119 N.W.2d 751 (Iowa 1963), 50820, Wagner v. Otis Radio & Elec. Co.

Docket Nº:50820.
Citation:119 N.W.2d 751, 254 Iowa 990
Party Name:Charles WAGNER, Appellant, v. OTIS RADIO & ELECTRIC COMPANY, Employer, Hartford Accident & Indemnity Company, Insurance Carrier, Appellees.
Case Date:February 12, 1963
Court:Supreme Court of Iowa

Page 751

119 N.W.2d 751 (Iowa 1963)

254 Iowa 990

Charles WAGNER, Appellant,


OTIS RADIO & ELECTRIC COMPANY, Employer, Hartford Accident & Indemnity Company, Insurance Carrier, Appellees.

No. 50820.

Supreme Court of Iowa.

February 12, 1963

Page 752

       [254 Iowa 992] Fred S. Nordenson, Sioux City, and Patrick J. Morrow, Onawa, for appellant.

       Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellees.

       GARFIELD, Chief Justice.

       Plaintiff Wagner injured his back November 4, 1957, while working for defendant Otis Radio & Electric Company. A memorandum of agreement for workmen's compensation was filed with the industrial commissioner, pursuant to section 86.13, Code 1958, I.C.A., on July 22, 1958, and evidently was approved by him. Under this agreement plaintiff was paid compensation 26 weeks at $32 per week, $832 in all. November 12, 1958, plaintiff filed with the commissioner his application for review-reopening under Code section 86.34, I.C.A. claiming he suffered greater disability than compensated for and was entitled to further compensation. Deputy commissioner Warren L. Huebner heard the application March 14, 1960, and denied it. Upon plaintiff's appeal to the district court the order was affirmed. From the judgment of affirmance plaintiff has appealed to us.

       I. Section 86.34 provides any award for payments or agreement for settlement made under Code chapter 86, where the amount has not been commuted, may be reviewed by the commissioner or his deputy at the request of the employer or employee and if, on such review, the commissioner finds the employee's condition warrants such action he may end, diminish or increase the compensation so awarded or agreed upon. Appeal to the district court from any such decision of the commissioner or deputy is also provided for.

       We have held a decision on review pursuant to 86.34 depends upon the condition of the employee found to exist subsequent to the date of the award or agreement under review. Increased incapacity of the employee, due to the original injury, [254 Iowa 993] subsequent to the making of such award or agreement entitles the employee to additional compensation under 86.34. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 905-906, 76 N.W.2d 756, 759, and citations; Bousfield v. Sisters of Mercy, 249 Iowa 64, 68-69, 86 N.W.2d 109, 112-113; 101 C.J.S. Workmen's Compensation § 854c, pages 210-213; Iowa Law of Workmen's Compensation by Professor Willard L. Boyd and others, pages 106-107.

       II. So far as pertinent here, Code section 86.30, I.C.A. states any order or decision of the commissioner may be modified, reversed, or set aside on appeal '3. If the facts found by the commissioner do not support the order or decree.' or '4. If there is not sufficient competent evidence * * * to warrant * * * the order or decision.' Plaintiff's appeals to the district court and to this court are based on these two statutory grounds.

       We have repeatedly construed these provisions as making the commissioner's findings of fact conclusive on appeal where the evidence is in dispute or reasonable minds may differ on the inferences fairly to be drawn from the facts. Such findings have the standing of a jury verdict. That is, if the evidence presents a question which should be submitted to a jury, if trial were to a jury, then the court is bound by the commissioner's findings. This is true even though the court might arrive at a different conclusion from the evidence. Daggett v. Nebraska-Eastern Express, Inc., 252 Iowa 341, 347, 107 N.W.2d 102, 106, and citations; Hemker v. Drobney, 253 Iowa 421, 112 N.W.2d 672, 673-674, and citations.

       It is the commissioner, not the court, who weighs the evidence. Citations last above; Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299, 301.

       The commissioner's findings will be broadly and liberally construed and to uphold,

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rather than defeat, his decision. Hemker v. Drobney, supra; Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 812, 815, and citations; 100 C.J.S. Workmen's Compensation §§ 757, 763(2), pages 1145, 1175-1177.

       Plaintiff had the burden of showing by a preponderance of the evidence before the deputy commissioner that he suffered [254 Iowa 994] increased incapacity due to the original injury, subsequent to the making...

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