Grant v. Neal

Decision Date13 July 1964
Docket NumberNo. 50385,No. 2,50385,2
Citation381 S.W.2d 838
PartiesMazie GRANT, Respondent, v. William B. NEAL, d/b/a Beauty Steak Company, et al., Defendants, Milton Carpenter, State Treasurer, Custodian of Second Injury Fund, Appellant
CourtMissouri Supreme Court

Emerson Foulke, Joplin, for respondent.

Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for appellant.

PRITCHARD, Commissioner.

Mazie Grant, the respondent, claimed and was allowed compensation by the Industrial Commission from the Second Injury Fund, Sec. 287.220 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated), for disability resulting from an injury to her left hand suffered during the course of her employment with the Beauty Steak Company of Joplin, Missouri. Previously her right hand had been injured in approximately the same manner and for which compensation was paid. The appellant, State Treasurer and custodian of the Second Injury Fund, resisted respondent's claim upon the ground that the same was not filed against the Second Injury Fund within one year from the date of the accident (or, as also stated by appellant, the claim was not filed within one year from the date of last medical payments made for or on behalf of the fund).

There is no statutory provision with respect to payments of medical expenses of an injured employee by an employer or anyone 'for or on behalf' of the Second Injury Fund, so there could not be a limitation period therefor. Nor is the Second Injury Fund itself liable for such medical expenses. See Federal Mutual Insurance Company v. Carpenter, Mo., 371 S.W.2d 955, 958, in which it was held that Sec. 287.220 does not relieve employers or their insurers from furnishing medical aid to an employee under Sec. 287.140(1), and that the Second Injury Fund does not include a provision for payment or apportionment of such expenses therefrom.

The referee (Mr. LaTowsky) who heard the case sustained appellant's position that Sec. 287.430 was applicable to respondent's claim for compensation, and that because she did not file her claim within one year from the date of the accident against the Second Injury Fund she was barred. The final award of the Industrial Commission reversed the referee and allowed respondent compensation, which award was affirmed by the Circuit Court. We have jurisdiction by reason of said state officer, appellant, being a party. Mo.Const. Art. V, Sec. 3, V.A.M.S.; Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241 (transferred, Mo., 265 S.W.2d 335).

The date of respondent's first injury, which was occasioned by her catching the middle finger of her right hand in a 'meat patty machine,' was October 22, 1956. A lump sum settlement was made on this claim prior to April, 1957. On April 16, 1957, claimant was again operating a meat patty machine and caught her left hand therein. Upon the second injury the employer-insurer furnished medical aid to respondent until December 27, 1957. On May 20, 1958, a little more than thirteen months after the second accident, respondent filed her claim which is now before this court against her employer, its insurer and the then State Treasurer, M. E. Morris, as custodian of the Second Injury Fund. This claim was settled by a compromise as between respondent and its insurer by a final lump sum payment which was approved by a referee (Mr. Wise) on November 23, 1959, which compromise recited that 'This settlement not to preclude recovery against second injury fund.' The amount of additional compensation from the Second Injury Fund was determined by the Industrial Commission to be 2 1/2 weeks at $26.67 per week and $16.00 per week for respondent's life, there having been paid to the date of the award by the employer and insurer (as per the settlement) $5,067.88 total.

Sec. 287.220 subd. 1 provides essentially that where an employee having a permanent partial disability, whether from compensable injury or not, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability caused by the combined disabilities is greater than that which would have resulted from the last injury alone, the employer is liable only for the degree or percentage of disability (determined by the Commission or referee) resulting from the last injury had there been no preexisting disability. The balance of such disability shall be paid out of a special fund known as the Second Injury Fund, the custodian of which is the State Treasurer. By subsection 2 of this statute it is provided, 'In all cases in which a recovery against the second injury fund is sought for permanent partial disability or for permanent total disability, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. * * *'

Sec. 287.430 provides that '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. * * *'

We agree with appellant that the Workmen's Compensation limitation provision, Sec. 287.430, supra, is applicable to claims against the Second Injury Fund when it is sought to impress that fund with the payment of compensation benefits although the Second Injury Fund statutes, Secs. 287.220 et seq., do not have or expressly refer to any limitation period. This proposition was so held in the Texas and California cases cited below, the second or subsequent injury fund statutes of which states likewise in themselves do not refer to any period of limitation for the recovery of subsequent injury benefits. Thus, if an injured employee waited beyond the one-year limitation of time from the date of his accident or one year from the last payment of medical benefits, he would be barred from maintaining the proceedings against the fund the same as he would be barred in maintaining a proceeding against his employer and employer's insurer for a first compensable injury. Appellant cites and relies upon the case of Industrial Accident Board v. Guidry, 162 Tex. 160, 345 S.W.2d 509. That case may be distinguished on its facts. There, Guidry (having had a previous disability) had two proceedings relating to his claim for compensation for injury suffered in an accident which resulted in total disability. The first proceeding was timely noticed and filed, within six months (Texas general Workmen's Compensation Act, Sec. 4a, Art. 8307) from the date of injury, but was brought only against the insurer and the Second Injury Fund of Texas was not joined as a party. The Industrial Accident Board heard and considered the claim and an award of compensation was finally adjudicated. Guidry then sought the payment of the adjudicated claim against the Texas Second Injury Fund. It was held, and properly so, that he was barred inasmuch as he did not give the thirty-day notice and did not file his claim against the Second Injury Fund within six months after the occurrence of...

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22 cases
  • Meilves v. Morris, 52702
    • United States
    • Missouri Supreme Court
    • 8 Enero 1968
    ...that fund. The award was upheld by the Circuit Court. We have jurisdiction because a State Officer, as such, is a party. Grant v. Neal, Mo., 381 S.W.2d 838; Stewart v. Johnson, Mo., 398 S.W.2d 850. In essence, the applicable statute, § 287.220, RSMo 1959, V.A.M.S., provides that if an emplo......
  • Arduser v. Daniel Intern. Corp.
    • United States
    • Kansas Court of Appeals
    • 28 Enero 1982
    ...by a third-party tort feasor if said tort feasor is held liable for any indemnity paid or payable to the employee. Contra Grant v. Neal, 381 S.W.2d 838 (Mo.1964). We conclude that the Fund's liability is derivative from that of the employer, and that no action can be maintained directly aga......
  • Merriman v. Ben Gutman Truck Service, Inc.
    • United States
    • Missouri Supreme Court
    • 12 Julio 1965
    ...officer and we have jurisdiction. Art. V, Sec. 3, Mo.Const., V.A.M.S.; Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241; Grant v. Neal, Mo., 381 S.W.2d 838. On July 6, 1962, respondent was 29 years old, 6 feet tall, weighed around 195 pounds, and had been a truck driver for about six......
  • Romero v. Cotton Butane Co., Inc.
    • United States
    • Court of Appeals of New Mexico
    • 28 Octubre 1986
    ...or its carrier does not preclude a further adjudication of the Fund's liability to the workman. See Clark v. Cadillac Gage; Grant v. Neal, 381 S.W.2d 838 (Mo.1964). A contrary view would have us render the permissive settlement language of Sections 52-2-7 and 52-2-11(E) meaningless. Such a ......
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