Court of Appeals Applies Tweeten Decision to Cumulative Injury

Tyler v. Tyson Fresh Meats, No 23-0393 (Iowa App Feb. 7, 2024) 

Claimant retired on October 31, 2018 and notified his employer of an alleged cumulative back injury on October 22, 2019.  The commissioner concluded that the claim was barred by section 85.23, as claimant had not notified the employer of his injury in a timely manner.  Claimant's discovery rule argument was rejected,  The district court also rejected the argument.

At the Court of Appeals, claimant argued that the the commissioner erred by not making separate determinations as to when claimant knew the nature, seriousness and compensable character of his injury.  The Court notes this argument, but indicates that following the appeal, the Supreme Court had issued its decision in Tweeten v. Tweeten, 2023 WL 8853036 (Iowa 2023).  The Court concluded that under Tweeten, the issue of whether the application of the discovery rule applied to only one or all three of the elements of the discovery rule "no longer guides the outcome."

The Court then notes that, under Tweeten, the only factor to be considered under the revised versions of 85.23 and 85.26 was whether "the employee know or should have known that the injury was work related."  Because claimant knew his injury was work-related as of the time of his retirement, which claimant acknowledged, the notice of injury was "well outside the ninety-day notice period found in section 85.23."  NOTE that the Court does not grapple with the issue of whether the discovery rule continues to apply in cumulative injury cases, an argument that seemingly was left open in Tweeten.