Welborn v. Southern Equipment Co.
| Decision Date | 08 November 1965 |
| Docket Number | No. 51308,51308 |
| Citation | 395 S.W.2d 119 |
| Court | Missouri Supreme Court |
| Parties | Edgar WELBORN, Jr., Appellant. v. SOUTHERN EQUIPMENT COMPANY, a Corporation, and Aetna Casualty & Surety Company, a Corporation, Respondents. |
James K. Cook, Schuchat, Cook & Werner, St. Louis, for appellant.
Luke, Cunliff, Wilson, Herr & Chavaux, St. Louis, for respondents.
This is an action for benefits under the Workmen's Compensation Law, Chapter 287, RSMo 1959, V.A.M.S. The referee and the Industrial Commission denied the employee's claim and the Circuit Court of the City of St. Louis affirmed. The St. Louis Court of Appeals reversed and remanded but transferred the cause to this court on the ground that its decision was in conflict with the opinion of the Kansas City Court of Appeals in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39. The opinion of the St. Louis Court of Appeals is reported at 386 S.W.2d 432. The primary question involved is whether the furnishing of medical services by an employer to an employee after the one-year statute of limitation has run is a payment that revives the employee's claim for compensation and permits it to be filed within one year thereafter.
The essential facts are that on or about July 20, 1960, the claimant and other employees were engaged in removing a cafeteria counter weighing from 200 to 400 pounds from a dolly and placing it on the factory floor. One of the employees suddenly let go of his end of the counter but the claimant held on and was pulled to one side and his back was jerked. He felt a real sharp pain in his back, like somebody was sticking him with a pin, which lasted for just an instant. Thereafter, the claimant had a pain in his back when he bent over to lift anything. On August 1, 1960, and at intervals thereafter, the claimant was treated by Dr. Gibson, a chiropractor, for a pain in his left lower back. In March 1961, he went to Dr. Cresswell, a medical practitioner, who prescribed a special belt and sleeping on a hard board. The claimant went to Dr. Gibson and Dr. Cresswell of his own volition and personally paid them for their services.
On August 2o, 1961, after the claimant's employment was terminated, he told Mr. Muckler (described by the claimant as 'the owner of Southern Equipment') he had trouble with his back and he was sent by Mr. Muckler to Dr. Reinick who treated him for about six weeks and then sent him to Dr. Leydig. The employer paid for the services of Dr. Reinick and Dr. Leydig. The claim for compensation was filed on September 15, 1961. Thus, the accident occurred about July 20, 1960, no compensation was paid by the employer, and no medical aid was furnished by the employer until August 23, 1961, which was more than a year after a compensable injury was found to exist.
The findings of the Industrial Commission were consistent with the referee's award and are as follows:
'Compensation, therefore, must be and the same is hereby denied.
'The other points raised by the application for review become moot in view of the above.'
The employee contends that the Industrial Commission erred in holding that it became reasonably discoverable and apparent on August 1, 1960, that the claimant had sustained a compensable injury; further, the employee contends that the Commission should have fixed a date no earlier than February 1961 at which time the employee noticed a catch in his hip and sought the services of a medical doctor for the first time. He cites Crites v. Missouri Dry Dock & Repair Co., Mo.App., 348 S.W.2d 621, and Hundley v. Matthews Hinsman Co., Mo.App., 368 S.W.2d 528. The Hundley case cited has no standing in support of the contention because it was transferred to the supreme court where a decision was rendered by the court en banc contrary to the opinion of the court of appeals. See Hundley v. Matthews Hinsman Co., Mo., 379 S.W.2d 489. The supreme court held in the circumstances of the case that a compensable injury was sustained when as the result of the accident substantial injury was apparent and medical aid was required and that the statute of limitation began to run from the time compensation and medical aid was terminated even though the maximum injury and disability was not disclosed until a later date. 379 S.W.2d 489, 494. In this regard, the court quoted liberally from Wheeler v. Missouri Pacific R. Co., 328 Mo. 888, 42 S.W.2d 579, which called attention to Sec. 42 of the original act, Laws 1927, p. 512, now Sec. 287.470, vesting the Industrial Commission with a continuing jurisdiction to change an award, and stated: "The purpose of the Legislature as disclosed by the act to our minds plainly shows that it was its intention to provide that the claim should be filed within six months after the receipt of a compensable injury by the employee and, should it transpire thereafter that the injury received has developed into a more serious injury compensable in a different manner, the commission should change the award, if any previously made." 379 S.W.2d 489, 491, Col. 2.
The Hundley case further holds that fixing the date when the existence of a compensable injury is reasonably discoverable is in large part a question of fact for determination by the Industrial Commission. 379 S.W.2d 489, 495. The Crites case is consistent with the holding of the supreme court in Hundley. There was substantial evidence from which the Commission could find that a compensable injury was sustained on August 1, 1960. The Commission was empowered to make this finding of fact and we cannot say that it erred in so doing. Sec. 287.490, RSMo 1959, V.A.M.S.
The employee next contends that the furnishing of medical treatment by the employer beginning on August 21, 1961, was a part payment on account of the injury within the meaning of Sec. 287.430 which had the legal effect of reviving his claim so that the filing on September 15, 1961, was timely. This court and the other appellate courts of the state have uniformly held that the furnishing of medical services by the employer to an injured employee constitutes a payment on account of injury which postpones the running of the period of limitation provided by Sec. 287.430. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, 1070; McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911, 914; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130, 135; Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428, 430; Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 327.
The decisions of the appellate courts of this state have not been uniform with respect to the limitation statute in question; that is, whether it is a condition and a part of the substantive law which extinguishes the claim or right of action when the period of limitation has elapsed or whether the statute is one of repose and affects the remedy only. In Dees v. Mississippi River Fuel Corp., Mo.App., 192 S.W.2d 635, 640, the St. Louis Court of Appeals held that the one-year statue of limitation in a Workmen's Compensation case was not designed to affect merely the remedy but its legal effect was to extinguish the right itself. A little more than a year later that court in Buecker v. Roberts, Mo.App., 200 S.W.2d 529, 532, without referring to the Dees case by name, reversed its stand and held the statute to be one of repose or limitation which did not extinguish the right or cause of action stating that cases to the contrary had been overruled by the supreme court in Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. The Wentz case was certified to the supreme court by the Kansas City Court of Appeals which had held the statute to be procedural affecting the remedy only but transferred the case not only because of conflicts in the courts of appeal but also because of inconsistent decisions of the supreme court. See Wentz v. Price Candy Co., Mo.App., 168 S.W.2d 462.
Decisions of the St. Louis Court of Appeals have held that the furnishing of medical services is a payment on account of injury which not only tolls or postpones the running of the statutory period of limitation, but also has the legal effect of waiving the bar of the statute of limitation so that a claim may be filed within the period of one year after the medical services were furnished. See Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482; Mussler v. American Car & Foundry Co., Mo.App., 149 S.W.2d 429; Buecker v. Roberts, Mo.App., 260 S.W.2d 325; and Welborn v. Southern Equipment Co., Mo.App., 386 S.W.2d 432. The decision by the Kansas City Court of Appeals in Igoe v. Slaton Block Co., Mo.App., 329 S.W.2d 39, holds to the contrary and produces a conflict which prompted the St. Louis Court of Appeals to transfer the instant appeal to this court. 386 S.W.2d at page 439.
The limitation statute involved, Sec. 287.430, RSMo 1959, V.A.M.S., provides in part: 'No...
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