Dolores Woolery v. Sedalia Democrat/Missouri Freedom Newspapers, Inc.

husband as an additional party could not be granted. We disagree. In Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007), the Court stated:

Section 287.240.4, which applies to the entire workers' compensation chapter, states that " $[t]$ he word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, whole or part, upon his or her wages at the time of the injury." (emphasis added). As such, any "dependent" would have to be born and dependent at the time of injury.

Id. at 902 .

In addition, § 287.240.4 RSMo provides, in pertinent part:

The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee, and any death benefit shall be payable to them to the exclusion of other total dependents:

(a) A wife upon a husband with whom she lives or who is legally liable for her support, and a husband upon a wife with whom he lives or who is legally liable for his support; provided that on the death or remarriage of a widow or widower, the death benefit shall cease unless there be other total dependents entitled to any death benefits under this chapter.

The Missouri legislature abrogated the holding in Schoemehl at § 287.230.2 RSMo, effective June 26, 2008. See Lawson v. Treasurer of Mo., 281 S.W.3d 851, 853 (Mo. App. 2009). Nevertheless, in Bennett v. Treasurer of Missouri, 271 S.W.3d 49 (Mo. App. 2008), the Western District recognized that "recovery under Schoemehl is limited to claims for permanent total disability benefits that were pending between January 9, 2007, the date the Missouri Supreme Court issued its decision in Schoemehl, and June 26, 2008, the effective date of [the amendments abrogating Schoemehl]." Id. at 53.

Here, employee's claim was pending during the relevant time period. Employee's claim for compensation was filed October 22, 2001. The award by the administrative law judge was not issued until June 3, 2009. Thus, employee's claim was pending during the time period recognized in Bennett for purposes of recovery under Schoemehl.

Employee provided evidence that she had persons dependent upon her for support on August 22, 2000, the alleged time of onset of occupational disease. Employee testified that she was married to Robert Harvey Woolery. Employee further provided a marriage certificate that was entered into evidence. Applying the conclusive presumption of § 287.240.4(a) RSMo, employee provided sufficient evidence to establish that her husband, Robert Harvey Woolery, was dependent upon her for support at the alleged time of onset of occupational disease. Consequently, although employee is not yet deceased, we are able to make a finding that if any permanent and total disability payments had been awarded in this matter, Robert Harvey Woolery would have been entitled to such payments in the event that Robert Harvey Woolery survived employee.

Based on the foregoing, the Commission concludes and determines that the competent and substantial evidence supports a finding that employee's husband, Robert Harvey Woolery, is a dependent of employee for purposes of $\S 287.040(4)$ RSMo.

All remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Vicky Ruth issued June 3, 2009, as modified, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

Given at Jefferson City, State of Missouri, this $9^{\text {th }}$ day of February 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Dolores Woolery

Injury No. 00-145150

Dependents: N/A

Employer: Sedalia Democrat

Additional Party: Second Injury Fund

Insurer: Self-insured, c/o Sedgwick

Claims Management Services

Hearing Date: March 4, 2009

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged August 22, 2000.
5. State location where accident occurred or occupational disease was contracted: Sedalia, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant worked in the mailroom of a newspaper publisher. She inserted flyers into newspapers, and sorted, strapped, and stacked the papers.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Right and left hands/wrists, shoulder/upper extremities.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by employer/insurer? $\ 2,835.71.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: $\ 265.00.
4. Weekly compensation rate: $\ 176.67.
5. Method of wages computation: Per agreement.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

Employee: Dolores Woolery

Injury No: 00-145150

Dependents: N/A

Employer: Sedalia Democrat

Additional Party: Second Injury Fund

Insurer: Self-insured, c/o Sedgwick Claims

Management Services

On March 4, 2009, the claimant, the employer/insurer, and the Second Injury Fund appeared for a final award hearing. The claimant, Dolores Woolery, was represented by Truman Allen. The employer/insurer was represented by Bart Eisfelder. The Second Injury Fund (the Fund) was represented by Jason Lloyd. The claimant and the employer/insurer submitted briefs by the deadline of March 31, 2009 The Fund chose not to submit a brief.

The parties stipulated to the following:

1. On or about August 22, 2000, the claimant was an employee of the Sedalia Democrat (the employer).
2. The employer and the employee were operating subject to the provisions of Missouri Workers' Compensation law.
3. The employer's liability for workers' compensation was self-insured, c/o Sedgwick Claims Management Services.
4. The Missouri Division of Workers' Compensation has jurisdiction, and venue in Pettis County is proper.
5. The employer received notice of an alleged accident, series of accidents, or occupational disease.
6. A claim for compensation was timely filed.
7. The claimant's average weekly wage was $\ 265.00, yielding a compensation rate of $\ 176.67 for both temporary and permanent disabilities.
8. Medical aid has been provided in the amount of $\ 2,835.71.

The parties agreed that the issues to be resolved in this proceeding are as follows:

1. Medical causation.

1. Accident or occupational disease arising out of and in the course of employment.
2. Nature and extent of the liability of the employer/insurer, if any.
3. Liability, if any, of the employer/insurer for future medical care.
4. Liability, if any, of the Second Injury Fund.
5. Whether the claimant's spouse should be joined as a party.

On behalf of the claimant, the claimant, the following exhibits were entered into evidence:

Exhibit A Deposition of Gary Weimholt.

Exhibit B Deposition of Dr. David Volarich.

Exhibit C Deposition of Dr. Douglas Kiburz.

Exhibit D Marriage license of claimant.

Exhibit E Miscellaneous medical records.

The employer/insurer offered the following exhibits, which were admitted into the record:

Exhibit 1 Deposition of Mary Titterington.

Exhibit 2 Deposition of Dr. Anne Rosenthal.

Exhibit 3 Deposition of Dr. Allen Parmet.

Exhibit 4 Video of job at the Sedalia Democrat.

Exhibit 5 Surveillance video dated July 19-20, 2007.

Exhibit 6 Surveillance video dated July 20, 2007 (1 of 9 ).

Exhibit 7 Surveillance video dated July 20, 2007 (2 of 9 ).

Exhibit 8 Surveillance video dated July 20, 2007 (3 of 9 ).

Exhibit 9 Surveillance video dated July 21, 2007 (4 of 9 ).

Exhibit 10 Surveillance video dated July 21, 2007 (5 of 9 ).

Exhibit 11 Surveillance video dated July 21, 2007 (6 of 9 ).

Exhibit 12 Surveillance video dated July 21, 2007 (7 of 9 ).

Exhibit 13 Surveillance video dated July 21, 2007 (8 of 9 ).

Exhibit 14 Surveillance video dated July 21, 2007 (9 of 9 ).

The Second Injury Fund did not offer any exhibits of its own.

The claimant, the employer/insurer, and the Second Injury Fund submitted the following as a joint exhibit:

Exhibit 15 Stipulations regarding the surveillance videos and the job video.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

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[^0]: ${ }^{1}$ All depositions were admitted subject to any objections contained therein.

Based upon the above exhibits and the testimony presented at the hearing, I make th