Powell v. Bestwall Gypsum Co.

• Citation: 124 N.W.2d 448,255 Iowa 937
• Decision Date: 12 November 1963
• Docket Number: No. 51096,51096
• Parties: Harvey E. POWELL, Appellant, v. BESTWALL GYPSUM COMPANY et al., Employer-Appellee, Employers Mutuals of Wausau, Insurance Carrier-Appellee.
• Court: United States State Supreme Court of Iowa

Page 448

124 N.W.2d 448

255 Iowa 937

Harvey E. POWELL, Appellant, v. BESTWALL GYPSUM COMPANY et al., Employer-Appellee Employers Mutuals of Wausau, Insurance Carrier-Appellee.

No. 51096.

Supreme Court of Iowa.

Nov. 12, 1963.

Edward J. Flattery, Fort Dodge, for appellant.

Robert L. Ulstad, Fort Dodge, for appellees.

MOORE, Justice.

This is an appeal by Harvey E. Powell from a judgment of the district court which upheld the industrial commissioner's denial of his claim for compensation on the ground it was barred by the statute of limitations, Code section 85.26, I.C.A.

On November 19, 1959 plaintiff sustained injury to his right middle finger arising out of and in the course of his employment by defendant Bestwall Gypsum Co. He was immediately taken by Bestwall's superintendent to Dr. Woodward and treated as an outpatient at Lutheran Hospital in Fort Dodge. He lost part of a day's work as a result of the injury. The medical and hospital expenses of $129.76 were paid by defendant's insurer on August 23, 1960. No memorandum of agreement was ever filed with and approved by the industrial commissioner nor any weekly compensation paid.

As requested, plaintiff went back to Dr. Woodward on November 19, 1960 for an evaluation. The doctor told him he might have some loss to the finger, but so long as he was a mechanic he did not need a perfect finger. In May 1961 the doctor again saw plaintiff at the Mental Health Institute at Cherokee where he was an outpatient. On this visit, Dr. Woodward gave plaintiff no disability and so reported to defendant's insurer.

Later plaintiff contacted the industrial commission and July 12, 1961 was advised by a deputy commissioner of his right to bring an action in arbitration, that they had no facilities for making investigations nor authority to take charge of his claim, he should go to another doctor if he cared to do so and to take the matter up with an attorney. He thereafter visited Dr. Hutchinson at Fort Dodge. In the fall of 1961 Dr. Hutchinson wrote the industrial commissioner that in his opinion plaintiff had a 50 per cent permanent partial disability of the injured finger. November 30, 1961 the deputy industrial commissioner again wrote plaintiff that they could not investigate or take charge of his claim and he should take the matter up with some local attorney.

On December 19, 1961 plaintiff for the first time contacted his present attorney. December 26, 1961, over two years after his injury, plaintiff filed an 'application for review reopening arbitration'.

Defendant and its insurer answered that plaintiff's application was in fact one for arbitration and barred by Code section 85.26 of the Workmen's Compensation Act, I.C.A.

Plaintiff's application was submitted to a deputy industrial commissioner, the commissioner and the district court on agreed facts as heretofore stated. Each held plaintiff's claim barred under section 85.26. It provides:

'Limitation of actions No original proceedings for compensation shall be maintained in any case unless such proceedings shall be commenced within two years from the date of the injury causing such death or disability for which compensation is claimed.'

Plaintiff relies on two assigned errors for reversal. First, he commenced his proceeding by conferring and communicating with the industrial commissioner before the two-year period expired and, second, the statute was tolled when the insurer paid the medical and hospital expenses on August 23, 1960.

I. Code sections 86.13 and 86.14, I.C.A. specifically state the two methods by which proceedings may be commenced before the industrial commissioner.

Section 86.13 provides:

'Compensation agreements If the employer and employee reach an agreement in regard to the compensation, a memorandum thereof shall be filed with the industrial commissioner by the employer or the insurance carrier, and unless the commissioner shall, within twenty days, notify the employer or the insurance carrier and employee of his disapproval of the agreement by certified mail sent to their addresses as given on the memorandum filed, the agreement shall stand approved and be enforceable for all purposes, except as otherwise provided in this and chapters 85 and 87. * * *'

Section 86.14 provides:

'Failure to reach agreement If the employer and injured employee or his representatives or dependents fail to reach an agreement in regard to compensation, either party may file with the industrial commissioner a petition for arbitration together with two copies thereof, stating therein his or her claims in general terms. Thereupon the commissioner or one of the deputies shall in writing notify the parties that the defendant is given at least ten days in which to answer said petition or otherwise plead. A defense other than a general denial of claimant's alleged facts must be plead as a special defense.'

In reference to these statutes, then sections 1436 and 1437, we said in Otis v. Parrott, 233 Iowa 1039, 1044, 1045, 8 N.W.2d 708, 712:

'It is next argued that the term 'original proceedings' as used in section 1386 does not mean the filing of the application for arbitration with the industrial commissioner. Little need be said in answer to this argument, for the Workmen's Compensation Law only provides for two ways for claimants to proceed to secure compensation. The claimant must file with the commissioner a memorandum of agreement in regard to compensation (sec. 1436) or a 'petition and copy thereof with the industrial commissioner, stating therein his or her claims in general terms and asking that a board of arbitration be formed.' (Section 1437). It is obvious that the proceedings barred are the proceedings before the industrial commissioner. The filing of the petition is the commencement of such proceedings. The petition must be filed within two years after the injury, or the bar of section 1386 is effective.' Section 1386 is now section 85.26.

We cited and followed the Otis case in Bever v. Collins, 242 Iowa 1192, 49 N.W.2d 877, and Rankin v. National Carbide Co., 254 Iowa 611, 118 N.W.2d 570 (filed December 11, 1962). In the Bever case the employer orally admitted liability to the employee's dependents, agreed to and did pay various amounts on burial expense and other items. The agreement was not reduced to writing nor was anything filed with the industrial commissioner. We held plaintiff's attempt to start proceedings more than two years after the employee's injury and death barred under section 1386 and there was therefore nothing for review.

In Rankin v. National Carbide Co., supra, plain...