Musselman v. Central Telephone Co.

• Decision Date: 14 November 1967
• Docket Number: No. 52671,52671
• Parties: Cecil O. MUSSELMAN, Appellant, v. CENTRAL TELEPHONE COMPANY, Employer-Appellee, and Zurich Insurance Company, Insurance Carrier-Appellee.
• Court: Iowa Supreme Court

Page 128

154 N.W.2d 128

261 Iowa 352

Cecil O. MUSSELMAN, Appellant, v. CENTRAL TELEPHONE COMPANY, Employer-Appellee and Zurich Insurance Company, Insurance Carrier-Appellee.

No. 52671.

Supreme Court of Iowa.

Nov. 14, 1967.

Ulstad & Guinan, Fort Dodge, for appellant.

Bastian, Beisser & Carlson, Fort Dodge, for appellees.

RAWLINGS, Justice.

Claimant-employee contends he sustained personal injury arising out of and in the course of his employment with defendant.

He appeals from a judgment of the district court affirming the Iowa Industrial Commissioner's denial of benefits.

Three errors are assigned as a basis for reversal: (1) There is no substantial evidence supporting the conclusion claimant did not receive an injury arising out of and in the course of his employment; (2) as a matter of law claimant proved an injury so incurred; and (3) the commissioner and arbitrator did not make findings of fact which support a denial of benefits.

I. Claimant's status as an employee of defendant at the time here concerned is not disputed.

The deputy commissioner, and on review the commissioner, both found that at time of the subject incident claimant was clearly within the course, or scope, of his employment. As this court explained in Reddick v. Grand Union Tea Co., 230 Iowa 108, 116, 296 N.W. 800, 'in the course of employment' means, at a place where it was the duty of an employee to be, at a time when he was properly doing his work, and while in the performance thereof.

The sole issue presented is whether the condition upon which claimant bases right to relief 'arose out of his employment'.

Stated otherwise, did claimant establish, by the necessary quantum of proof, a causal connection between the conditions under which work was performed and the resulting injury, i.e., did an injury follow as a natural incident of the work? Reddick v. Grand Union Tea Co., supra.

See also Daggett v. Nebraska-Eastern Exp. Inc., 252 Iowa 341, 346, 107 N.W.2d 102, and 17 Iowa L.Rev. 355--364.

II. Sections 86.29 and 86.30, Code 1962, have been repeatedly construed as making the commissioner's findings of fact conclusive on appeal where the evidence is in dispute or reasonable minds may differ on the inferences fairly to be drawn from the disclosed facts. If the evidence presents a question which should be submitted to a jury, if trial were to a jury, then the courts are bound by the commissioner's findings.

In cases, however, where the facts are not in dispute and different inferences could not be reasonably drawn therefrom, it becomes a question of law and the court is not bound by the commissioner's findings or conclusions.

It is the commissioner, not the court, who weighs the evidence and his findings will be broadly and liberally construed to uphold, rather than defeat, his decision.

Of course, a claimant has the burden of showing by a preponderance of the evidence, before the commissioner, the injury arose out of and in the course of employment.

Our question is not whether there is sufficient evidence to warrant a decision the commissioner did not make, but rather whether there is sufficient evidence to warrant the decision he did make.

In support of the foregoing see Bergen v. Waterloo Register Company, Iowa, 151 N.W.2d 469, 471; Nelson v. Cities Service Oil Co., 259 Iowa 1209, 146 N.W.2d 261, 263; Crees v. Sheldahl Telephone Co., 258 Iowa 292, 139 N.W.2d 190, 192--193; and Bodish v. Fischer, Inc., 257 Iowa 516, 518--519, 133 N.W.2d 867.

III. An examination of the testimony is necessary in order to determine if there is sufficient competent evidence to support the commissioner's decision.

At time of hearing before the deputy commissioner claimant was 64 and had been employed by defendant 33 years.

He claims to have been injured January 11, 1963. At that time he was working as a stockman, ordering stock, putting it away, taking care of material for installers' trucks, carrying mail, and collecting money from pay stations. In carrying out this work assignment he at times lifted containers weighing up to approximately 40 pounds. Whenever heavier lifting was required other employees would assist him. He was doing no such heavy lifting at the time of the alleged injury.

In fact it is his contention that at the time here concerned he was leaning against a wall for balance while putting an overshoe on the left foot with his right hand, gave it a jerk, then noticed a sharp knifelike pain on the left side of the lower back. The next day he had difficulty in getting out of bed, could not sit down, had trouble in walking, and did not go to work, Two days later he was able to and did resume work.

February 14th he complained of pain to the plant superintendent. With the assistance of this superintendent an injury report was prepared.

From February 18th to March 18th, he was absent, and upon returning worked again until May, performing the same duties as before.

The record discloses claimant was treated in 1945 by Dr. Schwendemann, a chiropractor, for a sore back. The same year he was given treatments by Dr. Lungren, an osteopath, because of the same difficulty. In 1961, Dr. Holmes, a chiropractor, was called upon to treat him for a sore back resulting from starting a mower.

Following the overshoe incident, and on January 15, 1963, claimant again saw Dr. Holmes. He told the doctor that January 11, 1963, while putting on the overshoe, he felt a pain in the lower back. The trouble was diagnosed as a lumbosacral sprain, with pain radiating into hip and down the left leg. This doctor said the pain, such as related to him by claimant, could be caused from shoveling snow or any form of twisting if severe enough. X-rays revealed a slight curvature caused by muscle spasm, but no abnormality in alignment of vertebra. It was not recommended claimant engage in bowling activities. Dr. Holmes' opinion was, claimant would not be able to sit in one position very long, but could possibly do light work. He did not know whether claimant had vascular insufficiency of the lower extremities. As stated by him, a doctor takes the information given by a patient as to an existing condition and from that draws his own conclusions.

Dr. Stitt, a physician specializing in orthopedic problems, saw claimant February 14, 1963. Claimant then said he had been making a mail delivery, leaned over to put on some boots, and noticed some discomfort in his back which became quite severe the next day. Based on history given, this doctor was under the impression claimant had an acute lumbar muscle sprain, possibly a disc protrusion producing some radicular pain in the left leg, but only observation and time would help decide the matter. The claimant was not examined for any vascular insufficiency. Dr. Stitt also stated bowling and twisting would cause a flare-up of back pain and soreness. He had no knowledge as to claimant's bowling but did advise him that activity would certainly aggravate the condition. He was of the opinion claimant could do light work, but could not lift 50 or 60 pound objects. X-rays taken disclosed conditions essentially normal with slight curvature but no disc trouble. He also said getting in and out of cars and road hunting would aggravate claimant's back condition.

Dr. Summers, a practicing physician for 20 years, an instructor and assistant professor at the University of Iowa, engaged in practice as an orthopedic surgeon, specializing in neurology, also testified. He twice examined claimant.

The first time, March 31, 1964, the overshoe incident was reported to this doctor and he was told that when walking claimant experienced pain in the left hip, found it necessary to sit on his right buttock most of the time, and pain in both thighs, experienced when walking, subsided when he stopped. Claimant also said he had been impotent the last four or five years, with complete loss of sexual powers. X-rays were taken. The doctor then thought it possible the pain described was of a radicular type such as that attributed to a herniated disc...