Igoe v. Slaton Block Co.

• Decision Date: 05 October 1959
• Docket Number: No. 22815,22815
• Citation: 329 S.W.2d 39
• Court: Missouri Court of Appeals
• Parties: Vincent F. IGOE, Claimant-Appellant, v. SLATON BLOCK COMPANY, Inc., and United States Fidelity & Guaranty Co., Defendants-Respondents.

Page 39

329 S.W.2d 39

Vincent F. IGOE, Claimant-Appellant, v. SLATON BLOCK COMPANY, Inc., and United States Fidelity &amp Guaranty Co., Defendants-Respondents.

No. 22815.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1959.

J. William Blackford, Blackford, Imes, Compton & Brown, Kansas City, for appellant.

John W. Mitchell, Mitchell & Meise, Kansas City, for respondent.

MAUGHMER, Commissioner.

Appellant's claim for Workmen's Compensation benefits was denied by the referee, by the Industrial Commission of Missouri and by the Circuit Court--hence this appeal. The basis of such denial is set forth in the award of the Commission and reads: 'We find from all the evidence that the claim of Vincent Igoe, employee herein, was not filed within the time prescribed by the Missouri Workmen's Compensation Law (Sec. 287.430, RSMo 1949, V.A.M.S.); compensation therefor must be and the same is hereby denied.'

It was admitted that respondent Slaton Block Company, Inc. on October 25, 1954, was an employer, operating under the provisions of the Workmen's Compensation Law and that its liability under said law was insured by respondent United States Fidelity & Guaranty Co. The evidence shows that on such date the ownership of Slaton Block Company stock was as follows:

Appellant and claimant Igoe 49 shares

Igoe's brother 1 share

Jay D. Slaton 49 shares

John R. Slaton 1 share

Jay D. Slaton was president and appellant Igoe was secretary-treasurer of this two-family corporation.

Based on both his filed claim and testimony, claimant was injured on October 25, 1954. He alleges that while he '* * * was finishing top of retaining wall, slipped, fell off top of wall, eight feet--fell on a 2 X 6 diagonal brace with back.' The claim for benefits was first filed with the Commission on January 25, 1956, or some 15 months after the alleged injury.

Section 287.430, V.A.M.S. provides 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. * * *'. Under this limitation statute the date of the accident and the date of the injury are not always and necessarily the same. 100 C.J.S., Workmen's Compensation, Sec. 436, p. 302. In Ford v. American Brake Shoe Co., Mo.App., 252 S.W.2d 649, 651, it is stated: 'In fixing the time of injury within the contemplation of the statute, the rule is that the limitation period begins to run whenever it becomes reasonably discoverable and apparent that a compensable injury has been sustained, which, in the case of an occupational disease, is the time when the disease has produced a compensable disability. (Citing cases).' However, we are not here dealing with an occupational disease and the Commission found as a fact that the compensable disability was reasonably discoverable at the time of the injury. Moreover, appellant does not contend otherwise as to this point. For our purposes, therefore, it is quite apparent that the claim was not filed within one year after the alleged injury and is barred unless saved by the further statutory provision: '* * * or in case payments have been made on account of the injury or death, within one year from the date of the last payment.' It is under this latter provision that claimant rests his whole case.

Section 287.140, subd. 1, V.A.M.S. contains the following: '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 ninety days after the injury or disability, to cure and relieve from the effects of the injury, and thereafter such additional similar treatment 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.'

Appellant asserts that the rendition of medical services at the instance of the employer or its insurer constitutes payment of compensation to the injured person within the meaning of the statute. Appellant contends further that if either the employer or its insurer has rendered such medical services it not only constitutes payment of compensation, but also results in tolling the running of the statute of limitations. In Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 327, it was squarely held that after 90 days the employer is only obliged to provide such additional treatment as the Commission may by special order determine to be necessary. But if after 90 days and without any Commission order, the employer, nonetheless supplies the employee with further medical aid not only does he waive the lack of such special order, but the aid he furnishes constitutes payment on account of the injury as regards the running of the period of limitations upon the filing of a claim for compensation. The holding by this court in McEneny v. S. S. Kresge Co., 53 S.W.2d 1075, 1077, approved by the Supreme Court in McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1070, is that: 'The bare rendition of such services at the instance of the employer or his insurer is in and of itself a payment on account of the injury so far as the injured person is concerned', and will toll or postpone the running of the limitation statute.

In Monical v. Armour and Company, Mo., 307 S.W.2d 389, 391, our Supreme Court said: 'In reviewing this workmen's compensation case we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Const. Art. 5, Sec. 22, V.A.M.S. This does not mean that we may substitute our own judgment on the evidence for that of the Commission. But we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence. (citing cases).' See also Garner v. Research Clinic, Mo.App., 280 S.W.2d 416, 422.

The Commission found as a fact that the claim had not been filed in time. Our task, therefore, is to determine if such finding is supported by competent and substantial evidence upon the record as a whole. Const. of 1945, Art. 5, Sec. 22, V.A.M.S.

Based upon the evidence before us, claimant consulted three physicians relative to this injury, namely, Dr. Matheny, Dr. Waterman, and Dr. Zuber. Appellant testified that Dr. R. W. Matheny, Osteopath, Chillicothe, Missouri, '* * * has been my doctor for a long time'; that he consulted him regarding the back injury, but could not fix a definite date. Dr. Matheny testified that he first examined claimant relative to the back injury on September 30, 1955, and the patient gave him the following history: 'Patient states he fell over some blocks on a delivery truck, hit low back. Pain in his back at the time of the injury.' Dr. Matheny said that his fee for the examination, which included x-rays, was $15, and that it was charged to appellant. He said that he was not expecting pay from anybody else; that it was strictly a charge to the claimant and that claimant had not even told him for whom he was working at the time of the inury. It should be noted that this medical examination was within the one year period following the date of the alleged injury. If such medical aid was furnished by the employer or the insurer it would have the effect of suspending operation of the limitation period and claimant would have 'One year from the date of the last payment' to file his claim as specifically provided by the statute. The Commission quite clearly found that Dr. Matheny's services were rendered at the request of appellant, were to be paid for by appellant, and were not furnished at the instance of either the employer or the insurer. We believe that there was evidence, both substantial and competent, to support such finding and we shall not disturb it.

Dr. F. Waterman, Liberty, Missouri, first examined claimant relative to the alleged injury on December 16, 1955. He had seen him on August 29, 1955, but that was to x-ray him for a foot injury. As a result of that December examination Dr. Waterman, who was a company physician, sent claimant to Dr. Harold V. Zuber, Kansas City, Missouri, for further examination and diagnosis. Dr. Zuber's first examination was on December 16, 1955. He recommended a 3/8ths inch shoe lift, and a belt. The patient gave a history of back injury in October, 1954. Dr. Zuber also examined Mr. Igoe in January, 1957. Respondents say these examinations by Dr. Waterman, a company physician, and by Dr. Zuber, who was admittedly paid by the employer and insurer, were not for treatment, but only for examinations and therefore do not constitute furnishing medical aid as contemplated by Section 287.140, subd. 1, V.A.M.S. The statute plainly requires the employer to '* * * provide such medical * * * treatment * * * as may reasonably be required.' In our opinion this includes examination. Besides treatment (shoe lift and belt) was prescribed.

The questions presented on this appeal do not include whether or not plaintiff was injured or the extent of his injuries. It is not, therefore, necessary to set forth in detail the findings of the doctors. The only other physician who examined claimant was Dr. F. S. Feierabend, who examined him on December 7, 1956, pursuant to request from plaintiff's attorney.

Consideration of the evidence leads to the following definite conclusions: First, claim was not filed 'within one year after the injury.' Second, the only medical aid which claimant received within one year after the injury was from his private physician, Dr. Matheny, and with his fee to be paid by claimant. The...