Gosek v. Garmer and Stiles Company

LeGRAND, Justice

(dissenting).

I dissent. Although I agree with the impressive array of authority cited for the proposition that a workmen’s compensation award may be increased upon satisfactory showing that a condition from which plaintiff now suffers was unknown and undiscoverable at the time of a prior hearing, I do not find the record justifies any such conclusion here.

My specific disagreement is with that portion of the majority opinion which finds the plaintiff, at the time of the second review-reopening hearing, established a condition which was unknown and which *738 could not have been discovered by the exercise of reasonable diligence at the time of the first review-reopening hearing. I find no substantial evidence in the record to support that statement.

The first review-reopening hearing was held March 23, 1964. A decision was handed down in May, 1964. On August 19, 1964, another petition for review-reopening was filed and hearing thereon was held on September 25, 1964. The majority opinion finds that between the first and second review-reopening hearings plaintiff for the first time discovered he was suffering from an injury-connected neurosis. Yet the record shows he knew he had a psychiatric problem at the time of the first hearing and, in fact, considered seeing a doctor about it but decided not to do so because “the insurance company would not pay for it.” Disregarding the fact that plaintiff, or at least plaintiffs counsel, must have known the Industrial Commissioner could compel payment of proper medical expenses, this statement shows plaintiff was aware on March 23, 1964, of the very problem for which he now seeks additional compensation on the theory it is new and was not discoverable at an earlier date.

I cannot believe the Workmen’s Compensation Act intended a claimant who was unsuccessful after full hearing should be allowed to overthrow that determination by then bringing forward additional evidence which could have been, and should have been, produced at that hearing. The majority relies heavily on Messer v. Drees, Ky., 382 S.W.2d 209 . Even that case, however, does not contemplate relief under the circumstances shown here. There at page 212 the court said, “We do not suggest that after a case has been lost or appears about to be lost counsel should be allowed to halt the proceedings and bring up reinforcements.” That is precisely what claimant is being permitted to accomplish here.

He asserts the evidence upon which he now relies was not available to him at the time of the first hearing. This is not borne out by the record. The evidence was always available and plaintiff was always aware of his condition, although not in specific detail. All plaintiff did between the first and second hearings was obtain a new witness, the eighth doctor, incidentally, who treated or consulted with him since his injury.

The record shows plaintiff knew of the problem about which he now complains; that he considered seeing a doctor about that very condition; that he neglected to do so until after he was unsuccessful in the hearing of March 23, 1964; and that he now seeks to avoid the impact of that decision by claiming a new disability about which he did not and could not have any knowledge prior thereto. This is the basis for the majority’s holding here. I find it to be entirely unsupported by the record.

Nor can I agree with the majority’s gentle emasculation of Stice v. Consolidated Independent Coal Company, 228 Iowa 1031 , 291 N.W. 452 . Stice was decided in 1940. It was marked by a sharp dissent which carefully pointed out wherein the opinion was thought to be erroneous. Yet the legislature in more than 27 years has not seen fit to amend what is now section 86.34, although it has frequently amended the Workmen’s Compensation Act in one way or another. Under these circumstances it is no longer debatable whether we properly interpreted the legislature’s intention in enacting that section originally. In view of that prolonged legislative inaction, we must assume the legislature has acquiesced in our interpretation of the section in question. It is a familiar rule of law that failure to amend a statute after it has been interpreted by the courts raises a presumption of legislative satisfaction with that interpretation. 82 C.J.S. Statutes, § 316 p. 549; General Mortgage Corporation of Iowa v. Campbell, 258 Iowa 143, 152 , 138 N.W.2d 416, 421 .

In allowing plaintiff an additional award here, I believe the majority flies directly *739 in the face of the Stice decision, particularly that language at page 1038 of the Iowa Reports at page 456 of 291 N.W. which says, “We can find no basis for interpreting this language [section 86.34] as meaning that the commissioner is to redetermine the condition of the employee which was adjudicated by the former award.”

I would affirm.

LARSON, SNELL and MOORE, JJ., join in this dissent.