Diamond v. Parsons Co.

• Decision Date: 16 July 1964
• Docket Number: No. 51267,51267
• Citation: 256 Iowa 915,129 N.W.2d 608
• Parties: Charles DIAMOND, Claimant-Appellee, v. The PARSONS COMPANY, and American Insurance Company, Defendant-Appellants.
• Court: Iowa Supreme Court

Page 608

129 N.W.2d 608

256 Iowa 915

Charles DIAMOND, Claimant-Appellee, v. The PARSONS COMPANY, and American Insurance Company, Defendant-Appellants.

No. 51267.

Supreme Court of Iowa.

July 16, 1964.

Steward, Crouch & Hopkins, Des Moines, for appellants.

Davis, Huebner, Johnson, Burt & Fulton, Des Moines, for appellee.

SNELL, Justice.

This is an appeal from a district court decree for commutation of Workmen's Compensation weekly payments. The issues involve proceedings before the Industrial Commissioner and two proceedings, apparently tried together, before the district court.

Although not all of the matters are now in issue before us, the background facts from which the problems arose will be summarized.

Claimant, prior to May 12, 1961, was an employee of the Parsons Company in Newton. He was then 65 years old. He had been a farm and industrial laborer with no particular training or skills. On May 12, 1961 he sustained a fractured and externally injured right leg in the course of his employment.

American Insurance Company was the employer's insurance carrier. On June 1, 1961 the employer and insurance carrier filed with the Industrial Commissioner a Memorandum of Agreement as to compensation. A temporary disability and healing period weekly rate of $32.00 was admitted. Except for some interruptions this weekly compensation has been paid.

Claimant's recovery was not satisfactory. The external injury to his leg did not heal. A skin graft was taken from his left leg to repair the injury to his right leg. Because of an underlying disease of the blood vessels, poor circulation and enforced bed rest, claimant developed gangrene in his left foot. Various surgical procedures, including the installation of an artificial artery, followed. There was only temporary improvement. Finally, in February 1963, his left leg was amputated. This was subsequent to the hearing before the commissioner, mentioned infra.

On this appeal defendants now concede total permanent disability resulting from the injury.

In September 1962 claimant filed with the Industrial Commissioner an application asking for a hearing and an order determining the extent of the permanent disability resulting from the injury and 'to determine the period during which compensation is payable and thereafter make an Order thereof and when said Order has been duly filed to then approve the said Petition for Commutation.'

The application recited that claimant was desirous of filing in the district court a Petition for Commutation, and a copy of the proposed petition was attached. Issues were joined. The hearing before the commissioner involved a wide range of issues and evidence. The evidence covered claimant's history, injury, treatment, expenses, previous income, condition, medical prognoses, including life expectancy, need for commutation and what he would do with the money if and when he received it. The inquiry also covered the health and physical condition of claimant's wife and her ability to care for claimant.

On February 28, 1963 the commissioner filed extensive 'Findings of Fact and Ruling on Application for Approval of Commutation.'

The evidence was reviewed.

It was found and held by the commissioner:

1. 'The parties have not waived presentation of the Petition for Commutation to the District Court as provided in section 85.46, Code, but evidence was submitted by both parties to allow the Industrial Commissioner to determine all of the conditions set out in section 85.45, Code.

'Section 85.45 provides:

'1. When the period during which compensation is payable can be definitely determined.

'2. When the written approval of such commutation by the industrial commissioner has been filed in the proceedings to commute.

'3. When it shall be shown to the satisfaction of the court or a judge thereof that such commutation will be for the best interest of the person or persons entitled to the compensation, or that periodical payments as compared with a lump sum payment will entail undue expense, hardship, or inconvenience upon the employer liable therefor.'

2. That claimant is permanently and totally disabled.

3. That claimant is entitled to a rate of $37.00 per week for permanent disability and the employer and insurance carrier were ordered to pay at that rate.

4. That the remaining period during which compensation is payable was at that time 408 weeks. (This was the statutory period of 500 weeks less the number of weeks for which payment had been made.)

5. That claimant's medical and hospital bills having exceeded the statutory maximum of $5,000, payment by the employer and insurance carrier on a pro rata basis was ordered. (This was before the 60th General Assembly changed the statute.) A schedule was set out. Defendants were also ordered to pay $239.00 for ambulance service; 'to furnish a nurse for not to exceed four hours a day for three days a week, at a rate not to exceed $1.25 per hour,' and some other costs and expenses.

6. 'That as provided in section 85.48 a partial commutation of 200 weeks will be for the best interest of the injured employee.'

7. Commutation of a period of 200 weeks between the 100th and 300th week or 300th and 500th week, as claimant may choose, was approved for the purpose of the claimant paying medical, hospital, and legal expenses, and for the purpose of purchasing a property in Newton. The property was named, but we understand that property was subsequently otherwise disposed of.

On March 26, 1963 the employer and insurance carrier filed notice of appeal from the decision of the commissioner 'which decision awarded the claimant permanent total disability at $37.00 per week for a period of 500 weeks and certain ambulance and medical expense and nursing expense, the grounds of said appeal being as follows:

'1. That the commissioner acted in excess of his powers.

'2. That the facts found by the commissioner do not support the decision.

'3. That there is not sufficient, competent evidence in the record to warrant the making of the decision.

'4. That the decision is contrary to law.

'5. That the decision is contrary to the evidence.

'6. That there is no competent evidence in the record to support the commissioner's decision that the period of disability is determinable and that the claimant is entitled to nursing expense.

'7. That the record evidence establishes conclusively and as a matter of law that the period for which compensation can be paid is not definitely determinable and that there is no present need for nursing services as found by the industrial commissioner.'

This appeal was identified in the district court as Law #25286 1/2. It was tried and submitted on record and exhibits. There was no additional evidence offered in connection therewith. Findings of Fact, Conclusions of Law, and Judgment Entry so identified by case number were filed on June 18, 1963.

The judgment entry affirmed the commissioner's order except in the following particulars:

1. Proration of hospital and professional services shall be on the basis of $5,000 instead of $4,000 and Mercy Hospital shall be paid $1048.75 instead of $48.75.

2. Payment for nursing care shall be at the fair and reasonable rate in Newton rather than a fixed rate as ordered by the Commissioner.

3. That the determination of the commissioner for partial commutation was without authority, 'or at least nonessential and not binding on the District Court.'

4. That defendants shall provide claimant with one permanent prosthetic device when the need is certified by the attending physician competent in the field. Claimant's left leg had been amputated between the date of the commissioner's hearing and the submission of the appeal in district court.

Defendants appealed to us from the order, decision, judgment and decree in this law action.

On March 11, 1963 claimant filed in the office of the Clerk of the District Court as Equity #25277 a Petition for Commutation. This petition was filed subsequent to the filing of the commissioner's order but prior to the appeal therefrom to the district court.

Endorsed on the petition was the following:

'I, Harry W. Dahl, in my official capacity as Iowa Industrial Commissioner, do hereby approve the above and foregoing Petition for Commutation, pursuant to Code Sections 85.46 and 85.47 of the Code of Iowa, 1962, on the terms and to the extent set out in my Decision filed in this proceeding on February 28, 1963, and a copy of which has been attached hereto as an Exhibit hereof.

'Signed at Des Moines, Iowa, this 7th day of March, 1963.

'/s/ Harry W. Dahl

IOWA INDUSTRIAL COMMISSIONER'

Issues were joined, evidence was introduced and the case was submitted coincident with the appeal to the district court in the law action.

In the equity case the court filed 'Findings of Fact, Conclusions of Law, Judgment Entry and Decree.' The evidence was reviewed and the court specifically found that commutation is to the 'best interests' of plaintiff and that commutation should be ordered. The judgment entry computed the amounts past due and unpaid at $37.00 per week and the commuted value of future installments and ordered full commutation.

Defendants have appealed.

Appellants list 'Errors and Propositions Relied on for Reversal,' indicating that this submission is both at law and in equity.

I. The appeal on the issues properly before and determinable by the commissioner is at law. These issues include the finding of total permanent disability within the meaning of the Workmen's Compensation Act, the rate of weekly compensation, the auxiliary benefits, and the period of disability. There is now no issue on the questions of disability or weekly rate or that the hospital and professional expenses exceed the statutory maximum (found by the court to be $5,000) and should be apportioned pro rata.

Appellants challenge the finding that the period during which compensation is payable was definitely determinable.

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