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Swartzendruber v. Schimmel12/13/1999
Appeal from the Iowa District Court for Johnson County, Larry J. Conmey, Judge.
The petitioner appeals from the district court's ruling on judicial review upholding the Industrial Commissioner's summary judgment in favor of the employer and workers' compensation insurance carrier.
I. Background Facts and Proceedings.
Plaintiff Philip Swartzendruber ("Swartzendruber") underwent hip prosthesis surgery in 1985. Thereafter he experienced periodic hip and back pain which caused him to limp and use a cane intermittently. Swartzendruber's medical records evidence the prosthesis was found to be "loose" in February of 1992. Notwithstanding this physical impairment, he was able to continue to work.
On Friday, January 7, 1994, Swartzendruber "faced" shelves for his employer for several hours. The work required him to get down on his knees approximately fifteen to twenty times. By the time his shift ended, he was experiencing pain in the back and hip. Swartzendruber described the pain as "basically the same kind of pain . . . just more intense" than the pain he'd had intermittently since the 1985 hip replacement surgery. Early the next morning, he was examined at a hospital emergency room. X-rays were taken, and Swartzendruber was informed his artificial hip "was loose." He testified he attributed the problem to the work he had done for the employer the night before. Swartzendruber called the employer and informed him he might not be able to be at work on the following Monday, January 10, 1994. Emergency room personnel instructed Swartzendruber to schedule an appointment with an orthopedic surgeon, and he did. The orthopedic specialist who examined Swartzendruber on January 13, 1994, advised hip surgery.
Swartzendruber filed his original notice and petition with the Iowa Industrial Commissioner on January 12, 1996. Defendant employer and workers' compensation insurance carrier filed a motion for summary judgment contending Swartzendruber's claim had expired pursuant to the applicable statute of limitation. See Iowa Code § 85.26(1) (1999). Swartzendruber resisted the motion, claiming he knew he had sustained an injury on January 7, 1994, but he did not know the seriousness of the injury until the orthopedic specialist advised surgery on January 13, 1994.
The industrial commissioner granted summary judgment. Swartzendruber sought judicial review. The district court affirmed the decision of the agency. Swartzendruber appeals.
II. Standard of Review.
Our review of a summary judgment granted in an administrative agency is for errors of law. John Deere Dubuque Works v. Meyers, 410 N.W.2d 255, 256 (Iowa 1987); Iowa Code § 17A.19(8)(3) (1999).
III. Discovery Rule.
The "discovery rule" applies to the two-year period of limitations for original workers' compensation actions under Iowa Code section 85.26 (1999). Orr v. Lewis Cent. Sch. Dist., 298 N.W.2d 256, 261 (1980). Under the rule, the period of limitations does not begin to run until the claimant knows of his injury and its probable compensable nature. Id. The "date of injury" is not necessarily the same as the date when the claimant knows of the "probable compensability" of the injury. In Dillinger v. City of Sioux City, 368 N.W.2d 176 (Iowa 1985), the claimant injured his back while lifting in the course of his employment as a meter man for the city's water department. He was diagnosed with degenerative intervertebral disc disease which did not prevent him from continuing to work for the city. Approximately two years later, Dillinger fell from a ladder into a pit and reported a resulting low back injury to the employer on October 8, 1975. Though
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