidental if
       the germs gain entrance through a scratch or through
       unexpected or abnormal exposure to infection.”

Perkins, 651 N.W.2d at 43–44 (quoting 3 Arthur Larson & Lex K. Larson,

Larson’s Workmen’s Compensation Law ch. 51, Scope, at 51–1 (2002)). 3
       What types of diseases are strictly occupational diseases and not

injuries is debatable. Prior to 1973, chapter 85A restricted recovery for

occupational diseases to seventeen diseases specifically listed in Iowa

Code section 85A.9 (1971).          See McSpadden, 288 N.W.2d at 190.                In

1973, the legislature repealed that section and broadened the definition

of occupational disease in section 85A.8. Id.; see also 1973 Iowa Acts ch.
144, § 24. Currently, chapter 85A makes reference to only two diseases,

brucellosis in section 85A.11 and pneumoconiosis (the characteristic


       3Iowa’s workers’ compensation statute, Iowa Code section 85.61 (2009), does not
limit compensable injuries to those that are “accidental,” and, therefore, it is broader
than statutes from other states that do contain an “accidental injury” limitation. See
Ford v. Goode, 240 Iowa 1219, 1222, 38 N.W.2d 158, 159 (1949) (interpreting 1946
statutory provision, which is substantially similar to the 2009 provision); see also
Perkins, 651 N.W.2d at 44 (“ ‘The injury to the human body here contemplated must be
something, whether an accident or not, that acts extraneously to the natural processes
of nature, and thereby impairs the health, overcomes, injures, interrupts, or destroys
some function of the body, or otherwise damages or injures a part or all of the body.’ ”
(quoting St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 650–51 (Iowa 2000)) (Emphasis
added.)).
                                    8

fibrotic condition of the lungs caused by the inhalation of dust particles)

in section 85A.13.    Our case law has permitted recovery for allergic

contact dermatitis and lead intoxication under chapter 85A. See Doerfer

Div. of CCA v. Nicol, 359 N.W.2d 428, 432 (Iowa 1984); Frit Indus. v.

Langenwalter, 443 N.W.2d 88, 91 (Iowa Ct. App. 1989).          But see St.

Luke’s Hosp. v. Gray, 604 N.W.2d 646, 652 (Iowa 2000) (allergic

reactions may be considered injuries under chapter 85). In McSpadden,

we noted other states considered the following to be occupational

diseases:   chronic bronchitis, kidney disorder and asthma caused by

inhalation of paint fumes, and pulmonary disease caused by inhalation

of smoke and fumes. McSpadden, 288 N.W.2d at 190–91 n.5. Although

chapter 85A no longer limits recovery for occupational diseases to a

specific schedule, section 85A.8 and our case law             indicate an

occupational disease is generally acquired from repeated exposure to a

toxin in the workplace. See Doerfer, 359 N.W.2d at 432–33.

      Other states have determined that “under proper factual situations

contraction of brucellosis can be characterized as accidental injury”

rather than an occupational disease. Wilson Foods Corp. v. Porter, 612

P.2d 261, 263 (Okla. 1980).        Recognizing that “in spite of being

recognized as a disease, brucellosis can still be categorized as a[n]

accidental personal injury,” the Supreme Court of Oklahoma determined

an employee who contracted brucellosis through cracks in his skin while

working with cowhides had a compensable injury.         Id.; see also Mid-

South Packers, Inc. v. Hanson, 178 So. 2d 689, 691 (Miss. 1965)

(contamination through cuts and scrapes on maintenance worker’s

hands considered to be accidental injury and not an occupational

disease because “contraction of [brucellosis] . . . was an occurrence

which was not expected, designed, or intentionally caused”); Baldwin v.
                                            9

Jensen-Salsbery Labs., 708 P.2d 556, 558 (Kan. Ct. App. 1985)

(brucellosis considered accidental injury where employee cut his hand

and then touched a tool contaminated with brucella).

      Here, the deputy commissioner, whose findings were adopted by

the commissioner, determined Burress’ brucellosis was an injury and not

a disease.

      The evidentiary record indicates [Burress] was exposed to
      brucellosis in an event that occurred unexpectedly. The
      event, most likely a cut to [his] hand and exposure to blood,
      was sudden, traumatic, and of a brief duration. It might be
      said that workers in a hog packing plant have a greater than
      average risk of contracting brucellosis, but that risk is the
      result of risk from a traumatic injury under circumstances
      that result in infection of the disease as a consequence of
      trauma.

IBP contends the commissioner’s decision that Burress’ brucellosis was

an injury, and not an occupational disease, was not supported by

substantial evidence.         Arguing that since Iowa Code section 85A.11

discusses brucellosis, 4 and that Iowa Code section 85.61(4)(b) defines

      4Entitled   “Diagnosis for brucellosis,” section 85A.11 reads

      1. When any employee is clinically diagnosed as having brucellosis
      (undulant fever), it shall not be considered that the employee has the
      disease unless the clinical diagnosis is confirmed by:

             a. A positive blood culture for brucella organisms, or

             b. A positive agglutination test which must be verified by not less
             than two successive positive agglutination tests, each of which
             tests shall be positive in a titer of one to one hundred sixty or
             higher. Said subsequent agglutination tests must be made of
             specimens taken not less than seven nor more than ten days after
             each preceding test.

      2. The specimens for the tests required herein must be taken by a
      licensed practicing physician or osteopathic physician, and immediately
      delivered to the university hygienic laboratory of the Iowa department of
      public health at Iowa City, and each such specimen shall be in a
      container upon which is plainly printed the name and address of the
      subject, the date when the specimen was taken, the name and address of
      the subject’s employer and a certificate by the physician or osteopathic
                                             10

“injury” as excluding occupational diseases, IBP asserts brucellosis can

never be considered an injury under chapter 85.
         First, we disagree with IBP and the district court that brucellosis
can never be an injury. Just because brucellosis is listed in Iowa Code
section 85A.11 does not mean brucellosis is always considered an
occupational disease. Our case law has established that a disease can
be an injury for purposes of chapter 85 when “ ‘the germs gain entrance
through a scratch or through unexpected or abnormal exposure to
infection.’ ” Perkins, 651 N.W.2d at 43–44 (quoting 3 Arthur Larson &
Lex K. Larson, Larson’s Workmen’s Compensation Law ch. 51, Scope, at
51–1).     In Perkins, we determined the employee’s hepatitis C was an
injury because her “infection was linked to a sudden, specific incident of
exposure.” Id. at 43. Such is the case here. It would be inconsistent to
preclude recovery for a disease that was most likely acquired through a
similar unexpected trauma only because section 85A.11 explains how a
diagnosis of brucellosis should be confirmed.                 There is nothing in the
record to indicate that Burress contracted brucellosis through a passive
exposure to conditions in the workplace.                 Noble, 512 N.W.2d at 295.
Burress did not contract brucellosis through prolonged or passive
exposure; it only took one traumatic exposure.                         As the expert’s
description of how brucellosis is acquired indicates, “[t]he portal of entry
[for brucellosis] is through abrasions in skin, most commonly, during


         physician that the physician took the specimen from the named subject
         on the date stated over the physician’s signature and address.

         3. The state hygienic laboratory shall immediately make the test and
         upon completion thereof it shall send a report of the result of such test to
         the physician or osteopathic physician from whom the specimen was
         received and also to the employer.

         4. In the event of a dispute as to whether the employee has brucellosis,
         the matter shall be determined as any other disputed case.
                                       11

handling of infected animals or their carcasses. There is risk of aerosol
transmission in slaughter houses as well, although this appears to be
less common.”
      Further, just because Burress cannot pinpoint when the injury
specifically occurred does not mean he did not suffer an injury. In St.
Luke’s Hospital v. Gray, we determined the employee’s latex allergy to be
an injury despite the fact the employee had not been injured on a specific
date, but rather was exposed to the allergen on a frequent basis in the
course of employment.      604 N.W.2d at 652.       Here, the record reveals
Burress was exposed to a significant amount of hog blood while dropping
heads and sticking hogs and occasionally came into contact with hog
blood in the trolley room.     In all probability, he contracted brucellosis
during one of these incidents. However, because Burress’ brucellosis did
not manifest itself until 2003, six years after his last reported work-
related injury, it is difficult to link contracting the disease to one specific
injury. The states that have considered the contraction of brucellosis an
injury have permitted recovery despite the fact that the claimant was not
able to pinpoint the specific incident of exposure that resulted in
contraction of the disease. See Wilson Foods, 612 P.2d at 263 (employee
who contracted brucellosis through cracks in his skin while working with
cowhides had a compensable injury); Mid-South Packers, 178 So. 2d at
691 (contamination through cuts and scrapes on maintenance worker’s
hands considered to be an accidental injury).
      Our case law reveals that contact with infected blood is an “injury”
under Iowa Code chapter 85. In Perkins, the claimant was infected with
hepatitis C when she was sprayed with blood while working on a patient.
Perkins, 651 N.W.2d at 42.         We determined this “sudden, specific
incident of exposure” to be an injury despite the fact that Perkins was
not “injured” per se.     Id. at 43.    The injury was being doused with
                                     12

infected blood, not being accidentally cut.      Id. at 43–44.      In our case,
Burress testified he was frequently sprayed with and soaked in blood
while shaving and slaughtering hogs.         Should our analysis of whether
Burress sustained an identifiable injury under Iowa Code chapter 85 be
any   different   because   he   sustained    multiple   injuries    (numerous
unexpected contacts with hog blood), none of which he was able to
specifically link to his brucellosis? We doubt our conclusion in Perkins
would have been any different had Perkins come into contact with a
patient’s infected blood on more than one occasion.
      Despite the fact that brucellosis is discussed in chapter 85A, the
record supports the conclusion Burress probably acquired brucellosis
from contact with infected hog blood.         There is substantial evidence
supporting the commissioner’s determination that Burress’ contraction
of brucellosis is an injury, not an occupational disease:               Burress’
testimony indicating various cuts (portals of entry) and frequent contact
with hog blood while working at IBP and the expert’s description of how
brucellosis is usually acquired.      IBP did not present any evidence
indicating Burress had contracted brucellosis in a manner consistent
with the definition of occupational disease in section 85A.8. It simply
relied on the reference to brucellosis in section 85A.11.              There is
substantial evidence in the record supporting the commissioner’s
decision Burress contracted brucellosis from a traumatic occurrence:
the entry of infected hog blood into Burress’ body.
      IV. Conclusion.
      Because Burress contracted brucellosis from a traumatic event, it
is an injury, and not an occupational disease. Therefore, he is entitled to
benefits under Iowa Code chapter 85.
      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED.
