John Deere Davenport Works v. James D. Dickerson

IN THE COURT OF APPEALS OF IOWA
No. 20-0658
Filed April 14, 2021
JOHN DEERE DAVENPORT WORKS,
Plaintiff-Appellant,
vs.
JAMES D. DICKERSON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.
An employer appeals from a district court ruling affirming the Iowa Workers’
Compensation Commissioner’s denial of its affirmative defense. AFFIRMED.
Troy A. Howell of Lane & Waterman LLP, Davenport, for appellant.
Andrew W. Bribriesco, Bettendorf, for appellee.
Considered by Mullins, P.J., and May and Schumacher, JJ.
2
MAY, Judge.
John Deere Davenport Works (Deere) appeals the district court’s ruling on
Deere’s petition for judicial review of an Iowa Workers’ Compensation
Commissioner’s appeal decision awarding benefits to James Dickerson. We
affirm.
Deere’s appeal focuses on the term “injury” in Iowa Code section 85.23
(2016).1 Section 85.232 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.
Deere claims that because Dickerson did not provide notice of his injury
within ninety days, section 85.23 serves as an affirmative defense against
Dickerson’s claim for benefits. Deere notes the report Dickerson completed,
known as a “Near Miss Report,” only stated he “was working on an unfamiliar
fixture from normal daily task when [he] was moving from one weld to another on
[his] stool and hit [his] head on the fixture.” Deere argues Dickerson’s statement
lacked any claim that he was hurt or damaged.
1 We review legal interpretations of chapter 85 for errors at law. Gumm v. Easter
Seal Soc’y of Iowa, Inc., 943 N.W.2d 23, 28 (Iowa 2020).
2 The legislature amended section 85.23, effective July 1, 2017, to add the
following sentence to the end of the section: “For the purposes of this section, ‘date
of the occurrence of the injury’ means the date that the employee knew or should
have known that the injury was work-related.” See 2017 Iowa Acts ch. 23, § 3
(codified at Iowa Code § 85.23 (Supp. 2017)). The parties agree this amended
version of section 85.23 does not apply to this case. The district court quoted the
amended version of section 85.23, though both parties agree the language added
by the amendment did not impact the district court’s ruling.
3
The district court aptly addressed Deere’s claim. We see no grounds to
improve upon the court’s analysis. As the court explained:
[T]his case comes down to a single question: Did Mr. Dickerson put
Deere on notice of the possibility of a workers’ compensation claim?
The Workers’ Compensation Commissioner believed that he did.
The court agrees.
Both parties believe that Alm v. Morris Barick Cattle Co., 38
N.W.2d 161 (Iowa 1949), supports their position. The key passage
in Alm states:
Complaint is made that no notice of the precise nature
of claimant’s injury was given appellant within 90 days
as required by section 85.23, Code of Iowa, I.C.A. It is
sufficient answer that the statute does not require this.
The form of notice suggested by section 85.24 merely
recites ‘personal injury was sustained,’ giving the date,
name and place employed and point where located
when injury occurred.
[38 N.W.2d] at 163. Mr. Dickerson points out that “no notice of the
precise nature of claimant’s injury” was required. Deere counters
that notice of an “injury” not just an “incident” was required.
Ultimately, the court finds Alm to be of little value because the notice
actually given in that case was not discussed.
Deere directs the Court to McPhee v. Eagle Iron Works,
No. 00-0532, 2001 WL 194776 (Iowa Ct. App. Feb. 28, 2001). This
is an unpublished decision of the Iowa Court of Appeals. It is also
easily distinguished. McPhee claimed that after a verbal dispute, a
co-worker “attempted to run over” McPhee with his vehicle.
[McPhee, 2001 WL 194776,] at *1. There was no allegation that the
vehicle had struck him. More than a year later, McPhee alleged post-
traumatic stress from the incident. Id. at *1. Unlike McPhee,
Mr. Dickerson provided notice that physical contact had occurred.
He “hit [his] head.”
Deere acknowledges that if the Near Miss Report had stated
Mr. Dickerson “hit his head and it hurt” rather than just that he “hit his
head” then the notice of injury would have been sufficient.
Accordingly, it is worth asking whether the Near Miss Report implied
that when Mr. Dickerson hit his head, it hurt.
Deere points out that Mr. Dickerson struck his head nearly
every day at work. Mr. Dickerson did not sustain injuries each day.
Thus, Deere argues, announcing that he struck his head is not the
same as announcing that he sustained an injury. The fact that
Mr. Dickerson often struck his head is a double-edged sword,
however. In these incidents, except for the one at issue in this case,
Mr. Dickerson did not provide any notice to Deere about what
4
happened. Here, he submitted a Near Miss Report. That should
have suggested to Deere that this incident was out of the ordinary.
Deere contends that submitting a Near Miss Report, as
opposed to some other report with an unspecified title, implies that
an injury was not sustained. In other words, an injury was “nearly
obtained.” The only citation in the record that Deere directs the court
to in support of this interpretation of a Near Miss Report comes from
Mr. Dickerson’s deposition testimony.
Q: What is a near miss report?
A: A near miss report at John Deere Davenport
Works is if—not necessarily for an accident, but almost
anything that has a corrective action. It could be
used—It could be used multiple ways. Say your
magnet that you were lifting the hoist up with broke or
for some reason let loose, you would file a near miss
report because that happened. Us on the floor doesn’t
really call it a near miss. You know, it nearly gotcha is
what we call it, but you could use it for multiple things,
like say reporting an accident, reporting truck drivers
not driving—not stopping at stop signs, people, you
know, doing things that are unsafe, so they can figure
out some corrective action to it.
[(Record citation omitted.)] This characterization is not inconsistent
with how Deere describes the report, but it does not go so far as to
prove Deere’s point. It appears this report could be used for many
different things. Submitting one does not mean an injury occurred,
but it likewise does not establish an injury did not occur. This is
particularly true when the incident described is not that Mr. Dickerson
nearly hit his head, but rather that he actually did so. In any event,
given the guidance in Iowa Code § 85.24 that no “particular form” of
notice is required, the court does not believe the title of the document
providing notice should be given much weight.
The fact that a written report was completed, regardless of its
title, put Deere on notice that an incident had occurred and gave it
the opportunity to investigate. “The purpose of section 85.23 is to
alert the employer to the possibility of a claim so that an investigation
of the facts can be made while the information is fresh.” Robinson v.
Dep’t of Transp., 296 N.W.2d 809, 811 (Iowa 1980). Deere was fairly
on notice about the possibility of a claim. If Deere was unclear
whether Mr. Dickerson was injured in the incident, it could have
reached out to him to ask. Deere did not do so.
In sum, when an employee physically strikes his head and
determines that the incident warrants the completion and submission
of a written report, an employer is fairly put on notice that the
employee was likely in some degree of pain. The requirements of
Iowa Code § 85.23 were met.
5
We find no grounds to reverse. We affirm without further opinion.3 See
Iowa Ct. R. 21.26(1)(d).
AFFIRMED.
3 To the extent Deere attempts to challenge the sufficiency of the evidence, its
claim is not preserved for our review because it did not receive a ruling on this
issue from the district court and it did not request a ruling on this claim through an
Iowa Rule of Civil Procedure 1.904(2) motion. See Meier v. Senecaut, 641 N.W.2d
532, 537–38 (Iowa 2002).