Court of Appeals Reverses Agency, Concludes that Claimant Need Not Prove a Discrete and Distinct Disability to Recover on Cumulative Injury Claim

In Gumm v. Easter Seal Society of Iowa, Inc., No. 18-1051 (Iowa App. May 15, 2019), the Iowa Court of Appeals reversed the decision of the commissioner and district court and held that a claimant was not required to prove a discrete and distinct injury to prove a cumulative injury had occurred. 

Claimant had suffered and injury to her right ankle in 2008 and was provided with a 17% rating for this injury.  She returned to work following the injury.  In 2014, claimant filed another petition, alleging that she had sustained a cumulative injury to the right ankle following her return to work.  The commissioner concluded that claimant had not suffered a distinct and discrete injury and held that under Ellingson, the failure to demonstrate such an injury defeated her claim.  The commissioner found that the deterioration of claimant's ankle condition was a sequella of the initial injury and was not compensable, as claimant was outside the statute on limitations on the initial claim.  The district court affirmed this holding.

On appeal, the court of appeals canvasses the cumulative injury rule and notes that in Floyd v Quaker Oats, the court had indicated that claimant need not demonstrate such a separate and discrete injury to prove a cumulative injury claim.  All that claimant had to prove was that there was an aggravation of a preexisting injury. The Floyd court had distinguished Ellingson by noting that the extent of the earlier injury was being litigated in the same proceeding, which was not the case in Floyd or Gumm.  The court holds:

If a claimant is precluded by the statute of limitations from bringing an original proceeding or review-reopening, the claimant may recover by way of a cumulative injury claim for any increase in functional disability shown to have occurred as the result of day to day activities in the workplace subsequent to the initial injury without having to show he or she suffered a 'distinct and discreet' (sic) disability attributable to the post-original-trauma work activities.

The court finds that claimant did not demonstrate a discrete injury, but did demonstrate.  Nonetheless, relying on Floyd, the court concludes that claimant should be allowed to demonstrate that she suffered a cumulative injury despite the fact that there was no discrete injury.  The case was remanded to the agency for further proceedings.

Judge Mullins dissented, finding that the decision of the majority extended Floyd.  Because of this, it would not be unlikely that a Petition for Further Review would be filed by the employer.

NOTE:  Although the decision uses the word "discreet" to describe the injury, the appropriate word would appear to be the word "discrete", which means "individually separate and distinct."