Cheri Blake v. Second Injury Fund of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-1382

Filed September 22, 2021

CHERI BLAKE,

Plaintiff-Appellant,

vs.

SECOND INJURY FUND OF IOWA,

Defendant-Appellee.

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Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.

Cheri Blake appeals from the district court order affirming the workers’

compensation commissioner’s denial of her claim against the Second Injury Fund

of Iowa. AFFIRMED.

Andrew W. Bribriesco, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, and Amanda R. Rutherford, Assistant

Attorney General, for appellee.

Considered by Bower, C.J., and Tabor and Ahlers, JJ.

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AHLERS, Judge.

Cheri Blake has been afflicted with Graves’ disease since 2010.1 The

disease causes Blake to experience leg cramps, insomnia, headaches, weight

loss, anxiety, racing heartbeat, rough skin, and blurry vision caused by pressure

behind her eyes. In 2016, she sustained an injury to her right hand at work.

There is no dispute Blake qualified for workers’ compensation benefits

based on the 2016 work injury. The dispute leading to this appeal is whether the

eye problems Blake experiences because of her Graves’ disease are a “first

qualifying injury” within the context of Iowa’s Second Injury Compensation Act.

See Iowa Code §§ 85.63–85.69 (2020). If the eye problems caused by her Graves’

disease are a “first qualifying injury,” Blake is eligible for benefits from the Second

Injury Fund (the Fund). If they are not, she is ineligible for those benefits. The

workers’ compensation commissioner determined the eye problems did not so

qualify and denied Blake’s claim for benefits from the Fund. On judicial review, the

district court affirmed the commissioner’s ruling. Blake appeals.

In our judicial review of an agency’s decision, we apply the standards in

Iowa Code chapter 17A to determine whether we reach the same conclusion as

the district court. Brewer-Strong v. HNI Corp., 913 N.W.2d 235, 242 (Iowa 2018).

In reviewing the workers’ compensation commissioner’s interpretation of Iowa

Code chapter 85, we review for errors at law rather than deferring to the

commissioner’s interpretation. Gumm v. Easter Seal Soc’y of Iowa, Inc., 943

1 The record establishes that Graves’ disease is an immune system disorder

causing overactivity of the thyroid. The disease results in a wide range of

symptoms occurring all over the body.

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N.W.2d 23, 28 (Iowa 2020). We are bound by the commissioner’s factual findings

if they are supported by substantial evidence. Id. Substantial evidence is evidence

that a reasonable mind would find adequate to reach the same conclusion.

Evenson v. Winnebago Indus., Inc., 881 N.W.2d 360, 366 (Iowa 2016).

Before delving into the details of the issue at hand, we provide a brief

overview of second injury funds:

A second injury fund is a special fund established within the

administrative framework of a state workers’ compensation system.

The fund is designed to insure that an employer who hires a

handicapped worker will not be responsible for disability benefits for

a greater disability than actually occurred while the handicapped

worker was employed by that employer, in the event such a worker

suffers a subsequent or second injury on the job. The theory of the

system is that the employer pays only the benefits that are due for

the subsequent or second injury. The employee is nevertheless fully

compensated because the fund pays the difference between the

amount the employee actually receives from the employer for the

second injury and the amount the employee would have received for

the resulting condition if there had been no prior disability.

Harry W. Dahl, The Iowa Second Injury Fund—Time for Change, 39 Drake L. Rev.

101, 102–03 (1989).

Iowa’s version of a second injury fund is found in Iowa Code sections 85.63

through 85.69. The heart of the statutory scheme is found in section 85.64(1),

which states:

If an employee who has previously lost, or lost the use of, one

hand, one arm, one foot, one leg, or one eye, becomes permanently

disabled by a compensable injury which has resulted in the loss of or

loss of use of another such member or organ, the employer shall be

liable only for the degree of disability which would have resulted from

the latter injury if there had been no pre-existing disability. In addition

to such compensation, and after the expiration of the full period

provided by law for the payments thereof by the employer, the

employee shall be paid out of the “Second Injury Fund” created by

this division the remainder of such compensation as would be

payable for the degree of permanent disability involved after first

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deducting from such remainder the compensable value of the

previously lost member or organ.

To establish entitlement to benefits from the Fund under this section, Blake must

prove:

(1) she sustained a permanent disability to a hand, arm, foot, leg, or

eye[2] (a first qualifying injury); (2) she subsequently sustained a

permanent disability to another such member through a work-related

injury (a second qualifying injury); and (3) the permanent disability

resulting from the first and second injuries exceeds the compensable

value of “the previously lost member.”

Gregory v. Second Inj. Fund of Iowa, 777 N.W.2d 395, 398–99 (Iowa 2010). The

fighting issue here is whether Blake proved the first element.

Blake asserts the impairment to her eye caused by her Graves’ disease

constitutes a first qualifying injury because she has “lost the use of” one of her

eyes. The Fund does not claim the first qualifying injury must be traumatic, work-

related, or compensable. Rather, it asserts a first qualifying injury requires a

disability to at least one of the enumerated members, not a disability to the body

as a whole that results in symptoms to one of the enumerated members. Both

parties claim case law supports their position.

Blake asserts Gregory dictates the outcome here. We disagree. In

Gregory, the claimant’s first injury was to her hand—an enumerated member—but

the hand injury also caused shoulder impairment and was therefore compensated

as an nonscheduled injury under section 85.34(2)(u).3 777 N.W.2d at 400. Even

2 Throughout this opinion, we will refer to a hand, arm, foot, leg, or eye as an

“enumerated member.”

3 When Gregory was decided, a shoulder injury was a nonscheduled injury. See

777 N.W.2d at 397. In 2017, the legislature amended Iowa Code section 85.34 to

change a shoulder injury to a scheduled injury. See 2017 Iowa Acts ch. 23, § 7

(codified at Iowa Code § 85.34(2)(n)).

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though the hand injury was combined with disability in unenumerated body parts,

the supreme court determined the hand injury was still a first qualifying injury

because the legislature “did not intend to disadvantage claimants with histories of

more complex combinations of enumerated and unenumerated member injuries.”

Id. at 401. In essence, Gregory held that an injury to an enumerated member

constitutes a first qualifying injury even though the injury also causes impairment

to the body as a whole. In Blake’s case, we have the opposite of the situation in

Gregory—an impairment to the body as a whole that also causes impairment to an

enumerated, scheduled member.4 This factual difference distinguishes Gregory

and makes it inapplicable to this case. Therefore, we look to other authority.

We are not in completely uncharted water when Gregory does not apply, as

there are several cases addressing similar issues that favor the Fund’s position.

In Stumpff v. Second Injury Fund of Iowa, the supreme court determined that an

injury to a finger (an unenumerated member) that also affected the hand (an

enumerated member) did not constitute a first qualifying injury. 543 N.W.2d 904,

4 The commissioner found Blake’s Graves’ disease was an injury to or condition of

the body as a whole, rather than an injury to or condition of her eye. This factual

finding is supported by substantial evidence in the record and is binding on us.

See Gumm, 943 N.W.2d at 28 (holding appellate courts are bound by the factual

findings of the commissioner when supported by substantial evidence). Both

parties agree that Graves’ disease is responsible for Blake’s eye impairment.

Evidence presented supports a finding that Graves’ disease, as a condition that

affects the endocrine system, is considered a permanent impairment to the body

as a whole under the AMA Guides to the Evaluation of Permanent Impairment,

Fifth Edition. Blake herself testified that she suffers from a wide array of symptoms,

only one of which is vision impairment. Blake does not have any work restrictions

due to her eye symptoms and does not receive any treatment for her eyes aside

from the medication she takes to address her Graves’ disease in general. She

also does not wear prescription eyeglasses. This evidence constitutes substantial

evidence supporting the commissioner’s findings.

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906 (Iowa 1996). Following the same logic, Blake’s disability to her body as a

whole that also affects an eye does not constitute a first qualifying injury.

Similarly, our supreme court has expressly rejected the argument that an

unscheduled injury that affects an enumerated member is enough to trigger the

Fund’s liability—the same argument Blake makes here. In Second Injury Fund of

Iowa v. Nelson, the claimant sustained a first qualifying injury to his leg. 544

N.W.2d 258, 262 (Iowa 1995). Later, he sustained an injury to his shoulder that

impaired the functionality of his arm (an enumerated member). Id. The supreme

court rejected the claimant’s argument than an injury that “merely affects a[n

enumerated,] scheduled member” is enough to qualify as an injury that triggers the

Fund’s liability. Id. at 269.

Recognizing the negative impact Nelson has on her claim, Blake tries to

distinguish the case by pointing out that it addressed what constituted a second

qualifying injury, not what constituted a first qualifying injury. We find this

distinction unpersuasive. Section 85.64(1) addresses a first qualifying injury as

one in which the claimant “has previously lost, or lost the use of, one hand, one

arm, one foot, one leg, or one eye,” and then refers to the second qualifying injury

as one “which has resulted in the loss of or loss of use of another such member or

organ.” By the plain language of the statute, first and second qualifying injuries

are determined in the same way. In addition, our supreme court has made it clear

that the reasoning to determine whether a second injury qualifies is the same as

the reasoning to determine whether a first injury qualifies. See Gregory, 777

N.W.2d at 400 (noting the reasoning of what constitutes a second injury is relevant

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to the reasoning of what constitutes a first injury).5 We find the reasoning in Nelson

controlling here, and we conclude Blake’s condition to her body as a whole (i.e.,

Graves’ disease) that “merely affects” an enumerated member does not constitute

a first qualifying injury.

As Blake did not sustain a first qualifying injury, she has not met her burden

to establish the Fund’s liability. As a result, we affirm the district court’s decision

upholding the commissioner’s denial of Blake’s claim against the Fund.

AFFIRMED.

5 There is a difference between the first and second qualifying injuries in that the

second qualifying injury must be a compensable, work-related injury, while the first

qualifying injury does not. Gregory, 777 N.W.2d at 400 (noting “a first qualifying

injury need not be a work-related injury”). However, what constitutes a first and

second injury involves the same analysis. Id.