*1 driving, reasonable doubt .as to his intoxication when he was acquit. contention, they they should Also if believed defendant’s they officers, give testimony should no consideration to the nor to the blood test.
IV. Appellant listed seven issues in argu his brief and argued ment. His counsel only three. Rule 344, Rules of Civil Procedure, provides: propositions “Errors or stated or not argued shall be deemed waived.” v. Mead, State 237 Iowa 475, 476, 22 we said: “The rule is well established that errors assigned which argued are not are deemed waived.” See also v. Harding, State 204 Iowa 642; N.W. State v. Neifert, 206 220 N.W. Sampson, supra. State v.
The case is—Affirmed.
All not, Bliss, except J., Justices concur sitting. Poultry appellant, Alice Barton, Company, v. Nevada Hawkeye Security employer, and Insurance Company, insurer, appellees.
No. 50315.
September 19, 1961. Rehearing Denied December Hadley Nevada, Countryman, appellant. & Whitfield, Musgrave, Selvy, Fillmore & of Des Kelly, Moines, appellees. *3 question J. The real here is to the involved
Hays, period of time claimant entitled to receive is chapter 85, under Code of 1954. physical injury trauma, body
The actual or of the contact substance, foreign right with a was limited to claimant’s foot Compensation and ankle. paid was to her for 120 weeks under agreement 86.13). a memorandum (section Application (section 86.34) review of agreement was filed wherein alleged permanent disability claimant compen- total and asked testimony sation be made under section 85.34. The hearing sharp was in conflict disability, ranging as to claimant’s from total permanent partial, to right to of the foot. 20% 50% All agreed right foot, that as a result of blow to the circulatory ailment, from which claimant suffers a constant burning affecting pain, system, her entire developed nervous has which is “Causalgia” known record as “Sudeck’s Atrophy.” review,
While we find Commissioner, the decision of the on to be confusing, rather it we think is clear that claimant was found totally that, to be disabled. It clear based interpretation Commissioner’s of section as this court has decisions, commented thereon in further relief was several denied claimant. In so denying, the Commissioner stated: physi conclusively that the actual establishes evidence “The '* * * right extremity. lower to the was injury
cal confined disability and com definitely it a scheduled Therefore, 85.35) despite (Section to the schedule be limited pensation must injury, unable because to totally disabled she is fact education, of her employment and because lack her resume ability to secure strength or is unable physical experience or be employment not entitle her to classified as does other suitable added.) Citing Dailey totally (Italics permanently disabled.” 764, 765, 10 N.W.2d Co., 233 Iowa Lumber 268 N.W. Shores Soukup v. of the decision upon appeal affirmed the
The district court and conclusions findings to of fact Commissioner both as his question it to before be law. district court stated the specifically fixed “whether must be limited that by the it should be determined the loss of a or whether sustained, Commis- actually which the extent Citing Soukup sioner from quoting found to be total.” and Co., supra, question court as follows: answered “It clear, therefore, now stands in that as law of compensation specifically award fixed must be limited to that for the extent loss of a foot cannot be determined though disability actually even words, sustained. other her totally claimant found disabled as the Commissioner be in case, except upon this she the basis cannot recover provisions loss of a specifically which relate to the law any foot not to because to the sustained was foot *4 (Italics other part body.” ours.) the of interpretation assigned, upon Error based an erroneous of the law.
I, makes agreed It is that where the Commissioner in evidence findings fact, upon of based substantial conflict a alleged here, him, alleged, before none is and no fraud is and such conclu findings jury verdict and are have the force Olson, Inc., upon sive & appeal. 86.29; v. Booth Section Stowe Iles, 250 Iowa Henderson N.W.2d 787, 96 N.W.2d 321. The that the deter law is well settled questions mination of by Commissioner, of while en- law consideration, subject is not conclusive and careful titled to Superior Mfg. Co., 249 appeal. Scheel v. to an review 377; Hansen v. State, 249 Iowa 89 N.W.2d only appellees issue before 555. While contend finding by to the effect is a the Commissioner the court facts we proof, failed in her burden think that claimant has legal subject and issue is to review. one Act, Compensation II. Workmen’s Chapter 85, the limitations, subject and, a creature of to constitutional statute may provisions legislature contain such limitations as the benefit, may prescribe. However, enactments for the be, workingman reason, liberally and should within con strued. chapter prescribes categories disability three
provides compensation payable under each. —- — 85.33, Temporary healing
Section in disability period part, provides: employee “In the event the an has suffered injury causing permanent partial disability compen- for which payable provisions sation is under the 85.35, of section the em- ** ployer pay shall disability. Section 85.34 states: “Permanent total For an injury causing permanent disability, employer total shall * * pay *, not, however, beyond five hundred weeks.”
Section partial Compensa- “Permanent disabilities. permanent tion partial disability begin termina- shall at the tion of healing period provided in section 85.33 and shall be based disability, extent of and for all cases *# * ineiU(ie(i jn following schedule be shall * * * paid as follows: * * * “14. For the loss of fifty one hundred weeks.
«* # #_
“20. permanent all other cases partial disability, compensation shall bear periods compen- such relation sation stated the above schedule as bears produced those injuries named in the schedule.” “injury” “something contemplated under the Act * * * extraneously processes nature, that acts to natural and thereby impairs health, injures, overcomes, interrupts,
290 destroys
or of the or body, damages some function otherwise or injures body.” Almquist a part or all the v. Shenandoah Nurseries, 724, 732, 35, 38, 254 573; 218 Iowa N.W. 94 A. L. R. 304, Bocian v. & 244 56 Co., Armour Iowa N.W.2d 900. disability contemplated by The the isAct “industrial disability earning capacity, mere func and not —reduction 758, disability.” Dailey tional Lumber 233 Co., v. Iowa Iles, Henderson v. N.W.2d 321. injury disability, producing the cause. which
generally compensation payments, determines the extent body the result (injury) of the cause it upon the human upon injured ability bears person wages. the of the to earn Disability ordinarily question Commissioner, for a fact may any categories, be one of three named result and the dependent upon bearing above, evidence thereon. supra, gener- providing
III. Section addition to partial ally permanent that goes disability, extent further shall be determined of the that, provides where, of an the claim- result specified body, his such parts ant has sustained loss provided. compensable only to extent therein be loss shall causes where the an by legislative edict, result Thus, its loss, together with ensu- foot, eye, etc., the loss of a permanent body, declared to be ing natural results only compensa- prescribed disability and entitled partial ability injured party to earn case, In such a tion. ability determined, though even wages to be is not a factor loss of the gone. might be added that may entirely be It unit involved. etc., loss eye, is deemed to be use 819, 184 Mining Union Coal Moses National N.W. law, decision, as to the
IY. its The trial court bases 222 Iowa Co., supra, Soukup appearing in statement statute of the above provisions is: page 277. It “Under at definitely fixed legislature has 85.35], section we think [now specific paid be that shall the amount of regardless of the educa- injuries that, enumerated, therein
291 * * * * * * inability engage employment tion in or of his to * * * fitted, which he is the is limited to the amount therein fixed.” The case is one wherein the Commis- partial disability found of foot and permanent sioner a awarded under and accordingly 85.35(20), section on finding appeal quoted was held conclusive. to be state- ment is dictum. Dailey pages In Co., supra, Lbr. 233 Iowa at * * * 765, this court said: no “This section sets [85.34]
limitation physical which concerns the injury location of the causing disability. only limitation sort is that found * * * ‘permanent where disability’ injury total from comes some * * * by in limited and included the schedules [section 85.35]. disability, may Permanent total said, as have be caused we injury, though body some part scheduled even of the no other * * * [may] may be affected. This happen because lack training, age, peculiar or other condition to the individual. Such injury, though arbitrarily causing permanent disability, total is compensable according to the But where schedule. there injury member, body to some parts scheduled and to not schedule, included in ‘permanent the resultant total * *'* disability,’ compensable under Code section [sec- tion The foregoing was statement is dictum as case 85.34].” one wherein it was found that the extended suffered beyond the apply. schedule and it did not
We also direct of the case of attention to Division [6] Henderson Iles, 731, 733, 82 N.W.2d where Soukup v. Co., supra, quoted cited from. That jurisdiction held case no entertain the the district court had to appeal also, finding by that the Commissioner “‘disability body a whole’” to the extent of as 17%% quote Soukup appeal. The from the case was conclusive way deals in no involved in case. with matter authority as Y. cited cases to be taken Are the above injury proposition specific location of physical that the not. compensation? We think determines the in- in each inclusive) 85.35(1 reference is section not mean body. unit This does stance to of some “loss” cited, cases If, the result. cause—'but —the therein, reference to the used with injury, reference cause, result, rather than of loss sense in the statute, used of' the think correct statements therein are statements we compensable only under the but may be total Disability law. nothing there is a construction Under such schedule. specific the actual at location hints even that therein of com- being the extent trauma, determinative of physical “injury” in the sense is used pensation If the word payable. loss, result, think such "the we being rather than cause *7 The and the district is erroneous. Commissioner a construction appear placed such a construction to have court both appearing in in thé 85.35(1-19), light of statements section hold, they if so so far as such statements above cited cases. specifically disapproved. do, the same very Dailey v. similar to The instant case is injury, supra, wherein the court held that the Lumber beyond scheduled by claimant extended loss, suffered Compensation apply. did not leg of a and the schedule loss Here,' payments under section 85.34. while were determined right foot, trauma, was limited to the the Com claimant, missioner was thereof, found a result affected with as beyond an ailment that extended the scheduled loss applicable. is not The the use thereof. schedule Com missioner found refused as a total but classification “permanently totally interpreta an disabled” under erroneous tion of the law. The district court affirmed the Commissioner both as to the facts and the law. The claimant entitled to a “permanently totally classification of disabled.” appellees VI. The urge, a as basis an affirmance court, trial claim proper that claimant refused medi deprived compensa cal and thus treatment further herself of tion, citing Stufflebean City Dodge, of Fort disagreement' record a among shows physicians as to proper treatment. Claimant' following was - the directions of her physician. own It is not for this court say which course of treatment proper, at least record before us. trial court is reversed and remanded
The decision of the “permanently totally entry a classification dis- compensation accordingly. abled” and an award —Reversed and remanded. J., C. Bliss, Thompson,
Garfield, Oliver, Thornton JJ., and Snell, concur. JJ.,
Larson dissent. Peterson, myself find J. unable to concur in Larson, (dissenting) —I majority opinion filed herein for, language while the used by the Commissioner in absolutely his decision is clear, not it is quite clear he found physical fact that disability or employee actual suffered solely was confined to the scheduled area. amply The evidence sustained that determina- tion, and thus binding upon was the court.
Functionally injury totally this employee, disables the result not when, unusual here, age, experience or education is also However, legislature involved. clearly provided a limit to recovery for the impairment total loss or of certain scheduled areas section Code, 1958, and, while we have passed directly not on the issue, clearly we have indicated our position as to the recovery limit of employee when the does not *8 prove physical impairment extending beyond that I area. think our position, even if stated as dictum, has been sound. Trial courts and .textbook writers have so understood us. See “The Iowa Law of Workmen’s Compensation”, Research Series No. 0;Soukup 196 Co., 272, 277, 268 N.W. 598; Dailey Lbr. 764, 765, at N.W.2d 569. I do not just believe it wise depart or from that position. To do so province would invade legislature, a, step we do except not take compelling most circumstances.
The true rule in state, this I it, see is that when there is am impairment and'the resultant loss or of a sched- uled member specifically area which fixed (section the statute 85.35), amount so governs fixed unless, a result it shown that no such damaged. There was bodily functions
other trial court’s decision. I would affirm the justified here and finding in this J., joins dissent. Peterson, Mary Hyland Standiford; A. al., appellees, v. L. A. et Mrs. Standiford, of B. E. M. executor estate Clovis, Claude Clovis, guardian property M. deceased, and Claude Standiford, appellants. Mary incompetent, A. No. 50435.