David Tippen v. Ken Barbee d/b/a KMB Construction

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 02-137410

Employee: David Tippen

Employer: Ken Barbee d/b/a KMB Construction

Insurer: Truck Insurance Exchange

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated September 15, 2011, as supplemented herein.

Applications for Review were filed by the Second Injury Fund, employee, and employer/insurer. The Commission decided to hold review of this matter in abeyance pending the ruling by the Missouri Supreme Court (Court) in Gervich v. Condaire, 370 S.W.3d 617 (Mo. banc 2012). The Court issued its decision in Gervich on July 31, 2012. The parties subsequently filed briefs.

We provide this supplemental opinion solely to clarify the dependency issue involving employee's wife and only dependent, Mary Tippen.

The ALJ found that Mary Tippen "was a conclusively presumed total dependent at the time of the employee's accident and injury and has remained in the same capacity since then." The ALJ went on to conclude that "[a]lthough the employee is not deceased, I find that Mary Tippen would be entitled to the employee's permanent total disability payments in the event that Mary Tippen survives the employee." We find, based upon the subsequent rulings in Gervich and White v. University of Missouri, Kansas City, 375 S.W.3d 908 (Mo. App. 2012), that the issue of Mary Tippen'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.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002 unless otherwise indicated.

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 $618 .{ }^{2}$ The Commission found that Deborah's right to receive her husband's permanent total disability benefits had not "vested" prior to the 2008 statutory amendments that eliminated dependents from the definition of "employee" in § 287.020.1 RSMo. Id. On appeal, the Court found that contrary to the Commission's finding, the statutes in effect at the time of the worker's injury governed whether his or her dependent was entitled to receive disability benefits, not the statutes on the date of death. Thus, the Court found that Schoemehl and that decision's interpretation of three statutes, $\S \S 287.020,287.200$, and 287.230 , controlled.

In White, the Missouri Court of Appeals for the Western District was faced with a set of facts distinguishable from Schoemehl and Gervich in that the injured employee was still alive when the court ruled on the issue of dependency. ${ }^{3}$ The White court pointed out that because the injured employees were already deceased in Schoemehl and Gervich, there was "at stake ... an immediate right to receive benefits; there were no remaining contingencies in the nature of conditions precedent." White, 375 S.W.3d at 912-13. The court noted that in their case, because the injured employee is still alive, and his wife cannot be substituted as "employee" for him at that stage, she was not entitled to receive benefits under Schoemehl at that time. Id. at 913.

In accordance with Gervich, the White court held that the employee's wife's dependent status was established and determined as a matter of law at the time of the injury. However, the court held that the adjudication of her claim to entitlement of successor benefits was simply not ripe for review because the injured employee was still alive.

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[^0]: ${ }^{2}$ Gary Gervich's claim for permanent total disability benefits was pending between January 9, 2007, and June 26, 2008.

${ }^{3}$ In White, the injured employee's claim for permanent total disability benefits was pending between January 9, 2007, and June 26, 2008.

In this case, employee's claim for permanent total disability benefits was pending during the Schoemehl window, January 9, 2007, to June 26, 2008. However, similar to White, the injured employee is still alive. Employee testified that as of the time of the injury and of the hearing, he was married to and living with Mary Tippen. Dependent status is determined at the time of the injury, not at the time of the employee's death. Gervich, 370 S.W.3d at 622. Consequently, we conclude that, as of the time of employee's injury, Mary Tippen satisfied the definition of dependent set forth in § 287.240.4 RSMo.

While we find that as a matter of law, Mary Tippen is currently employee's dependent, the adjudication of her claim to entitlement to successor benefits is simply not ripe for review because employee is still alive. Therefore, we only find that Mary Tippen 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 Commission affirms the award and decision of the ALJ, as supplemented herein.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued September 15, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: David Tippen

Injury No. 02-137410

Dependents: N/A

Employer: Ken Barbee d/b/a KMB Construction

Additional Party: Second Injury Fund

Insurer: Truck Insurance Exchange

Appearances: Ronald Little and Sheila Blaylock, attorneys for employee.

Catherine Salmon, attorney for the employer-insurer.

Jonathan Lintner, Assistant Attorney General for the Second Injury Fund.

Hearing Date: March 11, 2011 Checked by: LCK/rf

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? November 22, 2002.
5. State location where accident occurred or occupational disease contracted: Ripley County, 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.

On March 11, 2011, the employee, David Tippen, appeared in person and with his attorneys, Ron Little and Shelia Blaylock for a hearing for a final award. The employer-insurer was represented by its' attorney, Catherine Salmon. The Second Injury Fund was represented by Assistant Attorney General Jon Lintner. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues together with the findings of fact and rulings of law, are set forth below as follows:

1. Ken Barbee d/b/a KMB Const