The underlying facts do not appear in the majority opinion. They are the following: The injury was to claimant's left knee. It was caused by an accidental hammer blow while he was laying tracks. On January 13, 1937, Dr. Arthur Steindler of the State University Hospital performed upon the knee a surgical operation. On April 8, 1937, Dr. Steindler discharged claimant from further treatment. By reason of the operation there had been complete recovery from the injury. Claimant has ever since been able to work, free from any impairment of the normal functions of the knee. Proof of these facts constituted the salient portion of the showing made at the hearing held November 5, 1937, in support of claimant's contention that the injury had not been a permanent one barring him from compensation for temporary disability, as the deputy commissioner had mistakenly decided on November 9, 1936. These undisputed facts established what was the condition of claimant. That condition necessitated a finding of fact that the injury had not been a permanent one, and as to this the majority raises no question. Nevertheless they approve the deputy commissioner's ignoring of the facts and refusal to make that finding. In according this approval the majority, as its first step, writes into section 1457, Code 1935, (figuratively, of course, but as effectively as though we were the legislative branch of government) the words "a change in the condition of the employee", *Page 1043 where the legislature reposed the words, "the condition of the employee". Not only in itself is this clear invasion of the province of the legislature deserving of forthright criticism, but what the majority offers as its justification strengthens the impression that the whole proposition has for some reason failed of careful consideration. The justification is substantially this: (1) The Workmen's Compensation Law of Iowa provides that if on reviewing an award the commissioner finds the condition of the employee warrants, he may do certain things; (2) the Workmen's Compensation Laws of many other states provide that on reviewing an award the commissioner may do certain things upon a showing of a change in the condition of the employee subsequently to the making of the award; (3) therefore, says the majority, the legislature of Iowa must have intended to use the same words that appear in the acts of the many other legislatures. In so casual a manner that it approaches the whimsical the majority thus discards the wholly reasonable probabilities that the Iowa legislature may have had a mind of its own, may have deliberately chosen to accord a liberality of administration of our law that is not found in many states of differing industrial activity, or may have followed, if our legislators were such followers as the majority believes, the statutes of some of the states referred to in the majority opinion as being analogous to the law our legislature adopted. The legislative history of the act, if in the record, might readily establish as verities the two first-mentioned probabilities. If there are any sustaining authorities, they have not been cited. In short, the majority pronouncement that amounts to a rewriting of section 1457 should be withdrawn. There then would be no foundation for the second step the majority takes in reaching its decision, that is, the assertion that without subsequent change in condition of the employee the commissioner cannot review an award no matter how erroneous nor what the wrong done. The case, then decided on the law as it was enacted, would result in a reversal on appellant's appeal and an affirmance on appellees'. I am content to rest this phase of the controversy on the foregoing without discussing whether, *Page 1044 even had the words "change of condition" appeared in the statute, it could be held that such a change was not shown in this case, without violence to several provisions in and to the very genius of the act as an entirety.
Adverting to the second division of the majority opinion. The matters heard on November 5, 1937, were decided on November 18, 1937. Nine days later claimant filed what he termed a petition for rehearing on the decision, and thereto appellees filed a resistance. There was a hearing on the resistance and the petition and thereat, on December 7, 1937, the commissioner entered an order that there be a rehearing. On a later date the parties appeared and the rehearing was had and a decision thereon made on December 29, 1937. The majority holds the commissioner was without authority to make the order of December 7, 1937, that there be a rehearing. Whether claimant had a statutory right to demand a rehearing, the question discussed by the majority as though on existence of that right depended the authority to make the order of December 7, 1937, has nothing to do with this appeal. The reason is this: The so-called petition for rehearing directed the commissioner's attention to the fact that in entering the order of November 18, 1937, the deputy commissioner had failed on his part to comply with mandatory statutes governing the making of a commissioner's decision. The decision contained no findings of fact required by section 1448, Code 1935. Conclusions of law required by the same section do not appear unless possibly inferentially. In view of this situation the commissioner stated in his order of December 7, 1937, that the decision of November 18, 1937, "was not clear as perhaps it should have been and there is doubt whether or not the form of the decision in failing to set out the finding of facts and conclusions of law applicable thereto." The order also stated that if the deputy committed error, "it would seem that the petition for rehearing should be granted." The rehearing was ordered by the commissioner in order that he might enable himself to obey mandatory law, and clearly not to accord to claimant a right thereto. It follows that the sole question here is whether the commissioner *Page 1045 had authority on his own motion for the purpose stated to order that there be a rehearing. We have stated the rule as being this:
"The industrial commissioner possesses such powers as are expressly granted, together with those arising from implications because necessary to the full exercise of the granted powers." Comingore v. Shenandoah Ice, etc., Co., 208 Iowa 430, 434, 226 N.W. 124, 126.
In the cited case an application was made that the commissioner order termination of compensation payments upon a memorandum agreement that the commissioner had approved several years before. The commissioner assumed jurisdiction, construed the agreement as meaning what the statute intended it should rather than what it stated. As to the jurisdictional question that was urged as a defense we held that the commissioner did not act without jurisdiction in making a finality of the dispute. The opinion contains this:
"As said in Aetna Life Ins. Co. v. Shively, supra [75 Ind. App. 620, 121 N.E. 50], the industrial commissioner undoubtedly has the right and power to correct any mistakes which he has made while acting in his official capacity."
In Forbes v. Ottumwa Sand Co., 216 Iowa 292, 296, 249 N.W. 399, 400, we held that a commissioner's order of approval of a memorandum of settlement invalid on its face was equally invalid, and that the logical result of such situation would be to regard the case as still pending and undisposed of by the commissioner. In the language of the opinion:
"An invalid order could not operate as a bar to a valid one. The final order entered by the commissioner did no more than to correct the invalid one."
The invalidity lay in the weekly payments approved being less than the statute prescribed. In these cases the official who administers the law had come short of meeting its requirements, and therein we laid down the general principle that when the *Page 1046 commissioner has made an order invalid on its face the case must be regarded as still pending for the purposes of correction. In the cases cited the commissioner had not observed with accuracy the statutory fixation of the compensation awardable. In the instant case a mandatory statute required the making and setting out of findings of fact and conclusions of law. The order on its face showed the statute had not been obeyed. That omission was an invalidity in the same sense and on the same basis that invalidity appeared in the cited cases, that is, a statutory provision essential to effecting the purposes of the act had not been observed. The failure in this case practically nullified the provisions relating to appeals to the district court. The cited cases appear to be controlling and to compel the conclusion that the commissioner acted within his authority when on December 7, 1937, he ordered that there be a rehearing. The attitude of the majority is that the case before us is immune, and that the principle laid down in the cited cases must not be applied, because the person who made the decision of November 18, 1937, happened to be the deputy commissioner rather than the commissioner. The immunity is effected through a pronouncement that the commissioner cannot re-examine and re-determine questions decided by his deputy in a hearing the commissioner has directed the deputy to hold. This is unsound, for regardless of personnel, the decision was the commissioner's decision. The parties so concede. We cannot arbitrarily say he could not review his own decision. Being a commissioner's decision he of course had the primary control. The majority's pronouncement would take away from the commissioner the powers the legislature conferred, and leave it nowhere unless in the deputy. If in him, the deputy's powers would transcend his principal's.
I respectfully dissent from the entire opinion. *Page 1047