Jeffrey McBride v. Missouri Department of Transportation

The findings of fact and stipulations of the parties were recounted in the award of the administrative law judge; therefore, the pertinent facts will merely be summarized below.

On December 7, 2007, employee sustained a fatal accident arising out of and in the course of his employment with employer. Employee was survived by his wife, Christa, their son, Kolter, and his son from a previous marriage, Gryffin.

A Joint Stipulation was filed with the administrative law judge at the September 4, 2008 hearing. The stipulation contains the following language, "It is the claimant, Christa McBride's, position that she would receive 100 % of the remarriage benefit of 104 weeks of compensation under R.S.M.O. § 287.240 as of June 5, 2008, which totals $\ 35,888.32 ( 104 weeks $X \ 345.08 )." Employer did not object to the language in the Joint Stipulation regarding Christa's position on what lump sum she should receive or to her testimony regarding the same. The administrative law judge then awarded Christa the lump sum amount of $\ 35,888.32 for her remarriage benefit. This amount equals two years worth of employee's total weekly death benefit.

All parties are in agreement that Christa is entitled to a remarriage benefit of 104 weeks of compensation under $\S 287.240$ RSMo. The issue is whether the administrative law judge awarded the proper amount of remarriage lump sum payment to Christa.

Section 287.240(4) (a) RSMo. provides that a dependent spouse's death benefits shall cease upon the widow or widower's death or remarriage. That section goes on to state that "In the event of remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow or widower."

Prior cases interpreting this statutory provision support employer's argument that a remarried widow or widower is to receive a lump sum remarriage benefit equal only to two years worth of the portion of weekly death benefits they were entitled to prior to their remarriage.

In Yardley v. Montgomery, 580 S.W.2d 263 (Mo. banc 1979), an employee sustained a fatal accident while in the course of his employment and was survived by his wife and two children. Id. at 265-66. Employee's total weekly death benefits amounted to $\ 93.33. Id. at 266 . The widow was awarded $\ 73.33 of the weekly death benefits and their two children were awarded $\ 10.00 each. Id. Upon the widow's remarriage, she was awarded a lump sum remarriage benefit of $\ 7,626.32, or $\ 73.33 multiplied by 104 weeks. This lump sum remarriage benefit was calculated by using only the widow's portion of weekly death benefits she was entitled to prior to her remarriage times 104 weeks. This is contrary to the calculation used in this case in that Christa's remarriage lump sum benefit was calculated by using employee's entire weekly death benefit in arriving at the amount $\ 35,888.32.

The same method that was used in Yardley for calculating the remarriage lump sum benefit was also used in the following analogous cases: Mouser v. St. Joe Minerals Corporation, 709 S.W.2d 950 (Mo.App. 1986), Battles v. Massman Construction Company, 580 S.W.2d 280 (Mo. banc 1979), and Ikerman v. Koch, 580 S.W.2d 273 (Mo. banc 1979). In all of the aforementioned cases, the deceased employee left a widow and at least one child as his survivors. The death benefits were divided among the widow and children. Upon the widow's remarriage, her remarriage lump sum payment was calculated by using her portion of the weekly death benefits times 104 weeks, not the entire weekly death benefit times 104 weeks.

Counsel for Christa argues that despite what $\S 287.240(4)$ (a) RSMo says regarding the amount of remarriage benefit Christa is entitled to, the parties both signed and submitted a Joint Stipulation Agreement on September 4, 2008 which stipulated that employer would pay Christa $\ 35,888.32 for the remarriage benefit representing 104 weeks (two years) at the stipulated rate of $\ 345.08. Christa's attorney further argues that the case was settled by way of the Joint Stipulation Agreement.

First of all, the signed Joint Stipulation Agreement is not a final settlement as Christa's attorney argues because it was not approved by the administrative law judge. This is further evidenced by the fact that a final hearing was held before the administrative law judge on September 4, 2008 and a Final Award was issued. Also, the plain language of the agreement only states that it is Christa's "position" that she was to receive $\ 35,888.32 (104 weeks $X \ 345.08 ) as her remarriage lump sum payment, not that the parties were agreeing that she was owed that amount. Lastly, even if the Joint Stipulation Agreement is deemed a final settlement between the parties and the calculation used by the administrative law judge had been stipulated to, it would be in contravention of $\S 287.240(4)$ (a) RSMo because it would allow more recovery than the amount prescribed in the statute. The Southern District Court of Appeals has previously held that such a stipulation would not be allowed because, "a stipulation in contravention of a statute is not permitted." Tidwell v. Walker Construction, 151 S.W.3d 127, 133 (Mo.App. S.D. 2004).

Another point relied on by Christa's attorney is that employer's argument regarding the incorrect calculation of the remarriage benefit should have been raised before the administrative law judge and that it is improperly addressed for the first time before the Commission. As employer correctly cites in its brief, this argument by Christa's attorney is without foundation in light of the Eastern District Court of Appeals decision in Long v. City of Hannibal, 670 S.W.2d 567 (Mo.App. E.D. 1984). In that case the Court held that "[s]ince the decision of the ALJ is not final or in any way binding on the Commission," the failure of a party to raise an issue before the administrative law judge does not result in its failure to preserve the issue for review by the Commission. Id. at 570.

Upon careful review of the entire record and relevant Missouri law, the Commission determines and concludes that, pursuant to $\S 287.240(4)$ (a), Christa is only entitled to a remarriage lump sum payment equal to 104 times the weekly benefit of $\ 115.03, for a total of $\ 11,962.77.

We modify the award of the administrative law judge on the issue of Christa's remarriage benefit calculation. Christa is entitled to be paid by employer a remarriage lump sum payment equal to 104 times the weekly benefit of $\ 115.03, for a total of $\ 11,962.77. In all other respects, we affirm the award.

The award and decision of Chief Administrative Law Judge Lawrence Kasten issued October 2, 2008, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Given at Jefferson City, State of Missouri, this 24th day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Hickey, Member

Attest:

Secretary

Employee: Jeffery McBride, deceased

Injury No. 07-116601

Dependents: Christa McBride Brown, widow

Kolter Austin McBride, son

Gryffin William McBride, son

Employer: Missouri Department of Transportation

Additional Party: Second Injury Fund (Dismissed on day of hearing)

Insurer: Self c/o Missouri Highway and Transportation Commission

Appearances: Jeffrey Gault for Christina McBride Brown and Kolter Austin McBride

Matthew Hoffman for Gryffin William McBride

Jason Saey for Employer.

Hearing Date: Commenced: September 4, 2008

Checked by: LCK/kh

Completed on: September 9, 2008

- Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

- Was there an accident or incident of occupational disease under the Law? Yes