Stewart v. Johnson
| Decision Date | 10 January 1966 |
| Docket Number | No. 1,No. 51413,51413,1 |
| Citation | 398 S.W.2d 850 |
| Parties | John STEWART, Claimant, Respondent, v. Delbert JOHNSON, Employer, Defendant, Respondent, M. E. Morris, Treasurer of the State of Missouri, Additional Party Defendant, Appellant |
| Court | Missouri Supreme Court |
Moore, Pettit & Keeter, Aurora, for respondent John Stewart.
Arch M. Skelton, Donald E. Bonacker, Skelton & Bonacker, White & Dickey, Springfield, for respondent Employer, Delbert Johnson and Insurer Mid-Continent Casualty Co.
Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for appellant.
This is an appeal by the Treasurer of the State of Missouri, custodian of the second injury fund and as such a party defendant, from a judgment of the Circuit Court of Lawrence County sustaining a workmen's compensation award of The Industrial Commission of Missouri.
This court has jurisdiction for the reason that a state officer as such is a party. Article V, Sec. 3, Constitution of Missouri, V.A.M.S.; Section 287.220, subsection 2; 1 Grant v. Neal et al., Mo., 381 S.W.2d 838, 840.
The preliminary facts, such as whether there was an accident and whether the accident arose out of and in the course of employment of the employee by the employer at the time of the accident, etc., necessary to a finding and an award of compensation for a compensable injury, were all agreed to in a hearing before the Referee. No questions are raised as (1) to the injuries or the percentage and extent of disability suffered, or (2) to the timeliness of the claim and application for review. The parties agreed before the Referee, and he and the Industrial Commission found, that the compensation rate is $20.33 per week. Appellant agrees in his brief that a prior disability, and the disability incurred as a result of this accident, resulted in total and permanent disability of the employee; that the total benefits payable to the employee amount to 300 weeks' compensation at $20.33 per week and thereafter $18.00 per week for life.
The fundamental question in dispute lies between the employer and the custodian of the second injury fund; the question is, 'how shall the payment of benefits due the employee be apportioned between the employer and the second injury fund?' A determination of this question involves a construction of Sec. 287.220 and a resolution as to whether, in the circumstances related herein, the liability of the employer shall be computed by application of Sec. 287.190 () or Sec. 287.200 (). The question has not been presented to this court before.
The commission, on review of the referee's finding and award, found that as a result of a compensable accident of December 14, 1959, the employee sustained a permanent injury which, considered alone and of itself, was equal to 50% of the body as a whole; that prior to said accident the employee had a permanent disability (existing at the time of the last injury) equal to 50% disability of the body as a whole. The commission further found that the previous disability and the last injury together resulted in total and permanent disability to the employee. Based on these findings, a majority of the commission, one commissioner dissenting, awarded compensation to the employee (subject to a credit not pertinent to the questions raised on appeal) to be paid as follows: 150 weeks at $20.33 per week by the employer; 150 weeks at $20.33 per week by the second injury fund after completion of payment of compensation by the employer; thereafter $18.00 per week for life by the second injury fund.
This award further provided that the weekly installments bear interest at the rate of 6% per annum from the date of the award until paid. This award of interest is also assigned as error, but we will discuss this assignment after disposition of the basic question in dispute.
In determining how the 300 weeks of compensation should be apportioned between the employer and the second injury fund, the commission interpreted Sec. 287.220 to require that it determine 'the extent of disability resulting from the last accident as distinguished from the liability in dollars and weeks for said accident; * * * that said extent of disability must be considered in connection with Section 287.200, RSMo 1959 (Compensation for permanent total disability) rather than in connection with Section 287.190, RSMo 1959 (Permanent partial disability).' The dissenting commissioner disagreed with the majority's interpretation of Sec. 287.220. He would compute the employer's liability by applying Sec. 287.190. By his reasoning and computation the employer would be liable to the employee for 50% (his permanent partial disability attributable to the last injury) of 400 weeks (the maximum number of weeks for permanent partial disability), or 200 weeks' compensation, plus 20 weeks for the healing period, or a total of 220 weeks. Compensation for permanent total disability being 300 weeks, he would hold that the second injury fund is liable for the difference, or 80 weeks, plus $18.00 per week thereafter for life. The difference between these two theories is 70 weeks.
Appellant contends that the court and commission erred in apportioning the award between the employer and the second injury fund; that the method of apportionment of the award used by the commission and court '* * * violates the clear meaning of Section 287.220 in that it fails to determine the liability of the employer for the disability resulting from the last injury considered alone and of itself'; that this interpretation of Sec. 287.220 is erroneous, because it is unreasonable and arbitrary. The employer contends to the contrary, but concedes in his brief that if Sec. 287.190 is applicable the employee would be entitled to 20 weeks' additional compensation for the healing period for which the employer would be liable.
Section 287.220 creates the second injury fund and provides when and what compensation shall be paid from the fund in 'all cases of permanent disability where there has been previous disability.' It matters not whether the previous disability is 'from compensable injury or otherwise,' Federal Mutual Insurance Company v. Carpenter, Mo., 371 S.W.2d 955, 957.
Subsection 1 of Sec. 287.220 provides when and what compensation shall be paid from the fund for two separate conditions of permanent disability: (1) permanent partial disability, and (2) permanent total disability. Under this section, for either condition, the employer is liable only for that disability attributable to or resulting from the last injury.
It is with the second of these conditions that we are concerned. That portion of Sec. 287.220 pertaining to permanent total disability is: '* * * If the previous disability * * *, and the...
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