Gary Gervich v. Condaire, Inc.

analysis used in reaching the result that claimant was not entitled to further benefits from the Second Injury Fund for permanent total disability after April 5, 2009.¹

On March 8, 2011, the Missouri Court of Appeals for the Eastern District issued an opinion reversing and remanding this matter to the Commission. The Supreme Court of Missouri then granted transfer of this case.

By an opinion issued July 31, 2012, the Supreme Court concluded as follows:

[Claimant] had a right to receive continuing permanent total disability payments as a dependent under the statutes in effect on April 6, 2006, the date of her husband's work-related injury. His injury occurred prior to the 2008 statutory amendments changing the definition of "employee." These changes were substantive and may be applied only prospectively. Therefore, the amendments do not apply to [claimant's] claim for benefits. Because [claimant's] status as a dependent was set on the date of her husband's injury, she is entitled to receive continuing permanent total disability benefits as his dependent. The decision of the Labor and Industrial Relations Commission is reversed, and the cause is remanded.

*Gervich v. Condaire, Inc.,* SC91727 (Mo. banc 2012).

By Mandate certified August 16, 2012, the Supreme Court confirmed its opinion and remanded this matter to the Commission for further proceedings in conformity with its July 31, 2012, opinion.

Pursuant to that Mandate, we issue the following award that affirms the August 12, 2009, administrative law judge's award, except to the extent that the latter denied the dependent benefits payable to claimant in accordance with the Supreme Court's decision. We reverse that part of the August 12, 2009, award and grant such benefits, as further described below.

Employee's injury occurred April 6, 2006. As of that date, claimant was employee's sole dependent. On May 15, 2006, employee filed his claim for compensation under the Missouri Workers' Compensation Law. On January 9, 2007, the Missouri Supreme Court issued its decision in *Schoemehl v. Treasurer of Missouri,* 217 S.W.3d 900 (Mo. banc 2007). Employee's claim was pending as of that date. In *Schoemehl,* the court for the first time interpreted Missouri's Workers' Compensation Law 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.

Employee died on April 5, 2009, from causes unrelated to the work-related injury. As of that time, claimant was still married to and a dependent of employee.

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¹ Commissioner Hickey's separate opinion affirmed benefits in favor of employee but dissented from that part of the Commission's decision denying benefits to claimant.

**Injury No.:** 06-030063

Accordingly, in conformity with the Supreme Court's decision, we hold that under the laws relevant to claimant as of April 6, 2006, she is entitled to receive continuing permanent total disability benefits as his dependent. In all other respects, we affirm the August 12, 2009, award.

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 19th day of September 2012.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**V A C A N T**

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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.

Additional Party: Treasurer as Custodian of the Second Injury Fund

Insurer: Federated Mutual Insurance Co.

Injury No.: 06-030063

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On April 15, 2009, the employee's spouse, Deborah Gervich, appeared in person and by her attorney, Mr. Richard T. Grossman, for a hearing for a final award on her husband's claim against his employer, Condaire, Inc., its insurer, Federated Mutual Insurance Co., and the Second Injury Fund. The employer, Condaire, Inc., and its insurer, Federated Mutual Insurance Co., were represented at the hearing by their attorney, Mr. Kenneth D. Alexander. The Second Injury Fund was represented at the time of the hearing by Assistant Attorney General Carol L. Barnard.

At the outset of the hearing, Employee's attorney filed a Suggestion of Death (Exhibit P) and a Motion for Substitution of Party (Exhibit Q), which were both received into evidence by the Court. The Suggestion of Death formally notified the Court of Employee's death. The Motion for Substitution of Party, which included a copy of the Marriage License and Employee's Death Certificate, declared Deborah Gervich as Employee's surviving spouse and sole dependent at the time of his death on April 5, 2009. The Motion for Substitution of Party was granted and ordered by the Administrative Law Judge on the date of the hearing, April 15, 2009.

Employee's attorney also filed an Amended Claim for Compensation (Exhibit R) for Injury Number 06-030063 at the time of the hearing. The Amended Claim was filed to note the death of Employee and the fact that his wife was his sole surviving dependent. The Amended Claim was received in evidence, since it primarily was entered so that the Claim would conform to the evidence in this case, regarding the recent death of Employee and his wife's position as Employee's sole, surviving dependent.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about April 6, 2006, Gary Gervich (Employee) sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Employee.

2) Gary Gervich was an employee of Condaire, Inc. (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Employee earned an average weekly wage sufficient to result in applicable rates of compensation of $