Michael Ellington v. Harrah's Casino

^{1} Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

**Injury No.:** 06-012841

**App. 2012),** that the issue of Sharon Ellington's entitlement to said benefits requires further analysis.

Before discussing the holdings in *Gervich* and *White*, it is helpful to review the history of the *Schoemehl* holding. The Court in *Gervich* summarized *Schoemehl*'s history, as follows:

> In *Schoemehl*, [the] Court addressed whether the workers' compensation statutes in effect at that time required that an employee's dependents have the right to continuing permanent total disability benefits. [The] Court found that the language of the workers' compensation statutes, when reading the relevant statutory sections together, provided that the dependents of an injured employee who died from causes unrelated to the work-related injury had a right to continuing permanent total disability benefits.

In 2008, the legislature amended sections 287.010.1, 287.200, and 287.230, the statutes interpreted by *Schoemehl* to make clear that compensation for a permanent total disability is payable only during the lifetime of the injured employee and is not payable to dependents after the employee's death when the employee dies from causes unrelated to the work injury. The legislature expressly stated its intent to 'reject and abrogate the holding' in *Schoemehl*.

In *Bennett [v. Treasurer of State of Missouri*, 271 S.W.3d 49 (Mo. App. 2009)], the court of appeals noted the 2008 amendments to the relevant statutes and stated that application of the holding in *Schoemehl*' is limited to claims of permanent total disability 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 2008 amendments]. This holding in *Bennett* was quoted by the court of appeals in *Tilley v. USF Holland Inc.*, 325 S.W.3d 487, 494 [(Mo. App. 2010)].... *Tilley* further stated that the amendment to section 287.230.3, expressly abrogating *Schoemehl*, 'is not retroactive and will only apply to claims initiated after the effective date of the amendment.'

*Gervich*, 370 S.W.3d at 620-21 (citations omitted).

In *Gervich*, the Commission denied Deborah Gervich, the wife of Gary Gervich (the injured worker), her workers' compensation benefits as a dependent of her deceased husband. *Id.* at 618. The Commission found that Deborah's right to receive her husband's permanent

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2 Gary Gervich's claim for permanent total disability benefits was pending between January 9, 2007, and June 26, 2008.

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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 $14^{\text {th }}$ day of December 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Michael Ellington

Departments: Sharon Ellington

Employer: Harrah's Casino (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Old Republic Insurance Company (previously settled)

Hearing Date: December 1, 2010

Injury No.: 06-012841

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: February 20, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 twisted his knee while working on scaffolding.
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 knee and lower extremity
14. Nature and extent of any permanent disability: 25 % permanent partial disability of the left knee, previously paid by Employer, and permanent and total disability benefits from the SIF beginning October 26, 2007, due to a combination of the primary injury and the pre-existing injuries and disabilities.
15. Compensation paid to-date for temporary disability: none
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,886.45

Employee: Michael Ellington

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 364.75 / \ 364.75
4. Method wages computation: Stipulation

1. Amount of compensation payable:

40 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

No weekly differential and $\ 364.75 payable weekly by SIF beginning

August 2, 2007, to continue as provided by law.

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Jagadeesh B. Mandava

Employee: Michael Ellington

Departments: Sharon Ellington

Employer: Harrah's (previously settled)

Additional Party: Second Injury Fund Only

Insurer: Old Republic Insurance Company (previously settled)

Injury No.: 06-012841

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter December 1, 2010. Michael Ellington (Claimant) was represented by attorney Jagadeesh Mandava. The SIF was represented by Assistant Attorney General Da-Niel Cunningham. Claimant settled his claim against Employer/Insurer prior to trial.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant sustained an injury by accident February 20, 2006, while in the course and scope of his employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Old Republic Insurance Company.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage yields a TTD/PTD and PPD rate of $\ 364.75.
6. Claimant received no TTD benefits and $\ 5,886.45 in medical benefits.
7. Claimant and Employer/Insurer reached a compromise settlement on October 15, 2007, representing 25 % PPD of the left knee plus 2 weeks of disfigurement.

The parties stipulated the issues to be resolved are as follows:

1. Second Injury Fund liability
2. Applicability of Schoemehl v. Treasurer of State of Missouri, 217 S.W.3d 900, (Mo. Banc 2007)

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 63 year old male who lives in St. Louis, MO. He is married to Sharon Ellington, and has no other dependents. He has not worked since October 26, 2006, and receives a disability pension of $\ 3,200.00 per month from the St. Louis Fire Department. He also receives Social Security Disability of $\ 441 per month.
2. Claimant is a high school graduate, and he later took some courses through Forest Park Community College related to his employment at the fire department. He also took some small engine repair classes at Briggs \& Stratton. He is able to read and write.
3. From 1967-1969 Claimant served in the United States Navy in New Jersey. While in the Navy, Claimant injured his low back and received conservative treatment. He left the Navy early in part due to his back injury, and was honorably discharged.
4. After leaving the military, Claimant began working for the St. Louis Water Department. He worked at a pumping station for approximately one year. Claimant next worked at Lambert International Airport in maintenance for approximately two years.
5. Claimant then worked as a fire fighter for the St. Louis Fire Department for over eighteen years. He had a number of injuries while working for the fire department. He quit his work as a fire fighter d