Gumm v. Easter Seal Soc'y of Iowa, Inc.

• Decision Date: 01 May 2020
• Docket Number: No. 18-1051,18-1051
• Citation: 943 N.W.2d 23
• Parties: Anita GUMM, Appellant, v. EASTER SEAL SOCIETY OF IOWA, INC., American Compensation, Ins. Co., and SFM Companies, Appellees.
• Court: Iowa Supreme Court

943 N.W.2d 23

Anita GUMM, Appellant,

v.EASTER SEAL SOCIETY OF IOWA, INC., American Compensation, Ins. Co., and SFM Companies, Appellees.

No. 18-1051

Supreme Court of Iowa.

Filed May 1, 2020

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 Companies.

Thomas D. Wolle of Simmons Perrine Moyer Bergman PLC, Cedar Rapids, for appellee American Compensation Ins. Co.

MANSFIELD, Justice.

This case presents the question whether a workers’ compensation claimant who receives disability benefits for a traumatic injury can later recover disability benefits on a separate cumulative injury claim if the cumulative injury is based solely on aggravation of the earlier traumatic injury. Normally a claimant in this situation can ask that the earlier traumatic injury claim be reopened. Here the claimant was unable to pursue review-reopening because the three-year statute of limitations for review-reopening had passed.

Like the workers’ compensation commissioner and the district court, we conclude that a separate cumulative injury claim is not available in these circumstances. Such a claim would allow the employee to bypass the parameters for review-reopening established by our legislature. It would also be inconsistent with our precedent. See generally Ellingson v. Fleetguard, Inc. , 599 N.W.2d 440 (Iowa 1999), overruled on other grounds by Waldinger Corp. v. Mettler , 817 N.W.2d 1, 8 (Iowa 2012). Accordingly, we vacate the decision of the court of appeals, which ruled to the contrary. Instead, we affirm the order of the district court denying the claimant’s petition for judicial review.

I. Facts and Procedural History.

Anita Gumm began employment as a custodian with Easter Seal Society of Iowa in April 2008.¹ At that time, Gumm was fifty-six years old. She possessed a ninth-grade education, and her prior work experience consisted of laundry work, housekeeping, and janitorial tasks. Gumm’s duties at Easter Seals required her to stand on her feet and walk most of the day, and her job description required her to be able to "bend, stoop, twist, and lift, as well as move a minimum of 80 pounds."

While working on October 28, 2008, Gumm slipped on wet grass and fractured her right ankle. She was taken to the emergency room where she underwent a procedure and was referred to a podiatrist, Dr. Eric Barp, D.P.M. Gumm remained in Dr. Barp’s care for the rest of the timeline in this case. Dr. Barp performed an open reduction and internal fixation (ORIF) on Gumm. By December 11, Dr. Barp opined that Gumm was doing well and "had radiographically healed." On January 15, 2009, Dr. Barp found Gumm had reached maximum medical improvement (MMI), and released her to return to full work activity with no restrictions. Dr. Barp later opined Gumm sustained a permanent impairment of seventeen percent of her lower extremity as a result of the October 28, 2008 injury. He also noted she might eventually need to have hardware surgically removed from her ankle.

Easter Seals paid Gumm 37.4 weeks of permanent partial disability benefits based on Dr. Barp’s rating. The last payment occurred on May 21, 2010.

Unfortunately, Gumm continued to suffer right ankle pain for years, and had to undergo multiple surgeries and procedures. On April 22, 2010, Gumm saw Dr. Barp for pain and stiffness in her right ankle. X-rays showed the fracture had properly healed, but as Dr. Barp had predicted, he needed to surgically remove the hardware from Gumm’s ankle. Following that surgery, on May 19, Gumm returned to full work activity with no restrictions. But at a follow-up appointment on June 22, Gumm reported she still had ankle pain that "came and went."

Approximately a year and a half later, on January 30, 2012, Gumm returned to Dr. Barp with right foot pain. Dr. Barp opined that the pain could be a coincidence or the result of Gumm altering her gait because she had been compensating for her ankle pain. On March 6, Gumm reported pain in her right ankle, foot and toes. The ankle hurt during the workday to the point where she sometimes dragged her right foot to avoid bearing weight on it. Dr. Barp treated her with an injection. About a month later, Gumm reported that the injection had relieved some of her pain, but her pain was still so severe at times she could not walk. On April 11, Dr. Barp performed an ankle arthroscopy

. Based on the surgery, Dr. Barp diagnosed that Gumm suffered from "posttraumatic arthritis of the ankle following [her 2008] ORIF and had developed synovitis." After a brief period of limited work activity, Gumm returned to full work activity on May 3 with no restrictions.

On June 1, Gumm reported continued issues with her ankle. Dr. Barp directed Gumm to take anti-inflammatory drugs. One month later, Gumm felt no pain and was doing well. Dr. Barp opined Gumm had completely healed and "thus warrant[ed] no additional rating of permanent impairment."

The following year, on May 16, 2013, Gumm disclosed to Dr. Barp that she had been suffering from right ankle pain for months. X-rays showed she had degenerative joint disease

. Dr. Barp treated her with an injection. The injection provided limited relief, and a CT scan showed she had posttraumatic degenerative manifestations. Meanwhile, in August 2013, Gumm provided notice to Easter Seals that she intended to retire on February 28, 2014, upon reaching sixty-two years old.

On October 23, 2013, Dr. Barp performed arthroscopic right ankle arthrodesis

with fluoroscopy fusion surgery. Gumm took FMLA leave and eventually returned to work on January 13, 2014. Dr. Barp restricted her to four-to-five hours of work per day. Later that month, Gumm saw a personal physician, Bradley Meyer, D.O., who stated Gumm’s lower back pain had worsened since her return to work on January 13. He believed much of the lower back and shoulder pain stemmed from her compensating for her right ankle pain. Dr. Meyer treated Gumm, referred her to physical therapy, and excused her from work from January 24 through February 16.

On February 14, 2014, Gumm disclosed to Dr. Barp that her ankle "felt good," but she had lower back pain and pain in her right knee. Like Dr. Meyer, Dr. Barp concluded this pain resulted from gait changes Gumm had made in response to her ankle pain and arthrodesis

surgery. Dr. Barp told Gumm to undergo physical therapy and, for the first time, imposed work restrictions, specifically against mopping and lifting anything over five pounds. When Gumm returned to work, Easter Seals could not accommodate her restrictions.

Consistent with the notice she had given Easter Seals the previous August, Gumm retired from Easter Seals on February 28.

In April, Gumm began receiving Social Security Disability benefits (SSDI) of $661.00 per month. In July, she began working as a housekeeper for an assisted living center, cleaning resident rooms and restrooms. She was still working there on the date of her workers’ compensation hearing. The work was less physically demanding than what she had to perform for Easter Seals.

On February 24, Gumm filed two workers’ compensation petitions. In the first petition, she claimed she had sustained an acute injury on October 28, 2008, and admitted the injury’s statute of limitations window had expired. See Iowa Code § 85.26 (2007). In the second petition, Gumm claimed she had sustained a cumulative injury with three potential injury dates: March 6, 2012, May 16, 2013, or January 15, 2014. Gumm sought compensation for permanent industrial disability benefits, medical benefits, and costs.

The deputy commissioner heard Gumm’s case on March 12, 2015. On February 18, 2016, the deputy filed her arbitration decision. She found Gumm had sustained sequelae

to her October 28, 2008 injury but not a distinct and discrete injury thereafter. As she explained, "Dr. Barp’s opinion does not establish claimant suffered disability gradually, reaching an injurious condition at some later point. Rather, Dr. Barp’s opinion confirms claimant suffered an injury and disability, and through further work activities, the disability increased." The deputy went on,

[Claimant’s] 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 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 complains as a result of an altered gait follow arthrodesis ; these complaints also reflect sequelae of the original October 28, 2008 injury and are not distinct cumulative injuries.

Accordingly, the deputy commissioner declined to award benefits for the asserted cumulative injury with injury dates of March 6, 2012, May 16, 2013, or January 15, 2014.

Gumm brought an interagency appeal, and on October 12, 2017, the commissioner filed an appeal decision adopting the deputy’s findings of fact. The commissioner also affirmed the deputy’s determination that Gumm had failed to establish a distinct and discrete cumulative injury.

Gumm timely sought judicial review. After receiving briefs and hearing argument, the district court entered an order on May 16, 2018, that upheld the commissioner’s ruling and dismissed Gumm’s petition.

Gumm appealed, and we transferred the case to the court of appeals. On May 15, 2019, a divided panel of our court of appeals reversed the district court and remanded for further proceedings. The court of appeals majority reasoned that Floyd v....