Summary
In Buecker v. Roberts, Mo.App., 260 S.W.2d 325, 327, it was squarely held that after 90 days the employer is only obliged to provide such additional treatment as the Commission may by special order determine to be necessary.
Summary of this case from Igoe v. Slaton Block Co.Opinion
No. 28690.
July 14, 1953.
APPEAL FROM THE CIRCUIT COURT OF GASCONADE COUNTY, R. A. BRUERE, J.
Paul H. Koenig and Thomas L. Sullivan, St. Louis, for appellant.
No brief by respondent.
This is a proceeding under the workmen's compensation law, Sections 287.010 287.800 RSMo 1949, V.A.M.S. The appeal is by the employee, Rudolph Buecker, from the judgment of the Circuit Court of Gasconade County reversing an award in his favor upon the ground that the claim was barred by limitation of time. That the claim was barred had been the only ground upon which the employer had contested his liability.
The act provides that no proceeding for compensation shall be maintained unless a claim be filed with the commission within one year after the injury, or in case payments have been made on account of the injury, within one year from the date of the last payment. Section 287.430.
In construing this statute it has been consistently held that the action of the employer in furnishing medical aid to his injured employee constitutes a payment on account of the injury, whether or not the aid is furnished under compulsion of law, or whether it is voluntarily furnished after the expiration of the time over which the employer's statutory liability for medical aid extends. Mussler v. American Car Foundry Co., Mo.App., 149 S.W.2d 429; Parker v. St. Louis Car Co., Mo.App., 145 S.W.2d 482. Nor if the circumstances are such that the employer is or has made himself legally liable for the aid, is it of any consequence that the physician rendering the aid may not have been actually paid for his services. McEneny v. S. S. Kresge Co., 333 Mo. 817, 824, 62 S.W.2d 1067, 1070; Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138.
The employer is Stanton C. Roberts, who was engaged in the business of mining for fire clay near the town of Swiss in Gasconade County. The accident occurred on January 25, 1939, while the employee was prospecting for clay by the use of a spread drill operated by a gasoline engine. During the course of the work a rope which had slipped off of an overhead hoist spool caught the employee's left leg and pulled him upwards some eighteen feet into a pulley where his foot was literally torn off at the ankle and left hanging by but a single tendon.
Upon being informed of the accident the employer called his regular plant physician, Dr. W. A. Jeter of Hermann, and directed him to take charge of the case. Since the nature of the injury was such as to require the services of a specialist which Dr. Jeter was not, he immediately put in a long distance telephone call to St. Louis for Dr. F. L. Morse, an orthopedic surgeon, to whom he customarily referred those of his cases which involved injuries to bones. The employee was thereupon rushed to St. Louis in an ambulance and put in the care of Dr. Morse, who proceeded to perform an amputation at a point about six inches below the knee so as to form a stump upon which an artificial limb could be fitted. The employee remained in the hospital in St. Louis for some eighteen weeks, and was then sent back to Hermann, where he came under Dr. Jeter's general care, although he continued to see Dr. Morse, at the latter's request, at intervals of every two or three months, and in fact had never been discharged.
The principal service which Dr. Jeter was called upon to render after the employee's release from the hospital was to care for the stump, which was still draining. According to the employee's testimony, the leg was slow in healing to the point where he could use an artificial limb, and had continued to cause him trouble. Later on, after he had begun wearing the artificial limb, Dr. Jeter found it necessary to remove cysts on several occasions. Meanwhile, as already pointed out, he went back to St. Louis from time to time for treatments by Dr. Morse, who testified that he had suffered with a condition of some sort that had interfered with the normal repair to his leg, and that he had required treatment up to the date that the doctor's testimony was given. The last time he had been treated by Dr. Morse was two or three months before the first hearing; and while the doctor had asked him to return for further treatment, he had neglected to comply with such request.
The last two occasions when Dr. Jeter removed cysts from the employee's leg were, respectively, May 5, 1942, and August 6, 1943. On the occasion of the removal of the cyst on May 5, 1942, the employee was away from work for slightly more than ten weeks, while on the occasion of the operation of August 6, 1943, he was "laid up" for a period of from four to six weeks.
About a year after his discharge from the hospital the employee had returned to work for the employer, but had apparently worked rather intermittently until some time in September, 1943, when, due to the fact that the employer had no work for him to do, he obtained a release so that he could accept other employment which was secured through the intervention of a governmental agency.
The employee testified that the employer had assured him "dozens of times" that he would pay him compensation if he ever got "caught up" to the point that he was financially able to do so. It is not clear, however, that what the parties had in mind was compensation as actually provided by the act. The employer had neglected to insure his liability, but had given the employee his word that he would pay him for the time he was off on the basis of a certain percentage of his wages. He did supply the artificial limb in January, 1940. Finally the employee, to quote his own words, became "kind of leery" as to whether he was going to receive compensation, and filed his claim with the commission on January 11, 1944.
On January 26, 1945, the referee found that the claim had been filed within the time required by law, and awarded the employee compensation in the aggregate amount of $1,032.30. The employer appealed to the commission, which rendered its award on March 9, 1945, affirming the award of the referee. Thereupon the employer appealed to the circuit court, which reversed the award upon the ground that the claim had been barred by limitation. From the judgment so rendered the employee then appealed to this court, which reversed the judgment of the circuit court and remanded the case with directions that further proceedings be had before the commission to develop the facts more fully upon the question of whether the claim had been filed in time. Buecker v. Roberts, Mo. App., 200 S.W.2d 529.
What this court had in mind, as our former opinion distinctly discloses, was that both Dr. Jeter and Dr. Morse should be recalled for more detailed examination upon the question of the authority under which they had purported to act in rendering their services to the employee.
Upon the remand of the case to the commission there was an additional hearing at which Dr. Jeter was produced by the employer for further testimony. For some unexplained reason Dr. Morse was unable to testify, and it was agreed between the parties that the case should be resubmitted upon the testimony of Dr. Jeter alone.
At the conclusion of the hearing the commission, on December 6, 1951, reentered its previous award, from which the employer again appealed to the circuit court, which, as it had done before, reversed the award upon the ground that the claim had been barred by limitation. The employee thereupon gave notice of appeal to this court, and by subsequent steps has caused the case to be transferred here for our review upon the record as it has been augmented by the additional evidence produced in accordance with out directions on the former appeal.
The act provides that in addition to all other compensation, the employer shall provide such medical, surgical, and hospital treatment as may reasonably be required for the first ninety days after the injury. In other words, for the first ninety days the employer is under an absolute duty to furnish medical aid. After ninety days he is only obliged to provide such additional similar treatment as the commission, by special order, may determine to be necessary. Section 287.140(1). But if, after the expiration of ninety days, and without the entry of a special order by the commission, he none the less supplies his injured employee with further medical aid, not only does he waive the lack of such a special order, but the aid he furnishes constitutes a payment on account of the injury as regards the running of the period of limitation upon the filing of a claim for compensation. Morrow v. Orscheln Bros. Truck Lines, supra; Parker v. St. Louis Car Co., supra; Blahut v. Liberty Creamery Co., Mo.App., 145 S.W.2d 506.
The claim in this case was of course not filed until almost five years after the injury itself, so that if it is to be saved from the bar of the statute, it can only be upon the theory that it was filed within one year after the giving of medical aid which was furnished under such circumstances as to have constituted a payment on account of the injury.
There was evidence that the employee had received treatments from Dr. Morse within less than one year of the filing of his claim; and it was shown by Dr. Jeter, who was the employer's own witness, that he had performed his last operation on the employee's leg on August 6, 1943, which was only five months before the filing of the claim. Even though Dr. Jeter was the employer's own witness, he was no less frank than Dr. Morse in admitting that the treatments he had given had been for conditions which were outgrowths of and directly associated with the original injury. Consequently the question resolves itself into one, as noted in our former opinion, of whether the employer authorized, ratified, or acquiesced in those treatments which would have tolled the statute, although made long after the expiration of ninety days and without a special order by the commission. Buccker v. Roberts, supra. The commission found as a fact that the claim had been filed in time; and our task is therefore to determine if such finding is supported by competent and substantial evidence upon the record as a whole. Const, of 1945, Art. V, § 22, V.A.M.S.
Dr. Morse had had no personal contacts with the employer, and since whatever authority he possessed had been derived through Dr. Jeter, it becomes obvious that the latter's testimony is of more importance than that of Dr. Morse upon the question of the sufficiency of the evidence to show that the employer had authorized the medical aid upon which the employee relies as having tolled the statute.
As plant physician Dr. Jeter had a general understanding with the employer that whenever an injured employee needed hospitalization, he would have the authority to send the man to a hospital and secure the services of whatever specialist might be required. In the present instance he was employed "to get the man well", which necessarily carried with it the implication that he should give treatment for any condition that might develop as the result of the injury the employee had sustained. In engaging the services of Dr. Morse, he wanted Dr. Morse to retain complete control until he was ready to discharge the employee; and there was no limitation put upon Dr. Morse as to when or how long he should continue his treatments. We have already mentioned that Dr. Morse had not discharged the employee by the time of the hearing before the referee, but testified instead that the employee was still in need of treatment. Dr. Jeter admitted that the employer had at no time directed him to discontinue further treatments.
While the employer, on December 16, 1939, had paid Dr. Jeter the sum of $125 for his services to the employee, he had not informed the doctor, so far as the latter could recall, that he would not be responsible for any further treatments. But whatever his intentions may have been, he had not specifically requested Dr. Jeter to perform the operations of May 5, 1942, and August 6, 1943; and it was shown that the employee had himself paid Dr. Jeter certain nominal charges for his services on those two occasions. The employee explained this, however, by stating that when he learned that Dr. Jeter had a bill of some $80 which was due for treatments to his leg, he had felt badly that the doctor was not being paid, and had offered to make the payments in question with the understanding that if the employer ever undertook to settle with Dr. Jeter, the payments he had made should then be credited to his personal account. In addition to his treatment of the employee's leg, Dr. Jeter also rendered services as the employee's personal and family physician; and he admitted that he kept two separate cards in his files, the one for services growing out of the injury to the leg, and the other for the employee's personal account.
But regardless of the lack of any direction to Dr. Jeter, there nevertheless was evidence, which the commission presumably found to be true, that the employer had in fact specifically authorized the operation of August 6, 1943. This came from the employee himself, who testified that when he told the employer shortly prior to the time of the operation that his leg was sore, the employer had replied that it would be a "good thing", or a "good idea", to have it attended to. Pressed for a definite answer to the precise question of whether the employer had told him to go to Dr. Jeter for treatment of his leg, the employee answered, Well, I would say `yes' if you want `yes' or `no' on that." If the employee's version of the facts was not true, it is highly significant that the employer at no time took the stand to deny it.
The award of the commission, which incorporated a finding that the claim had been filed in time, was amply supported by competent and substantial evidence upon the whole record.
It follows that the judgment of the circuit court should be reversed and the cause remanded with directions to the circuit court to enter a new judgment affirming the award of the commission. It is so ordered.
ANDERSON, J., and ARONSON, Special Judge, concur.