Buecker v. Roberts
| Citation | 200 S.W.2d 529 |
| Decision Date | 18 March 1947 |
| Docket Number | 27224 |
| Parties | BUECKER v. ROBERTS |
| Court | Court of Appeal of Missouri (US) |
'Not to be reported in State Reports.'
Paul H Koenig, of St. Louis, and Leo A. Politte, for Washington, for appellant.
O. A Mundwiller, of Hermann, for respondent.
HUGHES
On January 10, 1944, the claim was filed with the Workmen's Compensation Commission, alleging an accident on January 25 1939, which resulted in the amputation of claimant's left leg about six inches below the knee. Claimant was operating what is called a spread drill run with a gasoline engine, and used to prospect for fire clay beneath the surface of the earth, when a rope came off of a hoist spool, which was supported above the ground by a framework called a tripod and claimant's left leg was caught and mangled to the extent that amputation was necessary.
It was admitted, at the hearing of the claim, that Stanton C. Roberts was a major employer, operating under the provisions of the compensation law and that his liability was not insured. It was further admitted that on or about January 25, 1939, Rudolph Buecker was an employee of Stanton C. Roberts and was working under the provisions of the compensation law; that on or about said date Rudolph Buecker sustained an accident arising out of and in the course of his employment; and, that the employer had notice of the accident.
The sole defense to the claim is based on the employer's answer, 'That the Workmens Compensation Commission is without jurisdiction to hear said claim for the reason that claimant failed to file said claim within the period of one year immediately following the date of the injury, as prescribed by Sec. 3727, R.S.Mo.1939, and as amended by Session Laws of Missouri 1941.'
Section 3727, R.S.Mo.1939, Mo.R.S.A., as far as applicable to this case, is as follows:
'No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from the date of the last payment. * * *'
That statute was amended in 1941, Laws Missouri 1941, page 718, by extending the limitation period to one year after the death or injury or one year from the date of the last payment
Claimant admits, as, of course, he could not do otherwise, that the claim was not filed within one year after the injury, but he asserts that the claim was filed within one year from the date of the last payment, the form or method of such payment being the furnishing of medical treatment. It is provided by Section 3701, R.S.Mo.1939, Mo.R.S.A. § 3701, as follows:
The hearing was had before a referee on April 17, 1944, who later found that claimant sustained an accidental injury on January 25, 1939, which arose out of and in the course of his employment with Stanton C. Roberts, and, that as a direct result of the accident, employee sustained partial disability to the left leg to the extent that he is entitled to 155 weeks of compensation at the agreed compensation rate of $ 6.66 per year; and that the employer had notice of the accident and that the claim for compensation was filed within the time prescribed by law. This finding was reviewed by the Commission who on March 9, 1945, made a final award affirming the award of the referee. Following an appeal by the employer, the Circuit Court of Gasconade County reversed the finding of the Commission and held that there is not sufficient competent evidence in the record to warrant the award of the Commission, and that the claim was not filed within the time of the statute of limitation. Employee has perfected his appeal to this Court.
The evidence before the referee, and now before this Court, is substantially as follows:
Claimant testified that immediately following an accident which occurred January 25, 1939, his employer, the respondent, called Dr. Jeter of Hermann, Missouri, to care for claimant; that at Dr. Jeter's direction, he was taken in an ambulance to Central Hospital in St. Louis, where his left leg was amputated by Dr. F. L. Morse, who was called into the case by Dr. Jeter; that he remained in the hospital for about 18 weeks; that his leg never did heal completely but that he continued to be treated by Drs. Morse and Jeter; that the major portion of the treatment to his leg following the injury was performed by Dr. Morse; that Dr. Morse had never discharged him, but had told him to continue to come back for treatment; that the last time he saw the doctor was two or three months prior to the hearing, which was held April 17, 1944; that the doctros always told him to come back for further treatment and that he did not think he was required to ask the employer for permission to see the doctor; that the employer never told him not to go to the doctors he had furnished; that Dr. Morse was a specialist engaged by Dr. Jeter when his leg was amputated; that he had never known Dr. Morse before the injury; that Dr. Morse never requested any money from him.
On cross-examination, claimant testified that about a year after he had been discharged from the hospital, he went back to work for the employer, and had worked for him until September, 1943; that the last time he had seen Dr. Jeter in connection with the injury to his leg was in October, 1943; that at that time he had told the employer that his leg was sore and needed attention; that the employer said he thought it would be a good thing if he had it attended to; that he did not remember whether he told Dr. Jeter that the employer sent him; that the last time he saw Dr. Morse in connection with the injury was about four months prior to the hearing; that the employer had not told him to go see Dr. Morse; that he did not remember if employer had told him to see Dr. Morse in 1943; that he did not remember how many times he had seen Dr. Morse in 1943; that he did not pay Dr. Morse for any treatments nor discuss payment of the bill with him; that he had paid Dr. Jeter for other medical treatment; that the employer had told him he was going to pay him compensation; that Dr. Jeter had never sent him a bill.
Dr. W. A. Jeter testified on behalf of the employer that the last time he had treated claimant in connection with the injury to claimant's leg was August 6, 1943; that at that time the employer had not said anything to him about treating claimant, and that claimant had paid for such treatment; that he had treated claimant's leg previous to that on May 5, 1942, and claimant paid for that treatment; that on the 16th day of December, 1939, the employer had paid him $ 125 for all services rendered because of the particular injury to claimant's leg; that he assumed that the employer was not responsible for any further treatment to claimant; that as far as he knew, he did not tell claimant to go to Dr. Morse for treatment any time in 1943.
On cross-examination, Dr. Jeter testified that he treated persons employed at the employer's mine, and the understanding was that if an employee needed hospitalization he should order it, and would call any...
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