Hundley v. Matthews Hinsman Co.

• Citation: 379 S.W.2d 489
• Decision Date: 08 June 1964
• Docket Number: No. 50267,50267
• Parties: Rozanne HUNDLEY, Appellant, v. The MATTHEWS HINSMAN COMPANY, Employer, and American Insurance Company, Insurer, Respondents.
• Court: United States State Supreme Court of Missouri

Page 489

379 S.W.2d 489

Rozanne HUNDLEY, Appellant, v. The MATTHEWS HINSMAN COMPANY, Employer, and American Insurance Company, Insurer, Respondents.

No. 50267.

Supreme Court of Missouri, En Banc.

June 8, 1964.

Claude L. Schenck, R. A. Kelpe, Kansas City, Walter Klamm, Kansas City, Kan., for appellant.

David H. Clark, David W. Shinn, Kansas City (Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel), for respondents The Matthews Hinsman Co., Employer and American Insurance Co., Insurer.

EAGER, Chief Justice.

This case came here by certification of the Kansas City Court of Appeals for a 'reexamination of the applicable law,' although that court reversed the judgment of the Circuit Court. That opinion appears at 368 S.W.2d 528. The case involves a Workmen's Compensation claim and the question here is solely one of limitations. The referee and the Industrial Commission denied compensation and the Circuit Court affirmed.

The facts appear in detail in the opinion of the Court of Appeals, but we digest here those necessary to an understanding of the issue. Rozanne Hundley, an employee of Matthews Hinsman Company, slipped on ice in the entranceway of her employer's premises in Kansas City on the morning of January 23, 1959, and sustained a hard fall. She testified: 'Well, I hurt my back. I mean, it hurt, because I fell so hard and so flat * * *.' She also stated that the lower part of her back struck the concrete floor; all the evidence indicated that the injury was to the low back and that her pain was there. On the same morning she was hospitalized, X-rays were taken, and thereafter heat was applied to her low back area with deep heat therapy. In about one week she was released from the hospital, and a corsettype brace was prescribed by her physician; she wore this for about three months. She made occasional office visits to the doctor until the first part of March. She returned to part-time work about two weeks after the fall and later resumed her full duties. For a time she experienced some discomfort, but her condition was gradually 'getting better.' She was paid $51.90 compensation (voluntary) and the compensation insurer also paid the doctor's bill of $43, $188.75 to the hospital and $8.30 for the brace.

A Report of Injury, dated January 26, 1959, but not filed until October 21, 1960, recited the fall, stated that there was temporary disability, that there were no fractures, and that 'evidently it must have been a sprain.'

In January, 1960, the claimant began to have occasional 'catches' in her back which continued intermittently, and one foot began tingling; from March to June or July she went to two different chiropractors several times, chiefly because of a stiff neck, but they also 'helped' her foot. In July, 1960, her right hip and upper leg began hurting; on July 25 she could hardly get out of bed because of her back; she had worked rather regularly up to that time, but she and her family had driven to South Dakota earlier in July on their vacation. Her family physician was called, she was hospitalized, and she was examined by an orthopedic surgeon. On July 28 one large herniated disc and one smaller one were removed, one being the disc between the last lumbar vertebrae and the sacrum and the other the disc between lumbar vertebrae four and five. That portion of the spine was fused with a bone graft. About October 3-4, she returned to work, and for a time she wore a new brace. Her operating surgeon gave the opinion that the injury to the discs resulted from the accident of January 23, 1959, but that thereafter the symptoms had subsided and there had been a period of remission. He rated the claimant as disabled 'in the neighborhood of 30 per cent of the body as a whole' because of the fusion.

The claim for compensation was filed on October 5, 1960; the accident upon which it was based was the fall already described. Claimant stated that the parts injured were: 'Back, Spine, Pelvis, legs and central nervous system' and added that there was permanent injury; she further stated that the fall caused 'compensable injuries which were not discernable until on or about July 25, 1960.' The answer denied certain of the allegations and alleged that the claim was barred by Sec. 287.430. ¹ After a hearing, the referee awarded no compensation and specifically found '* * * from all the credible evidence that the claim for compensation filed by the employee was not filed within one year after the date of the injury, nor was said claim for compensation filed within one year after the furnishing of medical treatment or the payment therefor. I further find that the claim for compensation was not filed by said employee within one year after the date when it became reasonably discoverable and apparent that a compensable injury had been sustained by said employee.' Upon review, the Industrial Commission found that the award was supported by competent and substantial evidence, adopted the findings of fact, rulings and conclusions of law of the referee, and affirmed his award of no compensation. It also noted that it found to be controlling two of the cases which we shall discuss later (Crites and Conn). On appeal to the Circuit Court the final award was affirmed. As already indicated, the Court of Appeals reversed this judgment but certified the case here.

Section 287.430 reads, in so far as pertinent, as follows: '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.' The sole question at issue here is whether this claim is barred by limitations. The essential contentions of the claimant are: that two separate injuries resulted from the fall,--one, discoverable and minor,--the other, latent and not discoverable until at least some time after January, 1960; that the claim for the latent injury was filed within one year from the time it was reasonably discoverable and apparent; that the statute is not a bar, because that injury must be reasonably discoverable and identifiable, and that here not even the physician recognized the existence of a disc injury following her fall.

We shall look first at the Missouri cases which have laid down the guidelines in somewhat analogous situations. In Wheeler v. Missouri Pac. RR. Co., 328 Mo. 888, 42 S.W.2d 579, the claimant's eye had been cut by a foreign substance; he was treated by the employer's doctor and the eye bandaged for about a month; when the bandage was removed his vision in that eye was 'cloudy' and the condition worsened until at the end of ninety days the vision in the eye was practically gone. No claim was filed until two years after the accident. While there was some possible question as to the cause of the blindness, the case was decided on the question of limitations. On this subject the Court adopted and quoted from the opinion of the Kansas City Court of Appeals (from which the case had been certified). It was thus held: that the statute begins to run from the time when it appears that a compensable injury has been sustained, and that nothing in the act indicates that the running of the statute should be delayed until the most serious disability is ascertainable. Thus, the Court said in part, quoting, 42 S.W.2d loc. cit. 582: "We think there is no question but that in cases where latent injuries are involved the claim must be filed within six months from the time it becomes reasonably discoverable and apparent that a compensable injury has been sustained. * * * Our interpretation of the term 'injury' as used in section 39 of the act, of course, would not have affected claimant's right to compensation for the complete loss of the sight of his eye, had he filed his claim for a less disability or injury within six months after he received a compensable injury, for section 42 of the act empowers the commission to change an award. The purpose of the Legislature as disclosed by the act to our minds plainly shows that it was its intention to provide that the claim should be filed within six months after the receipt of a compensable injury by the employee and, should it transpire thereafter that the injury received has developed into a more serious injury compensable in a different manner, the commission should change the award, if any, previously made. There is no question but that claimant received a compensable injury at the time of the occurrence of the accident in this case." The Court noted that the claimant had been forced to quit work, that he was entitled to and received medical aid, and that he was certainly entitled to compensation for temporary total disability.

In the following cases our Courts of Appeals have similarly announced the principle that the statutory period of limitations begins to run from the date when it becomes reasonably discoverable or apparent that a compensable injury has been sustained. Dees v. Mississippi River Fuel Corp., Mo. App., 192 S.W.2d 635; Crites v. Missouri Dry Dock & Repair Co., Mo.App., 348 S.W.2d 621 (where, however, a fact finding of the Commission in favor of the claimant was sustained); Conn v. Chestnut Street Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056; Young v. Management & Engineering Corp., Mo.App., 45 S.W.2d 927; Bridges v. Fruin-Colnon Const. Co., Mo.App., 52 S.W.2d 582; Cleveland v. Laclede Christy Clay Products Co., Mo.App., 129 S.W.2d 12. In three of these cases, Dees, Crites, Conn, it was also held that the determination of the date when it was reasonably discoverable that a compensable injury had been sustained was a question of fact. In Crites, the Court added that such a finding could not be set aside unless clearly contrary to the overwhelming weight of the evidence. In Dees, supra, the Court also said, at 192 S.W.2d loc. cit. 642: 'A compensable injury...