Deaver v. Armstrong Rubber Co.

• Decision Date: 05 September 1969
• Docket Number: No. 53416,53416
• Citation: 170 N.W.2d 455
• Parties: Donald R. DEAVER, Appellant, v. ARMSTRONG RUBBER CO., and American Mutual Liability Insurance Co., Appellees.
• Court: Iowa Supreme Court

Page 455

170 N.W.2d 455

Donald R. DEAVER, Appellant, v. ARMSTRONG RUBBER CO., and American Mutual Liability Insurance Co., Appellees.

No. 53416.

Supreme Court of Iowa.

Sept. 5, 1969.

Davis, Huebner, Johnson & Burt, Des Moines, for appellant.

Steward, Hopkins & Bump, Des Moines, for appellees.

MASON, Justice.

This is an appeal by Donald R. Deaver, claimant in a workmen's compensation proceeding, from judgment of the Polk district court reversing the deputy industrial commissioner's decision awarding claimant additional compensation in a review-reopening.

Plaintiff was injured on the job July 22, 1963, while working for Armstrong Rubber Company when a steel molding ring weighing approximately 30 pounds slipped from a shelf striking his head. Aside from the few days in which Deaver attempted to work he was off the job from the date of the accident until sometime in the middle of November.

August 7 the employer's liability insurance carrier filed a memorandum of agreement as to compensation with the commissioner. It was approved. Section 86.13, Code, 1966. March 9, 1964, the carrier filed a report of workmen's compensation benefit payments disclosing claimant had been paid $308.85 in weekly benefits and had been furnished professional and hospital services in the care and treatment of his injuries totaling approximately $432.10.

April 14, 1965, Deaver filed the petition in review-reopening against his employer and its insurance carrier for recovery of additional benefits under sections 86.34 and 86.35 of the Iowa workmen's compensation act for the results of the injuries sustained July 22, 1963, alleging he was then permanently and totally disabled for industrial purposes under the provisions of this act.

Hearings were held July 28, 1965 and April 20, 1967, with the last evidentiary deposition in the matter being taken September 7.

In these hearings claimant contended that all all times subsequent to the employment injury incurred at Armstrong he was plagued by headaches and tension which forced him to miss work frequently and in one instance required him to leave the regional managership with Kenron Manufacturing Company. Therefore, he was entitled to permanent partial disability benefits under the Iowa workmen's compensation law because of impaired income producing ability.

In his decision the deputy commissioner declared the issue was whether claimant sustained a permanent disability as the result of the July 22 incident and if so, to what extent.

On a review-reopening hearing before the deputy commissioner claimant has the burden of establishing by a preponderance of the evidence that he suffered an impairment or lessening of earning capacity as a proximate result of his original injury, subsequent to the date of the award or agreement for compensation under review, which entitles him to additional compensation. Wagner v. Otis Radio & Electric Co., 254 Iowa 990, 993--994, 119 N.W.2d 751, 753; Olson v. Goodyear Service Stores, 255 Iowa 1112, 1120, 125 N.W.2d 251, 256--257; Giere v. Aase Haugen Homes, Inc., 259 Iowa 1065, 1070 146 N.W.2d 911, 914; and Gosek v. Garmer and Stiles Co., Iowa, 158 N.W.2d 731, 732, and citations in these opinions.

December 8 the deputy commissioner filed his decision in the review-reopening proceedings finding claimant was suffering from a condition of manic depressive psychosis caused by the accident of July 22, 1963, which resulted in a permanent partial disability to the body as a whole to the extent of 25 percent.

Dr. Victor J. Cardenas, M.D., a Des Moines psychiatrist, the only medical witness called by plaintiff, described this mental illness as shown in the record of the transcript of evidence:

'In response to a question for a brief description of manic depression reaction the doctor stated that a manic depressive reaction is a mental illness that is characterized by swings in mood and one of these phases of the disease, the patient is primarily depressed. He is retarded in his thinking and his movements. He feels sad inside. He cannot sleep well. We doesn't eat well. He usually loses his appetite; at times loses weight. He might have crying spells and feel rather hopeless. In a way, this is the type of an enlarged reaction common to what everybody has, high and low periods, the difference being that it gets out of proportion.'

The deputy further found that at the time of the hearing Deaver was earning essentially the same amount as he did at the time of injury; however, he stated further examination of the evidence demonstrated Deaver was capable of earning substantially more. Since the claimant's disability was outside the schedule it was to be evaluated as industrial which included consideration of age, education and ability to perform work. Citing Martin v. Skelly Oil Co., 252 Iowa 128, 106 N.W.2d 95. He defined disability for purposes of the workmen's compensation act to mean impairment or lessening of earning capacity. Citing Diederich v. Tri-City R. Co., 219 Iowa 587, 258 N.W. 899; Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299.

'It is true the kind of disability with which the Compensation Act is concerned is industrial, not functional, disability. It is disability which reduces earning capacity, not merely bodily functions. Functional disability is an element to be considered in determining the reduction of earning capacity but it is not the final criterion. * * * (Citing authorities).' Olson v. Goodyear Service Stores, supra, 255 Iowa at 1120, 125 N.W.2d at 256.

The deputy commissioner ordered Armstrong and its carrier to pay Deaver for 125 weeks at $38 per week, plus healing period of 25 weeks at $46 per week, less the $308.85 already paid claimant.

I. January 4, 1968, Armstrong Rubber Company and its insurance carrier filed with the industrial commissioner their notice of appeal to the district court from the review decision of the deputy commissioner. Code section 86.26. Their appeal, based on three of the statutory grounds provided by section 86.30, states:

'There was not sufficient competent evidence in record to warrant the order made by the Deputy Industrial Commissioner.

'That the facts found by the Deputy Industrial Commissioner do not support the award of a permanent disability of the body.

'That the Deputy Industrial Commissioner acted in excess of his powers in awarding a healing period of twenty-five (25) weeks.'

We point out the four grounds of appeal listed in this Code section are exclusive. See Olson v. Goodyear Service Stores, supra.

That appeal was submitted on the transcript of the evidence considered by the deputy commissioner. Section 86.29.

Fraud is not claimed here.

'We have repeatedly construed these provisions (section 86.30) 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 may 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. * * * (Citing authorities).

'It is the commissioner, not the court, who weighs the evidence. * * * (Citing authority).

'The commissioner's findings will be broadly and liberally construed and to uphold, rather than defeat, his decision. * * * (Citing authorities).' Wagner v. Otis Radio & Electric Co., supra, 254 Iowa at 993, 119 N.W.2d at 752--753. See also Olson v. Goodyear Service Stores, supra; Crees v. Sheldahl Telephone Co., 258 Iowa 292, 294, 139 N.W.2d 190, 192; Giere v. Aase Haugen Homes, Inc., supra, 259 Iowa at 1070, 146 N.W.2d at 914; and Musselman v. Central Telephone Co., Iowa, 154 N.W.2d 128, 130.

The rule controlling the appeal from the commissioner's decision to the district court and thence to this court is not de novo and as stated before the findings of the commissioner have the force and effect of a jury verdict. Giere v. Aase Haugen Homes, Inc., supra, 259 Iowa at 1070, 146 N.W.2d at 914; Poole v. Hallett Construction Co., Iowa, 154 N.W.2d 716, 717; and Paveglio v. Firestone Tire and Rubber Co., Iowa, 167 N.W.2d 636, 640, and authorities cited in these opinions.

It is for the fact finder to determine the ultimate probative value of all the evidence. Giere v. Aase Haugen Homes, Inc., supra, 259 Iowa at 1073, 146 N.W.2d at 915.

Although defendants stated several grounds in their appeal to the district court only one was argued; that is, lack of sufficient competent evidence in the record to warrant the order made by the deputy industrial commissioner.

In reversing the deputy industrial commissioner's award the district court found there was a lack of sufficient competent evidence to warrant a finding of causal connection between the head injury and permanent disability suffered by claimant.

The court reasoned the nature of claimed permanent disability and its causal connection with the accident of July 22, 1963, is not within the knowledge and experience of ordinary laymen and must be established by competent medical testimony. Citing Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 382--383, 101 N.W.2d 167, 171--172, and authorities cited in this opinion. He found such testimony was lacking since there was no medical opinion the accident of July 22, 1963, 'could' have caused claimant's permanent disability.

II. As propositions relied on for reversal claimant contends the district court erred in (1) making findings of fact contrary to those of the industrial commissioner which were supported by substantial evidence and (2) determining there was insufficient evidence presented to form a fact question as to medical causal connection for the commissioner's finding of industrial disability.

It is our duty to examine the evidence to determine whether it is...