Lowery v. Iowa Packing Co.
| Decision Date | 15 November 1960 |
| Docket Number | No. 50053,50053 |
| Citation | 106 N.W.2d 71,252 Iowa 112 |
| Parties | Harry LOWERY, Appellant, v. IOWA PACKING COMPANY and Security Mutual Casualty Company, Appellees. |
| Court | Iowa Supreme Court |
Davis, Huebner, Johnson, Herring & Burt, Des Moines, for appellant.
Brody, Parker, Miller, Roberts & Thoma, Des Moines, for appellees.
In November, 1959, plaintiff filed in the district court his petition for commutation of future payments of workmen's compensation. Defendants filed a special appearance attacking the jurisdiction of the district court to grant relief sought. For the purposes of the decision the allegations of plaintiff's petition as to ultimate facts must be taken as true. The trial court sustained the special appearance and dismissed the petition and from that judgment plaintiff has appealed.
I. The appellant states that 'the sole question for determination is whether or not the Industrial Commissioner must determine the extent of disability before a Commutation Proceeding may be had in District Court' and that the question appears to be one of first impression, no cases directly in point being cited.
Plaintiff sustained a compensable injury in October, 1958 and appellees have been paying him compensation since that time pursuant to a memorandum agreement filed by the appellees on November 3, 1958. He further alleged 'That the period during which compensation is payable in this case can be definitely determined as the plaintiff is permanently and totally disabled,' and 'that it will be for the best interests of the plaintiff that the periodical payments of compensation * * * by commuted to a present worth lump sum.' A copy of the memorandum agreement was made a part of the petition.
In their special appearance appellees asserted the court had no jurisdiction of the subject matter, stating several grounds, namely, that commutation is allowable only when the period during which compensation is payable can be definitely determined; that the petition showed that no determination of the period had been made by agreement; that the petition did not allege the determination had been made by the industrial commissioner; and that no hearing had ever been held in any way concerning this alleged injury.
Section 85.45 of the 1958 Code of Iowa, I.C.A., provides:
Assuming the allegation that plaintiff is permanently and totally disabled is true the question still remains whether or not the industrial commissioner must determine the extent of disability before a commutation proceeding may be had in the district court. Reading sub-sections one and two together, it is obvious that before the commissioner can file his written approval he must determine the period during which compensation is definitely payable and the amount thereof, and before the court can order commutation the written approval of the commissioner must be on file in the proceedings. In cannot be presumed the legislature intended the commissioner should file his written approval of the commutation without first having determined the present worth lump sum he was approving. The court's decision is, then, dependent upon the prior determination by the commissioner of the extent of disability.
Section 85.45, providing that future payments of compensation may be commuted to a present worth lump sum, implies that weekly payments are being made by agreement of the parties or pursuant to a decision and order of the industrial commissioner.
In the instant case there was on file a 'Memorandum of Agreement as to Compensation,' not signed by the appellant but signed by the appellees and approved in writing by a deputy commissioner. The appellant is not complaining of the amount of the weekly payments of $32 but claims, without stating a specific reason therefor, that it will be for the best interests of plaintiff to receive a present worth lump sum pursuant to sections 85.45 and 85.46 of the Code, 1958, I.C.A.
Section 85.46 provides in part: * * *.'
These statutes import a complete investigation and determination of the issues by the commissioner before the court takes jurisdiction.
In Scheel v. Superior Mfg. Co., 249 Iowa 873, 89 N.W.2d 377, 381, we said: 'It should be kept in mind the approval of the commissioner is a necessary condition to any valid petition or order for commutation.' In Reeves v. Northwestern Mfg. Co., 202 Iowa 136, 209 N.W. 289, 291, we stated: 'In the absence of the approval of the industrial commissioner, the terms of the stipulation could not be enforced as a commutation of the future payments of weekly compensation.' 99 C.J.S. Workmen's Compensation § 340.
At this point it may be said the Record does not disclose that any written approval of commutation by the commissioner has been filed in the proceedings nor that such approval was endorsed on the petition. In his written argument, however, appellant states, in parentheses: '...
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