Joseph Forbes v. John M. Greer Construction Company

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

Injury No.: 07-114853

Employee: Joseph Forbes

Employer: John M. Greer Construction Company (Settled)

Insurer: Amerisure Insurance Company (Settled)

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 June 8, 2012, as supplemented herein.

The Second Injury Fund filed an Application for Review challenging, among other things, the ALJ's dependency ruling. We provide this supplemental opinion solely to clarify the dependency issue involving employee's three children, Brian Forbes, Jennifer Forbes, and Joseph M. Forbes III.

The ALJ found that at the time of the work injury (November 21, 2007), Brian Forbes was 17 years old, Jennifer Forbes was 16 years old, and Joseph M. Forbes III was 11 years old. The ALJ then concluded "[u]nder Schoemehl, [that the aforementioned children] are entitled to [e]mployee's permanent total disability benefits awarded hereunder with respect to [e]mployee's claim for compensation."

We find, based upon the recent rulings in Gervich v. Condaire, Inc., 370 S.W.3d 617 (Mo. banc 2012) and White v. University of Missouri, 375 S.W.3d 908 (Mo. App. 2012), that the issue of the aforementioned children's entitled to said benefits requires further analysis and clarification.

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 2007 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 he had three children who were under the age of 18 and for which he was legally liable for support, Brian Forbes, Jennifer Forbes, and Joseph M. Forbes III. 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, Brian Forbes, Jennifer Forbes, and Joseph M. Forbes III all satisfied the definition of dependent set forth in § 287.240.4 RSMo.

While we find that as a matter of law, Brian Forbes, Jennifer Forbes, and Joseph M. Forbes III are employee's dependents, the adjudication of their claims to entitlement to successor benefits is simply not ripe for review because employee is still alive. Therefore, we only find that Brian Forbes, Jennifer Forbes, and Joseph M. Forbes III are 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 Administrative Law Judge Carl Strange, issued June 8, 2012, 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 $7^{\text {th }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Joseph Forbes

Injury No. 07-114853

Dependents: (See Findings)

Employer: John M. Greer Construction Company

Additional Party: Second Injury Fund

Insurer: Amerisure Insurance Company

Hearing Date: February 8, 2012

Checked by: CS/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 21, 2007.
5. State location where accident occurred or occupational disease contracted: Butler 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.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was working on a scaffold when the scaffold collapsed causing injury to Employee's right arm, neck and low back.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Joseph Rice

On February 8, 2012, the employee, Joseph Forbes, appeared in person and by his attorney, Joseph Rice, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Jonathan Lintner. At the time of the hearing, 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. On or about November 21, 2007, John M. Greer Construction Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Amerisure Insurance Company.
2. On or about November 21, 2007, the employee was an employee of John M. Greer Construction Company and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about November 21, 2007, the employee sustained an accident arising out of