Sondag v. Ferris Hardware

Decision Date28 August 1974
Docket NumberNo. 2--56687,2--56687
Citation220 N.W.2d 903
PartiesLeo SONDAG, Appellant, v. FERRIS HARDWARE, Employer and Grain Dealers Mutual Insurance Company, Insurance Carrier, Appellees.
CourtIowa Supreme Court

Michael R. Mundt, Denison, for appellant.

Jones, Hoffmann & Davison, Des Moines, for appellees.

Submitted to MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON Justice.

Claimant Leo Sondag appeals trial court's judgment affirming a decision of the industrial commissioner denying him workmen's compensation benefits from his employer, Ferris Hardware. We affirm in part, reverse in part, and remand to the industrial commissioner with directions.

Claimant, age 57, was employed for 14 years as a combination clerk and appliance serviceman for Ferris Hardware and its predecessors. Commencing in 1968 he had experienced chest pains, particularly on the heavy exertion frequently required by his employment. By 1970 his difficulty had been diagnosed as angina pectoris and nitroglycerin was prescribed.

On August 20, 1971, a hot and sultry day, claimant was recalled from vacation to hurriedly unload crated washing machines weighing 300 to 400 pounds from a boxcar and haul them to his employer's store. He started having chest pains. While the machines were being transported the pain eased for a period of about five minutes. However, claimant continued his strenouous physical activity for approximately one hour following the onset of his pain. He finally told his employer he could not continue working, and was taken to a hospital.

The final diagnosis following claimant's admission to the hospital was myocardial infarction, a localized death of a heart muscle resulting from obstruction of circulation by blood clot or abnormal particle. Subsequent secondary complications, hospitalization and treatment were associated with the same condition. Dr. Donald J. Soll, claimant's family physician, testified claimant was disabled from doing anything other than secentary work and his condition was permanent.

In a report to defendant insurance company Dr. Soll stated:

'I feel this episode would have occurred regardless of the type of work as I feel he has a moderate amount of atherosclerosis.'

In a later deposition Dr. Soll testified he had no reason to change his report to the insurance company. He also testified the heart attack 'would have happened, I think it would have no matter what he was doing.'

Dr. Louis Banitt, an Iowa licensed and Mayo Clinic trained specialist in internal medicine, in response to a hypothetical question asking for his opinion, testified, 'although this myocardial infarction may have occurred on this date regardless of the amount of physical activity * * * his continuing to work after symptoms of the myocardial infarction would have aggravated the condition.'

The industrial commissioner found claimant did not sustain a personal injury arising out of and in the course of his employment and denied recovery. On appeal, the district court found conflicting evidence generated a fact question whether the injury did in fact arise out of and in the course of claimant's employment and whether there was aggravation of a preexisting condition. The court concluded because a fact question existed it was bound by the industrial commissioner's finding.

Appealing here, claimant asserts 1) there was no substantial evidence to support the commissioner's conclusion that claimant's injuries did not arise out of and in the course of his employment, and 2) claimant established as a matter of law his injury did so arise. See § 86.30, The Code.

I. Our scope of review is to ascertain whether there is sufficient competent evidence in the record to warrant the commissioner's decision. Section 86.30(4), The Code. The burden of proof is on the claimant to prove some employment incident or activity was a proximate cause of the health impairment on which he bases his claim; a possibility is insufficient; a probability is necessary; and the commissioner's findings have the force of a jury verdict. Anderson v. Oscar Mayer & Co., 217 N.W.2d 531, 535 (Iowa 1974); Holmes v. Bruce Motor Freight, Inc., 215 N.W.2d 296, 301 (Iowa 1974).

II. In this jurisdiction a claimant with a pre-existing circulatory or heart condition has been permitted, upon proper medical proof, to recover workmen's compensation under at least two concepts of workrelated causation.

In the first situation the work ordinarily requires heavy exertions which, superimposed on an already-defective heart, aggravates or accelerates the condition, resulting in compensable injury. See Littell v. Lagomarcino Grupe Co., 235 Iowa 523, 17 N.W.2d 120 (1945). Claimant in such a case is aided by our liberal rule permitting compensation for personal injury even though it does not arise out of an 'accident' or 'special incident' or 'unusual occurrence.' Olson v. Goodyear Service Stores, 255 Iowa 1112, 1116, 125 N.W.2d 251, 254 (1963); Jacques v. Farmers Lumber & Supply Co., 242 Iowa 548, 552, 47 N.W.2d 236, 239 (1951); Almquist v. Shenandoah Nurseries, 218 Iowa 724, 729, 254 N.W. 35, 38 (1934).

Iowa's Littell rationale is paralleled in a portion of Professor Arthur Larson's attempt to fashion a logical working rule in heart cases. See 1A Larson's Workmen's Compensation Law § 38.83, p. 7--172:

'But when the employee contributes some personal element of risk--e.g., by having * * * a personal disease--we have seen that the employment must contribute something substantial to increase the risk. * * *

'In heart cases, the effect of applying this distinction would be forthright:

'If there is some personal causal contribution In the form of a previously weakened or diseased heart, the employment contribution must take the form of an exertion greater than that of nonemployment life. * * * Note that the comparison is not with This employee's usual exertion In his employment but with the exertions of normal Nonemployment life of this or any other person.'

See also Beck v. State, 184 Neb. 477, 168 N.W.2d 532 (1969).

In the second situation compensation is allowed when the medical testimony shows an instance of unusually strenuous employment exertion, imposed upon a pre-existing diseased condition, results in a heart injury. See Guyon v. Swift & Co., 229 Iowa 625, 295 N.W. 185 (1940).

III. The uncontroverted gist of the medical testimony in this case was that claimant had atherosclerosis, a fatty deposition in the walls of the coronary arteries. This in turn had progressed enough to create an insufficiency in blood supply to the heart muscle, depriving it of necessary oxygen and nutrients and causing it to emit pain signals. This was the angina pectoris diagnosed almost a year before the ultimate obstruction in the heart artery on August 20, 1971. This obstruction of course further deprived the heart muscle of nutrient material and oxygen. In this situation the heart's work load should be reduced to preserve its function and curtail irreversible damage. The eventual heart injury--myocardial infarction--does not occur at the first onset of chest pain but usually within the first one or two days thereafter.

In the case Sub judice claimant never attempted to medically prove compensable injury under the Littell rationale; that is, to show that the usual strenuous exertions of claimant's employment would aggravate or accelerate the effect of his atherosclerosis to bring an earlier or more damaging myocardial infarction. Rather, he attempted to prove his particular activity on August 20 causally contributed to his injury. As indicated above, neither of his medical experts was willing to make that connection. See, however, Guyon v. Swift & Co., supra; Jones v. Industrial Commission, 81 Ariz. 352, 306 P.2d 277 (1957); Oklahoma Steel Castings Company v. Wilson, 348 P.2d 1075 (Okla.1960); Shivers v. Biloxi-Gulfport Daily Herald, 236 Miss. 303, 110 So.2d 359 (1959).

Without medical evidence to support either of the above theories, the commissioner concluded claimant 'did not sustain a personal injury arising out of and in the course of his employment on August 20, 1971.' Apparently the devastating dearth of the evidence in this regard caused the commissioner to virtually overlook the uncontroverted medical evidence that claimant's continuing to work after the coronary onslaught would have aggravated the effect of the obstruction in the heart artery.

It has long been legally recognized that damage caused by continued exertions required by the employment after the onset of a heart attack is compensable. The industrial commissioner so held under facts strikingly similar to those in this case in Rogers v. Lake View Concrete Prod. Co., et al, 29th Biennial Report Iowa Industrial Commissioner, p. 36; see also Miller v. H. S. Holtze Construction Co., et al, 30th Biennial Report Iowa Industrial Commissioner, p. 27. This concept has found application in the following representative cases from other jurisdictions: Aetna Casualty & Surety Company v. Johnson, 278 F.2d 200 (6 Cir.1960); Southern Stevedoring Co. v. Henderson, 175 F.2d 863 (5 Cir.1949); Dwyer v. Ford Motor Co., 36 N.J. 487, 178 A.2d 161 (1962); Kaufman v. Jewish Memorial Hospital, 18 A.D.2d 726, 234 N.Y.S.2d 456 (1962). See also Jones v. Industrial Commission, supra; Oklahoma Steel Castings Company v. Wilson, supra; Shivers v. Biloxi-Gulfport Daily Herald, supra; 1A Larson's Workmen's Compensation Law § 38.64(c), p. 7--145 ('The most obvious relevance of this element (continuing exertion after symptoms) is in showing causal connection between the obligations of the employment and the final injury; for if the workman, for some reason, feels impelled to...

To continue reading

Request your trial
41 cases
  • McSpadden v. Big Ben Coal Co., 63537
    • United States
    • United States State Supreme Court of Iowa
    • January 23, 1980
    ...of an erroneous principle of law, this court has decided that both reversal and remand are necessary. See Sondag v. Ferris Hardware, 220 N.W.2d 903, 908 (Iowa 1974). It is this precise situation which exists in this A. Finding that Claimant Failed to Prove Pneumoconiosis. Claimant asserts t......
  • Kostamo v. Marquette Iron Min. Co., CLEVELAND-CLIFFS
    • United States
    • Supreme Court of Michigan
    • January 12, 1979
    ...Rule of Certainty: An Analysis and Proposal for a Federal Evidence Rule, 20 Wayne L.Rev. 781, 797-808 (1974).29 See Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974):"The very nature of opinion evidence deprives it of the quality of absolute certainty. If it had the quality, it wou......
  • McKeever Custom Cabinets v. Smith, 84-1317
    • United States
    • United States State Supreme Court of Iowa
    • December 18, 1985
    ...period of time including the first two incidents, and not simply from one or two events. McKeever cites such cases as Sondag v. Ferris Hardware, 220 N.W.2d 903 (Iowa 1974). The commissioner's decision meets the requirements of those The third subsidiary question relates to the effect of the......
  • Kostelac v. Feldman's, Inc., 91-1755
    • United States
    • United States State Supreme Court of Iowa
    • March 24, 1993
    ...work related. Here is not an opinion lacking absolute certainty but a statement without probative substance. See Sondag v. Ferris Hardware, 220 N.W.2d 903, 907 (Iowa 1974); see also Auxier v. Woodward State Hosp. Sch., 266 N.W.2d 139, 144 (Iowa 1978). Two other psychiatrists testified that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT