Welborn v. Southern Equipment Co.

• Decision Date: 15 December 1964
• Docket Number: No. 31579,31579
• Citation: 386 S.W.2d 432
• Court: Missouri Court of Appeals
• Parties: Edgar L. WELBORN, Jr., Employee, Plaintiff-Appellant, v. SOUTHERN EQUIPMENT COMPANY, a Corporation, Employer, and Aetna Casualty & Surety Company, a Corporation, Insurer, Defendants-Respondents.

Page 432

386 S.W.2d 432

Edgar L. WELBORN, Jr., Employee, Plaintiff-Appellant, v. SOUTHERN EQUIPMENT COMPANY, a Corporation, Employer, and Aetna Casualty & Surety Company, a Corporation, Insurer, Defendants-Respondents.

No. 31579.

St. Louis Court of Appeals, Missouri.

Dec. 15, 1964.

Rehearing Denied Jan. 26, 1965.

Schuchat, Cook & Werner, James K. Cook, St. Louis, for plaintiff-appellant.

Luke, Cunliff, Wilson, Herr & Chavaux, C. F. Luke, Robert R. Schwarz, St. Louis, for defendants-respondents.

BRADY, Commissioner.

In this Workmen's Compensation action the appellant seeks medical aid and compensation for temporary total disability and for permanent partial disability in an amount which, independent of all contingencies, does not exceed the monetary jurisdictional limit of this court. The referee, the Industrial Commission, and the circuit court of the City of St. Louis have each denied compensation to the claimant. The appellant, the respondent, and the Industrial Commission will hereinafter be respectively referred to as the claimant, the employer, and the commission.

The claimant alleged that he sustained an accidental injury on July 20, 1960, when he and another employee were lifting a cafeteria counter from a four-wheel dolly to the ground. The counter weighed between 200 to 400 pounds, and when the other employee suddenly let go of his end, the claimant, still holding on to his end of the counter, was pulled sharply to one side and his back was jerked. At that time he experienced a sharp pain in his back which lasted just for an instant. The claimant was asked whether he reported the accident and if so, what he said. His testimony was that on the last Friday of July, 1960, some days after the accident, he asked his foreman if he couldn't get off to go to the doctor and the foreman said that he could not, whereupon the claimant said, 'O-kay.' The claimant did not ask to be sent to a doctor or to go to the company doctor. There is no evidence that the claimant told the foreman why he wanted to go to a doctor nor that he informed the foreman of the occurrence of the accident. After this experience the claimant had a pain in his back whenever he bent over to lift anything. On August 1, 1960, he sought medical aid for his back trouble from his personal physician, a Dr. Gibson of Potosi, Missouri. He continued to see Dr. Gibson about every two months and then in March of 1961 he went to another physician in Potosi for the same complaint. The claimant went to both of these doctors on his own initiative and he alone paid for their services.

On August 23, 1961, more than a year after the accident, the claimant was told by the employer that he was fired, whereupon he informed the employer that he had trouble with his back. The employer sent him to a Dr. Reineck, the employer's physician.

The referee denied compensation on the ground that the claim was not timely filed. The commission sustained the referee's denial of compensation and in so doing made the following findings: that the accident occurred '* * * on or about July 20, 1960 * * *'; that on August 1, 1960, it became reasonably discoverable and apparent to the claimant that he had sustained a compensable injury; that the employer and insurer paid no compensation and furnished no medical treatment on account of that injury for the year ending August 1, 1961, but did send the claimant to a doctor for treatment on August 23, 1961; that '* * * [t]his did not revive the claim. The action to toll the running of the statute must take place before the period has expired * * *'; that the filing of the claim on September 15, 1961, was not timely; and that the claim was barred by the provisions of Section 287.430, RSMo 1959, V.A.M.S.

The claimant raises two allegations of error. First, he contends the commission prejudicially erred in holding that the date upon which he sustained the compensable accident was August 1, 1960. The second allegation of prejudicial error is that the commission should not have held the claim to be untimely filed. Our duty upon review of this case is to determine whether the commission could have reasonably made its findings and reached its result upon a consideration of all the evidence before it. We are not to substitute our own judgment of the evidence for that of the commission and are to set aside the commission's decision only if it is clearly contrary to the overwhelming weight of the evidence. Riggs v. A. P. Green Fire Brick Co., Mo.App., 376 S.W.2d 635. However, a far different duty is placed upon us when we are presented with a decision of the commission which is clearly the interpretation or application of the law. Decisions of the commission falling in this area are in no way binding upon us. Mo.Digest, Workmen's Compensation, k1939(b). A finding of ultimate facts reached by the application of rules of law rather than by a process of reasoning from the facts is a conclusion of law and we are not bound by any conclusion of law made by the commission. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

In support of his contention that the commission should have placed the date upon which the claimant sustained a compensable accident later than August 1, 1960, he relies upon Hundley v. Matthews Hinsman Co., Mo.App., 368 S.W.2d 528 and Crites v. Missouri Dry Dock & Repair Co., Mo.App., 348 S.W.2d 621. It is unnecessary to discuss either of these two cases. The Hundley case was certified by the Kansas City Court of Appeals to he Supreme Court of this state and that opinion is reported in 379 S.W.2d page 489. Therein (l. c. page 495) it was held that '* * * the fixing of the date when the existence of a compensable injury is reasonably discoverable is, in large part at least, a question of fact. * * *' That being so, the Supreme Court went on to state that since it found that the commission's finding as to that date supported by substantial and competent evidence, the court should not substitute its judgment for that of the commission. In the case of Dees v. Mississippi River Fuel Corp., Mo.App., 192 S.W.2d 635, it was held that a compensable injury is reasonably discovered either when the employee is disabled as a result of the accident, an event which did not occur in the instant case, or when the claimant is in need of medical or surgical treatment for the injury, an event that in the instant case took place on August 1, 1960. It was also held in the Dees case that when either of the conditions exist, that is, either when the claimant is disabled as a result of the accident or when he is in need of medical treatment, the right to compensation exists and the limitation begins. In the instant case there is no dispute but that the claimant found himself in need of medical or surgical treatment for the injury on August 1, 1960. Accordingly, the finding of fact made by the commission affixing the date that the claimant sustained the compensable injury as of August 1, 1960, is supported by substantial and competent evidence and must be affirmed. Hundley v. Matthews Hinsman Co., 379 S.W.2d 489.

The claimant's contention that the commission erred in holding his claim untimely filed is essentially a matter of statutory construction. It is a conclusion of law upon which we are not bound by the decision of the commission. Williams v. Anderson Air Activities, supra. Section 287.430, supra, provides: 'No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within one year after the injury or death, or in case payments have been made on account of the injury or death, within one year from from the date of the last payment. * * *' (Emphasis supplied.) In its application to the instant case, Section 287.140(1), RSMo 1959, V.A.M.S., provides that for the first ninety days the employer is under an absolute duty to furnish medical aid. After the expiration of that ninety-day period the employer is only obligated to provide such additional similar treatment as the commission by special order may determine to be necessary. The rules for construing these statutes are too well known to require citation. We are to ascertain the legislative intent from the words used, if possible, and to award to the language of the statute its plain and natural meaning having in mind the object of the statute. Unless a statute is incongruous or unintelligible we are not to insert words into it and neither are we authorized to delete words for we cannot presume the legislature intended to use superfluous or meaningless words in a statute. To the contrary, we are adjured to give every word, phrase, and sentence of the statute some meaning unless to do so conflicts with the purpose for which the legislature enacted the statute. All the provisions of a comprehensive code such as the Workmen's Compensation Act of this state are to be construed together.

Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, is on all fours as to all essential points with the instant case. In the Igoe case and in the instant case he employee went to a doctor of his own selection and at his own cost after the occurrence of the accident. In each case the only medical aid the employer gave was not furnished until more than one year after the injury. In each case the claimant did not file his claim until more than one year next following the date of the accident. It has been consistently held that the action of an employer in furnishing medical aid to an injured employee constitutes a payment on account of the injury. McEneny v. S. S. Kresge Co., Mo.App., 53 S.W.2d 1075 [aff. 333 Mo. 817, 62 S.W.2d 1067].

In its per curiam opinion dealing with matters raised by the claimant's motion for rehearing the court in Igoe made reference to Mussler v. American Car & Foundry Co., Mo.App., 149 S.W.2d 429, and Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482, both being decisions of this court. While the pertinent...