Has the issue of the cost of accessibility been rendered moot?
Employer/insurer argues that the "modified van" issue has been made moot by the death of employee. We disagree.
Section 287.230 RSMo reads as follows:
- The death of the injured employee shall not affect the liability of the employer to furnish compensation as in this chapter provided, so far as the liability has accrued and become payable at the time of the death, and any accrued and unpaid compensation due the employee shall be paid to his dependents without administration, or if there are no dependents, to his personal representative or other persons entitled thereto, but the death shall be deemed to be the termination of the disability.
- Where an employee is entitled to compensation under this chapter for an injury received and death ensues for any cause not resulting from the injury for which he was entitled to compensation, payments of the unpaid accrued compensation shall be paid, but payments of the unpaid unaccrued balance for the injury shall cease and all liability therefor shall terminate unless there are surviving dependents at the time of death.
"Accrue" means, "[t]o come into existence as an enforceable claim or right; to arise." Black's Law Dictionary 21 (7 $7^{\text {th }}$ ed. 1999).
Employer appealed the Commission's award to the extent that it required employer to pay for employee's base transportation cost; that is, the cost that employee would have paid for a vehicle in the absence of his work injury. Employer did not appeal the Commission's award of the cost of accessibility. Because it was not appealed, employer's liability to provide compensation for the cost of accessibility arose before his death. We conclude that the cost of accessibility was accrued and unpaid as of the time of employee's death. As such, it shall be paid to Claimant.
How much is the cost of accessibility?
Claimant has the burden of proving all of the material elements of the claim. Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 241 (Mo. App. 2003). We cannot determine the full cost of accessibility as defined by the Court because claimant did not produce competent and substantial evidence of the cost of an average, mid-priced automobile of the same year as the Savana van for which a purchase price was established. We can, however, determine the cost of modifying such a van. Through Exhibit B, claimant produced competent and substantial evidence that the cost of converting a suitable van in 2004 was $\ 16,965.00.