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Ross v. American Ordnance

Court of Appeals of Iowa

January 11, 2017

HAZEL MAE ROSS, Petitioner-Appellant,
v.
AMERICAN ORDNANCE and NEW HAMPSHIRE INSURANCE COMPANY, Respondents-Appellees.

         Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

         Petitioner appeals the district court decision affirming the workers' compensation commissioner's denial of benefits. AFFIRMED.

          Nicholas G. Pothitakis of Pothitakis Law Firm, P.C., Burlington, for appellant.

          Jean Z. Dickson and Jessica C. Pollmeier of Betty, Neuman & McMahon, P.L.C., Davenport, for appellees.

          Considered by Danilson, C.J., and Mullins and Bower, JJ.

          BOWER, Judge.

         Hazel Ross appeals the district court decision affirming the workers' compensation commissioner's denial of benefits. We find there is sufficient evidence in the record to support the commissioner's determination Ross did not give adequate notice of her injury to her employer within ninety days, as required by Iowa Code section 85.23 (2013), and the ninety-day period was not tolled due to the discovery rule. We affirm the decision of the district court.

         I. Background Facts & Proceedings

         On or about November 1, 2012, while working at American Ordnance, Ross told her supervisor, Scott Wilson, she hurt her shoulder. Wilson asked if she wanted him to call an ambulance or if she wanted to see a doctor, but Ross declined, stating she did not think she was "hurt that bad." Wilson did not fill out an injury report. Ross later stated she injured her right shoulder that day when a box started to fall off the line and she grabbed it to keep it from falling.

         Ross continued to have problems with her shoulder. She saw Dr. Atiba Jackson, two months later, on January 11, 2013, and received a cortisone injection. After a discussion with her foreman, Dino Ganakes, an incident report about the November 1, 2012 injury was made on March 14, 2013. Ross was diagnosed with a torn rotator cuff. Dr. Theron Jameson performed surgery on her right shoulder on July 17, 2013.

         On June 17, 2013, Ross filed a petition requesting workers' compensation benefits. The employer claimed Ross did not give timely notice, as required by section 85.23. In a deposition, held on September 24, 2013, Ross testified she told Wilson, "I hurt my shoulder." At the administrative hearing, held on May 28, 2014, Ross testified she told Wilson, "Scott, a box has fallen, I hurt my shoulder." Wilson testified Ross told him, "Hey, Scott, my shoulder hurts a little bit." When Wilson asked if she was all right, Ross said, "It's just really sore." Wilson stated he "didn't know for sure" whether Ross meant her injury was related to her work activities. During this same conversation Ross reportedly said that she suffered from arthritis and would need to get a prescription refilled. Wilson did not ask Ross whether she was injured while performing her job.

         The deputy workers' compensation commissioner found:

[Ross] told her supervisor that her shoulder was hurting, but she did not tell him that it was related to her employment. The circumstance of the report was not sufficient to tell Mr. Wilson or her employer that the shoulder problem was work related. It is not enough for [Ross] to simply tell her supervisor that she has pain; she needs to tell the employer that she thinks that it is connected to her job, at least in some fashion that would alert the employer that they needed to investigate the work injury. [Ross] did not do that, and thus her claim must fail.

         Ross requested a rehearing, claiming the deputy failed to address whether the discovery rule extended the time for her to report her injury. The deputy determined, "The discovery rule is not applicable here because the claimant testified that she told her supervisor about the injury the day it ...


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