Willie White v. University of Missouri, Kansas City (Curators of University of Missouri)

the State of Missouri, 217 S.W.3d 900 (Mo.2007), and all cases citing, interpreting, applying, or following this case." The amended statute is not retroactive and will only apply to claims initiated after the effective date of the amendment. Thus, 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 amendment to Section 287.230.3].

Employer misinterprets Strait v. Treasurer of Missouri, 257 S.W.3d 600 (Mo. banc 2008), to say that Schoemehl only applies to cases that were pending before the Commission or pending on appeal. We do not find that limited holding in our reading of Strait. In Strait, the question before the court was whether the claim was "final--or still pending." [Emphasis added.]

Here, the administrative law judge equally read Schoemehl too restrictively. She held that employee's claim does not qualify for contingent application of the Schoemehl case because the claim was originally filed as one for permanent partial disability benefits and was only amended to a claim for permanent total disability benefits after June 26, 2008. We disagree.

Schoemehl did not address and did not terminate the dependent's rights based upon whether the claim originated as one for permanent partial disability benefits versus one for permanent total disability benefits. As indicated above in Tilley, the key is whether "the claim" was pending between January 9, 2007, and June 26, 2008. Thus, we are persuaded that the fact that employee's claim was not amended to one for permanent total disability benefits until after the expiration of the Schoemehl time window is irrelevant.

Accordingly, we make the following additional findings of fact. Employee testified that as of the time of the injury and of the hearing, he was married to and living with Gail Marie White. Dependent status is determined at the time of the injury, not at the time of the employee's death. Gervich v. Condaire, Inc., 370 S.W.3d 617, 622 (Mo. banc 2012), Consequently, we conclude that, as of the time of employee's injury, Gail Marie White satisfied the definition of dependent set forth in § 287.240.4 RSMo.

Therefore, we modify the September 16, 2010, award to hold that employee's claim qualifies for contingent application of the Schoemehl case. Gail Marie White is entitled to receive employee's permanent total disability benefits so long as at the time of employee's death, all subsequent conditions applicable under the Missouri Workers' Compensation Law and under Schoemehl and its progeny are satisfied.

The September 16, 2010, award and decision of Administrative Law Judge Lisa Meiners, as modified, is attached and incorporated by reference.

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

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 21^{\text {st }} \qquad$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Willie White

Injury No. 07-133443

Dependents: N/A

Employer: University of Missouri, Kansas City, Curators of the University of Missouri

Insurer: Self-Insured, c/o Corporate Claims Management, Inc.

Additional Party: Missouri Treasurer as Custodian of the Second Injury Fund

Hearing Date: July 12, 2010

Checked by: LM/lh

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: Last exposure on August 14, 2007.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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? 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: While in the course and scope of employee's work, employee sustained left carpal tunnel syndrome due to repetitive exposure of sanding and painting handrails.
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: Left upper extremity at the 175-week level.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Willie White

1. Nature and extent of any permanent disability: 20 percent permanent partial disability at the 175 -week level.
2. Compensation paid to-date for temporary disability: $\ 3,133.41.
3. Value necessary medical aid paid to date by employer/insurer? $\ 7,809.62.
4. Value necessary medical aid not furnished by employer/insurer? N/A.
5. Employee's average weekly wages: N/A.
6. Weekly compensation rate: $\$ 513.07 / \ 376.55.
7. Method wages computation: Stipulation.

1. Amount of compensation payable: The employer is liable to employee for permanent partial benefits in the amount of $\ 13,179.25.
2. Second Injury Fund liability: The Second Injury Fund is liable to Claimant for permanent total disability benefits beginning November 18, 2008. I find Claimant reached maximum medical improvement for treatment on November 18, 2008. The Second Injury Fund is ordered to pay the difference of permanent total disability rate of $\ 513.07 - $\ 376.55 permanent partial disability rate or $\ 136.52 for 35 weeks beginning on November 18, 2008. Thereafter the Second Injury Fund is ordered to pay weekly benefits of $\ 513.07 for Claimant's lifetime.
3. Future requirements awarded: No. The Employer is not liable to Claimant for future medical care in order to cure and relieve symptoms of the occupational exposure of the left carpal tunnel syndrome.

Said payments to begin as of the date of the award 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 24 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Keith Yarwood.

Employee: Willie White

Injury No. 07-076565

Dependents: N/A

Employer: University of Missouri, Kansas City, Curators of the University of Missouri

Insurer: Self-Insured, c/o Corporate Claims Management, Inc.

Additional Party: Missouri Treasurer as Custodian of the Second Injury Fund

Hearing Date: July 12, 2010

Checked by: LM/1h

On July 12, 2010, the parties appeared for hearing. The Employee Willie White appeared in person with counsel, Keith Yarwood. The Employer, Curators of the University of Missouri, and Insurer Corporate Claims Management, Inc., was represented by Brian Fowler. The Second Injury Fund was also a party and represented by Kim Fournier.

The parties stipulated:

1) That both Employer and Employee were working subject to Missouri's Workers' Compensation law;

2) That it's liability was insured by Corporate Claims Management;

3) That the Claimant sustained left carpal tunnel syndrome due to occupational exposure that occurred within the course and scope of his employment;

4) That the Employer has paid $\ 7,809.62 of medical expenses as well as $\ 3,133.41 of temporary total disability benefits;

5) That the Employer had received notice only as to the left wrist;

6) That the claim was properly filed within the time allowed by law;

7) That the compensation rates were $\$ 513.07 / \ 376.55.

The issues to be resolved by this hearing were:

1) whether the low back and neck are causally related to the repetitive exposure of sanding and painting handrails with the last exposure being August 14, 2007;

2) whether notice was given to the Employer regarding the low back and neck;

3) whether the Employer is liable to Employee for past medical expenses in the amount of $\ 1,702.68

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Willie White

4) whether the Employer is liable to the Employee for future medical care in order to cure and relieve the effects of the occupational exposure with the last exposure being August 14, 2007;

5) whether the Claimant sustained any disability and, if so, the nature and extent of that disability;

6) whether the Employer is liable to the Employee for costs of the proceeding pursuant to $\S 287.560$ for unreasonable defense;

7) whether the Second Injury Fund is liable to Claimant; and

8) whether the Schoemehl decision applies in this matter.

By the summer of 2007, Claimant was a 23-year employee of the University of Missouri, Kansas City. There he worked as a painter and drywaller. On June 11, 2007, Claimant spent approximately 3 $1 / 2$ hours on top of a 12 -foot ladder sanding an area above his head with the end of a sanding vacuum cleaner. Unlike previous painting jobs, Claimant had