Tabacchi v. Garavelli, 22147.

• Decision Date: 06 September 1932
• Docket Number: No. 22147.,22147.
• Citation: 52 S.W.2d 567
• Court: Missouri Court of Appeals
• Parties: TABACCHI v. GARAVELLI et al.

52 S.W.2d 567

TABACCHI v. GARAVELLI et al.

No. 22147.

St. Louis Court of Appeals. Missouri.

September 6, 1932.

Rehearing Denied September 23, 1932.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by John Tabacchi for injuries, claimant, opposed by Joe Garavelli, employer, and the Ocean Accident & Guarantee Corporation, insurer. From a judgment of the circuit court reversing an award of the Compensation Commission denying claimant further compensation, employer and insurer appeal.

Reversed and remanded, with directions.

Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for appellants.

Joseph B. Catanzaro and Joseph J. Cooney, both of St. Louis, for respondent.

SUTTON, C.

This is an action to recover compensation under the Workmen's Compensation Act (Rev. St. 1929, § 3299 et seq. [Mo. St. Ann. § 3299 et seq.]). Defendant Ocean Accident & Guarantee Corporation is the insurer of defendant Garavelli against liability arising on account of injuries to his employees. Plaintiff was injured on July 20, 1928, while in the employ of the defendant Garavelli. He sustained his injury by falling down a flight of stairs in Garavelli's restaurant, where he was working, at 5701 De Giverville avenue, in the city of St. Louis. On July 21, 1928, he went to Dr. Kroeger, who found that he was suffering from an injury to his back around the tenth, eleventh, and twelfth ribs. The doctor did not discover that he had a hernia until about eighteen days after he came to him first.

Defendants made a payment of compensation to plaintiff on November 27, 1928. On March 7, 1929, defendants paid $150 to Dr. Lund for an operation performed by him on plaintiff for hernia. This operation was performed on October 16, 1928.

Plaintiff filed his claim for compensation on June 14, 1929. The claim was set for hearing on October 24, 1929, at which time testimony was taken, and the hearing was adjourned to October 31, 1929, when additional testimony was heard, and the commission made a temporary award of compensation. On February 28, 1930, the commission made a final award for 34 weeks' temporary total disability at $18.67 per week. Thereupon plaintiff filed his application for review. On March 24, 1930, the full commission entered an award on review for 34 weeks' temporary total disability at the rate of $18.67 per week, subject to a credit of $88.02 previously paid. From this award plaintiff took an appeal to the circuit court. He later dismissed this appeal, and accepted payment of the award as made by the commission.

On August 26, 1930, plaintiff filed an application for a review of the award of March 24, 1930, on the theory that his condition had changed since the award was made. This application was heard before Commissioner Shaw on October 31, 1930. At the conclusion of the testimony taken upon this hearing, the commissioner recommended that the defendants provide plaintiff with an operation for recurring hernia and pay him temporary partial disability at the rate of $9.33 per week from April 1, 1930, until he should be operated on, and pay him temporary total disability at the rate of $18.67 per week during the time he was totally disabled as a result of the operation. No award was made after this hearing, and the defendants made the payments to plaintiff as recommended by the commissioner, and paid 29 weeks' temporary partial disability at the rate of $9.33 per week, and 24 weeks' temporary total disability at the rate of $18.67 per week, after which further payments were withheld. On July 2, 1931, a hearing was had before the commission on the question of plainti...