Rankin v. National Carbide Co.

• Decision Date: 11 December 1962
• Docket Number: No. 50796,50796
• Citation: 254 Iowa 611,118 N.W.2d 570
• Parties: Robert F. RANKIN, Claimant-Appellant, v. NATIONAL CARBIDE COMPANY, Employer-Appellee, Liberty Mutual Insurance Co., Insurance Carrier-Appellee.
• Court: Iowa Supreme Court

Page 570

118 N.W.2d 570

254 Iowa 611

Robert F. RANKIN, Claimant-Appellant, v. NATIONAL CARBIDE COMPANY, Employer-Appellee, Liberty Mutual Insurance Co., Insurance Carrier-Appellee.

No. 50796.

Supreme Court of Iowa.

Dec. 11, 1962.

McManus & McManus, Keokuk, for claimant-appellant.

Boyd, Walker & Concannon, Keokuk, for employer-appellee and insurance carrier-appellee.

GARFIELD, Chief Justice.

On August 2, 1958, plaintiff sustained an injury arising out of and in the course of his employment by defendant National Carbide Co. (For convenience we disregard the fact National's insurance carrier is also a defendant.) Defendant was notified of the injury and caused plaintiff to be taken to Dr. Kemp for examination. The doctor gave plaintiff a prescription and told him to return to light duty which he did on August 5. Plaintiff's pain continued and defendant sent him to Dr. Kemp again on October 27, 1958. Again on March 11, 1960, defendant sent plaintiff to Dr. Kemp who prescribed physiotherapy at a hospital. Defendant paid charges of $50 for this hospital treatment. About April 1, 1960, defendant suggested and arranged for chiropractic treatments for plaintiff. They continued until November 4, 1960. Total charges therefor were $98. Although the record does not show it, presumably defendant also paid this $98.

Defendant's insurance carrier arranged for plaintiff to be examined by Dr. Blair in Des Moines on February 15 and March 13, 1961. On April 21 (1961) plaintiff was examined by a Dr. Ober who diagnosed plaintiff's condition as a ruptured spinal disc and was of the opinion it was caused by the accident of August 2, 1958.

During all the time since his injury plaintiff has received the usual rate of pay from defendant for the work he did. There was no award of compensation or agreement for settlement under chapter 86, Code 1958, I.C.A. No compensation agreement was filed with the commissioner in accordance with Code section 86.13 and no weekly compensation was paid by defendant or its insurance carrier. The only payment by either was for medical expense paid on plaintiff's behalf.

On March 30, 1961, plaintiff filed with the industrial commissioner his application for review-reopening under section 86.34 in which he alleged he was injured August 2, 1958, compensation was paid for his resulting disability amounting to about $300 and as a result of his injury plaintiff was totally and permanently disabled.

Defendant and its insurer answered that plaintiff's application was in fact one for arbitration, his injury occurred more than two years prior to the filing of his application and it was barred by Code section 85.26, I.C.A. Defendant denied any compensation was paid plaintiff as a result of the above accident.

Plaintiff's application was submitted to the deputy industrial commissioner on a stipulation of the facts heretofore recited. He held that since no award for payments or agreement for settlement was made as provided by section 86.34 the requested review-reopening would not lie. The deputy's decision called attention to the fact the only agreements subject to review-reopening under 86.34 are those filed with and approved by the commissioner under section 86.13, citing Otis v. Parrott, 233 Iowa 1039, 8 N.W.2d 708, and Bever v. Collins, 242 Iowa 1192, 49 N.W.2d 877.

Plaintiff's appeal to the district court from the deputy's decision was submitted on the same stipulation of facts and affirmed.

It seems desirable to set out these provisions of our Compensation Act: Section 85.26 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.'

Section 86.13 states: 'Compensation agreements. If the employer and the 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 * * * (it) shall stand approved and be enforceable for all purposes, except as otherwise provided in this and chapters 85 and 87. * * *

'Any failure on the part of the employer or insurance carrier to file such memorandum of agreement with the industrial commissioner within thirty days after the payment of weekly compensation is begun shall stop the running of section 85.26 as of the date of the first such payment.'

Section 86.34, under which plaintiff's application states it was filed, provides in pertinent part: 'Review of award or settlement. Any award for payments or agreement for settlement made under this chapter where the amount has not been commuted, may be reviewed by the industrial commissioner * * * at the request of the employer or of the employee at any time within three years from the date of the last payment of compensation made under such award or agreement, and if on such review the commissioner finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded or agreed upon. * * *'

Plaintiff argues in a single division his first three assigned errors. The brief point at the head of this argument is: 'Where medical and hospital expenses of an employee as a result of an industrial injury are paid by the employer, said payment constitutes 'compensation' and 'an agreement for settlement' under the Compensation Law and extends the statute of limitations to three years from the date of the last furnished treatment.' Several out of state precedents, including three from Nebraska, are among the authorities cited in support of this brief point.

Defendant's first brief point is: 'Where there has been no 'award for payments' previously entered by the Industrial Commissioner and no 'agreement for settlement' has been filed, the Commissioner is without jurisdiction to entertain an application filed by either party under section 86.34.'

The only point the district court felt called upon to decide was that plaintiff was not entitled to proceed under 86.34 since there had been nothing before the commissioner regarding an award of compensation or agreement for settlement. In short the court thought there had been nothing before the commissioner to review or reopen.

We have said at least twice that an application for review under what is now 86.34 is not the commencement of a new proceeding but a continuation of one already pending. Secrest v. Galloway Co., 239 Iowa 168, 174, 30 N.W.2d 793, 797; Henderson v. Iles, 248 Iowa 847, 851, 82 N.W.2d 731, 734. See also Anno. 165 A.L.R. 9, 13.

It seems clear there had been no 'award for payments or agreement for settlment made under this chapter', within the terms of 86.34. Consequently there had been no 'payment of compensation made under such award or agreement.' Nor could the commissioner 'end, diminish or increase the compensation so awarded to agreed upon' as the statute contemplates. If the employer's voluntary payment of some medical expense of the employee is to be deemed sufficient authorization for review-reopening under 86.34, some change by the legislature in the language of the statute is plainly called for.

Plaintiff's contention that defendant's payment of medical expense, without any proceeding of any kind before the commissioner, constitutes an 'agreement for settlement made under this chapter' within the meaning of 86.34, is contrary to our decisions in Otis v. Parrott, 233 Iowa 1039, 1046, 8 N.W.2d 708, 713, and Bever v. Collins, 242 Iowa 1192, 1196, 49 N.W.2d 877, 880.

In Otis v. Parrott it was contended employers verbally agreed to pay compensation, in reliance thereon proceedings were not sooner commenced, the employers led the employee and his dependents to believe the hospital and medical bills and compensation would be paid and they were estopped from claiming the proceedings were not commenced in time. We held the review-reopening proceeding, filed more than two years after the date of the injury causing death, was an obvious attempt to circumvent what is now section 85.26, supra, and would not lie. This from the opinion is applicable here:

'It is enough to point out that the only agreements which can be reviewed by the industrial commissioner are those filed under section 1436 which have been reduced to a written memorandum, filed in the industrial commissioner's office, and approved by the industrial commissioner either expressly or by operation of law. The testimony of verbal promises to pay hospital and doctors' bills and wages, upon the part of the employers or one of them, would not be an 'agreement for settlement made under this chapter' within the meaning of section 1457 that could be the basis of review proceedings.'

Section 1436, referred to in the above quotation, is now section 86.13, supra, and section 1457 is now 86.34, supra.

100 C.J.S. Workmen's Compensation § 439, page 311, cites Otis v. Parrott for the proposition, 'The fact that the employer had verbally agreed to pay compensation and in reliance the proceedings were not brought sooner, does not lift the bar of the limitation statute.'

Bever v. Collins, supra, follows Otis v. Parrott....