Soukup v. Shores Co.

• Decision Date: 31 July 1936
• Docket Number: 43324.
• Parties: SOUKUP v. SHORES CO. et al.
• Court: Iowa Supreme Court

268 N.W. 598

222 Iowa 272

SOUKUP v. SHORES CO. et al.

No. 43324.

Supreme Court of Iowa.

July 31, 1936

Appeal from District Court, Linn County; Atherton B. Clark, Judge.

Appeal from decree and order of district court setting aside finding and order of deputy industrial commissioner. The opinion states the facts.

Reversed and remanded.

Carr Cox, Evans & Riley, of Des Moines, and B. T. Perrine, of Cedar Rapids, for appellants.

Carl F. Jordan, of Cedar Rapids, for appellee.

DONEGAN, Justice.

On December 22, 1933, the claimant, Frank Soukup, was working for the Shores Company. While engaged in tearing down part of a brick building he fell from a scaffold upon which he was standing and sustained a fracture of the oscalcis or heel bone. On January 16, 1934, the claimant and his employer and the St. Paul-Mercury Indemnity Company, which carried the employer's liability insurance, filed in the office of A B. Funk, Iowa industrial commissioner, a memorandum agreement of settlement under which the claimant's compensation was fixed at $7.26 per week. After 49 such weekly payments of compensation had been made, the insurance carrier discontinued payments. Thereafter, on December 17, 1934 claimant filed with the industrial commissioner an application for reopening the cause under the provisions of section 1457 of the Code, alleging that he was totally disabled, that he was not able to return to his work by reason of the condition of his leg, which was still being treated by physicians, and asked that upon hearing he be granted such relief as he might be entitled to in the premises. On March 23, 1935, the defendants, Shores Company and St. Paul-Mercury Indemnity Company, filed answer alleging the payment of compensation for 49 weeks, that they had tendered the claimant an additional payment of $7.26 to make a total of 50 weeks, denying all the other allegations of the application, and asking that the application be dismissed. Hearing was had on this application before the deputy industrial commissioner, on April 2, 1935, at which time evidence of the claimant, of two doctors, one in behalf of claimant and the other in behalf of the defendants, and an extract from a letter of Dr. Steindler of Iowa City were admitted in evidence. On the 6th day of April, 1935, the deputy industrial commissioner rendered a decision in which he found that the claimant's right foot was permanently disabled 50 per cent., and ordered that he be paid additional compensation in the sum of $98.01. From this decision of the deputy industrial commissioner the claimant appealed to the district court of Linn county, Iowa. On hearing of this appeal the district court entered a decree finding that the claimant had been totally and permanently disabled industrially, and that, by reason thereof, he was entitled to a total of 400 weeks' compensation, including the payments previously made, with interest on payments past due from the time they became due. From this decree and order of the court, the defendants, employer and insurance carrier, appeal to this court.

Two errors are alleged and presented for our consideration as grounds for reversal: (1) That the decree of the district court is void because that court was without jurisdiction to entertain or decide the appeal; and (2) that the district court erred in finding that the claimant was totally and permanently disabled and entitled to 400 weeks' compensation, and in refusing to confirm the finding and award of the deputy industrial commissioner as to the extent of claimant's disability and as to the compensation to which he was entitled.

I.

It is claimed by the defendants-appellants in this case that the district court was without jurisdiction to consider the appeal from the decision of the deputy industrial commissioner, because, it is alleged, the only appeal provided for in the Workmen's Compensation Act is found in section 1449, Code of 1931, and the only appeal authorized under that section is from a decision or order of the industrial commissioner in a proceeding on review. It is argued that the decision of the deputy industrial commissioner reopening the case was not a decision or order in a proceeding on review, and that, therefore, no appeal from such decision lies to the district court. It may be conceded that no appeal to the district court can be had in workmen's compensation cases, except as provided by statute. Home Savings & Trust Company v. District Court of Polk County, Iowa et al., 121 Iowa 1, 95 N.W. 522; Midwestern Realty Company v. City of Des Moines, 210 Iowa 942, 231 N.W. 459.

It may also be conceded that the only provision for an appeal from an order or decision of the industrial commissioner is that found in section 1449, Code 1931, and that, by the terms of that section, such appeal is confined to orders or decisions of the industrial commissioner " in a proceeding on review." The case of Hampton v. Des Moines & Central Iowa R. Co., 217 Iowa 108, 250 N.W. 881, cited by appellants, involved an appeal to the district court from a finding and award of the industrial commissioner sitting as an arbitrator; the appointment of arbitrators by the parties having been waived. No review of such finding was asked as provided by section 1447 of the Code, and this court held that the district court was without jurisdiction to consider such appeal, because it was not from a decision or order of the industrial commissioner on review, but was from the decision and award of the commissioner as arbitrator. We think the appellants are mistaken, however, in their contention that the only proceeding on review before the industrial commissioner, from which an appeal may be taken, is a proceeding in which the industrial commissioner reviews the finding of an arbitration board, or of himself or his deputy sitting as arbitrator. Section 1457, Code of 1931, is as follows: " 1457. * * * 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 five 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." (Italics ours.)

Under the express terms of this statute the action of the industrial commissioner in opening up an award or agreement previously made is called a review and on such review, if the commissioner " finds the condition of the employee warrants such action, he may end, diminish, or increase the compensation so awarded or agreed upon." Section 1425, Code of 1931, is as follows: " 1425. * * * In the absence or disability of the industrial commissioner, or when acting under the directions of the commissioner, the deputy shall have all of the powers and perform all of the duties of the industrial commissioner pertaining to his office."

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