Toombs v. Deitz Hill Development Co.

• Decision Date: 16 February 1942
• Docket Number: No. 20064.,20064.
• Citation: 159 S.W.2d 317
• Parties: TOOMBS v. DEITZ HILL DEVELOPMENT CO.
• Court: Missouri Court of Appeals

159 S.W.2d 317

TOOMBS v. DEITZ HILL DEVELOPMENT CO.

No. 20064.

Kansas City Court of Appeals. Missouri.

February 16, 1942.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Proceeding under the Workmen's Compensation Act by Josh Toombs, claimant, opposed by Deitz Hill Development Company, employer. From a judgment reversing an award of the Workmen's Compensation Commission, claimant appeals.

Reversed and remanded with directions.

N. R. Fischer and E. H. Gamble, both of Kansas City, for appellant.

C. E. Thomson, of Kansas City, for respondent.

CAVE, Judge.

This is an appeal by appellant (employee) from a judgment of the Circuit Court of Jackson County reversing an award of the Workmen's Compensation Commission in favor of appellant for injuries arising out of and in the course of his employment by respondent (employer). The judgment of reversal recited "that there was not sufficient competent evidence in the record to warrant the making of the award. * * * The court further finds that said commission erred in making an award for permanent partial disability, for the reason that the disability suffered by the claimant on the date of hearing, November 28, 1940, warranted making only a temporary or partial award for temporary total disability." There follows a reversal and remanding of the cause for rehearing by the commission. This appeal seeks to reverse that judgment and reinstatement of the commission's award.

Appellant asserts (a) that there was sufficient evidence to support the award for permanent partial disability; (b) the granting of a partial award is discretionary with the commission; and (c) that the employer was not prejudiced from failure of commission to make or mention temporary total disability because the rate for temporary total and permanent partial is identical, and if such failure was error it was not prejudicial error.

It is admitted that the appellant was an employee of respondent and was injured on May 16, 1940, in the course of his employment. The accident was duly reported to the commission by the employer, and on May 28, 1940, the employee and employer executed a temporary agreement in accordance with the compensation law and filed it with the commission. Under said temporary agreement, weekly compensation of $10.57 was paid from date of accident to and including November 23, 1940. On September 17, 1940, employee filed his claim with the commission, claiming injury to his arm, legs, back, spine and internal injuries. Employer joined issue thereon by filing answer, admitting that employee was injured in the scope and course of his employment, but denied that his injuries were as serious as claimed, and that employee was recovering from the injuries and would not sustain any permanent injury. On November 28, 1940, the cause was heard by Edgar C. Nelson, chairman of the commission, and on December 11, 1940, he made an award to employee for permanent partial disability and allowed the sum of $10.57 per week for 260 weeks. Within the time allowed by law, the employer filed its application for review of said award by the full commission. In its application for review the employer made but two assignments of error: (a) "The commission erred in making an award for permanent partial disability, any rating therefor, at this time, being premature and uncertain"; (b) "The commission erred, because under the greater weight of the credible evidence, the award made of 260 weeks for permanent partial disability is grossly excessive."

On April 10, 1940, the whole commission made its award, and, among other things, found: "We find from all the evidence that employee herein sustained an accidental injury on May 16, 1940, which arose out of and in the course of his employment; that as a result thereof he suffered certain injuries to his left shoulder, pelvic and low back regions and is entitled to compensation for permanent partial disability therefor in the loss of use and function as a man to the extent of 65% of 400 weeks, or 260 weeks, as herein provided."

In due time the employer appealed to the circuit court of Jackson County, and on June 25, 1941, the court rendered judgment of reversal for the reasons above set out.

We will first dispose of the question whether the commission was compelled, under the evidence in this case, to make an award for temporary total disability before making a final award for permanent partial disability; or, stated another way, did the commission commit reversible error in making a final award for permanent partial disability before making an award for temporary total disability? We think not. Chapter 29, R.S.Mo.1939, contains the plan and scheme of Workmen's Compensation as adopted by the legislature and we do not find any specific language therein requiring the commission to award temporary total disability before awarding permanent partial disability, and respondent does not cite us to any such provision. Section 3734 provides that a temporary or partial award may be made and that such award may be modified from time to time, but we find nothing mandatory in that section; under that a temporary or partial award is permissible but is not required. Referring to this section the Supreme Court in the case of State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950, loc. cit. 954, said this:

"Section 3344, R.S.1929 [now Sec. 3734, Rev.St.1939] provides that `a temporary or partial award may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made.' Therefore,...