Conn v. Chestnut Street Realty Co.

• Decision Date: 05 December 1939
• Parties: RUTH CONN AND JAMES CONN, MINORS, CHILDREN OF GERTRUDE CONN, EMPLOYEE, DECEASED, BY THEIR FATHER AND NATURAL GUARDIAN, APPELLANTS, v. CHESTNUT STREET REALTY COMPANY, A CORPORATION, EMPLOYER, AND THE TRAVELERS INSURANCE COMPANY, INSURER, RESPONDENTS
• Court: Missouri Court of Appeals

133 S.W.2d 1056

235 Mo.App. 309

RUTH CONN AND JAMES CONN, MINORS, CHILDREN OF GERTRUDE CONN, EMPLOYEE, DECEASED, BY THEIR FATHER AND NATURAL GUARDIAN, APPELLANTS, v. CHESTNUT STREET REALTY COMPANY, A CORPORATION, EMPLOYER, AND THE TRAVELERS INSURANCE COMPANY, INSURER, RESPONDENTS

Court of Appeals of Missouri, St. Louis

December 5, 1939

Appeal from Circuit Court, City of St. Louis.--Hon. Harry F Russell, Judge.

Judgment affirmed.

Jones Hocker, Gladney & Grand and Wm. G. O'Donnell for respondents.

(1) The filing of a claim for compensation within six months after the alleged injury as required by sec. 3337, R. S. Mo. 1929 is a prerequisite to the jurisdiction of the Missouri Workmen's Compensation Commission. Wheeler v. Missouri Pacific Ry. (Mo.), 42 S.W.2d 579; Higgins v. Heine Boiler Co. (Mo.), 41 S.W.2d 565; Schrabauer v. Schneider Engraving Co. (Mo. App.), 25 S.W.2d 529; Helle v. Eyermann Contracting Co. (Mo. App.), 44 S.W.2d 234; Murphy v. Burlington Overall Co. (Mo. App.), 34 S.W.2d 1035; Price v. Kansas City Public Service Co. (Mo. App.), 42 S.W.2d 51. (2) The period within which a claim for compensation must be filed begins to run from the time that it becomes reasonably apparent that the claimant has suffered a compensable injury, and not from the time that she suffers disability. Schrabauer v. Schneider Engraving Co. (Mo. App.), 25 S.W.2d 529; Helle v. Eyermann Contracting Co. (Mo. App.), 44 S.W.2d 234; Bridges v. Fruin-Colnon Const. Co. (Mo. App.), 52 S.W.2d 582; Gleason v. Titanium Pigment Co. (Mo. App.), 93 S.W.2d 1039. (3) Findings of fact by the Commission are conclusive on appeal if supported by sufficient competent evidence. Gleason v. Titanium Pigment Co. (Mo. App.), 93 S.W.2d 1039. (4) No proceedings for compensation may be maintained unless written notice is given to the employer of the time, nature and place of the injury within thirty days after the accident. Sec. 3336, R. S. Mo. 1929; Buttinger v. Ely & Walker Dry Goods Co. (Mo. App.), 42 S.W.2d 982. (5) Evidence which shows only a mere possibility that an injury might have been the result of the accident is insufficient to warrant an award of compensation. Kimmie v. Terminal Ry. (Mo. App.), 66 S.W.2d 561; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Kramer Service, Inc., v. Wilkins (Miss.), 186 So. 625.

John P. Griffin for appellant.

(1) Wheeler v. Mo. P. R. R. Co., 42 S.W.2d 579, l. c. 582; Helle v. Eyerman Cont. Co., 44 S.W.2d 234, l. c. 236; Gleason v. Titanium Pigment Co., 93 S.W.2d 1039; Schrabauer v. Schneider Eng. Pro. Co., Inc., 224 Mo.App. 304, 25 S.W.2d 529, l. c. 532; Bridges v. Fruin-Colnon Cons. Co., 52 S.W.2d 582, l. c. 583. (2) (Note cases cited under Point 1); Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, l. c. 238-239. (3) The appellant is entitled to have the compensation law construed liberally in her favor and if there is a doubt as to the right compensation it should be resolved in her favor. McClintock v. Skelly Oil Co., 114 S.W.2d 181, l. c. 190; Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232, l. c. 239.

HUGHES, P. J. Becker and McCullen, JJ., concur.

OPINION

HUGHES, P. J.

The case originated before the Workmen's Compensation Commission, wherein Gertrude Conn was claimant. While her appeal was pending in this court she died, and the cause was revived in the name of Ruth Conn and James Conn, her minor children. In the opinion, whenever the word "claimant" appears it is to be understood to refer to the employee, Gertrude Conn, now deceased. The salient facts, as the record shows, are that claimant was employed by the Chestnut Street Realty Company in the Title Guaranty Building in St. Louis, Missouri, as "forelady" of the women who cleaned the building, and had been so employed for nine years. That in May, 1936, while attempting to raise a window she wrenched her right arm between the elbow and wrist. For a minute there was a stinging pain and then the pain went away. In about a day or two thereafter the arm swelled and she rubbed liniment on it. The swelling disappeared in a few days and a lump appeared on her arm about the size of a marble, which grew larger as time went on. The accident happened about the 21st of May, 1936, and on January 7, 1937, the lump was about the size of an orange. On January 7, 1937, she went to her doctor, who examined her arm and X-rayed it, and told her it was a tumor and she ought to have it removed. The doctor could not tell, at that time, what kind of a tumor it was, but he advised her to have it removed. On July 21, 1937, she had begun to have pain in her arm and went to the Hospital to have the tumor removed. The doctor found that it was a sarcoma (cancer), and that it was necessary to amputate her arm at the junction of the middle and upper third of the humerus, which was done. She had continued her work up until the date of the amputation.

The claim was filed before the Commission on September 8, 1937. A hearing was had before a Referee of the Commission, who found against the employee for the reason as stated in his award as follows:

"I find that employee's claim for compensation was not filed within the time prescribed by law, and, therefore, the Commission is without jurisdiction in this case."

On review the full commission made a similar award, stating therein as follows:

"We find from the evidence that claim for compensation was not filed within the time prescribed by Section 3337 Revised Statutes Missouri 1929. Therefore, we are without jurisdiction."

On appeal the circuit court affirmed the finding and award of the Workmen's Compensation Commission, and the case reaches here on appeal by the employee.

The claim was not filed before the Commission for more than fifteen months after the accident. Claimant's contention is that although the accident occurred in May, 1936, that there was no disability and consequently no "compensable injury" resulting therefrom until July 21, 1937, and the claim having been filed within six months following that date it was timely; whereas, the respondent contends that a "compensable injury" occurred at the time of the accident, or, if not then, on January 7, 1937, when claimant consulted a doctor and was advised to have the tumor removed from her arm.

The term "compensable injury" has been adopted and used by the courts in many cases; however, there is no such term used in the Workmen's Compensation Act as a "compensable injury." That Act does provide (Section 3301) for compensation for "personal injury" by accident arising out of and in the course of the employment. And then the Act (Section 3305) defines what is meant by "personal injury" in these words: "The term 'injury' and 'personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom." The Legislature never said, and clearly never meant to convey the idea, that a claimant had no cause of action until there was a disability, either partial or permanent, and, therefore, that the statute requiring a claim to be filed within six months after the injury, would really mean within six months after the disability. To so construe the Workmen's Compensation Act would be to place the employee in the anomalous position of having to wait for compensation until time had proven the extent of his or her disability from the personal injury received by reason of the accident. This question was clearly decided by this court in the case of Schrabauer v. Schneider Engraving Product, 224 Mo.App. 304, 25 S.W.2d 529, 531, as follows:

"The allowance of the argument of counsel for claimant in this case--that the limitation did not begin to run until after it was possible to determine that there would be a permanent partial disability--would require us to hold that the Legislature used the term 'injury' in section 39 in the sense of 'disability,' which we clearly think is not a proper conclusion to draw. Disability is a possible and most usual, although not a necessary, consequence of injury, and the Legislature so recognized the fact in section 13, and in those sections immediately following and to be construed with it, by providing that, apart from the payment of such compensation as a particular disability might warrant, the employer should also provide such medical care as might be necessary 'to cure and relieve from the effects of the injury.'"

And still later in the case of Gleason v. Titanium Pigment Co. (Mo. App.), 93 S.W.2d 1039, 1043, this court said:

"As distinctly pointed out in the Wheeler Case, 328 Mo. 888, 42 S.W.2d 579, loc. cit. 581, 'there is nothing in the act to indicate that the limitation does not begin to run until such time as the most serious disability that the employee may sustain is ascertainable. This might take years to ascertain.'

"We readily agree with respondent that unless an employee has a condition which entitles him to relief under one of the sections of the act, he does not have a compensable injury. In this connection, in the instant case, we have in mind that in addition to the...