                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0787
                             Filed January 11, 2017


HAZEL MAE ROSS,
    Petitioner-Appellant,

vs.

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.
                                           2


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,
                                         3


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 occurred. As

such, she cannot contend that she only later discovered the injury.”

       Ross 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
                                          4


       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.

The 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 shown.

       Ross 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.

       II.     Standard of Review

       We 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
                                        5


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).

      “If 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).

      III.   Notice of Injury

      Ross 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,
                                        6


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.

       Section 85.23 provides:

              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.

“[T]he 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.

       Under 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.
                                         7


      We find 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.

      IV.    Discovery Rule

      Ross 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 time.

      On this 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,
                                              8


        when [Ross] reported her condition she failed to tell her supervisor
        it was work-related.

The commissioner further found Ross was not a credible witness.

        On 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 unjustifiable.

        Ross 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 unjustifiable.

        We affirm the decision of the workers’ compensation commissioner and

the district court.

        AFFIRMED.

        Mullins, J., concurs; Danilson, C.J., dissents.
                                        9


DANILSON, Chief Judge (dissenting).

      I 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!”1

      I would 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.




1
  Bernard Fein and Albert Ruddy, creators.   Hogan’s Heroes (CBS television series
1965-1971).
