*1 rather, tort action was not a but it because point is not theory the case. defendant’s supports opinion, our that the trial court erred in said, follows we have From what trial judgment of the court -demurrer, and the sustaining defendant’s except Douglas, J., concur, All It is so ordered. be reversed. should absent. Cap Appellant, Company, Bread Myers, Employee,
J. Sheaf Bert Liberty Insurer.— Company, Employer, and Mutual Insurance (2d) 503. 39475. 192 S. W. No. February 11, Banc,
Court en appellant. E. Zuckerman
Louis *2 for respondents.
John F. Evans an WESTHUES, appeal judgment C. This is from city Louis, affirming circuit court of of St. Missouri, an award Compensation denying compensation the Workmen’s theory J. his Bert on the claim was barred sec. A., Mo., 1939, being a
Mo. R. S. R. S. governing statute limitations Compensation claims the Workmen’s An appeal Commission. duly perfected. being The claim amount excess of appellate jurisdiction. $7500.00 vests this court with history of the case is substantially as follows: J. Bert employed Louis, Cap Company, Sheaf Bread St. Missouri. August 26, injury On through he sustained an while accident working bakery. bakery at the On October 8, employer, company, insurer, Company, and the Liberty Mutual Insurance filed a report of the accident with the Commission. On the day surgeon’s contract, injury same and a referred to as a agreement, were also with the filed Commission. *3 reads as follows:
“TEMPORARY AGREEMENT.
(Employee’s C) Ex. No. S-45747.
“Accident Party “The Commission as Should be Soon as Notified Either Agreement. to Refuses Continue under this ‘‘Employee: Myers. J. Bert Em- Liberty Insurer: Mutual Ins. Co. ployer: Cap Co., Sheaf Bread Inc. Accident date: 8/26/40. hereby
“The employee agrees accept above above named to and the agrees named hereby pay compensation insurer to and/or in the above in accordance with Workmen’s Com- ease the Missouri pensation agreed expressly Law. further It is and understood parties between the char- hereto that this in if, date, acter and at a later it be that the are in determined respect agree- error with to payments and all made under said payments may adjusted prejudice ment, the said without to either party temporary agreement pay accept compensa- that this to liability. tion against shall not be as an used admission interest or of “Dated September —, 1940.
“Employee’s Signature: (Signed) Myers; J. Bert “Employee’s Address: 4322 Hartford.
“Employer Signature: By (Signed) or Insurer’s E. HOFMANN. (Signed) “Witness: A. Bolay.”
Myers for The from periods. two first was August September January 14, 1940, to and the second from February 9, to 1941. The total amounted The $162.88. of plaintiff evidence pain showed he suffered in his back from the time of hearing the accident to the Commission before days A Myers July, few after the accident was sent to a January, 1941, an examination. Helbing
Dr. for insurer Dr. Dr. Myers Murphy prescribed Dr. Pfeifer. Pfeifer sent Myers’ affair, protect back. He wore brace, a this a corset-like October, and since that time occasional- February 1941, from brace Myers it. stated that he could not work without ly needed. when 1941, Myers informed his foreman that his 6, On October company he unable to do employment with the must end because was 9,1941, Weisleder, representing insurer, sent his work. On October During for an examination. examination Myers Hampton to Dr. Myers’ evidence. X-ray pictures. Note Dr. made some a Scott Hampton me who company sent to Doctor 9, 1941, the “On October 1941. Mr. sent 9, Weisleder of me on October examination then me to Dr. Scott examination sent me He made an to him. I X-ray happened the date was dis- pictures. All this after for days going later. He was 6, or five charged, 1941—four on October ’’ company his the insurance on examination. to make asking 1941, wrote to the Commission On December file requested him to compensation. additional the Commission. regular blank furnished com claim on a defendants, form furnished. The claim plied and filed denying liability also en insurer, filed an answer employer and required a statute at that time claim 3727, supra. see. voked statute was amended six months. This be-filed within Candy Co., year. Wentz Price See prescribed now the time is one hearing A referee was had 175 S. W. theory that compensation on the resulting an award of no the award. on review affirmed was barred. The full Commission claim they what hearing in evidence called introduced the defendants At *4 receipt 8, was dated October receipt compeirsation. for a final at not Commission that time. It does 1940, was with the filed receipt did in 1941. It evident that the payments the made cover by claim and was so considered a the not constitute settlement of ’ respondents contention that the claim It is employer the and insurer. payment six after the last was made within months not filed was made payment that the last was temporary agreement; under the 17, claim was not filed until December February 8, 1941, the evidence, however, is in that later. It ten months more than by employer. the by selected insurer and being treated doctors was year through 1941, prescribed all the wore brace will be noted that the defendants. furnished by doctors by X-rays Myers to doctors and were 1941, defendants sent October, law, furnishing and con was, medical-aid That within taken. 3701, Mo., 1939, meaning of see. R. S. within the payments stituted 3727, supra; statute limitations. Sec. A., as to toll the of R. S. so Mo. (2d) l. 817, 1067, 62 S. W. c. Co., 333 Mo. McEneny Kresge v. S. S. Co., App. 1084, Lumber 236 Mo. Schutte (4); v. Martensen Mfg. (4-7); Baker-Lockwood (2d) l. c. 317 Thomas v. 312, 162 S. 3). (2d) (2, c. 119 117, S. W. l. App. 1248, Mo. Co., 236 medical for this order of the Commission secured fact that no supra, McEneny Kresge, v. does not alter the situation. treatment 170(3). cite, others, (2d) Respondents among 169, l. c. S. W. Compensation Com of ex rel. v. Workmen’s the ease State Saunders (2d) case it was held: 691, 63 W. 67. In that mission, 333 S. from the date provision filing within six months for claims
“The voluntary payments or of last has reference agreement. only It could refer temporary under a ’’ payments. such However, pay- in that had been no medical aid or case there within to the a claim for additional year prior ments made one time compensation was filed.
Appellant contends case was Commis compensation. sion at the filed his demand for additional he prior connection it Commission, this must noted that the no time filing to the petition compensation, for claimant’s additional agreement. approving Nor disapproving order or any way did the had taken action Commission in indicate that it injuries filing temporary agreement, report other than Mo., A., 3723, 3724, 1939, the accident. Mo. R. S. Sections R. S. contemplate agreements by employee, all with to compensation subject review act, reference under the shall be by the approved. Commission and not valid The statute has unless Liberty Saunders, been so ex supra; construed. See State rel. Mutual Jones, 932, 945, Ins. Co. 344 Mo. 130 W. l. c. 959. In the S. say: latter court en had the following banc wholly “The if settlement, any, is made and is vol- untary. The power stage Commission proceeding has no at that only power, coerce settlement or make award. It has veto namely, power to approve already refuse made, settlement if rights deemed not parties.- of the Under See. R. S. 1929, Ann., p. approval Mo. Stat. See. validity”. settlement prerequisite to its It is the filing contention of claimant filing was in fact a claim-for compensation, and since the Commission approving tempo made no order disapproving rary the case pending undisposed was still of at the time he claim made his compensation. by appel additional are Cases cited *5 lant that sustain Perry his contention. See v. & 49 Sons, J. A. Kreis S. (2d) 220, l. 221 2); Anheuser-Busch, c. (1, Weiss v. 234 Mo. Inc., App. 710, (2d) 117 S. W. 682, l. c. 684 (1-3); DeTienne v. Wellsville Fire Brick Co., 70 (2d) 369, S. W. l. c. In this latter case St. Louis Court Appeals of say: had the following 3724) (now 3723 and secs.
“Both 3333 and section section only to examine mandatory duty upon commission not place may compensation that any agreement for of settlement or approve the it will with but to determine whether or not it, be filed not did in. commission It is that the instant same. conceded claim re therefore the receipt,’ and approve the ‘final and In pending before commission. undisposed mains of and claim. has jurisdiction situation the retains its of commission claim and on authority filing of amended therefore the to allow the may the facts warrant. Shout proper hearing make such award as (2d) App. 388, Mo. 41 S. W. Co., Gunite & v. Concrete Const. (2d) 727; Harder 629; Plastering (Mo. App.), v. Co. 55 S. W. Carr O’Malley Corp., supra, supra; v. Motor Truck Co., Const. rel. App. 1, See, also, State ex 31 S. W. loc. cit. Sup.), 63 (Mo. Compensation v. Mo. Workmen’s Comm. Saunders (2d)W. S. 67.” and the effect seek to the force the statute defendants avoid agreements by pointing con- the decisions out that the signed one differently in the than the
sidered above cases were worded Defendants parties and filed with the Commission. in this case say: in their brief Agreement’ present in the
“Compare ‘Temporary form of used styled Compensation’ ‘Employe’s case. The Claim For old form affirmatively employe makes Etc., hereby recited ‘the claim compensation’. present merely respec- form recites that agree parties pay tive ‘in accept Compensation payment the Missouri such Law’, Workmen’s prejudice’, ‘without ‘shall and received against liability.’ other be used as an admission interest or In words, character, payments voluntary and either purely are given party right subsequently dispute legality liability. The prejudice’ admitting ‘without without deny were time that the insurer left free al- leged employment, accident arose out and in the course deny complained of 'from such or to that the condition resulted actually-did There noth- ‘accident’, respondent’s as in this case. ing a ‘claim’ for in the itself which could be construed as paper is not settle dis- compensation, and the commission asked to pay accept com- parties. between the An pute ‘in pensation accordance with Workmen’s the-Missouri including the necessarily whole, Law’ embraces the law a section as on limitations”. Saunders, supra. rely support thereof on State rel. defendants ex made, had been had,
But case the after disability theory had ended. receipt executed a final what this there said: Note court *6 employer were and the
"However, 4, 1928, March relator on disability ended.” opinion that the had the reading receipt that case the final found in that filed
It will also be by an order of Commission. approved was the with Commission the case. of course closed the That jurisdiction was en- of the Commission
In the before us the case injuries ánd the by filing report of the the accident voked the agreement. by employer It treated and insurer. was so Neither was further filed with the Commission. No was by pending was the While case thus order made Commission. the that employee compensation. for further It is in evidence the asked by February in was advised a doctor wear January The was protection for the of his back. Commission brace furnished em- this, notified of nor of made in The never the that ployee testified that he was to work without brace and unable the disability injury he Yet, had ceased. for that received the never only meager case sum the insurer and contend that by though the limitations, has virtue even ended of the statute of Compensation approved has or disapproved neither nor has settlement, any award been made. opinion provisions statute,
We are of the of the sees. that the 3723, 3724, supra, wording any agreement control over the that may by agree be parties, though executed even the form of the prescribed by Compensation ment be law Commission. The places duty upon approve disapprove Commission to either any settlement attempted duty made. be to be cannot avoided. intelligently Commission, settlement, pass the merits of a acquaint must itself with the facts of the ease. The recognized this case statutory provisions, expressly it was stated therein -be was to in accordance the Missouri Compensation Workmen’s Law; that the temporary in adjustments character and that later made. could agreement, as -well statute, as the contemplated Commis finally sion would approve is, parties. settlement between the therefore, opinion our that the case was undisposed still before the Commission at applied com for additional pensation. When application filed, duty was the adjudicate Commission to rights parties. We. note that right to'deny insurer and employer reserved liability in toto. That issue was never tried the' Commission. The judgment of the trial court with directions to reversed court to enter a judgment setting judgment its the award aside Commission and to remand Com- mission for further action. It is so ordered. isC., foregoing opinion PER CURIAM:—The West hues, Gantt, Tipton, Ellison, en Bane. opinion of the Court adopted as separate J., Hyde, concurs Clark, J., concur. Leedy, JJ., and C. Leedy, JJ., Tipton and Gantt, Ellison, which concurring opinion in *7 Douglas, J., absent. concur; Clark, J.,C.
and Oc- claimant on of examination (concurring). J. HYDE, —If making report a to the of 1941, only purpose for 9, tober furnishing it construed as I think be company, do not could insurance a 3701 so as to constitute under Section medical treatment herein are all other references (These and under Section put my concurrence Ann.) prefer I R. S. 1939 and Stat. C., Westhues, ground opinion upon the stated in second namely: that, the circumstances adopted Two, under in Division pending a the Commission record, in before shown this there injury, for his which compensation the amount of claimant’s as to hearing. a by agreement by an or never either had been determined analysis necessarily from an I is reached think this conclusion plan of Workmen.^- Act. of the whole our is an that, 3724 is when accident intent of Section clear only two, and there are reported in accordance Section fixes agreement two, alternatives, namely: be an which There must employer notify must paid, the amount be or course, by a Of dispute is settled Commission. there any con accident, if make of an or employee an fails to disclosure accident, provided time tention he sustained an within the has period that is Section and files claim within the limitation 3726 no an Although authority 3723 another matter. under of Section agreement report sent in with the accident of settlement could be any nevertheless, a dispute .began, time after both or at even require approval 3724 of the Commission. and Sections they parties agree, as follows: “If the is, last sentence Section agreement, shall file with the commission a facts and their agreement it make approved by and if the is the Commission shall compensation an award of thereon in therewith.” accordance clearly applies agreements requires section to all an award compensation agreement on all claims an or if'there is no either on hearing. agreement, on authority
However, partial temporary under of Section a or any Therefore, temporary agree- be made in a award could case. made, tempo- could be it one which authorizes a ment but should be rary Clearly, however, award accordance with Section agreement (like temporary award Sec- authorized keeps open tion final a 3734) the case until award is made. Even final can be increased reopened, award under Section change condition. All demon- ground of this on the diminished authority keep any open matter has the Commission strates that change condition) reopen a final award (or a final award even for justice. employer employee may complete obtain both so that “If provides: Furthermore, Section in re- dependents to reach an
injured employee,or his fail they or if have reached such gard compensation chapter, under signed been and filed with commission which has therewith, been or is due has disagree then the continuance of thereto as to weekly payment party may either make agreement, under such hearing regard matters application to the commission to the ’’ ruling and for a thereon. issue Therefore, undoubtedly from intended that made, fixing compensation either is' as the basis for (for award or for final ease award, the determination that, paid) commission; of the amount to be but *8 agreement made, if no is no is until a claim is filed. case limitations) 3727 (providing Thus Section means when there agreement, is no the claim is barred unless filed within six months (at’the the injury case; after or death year time of this now one Laws p. 718); temporary agreement, ap- when there is a to be by temporary proved Commission, award of then claim for year) an be (now additional amount must made within six months one agreement from the date of last temporary under or award. trouble in is temporary this ease that the called so compensation fixes no amount of to be and so could paid,
not be basis of even award. a recognition is that- something says is employee, only due the but it is to be Compensa- the Missouri Workmen’s already Act. tion That was obligation employer, without it, saying obligation if he had clearly at all. Thus an it not agreement contemplated by any of the above statutes, and, there- fore, can nothing it amount to more an (by than extension 'of time agreement) making kind an fixing an amount (for either permanent award) which the Workmen’s require. Act Thus, does agree- no more than negotiate ment to about amount paid, bring to be and it not does stage the matter to where there is either for com- pensation (upon which made) award could or where there is a dispute upon hearing which could be held. words, under other negotiations the record in this case, still progress were for an agreement and the yet matter had not stage reached the either an ruling in the I concur reasons, dispute. For these ii&
agreement or a undeter- merely pending matter Two that Division parties; by agreement of the continued Commission, mined before All concur. barred limitation. claimant and that George S. Montgomery, Fred Relation State of Missouri Judges County Court L. Yost, W. Klaber Walter County Nordberg, Clerk of County, Missouri, v. Jackson Ben Kirby, Coun W. Missouri, and County, of Jackson Truston Court 39824. Appellants. County, Missouri, ty Treasurer of Jackson No. S. February 25, Banc, en Court *9 appellants. Edwin A. Harris for