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Swartzendruber v. Schimmel12/13/1999
he experienced back pain for two or three days after the 1975 fall, Dillinger continued to work until pain forced him to terminate his employment in April of 1977. He underwent lower back surgery in December of 1977, and commenced a worker's compensation contested case proceeding in April of 1978. The industrial commissioner dismissed Dillinger's claim on the ground it was not filed within the applicable limitations period. In a per curiam opinion, the Iowa Supreme Court reversed in light of its ruling in Orr. On remand, the industrial commissioner again dismissed Dillinger's claim, this time on the ground he had failed to comply with the notice provisions of Iowa Code section 85.23 by giving a second notice to the employer within ninety days after he knew of the probable compensability of the October 8, 1975 injury. Id. at 179. On judicial review, the district court reversed the agency and held a second notice to the employer was not required. The supreme court affirmed the district court and observed:
Claimant had a back injury in 1973 which hurt from time to time until he fell into the pit. He recalled that his back hurt for two or three days. The pain subsided, and he continued to work. The finder of fact could determine that the employee, as a reasonable person, did not recognize the nature, seriousness and probable compensable characteristics of his injury or disease until within two years of the commencement of his proceedings. Whether the employee possessed such knowledge the day he reported the accident is an issue of fact. Id. at 182.
Summary judgment is appropriate only if there exists no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Iowa R. Civ. P. 237(c); see Farm Bureau Mut. Ins. Co. v. Milne, 424 N.W.2d 422, 423 (Iowa 1988). The moving party has the burden to show the nonexistence of a material fact. Milne, 424 N.W.2d at 423. The evidence must be viewed in the light most favorable to the resisting party. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). The procedure is functionally akin to a directed verdict, and every legitimate inference that reasonably can be deduced from the evidence should be afforded the resisting party. Id.; Sherwood v. Nissen, 179 N.W.2d 336, 339 (Iowa 1970).
The record in this case does contain a genuine issue of material fact as to the date when Swartzendruber knew of the probable compensability of his injury. Like the claimant in Dillinger, Swartzendruber had a pre-existing physical infirmity which intermittently caused pain. In an affidavit in support of his resistance to the motion for summary judgment, Swartzendruber specifically stated he did not understand the seriousness of the injury until January 13, 1994, when the orthopedic surgeon told him he needed hip surgery. When this and other evidence in the record is viewed in the light most favorable to Swartzendruber, a reasonable fact finder could find that, until January 13, 1994, the claimant - a lay person without medical training - believed the pain in his hip and back amounted to a mere exacerbation of his pre-existing chronic hip pain condition; and the exacerbation would promptly subside without significant loss of work time or earning capacity as it had on other occasions since the 1973 injury. Where the evidence in the record before the agency and the district court would support a fact finding Swartzendruber didn't know the seriousness of the injury until January 13, 1994, a date within two years of the filing of the original notice and petition with the agency, it was error to grant summary judgment in favor of the employer and insurance carrier. We remand this action to the Iowa Workers' Compensation Commissioner f
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