Stoddard v. Wilson Freight, Inc., WD

Decision Date01 March 1983
Docket NumberNo. WD,WD
CourtMissouri Court of Appeals
PartiesGeorge W. STODDARD, Claimant-Appellant, v. WILSON FREIGHT, INC., Employer-Respondent, Transport Insurance Company, Insurer-Respondent, Mel Carnahan, Treasurer of Missouri, Custodian for Second Injury Fund, Respondent. 33316.

Philip C. Ehli, Kansas City, for claimant-appellant.

James H. Horn and Robert E. Pinnell, Kansas City, for respondents Wilson Freight and Transport Ins. Co.

John Ashcroft, Atty. Gen., Jefferson City and James J. McNary, Asst. Atty. Gen., Kansas City, Mel Carnahan, Treasurer of Mo., for respondent.

Before KENNEDY, P.J., and WASSERSTROM and LOWENSTEIN, JJ.

KENNEDY, Presiding Judge.

This is an appeal by claimant George W. Stoddard from a judgment of the circuit court which reversed an award of workers' compensation made by the Labor and Industrial Relations Commission against Stoddard's employer, Wilson Freight, Inc., and its insurer, Transport Insurance Company (which we shall refer to collectively as "employer") and against the Second Injury Fund. We reverse the judgment and reinstate the award of the Commission.

Claimant Stoddard on October 25, 1972, was injured in a one-vehicle truck accident near Lawrence, Kansas. He was driving his employer's truck en route from Kansas City to Topeka. Claimant worked out of his employer's local office in Kansas City, Missouri, his contract of employment was made in Missouri, and his employment was "principally localized" in Missouri. See § 287.110, RSMo 1978. Claimant could file his workmen's compensation claim either in Kansas or Missouri, or, as we shall see, in both. He filed his claim in Kansas. In due time he received $12,000 in a lump sum in pursuance of a compromise settlement with the employer's insurance company, which settlement was approved by a Kansas Workmen's Compensation referee. The settlement hearing was held December 10, 1975, and the $12,000 called for by the settlement and award was paid to the claimant at that time.

On May 12, 1976, he filed a claim for workmen's compensation in Missouri. Section 287.110, RSMo 1978, provides for claims. Still later, November 10, 1976, he amended his Missouri Workmen's Compensation claim to add the Second Injury Fund. The Labor and Industrial Relations Commission upon review found him to be entitled to an award of $13,800 against his employer, from which was deducted the $12,000 received in the Kansas settlement, and an additional $630 healing period compensation previously received by him, leaving a net recovery upon the Missouri claim against the employer the sum of $1,170. The employer was ordered also to furnish medical services.

The Labor and Industrial Relations Commission found also that as a result of a previous injury claimant was suffering from a disability of 40% of the body as a whole, and that he was entitled to permanent partial disability from the Second Injury Fund, in the sum of $5,850, and permanent total disability commencing 210 weeks after October 28, 1972, of $50 per week for the remainder of his life.

Both the employer and the Second Injury Fund appealed to the circuit court, which reversed the award. The basis of the trial court's reversal was that claimant was concluded by the settlement agreement entered into in the Kansas claim, which the court deemed to be a full and final settlement and release of all the claimant's claims growing out of the October 25, 1972, injury. With respect to the Second Injury Fund, the court found that there was no evidence to support the Commission's finding that claimant had any industrial disability at or before his accident of October 25, 1972, which would entitle him to any benefits under the Second Injury Fund.

CLAIM AGAINST EMPLOYER

We shall first take up the claim of respondent employer that the claimant Stoddard is foreclosed by his settlement of the

Kansas Workers' Compensation claim from pursuing his Missouri Workers' Compensation claim.

1. Missouri Workers' Compensation claim not barred by Kansas Workers' Compensation award under Full Faith and Credit provision of U.S. Constitution.

The respondent does not dispute the proposition asserted by the appellant, and adopted by the Commission, that a Kansas award (whether based upon trial or upon settlement) raises no full faith and credit bar to claimant's claiming and receiving a Missouri award. Thomas v. Washington Gaslight Co., 448 U.S. 261, 283-84, 100 S.Ct. 2647, 2661-62, 65 L.Ed.2d 757 (1980); Industrial Commission of Wisconsin v. McCartin, 330 U.S. 622, 628, 67 S.Ct. 886, 889, 91 L.Ed. 1140 (1947). 1

2. Settlement in Kansas Workers' Compensation proceeding did not extend to Missouri Workers' Compensation claim.

The employer says, however, that the settlement entered into between claimant Stoddard and the employer, and approved by the Kansas Workers' Compensation director, constituted a full and final settlement of all workers' compensation claims which Stoddard might have against his employer, growing out of the accident.

We find that the settlement of the Kansas Workers' Compensation claim, approved by the Kansas Workers' Compensation director through Examiner Whitaker, settled only the Kansas claim. It did not include the Missouri claim and is no bar to claimant's pursuit of a workmen's compensation award under the Missouri statutes.

We observe that there was no written contract of settlement between the claimant and the employer. The employer relies altogether upon a liturgy between Examiner Whitaker and the claimant. This occurred in a hearing held December 10, 1975, attended by the claimant and his attorney, Mr. Wingfield, and by the attorneys for the employer. The case had been partially tried. Examiner Whitaker conducted the following examination of claimant:

EXAMINER WHITAKER: Mr. Stoddard, you understand that if you accept this proposed compromise settlement and I enter an award based upon it, that that award will act as a full, final and complete release of the Wilson Freight Company and its insurance carrier from any further liability insofar as the injuries which you described to me here today?

THE CLAIMANT: Yes.

EXAMINER WHITAKER: And you realize that you have the right to a full and complete trial of this matter before an Examiner?

THE CLAIMANT: Yes.

EXAMINER WHITAKER: And the Examiner, after hearing all of the evidence, could enter an award for greater than the amount offered here today, or for less than this amount offered here today?

THE CLAIMANT: Yes.

EXAMINER WHITAKER: And if in the future you need any hospital or medical treatment for these injuries, you and you alone will be responsible for obtaining it and paying for it?

THE CLAIMANT: Yes.

EXAMINER WHITAKER: Knowing all these things, is it still your desire that I enter the award as proposed?

THE CLAIMANT: Yeah.

* * *

* * *

EXAMINER WHITAKER: Based upon the testimony of the claimant and the medical reports previously put into the record, and (sic) award is hereby made in favor of the claimant and against the respondent and its insurance Mr. Ramsay, representing the employer, then presented the claimant with a draft. He said: "Mr. Stoddard, I have here Draft Number M1489 from Transport Insurance Company, in the amount of $12,000.00 made payable to Mr. George Stoddard, and you agree to accept this as full, final and complete satisfaction of the award just entered in your name?"

carrier, as follows: the sum of $630.00 previously paid as temporary total compensation; and in addition, the hospital and medical expenses previously read into the record, and an additional payment to the claimant of $12,000.00 in one lump sum as a strict compromise of all remaining issues in this case.

The claimant answered in the affirmative.

Examiner Whitaker was not concerned with any claim but the Kansas claim, the claim which was pending before him and which was actually in the process of trial. If he had specifically added another question, namely, "Do you intend by this settlement to release any claim you may have under the Missouri Workmen's Compensation statutes?", he would have been, with respect to the Missouri claim, a volunteer and a meddler. The examiner was not the agent of the employer, was not speaking in the employer's behalf, and his language cannot be attributed to the employer. Had the case proceeded before the examiner without settlement, the examiner's award would have disposed only of the Kansas claim and would have had no extraterritorial effect. The settlement had no wider application than his award would have had. There is nothing in this record to show that any of the parties contemplated a settlement of any claim but the one pending in Kansas before the Workmen's Compensation Examiner. It cannot be extended beyond that.

The scope of a settlement is to be determined by the intent of the parties, ascertained from the language used and from the circumstances surrounding the settlement. It does not extend to matters not intended to be included in its terms. Freshour v. Schuerenberg, 495 S.W.2d 116, 120 (Mo.App.1973); 15A Am.Jur.2d, Compromise and Settlement, § 23 (1976).

The Commission was correct in its award to the claimant against the employer and the insurer and that award is to be reinstated.

CLAIM AGAINST SECOND INJURY FUND

It is time to turn to the award against the Second Injury Fund. The state treasurer makes two arguments against this award. The first is that it is barred by the statute of limitations, § 287.430, RSMo 1978. The second is that there is no evidence from which the Commission could find that the claimant was suffering a preexisting "industrial disability" at the time of the October 1972 accident.

Claimant in 1970 had been involved in a motorcycle accident which had left him with a shortened right leg and a limited range of motion at the right hip, which was about 50% of...

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