Orr v. Lewis Central School Dist.

• Citation: 298 N.W.2d 256
• Decision Date: 12 November 1980
• Docket Number: No. 64118,64118
• Parties: John William ORR, Appellant, v. LEWIS CENTRAL SCHOOL DISTRICT, and Employers Mutual Casualty Company,Appellees.
• Court: United States State Supreme Court of Iowa

Page 256

298 N.W.2d 256

John William ORR, Appellant, v. LEWIS CENTRAL SCHOOL DISTRICT, and Employers Mutual Casualty Company,Appellees.

No. 64118.

Supreme Court of Iowa.

Nov. 12, 1980.

Oscar O. Over of Over, Over & Over, Council Bluffs, for appellant.

R. Ronald Pogge of Hopkins & Huebner, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

The question here is whether the "discovery rule" applies to the two-year period of limitations for original workers' compensation actions under section 85.26, The Code 1975. Claimant John William Orr filed a petition for arbitration in June 1978, seeking benefits for headaches which he alleged he suffered as the result of a work-connected incident in May 1975 when he was struck on the back of the neck by a falling plank. He averred that, despite reasonable diligence, he was unable to determine the headaches were caused by the May 1975 incident until September 1977. Defendant Lewis Central School District and its insurer, defendant Employers Mutual Casualty Company, moved to dismiss the petition on the ground that the action was barred because it was untimely under section 85.26. A deputy industrial commissioner sustained the motion and dismissed the petition. The industrial commissioner affirmed the deputy's ruling. Upon petition for judicial review, the district court affirmed. We reverse and remand to the industrial commissioner.

As explained in Chrischilles v. Griswold, 260 Iowa 453, 463, 150 N.W.2d 94, 100 (1967), the discovery rule delays the accrual of a cause of action until the injured person has in fact discovered his injury or by exercise of reasonable diligence should have discovered it. More specifically, a condition is implied in limitations provisions of most workers' compensation statutes that "(t)he time period for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease." 3 A. Larson Workmen's Compensation § 78.41 at 15-65 to 15-66 (1976). This rule is applicable to the notice of claim provision in section 85.23 of our workers' compensation statute. Robinson v. Department of Transportation, 296 N.W.2d 809, 812 (Iowa 1980).

No issue exists here regarding the sufficiency of claimant's petition to plead a basis for invoking the rule, if it is available under section 85.26. A motion to dismiss should only be sustained if it is certain that the party could not recover under any state of facts which could be proven in support of his claim. Giltner v. Stark, 252 N.W.2d 743, 744 (Iowa 1977). Whether the allegations could actually be proven at trial is a different issue. We are concerned here only with whether the discovery rule is available to a claimant under section 85.26.

I. At the time of the incident in the present case, section 85.26 provided in material part: "No original proceedings for compensation shall be maintained in any case unless such proceedings shall be commenced within two years from the date of the injury causing such death or disability for which benefits are claimed." See § 85.26, The Code 1975.

In Otis v. Parrott, 233 Iowa 1039, 8 N.W.2d 708 (1943), the court held that the injury referred to in section 85.26 is the injury which caused the disability or death rather than the disability or death itself. The court said:

It is reasonable to interpret the word "injury" to mean when "disability occurs" or "compensable injury" where that word stands alone in the statute. But it is not reasonable to so interpret it when the legislature has followed the word "injury" by the words "that caused the death or disability." By these latter words the legislature has designated the injury it means.

Id. at 1042-43, 8 N.W.2d at 711. Otis involved a lapse of time between the date of an accident and the date when tuberculosis was allegedly lighted up by it. The court held that the limitations period started on the date of the accident rather than the date the disease manifested itself.

Subsequently the court was confronted with an analogous problem under section 85.23. In Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 47 N.W.2d 236 (1951), the claimant suffered from incipient tuberculosis which was lighted up by his spray painting of truck bodies for his employer. He did not find out he had the disease until it was diagnosed by his physician approximately two months after he became ill. Notice of claim was given more than ninety days after the events which caused the lighting up of the disease but within ninety days after claimant learned he had it. In material part, section 85.23 provided that workers' compensation would not be allowed unless the employer had actual knowledge of the occurrence or notice be given to the employer "within ninety days after the occurrence of an injury." This court adopted and applied the discovery rule under section 85.23, holding that the ninety-day period in the statute did not begin until the employee found out he had the disease.

As a result of the Otis and Jacques decisions, an employee was excused from giving notice of a compensable injury until he found out about it, but if he did not bring an action on it within two years after the event which caused it, whether he knew about the injury or not, the claim was barred.

It is true section 85.23 starts the notice period with the "occurrence of an injury" whereas section 85.26 started its limitation period "from the date of the injury causing such death or disability for which benefits are claimed." However, to treat this difference in language as justifying a different construction of the statutes is to ignore the rationale in Jacques. The result in Jacques was based on the court's interpretation of the word "injury" which is used in both provisions. The court found the word encompassed non-occupational disease and the "lighting-up" of preexisting disease. It also found the injury within the meaning of section 85.23 "need not arise out of an accident or any special incident." Id. at 552, 47 N.W.2d at 239.

The court then reasoned:

So when we construe the phrase "occurrence of the injury" as the starting point for the ninety-day period in the notice statute we have one word "injury" which has been consistently ... construed to include disease or the lighting up of a preexisting disease when no time or place can be pointed to when and where the employee received the injury....

Since the legislature made disease compensable under its term "injury" then clearly it must have meant the "occurrence" of this type of "injury" was when the employee found out about the disease.... The employee could hardly be held under a duty to notify his employer of a disease of which he had no knowledge.

Id. at 552-53, 47 N.W.2d at 239. The court then approved statements of the discovery rule in cases from other jurisdictions to the effect that an "injury" does not occur within the meaning of workers' compensation statutes until the employee discovers its probable compensable character.

Nothing in section 85.26 precluded the court in Otis from giving the word injury the same interpretation. If "injury" did not occur until the employee discovered its probable compensable character, section 85.26 simply meant the limitations period started with the date of discovery of the probable compensable nature of the injury "causing ... death or disability for which benefits (were) claimed." Injury would thus have the same meaning and occur at the same time under each provision. It is neither reasonable nor necessary to say the legislature intended the word to have one meaning for notice purposes but an entirely different meaning for suit purposes.

In Mousel v. Bituminous Material & Supply Co., 169 N.W.2d 763 (Iowa 1969), the court was asked to give the Jacques interpretation to section 85.26. This was after the court adopted the discovery rule for negligence cases in Chrischilles. The claimant in Mousel had received thermal burns in 1958, causing malignancies which were not diagnosed until 1966. After reviewing the holdings in Otis, Jacques, and Chrischilles, the court distinguished Otis from Jacques on the basis of the difference in language in sections 85.26 and 85.23. Without either adopting or rejecting the discovery rule, the court said: "We are not persuaded the commissioner and district court should be reversed under this record." Id. at 767. The court held the claimant had delayed unreasonably in seeking a diagnosis of his trouble, saying: "Certainly there is no room for a finding he exercised ordinary or reasonable care in this regard. A claimant should not be thus permitted to toll the running of the period of limitations for such an extended time." Id. Hence, instead of deciding whether the discovery rule should be applied under section 85.26, the court merely held the rule would not help the claimant in that case.

We affirmed the applicability of the discovery rule under section 85.23 as recently as our decision in Robinson, but we have not been required to reexamine the holding in Otis since the decision in Mousel.

In the meantime, two events of some significance have occurred. One event is that the discovery rule has been uniformly adopted by courts of other jurisdictions having workers' compensation statutes starting the claim period with the date of injury. In the few jurisdictions where the discovery rule has been rejected, the statutes expressly start the period with the date of accident rather than the date of injury. See A. Larson, supra, § 78.41 at 15-86 to 15-87 ("The number of jurisdictions that are still capable of destroying compensation rights for failure to file a claim at a time when its existence could not reasonably have been known has dwindled to three or four at most-all under statutes dating the period from time of accident rather than the time of injury."). The second significant event is that the legislature...