Gary Gervich v. Condaire, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have heard the oral arguments of the parties, reviewed their briefs, reviewed the evidence, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award of the administrative law judge by this separate opinion.

While we agree with the award of the administrative law judge, we do not agree with his analysis for denying Deborah Gervich, (claimant), continuing permanent total disability benefits that would have accrued after employee's death. By this opinion, we substitute our analysis to reach the same conclusion.

Our conclusion turns on the application to this case of the Supreme Court's decision in Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007), as well as the statutes enacted after that decision "to undo the effect of the Schoemehl decision." Roller v. Treasurer of Missouri, 297 S.W.3d 128, 132 (Mo. App. W.D. 2009).

Employee's injury occurred April 6, 2006. He filed his claim for compensation under the Missouri Workers' Compensation Law on May 15, 2006. The Schoemehl decision was issued January 9, 2007. In Schoemehl, the court for the first time interpreted the relevant statutes to confer on dependents of an injured employee, who thereafter dies from causes unrelated to the work-related injury, the right to compensation for the employee's permanent total disability benefits.

On June 26, 2008, the Missouri legislature amended the statutes upon which the Schoemehl decision relied and attempted to limit its effects. Section 287. 200.1 RSMo was changed to read, in pertinent part, as follows:

The word "employee" as used in this section shall not include the injured worker's dependents

Section 287.200.2 was changed to read, in pertinent part, as follows: The right to unaccrued compensation for permanent total disability of an injured employee terminates on the date of the injured employee death in

accordance with section 287.230, and does not survive to the injured employee's dependents . . . .

Section 287.230.3 RSMo was added, which reads as follows:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate the holding in Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. 2007), and all cases citing, interpreting, applying, or following this case.

Employee died on April 5, 2009, from causes unrelated to the work-related injury.

The question then arises as to whether or not the statutes that were amended in June 2008 were applicable or effective to claimant. If so, then clearly she has no right to employee's permanent total disability benefits that accrued after his death.

Article I, Section 13 of the Missouri Constitution states, "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted." Consequently, the general rule is that "[p]rospective application of a statute is presumed unless the legislature evidences a clear intent to apply the amended statute retroactively, or where the statute is procedural in nature." Lawson v. Ford Motor Co., 217 S.W.3d 345, 349 (Mo. App. E.D. 2007).

"Those rights which are substantive and which therefore cannot be applied retroactively are regularly defined as those which 'take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already passed.'" State ex rel. St. LouisSan Francisco Railway Co. v. Buder, 515 S.W.2d 409, 410 (Mo. banc 1974) (emphasis added).

"A 'vested right' has been defined as 'a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of [a] demand.' In this context, the word 'vested' means 'fixed, accrued, settled or absolute.' A vested right must be something more than a mere expectation based upon an anticipated continuance of an existing law." St. Board of Registration for the Healing Arts v. Boston, 72 S.W.3d 260, 265 (Mo. App. W.D. 2002) (internal citations omitted). A right subject to divesting contingencies is not vested. See Robbins v. Robbins, 463 S.W.2d 876, 879881 (Mo. 1971); Mays v. Williams, 494 S.W.2d 289, 294 (Mo. banc 1973).

"Rights are vested . . . when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest. They are expectant, when they depend upon the continued existence of the present condition of things until the happening of some future event. They are contingent, when they are only to come into existence on an event or condition which may not happen or be performed until some other event may prevent their vesting." Pearson v. Great Northern Railway Co., 161 U.S. 646, 673 (1896).

In the case at hand and as of June 26, 2008 (when the amending statutes were effective), claimant's rights as a dependent were subject to divestment. She might have remarried or pre-deceased employee. Claimant's rights as a dependent, thus, did not vest until April 5, 2009, when employee died.

Accordingly, it follows that the amendments in June 2008 to the laws relevant to this issue did not take away or impair any vested rights of claimant. Therefore, we hold that under the laws relevant to claimant as of April 5, 2009, employee's right to unaccrued permanent total disability benefits terminated at the time of his death and did not survive to his dependent: claimant.

The award and decision of Administrative Law Judge John K. Ottenad issued August 12, 2009, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, and decision set forth herein.

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 $7^{\text {th }}$ day of April 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur with the administrative law judge's decision as well as the Commission majority's affirmation, except so far as they address Deborah Gervich's right to receive employee's unaccrued permanent total disability benefits. I would reverse that part of these decisions.

As indicated in the majority's opinion, the Supreme Court's ruling in Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007), gave Deborah Gervich the right, as dependent, to continue to receive employee's permanent total disability benefits unless the legislative changes in 2008 are read to retrospectively apply to this case.

Employee filed his claim with the Division of Workers' Compensation (Division) in 2006. As of the time employee filed his claim with the Division, his claim became "pending" and remained pending until such time as a final award was issued.

In 2008, the Missouri Court of Appeals had the opportunity to analyze the affect of the 2008 legislative changes (designed to limit the affect of Schoemehl) on cases already pending before the legislation became effective. The court held that "recovery under Schoemehl is limited to claims for permanent total disability benefits that were pending between January 9, 2007, and June 26, 2008." Bennett v. Treasurer of Missouri, 271 S.W.3d 49, 53 (Mo. App. W.D. 2008).

Because the case before us was pending during this clearly delineated window, claimant was subject to and entitled to the benefit of the Schoemehl ruling. Therefore, employee's rights to permanent total disability benefits did not terminate at the time of his non-work-related death, and claimant stepped into the position of employee for purposes of the receipt of these benefits.

Consequently, since under Bennett claimant is entitled to the unaccrued permanent total disability benefits previously due to employee, both the administrative law judge and the Commission majority (for alternative reasons) wrongly terminated her right to such benefits. Therefore, with respect to this dependent issue, I must respectfully dissent.

Insurer: Federated Mutual Insurance Co.

Hearing Dates: April 15, 2009

Checked by: JKO

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: April 6, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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? Yes
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: Claimant was employed as a pipefitter for Employer, when he tripped and fell on a worksite striking his head on an exposed piece of conduit pipe.
12. Did accident or occupational disease cause death? No Date of death? April 5, 2009
13. Part(s) of body injured by accident or occupational disease: Head, Neck and Body as a Whole
14. Nature and extent of any permanent disability: 20 % of the Body as a Whole referable to the Cervical Spine and 10 % of the Body as a Whole referable to the Head.
15. Compensation paid to-date for temporary disability: $\ 5,177.50
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,102.17

Employee: Gary Gervich (Dec) Injury No.: 06-030063

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to result in the maximum rates of compensation
3. Weekly compensation rate: $\ 696.97 for TTD/ $\ 365.08 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable from Employer:

120 weeks of permanent partial disability benefits

$\ 43,809.60

1. Second Injury Fund liability:

$\ 331.89 per week for 120 weeks from 06/21/06 until 10/08/08

$\ 39,826.80

\696.97 per week for 254 / 7$ weeks from 10/08/08 through 04/05/09

$\ 17,822.51

TOTAL:

$\ 101,458.91

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Richard T. Grossman.

Employee: Gary Gervich (Dec)

Dependents: Deborah Gervich (Spouse)

Employer: Condaire, Inc.