Mussler v. American Car & Foundry Co.
| Decision Date | 08 April 1941 |
| Docket Number | No. 25764.,25764. |
| Citation | 149 S.W.2d 429 |
| Court | Missouri Court of Appeals |
| Parties | MUSSLER v. AMERICAN CAR & FOUNDRY CO. |
Appeal from St. Louis Circuit Court; William K. Koerner, Judge.
"Not to be reported in State Reports."
Proceeding under the Workmen's Compensation Act by Edward Mussler, employee, opposed by the American Car and Foundry Company, employer and self-insurer. From a judgment affirming an award for the employee, the employer and self-insurer appeal.
Affirmed.
Watts & Gentry and Herbert E. Bryant, all of St. Louis (N. A. Stancliffe, of New York City, of counsel), for appellant.
Bartley & Mayfield, of St. Louis, for respondent.
BENNICK, Commissioner.
This is a proceeding under the workmen's compensation law, §§ 3689-3766, R.S.Mo. 1939, Mo.St.Ann. §§ 3299-3376, pp. 8229-8294, the appeal being by the employer and self-insurer from the judgment of the Circuit Court of the City of St. Louis affirming an award of the commission in favor of the employee.
The appeal presents two questions for determination, the first, whether the claim was filed within the six-months' period as required by Section 3727, R.S.Mo.1939, Mo. St.Ann. § 3337, p. 8269; and the second, whether, in the event that the commission acquired jurisdiction to entertain the claim on the merits, there was sufficient competent evidence adduced to support the commission's finding of 126 weeks of temporary total disability for which the award was made.
The employee's injury, which was concededly by accident arising out of and in the course of his employment with the employer, American Car and Foundry Company was sustained on February 27, 1937, and consisted of fractures of the bones of the right leg just above the ankle.
Thereafter the employer provided medical and hospital treatment for the employee until March 14, 1938, when the employee was discharged by the company physicians as ready to go back to work. On the following day, March 15, 1938, he signed his final receipt for the compensation paid him, which had aggregated the sum of $893.33.
According to the employee's testimony, his leg was still paining him at the time of his discharge by the company physicians, so much so in fact that on the very day of his discharge he was walking with a cane which he continued to use for two or three months afterwards, but thinking that the pain would "wear off", he had offered no objection to his discharge, and thereafter applied for, but was refused, work at the company's plant on four or five different occasions. As he put it, he was willing "to try to go back to work" if the company would give him a "light job", but in each instance when he asked for work, he was told by the employment manager, one Hines, that the plant was not running full capacity, and that he could not be placed at anything at that particular time.
By the fall of the year his leg began giving him more trouble, and on October 22, 1938, he once again went down to the plant, and upon informing Hines, the employment manager, that he "wanted to see the doctor", was sent in by Hines to Dr. Stephens, one of the company physicians in attendance at the clinic which is maintained by the company on its premises for the treatment of its injured employees.
At this point in the case, a sharp issue of fact arises as to what thereafter occurred.
According to the employee, after he was taken into the clinic, he removed his shoes and socks, and Dr. Stephens then examined his right leg and treated it by means of local applications.
The employee further testified that when he returned to the clinic on Friday according to Dr. Stephen's directions, he was told by the doctor that Herr, the claim man, wished to see him; that he then consulted Herr; and that Herr told him "that the case was closed and that he couldn't open it again".
Thereafter the employee's claim for compensation was filed with the commission on December 30, 1938, which was of course well within the period of six months after October 22, 1938, the date of the employer's last treatment to cure and relieve him from the effects of his injury, if his testimony was to be believed that he was given treatment on that date; but was long out of time if, as the employer contends, he did not receive treatment on that...
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Gugler v. Indus. Accident Fund, 8467.
...Mo. 596, 50 S.W.2d 130;Parker v. St. Louis Car Co., Mo.App., 1940, 145 S.W.2d 482;Mussler v. American Car & Foundry Co., Mo.App. 1941, 149 S.W.2d 429;Martensen v. Schutte Lumber Co., 1942, 236 Mo.App. 1084, 162 S.W.2d 312;Baade v. Omaha Flour Mills Co., 1929, 118 Neb. 445, 225 N.W. 117;Goul......
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Martensen v. Schutte Lumber Co.
... ... employee within the statutory period. Mussler v. American ... Car Foundry (Mo. App.), 149 S.W.2d 429; Moscicki v ... American Foundry Mfg. Co ... ...
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Gugler v. Industrial Acc. Fund
... ... v. St. Louis Car Co., Mo.App., 1940, 145 S.W.2d 482; ... Mussler v. American Car & Foundry Co., Mo.App. 1941, ... 149 S.W.2d 429; Martensen v. Schutte Lumber ... ...
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