Evans v. Missouri Utilities Co.

671 S.W.2d 812, 1984 Mo. App. LEXIS 3708
CourtMissouri Court of Appeals
DecidedApril 30, 1984
DocketNos. 13283, 13326
StatusPublished
Cited by14 cases

This text of 671 S.W.2d 812 (Evans v. Missouri Utilities Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Evans v. Missouri Utilities Co., 671 S.W.2d 812, 1984 Mo. App. LEXIS 3708 (Mo. Ct. App. 1984).

Opinion

PREWITT, Judge.

Plaintiff sought Workmen’s (now Workers) Compensation benefits from his employer and its insurer. On his appeal he contends that no credit should have been granted to the employer and insurer, against sums due the employee as workmen’s compensation benefits, because of payments made to the employee under the terms of a collective bargaining agreement between the plaintiff’s union and his employer. The employer and insurer appeal, contending that the circuit court erred in not allowing them a credit for amounts withheld from the payments under that agreement and paid under the Federal Insurance Contributions Act and for withholding of federal and state income tax. The appeals were consolidated.

The credit was allowed under § 287.160.-3, RSMo 1969. It states:

“3. The employer shall be entitled to credit for wages paid the employee after the injury, and for any sum paid to or for the employee or his dependents on account of the injury, except for liability under section 287.140 [medical benefits].” 1

Plaintiff was injured on October 20,1977, while working for defendant Missouri Utilities Company. As a result of that injury he was entitled to benefits under the Missouri Workmen’s Compensation Law, Chapter 287, RSMo 1969. Missouri Utilities Company’s liability under that law was insured by defendant Hartford Accident and Indemnity Company.

Due to the injury plaintiff was unable to work for the forty-four weeks immediately following it. During that period Hartford paid him $95 per week, a total of $4,180 for temporary total disability. Three thousand eight hundred dollars was for the forty-week healing period and $380 for the additional four weeks. All his medical expenses were paid. According to a collective bargaining agreement between Missouri Utilities Company and plaintiff’s union, a local of the International Brotherhood of Electrical Workers, plaintiff was entitled to receive from Missouri Utilities Company $10,591.05 during the forty-four weeks. One thousand four-hundred thirty-nine dollars and forty-five cents of this amount was not paid to plaintiff, but withheld because of F.I.C.A. and income tax payments. The relevant section of that agreement is § 5.04. It states:

“In the event any employee is absent from work because of an occupational accident, the employee will be paid 80% of his regular rate for the first three days and 90% of his regular rate of pay for the remainder of time lost less the amount of compensation payments paid the employee by the Company under the Missouri Workman’s Compensation Act for his regular scheduled hours as determined by his normal work schedule for all time lost not to exceed 50 weeks regardless of his length of service with the Company.
The employee will be compensated on the above basis for each occupational [814]*814accident; however, such payment shall cease not later than when the employee is physically fit to return to his regular job and his Workmen’s Compensation payments under the Missouri Workmen’s Compensation Act terminated or the employee is awarded a lump sum settlement, or granted an award for either total or partial impairment.”

The Labor and Industrial Relations Commission entered an award on March 4, 1982, which determined plaintiff’s compensation benefits as follows:

“Temporary Total Disability
(healing period; 40 weeks at $95.00 per
week) . $ 3,800.00
Permanent Partial Disability (30'/ right leg at 160 week level;
40/ left leg at 160 week level;
plus 10/ for multiplicity; 123.2 weeks at $80.00
per week) . 9,856.00
Total Compensation Due . 13,656.00
Paid to Date by insurer . 4,180.00
Paid to Date and Credited to Employer . 9,285.37
Total Compensation Due and Owing From Employer-Insurer . $ 190.63”

The credit allowed was the amount paid by Missouri Utilities Company to plaintiff following the accident, less $1,305.68 representing “vacation pay”. This deduction from the credit is not questioned. The circuit court’s judgment, entered April 28, 1983, deducted from the credit allowed by the Commission the $1,439.45 not paid directly to plaintiff, and otherwise affirmed the Commission’s award.

Plaintiff claims that defendants should not be allowed a credit because the payments were made because of the express contractual obligation of Missouri Utilities Company to pay more benefits than provided by the Workmen’s Compensation Law and were not paid on account of the injury.2

Defendants rely on five cases allowing a credit under this section, Point v. Westinghouse Electric Corporation, 382 S.W.2d 436 (Mo.App.1964); Strohmeyer v. Southwestern Bell Telephone Company, 396 S.W.2d 1 (Mo.App.1965); Cowan v. Southwestern Bell Telephone Co., 529 S.W.2d 485 (Mo.App.1975); Hull v. Southwestern Bell Telephone Company, 565 S.W.2d 809 (Mo.App.1978); and City of St. Louis v. Grimes, 630 S.W.2d 82 (Mo. banc 1982).

We agree with plaintiff that Point v. Westinghouse, supra, is not controlling. There was no showing in Point that the employer was obligated to make the payments and the court emphasized that an “employer who has paid an employee at the time of that employee’s greatest need more than he was obligated to pay should not be penalized by being denied full credit for the amount paid above the requirements of the [Workmen’s Compensation] act as against the amount which might subsequently be determined to be due the employee. To do so would inevitably cause employers to be less generous.” 382 S.W.2d at 441. The payments in question here were benefits which the employee received as a result of collective bargaining and the employer was obligated to pay them. These payments were not made out of generosity or concern for the employee but because required by the contract.

The Southwestern Bell cases also do not rule this situation. They, unlike the agreement before us, were based upon a plan with provisions which “specifically negate” any payment of both workmen’s compensation and the contractual amounts. See Strohmeyer v. Southwestern Bell Telephone Company, supra, 396 S.W.2d at 7. Cowan v. Southwestern Bell and Hull v. Southwestern Bell involved that same plan. Section 287.100, RSMo 1978, expressly required the credit in City of St. Louis v. Grimes. Thus we find none of the cases relied on by defendants controlling.

Plaintiff cites Pet, Incorporated, Dairy Division v. Roberson, 329 So.2d 516 (Miss.1976), and City of Corpus Christi v. Herschbach, 536 S.W.2d 653

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Bluebook (online)
671 S.W.2d 812, 1984 Mo. App. LEXIS 3708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-missouri-utilities-co-moctapp-1984.