Hemker v. Drobney

• Decision Date: 09 January 1962
• Docket Number: No. 50437,50437
• Citation: 112 N.W.2d 672,253 Iowa 421
• Parties: Herman HEMKER, Employer, and Federated Mutual Implement and Hardware Insurance Company, Insurance Carrier, Appellants, v. Amelia K. DROBNEY, Claimant, Appellee.
• Court: Iowa Supreme Court

Page 672

112 N.W.2d 672

253 Iowa 421

Herman HEMKER, Employer, and Federated Mutual Implement and Hardware Insurance Company, Insurance Carrier, Appellants, v. Amelia K. DROBNEY, Claimant, Appellee.

No. 50437.

Supreme Court of Iowa.

Jan. 9, 1962.

Shull, Marshall, Mayne, Marks & Vinzintos, Sioux City, for appellants. A. C. Carmichael, Pocahontas, and Linnan, Lynch & Straub, Algona, for appellee.

LARSON, Justice.

Pursuant to the filing of an application for an award of compensation under the workmen's compensation law in which the widow Amelia K. Drobney alleged her husband was injured while delivering a mattress and spring for his employer and died shortly thereafter, the defendant employer Herman Hemker and his insurance carrier, Federated Mutual Implement and Hardware Insurance Company, answered denying the employee died as a result of any injuries sustained in said labor and denied he sustained any injury in the course of his employment.

The deputy commissioner, after the evidence was in, found as a matter of fact that claimant had failed to prove by a preponderance of the evidence that decedent sustained an injury arising out of and in the course of his employment, or establish a causal connection between the employment and the death, or that the employment aggravated or accelerated decedent's diseased condition and was thereby a proximate contributing cause of his death. Award was denied.

On review the commissioner approved the decision of his deputy and, when the district court reversed, defendants appealed. We cannot sustain the court's decision.

I. At the start we are reminded of the statutory admonition, 'In the absence of fraud the findings of fact made by the industrial commissioner within his powers shall be conclusive.' Section 86.29, Code, 1958, I.C.A. Section 86.30, elaborates thereon by providing that the court may interfere 'on one or more of the following grounds and on no other * * *.' The statute lists four grounds but our concern here is with '3. If the facts found by the commissioner do not support the order or decree' and '4. If there is not sufficient competent evidence * * * to warrant the making of the order or decision.'

In a long line of cases we have consistently construed these provisions as making the commissioner's findings of fact conclusive where the evidence is in dispute or where reasonable minds may differ on the inference fairly to be drawn from the facts. Hassebroch v. Weaver Construction Co., 246 Iowa 622, 625, 67 N.W.2d 549; Bocian v. Armour & Co., 244 Iowa 304, 306, 56 N.W.2d 900, 901; Burt v. John Deere Waterloo Tractor Works, 247 Iowa 691, 697, 73 N.W.2d 732, 733; Taylor v. Horning, 240 Iowa 888, 890, 38 N.W.2d 105; Bruner v. Klassi, 241 Iowa 1007, 1011, 44 N.W.2d 366; Lindahl v. L. O. Boggs Co., 236 Iowa 296, 307, 18 N.W.2d 607; Nellis v. Quealy, 237 Iowa 507, 511, 21 N.W.2d 584, and citations.

As in most appeals of this nature, the real test or issue is as to the sufficiency of the evidence to support the commissioner's findings. Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 530, 17 N.W.2d 120, and citations. In that regard we have repeatedly stated the finding of the commissioner is on the same footing as a jury verdict (Bocian v. Armour & Co., supra; Kent v. Kent, 202 Iowa 1044, 1046, 208 N.W. 709), although in the matter of construction we have said the findings of the commissioner should be construed even more liberally than those of a court. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 907, 76 N.W.2d 756. As a basis for such liberal construction we pointed out that Section 86.18 provides the commissioner and his deputies shall not be bound by technical or formal rules of procedure, citing Stice v. Consolidated Indiana Coal Co., 228 Iowa 1031, 1041, 291 N.W. 452. Clearly, then, the findings of the commissioner are to be broadly and liberally construed and will be construed to uphold rather than to defeat his decision. In this regard we approved in the Rose v. John Deere case the rule that a finding of the ultimate facts is sufficient to sustain an award, and it is not necessary to set forth the minor facts leading to the determination of the ultimate one. The sufficiency of findings of fact in workmen's compensation matters is extensively annotated in 146 A.L.R. 123.

One other rule to be kept in mind as we consider the evidence introduced herein appears in a recent decision of this court. In Daggett v. Nebraska-Eastern Express, Inc., Iowa, 107 N.W.2d 102, 108, we said, 'Our question is not whether there is sufficient evidence to warrant a decision the commissioner did not make but whether there is sufficient evidence to warrant the decision he did make.' Thus the evidence may and perhaps here would have supported an award had that been the commissioner's decision. However, we are satisfied it was such that reasonable minds might differ and thus could not be disturbed by the court. Certainly the weight given otherwise relevant and competent testimony in making his findings was solely for the commissioner and not for the court.

II. The evidence introduced, with the exception of the opinions expressed by medical experts as to the cause of decedent's death and its relationship to his work at the time, is not a matter of great dispute. The controversy here surrounds the competency and sufficiency of the opinions expressed by the doctors for defendants in response to hypothetical questions based upon a pathologist's report and a statement of decedent's activities just prior to his death.

Six doctors, all well qualified as medical experts, testified in response to hypothetical questions, and each expressed his opinion as to the cause of death and as to its connection, or lack thereof, with the duties decedent was performing for his employer. None had treated the decedent but had studied the pathologist's report made as a result of an autopsy ordered by the county coroner. In addition to these reports, each was given substantially the activities and events leading up to decedent's death on February 22, 1959. Those were that Clayton A. Drobney, 38, had been employed by defendant Hemker for three or four years as a clerk and deliveryman in a hardware and furniture store. He had had no recent falls or injuries, little or no illness over that period, but had been doing considerable additional physical labor after his regular hours of employment, such as painting, carpenter work, plumbing, wiring, and heating installations. He was a good fast worker and had been accustomed to delivering much heavier items. In the distant past he had suffered some drinking problems.

On Sunday, February 22, 1959, at about 3:30 P.M., he was called to work by his employer and assisted in loading, unloading and installing a new spring and mattress on a bed in the Shimon residence. The mattress weighed approximately 60 to 62 pounds and the box spring 70 to 72 pounds. They were carried separately by both men, first from the warehouse to the truck, some 75 feet, and then from the truck some 25 feet to the house, up three or four steps, and into the living room. After removing the old spring and mattress from the bed, they removed the paper wrapping from the new mattress and spring. This was 'quite a struggle', as was the job of moving the cumbersome but not heavy articles down a narrow hall and into the bedroom. The house was very warm and both men perspired freely. As they were placing the new mattress on the bed, decedent's foot struck a vacuum cleaner, or some such object on the floor, and he dropped his end of it some 10 or 12 inches above the spring. He did not fall. He then left the room, picked up some wrapping paper, and went outside. When he did not respond to a request by his employer, it was discovered he was ill, and he was returned to the house. His wife and a doctor were called, and he was taken to a Fort Dodge hospital, where he died two hours later. His wife said that when she arrived at the Shimon residence 'his eyes were kind of crossed and wavery; his one arm didn't have any reflex action in it. He was sitting there and kind of rubbing his head, his tummy, his legs, and he just didn't know what was wrong with him, and he wanted to explain to me something was very wrong, * * * I was never again able to talk or visit with him.' An autopsy was performed and it was introduced into evidence by both parties as a basis for medical testimony.

Dr. Raymond J. Harrington and Dr. Robert N. Larimer testified for defendants in depositions taken ten days before the hearing before the deputy commissioner. Dr. Harrington testified the cause of death was a cerebral hemorrhage which was the result of the rupture of a large blood vessel and that the rupture originated from a congenital berry aneurysm or from a diseased artery probably the result of arteriosclerosis. He testified:

'Q. Would either of those conditions * * * in your opinion have any causal connection with the man's employment at the time of his death? A. I would say no. I would say it would be due to natural causes.

'Q. Was this condition from which he died, will you state whether or not it was one which under any rational work was likely to progress so as finally to disable him? A. That is the course they nearly all follow. If a person has a weakness in the blood vessel of this sort, sooner or later it is bound to disrupt and result in this sort of thing.

'Q. Is that the result of the natural progress of the disease? A. I would say so. * * * In the layman's sense of the term, this patient died of a stroke due to a rupture of a diseased artery. This disease process was arteriosclerotic in nature * * *. The question of whether exertion is a factor in bringing about a cerebral hemorrhage is a questionable thing * * *. There are instances of where extreme exertion might be an aggravating factor but it would not necessarily be a causative factor.'

On cross-examination he further testified:

'Q. If he had...