Mosier v. St. Joseph Lead Co.

• Decision Date: 21 October 1947
• Docket Number: No. 26920.,26920.
• Parties: MOSIER v. ST. JOSEPH LEAD CO.
• Court: Missouri Court of Appeals

205 S.W.2d 227

MOSIER v. ST. JOSEPH LEAD CO.

No. 26920.

St. Louis Court of Appeals. Missouri.

October 21, 1947.

Rehearing Denied November 19, 1947.

Appeal from Circuit Court, St. Francois County; Norwin D. Houser, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Amos A. Mosier, claimant, opposed by the St. Joseph Lead Company, employer and self insurer. From a judgment of the circuit court affirming an order of the Workmen's Compensation Commission denying the claimant's motion to set aside a compromise settlement and for a further order for additional medical and hospital treatment, the claimant appeals.

Judgment affirmed.

Clement A. Kieffer, of St. Louis, for appellant.

John S. Marsalek and Moser, Marsalek, Dearing & Carpenter, all of St. Louis, and Oliver Rasch, of Bonne Terre, for respondent.

BENNICK, Commissioner.

This is an appeal by the employee from the judgment of the Circuit Court of St. Francois County affirming an order of the Workmen's Compensation Commission denying the employee's motion to set aside a compromise settlement and for a further order for additional medical and hospital treatment.

The employee, Amos A. Mosier, was employed by the St. Joseph Lead Company in its mines in Desloge, Missouri.

On October 10, 1940, the employee admittedly received an injury to his back by accident arising out of and in the course of his employment. He was treated by the employer's physician, Dr. H. C. Gaebe of Desloge, and certain payments were voluntarily made by the employer on account of compensation and medical aid.

While it appears from the employer's report of accident that the employee returned to work at once, it seems that he later quit his employment and elected to secure medical treatment from Dr. J. Albert Key of St. Louis, a physician of his own selection.

Dr. Key diagnosed the injury as a ruptured intervertebral disc, and referred the employee to Dr. Ernest Sachs, who performed an operation for the removal of the disc. Subsequently Dr. Key himself performed four additional operations, the last in November, 1942, which included, among other things, the fusion of the sacroiliac joint, the exploration of the interspinal space, the removal of nucleus pulposus material in addition to a sciatic cyst, and the tying up of the sciatic nerve. Dr. Key testified that the employee seemed to be a great deal better after the completion of the several operations, but still complained of pain and disability in his lower back and left buttock.

Meanwhile the employee had filed his claim for compensation on March 13, 1942, followed, on July 28, 1942, by a motion for a special order for additional medical, surgical, and hospital treatment. There is nothing in the record to indicate that such motion was ever acted upon, or that either the Commission or the employer had any part in directing the scope of Dr. Key's final operation in November, 1942.

So matters stood until April 5, 1943, when the parties and their respective attorneys appeared before Honorable Frank J. Lahey, a member of the Workmen's Compensation Commission, and stipulated and agreed upon a compromise lump sum settlement of the employee's claim under the procedure provided for by Section 3723, R.S.Mo.1939, Mo.R.S.A. § 3723.

In agreeing upon the proposed settlement, the employee's disability was rated at 50%, which was not only the estimate of Dr. Key, the employee's own physician, but was also the maximum estimate of Dr. W. J. Gallagher, who had examined the employee on the preceding day at the employer's request, and had estimated his disability as being from 33 1/3% to 50%.

The employee had already been paid compensation in the sum of $822.28, and under the terms of the settlement the employee was to be paid an additional lump sum of $3,343.72, and Dr. Key's bill of $250 for services rendered the employee was to be paid directly by the employer. In the colloquy between Commissioner Lahey and the parties covering six pages in the record, the Commissioner took great pains to assure himself that the employee appreciated the nature and consequences of the settlement he was making; that the matter had been thoroughly explained to him by his attorney; and that he was aware that if any further medical aid should be required, the employer would be released from any obligation to provide it, and the matter of securing and paying for any such medical aid would be his own personal responsibility. While expressing concern over the responsibility he was thus assuming, the employee stated that he understood the settlement and agreed to it, and the settlement was thereupon formally approved by the Commissioner.

Following the approval of the settlement, the employer prepared a draft for the amount of $3,343.72, and on April 13 1943, tendered the same to the employee's attorney, who refused to accept the draft and file a final receipt on the ground that his client "now desires to submit to further operation on his spine". The employer also advised counsel that it had drawn a draft for Dr. Key for $250, and would forward the same to the doctor upon the employee's acceptance of the tender. Thereafter, on June 14, 1943, the employer deposited the two drafts with the Commission with the request that they be placed in the file and be delivered to the respective payees as soon as the employee filed a final receipt in accordance with the settlement agreement.

Nothing further occurred until August 21, 1943, when the employee filed a motion with the Commission asking for an order setting aside the compromise settlement and granting him additional medical, surgical, and hospital treatment for the purpose of fusing the vertebrae of his lumbar spine.

The employer points out that the employee did not claim by his motion that there had been any misunderstanding on his part regarding the settlement, or that he had not fully agreed to it, or that the same had not been duly and lawfully approved. On the contrary, the employee first stated in his motion that at a hearing before the Commission on April 5, 1943, he had agreed on a final compromise settlement of his claim, but then alleged that he had not accepted the consideration for such settlement, or filed a final receipt therefor, for the reason that on the date of the settlement he had been unable to determine in his own mind whether to submit to further surgery involving the fusion of certain vertebrae, and for the additional reason that he had "thereafter" submitted to an examination by another surgeon, who had advised him that the fusion of certain of his lumbar vertebrae was desirable, and might reasonably be expected to cure and relieve his disability without subjecting him to undue hazard.

To this motion the employer filed an answer setting up, among other things, the compromise settlement agreement approved by the Commission on April 5, 1943, and alleging that by virtue of such settlement all of its obligations to the employee arising under the act had been fully settled, compromised, extinguished, and discharged, so that it was no longer liable to the employee for any further payments, medical benefits, or obligations of any character arising out of the accident.

The suggested operation was one for the fusing of the fourth and fifth lumbar vertebrae to the sacrum so as to render the area rigid and prevent any movement in the area where the employee complained of pain. However, Dr. Key testified that the chance of such an operation relieving the employee's condition was not better than 50% in his case; that he would prefer not to perform such an operation; but that if the condition did not subside within a year from the date of the hearing, he would be willing to perform the operation if every one connected with the case should be anxious to have it done.

While the employee seemed confused about the previous recommendations of the several physicians, he admitted to Commissioner Lahey that when the compromise settlement was up for approval, he was "not led falsely at the time".

At the conclusion of the hearing Commissioner Lahey denied the employee's motion upon the ground that the Commission was without jurisdiction due to the fact that no application for review had been filed with the Commission within ten days after the approval of the settlement. What the Commissioner had in mind was Section 3731, R.S.Mo.1939, Mo.R.S.A. § 3731, which deals with the filing of an application for the review of an "award".

Commissioner Lahey's ruling was thereafter affirmed by the full Commission, whose ruling was in turn affirmed by the circuit court on appeal. The employee thereafter gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.

The employee's first point grows out of the fact that the Commission, while properly ruling (as we shall endeavor to demonstrate) that it was without jurisdiction to set aside the compromise settlement and grant further medical aid, erroneously put its finding of lack of jurisdiction upon the ground that the employee's motion (treating the same as an application for review) was not made to the Commission within ten days from the date of the award as required by Section 3731. It will be recalled that the...