Neifert, Byrne & Ozga, P.C.

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Wednesday, January 11, 2017

Court of Appeals Affirms Dismissal of Claim on Notice, Statute of Limitations Grounds

The Court of Appeals affirmed the decision of the commissioner dismissing claimant's case on grounds of lack of notice and statute of limitations.  Ross v. American Ordnance, No. 16-0787 (Iowa App. Jan. 11, 2017).

Claimant hurt her shoulder on November 1, 2012 and told her supervisor about this injury.  She was asked whether she needed to see a doctor but claimant indicated she was not hurt that bad.  She did not fill out an injury report.  She continued to have problems with her shoulder and saw a doctor for a cortisone injection on January 11, 2013.  An incident report was made on March 14, 2013 and claimant was diagnosed with a rotator cuff tear and later had surgery.

At hearing, claimant testified that she told her supervisor she had hurt her shoulder.  The supervisor testified that claimant told him her shoulder "hurts a little bit."  He was not sure claimant was relating her injury to work and did not ask whether she was injured while working.  The deputy concluded that since the claimant did not specifically indicate that the problem was work related, her claim failed.  Claimant filed a request for rehearing, indicating that the deputy had not determined claimant's discovery rule issue.  The deputy found the discovery rule didn't apply because claimant told her supervisor about the injury on the day it occurred.  On appeal, the commissioner affirmed, finding that claimant's hearing testimony was significantly different than her deposition testimony and finding claimant not credible and her supervisor credible.  The commissioner found that claimant should have recognized the nature, seriousness and probable compensable character of the injury on the day the injury occurred.  The district court affirmed.

The Court of Appeals indicates that section 85.23 protects the employer by insuring he is alerted to the possibility of a claim so that an investigation can be made.  The court noted that actual knowledge of the injury must include knowledge that the injury might be work connected.  The court concluded that there was substantial evidence to support the contention that the employer did not have actual knowledge of the injury.  The court does not discuss the employer's duty to investigate with respect to the actual knowledge claim.

On the discovery rule issue, the district court found that it was rational and logical for the claimant to know the nature and seriousness of the injury at the time it occurred, given the fact that she told the supervisor she was in pain.  The Court of Appeals concludes the the commissioner's application of the law to the facts was not irrational, illogical or wholly unjustifiable.

Judge Danilson dissented.  She indicated that claimant had told her supervisor that a box had fallen and she had hurt her shoulder.  Here, claimant had indicated that a box fell and was asked whether she needed to see a doctor.  She found the supervisor's response to the 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."  Judge Danilson would have found that claimant had provided proper notice.

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