Irish v. McCreary Saw Mill

• Decision Date: 10 March 1970
• Docket Number: No. 53829,53829
• Parties: William A. IRISH, Claimant, Appellee, v. McCREARY SAW MILL, Employer, Appellee, United Fire and Casualty Co., Insurance Carrier, Appellee, Harry W. Dahl, Industrial Commissioner, Appellant.
• Court: Iowa Supreme Court

Page 364

175 N.W.2d 364

William A. IRISH, Claimant, Appellee, v. McCREARY SAW MILL, Employer, Appellee United Fire and Casualty Co., Insurance Carrier, Appellee Harry W. Dahl, Industrial Commissioner, Appellant.

No. 53829.

Supreme Court of Iowa.

March 10, 1970.

Richard C. Turner, Atty. Gen., and James R. Martin, Asst. Atty. Gen., for appellant.

Harry H. Smith, Sioux City, for claimant-appellee.

John J. Vizintos, Sioux City, for appellees.

REES, Justice.

This is an appeal in behalf of the Industrial Commissioner to determine whether an award of compensation may be made from the Second Injury Fund to an employee who has not been totally disabled and who has not totally lost nor lost the total use of a member listed in Section 85.64, Code, 1966. From the judgment of the trial court affirming the review decision of the commissioner and determining total disability is not a necessary requirement for a claimant to recover against the Second Injury Fund, and that total loss of use of a member listed in the statute is not required, this appeal is taken in the name of the Industrial Commissioner. We affirm the trial court.

While this appeal is taken in the name of the Industrial Commissioner as appellant, it is apparently being prosecuted by the Attorney General in the light of his official responsibility under the provisions of Section 85.67, Code, 1966, which provides the Attorney General shall appoint a member of his staff to represent the Industrial Commissioner And the Fund in all proceedings in matters arising under the statute creating the Second Injury Fund, and directing the manner in which the fund is to be administered. This is obvious from the fact that the trial court affirmed the review decision of the Industrial Commissioner as will be hereinafter referred to.

Plaintiff-appellee Irish, while in the employ of defendant-appellee McCreary Saw Mill, on April 29, 1965, sustained personal injuries resulting in a 90% Loss of his left arm. For this scheduled loss he was awarded 207 weeks of compensation as is provided by Section 85.34, Code, 1966. On July 21, 1965, claimant still in the employ of the appellee McCreary, sustained personal injuries arising out of and in the course of his employment, to his right hand when it came into contact with a circular saw, resulting in 37.5% Permanent disability to his right hand, and for which he was paid compensation by the appellee, United Fire and Casualty Company. A memorandum of agreement as to compensation was filed with the Iowa Industrial Commissioner by appellee Casualty Company on September 23, 1965, and was duly approved by a Deputy Industrial Commissioner on the same date. The memorandum of agreement recited that appellee Irish was injured on July 21, 1965, as above stated, while in the employ of the appellee McCreary, and that the employee's actual average daily earnings for the number of hours commonly regarded as a day's work for the employment was $13.00 per day, and the temporary disability and healing period weekly rate was $40.00. July 7, 1967, appellee Irish filed an application for a review--reopening with the Iowa Industrial Commissioner, alleging the foregoing facts and further stating he was disabled from working from July 21, 1965, through April 1, 1966, and on July 17, 1967, appellee Casualty Company filed its Answer to the application for a review--reopening with the Industrial Commissioner admitting liability to appellee Irish to the extent of 37.5% Of his right hand. By an amendment to his application for review--reopening, appellee Irish claimed that as the result of the injury to his left arm and the injury to his right hand, he was totally disabled, and thus entitled to additional benefits under the Second Injury Fund. The allegations of said amendment were admitted by appellee Casualty Company. A hearing was had before the Industrial Commissioner and in his review decision the Commissioner found and determined that because the claimant's injuries involved two major members he was entitled to have his disability determined under the provisions of Section 85.34(2u), Code, 1966, where the test is industrial disability and not mere functional disability even though functional disability may be considered in the Commissioner's determination. The Commissioner determined that as a consequence of both of the injuries which claimant Irish had suffered, he had sustained 75% Permanent industrial disability of his body as a whole, and after deducting the value of the left arm, 207 weeks and the right hand 65 5/7ths weeks from the compensation owing for the industrial disability to the body as a whole of 375 weeks, the custodian of the Second Injury Fund was ordered to pay from said fund an additional 102 2/7ths weeks' compensation at the weekly rate of $47.50. Such payments from the Second Injury Fund were to commence as of the date of the filing of the review--decision. An appeal from the review decision was taken in the name of the Industrial Commissioner to the Woodbury County Court and in the notice of appeal the Attorney General asserted that the ground of the appeal is that the Commissioner acted without or in excess of his powers. Hearing was had in the District Court on the record, and the review decision of the Industrial Commissioner was affirmed.

I. The statute with which we are principally concerned here, Section 85.64, Code, 1966, provides,

'Limitation of benefits. If any employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the 'Second Injury Fund' created by this division the remainder of such compensation as would be payable for the degree of permanent disability involved after first deducting from such remainder the compensable value of the previously lost member or organ.

'Any benefits received by any such employee, or to which he may be entitled, by reason of such increased disability from any state or federal fund or agency, to which said employee has not directly contributed, shall be regarded as a credit to any award made against said second injury fund as aforesaid.'

This statute was originally enacted by the 51st General Assembly in 1945, and as originally enacted it provided,

'Sec. 2. If an employee who has previously lost, or lost the use of, one hand, one arm, one foot, one leg, or one eye, becomes permanently And totally disabled by a compensable injury which has resulted in the loss of or loss of use of another such member or organ, the employer shall be liable only for the degree of disability which would have resulted from the latter injury if there had been no pre-existing disability. In addition to such compensation, and after the expiration of the full period provided by law for the payments thereof by the employer, the employee shall be paid out of the 'Second Injury Fund' created by this Act the remainder of such compensation as would be payable for Permanent total disability after first deducting from such remainder the compensable value of the previously lost member or organ.

'Any benefits received by any such employee, or to which he may...