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Herrera v. IBP9/6/2001
t Herrera discovered her injury sometime after this date, thereby rendering her petition, filed two years later, timely.
V. Conclusion and Disposition.
A cumulative injury occurs when a reasonable employee would plainly be aware that he or she suffers from a condition or injury causally related to his or her employment. Under this test, we conclude there is substantial evidence to support the commissioner's finding that this awareness occurred on March 31, 1993, when Herrera saw Dr. Dean and was told she had a repetitive use condition caused by her work.
Notwithstanding our conclusion that the commissioner correctly determined that Herrera's cumulative injury occurred more than two years before she filed her petition for benefits on May 5, 1995, we reverse the commissioner's ruling that Herrera's claim for benefits was untimely. There is not substantial evidence in the record to support a finding that Herrera knew or should have known before May 5, 1993 that her injury was serious. Therefore, Herrera discovered her injury within two years of filing her petition, thereby satisfying the two-year statute of limitations imposed by section 85.26.
We affirm the district court's reversal of the commissioner's dismissal of Herrera's petition. We remand for further proceedings consistent with this opinion.
AFFIRMED AND REMANDED.
All justices concur except Neuman, J., who concurs in result only. Snell, S.J., participates in lieu of Streit, J., who takes no part.
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