Wagner v. Otis Radio & Elec. Co.

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

Page 751

119 N.W.2d 751

254 Iowa 990

Charles WAGNER, Appellant, v. OTIS RADIO & ELECTRIC COMPANY, Employer, Hartford Accident & Indemnity Company, Insurance Carrier, Appellees.

No. 50820.

Supreme Court of Iowa.

Feb. 12, 1963.

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, 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 ----, 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 rather than defeat, his decision. Hemker v. Drobney, supra; Nicks v. Davenport Produce Co., 254 Iowa ----, 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 increased incapacity due to the original injury, subsequent to the making of the agreement for compensation, which entitled him to additional compensation. Henderson v. Iles, 250 Iowa 787, 793-794, 96 N.W.2d 321, 324, and citations; Rose v. John Deere Ottumwa Works, supra, 247 Iowa 900, 908, 76 N.W.2d 756, 760, and citations. See also Hemker v. Drobney, supra, 253 Iowa ----, 112 N.W.2d 672, 677.

Plaintiff's brief states the principal question presented by the appeal is whether he proved by a preponderance of the evidence disability as a result of the injury greater than that for which he was paid compensation. If this means our question is whether the evidence is sufficient to have warranted an order by the commissioner for increased compensation we think it misconceives the issue upon this appeal. The question here is not whether there is sufficient evidence to warrant a decision the commissioner did not make but whether the decision he did make is warranted by the record. Daggett v. Nebraska-Eastern Express, Inc., supra, 252 Iowa 341, 351, 107 N.W.2d 102, 108; Hemker v. Drobney, supra, 253 Iowa ----, 112 N.W.2d 672, 674; Rubendall v. Brogan Constr. Co., 253 Iowa ----, 113 N.W.2d 265, 268.

It follows from the fact plaintiff had the burden of proof and the other considerations we have referred to that unless it may be said as a matter of law plaintiff was entitled to additional compensation there is insufficient ground for interfering with the decision of the deputy commissioner. Hassebroch v. Weaver Constr. Co., 246 Iowa 622, 627, 67 N.W.2d 549, 552. See also 100 C.J.S. Workmen's Compensation § 763(1), page 1174.

We are satisfied the record before the deputy was such that if trial were to a jury the case should have been submitted to it and we are not justified in disturbing his denial of additional compensation. We think the following brief review of the evidence sufficiently indicates the decision we are called upon to make.

III. Plaintiff worked steadily for defendant as a janitor and helper from April 1, 1953, until he twisted or strained his back November 4, 1957, while moving a barrel filled with powdered chemical weighing 350 pounds. His age was then 56. Following this incident plaintiff sat in a chair until time to go home. He worked the next day but on November 6 reported to defendant's plant superintendent he hurt his back and would go to a doctor. He has not worked since then.

Until he was injured plaintiff had always done mostly heavy labor. As a witness he insists his back had not troubled him before his injury but the pain and discomfort therefrom prevented his doing the only kind of work he was qualified to do. Plaintiff's wife and three former co-workers testify they never heard him complain of his back before November 4, 1957. However, there is a sharp conflict in the testimony on this point. Defendant's general manager, formerly plant superintendent, says plaintiff complained of his back or legs hurting him once or twice a...