Anderson v. Oscar Mayer & Co.
| Decision Date | 24 April 1974 |
| Docket Number | No. 2--56180,2--56180 |
| Citation | 217 N.W.2d 531 |
| Parties | Herchel Eugene ANDERSON, Appellant, v. OSCAR MAYER & CO., Appellee. |
| Court | Iowa Supreme Court |
Harold C. Lounsberry, Davenport, for appellant.
Betty, Neuman, McMahon, Hellstrom & Bittner, Davenport, for appellee.
Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.
Claimant Herchel Eugene Anderson appeals trial court's judgment affirming an industrial commissioner's review decision denying him workmen's compensation benefits from his employer, Oscar Mayer & Co. The appeal presents four procedural questions and one question on the merits. We affirm.
Claimant sought compensation for a herniated disc which required surgical repair. Compensation was denied by one deputy industrial commissioner after an arbitration hearing conducted by another. The ground of denial was insufficiency of evidence to show the injury was work-connected. Review hearing was held by the industrial commissioner who denied compensation on the same ground. Appeal was taken to district court. Claimant filed a 'motion to correct record' in which he requested additions to the record transmitted to district court by the industrial commissioner. That motion was overruled. Then claimant moved for leave to file a petition for writ of mandamus to require the industrial commissioner to produce his hearing notes. This petition was overruled.
The district court appeal was submitted October 17, 1969. More than three years later, on January 23, 1973, the court filed its judgment affirming the decision of the industrial commissioner.
The questions presented for review are whether trial court erred (1) in failing to find prejudice in the fact the arbitration decision was made by a deputy who did not conduct the arbitration hearing, (2) in overruling the motion to correct the record, (3) in overruling the motion for leave to file petition for writ of mandamus, (4) in failing to find an abuse of discretion in the industrial commissioner's refusal to grant a continuance of the review hearing, and (5) in finding the commissioner's decision supported by substantial evidence.
I. The deputy's decision. The arbitration hearing was conducted by deputy Roxanne B. Conlin. Claimant testified in person. All other evidence was received by deposition. Deputy Conlin left office before deciding the case. Her notes and the evidentiary depositions were given to deputy E. J. Giovannetti who made the arbitration decision.
The deputy's decision was grounded on the insufficiency of medical evidence to show claimant's injury was work-connected. Deputy Giovannetti had the same medical evidence before him as deputy Conlin. It affirmatively appears in these circumstances claimant was not prejudiced by the fact the arbitration decision was made by a deputy who did not conduct the arbitration hearing.
This holding is supported by a statement in 2 Am.Jur.2d Administrative Law § 437 at 245, quoted by us with approval in Hinrichs v. Iowa State Highway Comm., 260 Iowa 1115, 1124, 152 N.W.2d 248, 254 (1967): 'Neither due process of law nor the concept of a full or fair hearing requires that the actual taking of testimony be before the same officers as are to determine the matter involved * * *.' See Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936).
The holding is also buttressed by the fact the claim was reviewed de novo by the industrial commissioner in the review proceeding. Section 86.24, The Code, provides in relevant part:
'At such hearing, the commissioner shall hear the parties, consider all evidence taken before the deputy industrial commissioner or board of arbitration if it has been transcribed, any may hear any additional evidence, and he may affirm, modify, or reverse the decision of the board, or may remand it to the board for further findings of facts.'
The industrial commissioner had a full transcript of all evidence submitted to deputy Conlin. His decision was independent of and uninfluenced by deputy Giovannetti's decision, and it is the review decision from which appeal is taken. § 86.26, The Code.
Although we do not endorse the procedure employed in making the arbitration decision in this case, we do not believe reversible error has been demonstrated.
II. The motion to correct the record. Claimant's motion to correct the record transmitted to district court by the industrial commissioner asked for (1) a change in punctuation in a deposition answer given by his treating physician, Dr. Dennis L. Miller, (2) for inclusion in the record of a notation that he orally moved for continuance of the review hearing and that such motion was overruled, and (3) for inclusion of a notation that the industrial commissioner refused to produce a record of the review hearing.
On June 30, 1969, more than a year after he gave his deposition, more than six months after the commissioner's decision was filed, and more than five months after appeal was taken to district court, Dr. Miller gave an affidavit indicating he believed there was unintended ambiguity in his deposition, and he thought claimant's work probably did cause the herniated disc. Seeking retroactively to strengthen the doctor's testimony, claimant sought to change the punctuation in one of the doctor's deposition answers.
The relevant testimony included:
Q. 'Did the lifting have any causal connection with the complaints which resulted in the surgery? A. I presume you are referring to the lifting that he did.
Q. The lifting in general. A. The lifting in general. Certainly lifting is often a cause of a herniated disc.'
Claimant requested that a comma or dash be placed after the word 'certainly' in the last answer. There are at least three reasons trial court properly denied the request. The doctor does not assert he would have added the punctuation had he not waived reading and signing the deposition; the request for 'correction' came much too late, no excuse for delay appearing; and even if the change were made it does not change the substance of the doctor's testimony.
The doctor later testified, 'So to summarize, I think it is reasonable to say that the activity that he was performing could certainly be a cause of his herniated disc.'
Trial court properly refused claimant's request to alter the doctor's deposition.
The other requests for change in the record related to an unreported oral motion for continuance, ruling and industrial commissioner's notes thereon. It was claimant's obligation to make his record before the industrial commissioner. Unreported proceedings are not part of the transcript upon which the legislature has directed appeals from the industrial commissioner be decided. The commissioner is required only to transmit to district court 'a full and complete transcript of all documents in the case, including any depositions, and a transcript or certificate of the evidence, if reported, together with the notice of appeal.' § 86.27, The Code.
There was no basis upon which the court could supplement the record as requested.
The motion to correct the record was properly overruled.
III. The motion for leave to file petition for writ of mandamus. Claimant filed a motion for leave to file petition for writ of mandamus in an effort to require the industrial commissioner to transmit to district court his personal notes taken at the review hearing. We pass the question whether mandamus would be available as an auxiliary remedy for such purpose. See § 661.5, The Code. We hold the motion was properly overruled on the same basis as the motion to 'correct' the industrial commissioner's record in relation to unreported proceedings.
IV. The motion for continuance. Having failed to make his record in the first instance and having failed in his efforts to mend his hold in the second instance, claimant nevertheless asks us to assume he made a motion for continuance of the review hearing which the commissioner overruled. Then he asserts the commissioner abused his discretion in so ruling.
Claimant says he asked for a continuance so he could secure additional evidence relating to cause of his injury and additional disability. However, the only support for such a request in the record is an affidavit from claimant attached to his notice of appeal to district...
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