Morgan v. Krey Packing Co.

403 S.W.2d 668, 1966 Mo. App. LEXIS 640
CourtMissouri Court of Appeals
DecidedMay 17, 1966
DocketNo. 31859
StatusPublished
Cited by8 cases

This text of 403 S.W.2d 668 (Morgan v. Krey Packing 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
Morgan v. Krey Packing Co., 403 S.W.2d 668, 1966 Mo. App. LEXIS 640 (Mo. Ct. App. 1966).

Opinion

RUDDY, Judge.

This is an appeal by employee-claimant from a judgment of the Circuit Court of the City of St. Louis, Missouri, affirming an [669]*669award of the Industrial Commission denying compensation. The Industrial Commission reversed the award and finding of the Referee who had allowed the claimant permanent partial disability to the left knee. Employer and claimant appealed to the Commission, claimant contending the award was inadequate.

The employee’s claim was dated August 31, 1962, but stamped thereon was the following: “Received by the Division of Workmen’s Compensation on September 8, 1962.” At the hearing before the Referee claimant was given permission to amend his claim to show that the injury he received occurred on or about March 1960, instead of March 1961, appearing in his claim. The self-insured employer filed an answer and denied the claim generally; denied it received notice of the injury and asserted the statute of limitations barred the claim.

Claimant’s testimony shows that in March 1960 (the exact date is not shown) while coming down steps at his employer’s plant he bumped his left knee on a rail, or, as he said in another part of his testimony, on a post that was standing by the rail. He said he “just kind of shocked it,” but that it did not bother him until the next day. On the next day he went to see the company nurse on the employer’s premises and told her what happened and showed her his swollen knee. The nurse told him to come in the next day to see the doctor and on that day upon seeing the doctor he was advised to go to the doctor’s office. He said he went to the doctor’s office “about the sixth” of March 1960, at which time the doctor aspirated the left knee and removed blood and fluid. Three days after his visit to the doctor’s office, he again went to the nurse and she gave him an Ace elastic bandage and told him to wear it. In his testimony he said he wore the elastic bandage “every week” and he has never gone “a week without wearing that bandage.” He was not wearing the elastic bandage on the day of the hearing and said this was because he was not working. The nurse never did ask claimant to return the elastic bandage.

Claimant said the wearing of the bandage helped to support the knee. Claimant never got any treatment for the knee other than that provided by the doctor, the nurse and the elastic bandage. He said he was “reasonably sure” the injury occurred in March 1960.

In the cross-examination of claimant he said the accident happened on a Friday and that he did not see the nurse until the following Monday. Also, in his cross-examination he testified that he saw the company doctor in May 1961 for another injury at which time he told the doctor that his knee would swell. He said the doctor told him if it continues to swell, to come back and he would have to lance it again. On the occasion of this visit the doctor did nothing to the knee. He said he only saw the doctor one time for the knee.

In May 1961 when claimant saw the nurse about another injury, she told claimant to continue to wear the elastic bandage. It was developed on cross-examination that the bandage he was wearing at the time of the hearing was a new elastic bandage that had been purchased by his wife in December of 1962.

The employer’s nurse did not remember claimant coming into the dispensary for an injury to his left knee, nor did she remember ever giving him an Ace elastic bandage to put on his knee. The nurse testified she kept the records of the dispensary and that she had no record of any treatment or injury to claimant’s left knee.

Dr. Leo F. Donley, who was the plant physician for the employer, testified that if the employee is seen by the nurse of the employer before he is sent to his office, the nurse would enter a record of this in a book kept at the dispensary office. He had no recollection of having treated the claimant in his office. However, he said it was possible that he had aspirated the knee of the claimant, but he did not remember it. He said he did not keep any records in his office of treatment to the employees, stating these records were kept in the dispensary of [670]*670the employer. He said an elastic bandage of the type used by claimant would lose its elasticity in a period of two to three months if it was used two or three days a week.

The Industrial Commission made the following finding denying compensation:

“We find from all of the evidence that the claim for compensation was not filed within one year from the date of the accident, nor within one year from the last payment of compensation (none having been paid), nor within one year from the last medical treatment rendered the employee and furnished by the employer and insurer.
“While not unmindful of the dicta of Myers v. Cap Sheaf Bread Co. [354 Mo. 943], 192 S.W.2d [503] 509, we are of the opinion that the furnishment of an Ace Elastic bandage by the company nurse and the more or less continuous use thereof by the employee was not medical treatment of such nature as would toll the running of the Statute of Limitations.
“We conclude, therefore, that the claim is barred by Section 287.430, RSMo 1959, and compensation must be and the same is hereby denied.”

It is not clear from a reading of the aforesaid finding and award of the Industrial Commission whether or not it found that the employee was furnished an Ace elastic bandage by the company nurse and that the employee more or less continued to use it. However, it becomes immaterial as to what finding the Industrial Commission made in this regard, as we shall demonstrate.

Section 287.140 RSMo 1959, V.A. M.S., provides that the “employee shall receive and the employer shall provide such medical, surgical and hospital treatment, including nursing, * * * as may reasonably be required * * *, to cure and relieve from the effects of the injury, * If the employer provides any medical treatment or aid, the rendition of such medical aid constitutes as to the injured person a payment on account of the injury. The bare rendition of such service at the instance of the employer is in and of itself a payment on account of the injury so far as the injured person is concerned. McEneny v. S. S. Kresge Co., 333 Mo. 817, 62 S.W.2d 1067, l. c. 1070; Thomas v. Baker-Lockwood Mfg. Co., 236 Mo.App. 1248, 163 S.W.2d 117.

The first question to be decided is whether the furnishing of the Ace elastic bandage for the knee constituted rendition of medical service? Our answer to this is that we think it did. Where a back brace prescribed by a doctor furnished by the employer was prescribed for use by a claimant, it was held in Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503, that it constituted the furnishing of medical aid. We think the furnishing of the elastic bandage by the employer’s nurse constituted providing medical aid to relieve from the effects of the injury, within the meaning of the statute.

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Bluebook (online)
403 S.W.2d 668, 1966 Mo. App. LEXIS 640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-krey-packing-co-moctapp-1966.