                   IN THE COURT OF APPEALS OF IOWA

                                 No. 18-2066
                           Filed November 6, 2019


MARIA DEL ROSARIO ROMERO,
     Plaintiff-Appellant,

vs.

CURLY’S FOODS, and SAFETY NATIONAL,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      Maria Del Rosario Romero appeals the district court decision affirming the

workers’ compensation commissioner’s denial of benefits. AFFIRMED.




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

appellant.

      Timothy A. Clausen of Klass Law Firm, L.L.P., Sioux City, for appellees.




      Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
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VAITHESWARAN, Presiding Judge.

       Maria Del Rosario Romero injured her shoulder while working at Curly’s

Foods. Romero filed a claim with the workers’ compensation commission alleging

the injury “to be, at least in substantial part, cumulative in nature, due to her

repetitive/exertional work activities for the employer.”       Following a hearing, a

deputy commissioner found, “Claimant’s direct testimony at hearing pointed to May

2013 as the date claimant began experiencing shoulder difficulties.” The deputy

further found, “[C]laimant . . . knew she suffered from a condition or injury and the

condition or injury was caused by her employment and dated back to May of 2013.”

Finally, the deputy found, “Curly’s did not have notice of claimant’s cumulative

injury until . . . March 28, 2014.” The deputy concluded, “[C]laimant did not tender

notice within 90 days of the date the bilateral shoulder condition manifested itself

in May of 2013,” as required by Iowa Code section 85.23 (2015). Accordingly, the

deputy disallowed the claim. The workers’ compensation commissioner agreed

with the deputy’s decision. On judicial review, the district court affirmed the agency

decision. Romero appealed.

       Iowa Code section 85.231 stated:

               Unless the employer or the employer’s representative shall
       have actual knowledge of the occurrence of an injury received within
       ninety days from the date of the occurrence of the injury, or unless
       the employee or someone on the employee’s behalf or a dependent
       or someone on the dependent’s behalf shall give notice thereof to
       the employer within ninety days from the date of the occurrence of
       the injury, no compensation shall be allowed.

1
 In 2017, the legislature amended the statute to include the following language: “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. Romero’s shoulder injury occurred in 2013.
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The Iowa Supreme Court has construed “the date of the occurrence of the injury”

in multiple opinions over the last several decades. “[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. Under the rule, the date of

injury is “the time at which the disability manifests itself.” Herrera v. IBP, Inc., 633

N.W.2d 284, 287 (Iowa 2001) (quoting Oscar Mayer Foods Corp. v. Tasler, 483

N.W.2d 824, 829 (Iowa 1992)).

       [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 [limitations period
       for giving notice] 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.

Id. at 288 (quoting Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 257 (Iowa

1980)); see Dillinger v. City of Sioux City, 368 N.W.2d 176, 179 (Iowa 1985)

(indicating discovery rule also applies to toll limitations period for notice

requirement contained in section 85.23).         “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.” Herrera, 633

N.W.2d at 288.

       Romero does not challenge the manifestation date. She focuses on the

commissioner’s application of the discovery rule. In her view, “While it may very
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well be correct that [her] cumulative bilateral shoulder injury occurred or

‘manifested’ in May of 2013, as the Agency concluded, the evidence is clear that

[she] did not reasonably discover or know at that time, or at any time before May

of 2014, that her bilateral shoulder injury would cause a ‘permanent adverse

impact’ upon her employment.”

       Romero relies on Larson Manufacturing Company, Inc. v. Thorson, 763

N.W.2d 842, 852–55 (Iowa 2009).          There, the commissioner concluded the

employee’s claims were not barred by the two-year statute of limitations set forth

in section 85.26 “because Thorson did not know, nor should she have known, the

conditions [in 1996] would have a permanent adverse impact on her employment

until she received [a physician’s] report in 2000.” Thorson, 763 N.W.2d at 848–

49. The supreme court affirmed the agency decision. Id. at 855. The court stated,

“Although the record could support a finding of an earlier discovery date, the finding

made by the commissioner is supported by substantial evidence in the record.”

Id.; see also Baker v. Bridgestone/Firestone, 872 N.W.2d 672, 681–82 (Iowa 2015)

(“[The Thorson court] reaffirmed that the phrase ‘permanent adverse impact’

provides an abbreviated or alternative characterization of the three elements of the

discovery rule test: nature, seriousness, and probable compensable character of

the injury.”). As in Thorson, the substantial-evidence standard of review controls

our disposition, but it does not lead to the result Romero seeks. See Iowa Code

§ 17A.19(10)(f).

       The commissioner made the following pertinent findings:

              Claimant concedes she realized her bilateral shoulder
       condition was both work related and serious in May 2013 because
       she testified she reported the condition to defendants at that time.
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       However, Kathy Peterson, defendant-employer’s human resources
       manager, and Kris Carr, defendant-employer’s occupational health
       nurse, both testified claimant never reported her shoulder condition
       to defendants until March 27, 2014. The deputy commissioner
       found Ms. Peterson and Ms. Carr to be more credible than claimant
       on this point and I affirm the deputy commissioner’s finding in that
       regard.

The commissioner determined the case to be “one of those extremely rare cases

where a claim should be barred by a claimant’s failure to comply with the 90-day

notice requirement contained in Iowa Code section 85.23.” In the commissioner’s

view, this was “a fact-specific finding” applicable “only to this case.”

       We find it unnecessary to recap those facts. Suffice it to say that the

commissioner’s findings are supported by substantial evidence. See Arndt v. City

of Le Claire, 728 N.W.2d 389, 394–95 (Iowa 2007) (“It is the commissioner’s duty

as the trier of fact to determine the credibility of the witnesses, weigh the evidence,

and decide the facts in issue. The reviewing court only determines whether

substantial evidence supports a finding according to those witnesses whom the

commissioner believed.” (emphasis in original) (internal citation and quotations

omitted)). We also conclude the commissioner’s application of the discovery rule

to the facts was not irrational, illogical, or wholly unjustifiable. See Jacobson

Transp. Co. v. Harris, 778 N.W.2d 192, 196 (Iowa 2010) (citing Iowa Code

§ 17A.19(10)(m)). Accordingly, the agency decision is affirmed.

       AFFIRMED.
