DeRousse v. PPG Industries, Inc.

• Decision Date: 11 March 1980
• Docket Number: No. 61503,61503
• Citation: 598 S.W.2d 106
• Parties: Leo E. DeROUSSE, Respondent, v. PPG INDUSTRIES, INC., Appellant.
• Court: Missouri Supreme Court

Page 106

598 S.W.2d 106

Leo E. DeROUSSE, Respondent, v. PPG INDUSTRIES, INC., Appellant.

No. 61503.

Supreme Court of Missouri, En Banc.

March 11, 1980 Respondent's Rehearing Denied April 8, 1980 Intervenor Attorney General and Missouri Association of Trial Lawyer Rehearings Denied May 13, 1980.

R. A. Wegmann, Dennis H. Tesreau, Richeson, Roberts, Wegmann, Gasaway, Stewart & Schneider, P. C., Hillsboro, for appellant.

Robert J. Robinson, Pannell, Dodson & Robinson, Festus, for respondent.

WELLIVER, Judge.

Appellant, PPG Industries, Inc., appeals from a judgment of the Circuit Court of Jefferson County affirming an award made in favor of respondent, Leo E. DeRousse, by the Labor and Industrial Relations Commission on a workmen's compensation claim. The commission adopted the findings and conclusions of the referee, who had awarded respondent $2,820 for a fifteen percent disability caused by an injury to his lower back sustained in the course of his employment at the PPG plant in Jefferson County. The case was transferred after opinion from the Court of Appeals, Eastern District, and we decide it as though on original appeal. Mo.Const. art. V, § 10. The case raises the question whether the employer's failure to file the report of injury required by § 287.380, RSMo 1978, operates to toll the running of the one year limitations period on workmen's compensation claims provided in § 287.430, RSMo 1978. We hold that such failure does not toll the running of the limitations period, and reverse.

Respondent filed his claim for compensation with the commission on October 25, 1974. The claimed injury is alleged to have resulted from an accident that occurred on April 30, 1966. Respondent alleges that he fell from the machine on which he was working onto the concrete floor below; that he landed on his buttocks and fell backwards, striking his elbow and head on the floor; and that he temporarily lost consciousness.

The record reflects that after respondent regained consciousness, he was sent by his foreman to the company clinic on appellant's premises. It was PPG policy that injured employees were first seen by a nurse. Unless the injury was severe enough to warrant referral to the company doctor for examination and treatment, the nurse would treat the injury. The nurse did not refer respondent to the doctor. The nurse bandaged respondent's elbow and applied a heating pad to his back for approximately thirty minutes. Respondent then returned to work and finished his shift in spite of a "throbbing, continued pain." Although company records do not show that respondent returned to the company clinic for further treatment of this injury, respondent testified that he returned for the heat treatment after his normal working hours two or three times over the next week. During the next two weeks, respondent applied a heating pad to his back at home. With this treatment, the back felt "a little better," but continued to bother him, especially at night. The pain was most severe in the first six months, but it persisted "off and on" from the time of the accident through the hearing before the referee, more than ten years later. It was described by claimant as a dull, throbbing ache, "a gradual gnawing that lets you know it's there, never lets up." Respondent complained that his back bothered him when he sat still, even at the time of the hearing. The injury hindered respondent's performance of certain tasks at work, and he often expressed his discomfort to his fellow workers, especially during the first six months following the accident.

Over the years, respondent consulted his personal physician, Dr. Mayfield, a "number of times" in reference to the back problem. The physician took no x-rays and merely prescribed muscle relaxants. Finally, in 1974, respondent began to notice a numbness in his arms and legs and consulted another physician, a Dr. Blair. Blair concluded from x-rays that respondent had suffered a fractured vertebra and prescribed a back brace. The back brace partially relieved the numbness in respondent's extremities. Respondent continued to wear the brace through the time of the hearing. In August, 1974, at the request of the supervisor of safety at appellant's plant, the company physician examined respondent and ordered that x-rays of his back be taken; no treatment of any kind was provided during this visit. On October 25, 1974, nearly eight and a half years after the accident, respondent first filed a claim for compensation with the commission.

Respondent contends that his claim, though filed eight and one-half years after the accident, was timely. Although the Workmen's Compensation Law provides that unless a claim for compensation is filed with the Division of Workmen's Compensation of the Labor and Industrial Relations Commission within one year of the injury no proceedings shall be maintained, § 287.430, RSMo 1978, the referee, the commission, the circuit court, and the court of appeals each found that this statute of limitations was tolled by the appellant-employer's failure to file the report of injury with the division, as required by § 287.380, RSMo 1978. We cannot agree.

The limitations provision in question provides that:

No proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division 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, or in cases where the employee has filed the notice required by section 287.420, the claim may be filed within one year after the filing by the employer of the report of injury or death as required by section 287.380. The filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the one year period provided in this section. In all other respects the limitations shall be governed by the law of civil actions other than for the recovery of real property but the appointment of a guardian shall be deemed the termination of legal disability from minority or insanity.

§ 287.430, RSMo 1978. ¹ Section 287.380, RSMo 1978, provides that the "employer . . . shall within ten days after knowledge of an accident resulting in personal injury to an employee, notify the division thereof, and shall within one month, file . . . a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid or compensation hereunder." The penalty for violation of this provision is prescribed as "a fine of not less than fifty nor more than five hundred dollars, or . . . imprisonment in the county jail for not less than one week nor more than one year, or . . . both the fine and imprisonment." § 287.380.4, RSMo 1978.

The first Missouri case to construe the limitations sections of Missouri's Workmen's Compensation Law of 1927 adopted the rule urged by respondent in this case that the statute of limitations is tolled by the employer's failure to file a report of injury. Schrabauer v. Schneider Engraving Product Co., 224 Mo.App. 304, 25 S.W.2d 529 (1930). On August 3, 1927, Anton Schrabauer dropped a wrench weighing three or four pounds on his left foot and fractured a toe. In November of 1927, Schrabauer's private physician took an x-ray of the foot, which disclosed that the bone had been broken. The employer reported the accident to the commission on February 8, 1928, and Schrabauer filed his claim for compensation two days later. At that time, the limitations period was only six months. § 39, Workmen's Compensation Law, Laws of Mo.1927, p. 511; § 3337, RSMo 1929. Consequently, unless the limitations period was tolled, Schrabauer's claim was not timely filed. The Court of Appeals, Eastern District, upheld an award in the employee's favor, reasoning that the failure of the employer to notify the commission of the employee's accident was an improper act in the nature of a fraud, which operates to toll the running of the limitations period on workmen's compensation claims.

The analysis in Schrabauer involves several steps. The Court relied on the last sentence of the limitations section, which provides that the limitations shall be governed by the law of civil actions "in all other respects," and applied the tolling provisions of the general statutes of limitations. 224 Mo.App. at 313-14, 25 S.W.2d at 533-34. The relevant tolling section of the general limitations statutes provides that "(i)f any person, by absconding or concealing himself, or by any other improper act, prevent (sic) the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented." § 516.280, RSMo 1978; § 879, RSMo 1929; § 1334, RSMo 1919. The Court acknowledged that the words "improper act" as used in this section had been construed to mean an act "in the nature of a fraud that will prevent the commencement of the action," 224 Mo.App. at 314-315, 25 S.W.2d at 533, but held that since the employer had a duty to report the injury, "required of it by a section of the same act on which it now relies to defeat the claim, the running of the period of limitation was stayed from the time it became in default until the time it gave notice to the commission." 224 Mo.App. at 316, 25 S.W.2d at 534. The Court relied on the principle that "mere silence alone will be held to be a fraud where the circumstances are such as to impose a duty upon one to speak, and he deliberately remains silent," citing 26 C.J. 1071. ²

The Court of Appeals, Western District, rejected the reasoning of Schrabauer in a decision announced in the same year that Schrabauer was decided. Wheeler v. Missouri Pacific Railroad, 33 S.W.2d 179 (Mo.App.1930). The western district court could not agree that the employer's failure to file a report of injury, without more, constitutes...