George A. Hormel & Co. v. Jordan

• Decision Date: 17 September 1997
• Docket Number: No. 96-603,96-603
• Citation: 569 N.W.2d 148
• Parties: GEORGE A. HORMEL & COMPANY, Appellant, v. Gary JORDAN, Appellee.
• Court: Iowa Supreme Court

Page 148

569 N.W.2d 148

GEORGE A. HORMEL & COMPANY, Appellant, v. Gary JORDAN, Appellee.

No. 96-603.

Supreme Court of Iowa.

Sept. 17, 1997.

Rehearing Denied Oct. 16, 1997.

Stephen W. Spencer and Joseph M. Barron of Peddicord, Wharton, Thune & Spencer, P.C., Des Moines, for appellant.

Robert W. Pratt and Max Schott, Des Moines, for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, ANDREASEN, and TERNUS, JJ.

NEUMAN, Justice.

This workers' compensation case involves a laborer who never missed a day of work but over time suffered a cumulative shoulder injury for which he ultimately recovered permanent partial disability benefits for a twenty percent industrial disability. The employer appeals the district court's affirmance of the industrial commissioner's decision, challenging the factual and legal conclusions relating to injury date, notice, statute of limitations, and causation. Finding no error, we affirm.

George A. Hormel & Company (Hormel) hired Gary Jordan in 1984 as a meat processing plant laborer. Jordan worked on the receiving dock where he unloaded semi-trailers filled with boxes of meat weighing sixty to eighty pounds each. He also worked as a "batcher helper" pushing 500-pound carts of meat. This daily routine of heavy lifting and pushing eventually took its toll on Jordan's right shoulder.

Jordan first visited a company physician on September 15, 1988. He was diagnosed as having a subluxating shoulder. ¹ Hormel's report of the incident notes that Jordan sustained a shoulder injury while unloading trucks by grabbing heavy boxes of meat "by the strap with his right arm." While Jordan lost no time from work due to his shoulder injury, he testified that he was constantly stiff and sore. When he raised his arm above shoulder level, it reportedly "clunked" out of alignment, causing excruciating pain. Over the next three years, Jordan saw a series of employer-authorized physicians and therapists, all of whom concurred in the subluxation diagnosis. Various prognoses were made and treatment plans offered; none were effective.

Pertinent to this appeal, Dr. Sinesio Misol examined Jordan's shoulder on October 1, 1991. The orthopedist was the first to rate Jordan's injury, notifying Hormel that "this man has a degree of permanency that I would estimate to be in the area of about 30% of the use of the right upper extremity." Thereafter a licensed physical therapist hired by Hormel rated Jordan's work-related disability as a "24% impairment to the right upper extremity based on the recurrent subluxation and dislocation of the joint."

Relying on the physical therapist's rating, Hormel issued a check to Jordan on January 14, 1992, in the sum of $15,591.60, representing sixty weeks of permanent partial disability benefits. Jordan responded with a request for $4782.41 in interest dating back to September 15, 1988. Hormel contested its liability for interest.

Jordan sought arbitration over the interest dispute. Although his claim for interest cited an injury date of September 15, 1988, his original notice and petition filed with the industrial commissioner alleged an injury date of October 1, 1991. This was, according to Jordan, the date of his "cumulative injury," that is, the date when evidence of an industrial disability became known to him. Hormel ascribed an ulterior motive to this discrepancy in injury dates. It argued that Jordan selected the later date to avoid the two-year statute of limitations in Iowa Code section 85.26(1) (1993), and that based on the earlier date of injury, the claim was time barred. The parties submitted their injury date dispute to the deputy commissioner.

Following a hearing, a deputy industrial commissioner determined that Jordan suffered a work-related cumulative injury which manifested itself on October 1, 1991, when he first learned that his injury was permanent. The deputy also found that Hormel had actual notice of the injury, and that Jordan's claim had been filed within the two-year statutory period of Iowa Code section 85.23. Weighing impairment ratings from four sources, ² the deputy calculated Jordan's industrial disability to the body as a whole at twenty percent, which entitled him to 100 weeks of permanent partial disability at $259.86 per week, or a total of $25,986. The deputy gave Hormel credit for the $15,592 already paid, entering judgment for Jordan in the sum of $10,394. As for interest, the deputy determined that it began accruing on October 1, 1991--the onset of permanency.

Hormel appealed to the industrial commissioner who, in final agency action, affirmed in full the deputy's decision. Hormel then petitioned for judicial review. The district court affirmed the industrial commissioner, and this appeal by Hormel followed.

At the heart of Hormel's appeal is its claim that Jordan's injury is neither cumulative nor work-related. Even if it is, Hormel claims, for purposes of fixing the statutory notification periods, the court--and the industrial commissioner before it--erred when it chose October 1, 1991, instead of September 15, 1988, as the injury date.

I. Scope of Review.

Iowa Code section 17A.19(8) governs our review of appeals from administrative actions. Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 233 (Iowa 1996). Like the district court, we are authorized to grant relief only if the agency's action is affected by error of law, unsupported by substantial evidence in the record, or characterized by abuse of discretion. Id. The industrial commissioner's well-supported factual findings are binding on us, as are the reasonable inferences that may be fairly drawn from disputed evidence in the record. Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 257 (Iowa 1996).

II. Cumulative Injury.

We first recognized the concept of cumulative injury resulting from repetitive physical trauma in the workplace in McKeever Custom Cabinets v. Smith, 379 N.W.2d 368, 372-74 (Iowa 1985). In McKeever we adopted the rule that, in factually appropriate cases, liability exists for disability that gradually develops over a period of time. McKeever, 379 N.W.2d at 373 (citing 1B A. Larson, Workmen's Compensation § 39.10 (1985)). The employee in McKeever, a cabinet maker, quit his job as a result of work-related wrist pain. Although he had suffered two nondisabling injuries, his claim for compensable disability stemmed from years of cumulative trauma to his wrist from hammering and sanding. Because recovery will be barred on any injury not filed within two years of its occurrence, see Iowa Code § 85.26(1), the question became: "when did the 'injury' occur for time-limitation purposes?" Id. at 374. We ruled that the injury occurs when, "because of pain or physical inability, [the employee] can no longer work." Id.

The "missed work" test applied in McKeever proved problematic in a later case, Oscar Mayer Foods Corp. v. Tasler, 483 N.W.2d 824 (Iowa 1992). There an employee suffering a cumulative injury missed no work but suddenly found herself unemployed due to a strike that closed the plant. Citing Larson's treatise on worker's compensation, we found it appropriate in Tasler "to fix the date of injury as of the time at which the 'disability manifests itself.' " Tasler, 483 N.W.2d at 829 (quoting 1B A. Larson, Workmen's Compensation § 39.10 (1991)). We went on to characterize "manifestation" 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. (quoting Belwood Nursing Home v. Industrial Comm'n, 115 Ill.2d 524, 106 Ill.Dec. 235, 238, 505 N.E.2d 1026, 1029 (1987)). Applying this rule, we concluded Tasler's date of injury coincided with the date she was laid off due to the plant closing. Id. at 830.

Our court of appeals applied Tasler in considering the date of cumulative injury in Venenga v. John Deere Component Works, 498 N.W.2d 422 (Iowa App.1993). Venenga, a materials handler and shavings hauler, suffered back pain from heavy lifting and a fall. His condition eventually rendered him unable to work. Venenga, 498 N.W.2d at 423. The district court, affirming the industrial commissioner, determined that Venenga's date of injury corresponded to his first hospitalization for back surgery. Id. at 423-24. The court of appeals reversed, holding that under the Tasler manifestation test, the date of injury fixed by the commissioner predated the time when the claimant, as a reasonable person, knew not only of the injury but of its impact on his employment. Id. at 425. The court reasoned that, because the company had been on strike while Venenga was hospitalized, he had suffered no compensable loss at that time. Only later, when the surgery failed to correct his impairment and Venenga was forced to quit working, did the impact of his injury manifest itself. Id.The court reasoned that mere knowledge of an injury, or receipt of medical care, was an insufficient basis on which to establish the date of injury for purposes of a cumulative-injury claim. Id.

With these cases in mind, we turn to Hormel's arguments on appeal.

A. Date of injury. Hormel contends the court erred in its selection of October 1, 1991 as the injury date because "[Jordan] was quite well aware of the injury and possible work relationship of same as of September 15, 1988." Because this is "an inherently fact-based determination," the agency's findings are entitled to substantial deference. Tasler, 483 N.W.2d at 829. The deputy's determination, however, must rest on the proper legal standard--here, the two-part Tasler manifestation test: the date on which the claimant, as a reasonable person, would be plainly aware of (1) the injury and (2) the causal relationship between the injury and claimant's employment. Id.

Substantial record evidence supports the agency's and district court's conclusion that not until October 1, 1991 did Jordan have knowledge of the...