IN THE COURT OF APPEALS OF IOWA

No. 16-0599

Filed January 25, 2017

CATHY STOWE,

Petitioner-Appellee,

vs.

SECOND INJURY FUND OF IOWA,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.

The Second Injury Fund appeals the district court’s ruling that reversed

the agency’s grant of summary judgment in favor of the Fund, determining the 

agency erred in its conclusion that Stowe was precluded from claiming a hand 

injury based upon a settlement agreement in another case. AFFIRMED.

Thomas J. Miller, Attorney General, and Stephanie J. Copley, Assistant 

Attorney General, for appellant.

Kellie L. Paschke and Troy A. Skinner of Skinner & Paschke, PLLC, 

Waukee, for appellee.

Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
2

DOYLE, Judge.

In 2014, Cathy Stowe entered into a settlement agreement with her 

employer and its insurance carrier wherein the parties agreed Stowe sustained 

an employment injury in December of 2010. The agreement specifically stated:

The injury caused [Stowe] to sustain the following disability 

and resulting entitlement to compensation:

a. Healing period/Temporary total disability for 16 weeks and 

4 days. . . .

b. Temporary partial disability for 0 weeks and 0 days. . . .

c. Permanent partial disability for 49.70% loss of the left 

thumb resulting in 29.82 weeks of compensation under Iowa Code 

section 85.34(2)(a) [(2009)] regarding the following injuries 

sustained by [Stowe]: left thumb.

Attached thereto was evidence “corroborat[ing] this settlement,” including 

medical reports. The settlement was subsequently approved by the Iowa 

Workers’ Compensation Commissioner.

Prior to entering into that settlement agreement, Stowe in December 2013 

filed a petition for arbitration claiming she was entitled to Second Injury Fund 

(Fund) benefits. That petition stated Stowe injured her left hand by way of 

repetitive motion on August 25, 2011. The addendum attached to Stowe’s 

petition indicates her left knee was impaired in September 1993, and her right 

hand was first impaired in May 1996 and then reinjured in August 2009.

After Stowe entered into the settlement agreement with her employer, the 

Fund filed a motion for summary judgment in its case. The Fund argued that 

because Stowe agreed she sustained an injury to her thumb in December 2010 

in the settlement agreement, she was precluded from subsequently asserting in 

its case that she suffered an injury to her hand. Because a thumb injury is not a 

compensable injury under the Second Injury Compensation Act, and because 
3

Stowe was precluded from claiming injury to her hand, which was a compensable 

injury, the Fund argued it was entitled to summary judgment as a matter of law 

and requested Stowe’s petition be dismissed.

Ultimately, the deputy workers’ compensation commissioner agreed, 

granting the motion for summary judgment and dismissing Stowe’s petition. The 

deputy’s ruling explained:

[The Iowa Workers’ Compensation Commissioner has] held a 

claimant who settles his or her case against the employer is bound 

by that settlement. [Stowe] cannot settle her underlying case 

against the employer on the basis of an injury to the thumb and 

then assert a claim against the [Fund] for an injury to the hand.

An injury to the thumb does not trigger liability of the [Fund]. 

As [Stowe] has acknowledged her injury was to her thumb and not 

her hand, there is no genuine issue of material fact.

On appeal, the Iowa Workers’ Compensation Commissioner affirmed and 

adopted the deputy’s ruling.

Stowe subsequently filed a petition for judicial review challenging the 

ruling, and following a hearing, the district court reversed the commissioner’s 

decision. The court found the commissioner erred as a matter of law when he 

concluded the language of Stowe’s settlement agreement precluded her from 

seeking Fund benefits on the basis of a hand injury. The court noted the Fund 

was not a party to the settlement agreement nor was the issue of whether Stowe 

sustained an injury to her hand litigated in that proceeding. The court also found 

no support in the record to substantiate the agency’s finding that Stowe 

acknowledged her injury was not to her hand. Viewing the facts in the light most 

favorable to Stowe, the court concluded a genuine issue of material fact existed 

as to whether the settlement concerned the injury to the thumb, hand, or the 
4

metacarpal joint, and it remanded the matter back to the agency for further 

proceedings.

The Fund appeals the district court’s ruling, asserting the agency did not 

err in its conclusion that Stowe was precluded from claiming a hand injury based 

upon her settlement agreement and therefore correctly granted its motion for 

summary judgment. At oral argument, the Fund conceded that the doctrine of 

issue preclusion does not apply for the reasons found by the district court. See, 

e.g., Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 572 (Iowa 2006) (“Iowa 

law is clear that issue preclusion requires that the issue was ‘actually litigated’ in 

the prior proceeding.”); Leavens v. Second Injury Fund of Iowa, No. 11-1636, 

2012 WL 2411684, at *4 (Iowa Ct. App. June 27, 2012) (concluding that issue 

preclusion was inapplicable because the “Fund was not a party to the settlement 

agreement; it therefore did not have an opportunity to fully and fairly litigate the 

issue of liability”). However, it argued that the doctrine of judicial estoppel barred

Stowe’s claim of a hand injury because it was inconsistent with her statement in 

the other judicial proceeding that she injured her thumb. In response, Stowe 

argued the statements were not inconsistent.

Our review is prescribed by the standards described in Iowa Code chapter 

17A (2013); specifically, the “agency decision itself is reviewed under the 

standards set forth in section 17A.19(10).” Second Injury Fund of Iowa v. 

Kratzer, 778 N.W.2d 42, 45 (Iowa 2010) (citing Iowa Code § 86.26). The district 

court acts in an appellate capacity to correct errors of law on the part of the 

agency. Grundmeyer v. Weyerhaeuser Co., 649 N.W.2d 744, 748 (Iowa 2002). 

On appeal, we review the district court’s judicial review ruling “to determine if we 
5

would reach the same result as the district court in our application of the Act.” 

Second Injury Fund of Iowa v. George, 737 N.W.2d 141, 145 (Iowa 2007). If our 

conclusions are the same, we affirm; otherwise, we reverse. See Mycogen 

Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). Though the theory of judicial 

estoppel was not expressly addressed by the Commissioner or the district court, 

judicial estoppel may be raised at any stage, even the appellate stage, “to protect 

the integrity of the fact-finding process by administrative agencies and courts.” 

Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007). Ultimately, we 

agree with the district court’s reversal of the agency’s ruling.

The doctrine of judicial estoppel “prohibits a party who has successfully 

and unequivocally asserted a position in one proceeding from asserting an 

inconsistent position in a subsequent proceeding,” which may “creat[e] the 

perception that at least one court has been misled.” Id. at 196; see also 28 Am. 

Jur. 2d Estoppel and Waiver § 33 (2d ed. 1990) (“The doctrine of judicial 

estoppel typically applies when, among other things, a party has succeeded in 

persuading a court to accept that party’s earlier position so that judicial 

acceptance of an inconsistent position in a later proceeding would create the 

perception that either the first or the second court has been misled.”). Though 

the doctrine generally cannot be reduced to a simple formula or test, “[a] 

fundamental feature of the doctrine is the successful assertion of the inconsistent 

position in a prior action.” Hedlund, 740 N.W.2d at 196 (citation omitted). In the 

context of propositions, ideas, or beliefs, “inconsistent” means “so related that 

both or all cannot be true or containing parts so related.” Inconsistent, Webster’s 

Third New International Dictionary (2002); see also Green v. City of Cascade, 
6

231 N.W.2d 882, 890 (Iowa 1975) (“[I]nconsistent means ‘incongruous, 

incompatible, irreconcilable.’”). “The view has been expressed in many cases 

that, to give rise to an estoppel, the positions must be not merely different but so 

inconsistent that one necessarily excludes the other.” 28 Am. Jur. 2d Estoppel 

and Waiver § 66; see also, e.g., Esparza v. Kaweah Delta Dist. Hosp., 207 Cal. 

Rptr. 3d 651, 657 (Cal. Ct. App. 2016) (“[S]tatements or allegations of fact are 

‘inconsistent’ when both cannot be true.”); Olson v. Darlington Mut. Ins. Co., 723 

N.W.2d 713, 717 (Wis. Ct. App. 2006) (“For judicial estoppel to apply, the two 

positions must be clearly inconsistent and have more than ‘[t]he mere 

appearance of inconsistency.’” (citation omitted)).

The Fund maintains that stating one has a thumb injury absolutely 

excludes that person from claiming a hand injury; for the Fund, it is an either-or 

proposition, and it relies upon Stumpff v. Second Injury Fund of Iowa, 543 

N.W.2d 904, 905-06 (Iowa 1996). In that case, the Iowa Supreme Court agreed 

with the agency that Stumpff’s first injury to his index finger—a severe fracture at 

the distal aspect of the proximal phalanx—did not trigger the Fund’s liability. See 

Stumpff, 543 N.W.2d at 905-06. The court reasoned that because a finger injury 

and a hand injury were separately identified scheduled injuries in Iowa Code 

section 85.34, the legislature’s use of “hand” in section 85.64 meant it chose not 

to allow a sole finger injury to qualify as a first injury under section 85.64. See id. 

at 906-07. Nevertheless, the court noted that “the loss of a finger or thumb does, 

to some extent, affect the hand,” and it stated a finger injury could qualify as a 

hand injury “when the site of the injury is at the point where the bones of the 

finger connect to the bones of the hand (phalangeal-metacarpal joint).” Id. 
7

Because Stumpff’s injury was to a finger bone and the finger bone only, it did not 

qualify as a first injury for the purpose of Fund liability. See id. at 907.

The Fund argues this case is like Stumpff because Stowe expressly stated 

her injury was to her thumb in the settlement agreement. At oral argument, the 

Fund agreed that although Stowe could have stated she had a hand injury based 

upon the evidence, she did not, converting the issue from a factual one to a legal 

one and ending any further discussion. To claim a hand injury now, the Fund 

asserts, is inconsistent with her agreement, and it argues that to find otherwise 

could lead to a slippery slope where claimants will claim two different injuries to 

seek both industrial disability benefits and Fund benefits. We believe this puts 

form over substance and ignores reality. Under the facts of this case, Stowe’s

claims are not unequivocally inconsistent.

The word “hand” itself generally encompasses more than one’s palm; as 

one medical encyclopedia states, the “hand” is “[t]he body part attached to the 

forearm at the wrist. It includes . . . the fingers (phalanges) with their [fourteen] 

bones.” Taber’s Cyclopedic Medical Dictionary 1003 (Donald Venes ed., 21st 

ed. 2009) (emphasis added); see also id. at 873 (defining “finger” as “[a]ny of the 

five digits of the hand”), 2317 (defining “thumb” as the “short, thick first finger on 

the radial side of the hand, having two phalanges and being opposable to the 

other four digits”). Thus, an injury to the thumb, by itself and without more, does 

not automatically exclude an injury to the hand in ordinary parlance. This is true 

even if she was only compensated for a “thumb” injury. See Gregory v. Second 

Injury Fund of Iowa, 777 N.W.2d 395, 400 (Iowa 2010) (noting “[j]ust as a first 

qualifying injury need not be a work-related injury, the method of calculating 
8

compensation for a first qualifying injury cannot be controlling on [the] issue” of 

whether the injury qualifies as a first injury under section 85.64); see also Second 

Injury Fund of Iowa v. Neer, No. 07-0579, 2009 WL 2514098, at *2 (Iowa Ct. 

App. Aug. 19, 2009) (holding the district court correctly “looked at Neer’s injuries 

to determine if any were a scheduled injury, instead of looking at how she was 

compensated for her injuries”).

Certainly, one can envision circumstances where a settlement agreement 

similar to Stowe’s might be inconsistent with a claimant’s position in the 

proceeding for Fund benefits, such as where the parties to the agreement

explicitly define in it the word “thumb” to exclude a hand injury. Or, similar to 

Wilson v. Liberty Mutual Group, 666 N.W.2d 163, 167 (Iowa 2003), the 

agreement might expressly contain a proposition that is completely contrary to 

and mutually exclusive of the claimant’s latter position, such as an express 

agreement by the parties to the settlement that the claimant did not sustain a 

hand injury. More importantly, like in Stumpff, the evidence attached to the 

agreement might show the claimant’s thumb injury did not extend beyond the 

thumb’s phalanges. See Stumpff, 543 N.W.2d at 905-06. But here, the 

settlement agreement specifically referenced the attached medical 

documentation, which supported a claim of an injury beyond the thumb’s 

phalanges and included the joint between her thumb and hand. Because 

Stumpff makes clear that a finger injury can qualify as a hand injury in certain 

circumstances, see id. at 906-07, Stowe’s settlement agreement did not explicitly 

exclude the possibility of a hand injury, and the medical documentation attached 

to the agreement supports a claim of a hand injury by way of an injury to the joint, 
9

we do not find Stowe’s settlement agreement’s use of the word “thumb” is 

unequivocally inconsistent with her claim of a hand injury for purposes of Fund 

benefits such that the doctrine of judicial estoppel is applicable.

Viewing the evidence in the light most favorable to Stowe, we agree with 

the district court that the agency erred in finding there was no genuine issue of 

material fact such that the Fund was entitled to summary judgment as a matter of 

law based upon Stowe’s settlement agreement. While the agency may ultimately 

determine Stowe did not prove she was entitled to Fund benefits, the evidence 

presented was sufficient to establish a factual issue concerning her claim, and 

Stowe is entitled to present her evidence and have the agency make a 

determination based upon that evidence. For these reasons, we affirm the ruling 

of the district court finding the agency erred in granting the Fund’s motion for 

summary judgment and dismissing Stowe’s petition, and we remand the matter 

back to the agency for further proceedings.

AFFIRMED.