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 preexisting 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.