Court of Appeals Holds That Section 85.34(7) Apportionment Provisions Only Apply to Preexisting Disability, Not A Preexisting Condition

Newton Community School District v. Hubbard-McKinney, No. 22-0030 (Iowa App. Feb. 22, 2023)

In this claim, Ms. Hubbard-McKinney suffered an injury to her leg, which resulted in a 9% impairment.  The parties also agreed that of the 9% impairment, 7% of the 9% was attributable to a preexisting condition and 2% was directly caused by the fall at work.  Defendants argued that it was not responsible for that portion of the disability relating to the preexisting condition.  The commissioner rejected this argument and awarded claimant the entire 9% impairment. The Court indicated that the issue was one of apportionment and noted that the pre-2017 case of Warren Props. v. Stewart, 864 N.W.2d 307, 315 (Iowa 2015) referred to 85.34(7) as a rule of apportionment.

On appeal, the employer relied on the language in 85.34(7) that an "employer is not liable for compensating an employee's preexisting disability that arose out of an in the course of employment . . . from causes unrelated to employment."  The Court rejected this argument, finding that the employer's argument conflated preexisting conditions with preexisting disability.  The apportionment provisions apply, according to the Court, only to preexisting disability, which refers "not to a workers' asymptomatic condition, but to the inability to work."  Prior case law, beginning with Rose v. John Deere Ottumwa Works, 76 N.W.2d 756 (Iowa 1956) had recognized and given force to this distinction.  

The Court finds that the 2004 and 2017 amendments to 85.34(7) "chose to apportion only preexisting disability, not preexisting conditions."  In this case, claimant's preexisting knee condition did not constitute a disability, as it was asymptomatic before the work injury and did not produce an ascertainable degree of disability under Floyd v. Quaker Oats.  Since there was no disability, there was nothing to apportion.  The decision of the commissioner was affirmed.

NOTE:  In making this decision, the Court of Appeals indicates that apportionment still exists through 85.34(7), although the mechanics of apportionment were deleted when the legislature deleted section 85.34(7)(2).  By its reference to Floyd and to the "ascertainable degree of disability" prior to the work injury, the Court would appear to be taking apportionment back to the days prior to 2004, when the apportionment scheme was adopted.