Myers v. Cap Sheaf Bread Co. , 354 Mo. 943 ( 1946 )

If the examination of claimant on October 9, 1941, was only for the purpose of making a report to the insurance company, I do not think it could be construed as furnishing medical treatment under Section 3701 so as to constitute a payment under Section 3727. (These and all other references herein are to R.S. 1939 and Mo. Stat. Ann.) I prefer to put my concurrence upon the second ground stated in the opinion of Westhues, C., adopted in Division Two, namely: that, under the circumstances shown in this record, there was a case pending before the Commission as to the amount of claimant's compensation for his injury, which had never been determined either by an agreement or by a hearing. I think this[507] conclusion is necessarily reached from an analysis of the whole plan of our Workmen's Compensation Act.

[4] The clear intent of Section 3724 is that, when an accident is reported in accordance with Section 3722, there are two, and only two, alternatives, namely: There must be an agreement which fixes the amount to be paid, or the employer must notify the Commission that there is a dispute to be settled by the Commission. Of course, if an employee fails to make disclosure of an accident, or any contention that he has sustained an accident, within the time provided by Section 3726 and files no claim within the limitation period that is another matter. Although under the authority of Section 3723 an agreement of settlement could be sent in with the accident report or even made at any time after a dispute began, nevertheless, both Sections 3723 and 3724 require the approval of the Commission. The last sentence of Section 3724 is, as follows: "If the parties agree, they shall file with the commission a report of the facts and their agreement, and if the agreement is approved by the Commission it shall make an award of compensation thereon in accordance therewith." This section clearly applies to all agreements and requires an award of compensation on all claims either on an agreement or if there is no agreement, on hearing.

However, under authority of Section 3734, a temporary or partial award could be made in any case. Therefore, a temporary agreement could be made, but it should be one which authorizes a temporary award in accordance with Section 3734. Clearly, however, any temporary agreement (like the temporary award authorized by Section 3734) keeps the case open until final award is made. Even a final award can be reopened, under Section 3730, and increased or diminished on the ground of a change of condition. All this demonstrates that the Commission has authority to keep any matter open for a final award (or even reopen a final award on change of condition) so that both employer and employee may obtain complete justice.

Furthermore, Section 3728 provides: "If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this chapter, or if they have reached such an agreement which has been signed and filed with the commission and compensation has been paid or is due in accordance therewith, and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make an application to the commission for a hearing in regard to the matters at issue and for a ruling thereon."

Therefore, it is undoubtedly intended that from the time any agreement fixing compensation is made, either as the basis for a temporary award or for a final award, the case (for determination of the amount to be paid) is pending before the commission; but that, if no agreement is made, no case is pending until a claim is filed. Thus Section 3727 (providing limitations) means that when there is no agreement, the claim is barred unless filed within six months after the injury or death (at the time of this case; now one year Laws 1941, p. 718); and that when there is a temporary agreement, to be approved by a temporary award of the Commission, then any claim for an additional amount must be made within six months (now one year) from the date of the last payment under the temporary agreement or award.

The trouble in this case is that the so called temporary agreement in this case fixes no amount of compensation to be paid, and so could not be the basis of even a temporary award. It is a recognition that something is due the employee, but it says only that compensation is to be paid in accordance with the Missouri Workmen's Compensation Act. That was already the obligation of the employer, without saying it, if he had any obligation at all. Thus clearly it is not an agreement contemplated by any of the above statutes, and, therefore, it can amount to nothing more than an extension of time (by agreement) for making the kind of an agreement fixing an amount (for either a temporary or permanent award) which the Workmen's Compensation Act does require. Thus, it is no more than an agreement to negotiate about the amount to be paid, and it does not bring the matter to the stage where there is either an agreement for compensation (upon which any award could be made) or where there is a dispute upon which a hearing could be held. In other words, under the record in this case, negotiations were still in progress for an agreement and the matter had not yet reached the stage of either an agreement or a dispute. For these reasons, I concur in the ruling in Division Two that [508] the matter was merely pending undetermined before the Commission, continued by agreement of the parties; and that claimant was not barred by limitation. All concur.