Court of Appeals Affirms Dismissal of Claim Premised on Failure to Provide Timely Notice in Discovery Rule Case

In Romero v. Curly's Foods, No. 18-2066 (Iowa App. Nov. 6, 2019), the Court of Appeals affirmed the dismissal of a claim on notice grounds.  Claimant had alleged a cumulative injury and urged that she did not appreciate the permanent impact on employment until just before she notified defendants of the injury.  The commissioner concluded that claimant realized that the injury was work related and serious in May of 2013 because she argued she reported the injury to defendants at that time.  Defendants argued that notification had not occurred until 2014.  On the facts of the case, the commissioner concluded that claimant had not notified defendants in a timely manner.  The commissioner also noted that this was a fact specific finding, applicable only to this case.  

Rather than delve into the question of when claimant appreciated that the injury would have a permanent impact on employment, the court finds that the commissioner's findings were supported by substantial evidence.  Because of this, the case was different than cases such as Thorson, 763 NW2d 842 (Iowa 2009) and  Baker, 872 NW2d 672 (Iowa 2015) because in those cases the commissioner had ruled in favor of claimant on the facts.

Because the court concluded that the agency was supported by substantial evidence, the dismissal of the case on notice grounds was affirmed.  As noted above, however, the court did not address the question of whether claimant was aware of the permanent impact on employment at the earlier date.  Apparently, the court found this subsumed within the conclusion that the injury was work related and serious.  The court also does not address the fact that claimant's injury was continuous in nature and that the cumulative injury was ongoing.  Romero was handled by Jamie Byrne of Neifert, Byrne & Ozga.