DeShaw v. Energy Mfg. Co.

• Decision Date: 15 December 1971
• Docket Number: No. 54118,54118
• Citation: 192 N.W.2d 777
• Parties: Howard DeSHAW, Appellant, v. ENERGY MANUFACTURING COMPANY and Federated Mutual Insurance, Appellees.
• Court: Iowa Supreme Court

Page 777

192 N.W.2d 777

Howard DeSHAW, Appellant, v. ENERGY MANUFACTURING COMPANY and Federated Mutual Insurance, Appellees.

No. 54118.

Supreme Court of Iowa.

Dec. 15, 1971.

Review Denied Jan. 22, 1972.

Nazette, Bromwell, Hendrickson, Marner & Humphreys, Cedar Rapids, and E. Michael Carr, Manchester, for appellant.

Shuttleworth & Ingersoll, Cedar Rapids, for appellees.

UHLENHOPP, Justice.

We must decide here whether the Iowa Deputy Industrial Commissioner properly denied a claimant additional workman's compensation in a review-reopening proceeding.

Claimant Howard DeShaw, a farmer now 56 years old, has a congenital back deformity called spondylolisthesis. The posterior arch of his fifth lumbar vertebra is not solidly attached to the body of the vertebra. A number of years ago the anterior portion slipped forward on the vertebra below. In consequence, claimant thereafter had some disability and pain from time to time. Those periods of back trouble were described by lay witnesses as spasms or strains or 'throwing a disc.' Claimant called them 'periodic back spasms.' Claimant saw various medical, osteopathic, and chiropractic physicians. In 1940 he saw a physician in Iowa City, having been referred to Dr. Steindler. Through the years, however, he was able to carry on at least some farm work and employment off the farm, subject to his periods of back difficulty.

In 1966 claimant was working for Energy Manufacturing Company ('Energy'). His work required him to drill holes in rather heavy pipe, which he had to move about. On July 20 of that year, while moving the pipe, he experienced his back trouble. He left work because of the pain in his back. He was off work for two weeks, during which he took treatments from an osteopath. Thereafter he was able to return to his job, and worked for a week. He then took a week's vacation on pay, being entitled thereto. After that he returned to his job and performed his normal work for a little over a month, until September 22, 1966. He testified that he thought if nothing else had happened, 'I would have been okay.'

But something else did happen. On September 22 claimant was endeavoring to change a spring-loaded belt on a polishing machine. This task required him to pull with one hand and push with the other against the spring-load to get the taut belt off. He had another episode of his back trouble, this time severe. He described this episode as an 'independent' one. He testified, 'I felt another strain it felt like something struck me in the back. I left work again . . .. I doctored with Dr. Gearhart (the osteopath) after the second episode. I was on my hands and knees . . ..'

After the September 22 incident, claimant improved, but he did not stand straight and walked somewhat hunched over. Thenceforth he did not perform physical work. His son took care of the farm. From time to time he took treatments for his back, incurring expense therefor.

Subsequently, at the request of Energy's insurance carrier, claimant saw an orthopedic surgeon.

On January 3, 1967, a memorandum of agreement between claimant and Energy was filed with the Iowa Industrial Commissioner. The memorandum recited that claimant sustained a back injury while lifting pipes on July 20, 1966, and that the probable duration of the disability was unknown. Energy's insurance carrier paid claimant $56 per week for 11 weeks, plus medical expense of $126. At the end of that period the payments terminated. No memorandum was filed with respect to the September 22 incident. Nor was that occurrence mentioned in the memorandum which was in fact filed.

Still later, claimant twice slipped and had his back trouble again. One of those occasions was sufficiently serious that he 'had to have adjustments for it.' Neither occasion was connected with employment.

Thereafter, claimant obtained and lived on social security payments for permanent disability, together with a little income from selling insurance and his small farm.

On September 24, 1968, claimant filed an application for review-reopening under § 86.34, Code, 1971. In his application he stated that he sustained an injury on July 20, 1966, that compensation of $616 had been paid, and that the matter should be reopened. He did not allege the injury of September 22, 1966, nor apply for compensation or additional compensation on account of it.

The Iowa Deputy Industrial Commissioner ('the commissioner') held a hearing on claimant's application on February 10, 1969. Six lay witnesses testified, including claimant. One of them was Energy's general manager, who testified that when he would meet claimant on the street, claimant would seem to slow his gait and change his posture. The other five lay witnesses were offered by claimant. They testified, with varying degrees of observation, that claimant was able to perform his work before he left Energy, but that after he left he no longer worked and had a hunched posture. They did not distinguish between the injuries on July 20 and September 22 or between the amount of disability from each of those occurrences. Nor did they attempt to say that the July 20 episode bore a relation to the episode on September 22.

Two orthopedic surgeons testified, one for claimant and the other for Energy. They gave remarkably similar testimony. Both told about claimant's congenital back condition and both thought he had some disability from that condition prior to the two occurrences at Energy's plant. They believed that those occurrences increased claimant's permanent disability. Claimant's doctor did not say how much those occurrences increased such disability; Energy's medical witness opined that the occurrences increased the permanent disability 10%. Neither witness estimated separately the disability flowing from the two occurrences. They did not venture an opinion that the first injury had a causal relationship to the second one. Their opinion was that claimant has a congenital condition in his back which causes him trouble when it is aroused. They spoke of the spondylolisthesis as a 'hot potato' in his back or a 'sleeping dog.' They thought that claimant could still do some work, but not heavy labor.

After a hearing, the commissioner denied claimant's application to reopen. He held that claimant sustained temporary disability from the incident of July 20, 1966, for which payment was made, but not permanent disability.

Claimant appealed the case to district court, where the commissioner's decision was affirmed. Hence the present appeal by claimant to this court.

Two problems are presented by the appeal. First, since two incidents are involved, what must claimant prove in order to obtain additional compensation based on the incident of July 20, 1966? Second, is the commissioner's decision supported by sufficient competent evidence?

I. What Claimant Must Establish. If a workman already has some disability, such as from spondylolisthesis, and his disability is increased by a compensable injury, he is entitled to compensation to the extent of the increased disability, in an appropriate proceeding. Yount v. United Fire & Cas. Co., 256 Iowa 813, 129 N.W.2d 75; Olson v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251; Yeager v. Firestone Tire & Rubber Co., 253 Iowa 369, 112 N.W.2d 299; Ziegler v. United States Gypsum Co., 252 Iowa 613, 106 N.W.2d 591; 99 C.J.S. Workmen's Compensation § 181 at 608--609.

This proceeding is not an original one founded on the injury of September 22, 1966, or a proceeding to reopen an award for that injury. The present proceeding is a review-reopening of the memorandum of agreement relating to the injury of July 20, 1966. See § 86.34, Code, 1971. Section 86.34 authorizes the commissioner to reopen an uncommuted award or agreement for compensation when a workman's subsequent condition shows that inadequate or excessive compensation was allowed. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 76 N.W.2d 756. The scope of inquiry in such a proceeding is somewhat circumscribed. An authority in this field of law states, 'In a reopening proceeding, the issue before the board is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based.' 3 Larson, Workmen's Compensation Law, § 81.32 at 341 (1970).

A fundamental issue in reopening proceedings is proximate cause. As stated in Oldham v. Scofield & Welch, 222 Iowa 764, 768--769, 266 N.W. 480, 482, on rehearing, 269 N.W. 925:

In other words, where an accident occurs to an employee in the usual course of his employment, the employer is liable for all consequences That naturally and proximately flow from the accident. (Italics added.)

The present case presents the complication of two injuries, one on July 20 and the other on September 22. When a workman sustains an injury, later sustains another injury; and subsequently seeks to reopen an award predicated on the first injury, he must prove one of two things: (a) that the Disability for which he seeks additional compensation was proximately caused by the first injury, or (b) that the Second injury (and ensuing disability) was proximately caused by the first injury. Cases of the former kind are Oldham v. Scofield & Welch, 222 Iowa 764, 266 N.W. 480, on rehearing, 269 N.W. 925 (sufficient evidence introduced to show increased disability proximately caused by original injury rather than by subsequent incidents); Langford v. Kellar Excavating & Grading, Inc., 191 N.W.2d 667 (Iowa) (evidence sufficient to show original injury was proximate cause of subsequent disability--need not be sole cause); and Keefer v. State Industrial Accident Comm'n, 171 Ore. 405, 135 P.2d 806 (additional compensation allowed for amount of increased disability which existed prior to second injury). Cases of the latter kind are Douglas v. Okmar Oil Co., 383 P.2d 681 (Okla.) (original injury not shown to be proximate cause of subsequent incidents and ensuing...