Newton Community School District v. Hubbard-McKinney

IN THE COURT OF APPEALS OF IOWA

No. 22-0030
Filed February 22, 2023

NEWTON COMMUNITY SCHOOL DISTRICT and EMCASCO INSURANCE
COMPANY,
Petitioners-Appellants,

vs.

CASSIDY HUBBARD-McKINNEY,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.

An employer and its insurer appeal a judicial review decision affirming the

workers’ compensation commissioner’s award of benefits to an employee.

AFFIRMED.

D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des

Moines, for appellants.

Richard R. Schmidt of Mueller, Berg, & Schmidt, P.L.L.C., Des Moines, for

appellee.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2

AHLERS, Presiding Judge.

The facts of this workers’ compensation appeal are largely undisputed. In

2018, Cassidy Hubbard-McKinney fell and injured her left knee while working for

Newton Community School District (the school). The parties agree that the injury

arose out of and in the course of her employment, the injury caused permanent

disability, and the injury is a scheduled injury to Hubbard-McKinney’s leg. See

Iowa Code § 85.34(2)(p) (2018) (providing for 220 weeks of benefits for loss of a

leg). They also agree that Hubbard-McKinney sustained a nine percent permanent

impairment to her leg using the appropriate guides to the evaluation of permanent

impairment published by the American Medical Association.1 They even agree

that, of the nine percent impairment, seven percent is attributable to aggravation

of preexisting degenerative conditions of Hubbard-McKinney’s knee and the

additional two percent was directly caused by the fall at work. They disagree on

whether the school is responsible for the aggravation of the preexisting condition,

which led to contested proceedings before the workers’ compensation commission

and on judicial review. So, the issue is one of apportionment. See Warren Props.

v. Stewart, 864 N.W.2d 307, 315 (Iowa 2015) (referring to Iowa Code

section 85.34(7) as a “statutory rule of apportionment”).

Following a contested hearing, a deputy workers’ compensation

1 See Iowa Code § 85.34(2)(x) (requiring use of the guides published by the
American Medical Association in determining percentage of impairment); Iowa
Admin. Code r. 876–2.4 (“The Guides to the Evaluation of Permanent Impairment,
Fifth Edition, published by the American Medical Association are adopted for
determining the extent of loss or percentage of impairment for permanent partial
disabilities and payment of weekly compensation for permanent partial scheduled
injuries under Iowa Code section 85.34(2) not involving a determination of
reduction in an employee’s earning capacity.”).
3

commissioner assessed the evidence—which included conflicting expert

opinions—and concluded that the workplace fall aggravated Hubbard-McKinney’s

underlying, preexisting degenerative conditions that had previously been

asymptomatic. As a result, the deputy found that Hubbard-McKinney was entitled

to compensation for the entire nine percent permanent impairment to her left leg.

On intra-agency appeal, the workers’ compensation commissioner affirmed the

deputy. The school petitioned for judicial review, and the district court affirmed the

commissioner’s ruling. The school appeals.

On appeal, the school does not challenge any of the factual findings made

by the commissioner.2 Nor does it challenge case law prior to 2017 that allows an

employee to recover for preexisting conditions when the conditions were

aggravated, accelerated, worsened, or “lit up” due to the injury. See, e.g., Rose v.

John Deere Ottumwa Works, 76 N.W.2d 756, 761 (Iowa 1956) (“If plaintiff was

diseased and his condition was aggravated, accelerated, worsened or ‘lighted up’

by the injury so it resulted in the disability found to exist plaintiff was entitled to

recover.”). Instead, the school relies entirely on a legislative change to Iowa Code

section 85.34(7) in support of its contention that the school is not responsible for

the seven percent impairment related to preexisting degenerative conditions

regardless of whether they were aggravated by the work fall.

2 At the hearing before the deputy commissioner, the school contested whether
Hubbard-McKinney’s preexisting degenerative conditions in her leg were
symptomatic before the fall. Having lost that contest before the agency, on appeal,
the school accepts the finding that Hubbard-McKinney’s knee was asymptomatic
before the fall.
4

Before getting to the legislative change and the parties’ arguments, we first

address the standard of review. To the extent this case calls on us to interpret

Iowa Code chapter 85, “the question on review is whether the agency’s

interpretation was erroneous, and we may substitute our interpretation for the

agency’s.” Meyer v. IBP, Inc., 710 N.W.2d 213, 219 (Iowa 2006); see Iowa Code

§ 17A.19(10)(c). To the extent we are called to review the commissioner’s ultimate

conclusion, the challenge is to the agency’s application of the law to the facts, “and

the question on review is whether the agency abused its discretion by, for example,

employing wholly irrational reasoning or ignoring important and relevant evidence.”

Meyer, 710 N.W.2d at 219; see Iowa Code § 17A.19(10)(i), (j).

Turning to the legislative change, Iowa Code section 85.34(7) was adopted

in 2004 and amended in 2017. See Warren Props., 864 N.W.2d at 313 (detailing

the history of apportionment leading up to the legislature’s adoption of

section 85.34(7) in 2004). The effective date of the 2017 amendment was prior to

Hubbard-McKinney’s injury. See 2017 Iowa Acts ch. 23, § 24. To highlight the

amendments, we provide the pre-amendment 2004 text with the 2017 deletions

from that text shown by strike-throughs and additions to that text shown by

underline:

a. An employer is fully liable for compensating all only that portion
of an employee’s disability that arises out of and in the course of the
employee’s employment with the employer. and that relates to the
injury that serves as the basis for the employees claim for
compensation under this chapter, or chapter 85A, 85B, or 86. An
employer is not liable for compensating an employee’s pre-existing
disability that arose out of and in the course of employment from a
prior injury with the employer, to the extent that the employee’s pre-
existing disability has already been compensated under this chapter,
or chapter 85A, 85B, or 86. An employer is not liable for
compensating an employee’s pre-existing disability that arose out of
5

and in the course of employment with a different employer or from
causes unrelated to employment.
b. (1) If an injured employee has a pre-existing disability that was
caused by a prior injury arising out of and in the course of
employment with the same employer, and the pre-existing disability
was compensable under the same paragraph of subsection 2 as the
employee’s present injury, the employer is liable for the combined
disability that is caused by the injuries, measured in relation to the
employees condition immediately prior to the first injury. In this
instance, the employer’s liability for the combined disability shall be
considered to be already partially satisfied to the extent of the
percentage of disability for which the employee was previously
compensated by the employer.
(2) If, however, an employer is liable to an employee for a combined
disability that is payable under subsection 2, paragraph “u”, and the
employee has a pre-existing disability that causes the employee’s
earnings to be less at the time of the present injury than if the prior
injury had not occurred, the employer’s liability for the combined
disability shall be considered to be already partially satisfied to the
extent of the percentage of disability for which the employee was
previously compensated by the employer minus the percentage that
the employee’s earnings are less at the time of the present injury
than if the prior injury had not occurred.
c. A successor employer shall be considered to be the same
employer if the employee became part of the successor employer’s
workforce through a merger, purchase, or other transaction that
assumes the employee into the successor employer’s workforce
without substantially changing the nature of the employee’s
employment.

See 2017 Iowa Acts ch. 23, §§ 13, 14.

The school contends this legislative change negates compensability for the

seven percent impairment attributable to Hubbard-McKinney’s preexisting

degenerative condition of her knee that was aggravated by the work fall. In support

of this contention, the school relies on the language “[a]n employer is not liable for

compensating an employee’s preexisting disability that arose out of and in the

course of employment . . . from causes unrelated to employment.” Iowa Code

§ 85.35(7).
6

The deficiency in the school’s argument is that it conflates preexisting

condition with preexisting disability. Our workers’ compensation statute and case

law tell us they are not the same. As noted, the apportionment provisions of

section 85.34(7) only apply to preexisting “disability.” Although disability is not

specifically defined in chapter 85, looking at the chapter as a whole provides insight

into the term’s meaning. See Save Our Stadiums v. Des Moines Indep. Cmty. Sch.

Dist., 982 N.W.2d 139, 144 (Iowa 2022) (“We interpret statutes as a whole.”).

Section 85.33(2) defines disability in reference to temporary partial or total

disability as “the condition of an employee for whom it is medically indicated that

the employee is not capable of returning to employment substantially similar to the

employment in which the employee was engaged at the time of injury.” This

definition informs us that disability within the context of chapter 85 refers not to a

worker’s asymptomatic condition, but to the inability to work.

This distinction between condition and disability is also recognized by our

case law. In Floyd v. Quaker Oats, our supreme court described the distinction as

follows:

Ever since Rose v. John Deere Ottumwa Works, 76 N.W.2d
756 (1956), our law has recognized the distinction between
preexisting conditions and preexisting disability. Full compensation
is allowed for the result of workplace activities aggravating a
preexisting condition. Thus, for the apportionment rule to be applied
in situations in which apportionment would otherwise be proper, the
preexisting injury must have independently produced a discreet and
ascertainable degree of disability. In other words, it must be shown
that a particular percentage of permanent disability would have
resulted from the prior event acting alone.
7

646 N.W.2d 105, 110 (Iowa 2002) (internal citations omitted).3 While Floyd

predated the adoption of the apportionment provisions of section 85.34(7) in 2004

(and the amendment in 2017), we assume the legislature is familiar with the

existing state of the law when it enacts new legislation. See Victoriano v. City of

Waterloo, ___ N.W.2d ___, ___, 2023 WL 115162, at *2 (Iowa 2023). As noted in

the passage from Floyd above, the distinction between preexisting conditions and

preexisting disability has been made at least since the Rose decision in 1956. Yet,

in adopting the apportionment provisions of section 85.34(7) in 2004 and then

amending them in 2017, the legislature chose to apportion only preexisting

disability, not preexisting conditions. This tells us that the legislature intended to

3 This distinction is also recognized by Larson’s Workers’ Compensation Law, a
respected treatise in this area of the law. See Bluml v. Dee Jay’s Inc., 920 N.W.2d
82, 92 (Iowa 2018) (Waterman, J., dissenting) (recognizing Larson’s as a
“respected treatise”). Larson’s notes that, when considering apportionment
statutes:
[I]t is important to distinguish such prior disability (which means the
kind of definite loss of a member, or permanent impairment of the
body, that would be recognized as a disability for compensation
purposes if work-connected) from prior predisposing weakness or
disease which, although not disabling at the time of injury, is
precipitated by the industrial injury and contributes to its effects.
8 Arthur Larson et al., Larson’s Workers’ Comp. Law ch. 90, at 90-1 (2022). The
treatise goes on to note:
Nothing is better established in compensation law than the rule that,
when industrial injury precipitates disability from a latent prior
condition, . . . the entire disability is compensable, and except in
states having special statutes on aggravation of disease, no attempt
is made to weigh the relative contribution of the accident and the
preexisting condition to the final disability or death. Apportionment
does not apply in such cases, nor in any case in which the prior
condition was not a disability in the compensation sense.
Id. § 90.04[1], at 90-8 (footnotes omitted). As a concluding comment on the topic,
the treatise notes that “[t]o be apportionable, then, an impairment must have been
independently producing some degree of disability before the accident, and must
be continuing to operate as a source of disability after the accident.” Id. § 90.04[3],
at 90-10.
8

continue the distinction between preexisting condition and preexisting disability.

Here, Hubbard-McKinney’s preexisting knee condition did not constitute a

disability, as it was asymptomatic, did not interfere with her ability to work, and had

not “produced a discreet and ascertainable degree of disability.” See Floyd, 646

N.W.2d at 110. Having no disability within the meaning of the workers’

compensation statute, the school was not entitled to reduce Hubbard-McKinney’s

workers’ compensation benefits due to her preexisting, asymptomatic condition

when her fall at work aggravated that condition to result in a nine percent

impairment to her leg. The commissioner was correct in granting benefits to

Hubbard-McKinney based on the full nine percent of her scheduled member

disability, and the district court was correct to affirm the commissioner’s ruling.

AFFIRMED.