Opinion
No. 1-285 / 00-1203.
Filed February 6, 2002.
Appeal from the Iowa District Court for Clinton County, JOHN A. NAHRA, Judge.
The respondents appeal the district court's ruling on judicial review reversing a workers' compensation commissioner's decision that denied the petitioner's claim. AFFIRMED.
Peter J. Thill and Mark A. Woollums of Betty, Neuman McMahon, L.L.P., Davenport, for appellants.
James D. Bruhn of Farwell Bruhn, Clinton, for appellee.
Heard by SACKETT, C.J., and VOGEL and VAITHESWARAN, JJ; but decided en banc.
This appeal from a workers compensation ruling raises two issues of timing: (1) whether the one-year statute of repose governing occupational diseases applies to a claim based on a single, traumatic exposure to hepatitis C and (2) whether a two-year statute of limitations governing work-related injuries applies to a claim based on an injury appearing more than five years after exposure. Like the district court, we agree with the industrial commissioner's conclusion that the statute of repose is not triggered, but disagree with her conclusion that the claim is time-barred. Accordingly, we affirm the district court.
I. Background Facts and Proceedings
Diane Perkins worked as a medication assistant for HEA, a residential care facility. In addition to passing out and charting medications, she performed general nurse's aide duties. On October 2, 1990, a shunt in a patient's leg abruptly ruptured, covering Perkins in blood. The blood came into contact with cuts on Perkins' hands and also entered her eyes and mouth. Perkins was informed the patient had hepatitis C and was sent for initial testing. The test result was negative. The tester advised Perkins she would have to be retested in six months and again in a year and told her she would receive notification of the renewed testing dates. Neither the tester nor the employer followed through with this commitment to notify her and, as a result, Perkins was not tested at either of those times.
Perkins did not experience any serious health problems until 1995, when she contracted pneumonia and suffered fatigue and muscle pain. Tests conducted during a November 1995 hospitalization revealed high liver enzymes. In April 1996, Perkins was diagnosed with hepatitis C.
Perkins filed a worker's compensation claim in October 1996. Following an arbitration proceeding, a deputy commissioner awarded Perkins healing period and permanent partial disability benefits. On intra-agency appeal, the industrial commissioner by delegation reversed this decision. The parties sought judicial review. The district court affirmed the commissioner's determination on the statute of repose but reversed her conclusion on the statute of limitations. The parties now seek further judicial review. They contend the commissioner's decision is not supported by substantial evidence in the record as a whole and is affected by errors of law. See Iowa Code § 17A.19(8)(e), (f) (1995).
II. Statute of Repose — Occupational Disease
Our legislature has set forth two workers compensation schemes, one for occupational diseases and one for work-related injuries. See Iowa Code ch. 85A (affording compensation for occupational diseases) and compare Iowa Code ch. 85 (affording compensation for work-related injuries). The two are mutually exclusive. See Iowa Code § 85A.14 (disallowing compensation under occupational disease chapter for work related injuries compensable under chapter 85); § 85.61(4)(b) (stating "occupational disease" is not an "injury").
Iowa Code section 85A.12, pertaining only to occupational diseases, states that an employer shall not be liable for paying benefits resulting from an occupational disease unless disablement occurs "within one year . . . after the last injurious exposure to such disease in such employment. . . ." Iowa Code § 85A.12. This provision sets forth conditions that must exist before a right of compensation under the occupational disease statute arises. Meyer v. Iowa State Penitentiary, 476 N.W.2d 58, 60-61 (Iowa 1991). Therefore, it is a statute of repose rather than a statute of limitations. Id.; Bob McKiness Excavating Grading, Co., v. Morton Bldgs., Inc., 507 N.W.2d 405, 408 (Iowa 1993) (stating statute of repose terminates right of action after certain period of time whether or not there has been an injury). The key question here is whether, under the facts of this case, hepatitis C is an occupational disease triggering Iowa Code section 85A.12. We agree with the commissioner and the district court that it is not.
An"occupational disease" requires threshold proof of a disease that arises "out of and in the course of employment." Iowa Code § 85A.8; Noble v. Lamoni Products, 512 N.W.2d 290, 294 (Iowa 1994). An occupational disease also requires proof of certain causation elements. See McSpadden v. Big Ben Coal Co., 288 N.W.2d 181, 190 (Iowa 1980). The disease must "have a direct causal connection with the employment and must have followed as a natural incident thereto from injurious exposure occasioned by the nature of the employment." Iowa Code § 85A.8; McSpadden, 288 N.W.2d at 190. The disease "must be incidental to the character of the business, occupation or process in which the employee was employed and not independent of the employment." Iowa Code § 85A.8. While the disease need not be forseeable, "it must appear to have had its origin in a risk connected with the employment and to have resulted from that source as an incident and rational consequence." Id. If a disease results from "a hazard to which an employee has or would have been equally exposed outside" the occupation, it is not compensable as an occupational disease. Id.; McSpadden, 288 N.W.2d at 190.
The industrial commissioner concluded Perkins did not sustain an occupational disease within the meaning of Iowa Code section 85A.8. The commissioner reasoned that Perkins's exposure to the hepatitis C virus resulted from a sudden, traumatic and brief episode rather than from long-term proximity to substances, such as asbestos, that were "unavoidably present in certain occupations or industrial processes." The commissioner pointed out that, unlike toxic industrial substances that have traditionally been associated with occupational diseases, hepatitis C is "prevalent in the general population" and the most common forms of transmission "are not associated with work in the healthcare field."
We agree with the district court that the commissioner's determination is supported by substantial evidence in the record as a whole. See Iowa Code § 17A.19(8)(f). It is undisputed hepatitis C is a disease. There is also no question Perkins contracted the disease as a result of on-the-job exposure. What is lacking here are the causal links to Perkins's employment required by Iowa Code section 85A.8 and McSpadden. Perkins did not contract hepatitis C as a result of static exposure to workplace conditions, but through "a specific, identifiable trauma or physical occurrence. . . ." Noble, 512 N.W.2d at 295 (quoting with approval Luttrell v. Industrial Comm'n, 507 N.E.2d 533, 541-42 (Ill.App.Ct. 1987)); McSpadden, 288 N.W.2d at 188 (stating "clinical manifestations of occupational diseases are typically caused by prolonged exposure to hazardous substances.").
HEA's expert testified hepatitis C is a viral disease and no one disagreed with this assessment. AccordCity of Oelwein v. Board of Trustees of the Mun. Fire and Police Retirement System of Iowa, 567 N.W.2d 237, 239 (Iowa Ct. App. 1997).
The parties stipulated to this fact.
Expert witness Dr. LaBrecque testified that the health care work environment itself would not result in exposure to hepatitis C absent contact with a person's blood, bodily fluid or materials or utensils containing those items. While he acknowledged persons working in the health care field have a greater risk of contracting hepatitis C than people outside this field because they are more likely to work around infected people, his opinion at best means that health care workers have an enhanced risk of a traumatic injury that might result in a hepatitis C infection. We agree with the commissioner that his opinion cannot be read to mean "health care workers have a greater than average risk of contracting hepatitis C through means other than trauma."
We believe Dr. LaBrecque's testimony when read as a whole supports the commissioner's determination that hepatitis C is not an occupational disease under the circumstances of this case. Accordingly, the commissioner correctly concluded the statute of repose set forth in Iowa Code section 85A.12 was not triggered and the district court was correct in affirming the agency on this issue.
III. Statute of Limitations — Discovery Rule
The commissioner determined Perkins sustained a work-related injury under chapter 85. HEA does not contest this threshold determination. See St. Luke's Hosp. v. Gray, 604 N.W.2d 646, 650 (Iowa 2000) (noting injury compensable under chapter 85 includes diseases resulting from a "traumatic or other hurt or damage to the health or body of an employee . . ."). Instead, HEA argues that even if Perkins sustained a work-related injury rather than an occupational disease, her claim is barred by Iowa Code section 85.26(1).
Iowa Code section 85.26(1) provides that an action for benefits based on a work-related injury must be commenced "within two years from the date of the occurrence of the injury for which benefits are claimed." Iowa Code § 85.26(1). This limitations period is subject to a discovery rule because "some injuries are not immediately known." Swartzendruber v. Schimmel, 613 N.W.2d 646, 649-50 (Iowa 2000). Under the rule, the two-year period begins to run only when the claimant discovers or in the exercise of reasonable diligence should discover: (1) the nature; (2) the seriousness; and (3) the probable compensable character of the injury or disease. Ranney v. Parawax Co., Inc., 582 N.W.2d 152, 154 (Iowa 1998). The statute is not triggered until the claimant has "actual or imputed knowledge of all three characteristics of the injury or disease." Swartzendruber, 613 N.W.2d at 650. Knowledge is imputed when the claimant is in possession of information that would apprise a reasonable person of the need for further investigation. Ranney, 582 N.W.2d at 155.
Six years elapsed between the date on which Perkins was exposed to hepatitis C and the date on which she filed her workers compensation claim. We must therefore determine whether the discovery rule operated to toll the statute of limitations.
A. Knowledge of Nature of the Injury . Perkins contends she did not know the nature of her injury until April 1996, when she was diagnosed with hepatitis C. HEA counters that Perkins knew of her exposure to hepatitis C shortly after the shunt exploded, and was on inquiry notice of her injury at the point she was advised to retest. The commissioner agreed with HEA. We do not find substantial evidence to support this determination. See Gates v. John Deere Ottumwa Works, 587 N.W.2d 471, 475 (Iowa 1998) (stating question of when a claimant knew or should have known of the discovery rule factors is a fact issue determinable by the industrial commissioner and binding on review if supported by substantial evidence).
Although it is undisputed that Perkins knew she had been exposed to hepatitis C shortly after the shunt exploded, the question here is whether this knowledge of exposure was tantamount to knowledge of an injury. There is no evidence in the record to suggest Perkins knew before April 1996 that she had contracted the hepatitis C disease. Perkins testified she did not know what hepatitis C was at the time the shunt exploded. She further testified she did not know before the explosion that the patient had hepatitis C or that she would need to take precautions around him. Finally, her initial test for hepatitis C was negative.
There is also no evidence to support HEA's claim that Perkins was placed on inquiry notice of an injury when she was advised to retest within six months and again within a year after the initial negative test. As the arbitration decision-maker noted, the onus to obtain retesting was not on Perkins but on the employer. See Iowa Code § 85.27. The record is uncontroverted that the employer failed to satisfy this obligation. The tester told Perkins she would receive notification about follow-up testing at the appropriate time. Perkins never received this notification either from the tester or from the employer. Given the absence of notice and the presence of a negative test result, Perkins reasonably could have concluded she was disease-free. In sum, the record is uncontroverted that Perkins did not know nor could she have known she had the hepatitis C disease until April 1996, when a positive diagnosis was made. Contrast Gates, 587 N.W.2d at 474-5 (noting where claimant suffered cognizable, traumatic injury to back and later manifestation of hip impairment, statute of limitations began to run when claimant became aware of back injury, not when related hip injury appeared).
B. Knowledge of Seriousness of the Injury . Aclaimant must have reason to believe her condition is serious. Swartzendruber, 613 N.W.2d at 650. Although exact knowledge of the condition is not required, if the symptoms indicate no serious trouble, then the seriousness prong has not been met. Id. What constitutes recognition of the seriousness of the injury is fact-specific. Id. Under this standard, the degree of knowledge is predicated on possibility, not probability. Id. As the court in Swartzendruber stated, "if it is reasonably possible an injury is serious enough to be compensable as a disability, the seriousness component of the test is satisfied." Id. at 651.
As Perkins did not know the nature of her condition, it is axiomatic she did not know nor could she have known the seriousness of her condition. Perkins did not begin experiencing significant health problems until late 1995, approximately five years after her exposure to hepatitis C. Her testimony regarding this significantly delayed manifestation of an injury was supported by Dr. LaBrecque, who opined that a large percentage of patients exposed to hepatitis C might not experience symptoms for decades. See Foraker v. Bd. of Supervisors of LSU, 734 So.2d 63 (1999) (noting hepatitis C can remain latent and asymptomatic for decades after the virus enters the body). As there is no evidence to suggest Perkins had actual or imputed knowledge of the possible seriousness of her injury any time before April 1996, the district court correctly rejected the commissioner's finding to the contrary.
C. Knowledge of the Probable Compensable Character of Injury . This prong of the discovery rule test is essentially a causation requirement. See Ranney, 582 N.W.2d at 154. It requires that the claimant know her condition is probably, as opposed to possibly, compensable. See Ranney, 582 N.W.2d at 155.
The record does not contain substantial evidence Perkins knew or should have known within two years of her exposure to hepatitis C that her health problems were caused by that exposure. Perkins knew in 1990 that she was exposed to hepatitis C. She was essentially asymptomatic for five years after her exposure. It was not until the positive test in 1996 that Perkins was able to establish a causal connection between her symptoms and her exposure, providing her with knowledge of the compensable character of her injury. It is precisely this type of case that the discovery rule was designed to address. Swartzendruber, 613 N.W.2d at 650 (stating statute of limitations for latent injury does not begin to run until injury discovered); LeBeau v. Dimig, 446 N.W.2d 800, 802 (Iowa 1989) (noting application of discovery rule to pure latent injury cases was necessary to prevent unfairness of charging a plaintiff with knowledge of facts that were "unknown and inherently unknowable"); Casarez v. NME Hospitals, Inc., 883 S.W.2d 360, 366 (Tex.Ct.App. 1994) (noting that refusal to apply discovery rule to HIV case would encourage lawsuits based on fear of AIDS, even where fear ultimately proved unfounded).
We are not convinced our highest court's recent holdings in Swartzendruber and Ranney mandate a different result. See Swartzendruber, 613 N.W.2d at 650; Ranney, 582 N.W.2d at 155. In both, the claimants had knowledge of their conditions within the limitations period, yet failed to file their claim until the period had expired. Id. For example, Swartzendruber experienced "intense pain and had a difficult time walking" and was told by an orthopedic specialist that his artificial hip was loose. He waited for more than two years after receiving this information to file his workers compensation claim. Swartzendruber, 613 N.W.2d at 650. Similarly, Ranney was diagnosed with Hodgkin's disease in 1985, but did not file his workers compensation claim until 1992. Ranney, 582 N.W.2d at 155. Perkins, in contrast, was neither diagnosed with a disease nor manifested symptoms of the disease within two years after her exposure to hepatitis C. Therefore, she could not have known she had an injury, let alone that it was compensable, and the commissioner's holding to the contrary lacks evidentiary support.
D. Disposition of Statute of Limitations Defense . Because Perkins only learned of the nature, seriousness, and probable compensable character of her injury when she tested positive for hepatitis C test in April 1996, she had two years from the date of that test to file her workers compensation claim. She filed well within that time frame. Therefore, her claim was not time-barred by Iowa Code section 85.26(1) and the commissioner erred in concluding otherwise.
The district court's decision reversing the industrial commissioner is affirmed.
AFFIRMED.
All judges concur except Hecht, who concurs specially, joined by Vaitheswaran, J. VOGEL, HUITINK, and MILLER, JJ., partially dissent.
I join the majority opinion in this case and write to take issue with the dissent's presumption that retesting more than twenty-five weeks after the exposure "would have yielded positive results." I believe this presumption is unsupported in the record. I acknowledge that an expert testified a positive antibody test result would not occur until six to twenty-five weeks after exposure. I interpret this testimony to mean the earliest time one could expect apositive test result would be between the sixth and twenty-fifth weeks after exposure. Although evidence was thus presented with regard to the minimum time lapse before a positive test result might be expected, no evidence was offered tending to prove the latest time after exposure when a positive test might have appeared. The dissent fills this void with a presumption that a positive test would have resulted if Perkins had been retested at any time after the twenty-fifth week. One could imagine an alternative unsupported presumption that a positive antibody test might not have been produced until 48 months after the exposure. The crucial distinction between these unfounded presumptions is that the former would bar Perkins's claim under the dissent's inquiry notice analysis, while the latter would permit it to be heard on the merits.
I join the majority opinion because it advances the important policy underpinnings of the discovery rule. If the rule is not available to preserve a claim under the circumstances of this case, we might as well announce its complete demise.
VAITHESWARAN, J. joins in this special concurrence.
While I concur with the majority's conclusion Perkins suffered an injury rather than contracted an occupational disease, I respectfully dissent with its determination the discovery rule operated to preserve her claim. I believe the record in this case reveals substantial evidence Perkins should have known the nature, seriousness, and probable compensability of her injury shortly after her 1990 exposure. This is largely due to the fact I differ with the majority's classification of Perkins's injury, and with its willingness to absolve Perkins's failure to conduct a reasonable inquiry into her own condition.
There are two types of late-discovered injuries: pure latent injuries and "traumatic event/latent manifestation" cases. Swartzendruber v. Schimmel, 613 N.W.2d 646, 650 (Iowa 2000). For an injury to be purely latent, the claimant must be unaware of her injury or its cause until sometime after the occurrence. Id. In those cases the statute of limitations does not begin to run until the injury is discovered. Id. However, where a traumatic event gives rise to both an immediate injury and a later-discovered injury, the statute begins to run from the time of the initial injury. Id. Where the majority appears to classify Perkins's injury as purely latent in nature, I believe it more properly falls within the realm of a traumatic event/latent manifestation case.
Typical examples of pure latent injuries are occupational diseases and late-appearing side effects from prescription drugs. LeBeau v. Dimig, 446 N.W.2d 800, 802 (Iowa 1989). In these types of cases both the injury and its cause remain undiscovered "until long after the negligent act occurred." Id. (quoting Albertson v. T.J. Stevenson Co., 749 F.2d 223, 230 (5th Cir. 1984)). In this case, however, there is no doubt Perkins was immediately aware of the events constituting her exposure to and contraction of hepatitis C.
Perkins's face was mere inches from a shunt in the patient's leg when it ruptured with such force the blood not only covered Perkins, but sprayed the room around her. Perkins testified the patient's blood was "all over" her body, including her hands, which had several small scratches. She stated the blood entered her eyes, nose and ears, and described herself spitting the blood from her mouth. These undisputed facts encompass a single, isolated, and traumatic event which resulted in both an immediate invasion of infected blood and a later manifestation of hepatitis C. Cf. LeBeau, 446 N.W.2d at 802 (finding a car accident causing both immediate physical injuries and later epileptic seizures to be properly categorized as a traumatic event/latent manifestation case). This stands in sharp contrast to pure latent injury cases, where relevant facts are "unknown and inherently unknowable." Id. (quoting Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282, 1292 (1949)).
I agree Perkins did not know and could not know she had contracted hepatitis C at the moment of her exposure. However, within a short period of time this certified medication assistant, who performed general nursing duties in a medical environment, was informed she had been exposed to hepatitis C, that initial testing was required, and that retesting would be necessary within six months and again in a year. I believe Perkins had facts before her sufficient to place her on inquiry notice, thus triggering a duty of further investigation. See Ranney v. Parawax Co., Inc., 582 N.W.2d 152, 155 (Iowa 1998) (finding claimant in possession of information that would apprise a reasonable person of the need for further investigation is on inquiry notice of any information that would have been disclosed by a reasonably diligent investigation).
The majority finds Perkins could not have been on inquiry notice of the nature of her injury because neither the employer nor the medical facility took steps to remind Perkins when the time for follow-up testing had arrived. However, the central issue when assessing inquiry notice is the claimant's knowledge, which is judged under a test of reasonableness. Swartzendruber, 613 N.W.2d at 650. The duty to investigate arises as soon as a claimant has knowledge sufficient to apprise a reasonable person of the possible compensability of the condition. Id. Following the majority's reasoning effectively adds an additional element to the discovery rule, inappropriately shifting the courts' focus from employee knowledge to employer omissions.
HEA's legal obligation to arrange for the retesting does not negate Perkins's awareness of a possible problem and the knowledge further testing was required. While Perkins may have claimed ignorance of her hepatitis C status, this ignorance was self-inflicted. If she had pursued further testing, as initially advised, she could have discovered her condition.
The parties stipulated Perkins's 1990 exposure resulted in the contraction of hepatitis C, and Perkins's treating physician stated a positive antibody test result would not occur until six to twenty-five weeks post exposure. Perkins admitted in deposition testimony, which was introduced before the deputy commissioner as attachments to both HEA's motion for summary judgment and Perkins's resistance to the motion, that "Medical Associates told us that we would have to be re-tested in six months and again in a year." As both testing times would have occurred more than twenty-five weeks after the exposure, we presume such retesting, if conducted, would have yielded positive results.
Nor am I convinced Perkins could not know the serious nature of her injury unless and until she became symptomatic. The duty to investigate following an injury does not lie dormant until a claimant suffers specified symptoms. See Ranney, 582 N.W.2d at 155 (noting duty is triggered even absent exact knowledge of the nature of the problem). To mandate that inquiry notice cannot be found until symptoms manifest has ramifications beyond the limited factual circumstances of this case. Under the majority's analysis, persons aware they had been exposed to blood containing the human immunodeficiency virus [HIV] and who, through reasonable investigation would have learned they now carried the virus, would nevertheless be deemed unaware of the serious nature of HIV until the development of tell-tale symptoms. We should not advocate for such a result.
See, e.g., Berrios v. Miles, Inc., 574 N.W.2d 677, 680 (Mich.App. 1997) (finding plaintiff discovered his injury when he tested positive for HIV, even though he did not suffer the symptoms associated with acquired immune deficiency syndrome (AIDS) until seven years later). Accord Nelson v. American Nat'l Red Cross, 26 F.3d 193, 197 (C.A.D.C. 1994); Doe v. Cutter Biological, 813 F. Supp. 1547, 1555 (M.D.Fla. 1993), aff'd, 16 F.3d 1231 (C.A.11 1994). See also Casarez v. NME Hospitals, Inc., 883 S.W.2d 360, 365-66 (Tex.App. 1994) (finding cause of action of nurse who contracted HIV while treating AIDS patient did not accrue at time of possible exposure, but did accrue when he knew, or through the exercise of reasonable care and diligence should have known, he had contracted HIV).
Finally, the majority's determination that Perkins could not know the probable compensability of her condition prior to her 1996 diagnosis is based on its conclusion she could not make a causal connection between her symptoms and her hepatitis C contraction until the diagnosis. This in turn relates back to its finding Perkins could not have known she was hepatitis C positive, given her initial negative test result, the employer's lack of diligence in pursuing testing, and her lack of symptoms prior to 1995. I therefore respond to this conclusion as I have to the previous ones. The duty of investigation begins once the claimant, within the context of reasonableness, knows her injury is possibly compensable. Swartzendruber, 613 N.W.2d at 650. I believe for Perkins that time began to run when she would have discovered her condition via the advised follow-up testing. Because substantial evidence supports a finding Perkins was on inquiry notice of the nature, seriousness and probable compensability of her injury more than five years prior to the filing of her claim for benefits, I would find her claim barred by the statute of limitations.
Perkins further argues any claim made prior to the development of symptoms would have been premature, garnering no more than a symbolic judgment. She contends if she had filed a claim prior to her 1995 illness, she would have been precluded from receiving weekly compensation benefits. However, even if her claim had initially resulted in less than full compensation, workers' compensation awards are subject to review-reopening proceedings. See Iowa Code § 86.14(2). This allows for an increase in benefits upon proof of a physical or nonphysical injury-related change in condition or earning capacity. Williamson v. Wellman Fansteel, 595 N.W.2d 803, 805 (Iowa 1999).
HUITINK, and MILLER, JJ., join this partial dissent.