Langford v. Kellar Excavating & Grading, Inc., 54767

• Decision Date: 11 November 1971
• Docket Number: No. 54767,54767
• Citation: 191 N.W.2d 667
• Parties: David LANGFORD, Appellee, v. KELLAR EXCAVATING & GRADING, INC., and Planet Insurance Company, Appellants.
• Court: Iowa Supreme Court

Page 667

191 N.W.2d 667

David LANGFORD, Appellee, v. KELLAR EXCAVATING & GRADING, INC., and Planet Insurance Company, Appellants.

No. 54767.

Supreme Court of Iowa.

Nov. 11, 1971.

Jones, Hoffmann & Davison, Des Moines, for appellants.

Francis J. Mullen, Chariton, and Timothy McCarthy, Des Moines, for appellee.

LeGRAND, Justice.

The question presented by this appeal is whether claimant is entitled to an award for permanent partial disability allegedly resulting from an accident sustained by him on April 8, 1967, while he was employed by the defendant, Kellar Excavating & Grading, Inc.

The deputy industrial commissioner denied his claim under review-reopening proceedings pursuant to section 86.34, The Code, 1966. He appealed to the district court and judgment was there entered reversing the review-reopening decision. We affirm the trial court.

The issue is a narrow one. It is conceded claimant sustained a compensable back injury for which he was paid 9 4/7 weeks compensation at the rate of $40.00 per week. Although he did not return to work for the defendant employer, he apparently recovered from his injury and was thereafter employed by other firms to do substantially the same type of work--operation of heavy equipment.

On January 20, 1969, he suffered excruciating pain in his lower back, which was ultimately diagnosed as a protrusion of the intervertebral disc between the 4th and 5th lumbar segments. He submitted to surgery on March 12, 1969, for the correction of this condition.

Claimant's application for review-reopening alleged his condition was the result of his 1967 injury. The deputy industrial commissioner denied his claim for additional compensation because he had 'failed to meet his burden of proving that his present disability was a result of his original injury * * *.'

Defendants introduced no evidence, and the record consists only of testimony of the claimant, his wife, and Dr. Robert A. Hayne, who performed the surgery on claimant's back.

Claimant's case must stand or fall on the testimony of Dr. Hayne. The deputy industrial commissioner found it was 'inconclusive' and established no causal connection between claimant's present condition and the original injury. The industrial commissioner is the fact finder in workmen's compensation cases. We have variously expressed this rule by saying his findings are binding upon us if supported by substantial evidence; the facts determined by the industrial commissioner have the same effect as a jury verdict; and we may not interfere with such findings where there is a conflict in the evidence or when reasonable minds may disagree as to the inferences to be drawn from the evidence, whether disputed or not.

We mention only a few of the countless cases in which we have announced this principle. Henderson v. Jennie Edmundson Hospital, 178 N.W.2d 429, 431 (Iowa 1970); Musselman v. Central Telephone Company, 261 Iowa 352, 355, 154 N.W.2d 128, 130 (Iowa 1967); Bodish v. Fischer, Inc., 257 Iowa 516, 518, 133 N.W.2d 867 (1965).

On the other hand it is equally well settled we are not foreclosed from setting aside the commissioner's findings based on evidence which is both uncontradicted and from which reasonable minds could not draw different inferences. Musselman v. Central Telephone Co., supra, 261 Iowa at 355, 356, 154 N.W.2d at 130; Snook v. Hermann, 161 N.W.2d 185, 187 (Iowa 1968). Similarly we may intervene when the commissioner's decision results because he applied an incorrect rule of law to the facts found. Nelson v. Cities Service Oil Co., 259 Iowa 1209, 1214, 146 N.W.2d 261, 264 (1967).

These rules pinpoint the real dispute in the case. The parties have no serious disagreement as to the applicable law, but cannot agree on which rule controls. The employer insists the commissioner's findings are on disputed facts--or those from which different inferences might be drawn--and are therefore binding. The claimant argues, first, the evidence is without conflict, either directly or as to permissible inferences, and, next, the commissioner applied an incorrect standard in ruling on the question of proximate cause.

He says either theory makes inoperable the precedents holding the commissioner's decision is binding on the courts.

Although defendant offered no evidence, this alone does not render the facts undisputed. The finder of fact may still reject the testimony as being without credibility or he may accept one of the several inferences flowing from it. In that event his conclusion is binding on us. However, this does not mean the fact finder may arbitrarily or totally reject the offered testimony, simply that he has the duty to weigh it and determine its credibility. Deaver v. Armstrong Rubber Co., 170 N.W.2d 455, 464 (Iowa 1969). For discussions bearing on this point see Williams v. Cohn, 201 Iowa 1121, 1126, 206 N.W. 823, 825 (1926); Kindred v. Crosby; 251 Iowa 198, 202, 100 N.W.2d 20, 23 (1959); Bodish v. Fischer, Inc., 257 Iowa 516, 524, 133 N.W.2d 867, 871 (1965) and Randall v. Mullen, 164 N.W.2d 589, 591 (Iowa 1969).

Applying these rules to the case before us, we conclude the deputy industrial commissioner did in fact accept the testimony of Dr. Hayne, as indeed we feel was proper. Having done so, however, he then rejected plaintiff's claim because the doctor testified several incidents occurring after the 1967 injury Contributed to the condition for which plaintiff now seeks payment. The doctor's testimony may be summarized as follows:

He first examined claimant in March of 1969 and, after numerous tests including myelographic study and x-rays, diagnosed claimant's condition as a protrusion of the intervertebral disc between the 4th and 5th lumber segments. Subsequent surgery revealed the protrusion was 'extensive with severe impingement placed on the nerve component in the spinal canal.' This condition produced the symptoms claimant was complaining about when first seen. The condition at the time of survey was 'in all probability initiated by the strain on his back * * * some two years before.' This had reference to the 1967 accident.

These questions and answers are important to our determination:

'Q. And with such an initial injury (in April 1967) would you say that this condition became progressively worse over that two-year period, allowing for periods of remission from symptoms? A. Yes. I think the history would tend to point toward that conclusion that in general his condition referable to the low back became progressively worse.

'Q. Are you in a position to say, Doctor, that it is improbable that this condition resulted either from...