Parker v. St. Louis Car Co.

• Decision Date: 19 December 1940
• Docket Number: No. 25620.,25620.
• Citation: 145 S.W.2d 482
• Court: Missouri Court of Appeals
• Parties: PARKER v. ST. LOUIS CAR CO.

145 S.W.2d 482

PARKER v. ST. LOUIS CAR CO.

No. 25620.

St. Louis Court of Appeals. Missouri.

December 19, 1940.

Rehearing Denied January 4, 1941.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Joseph C. Parker, employee, opposed by the St. Louis Car Company, employer and self-insurer. From a judgment affirming an award of the Workmen's Compensation Commission in favor of the employee, the employer and self-insurer appeals.

Affirmed.

Lehmann & Lehmann, of St. Louis, for appellant.

Albert I. Graff and B. Sherman Landau, both of St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis affirming an award of the Missouri Workmen's Compensation Commission in favor of Joseph C. Parker, claimant respondent, against the St. Louis Car Company, employer appellant. Parker will be referred to herein as employee and the St. Louis Car Company as employer.

The record shows that, after a hearing before a referee of the Workmen's Compensation Commission, an award was made in favor of the employee and against the employer in the sum of $20 a week for 64 weeks for permanent partial disability on a finding that the employee had suffered a loss of forty per cent. of the use of the function of his left (minor) hand. On a review by the full Commission the award of the referee was affirmed. The award of the full Commission was duly reviewed by the Circuit Court of the City of St. Louis, where it was affirmed. The appeal by the employer to this court followed in due course.

It is not disputed that the employee was injured as the result of an accident arising out of and in the course of his employment on June 11, 1937. On that date, employee was working for the employer as a car liner. As to the kind of work he was doing and the manner in which the accident happened, the employee testified: "We go over cars and get them straightened up before the finishers get them. We have to use different tools, sledge hammers, flatters and wooden blocks. * * * One man holds the block and another man hits it. I was doing that on June 11, 1937. About 9:30 or 10 o'clock we were driving aluminum molding with a block and sledge hammer. I was holding the block and he was on a scaffold. * * * He was using an eight or ten pound sledge hammer. He missed the block and crushed my hand."

The person "He" referred to above by the employee was a fellow workman.

It is not disputed that the employee suffered a compound comminuted fracture of the phalanx of the middle finger of his left hand; that he was attended by a doctor furnished by the employer from the date of the accident, June 11, 1937, until July 6, 1937, when he was discharged from further treatment; that he lost no time from his work on account of the accident and did not lose any wages on account of it. At the time of his discharge from further treatment by the doctor on July 6, 1937, his finger had completely healed but was stiff and in a position of slight flexion. Later on the employee requested the employer to furnish further medical treatment to obtain additional motion of the finger, and on February 25, 1938, an operation was performed on the employee's finger. Said operation was also performed by a doctor furnished by the employer. On April 14, 1938, after treatment following the operation of February 25, 1938, the employee was discharged from further treatment occasioned by said operation. It was found that the operation had not restored the motion of the finger to the satisfaction of the employee. He claimed it was stiff and that it got in his way when he worked. He again requested the employer to furnish medical services necessary for an operation, and, at his request, on February 4, 1939, an operation was performed and the finger was amputated at the second joint. Thereafter, on March 11, 1939, he was discharged from further treatment.

The record shows that the claim for compensation was filed by the employee on February 28, 1939. It is conceded that no compensation (in money) was paid prior to the filing of the claim for compensation and none has been paid since the filing thereof. It is also undisputed that the medical services furnished by the employer after the employee was discharged from further treatment on July 6, 1937, were for the purpose of relieving the stiffness of the finger, and that it had at that time completely healed but had not been restored to the condition of a normal finger. It was stiff and crooked.

Mr. Edwin B. Meissner, president and general manager of employer, testified that at the time of the operation on employee's finger on February 4, 1939, when the finger was amputated, he advised the employee that the employer was under no legal obligation to furnish any additional medical services for him but would give him what assistance it could. It further appears from the record that the employer gave the employee a total of $40 in two payments — one on April 18, 1938, of $25, and another payment on June 8, 1938, of $15. In this connection employee testified as follows, referring to Mr. Meissner:

"Q. Did he ever give you any gratuities by way of medical or compensation or money after this accident? A. After the accident? He gave me a little money for carfare.

"Q. What amount did he give you? A. Somewheres around forty dollars, all told. I could not tell what date it was. It was after my finger was first crushed. It was between that and the time when I was operated on the first time. It was probably four months after the accident. I think it was within six months from the date of the accident that he gave this to me."

The employer contends that the evidence shows the Workmen's Compensation Commission had no jurisdiction to entertain the employee's claim for compensation, first, because the medical services furnished to the employee by the employer were gratuitous; second, the employee's claim for compensation was not filed within the time allowed by Section 3337, R.S.Mo.1929, Mo. St.Ann. § 3337, p. 8269; third and fourth, that the limitation on the filing of claims for compensation provided for in Section 3337, supra, is a limitation on the right and not merely on the remedy, and that the filing of a claim for compensation is therefore jurisdictional and cannot be waived.

Section 3337, R.S.Mo.1929, Mo.St.Ann. § 3337, p. 8269, provides that no proceedings for compensation shall 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...