January 11, 2017
HAZEL MAE ROSS, Petitioner-Appellant,
AMERICAN ORDNANCE and NEW HAMPSHIRE INSURANCE COMPANY, Respondents-Appellees.
from the Iowa District Court for Polk County, Robert B.
appeals the district court decision affirming the
workers' compensation commissioner's denial of
Nicholas G. Pothitakis of Pothitakis Law Firm, P.C.,
Burlington, for appellant.
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.
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.
Background Facts & Proceedings
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.
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.
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.
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.
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
occurred. As such, she cannot contend that she only later
discovered the injury."
appealed the decision of the deputy. The workers'
compensation commissioner found:
[Ross]'s discussion with Mr. Wilson on the day she was
injured was not sufficient to tell Mr. Wilson, or
defendant-employer, that her shoulder problem was
work-related. It was not enough for [Ross] to simply tell her
supervisor she had shoulder pain. [Ross] needed to tell the
employer she thought her shoulder problem was related to her
job. [Ross] needed to alert the employer that it was
necessary to investigate a work-related injury. [Ross] needed
to report the injury as work-related on or before January 29,
2013, 90 days after the injury occurred.
Because [Ross]'s testimony hearing is significantly
different than her deposition testimony, I find [Ross]'s
testimony at the hearing was not credible. I find Mr.
Wilson's testimony at hearing to be credible,
particularly since his testimony is consistent with the
testimony claimant gave during her deposition.
commissioner concluded Ross's claim was barred because
she did not inform the employer she had a work-related injury
within ninety days as required by section 85.23. The
commissioner also concluded the discovery rule did not apply
"because, as a responsible person, claimant should have
recognized the nature, seriousness, and probable compensable
character of the condition as of November 1, 2012, the day
the incident occurred, and claimant should have told her
supervisor it was work related." Finally, the
commissioner found Ross's testimony was not credible and
that Wilson's testimony was consistent with the facts
filed a petition for judicial review. The district court
affirmed the decision of the commissioner, finding there was
substantial evidence in the record to support the
commissioner's conclusion Ross did not tell her employer
she had been injured at work within the ninety-day period.
The court also found the commissioner's decision
regarding the discovery rule was not irrational, illogical,
or wholly unjustifiable because Ross knew the nature,
seriousness, and potential compensability of the injury at
the time of the accident. Ross now appeals the decision of
the district court.
Standard of Review
review the commissioner's legal findings for the
correction of errors at law. IBP, Inc. v. Burress,
779 N.W.2d 210, 213 (Iowa 2010). We are bound by the
commissioner's findings of fact so long as those findings
are supported by substantial evidence. Evenson v.
Winnebago Indus., Inc., 881 N.W.2d 360, 333 (Iowa 2016).
"'Substantial evidence' means the quantity and
quality of evidence that would be deemed sufficient by a
neutral, detached, and reasonable person, to establish the
fact at issue when the consequences resulting from the
establishment of that fact are understood to be serious and
of great importance." Iowa Code § 17A.19(10)(f)(1).
the findings of fact are not challenged, but the claim of
error lies with the agency's interpretation of the
law, 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)
(citing Iowa Code § 17A.19(10)(c)). Furthermore, if
"the claim of error lies with the ultimate
conclusion reached, then 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."
Id. (citing Iowa Code § 17A.19(10)(i), (j)).
"[T]he commissioner as the fact finder has the
responsibility for determining credibility of witnesses, and
we are bound by the commissioner's findings if supported
by substantial evidence." Sherman v. Pella
Corp., 576 N.W.2d 312, 320 (Iowa 1998).
Notice of Injury
claims the workers' compensation commissioner erred in
finding she did not give timely notice of her injury, as
required by section 85.23. Ross states she informed her
supervisor, Wilson, of her injury on the date it occurred,
November 1, 2012. She claims the commissioner improperly
required her to also tell her supervisor the injury was
related to her work. Ross states Wilson had enough
information on November 1, 2012, to realize there was a
possibility she had a work-related injury.
Unless the employer or the employer's representative
shall have actual knowledge of the occurrence of an injury
received within ninety days from the date of the occurrence
of the injury, or unless the employee or someone on the
employee's behalf or a dependent or someone on the
dependent's behalf shall give notice thereof to the
employer within ninety days from the date of the occurrence
of the injury, no compensation shall be allowed.
notice requirement of section 85.23 protects the employer by
insuring he is alerted 'to the possibility of a
claim so that an investigation can be made while the
information is fresh.'" Dillinger v. City of
Sioux City, 368 N.W.2d 176, 180 (Iowa 1985) (citation
omitted). The employer has the burden to show an employee
failed to meet the ninety-day notice provision. IBP,
779 N.W.2d at 219.
the statute, an employee must give the employer notice of an
injury within ninety days, unless the employer has actual
knowledge of the injury. Dillinger, 368 N.W.2d at
179. "Actual knowledge must include information that the
injury might be worked-connected." Johnson v.
Int'l Paper Co., 530 N.W.2d 475, 477 (Iowa Ct. App.
1995). "It requires more than the that the
employer was aware of an employee's illness."
Id. The actual knowledge provision requires an
employer to have "actual knowledge of the reasonable
possibility of an injury that was work-connected."
Dillinger, 368 N.W.2d at 181.
the commissioner properly determined Ross needed to do more
than just tell her employer her shoulder was sore. There is
substantial evidence in the record to support the
commissioner's finding the employer did not have actual
knowledge of a reasonable possibility Ross's injury was
related to her work, especially given the credibility
findings made by the commissioner. Ross told Wilson, her
supervisor, her shoulder was sore and did not tell him there
was a reasonable possibility her condition was connected to
her work. We affirm the conclusions of the commissioner and
the district court finding Ross did not adequately give
notice of her injury, as required by section 85.23.
claims the commissioner should have determined she gave
timely notice under section 85.23 due to the application of
the discovery rule. "Under the discovery rule, the time
within which a proceeding must be commenced does not begin to
run until the claimant, as a responsible person, should
recognize the nature, seriousness, and probable compensable
character of the condition." Johnson v. Heartland
Specialty Foods, 672 N.W.2d 326, 328 (Iowa 2003). The
discovery rule may be applied to the notice requirement in
section 85.23. IBP, 779 N.W.2d at 218. Ross claims
she knew she was injured on November 1, 2012, and the injury
was related to her work, but she did not know the seriousness
and probable compensable character of her injury at that
issue, the commissioner found:
I find that the 90-day notice requirement was not tolled
because [Ross] actually did feel compelled to tell her
supervisor about the incident so she could receive help with
her job duties, which clearly indicates [Ross] should have
understood the seriousness of the problem. Unfortunately, for
whatever reason, when [Ross] reported her condition she
failed to tell her supervisor it was work-related.
commissioner further found Ross was not a credible witness.
judicial review, the district court found at the time of the
injury, "[t]he resulting pain was serious enough for
[Ross] to tell her supervisor she was in pain." The
court found, "It is rational, logical, and justifiable
to reason that those facts indicate she knew the nature and
seriousness of the injury at the time of the accident."
The court also found Ross had prior experience with
workers' compensation, and therefore, knew or should have
known of the potential compensability of her injury. The
court concluded the commissioner's application of the law
to the facts was not irrational, illogical, or wholly
sufficiently recognized the nature, seriousness, and probable
compensable character of her condition so she informed her
supervisor at the time of her injury. See Johnson,
672 N.W.2d at 328. The notice to her supervisor was not
adequate under section 85.23, however, because she did not
inform the employer of the reasonable possibility her
condition was related to her work. See Dillinger,
368 N.W.2d at 181. We concur in the district court's
conclusion the commissioner's application of the law to
the facts was not irrational, illogical, or wholly
affirm the decision of the workers' compensation
commissioner and the district court.
Mullins, J., concurs; Danilson, C.J., dissents.
DANILSON, Chief Judge (dissenting).
respectfully dissent. Ross told her supervisor, "Scott,
a box has fallen, I hurt my shoulder." At the time, she
was at work and working on a line. Notwithstanding Ross'
testimony, Wilson contended that "from what [he could]
remember, " he was not told about and did not know the
cause of her injury. Wilson acknowledged he asked Ross if she
wanted him to call an ambulance or wanted to see a doctor. I
find Wilson's response to the notice of injury to be much
akin to Sgt. Schultz's well-known quote from the
television series "Hogan's Heroes"-"I see
nothing, I know nothing!"
conclude sufficient notice was provided to the employer and
reverse. These facts are distinguishable from the facts in
Johnson v. International Paper Co., 530 N.W.2d 475,
477 (Iowa Ct. App. 1995), where the employee simply told the
supervisor he was experiencing leg pain. Here, Ross said she
was hurt while working, and Wilson even offered to call for
an ambulance and asked if Ross wanted to see a doctor.
 Bernard Fein and Albert Ruddy,
creators. Hogan's Heroes (CBS television series