Bousfield v. Sisters of Mercy

• Decision Date: 12 November 1957
• Docket Number: No. 49290,49290
• Citation: 86 N.W.2d 109,249 Iowa 64
• Parties: Mrs. Pearl BOUSFIELD, Employee, Claimant-Appellant, v. SISTERS OF MERCY, Employer, and Hartford Accident and Indemnity Company, Insurance Carrier, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 109

86 N.W.2d 109

249 Iowa 64

Mrs. Pearl BOUSFIELD, Employee, Claimant-Appellant, v. SISTERS OF MERCY, Employer, and Hartford Accident and Indemnity Company, Insurance Carrier, Defendants-Appellees.

No. 49290.

Supreme Court of Iowa.

Nov. 12, 1957.

James G. McDowell, Jr., Des Moines, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellees.

LARSON, Justice.

This is a proceeding under the Workmen's Compensation Law, chapters 85 and 86, Code of Iowa, 1950 and 1954, I.C.A., by an injured employee seeking increased compensation pursuant to section 86.34, Code of Iowa, 1954. Following the hearing the deputy commissioner, acting for the commissioner, made a finding and awarded claimant an additional twenty weeks compensation with interest from July 15, 1952, which was appealed to the district court by defendant-employer. From a judgment setting aside the commissioner's award and dismissing her application for reviewreopening, claimant employee appeals to us.

It is claimant's contention that the district court erred in reversing the commissioner's award in that it was based on sufficient competent evidence introduced by her disclosing an aggravated condition of her injury not taken into account in the former findings, and that such findings and award were binding upon the district court.

Claimant Mrs. Pearl Bousfield sustained a compensable injury August 6, 1950, as a nurse's aid. While pulling on a bed sheet she developed a sudden and severe pain in her lower back, which resulted in hospitalization for a period of two weeks. She has never returned to her employment. Radiating pains developed in her legs and she underwent an operation for a herniated disc in October, 1951. For some twelve months thereafter her pains lessened. However, as she resumed domestic activity the pains became more and more severe, extending into her lower back, buttocks, and right leg. They came and went, lasting several days at a time. As they became more severe and more frequent she asked for and received another examination by a neurological surgeon, Dr. Wilbur A. Mulig, furnished by defendant. He made observations and findings upon which he based an opinion that she had 'about 15 per cent' disability, which was not unusual as a result of an operation on a herniated disc, and by considering her history since 1950 he believed her disability at 'about 25 per cent total disability.' At the time of his examination she was not in one of her severe episodes and he did not think surgery was yet indicated. Dr. Mulig further testified, according to her history one of the more severe episodes occurred in September, 1954, lasting three weeks, requiring her to go to bed, and another in February, 1955, required her to take to her bed for one week. The last one in April, 1955, lasted four weeks. They were of the nature that a jarring hurt her back, as did moving her arms, and even talking became too much of an effort because of the pain. Between spells she had symptoms of pressure in the lower back level rather constantly, which was gradually getting worse and was aggravated by bending over or any other physical activity. Coughing would cause severe pain. Her home work became more limited. His examination and tests given indicated 'a herniation of the disc between the fourth and fifth lumbar vertebrae, rather than the common location between the fifth lumbar and first sacral.' Even these helps to diagnosis he stated are not absolute, but what he found 'would suggest the possibility of the disc being herniated at a higher level.' It would suggest 'a disc in partial remission.' He called the condition a 'nucleus pulpesis' and said, 'Discs that bulge out and compress the nerve root will go through episodes of being worse and being better. Possibly the swelling goes down and they slip back in place and the patient will get along for a while perhaps without symptoms or with them, and will get better and then will get worse again.' Another operation was a possibility, though not indicated at that time.

These results must make it clear there were some unexpected results following the 1951 operation, results which no doubt the original agreed award did not contemplate. At least the subsequent and recurring episodes were vertified by the examination and indicate an unexpected and unsatisfactory condition after the original operation. There was clear evidence of an aggravated weakness and the expected clearing up did not occur after the 1952 approved award. Mrs. Bousfield testified the condition has worsened to the extent that she cannot go up and down stairs, scrub or wax floors, or do gardening without bringing on a severe attack. She must go to bed to get temporary relief. She said her condition 'gets worse as times goes on. The pain is getting more severe and lasts longer, the attacks are closer together.'

We have perhaps set forth more of this evidence than necessary, but in view of the district court's finding there was no substantial evidence of a change, a finding with which we disagree, we feel such testimony should be set out in some detail.

On the 15th day of July, 1952, a memorandum of agreement was filed with and approved by the Iowa Industrial Commissioner. The original award, Form-5 Report, shows compensation began August 6, 1950, and ended July 5, 1952, and discloses 100 weeks compensation was paid claimant as a result of her permanent partial disability. While the basis of settlement does not indicate whether 20 weeks were included therein as a healing period, the departmental file which was introduced in these proceedings discloses correspondence with the insurance carrier stating the basis of settlement was 20% permanent partial disability. Twenty per cent of the total disability maximum of 400 weeks would amount to 80 weeks. Eighty weeks plus twenty weeks healing period would account for the 100 weeks allowed, and unless other explanations are accepted, must have been the extent of the intended award. Receipts indicate the payment for 100 weeks was made.

I. In passing upon the question as to the sufficiency of the competent evidence to warrant the finding and award of the commissioner in such applications, we must consider the evidence in the light most favorable to claimant. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 903, 76 N.W.2d 756, and cases cited therein.

II. This court has repeatedly held that where the facts are in dispute, or where reasonable minds may differ on the inferences to be drawn from the proven facts and circumstances, the findings of the commissioner in such matters are conclusive. If the evidence presents a question which should have been submitted to a jury, if the trial were before a jury, then the court is bound by the findings of the commissioner. Henderson v. Iles, Iowa, 82 N.W.2d 731, and cases cited therein; Hassebroch v. Weaver Construction Co., 246 Iowa 622, 67 N.W.2d 549; Stowe v. Booth & Olson, Inc., 245 Iowa 1374, 1377, 66 N.W.2d 382; Dailey v. Pooley Lumber Co., 233 Iowa 758, 10 N.W.2d 569. Code section 85.34 provides:

'Any award for payments or agreement for settlement * * * where the amount has not been commuted, may be reviewed by the industrial commissioner at the request of the employer or of the employee at any time within three years from the date of the last payment of compensation * * *, and if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded or agreed upon. * * *' (Emphasis supplied.) The right of appeal is further provided therein.

There is no contention herein that the provisions of this statute are not applicable. In the Rose v. John Deere case, supra, at page 905 of 247 Iowa, at page 759 of 76 N.W.2d we said: 'Section 86.34 is very broad and general in its terms. It authorizes relief 'if * * * the commissioner finds the condition of the employee warrants such action' ', and announced that the language used in Stice v. Consolidated Indiana Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452, construes this language somewhat more narrowly than intended, where it said the statute ordinarily is applicable only where there is some change in the employee's condition which came about through his injury, since the award was made. This change, we think, includes a change in the percentage of disability involving permanent partial disability. In the Stice opinion at page 1036 of 228 Iowa, page 455 of 291 N.W., we indicate an injured employee is entitled to relief under statutes similar to 86.34 upon "substantial proof of an aggravated condition of the old injury not taken into account in the former findings * * *." We referred to this matter in Rose v. John Deere Ottumwa Works at page 905 of 247 Iowa, 76 N.W.2d 756. To the same effect is 71 C.J., Workmen's Compensation Acts, section 1401. Also in Oldham v. Scofield & Welch, 222 Iowa 764, 767, 266 N.W. 480, 481, 269 N.W. 925, we held: 'Where an employee suffers a compensable injury and thereafter returns to work and, as a result thereof, his first injury is aggravated and accelerated so that he is greater disabled than before, the entire disability may be compensated for (citations).'

It further seems well settled in other jurisdictions that increased incapacity of the employee, due to the original injury, subsequent to the making of the first award entitles the employee to additional compensation under such statutes as 86.34. See 58 Am.Jur., Workmen's Compensation, section 501; 71 C.J., Workmen's Compensation Acts, section 1405; Annotations 122 A.L.R. 550, 582 et seq.

We have often stated that the workmen's compensation statutes must be liberally construed. Day v. Town Club, 241 Iowa 1264, 45 N.W.2d 22; ...