Tischer v. City of Council Bluffs
| Decision Date | 07 April 1942 |
| Docket Number | 45668. |
| Citation | 3 N.W.2d 166,231 Iowa 1134 |
| Parties | TISCHER v. CITY OF COUNCIL BLUFFS et al. |
| Court | Iowa Supreme Court |
Miller, Huebner & Miller, of Des Moines, for appellants.
Nathan E. Gillin, of Hollywood, Cal., and Tinley, Mitchell, Ross Everest & Geiser, of Council Bluffs, for appellee.
The claimant Kenneth L. Tischer, on June 11, 1931, while in the employ of the defendant city of Council Bluffs, driving a truck, was injured when he was attempting to lift a barrel of garbage onto the truck and such barrel slipped and struck him about the left hip. He was receiving $100 a month for his services as garbage collector. He was paid compensation for a total of 22 weeks. On September 29, 1931, claimant signed an application for commutation, prepared by his attorney and mailed to the industrial commissioner.
Claimant's attorney several times wrote to Commissioner Funk. In a letter dated October 2, 1931, he stated that: "* * * client is extremely anxious to get this money now and pay for rent, groceries, and harassing creditors, and wants to get back on the job again." He arranged for securing the proper papers, and on October 6, 1931, he stated in a letter to Mr. Young, the deputy industrial commissioner, that he had filed a memorandum of agreement and application to commute and again urged early action "as client is daily inquiring and beseeching me to close the matter." The attorney also forwarded a letter from Dr. Weinberg of Omaha and there was a report from Dr. Sternhill of Council Bluffs. Dr. Weinberg's letter stated that the patient had made a very satisfactory recovery and would be capable of performing heavy labor within two months (from September 29, 1931). Dr. Sternhill, who attended Tischer, stated in his report and on this hearing, that he was of the opinion Tischer would be able to resume his former employment by December 1, 1931, with no permanent disability; that he and Dr. Weinberg estimated that Tischer would be able to return to his work in about two months after September 29, 1931; and that on October 6, 1931, he considered it very reasonable and probable, and a reasonably correct prognosis, that Tischer would be able to return to work in a month or two, and that there would be no permanent disability. Dr. Sternhill also made several reports, shown in the record as exhibits, the first of which was dated June 17, 1931, and estimated that the claimant would be able to return to work in about two weeks. The second report, dated July 1, 1931, stated that it was not likely that permanent injury would result. A third report showed that the patient was discharged as improved September 25, 1931, and would be able to resume work on or about December 1, 1931, and that there was no permanent disability.
It is not shown that the deputy commissioner ever had a formal hearing, but there is evidence that Industrial Commissioner Funk gave the deputy commissioner instructions concerning the proceedings, instructing him to make an investigation, and that Mr. Young, the deputy, did go to Council Bluffs, taking with him the file of the claim. As to the nature of the investigation the record does not disclose. It is shown that the claimant, through his attorney, requested the commutation, and it was at his solicitation that it was made.
The order of commutation made on October 6, 1931, was on the blank used for that purpose by the commissioner. This blank contained the application by Tischer, alleging the date of the injury, that he was entitled to 22 weeks' compensation at $15 per week, that he had received 12 weeks' compensation to September 20, 1931, and full commutation for the remaining period would be $150, not to be discounted. The application alleged that:
The application was signed and verified by Kenneth L. Tischer, before Harry L. Cherniss, a notary public, on September 29, 1931. At the bottom of the paper and following the application is the following: "Commissioner's approval and order. This application is duly approved. Parties in interest having waived presentation of petition for commutation to the district court, lump sum settlement is hereby ordered on terms and conditions herein stated.
On October 8, 1931, the money agreed upon was paid to the claimant and he signed a final receipt and release for compensation.
Several years afterward, on May 12, 1937, the claimant filed application for reopening the case. There is no evidence in the record as to what was done with this application. On the 19th day of February, 1938, the claimant filed an application for vacation of commutation and review, which was of considerable length but it may be summarized as follows: (1) That he was not fully advised as to the meaning and legal consequences of the application signed by him on September 29, 1931, asking for the commutation; (2) that the period for which compensation was payable could not have been definitely determined at the time the commutation was approved and that there was no satisfactory evidence presented to the deputy commissioner indicating that the period during which the claimant would be disabled could be definitely determined (3) that at the time the application for commutation was presented to the deputy commissioner and the final approval thereof given there was no advantage to claimant, but an injustice was worked on him; (4) that it was an abuse of discretion for the deputy commissioner to approve or grant such commutation; (5) that claimant, from the day he was injured, June 11, 1931, continued to be at least partially disabled and unable to fully perform the type of work in which he was engaged, and has never recovered from the injury; and (6) that the city of Council Bluffs and the insurance carrier did not, in a legal manner or by an accredited agent, waive the presentation to the district court of Pottawattamie county, and that there was no waiver, and such failure to waive presentation rendered the commutation void and invalid. He further stated, first, that the compensation paid was on the basis of time lost from his employment and not on the basis of any permanent partial disability or permanent total disability; and second, that his condition had grown progressively worse as a direct result of the injury he received on June 11, 1931. Further claims were made as to his condition, inability to perform labor, that the extent of his injuries was not thoroughly understood at the time the original payments were made; and he alleges that he is at this time entitled to be compensated at the rate of $15 per week for 400 weeks, being the amount of permanent total disability, subject to credit for $330 already paid, and that he is further entitled to an allowance of $255 for additional and necessary medical treatment. His prayer is that, after the setting aside of the alleged commutation, this matter be reopened and reviewed. In answer the defendants deny that there was no satisfactory evidence produced or presented to the deputy industrial commissioner, and allege that there was evidence before the deputy commissioner, and the claimant's own sworn statement that: "The period during which compensation is payable can be and has been definitely determined, settled and agreed upon." They further allege that there was submitted to the deputy commissioner a report from claimant's physician showing his opinion that the claimant would be fully capable of performing heavy labor within two months from September 29, 1931. They further specifically deny that the commutation was approved or ordered without any showing that it would be for the best interest of the claimant. They refer to letters and to claimant's statement and request for commutation. They deny that there was not a legal waiver of presentation of the application for commutation to the district court, and allege that the claimant is estopped to deny the validity, legality, and binding force of the commutation because such order was made at the instance of the claimant and in reliance upon the claimant's sworn allegation, and that the claimant has been paid and has retained the sum of $150 as a full and final payment of workmen's compensation due on account of the injury and in satisfaction of said order of commutation, which is evidenced by a final receipt and release for compensation executed by the claimant and filed with the industrial...
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