McEneny v. S. S. Kresge Co.
| Decision Date | 08 November 1932 |
| Docket Number | 22206 |
| Citation | 53 S.W.2d 1075 |
| Parties | McENENY v. S. S. KRESGE CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.
“ Not to be published in State Reports.”
Proceeding under the Workmen’s Compensation Act by Hazel McEneny for personal injuries, claimant, opposed by the S. S. Kresge Company, employer, and the Zurich General Accident & Liability Insurance Company, insurer. From the judgment affirming an award of the Workmen’s Compensation Commission allowing no compensation, claimant appeals.
Transferred to Supreme Court.
E. P McCarthy, of St. Louis, for appellant.
H. J. Fitzpatrick and Allen, Moser & Marsalek, all of St. Louis, for respondents.
This is an appeal from a judgment of the circuit court which affirmed an award of the Workmen’s Compensation Commission that no compensation be allowed because the claimant had failed to file her claim within six months from the date of the last payment on account of compensation.
The record discloses that the claimant was an employee of the S. S. Kresge Company, and that on March 16, 1929, she was injured by a fall at the store of her employer, No. 6108 Easton Avenue, in the city of St. Louis. Her claim for compensation for the injuries thus sustained was not filed before the commission until May 28, 1930.
On June 24, 1930, the claim was heard before one of the referees of the commission, during which hearing the claimant testified to the circumstances of her fall and injury.
The record is not as clear as it might be, but it sufficiently appears that the last salary or wages paid the claimant was in July, 1929, and that thereafter the claimant received only such compensation as she was able to earn. It appears that on January 4, 1930, a meeting was held at the office of the Workmen’s Compensation Commission in St. Louis at which were present Mr. Williams (probably a representative of the Commission), Mr. Fitzpatrick representing the insurance company, and Mr. McCarthy representing the claimant.
Claimant testified that she was instructed to be examined by Dr. Diehr and Dr. Deppe, to whom she was advised to go by Mr. Fitzpatrick; that at the conference held at the office of the compensation commission, Mr. Fitzpatrick went to Dr. Hirst, she was not sure what was said but thought he stated he would pay for some of the visits; that was her understanding.
The record also discloses that the matter was discussed with Mr. Williams, and a statement was shown him that had been prepared by the employer of the amount that had been paid at that time, and that Mr. Williams suggested to Mr. Fitzpatrick that the parties try to get together on it, and that there was an agreement by Mr. Fitzpatrick to have an examination made by Dr. Diehr and Dr. Deppe.
Dr. Hirst testified that Mr. Fitzpatrick came to his office after he started treating claimant to ascertain how many treatments it would take to enable her to go back to work, and said then the company would settle; that he gave her further treatments and was treating her at the time of the hearing; that his bill to that date was $74; and that of that amount there would be chargeable to the insurance company, under Mr. Fitzpatrick’s instructions, the sum of $60.
The referee then stated that actual payment to the doctor would be necessary to be shown, and, consequently, declined to hear any further evidence on the ground that, if any contract was made for the payment of the doctor, it was a contract between the doctor and the insurance company and could not be considered as a payment of compensation.
The award which followed was based, therefore, not upon a finding that the medical service rendered was not rendered at the instance of the employer or the insurance company, but solely upon the ground that, in the absence of a showing, such medical services were actually paid by the employer or the insurer, the limitation in the statute was not tolled.
The award of the referee, upon review, was affirmed by the commission.
It will be observed from an examination of the statute (section 3337 Revised Statutes of Missouri 1929 [Mo. St. Ann. § 3337]) that no proceedings for compensation can be maintained unless a claim therefor be filed with the commission within six months after the injury or death, or in case payments have been made on account of the injury or death within six months from the date of the last payment. The requirement that the claim shall be filed with the commission within the time prescribed by the statute is mandatory [Price v. Kansas City Public Service Co. (Mo. App.) 42 S.W.2d loc. cit. 54] and since the act furnishes a new right or remedy, therefore, the time fixed within which claims shall be filed becomes a limitation or condition on such right [Schrabauer v. Schneider Engraving Product, etc., 224 Mo.App. 304, 25 S.W.2d loc. cit. 532; Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W.2d loc. cit. 571; Oren v. Swift & Co. (Mo. Sup.) 51 S.W.2d loc. cit. 60] and a claim not filed with the commission within six months from the date fixed by the statute is...
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