Hettenhausen v. Gene Jantzen Chevrolet, 56484

Decision Date10 September 1973
Docket NumberNo. 56484,No. 2,56484,2
Citation499 S.W.2d 785
PartiesWilfred HETTENHAUSEN, Appellant, v. GENE JANTZEN CHEVROLET, and State Treasurer, State of Missouri, Custodian, Second Injury Fund, Respondents
CourtMissouri Supreme Court

Morris B. Kessler, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Gene R. Spengel, Jr., Asst. Atty. Gen., St. Louis, for State Treasurer, respondent.

STOCKARD, Commissioner.

This is an appeal by an employee from the judgment of the Circuit Court of the City of St. Louis affirming an award of the Industrial Commission of Missouri which denied an award against the Second Injury Fund. At the time the notice of appeal was filed this court had appellate jurisdiction because a State Officer, as such, was a party, and jurisdiction is retained pursuant to Mo. Const. Art. V, § 31, V.A.M.S. (1945). We affirm.

Wilfred Hettenhausen, hereafter referred to as 'Claimant,' sustained an injury, compensable under the workmen's compensation act. He alleged that he had previously sustained 'a permanent partial disability' within the meaning of § 287.220 RSMo 1969, V.A.M.S., which consisted of the surgical removal of his left testicle, and he sought additional compensation from the Second Injury Fund. The referee awarded Claimant, among other benefits, $520 payable from that fund, but the Industrial Commission reversed that portion of the award, and in doing so stated: 'The Commission finds in the record no evidence to support an award against the Second Injury Fund. * * * (T)he claimant must prove he is possessed of an injustrial disability due to a previous injury in order to be entitled to an award against the Second Injury Fund. This the claimant failed to do.'

Claimant first contends that § 287.220 requires only that there be a preexisting disability, and that the requirement that a claimant must prove that he is possessed of an 'industrial disability due to a previous injury' is unauthorized and erroneous. We agree with the Commission that for a claimant to be entitled to an award from the Second Injury Fund he must have had a previously incurred 'industrial disability,' as that term is defined, but disagree that such disability must have been due to a 'previous injury.'

The applicable provision of § 287.220 provides as follows: 'If any employee who has a permanent partial disability, whether from compensable injury or otherwise, 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, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability.' Provision then is made for determining the amount chargeable to the Second Injury Fund, and because of its importance in determining the meaning of the statute we shall set it forth. 'After the compensation liability of the employer for the last injury, considered alone, has been determined by a referee or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury...

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4 cases
  • Stoddard v. Wilson Freight, Inc., WD
    • United States
    • Missouri Court of Appeals
    • March 1, 1983
    ...quotes the following definition from Wilhite v. Hurd, 411 S.W.2d 72, 77 (Mo.1967), which was quoted in Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785, 786 (Mo.1973). "The pre-existing permanent partial disability necessary to compensation from the Second Injury Fund under Section 28......
  • Kowalski v. M-G Metals and Sales, Inc., M-G
    • United States
    • Missouri Court of Appeals
    • March 17, 1982
    ...to an injury, but it must be disability to work, that is "industrial disability" or loss of earning capacity. Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785, 786 (Mo.1973); Wilhite v. Hurd, supra, 411 S.W.2d at Plaintiff has suffered from heart problems since 1964. He testified that......
  • Roby v. Tarlton Corp., 51466
    • United States
    • Missouri Court of Appeals
    • March 10, 1987
    ...earning capacity, rather than physical impairment as such." Id. at 77. A few years later, the supreme court in Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785 (Mo.1973), adopted with favor the Wilhite court's definition of the term "permanent partial disability" as meaning an "indust......
  • Carron v. Ste. Genevieve School Dist.
    • United States
    • Missouri Court of Appeals
    • October 23, 1990
    ...partial disability is referred to as an industrial disability. See Wilhite v. Hurd, 411 S.W.2d 72 (Mo.1967); Hettenhausen v. Gene Jantzen Chevrolet, 499 S.W.2d 785 (Mo.1973). An industrial disability is a disability adversely affecting a claimant's ability to work or earning capacity, rathe......

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