Cotton v. Voss Truck Lines, Inc.
| Decision Date | 07 June 1965 |
| Docket Number | No. 8363,8363 |
| Parties | Arvil COTTON, Plaintiff-Respondent, v. VOSS TRUCK LINES, INC., and Transport Insurance Company, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendants-appellants.
Padberg & Raack, St. Louis, for plaintiff-respondent.
Arvil Cotton (hereinafter called the employee) instituted this proceeding under the Missouri Workmen's Compensation Act [V.A.M.S. Chapter 287] against Voss Truck Lines, Inc., his employer, and its insurer, Transport Insurance Company, by the filing of his claim with the Division of Workmen's Compensation on May 8, 1962. In his claim, the employee alleged that, on May 12, 1959, while at a truck stop near Rolla, Phelps County, Missouri, he had sustained an accident thus described, 'was hooking up some trailer lines to a tractor unit and was stepping on a butane tank to alight from putting on the lights and slipped off due to grease on the tank,' and that, as a result of the accident, his 'lumbar back, right side and genitals' had been injured. By their answer, the employer and insurer denied that 'either permanent total or permanent partial disability of any part of the employee's body resulted from the alleged accident' and asserted that the employee could not maintain his claim (a) because he had failed to give the employer or insurer written notice of accident within the time prescribed by Section 287.420 and (b) because the claim had not been filed within the time permitted by Section 287.430. (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.)
Upon hearing, the referee awarded to the employee $208.93 for temporary total disability ($37.50 per week for a 'healing period' of 5 4/7 weeks beginning as of May 13, 1959), $2,250 for 15% permanent partial disability of the body as a whole ($37.50 per week for 60 weeks beginning as of July 6, 1959), and $215 for medical aid, the total amount of the award being $2,673.93. See Section 287.190; Laws of 1957, p. 560. On the employer's and insurer's application for review [Section 287.480], the Industrial Commission, after hearing oral arguments and considering written briefs, adopted the referee's findings of fact and conclusions of law and affirmed his award. Being cast again upon appeal to the Circuit Court of Phelps County [Section 287.490] by affirmance of the final award of the Commission, the employer and insurer, still protesting, come to us.
The primary contention of the employer and insurer has been and still is that the employee's claim filed on May 8, 1962, almost three years after the accident on May 12, 1959, was barred by the statute of limitations which provides that '[n]o proceedings for compensation . . . 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.' Section 287.430. It has long been settled that the furnishing of medical aid by an employer or insurer to an injured employee constitutes such payment on account of the injury as tolls the running of the statute of limitations, 1 and that this is so regardless of whether such aid is furnished voluntarily or under compulsion of law. 2 And it is equally clear that, if an employer or insurer has made itself legally liable for such aid, it is of no consequence that the physician or hospital rendering the aid has not received actual payment. 3
In the instant case, the employer's and insurer's position is that, when the employee indicated a need for medical attention, the employer tendered the services of 'the company doctor, Dr. Demco,' but that the employee 'rejected the services of the company doctor and elected to engage the services of Dr. Meador,' so that whatever services the latter may have rendered to the employee did not become 'the responsibility of the employer or insurer' [see Section 287.140(1)] and, therefore, did not toll the running of the one-year statute of limitations. This (so counsel insist) was established by 'the positive testimony of the employee' by which he is 'conclusively bound.' On the other hand, the employee's position is that 'the employer acquiesced in and adopted Dr. Meador as the treating physician,' rendering the employer and insurer legally liable for such treatment (which continued to the time of hearing) and tolling the running of the one-year statute of limitations.
With the foregoing statements of basic principles and adversary contentions before us, we turn to the facts, according appropriate and required recognition to the applicable precept that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Commission reasonably could have made the findings and award under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Commission, but that, on the contrary, a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. 4
In maneuvering around a parked automobile at the truck stop near Rolla about dusk on May 12, 1959, the employee jacknifed his unit and pulled loose the air and electrical cords between the tractor and trailer. When, after reconnecting those cords, he stepped back onto some grease on the top of the fuel tank, his feet slipped and he fell some three or four feet, slipped on the driveway in a sitting position. 'It more or less stunned me at the time . . . It hurt, but I didn't realize I was injured seriously.' He sat in the cab for a short time and then walked around some before continuing on his run to St. Louis. After checking into the St. Louis terminal about 9 P.M., he went home. By the next morning, he was having considerable pain in the 'small of [his] back . . . right lower side and right testicle,' but nevertheless he left St. Louis early that morning on a run to Springfield. That was his last trip before he laid off work for a period of about eight weeks.
Norman E. Krutzman, then manager of the employer's St. Louis terminal, was gone when the employee checked into the terminal on the evening of May 12, 1959, the date of accident. Either 'the next day . . . or the following day after that . . . the first time I could make contact with him after the accident,' the employee orally reported the accident to Krutzman by telephone. I told him what happened and that I was going to have to take some time off.' Krutzman said 'to call him when I felt like working.'
Some time elapsed, 'probably a week or two,' before 'I made up my mind I was going to have to go to the doctor.' At the hearing, the employee was 'sure' that he had 'discussed it' with Krutzman 'before I ever went to the doctor,' but the record is silent as to what was said by either party on that occasion. In any event, the employee first received medical care when he consulted James R. Meador, M.D., at his office in Clayton, St. Louis County, on a date fixed by the doctor's records as having been May 29, 1959; and 'the main discussion' (hereinafter referred to as such) between the employee and Krutzman concerning medical care was on the following day, i. e., on May 30, when the employee first talked with Krutzman over the telephone and then went to his office. We record verbatim the employee's testimony concerning 'the main discussion' (characterized by counsel for the employer and insurer as 'positive testimony' conclusively establishing their contention that the employee 'rejected the services of the company doctor and elected to engage the services of Dr. Meador') 'I told him [Krutzman] I had been to the doctor and it looked like I was going to have to have some medical attention and he said, 'Well, you know we have our company doctor who is available to you,' and I told him I realized that but the main reason I was there was to find out if it was possible for me to go to my own doctor, at which time he told me that it was . . . The best I can recall he said he seen no point in me going to two different doctors and that I was covered by insurance and I had the right to choose my own doctor, possibly he would later want me to see the other doctor . . . Dr. Demco,' identified as 'the company doctor.' When asked for 'any discussion at the time with Mr. Krutzman relative to whether the company would or would not pay Dr. Meador,' the employee answered, 'his statement was that his insurance company was responsible for it no matter who I went to,' this response properly having been received in evidence as being relevant to the primary factual issue, to wit, whether or not the employer (acting by and through Krutzman) authorized medical treatment of the employee by Dr. Meador.
When pressed on cross-examination to state why he had asked Krutzman 'if it would be all right to go' to Dr. Meador, the employee said that 'there were several reasons' and then detailed two of them, namely, (1) that 'the company doctor [Dr. Demco] was so far from my home, I was having trouble driving'--it 'was at least an hour' to Dr. Demco's office but only 'approximately twenty minutes' to Dr. Meador's office, and (2) that 'truthfully I didn't have too much trust in the company doctor and I thought I should be able to choose my own doctor.'
Robert L. Martin, a fellow driver who testified that he was present and heard the conversation between the employee and Krutzman, substantially confirmed the employee's account of it. As Martin related it, 'Mr. Cotton [the employee] told Mr. Krutzman it hurt...
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