Dailey v. Pooley Lumber Co., 46253.

CourtUnited States State Supreme Court of Iowa
Citation10 N.W.2d 569,233 Iowa 758
Docket Number46253.
Decision Date27 July 1943

10 N.W.2d 569

233 Iowa 758


No. 46253.

Supreme Court of Iowa

July 27, 1943

[10 N.W.2d 570] [Copyrighted Material Omitted] [10 N.W.2d 571]

[233 Iowa 759] Hallagan, Fountain, Steward & Cless, of Des Moines, for appellants.

James H. Graven and Galen W. Hesalroad, both of Greene, for appellee.

SMITH, Justice.

The ultimate question here may be briefly stated: Is claimant-appellee to be compensated under the schedule of specific coverages found in section 1396, Code of Iowa 1939 (specifically under paragraphs 15 and 20 of said section); or for permanent total disability under section 1395?

The injury occurred in 1936 but the applicable statutory provisions were the same then as in the present Code of 1939. Our references will accordingly be to the latter. Appellee, while in the employ of defendant Pooley Lumber Company, and in the course of his said employment, suffered an injury consisting of a fracture of the surgical neck of the right femur. Whether there were further injuries to be considered is in controversy.

His right to compensation is unquestioned and the basic rate has been fixed by agreement. He has been paid weekly [233 Iowa 760] benefits at this agreed rate for a period of 224 weeks. If his present contention is upheld he will be entitled to further payments to make a total of 400 weeks. Code Section 1395. Defendant-appellants deny his claim for further compensation and say he was originally entitled to 200 weeks only (Code section 1396, paragraphs 15 and 20), and should be required to refund all he has been paid beyond that time, overpayment having been made through inadvertence and mutual mistake.

As the trial court affirmed the finding of the commissioner allowing appellee full 400 weeks compensation for permanent total disability, our reference will be direct to the record made before the commissioner and to his decision as the decision of the trial court. He sums up his finding of fact concerning the extent of injury as follows: "The evidence reveals that due to the injury in question, claimant suffered a fracture of the surgical neck of the right femur within the capsular ligaments of the right hip joint, that there is considerable absorption of the bone, and a marked shortening of the leg due to a displacement of the fractured fragments, with a resulting compensatory tilting of the pelvis and curvature of the spine. Claimant has recovered from the injuries to his head and ribs."

I. We have first to determine whether appellee's injuries fall within the schedule. If they do, we are not concerned with the question of the extent of disability. The compensation in that event is definitely fixed according to the loss of use of the particular member. The very purpose of the schedule is to make certain the amount of compensation in the case of specific injuries and to avoid controversies. Schell v. Central Engineering Co., Iowa, 4 N.W.2d 399, 401, 143 A.L.R. 576, citing Brugioni v. Saylor Coal Co., 198 Iowa 135, 197 N.W. 470. See, also, Moses v. National Union Coal Mining Co., 194 Iowa 819, at pages 824, 825, 184 N.W. 746; Soukup v. Shores Co., 222 Iowa 272, at pages 277, 278, 268 N.W. 598.

Paragraph 15 of Code section 1396 is as follows: "15. The loss of two-thirds of that part of a leg between the hip joint and the knee joint shall equal the loss of a leg, [233 Iowa 761] and the compensation therefor shall be weekly compensation during two hundred weeks."

The commissioner in his decision and award points out that paragraph 15 in and of itself does not apply because there has been no loss of the leg within the meaning of the paragraph as there has been no amputation; but that if the injuries of claimant are within the disabilities scheduled in that paragraph, then paragraph 20 of Code section 1396 provides the basis for determining the extent of disability. See, as bearing on this pronouncement, Moses v. National Union Coal Mining Co., supra. Said paragraph 20, sometimes called the "loss of use" subsection, provides: "20. In all other cases of permanent partial disability, the compensation shall bear such relation to the periods of compensation stated in the above schedule as [10 N.W.2d 572] the disability bears to those produced by the injuries named in the schedule."

We have no doubt of our right to review the commissioner's decision that claimant's injuries do not fall within paragraphs 15 and 20 just quoted. That decision in part clearly involved a conclusion of law in that it indulged in a construction of the pertinent statutory provisions.

Paragraph 15 of Code section 1396 seems never to have been judicially construed. However, paragraph 13 of the same Code section has identical language, except it is applicable to the arm instead of to the leg, and we have had occasion to examine it. Pappas v. North Iowa Brick & Tile Co., 201 Iowa 607, 206 N.W. 146, 148.

The injury in the cited case was loss of the arm at the juncture of the lower third with the middle third of the humerus. We held there that as the schedule provided the loss of two-thirds of that part of the arm between the shoulder joint and the elbow joint should equal the loss of an arm, the commissioner should determine "how much should be added to the hand schedule and how much deducted from the arm schedule in arriving at the compensation to be allowed." In other words, the loss being of something less than two-thirds of the humerus [233 Iowa 762] and of more than a hand, the compensation should be adjusted accordingly.

It is manifest this decision does not materially help us in the instant case. We have here a loss of more instead of less than "two-thirds of that part of a leg between the hip joint and the knee joint." The commissioner construed the schedule as defining a "legal leg" (as distinguished from the "anatomical" leg), "ending at a point two-thirds of the distance above the knee joint." From that premise he reasons that the loss of more than two-thirds of the femur is a loss of more than a leg and therefore not covered by the schedule. He points out the use of the word "more" in paragraph 7 of Code section 1396 as illustrative of his argument and reasons that because the word "more" or its equivalent does not occur in paragraph 15, the only "loss of leg" covered by the schedule is the one expressly described as "equal" to the loss of a leg.

We cannot agree with this interpretation of the statute. It is true the schedule does not anywhere in express language fix the compensation for the loss of an entire "anatomical" leg or for any part thereof that includes more than two-thirds of the...

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