Morrow v. City of Kansas City, 71961

• Decision Date: 17 April 1990
• Docket Number: No. 71961,71961
• Citation: 788 S.W.2d 278
• Parties: Michael M. MORROW, Respondent, v. CITY OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Supreme Court

Page 278

788 S.W.2d 278

Michael M. MORROW, Respondent, v. CITY OF KANSAS CITY, Missouri, Appellant.

No. 71961.

Supreme Court of Missouri En Banc.

April 17, 1990.

Rehearing Denied May 15, 1990.

Joseph R. Hachey, Asst. City Atty., Richard N. Ward, City Atty., Kansas City, for appellant.

Scott W. Mach, Kansas City, for respondent.

James J. Wilson, City Counselor, Eckin Kistner, Asst. City Counselor, St. Louis, for amicus City of St. Louis.

Michael T. Manley, Joseph W. Moreland, Kansas City, for amicus International Assn. of Firefighters Local No. 42.

COVINGTON, Judge.

Employer, City of Kansas City, seeks review of the award of the Labor and Industrial Relations Commission in favor of Michael M. Morrow, a Kansas City fireman. The City claimed credit against an award for permanent partial disability for certain benefits paid to Morrow during the period he was unable to work. The Commission rejected the City's claim. The Missouri Court of Appeals, Western District, reversed and remanded. This Court granted transfer. The award of the Commission is affirmed.

Michael M. Morrow was injured on April 6, 1985, while fighting a fire. The injury is covered by the Missouri Workers' Compensation Act. Morrow was absent from work for 19 1/7 weeks. During Morrow's absence, in accordance with a city ordinance, the City voluntarily paid Morrow an amount equal to his wages. The parties agree that the City is entitled to claim a credit against the statutory temporary total disability award for the amount paid by the City to Morrow while he was not working.

Morrow also received a workers' compensation award in the amount of $6,443.55 for permanent partial disability resulting from the injury. The City claims additional credit against the award for permanent partial disability for the amount paid to Morrow in excess of the statutory temporary total disability award. Morrow disagrees. This dispute presents the sole issue in the case.

The issue of credit for payments of wages or benefits against workers' compensation awards has been considered in several Missouri cases. In Point v. Westinghouse Elec. Corp., 382 S.W.2d 436 (Mo.App.1964), the court allowed the employer credit for "salary extension payments" made to claimant in excess of her temporary total disability against an award for permanent partial disability. The decision was based upon § 287.160.3, RSMo 1959, which provided the employer was entitled to the credit. In Strohmeyer v. Southwestern Bell Tel. Co., 396 S.W.2d 1 (Mo.App.1965), an employer was held entitled to credit, under § 287.160.3, RSMo 1959, for "accident disability benefits" paid to claimant against the claimant's award for temporary total and permanent partial disability. The court found that the payments made to claimant were benefits paid to the claimant on account of his injury. The court further found that such payments were never treated as wages in that deductions ordinarily made from claimant's wages were not taken and claimant was not actually working at the time the payments were made. Id. at 8.

In the case of Evans v. Missouri Util. Co., 671 S.W.2d 812 (Mo.App.1984), a collective bargaining agreement provided for payment of ninety percent of the employee's "regular rate of pay" in case of disability covered by workers' compensation law. Claimant was injured in 1977 and was granted an award under § 287.160, RSMo 1969. The trial court allowed the employer to reduce an award for combined temporary and permanent partial disability by the amount paid during the claimant's absence from work. The court of appeals reversed and refused credit for the excess amount. The court held that the payments made during claimant's absence from work were paid as an obligation under terms of the collective bargaining agreement and were not "benefits paid ... on account of the injury" as defined in § 287.160.3, RSMo Supp.1983. The court noted that in a workers' compensation case all doubts are to be resolved in favor of the employee. Id. at 815.

In Essick v. City of Springfield, 680 S.W.2d 777 (Mo.App.1984), claimant was awarded $7,805.00 for temporary total disability as the result of an accident. The employer paid the claimant a supplemental amount based on a provision in what the court described as a collective bargaining agreement between city utilities and IBEW Union. Later claimant received an award for $8,352.00 for permanent partial disability. The employer contended that under § 287.100, RSMo 1978, and § 287.160.3, RSMo Supp.1981, the supplemental payments could be credited against the payment due for permanent partial disability. At that time both statutes specifically stated the employer was entitled to credit. Section 287.100, RSMo 1986, provides in pertinent part: "... Nor shall anything in this chapter be construed as interfering with the right of any public employee to draw full wages, or collect and retain his full fees, so long as he holds his office, appointment or employment, but the period during which the same are received after the injury shall be deducted from the period of compensation payments due hereunder." The court, however, followed Evans and said payments were made as an obligation under a collective bargaining agreement and that neither § 287.100, RSMo 1978, nor § 287.160.3, RSMo Supp.1981, applied. The court did not discuss the appropriateness of the collective bargaining agreement under Missouri law.

In City of St. Louis v. Grimes, 630 S.W.2d 82 (Mo. banc 1982), this Court permitted the public employer to deduct from an award for permanent partial disability the amount paid in excess of temporary total disability. The case followed Point v. Westinghouse and Strohmeyer v. Southwestern Bell involving private companies. The decision was based on § 287.100 and § 287.160.3 which, in 1982, provided for credit.

In 1983, subsequent to the 1982 Grimes decision, which allowed credit for excess payments over workers' compensation awards under § 287.160.3, RSMo 1978, the legislature amended the section and changed the provision from "The employer shall be entitled to credit for wages paid ..." to "The employer shall not be entitled to credit for wages paid...." This is a complete reversal of § 287.160.3, and apparently came as a result of the decision in Grimes. The case presently before the Court is the first involving the amended statute.

During Morrow's absence from work, the City voluntarily made payments to Morrow in an amount equal to his wages under authority of § A9.113 of the Kansas City Administrative Code which provided:

"Subject to the finding of the city attorney that an employee is absent from duty and unable to perform the duties of his employment with the city because of injury sustained by accident arising out of and in the course of employment, such employee's regular salary may be paid for a period not to exceed one (1) year from the date of injury. Such continuance of salary shall be paid in lieu of compensation for temporary disability provided under the Workmen's Compensation Law and shall be subject to the right of subrogation provided under section 287.150 and the credit provided under section 287.160(3), Missouri Revised Statutes. (C.S.Ord. No. 32371, 2-3-67; Ord. No. 37510, 1-9-70)."

Both parties seek relief, although on different bases, pursuant to terms of a "memorandum of understanding" into which the City and the firemen's labor union entered in 1984. The memorandum was in effect at the time of the injury and made reference to § A9.113, supra: "Subject to the provisions of Section A9.111 through Section A9.114 of the Administrative Code, members of the firefighting service, who are injured in the line of duty may receive full salary while their incapacity exists not to exceed one (1) year...." The memorandum also, by its reference to § A9.113, appears to contemplate a credit provided under § 287.160.3, RSMo 1978. At the time of enactment of the ordinance that statute read: "The employer shall be entitled to credit for wages paid the employee after the injury, and for any sum paid to or for the employee or his dependents on account of the injury, except for liability under section 287.140[, RSMo 1978]." (medical benefits).

The very existence of the memorandum of understanding in this case forms the basis for much of the confusion surrounding the controversy. Citing Essick, supra, Morrow contends...