Ziegler v. U.S. Gypsum Co.

• Decision Date: 13 December 1960
• Docket Number: No. 50129,50129
• Citation: 106 N.W.2d 591,252 Iowa 613
• Parties: Richard ZIEGLER, Appellant, v. UNITED STATES GYPSUM COMPANY, Inc., Appellee.
• Court: Iowa Supreme Court

Page 591

106 N.W.2d 591

252 Iowa 613

Richard ZIEGLER, Appellant, v. UNITED STATES GYPSUM COMPANY, Inc., Appellee.

No. 50129.

Supreme Court of Iowa.

Dec. 13, 1960.

Rehearing Denied Feb. 8, 1961.

Bradshaw & Crawford, Fort Dodge, for appellant.

Burnquist, Helsell, Burnquist & Kersten, Fort Dodge, and Wendell J. Brown, Chicago, Ill., for appellee.

LARSON, Chief Justice.

This is a most unusual case. The claimant's principal contention is that there was sufficient competent evidence before the commissioner that he suffered a new injury or an aggravation of a pre-existing infirmity when he returned to work at defendant's plant May 21 to 27, 1957, to justify a finding by the commissioner that he was temporarily disabled and was entitled to receive compensation benefits for this period of disability, separate and distinct from the claim for disability originally suffered in an accident at defendant's plant May 16, 1956, caused by a third party tort-feasor. The deputy commissioner and the industrial commissioner found for claimant. The district court reversed. We disagree.

The issues submitted in the appeal to the district court and here are: (1) Did the commissioner act in excess of his powers? (2) Did the facts found by the commissioner support the decision and order? (3) Is there sufficient competent evidence in the record to warrant the making of the decision and order? Section 86.30, Code 1958, I.C.A. Principal consideration was directed to the latter issue.

I. In order for claimant to obtain compensation for his alleged temporary disability following the May 27, 1957, event, it is necessary for him to prove by a preponderance of the competent evidence that the claimed temporary disability occurred while in the course of his employment during the six days he had attempted to return to light work. It was his burden. Almquist v. Shenandoah Nurseries, 218 Iowa 724, 728, 254 N.W. 35, 94 A.L.R. 573 and cases cited therein; 58 Am.Jur., Workmen's Compensation, § 438, p. 859. However it is the industrial commissioner who weighs the evidence, not the courts. They only examine it to determine whether it is sufficient to sustain the factual conclusion of the commissioner. Belcher v. Des Moines Elec. Light Co., 208 Iowa 262, 225 N.W. 404. In passing upon the question as to the sufficiency of the competent evidence to warrant a finding of fact of this nature, we must consider the evidence in the light most favorable to claimant. Bousfield v. Sisters of Mercy, 249 Iowa 64, 68, 86 N.W.2d 109. Wherever, from the facts expressly found, others may be fairly inferred which will support the award, such inferences will be drawn. Rose v. John Deere Ottumwa Works, 247 Iowa 900, 907, 76 N.W.2d 756, and cases cited therein; Section 86.18, Code 1958, I.C.A.

II. This court has repeatedly held that where the evidence is in dispute, or where reasonable minds may differ on the inferences to be drawn from the proven facts and circumstances, the findings of the commissioner are conclusive. If the evidence presents a question which should be submitted to a jury, if the trial were before a jury, then the court is bound by the finding of the industrial commissioner. Almquist v. Shenandoah Nurseries, supra; Henderson v. Iles, 248 Iowa 847, 853, 82 N.W.2d 731, and cases cited therein. But if, as contemplated by the statute, Section 86.30, Code 1958, I.C.A., the evidence and reasonable inferences that may be drawn therefrom do not sustain the conclusion reached by the industrial commissioner, the courts may set saide, modify, or reverse his ruling. Volk v. International Harvester Co., Iowa, 106 N.W.2d 649; Tunnicliff v. Bettendorf, 204 Iowa 168, 170, 214 N.W. 516; Enfield v. Certain-Teed Products Co., 211 Iowa 1004, 233 N.W. 141. Thus we must examine the evidence present here, which admittedly is largely undisputed.

The case has unusual aspects. While it seems all parties agree that the claimant suffered a serious injury while in the course of his employment with defendant on May 16, 1956, when he was involved in a switching accident and pinned between the end of a railroad car and the side of a trackmobile, they do not agree as to the cause of claimant's inability to continue working for the employer after his return May 21, 1957. Claimant contends the tasks performed while in defendant's employ on May 27, 1957, aggravated his previous injury and further extended his disability. The defendant employer, on the other hand, contends the evidence discloses no new injury and no aggravation of his pre-existing impaired physical condition.

Under the record we find claimant, Richard Ziegler, while in the course of his employment as a crane operator on May 16, 1956, was seriously injured and received compensation benefits from defendant until he returned to work May 21, 1957. They were later extended to cover the period from May 27, 1957, until July 15, 1958. In addition to a broken nose, lacerations, and torn back muscles, a close examination of the X rays disclosed he had suffered compression fractures of the eleventh and twelfth thoracic and the first lumbar vertebrae. Apparently he suffered other undetected back injuries. At that time he was attended by Dr. Kersten and Dr. Knowles. They applied a cast. He wore it until October, 1956, when it was replaced by a back brace, which he used until the following April or May. This treatment healed the fractured vertebrae but did nothing to help what was believed to be soreness in his back muscles. Pain in various degrees persisted. Dr. Sebek examined claimant in March, 1957, and found certain areas of pain which were not normal. He said: 'There were two different levels where I found the original injury to the spinal column. The twelfth thoracic is where he had this compression, and the first sacral is the level where he has the bulged disc. Deep pressure is painful over the mid and low back areas.' He also found pain in certain leg motions and a 'mild vague tenderness over the right scapular area.' This right scapular area is the shoulder blade in the back.

Nevertheless, and pursuant to Dr. Kersten's advice that light work would be beneficial, claimant testified he returned to work for defendant May 21, 1957. His first task was to sweep the floors and do general clean-up work. The last two or three days he worked on the fifth floor pushing stucco into a bin when part of that in the dump kettles did not fall in the opening. He used a rake or hoe for that purpose, and it involved pushing and pulling a thirty-pound rake. He also used a rubber-tired wheelbarrow to collect and dump excess stucco. He didn't fill the wheelbarrow, but loaded about fifty pounds per trip. He had pains from the start but 'it just kept getting worse right along, really noticed it when I picked up the wheelbarrow.' He also stated, 'It was during the tipping operation that I noticed the pain.' On May 27, 1957, the last day he worked, he was having quite a little trouble with his back and went down to first aid for a heat treatment. As usual, he had trouble climbing the stairs and when 'I went to lift up on the wheelbarrow I noticed a terrific pain down my spine, down my legs.' He then went downstairs about 10:30 a. m., did some cleaning with a whisk broom, and asked to get off at noon.

The next day Dr. Sebek sent him to Lutheran Hospital to reduce the pain in his back so he could be examined. Dr. Sebek stated that in his opinion claimant was not then suffering from any pain from the injury he had previously had to the eleventh and twelfth thoracic vertebrae. It had healed, but he thought the current pain came from a bulged disc at the fifth lumbar level. He said that 'as the bulge increases you usually get more distinct pain down the bones.' He did not say when or how claimant received the injury causing the disc to bulge, but strongly inferred that the condition had been aggravated by the work claimant had been doing at defendant's plant. On the other hand, it is not difficult to draw an inference that the original accident was the cause of the original damage to this disc. It may well have been herniated, ruptured and deteriorated prior to the return to work May 21st. However, regardless of the extent of this injury, the evidence is clear and undisputed that there was some injury in that area as a result of the accident May 16, 1956. The troublesome question is: Was the condition shown to be such that it alone disabled claimant when he attempted to perform any tasks? In other words, to what extent did the undiscovered disc injury disable claimant? Was there evidence of an aggravation of that injury? Did the aggravation, if any, cause further disability of claimant? Defendant offered no evidence on these issues, but assumed claimant remained disabled from the original injury and did not carry his burden to prove the contrary.

Under the usual case of this kind a simple application to revalue the disability resulting from the first injury might be made, under the provisions of Section 86.34, Code 1958, I.C.A., which provides: 'Any award for payments * * * may be reviewed * * * and if on such review the commissioner finds the condition of the employee warrants such action, he may end,...