Curtin v. Zerbst Pharmacal

• Decision Date: 30 April 1934
• Docket Number: No. 18025.,18025.
• Citation: 72 S.W.2d 152
• Parties: MAYME CURTIN, RESPONDENT, v. ZERBST PHARMACAL ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

72 S.W.2d 152

MAYME CURTIN, RESPONDENT, v. ZERBST PHARMACAL ET AL., APPELLANTS.

No. 18025.

Kansas City Court of Appeals. Missouri.

April 30, 1934.

Appeal from Circuit Court of Buchanan County. — Hon. J.V. Gaddy, Judge.

REVERSED AND REMANDED (with directions).

Mytton, Parkinson & Norris for respondent.

Culver & Phillip for appellant.

SHAIN, P.J.

The case at bar involves the question of allowance of compensation, medical and hospital expenses made by the Workmen's Compensation Commission of Missouri.

Mayme Curtin, respondent, was injured in the course of employment while employed by Zerbst Pharmacal Company, a corporation, one of the appellants herein. The United States Fidelity & Guaranty Company, a corporation, the other appellant herein, is the insurer.

All necessary facts giving jurisdiction to the Workmen's Compensation Commission stand admitted. There appears to be no question raised as to the liability of both appellants.

A hearing was duly had before the commission and a rehearing is also shown. The commission made a final award allowing the respondent compensation at the rate of $10.67 per week for forty-six weeks, and for medical aid the sum of $676.53 was awarded respondent.

Employer and insurance company appealed to the Circuit Court of Buchanan County, Missouri. The Circuit Court of Buchanan County upheld the award as made by the Workmen's Compensation Commission and the employer and insurance company have appealed.

The appellants make no point in their brief touching the award of $10.67 per week for forty-six weeks. The assignments of error are all directed to the allowance of award of $676.53 for medical aid.

The appellants make three assignments of error, as follows:

I. "There is no evidence to sustain the finding of the commission that the employer knew that medical, surgical or hospital treatment was given to the employee after the expiration of sixty days from the date of the injury, or that the amount of such services exceeded the statutory limit of $250, and consequently there was no evidence of a waiver of the limitation of liability created by Section 3311, Revised Statutes of Missouri 1929.

II. "Even if the employer could waive the provisions of Section 3311, Revised Statutes of Missouri 1929, the employer could not, without the knowledge or consent of the insurer, waive the provisions of the statute so as to bind the insurer.

III. "The award made by the commission could have been made and was made only by the exercise of judicial power, and if Section 3311, Revised Statutes of Missouri 1929, confers such power upon the Workmen's Compensation Commission, the act is violative of Section 1, Article XIV of the Amendments to the Constitution of the United States."

The third assignment has been held by the Supreme Court to involve but the construction of the section of the statute and not the question of the constitutionality thereof.

OPINION.

Construction of paragraphs (a) and (c) of Section 3311, of the Workmen's Compensation Act are particularly involved. The paragraphs read, as follows:

"(a) In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical, and hospital treatment, including nursing, ambulance and medicines, as may reasonably be required for the first sixty days after the injury or disability, to cure and relieve from the effects of the injury, not exceeding in amount the sum of two hundred and fifty dollars, and thereafter such additional similar treatment within one year from the date of the injury as the commission by special order may determine to be necessary. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. Where such requirements are furnished by a public hospital or other institution, payment therefor shall be made to the proper authorities.

"(c) All fees and charges under this section shall be fair and reasonable, shall be subject to regulation by the commission, and shall be limited to such as are fair and reasonable for similar treatment of injured persons of a like standard of living. The commission shall also have jurisdiction to hear and determine all disputes as to such charges."

The logical sequence will be best observed by first giving consideration of the appellants' third point.

The jurisdiction of the Workmen's Compensation Commission is confined to the expressed powers delegated by the express provisions of the Workmen's Compensation Act. The jurisdiction of the subject matter is limited to compensation for injury and expenses for "medical, surgical, hospital treatment and medicines," all as defined, provided and limited by the provisions of the act. The jurisdiction of persons is limited by the act to employer, insurer and employee. In the award of compensation, the commission is limited in computation by the provisions of the act and, section 3311 of the act limits and defines as to the amount of award that may be made for medical aid for the first sixty days, and for further medical aid for a period of one year from the date of the injury, the latter to be furnished upon special order of the commission and limited to no fixed amount.

We conclude that as the amount of allowance for the first sixty days is fixed by the statute; as the commission in hearing and determining all disputes touching the charges for the first...