Rose v. John Deere Ottumwa Works

Citation76 N.W.2d 756,247 Iowa 900
Decision Date09 May 1956
Docket NumberNo. 48935,48935
PartiesOan Henry ROSE, Appellee, v. JOHN DEERE OTTUMWA WORKS, a division of Deere Manufacturing Co., Appellant.
CourtUnited States State Supreme Court of Iowa

Jones, White, Starr & Johnson, Ottumwa, for appellant.

Samuel O. Erhardt, Ottumwa, for appellee.

GARFIELD, Justice.

This is a proceeding under the Workmen's Compensation Law, chapters 85, 86, Code 1954, I.C.A., by an injured employee for increased compensation, pursuant to section 86.34. Following a hearing the deputy industrial commissioner made an award from which defendant-employer appealed to the district court. From its judgment affirming the award defendant has appealed to us.

Both in the district court and here defendant has assailed the deputy commissioner's order on two grounds: (1) the facts found by him do not support his order and (2) there is not sufficient competent evidence in the record to warrant making the order. See Code section 86.30, I.C.A.

In passing on the second of these grounds, which we think is the stronger we must consider the evidence in the light most favorable to plaintiff. Pohler v. T.W. Snow Const. Co., 239 Iowa 1018, 1021, 33 N.W.2d 416, 418, and citations; Alm v. Morris Barick Cattle Co., 240 Iowa 1174, 1175, 38 N.W.2d 161, 162; Brewer v. Central Const. Co., 241 Iowa 799, 801, 43 N.W.2d 131, 133.

Plaintiff, age 47 in December, 1954, commenced work for defendant in its Ottumwa plant February 7, 1951. On July 7, 1953, he suffered an injury to his back arising out of and in the course of his employment when he slipped as he was taking a shell weighing 115 to 130 pounds off a conveyor belt. He was hospitalized a week and unable to return to his work until September 28 (1953). He then resumed his duties as a conveyor tender until December 23 but in the meantime defendant had installed a hoist which made manual lifting of the heavy shells unnecessary. Plaintiff and others in his department were then laid off a short time for lack of work. When plaintiff returned to his employment he was given lighter work in the paint shop. After three or four months he was also required to shovel steel shavings about three hours a day.

Plaintiff's back pained him so he was unable to continue his work and July 26, 1954, he went to a hospital at Bloomfield for about 17 days when he was released for light work. Defendant had no such work for plaintiff until November 21 when he returned to his employment where he was working at the time of the hearing before the deputy commissioner December 28, 1954.

During the 11 weeks and five days after plaintiff's injury on July 7, 1953, he received workmen's compensation totaling $328 and $180 was paid in medical benefits. So far as the record shows no award or settlement agreement was made but the amounts were voluntarily paid and received. It seems clear the payments were made for, and on the assumption there was only, temporary disability. August 19, 1954, plaintiff filed with the commissioner his application for review under Code section 86.34, I.C.A., asking such award as he may be entitled to. The application as amended alleges plaintiff is 'now suffering from permanent partial disability' as a result of his injury of July 7, 1953.

Following a hearing the deputy commissioner filed his decision, reviewing much of the evidence and finding as facts: 'It is clear claimant has some permanent partial disability as a direct result of this injury of July 7, 1953. * * * After taking into consideration all * * * evidence submitted, with all reasonable inferences therefrom, it is found as a fact that as a direct result of the injury (of July 7) claimant is permanently disabled to the extent of 10 per cent of the whole body.' Compensation was allowed of $28 per week for 50 weeks, plus a healing period of 12 1/2 weeks as provided by law, less 11 weeks and five days previously paid, leaving a balance of 51 weeks ($1,428 in all).

Code section 86.34, I.C.A., provides: 'Review of award or settlement. Any award for payments or agreement for settlement * * * where the amount has not been commuted, may be reviewed by the industrial commissioner or a deputy 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 * * *, 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. Any party aggrieved by any decision or order of the industrial commissioner or a deputy commissioner on a review of award or settlement * * *, may appeal to the district court * * * in the same manner as is provided in section 86.26.'

There is no suggestion this statute is not applicable here on the ground the compensation for the 11 weeks, five days may not have been paid under an award or agreement for settlement and such circumstance is entitled to no consideration. Of course there may have been an award or settlement agreement not shown by the record.

Section 86.34 is very broad and general in its terms. It authorizes relief 'if * * * the commissioner finds the condition of the employee warrants such action.' Stice v. Consolidated Indiana Coal Co., 228 Iowa 1031, 1035, 291 N.W. 452, construes this language perhaps somewhat more narrowly than it calls for. The Stice opinion says the statute ordinarily is applicable only where there is some change in the employee's condition as a result of the injury, since the award was made. See also Bever v. Collins, 242 Iowa 1192, 1195, 49 N.W.2d 877, 879. We have no occasion to re-examine the Stice case now and may accept its interpretation of section 86.34.

It is doubtless true, as stated in Stice v. Consolidated Indiana Coal Co., at page 1038 of 228 Iowa, at page 456 of 291 N.W., that a decision on review pursuant to 86.34 depends upon the condition of the employee found to exist subsequent to the date of the award under review. Numberous precedents under somewhat similar statutes so hold. It is equally clear, as the Stice opinion indicates, at page 1036 of 228 Iowa, at page 455 of 291 N.W. an injured employee is entitled to relief under statutes similar to 86.34 upon "substantial proof of an aggravated condition of the old injury not taken into account in the former findings * * *'.' To the same effect is 71 C.J., Workmen's Compensation Acts, section 1401.

Oldham v. Scofield & Welch, 222 Iowa 764, 767, 266 N.W. 480, 481, 269 N.W. 925, holds: 'Where an employee suffers a compensable injury and thereafter returns to work and, as a result thereof, his first injury is aggravated and accelerated so that he is greater disabled than before, the entire disability may be compensated for. [Citations.]'

It seems to be well settled in other jurisdictions that increased incapacity of the employee, due to the original injury, subsequent to the making of the first award entitles the employee to additional compensation under such statutes as 86.34. See 58 Am.Jur., Workmen's Compensation, section 501; 71 C.J., Workmen's Compensation Acts, section 1405; Annotation 122 A.L.R., 550, 582 et seq.

Although we are now concerned only with an employee's claim to increased compensation we may observe that section 86.34 protects the employer as well as the employee--rights under it are mutual. The commissioner may, if he finds the employee's condition warrants such action, end or diminish compensation previously awarded as well as increase it.

It follows from what we have said that where compensation is paid for temporary disability from an injury and it later develops that permanent partial disability results from the injury an additional award may be made under section 86.34. See Henry Cowell Lime & Cement Co. v. State Industrial Accident Comm., 211 Cal. 154, 294 P. 703, 72 A.L.R. 1118, 1123 (where compensation was voluntarily paid by the employer without an award) and Annotation 1125; Wicko v. Ford Motor Co., 292 Mich. 335, 290 N.W. 818; Amerada Petroleum Corp. v. Williams, 134 Okl. 177, 272 P. 828. See also Walker's Case, 122 Me. 387, 120 A. 59; Tucker v. Frank J. Beltramo, Inc., 117 N.J.L. 72, 186 A. 821, 825. An extended annotation in 165 A.L.R. 9 discusses numerous decisions in proceedings to review previous awards.

Henry Cowell Lime & Cement Co. v. State Industrial Accident Comm., supra, at page 160 of 211 Cal., at page 705 of 294 P., at page 1123 of 72 A.L.R., contains this language applicable here: 'Many times the seriousness of the injury is not at first apparent, and from its very nature cannot be detected until considerable time has elapsed after its infliction. The clear intent of the statute in such cases is that the injured employee shall be entitled to compensation for his permanent disability notwithstanding the fact that he may in the early stages of his injury have been granted an award only for temporary disability, or may have been paid compensation voluntarily by his employer; * * *.'

Application of the above rules to the present controversy leads to the conclusion that if there is substantial proof plaintiff suffered permanent partial disability from the injury of July 7, 1953, he is entitled to compensation therefor in addition to the payments defendant concedes were for temporary disability during the initial period of 11 weeks, five days.

Defendant's first contention that the facts found by the deputy commissioner do not support his order is without merit. As previously stated, his decision reviews much of the evidence and finds 'as a fact that as a direct result of the injury (of July 7) claimant is permanently disabled to thr extent of 10 per cent * * *.' This finding, together with other recitals in the deputy's decision, supports his order and is sufficient to determine the controversy.

It is well settled that findings of a court are to be broadly and liberally construed, rather than narrowly or technically. In case of doubt they will...

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