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.

[^0]

[^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.

[^0]

[^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 and in the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 393.28 and his rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 262.19.
7. The employee's injury is medically causally related to the work injury occurring on or about November 21, 2007.
8. The employer has furnished $\ 113,242.24 in medical aid to employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 262.19 per week for a total of $\ 12,547.66.
10. Second Injury Fund liability, if any, will begin on October 31, 2012.

1. Nature and extent of disability.
2. Liability of the Second Injury Fund.
3. Dependency under Schoemehl.
4. Child Support Liens.

The following Employee exhibits were offered and admitted into evidence:

A. Medical records of Campbell Medical Clinic;

B. Medical records of Piggott Community Hospital;

C. Medical records of St. Bernard's Medical Center;

D. Medical records of University Hospital of Columbia;

E. Medical records of

1. Tinsley Medical Clinic;
2. Poplar Bluff Medical Partners;

F. Medical records of Dr. Brett Taylor;

G. Medical records of Barnes-Jewish West County Hospital;

H. Medical records of NEI, Inc.;

I. Medical records of Dr. David Brown;

J. Medical records of Dr. James Coyle;

K. NONE;

L. Records of Campbell School;

M. Medical report of Dr. David Volarich;

1. Curriculum Vitae of Dr. David Volarich;
2. Deposition of Dr. David Volarich;

N. NONE;

O. NONE;

P. Report of Mr. James England;

1. Curriculum Vitae of Mr. James England;
2. Deposition of Mr. James England;

Q. Stipulation for Compromise Settlement Injury No. 06-135859;

R. Stipulation for Compromise Settlement Injury No. 07-114853;

S. Child Support Lien Releases; and

T. Affidavit of Dependency.

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is liable is less than compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

- Section 287.020.7 RSMo. provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

- The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922(Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367(Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483(Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834(Mo.App.1993).

- Under Missouri Workers' Compensation Law, when an employee is entitled to compensation and death ensues, compensation ceases when the employee dies from a cause other than his work injury, "unless there are surviving dependents at the time of death." Section 287.230(2) RSMo. Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900, (Mo. 2007). The word 'dependent' is defined to mean a relative by blood or marriage of a deceased Employee, who is actually dependent for support, in whole or in part, upon the Employee's wages at the time of the injury. Section 287.240(4) RSMo. "As such any "dependent" would have to be born and dependent at the time of the injury." Schoemehl, 217 S.W.3d at 902.

- Section 287.240 RSMo. provides that "[a] natural . . . or adopted child or children . . . under the age of eighteen years" will be ". . . conclusively presumed to be totally dependent for support upon a deceased Employee."

Joseph Forbes ("Employee") has requested an award of permanent total disability benefits against the Second Injury Fund. In support of his position, Employee has offered his medical records along with the opinions of Dr. David Volarich and Vocational Rehabilitation Expert, James England. The Second Injury Fund did not offer any contradictory expert opinion in support of their position that they are not liable for benefits. If Employee is permanently and totally disabled, the Second Injury Fund is only liable for permanent total disability benefits if the permanent disability was caused by a combination of the pre-existing disabilities and the employee's last injury occurring on November 21, 2007. The Second Injury Fund is also not liable if the last injury alone caused Employee to be permanently and totally disabled.

Employee dropped out of high school after completing the ninth grade, but later obtained his GED. Prior to working with John M. Greer Construction Company ("Employer"), Employee had worked for various employers in the construction business. While working for Employer, his

duties included operating a backhoe and bobcat, lifting and moving materials, and providing general labor for construction. On November 21, 2007, Employee was standing on scaffolding using a screw gun to fasten tin sheets to the ceiling of a garage when the scaffolding collapsed. Employee fell and injured his right arm, neck and low back. Following carpal tunnel and ulnar nerve surgery by Dr. David Brown (Employee's Exhibit I), Employee was referred to Dr. James Coyle due to continuing complaints. On May 23, 2008, Dr. Coyle performed an anterior cervical microdiskectomy C5-C6 and C6-C7 and an anterior interbody arthrodesis C5-C6 and C6-C7 due to Employee's cervical disk herniation at those levels (Employee's Exhibit J). Employee never returned to work following his November 21, 2007 accident.

With regard to his pre-existing injury, Employee was diagnosed with a left paracentral herniated disc at L4-L5 impinging on the left L5 nerve root with mild degenerative desiccation and posterior disc bulging L2-L3 and L5-S1 as a result of a September 25, 2006 work injury. On January 21, 2007, Dr. Delmar Sanders performed a right L4-L5 hemilaminectomy and diskectomy to repair Employee's L4-L5 herniation (Employee's Exhibit D).

On July 16, 2009, Dr. David Volarich examined Employee and opined that due to the primary injury that Employee suffered a 45\% permanent partial disability of the body of the whole at the cervical spine due to disc herniations at C5-6 and C6-7 resulting from the two level anterior cervical diskectomy with fusion and instrumentation, a 5\% permanent partial disability of the body as a whole due to a mild aggravation of the lumbar syndrome that resulted from the September 25, 2006 work injury, a 35\% permanent partial disability of the right upper extremity at the elbow due to ulnar nerve neuropathy resulting in ulnar nerve decompression at the cubital tunnel as well as transposition of the ulnar nerve with flexor pronator lengthening, and a 35\% permanent partial disability of the right upper extremity rated at the wrist due to carpal tunnel syndrome resulting in carpal tunnel release. With regard to pre-existing injuries, Dr. Volarich opined Employee had a pre-existing 35\% permanent partial disability of the body of the whole due to the disc herniation at L4-5 and the protrusion at L5-S1 centrally from his September 25, 2006 work injury. Finally, Dr. Volarich opined that Employee was permanently and totally disabled as a direct result of a combination of the injuries of September 25, 2006 and November 21, 2007. Additional factors contributing to Dr. Volarich's opinion were the limited education, lack of a GED, limited prior work experience limited to heavy labor and an inability to return to work (Employee's Exhibits M \& M-2).

Mr. James England, a vocational rehabilitation expert, examined Employee on November 19, 2009. Following his examination, Mr. England opined due to Dr. Coyle's cervical restrictions that Employee would be prevented from returning to his past work activity, but would not be prevented from some types of alternative, entry-level employment. However, Mr. England further concluded that Dr. Volarich's restrictions considering Employee's overall medical problems and description of typical day-to-day functioning along with the presentation that Employee makes would likely prevent Employee from being able to compete successfully for employment, nor would Employee be able to sustain it in the long run (Employee's Exhibits P $\& \mathrm{P}-2)$.

Employee settled his primary claim against Employer in this matter for 32.5 % of his body as a whole referable to his neck, 25 % of the right upper extremity at the 210 level, plus 5 % of his body as a whole referable to his low back (Employee's Exhibit R). Based on the evidence, I find Employee suffered these permanent partial disabilities as a result of the November 21, 2007 work injury. Further, I find that Employee's testimony, Dr. Volarich's opinions, and Mr. England's opinions are credible and supported by the evidence. Since I find that the Second Injury Fund has failed to offer sufficient credible evidence to discredit the opinions of Dr. Volarich and Mr. England, I cannot substitute my own opinion for uncontroverted medical evidence and expert opinions. With regard to Employee's pre-existing condition, I find Employee met his burden of proving that his pre-existing low back amounted to actual and measurable disability at the time of the work injury and were of such seriousness as to constitute a hindrance or obstacle to employment. In accordance with Dr. Volarich's opinion, I find that the combination of Employee's disabilities create a substantially greater disability than the simple sum or total of each separate injury.

Based on the evidence, I find that no employer would reasonably be expected to hire Employee in his present condition and that Employee is permanently and totally disabled as a result of a combination of his primary injuries and pre-existing injury. In accordance with my above findings and the stipulation of the parties, I find that the Second Injury Fund's liability for permanent and total disability benefits at a rate of $\ 262.19 per week begins on October 31, 2012. The Second Injury Fund is therefore directed to pay to Employee the sum of $\ 262.19 per week commencing on October 31, 2012, and said weekly benefits shall be payable during the continuance of such permanent total disability for the lifetime of Employee pursuant to Section 287.200.1, unless such payments are suspended during a time in which Employee is restored to his regular work or its equivalent as provided in Section 287.200.2.

On November 21, 2007 (the date of Employee's work accident and injury), Employee was unmarried with the following children: Joseph N. Forbes, date of birth 9/1/86, age 21; Aelicia Forbes, date of birth 7/8/88, age 19; Ruston Walker, date of birth 11/6/89, age 18; Brian Forbes, date of birth 4/27/1990, age 17; Jennifer Forbes, date of birth 9/5/1991, age 16; Joseph M. Forbes III, date of birth 12/29/1995, age 11; Ashely Moore, date of birth 9/23/87, age 20. Since under Schoemehl is limited to claims for permanent total disability benefits that were pending between January 9, 2007 and June 26, 2008, I find that Employee's claim was pending during that period. In accordance with Section 287.240 RSMo. I find that Brian Forbes, Jennifer Forbes, and Joseph M Forbes III were, at the time of the work injury in 2007, conclusively presumed total dependents of Employee. Under Schoemehl, Brian Forbes, Jennifer Forbes, and Joseph M Forbes III are entitled to Employee's permanent total disability benefits awarded hereunder with respect to Employee's claim for compensation. With regard to the remaining children, I find that Employee failed to meet his burden of proof that his remaining children are entitled to be considered dependents and entitled to his permanent total disability benefits.

Employee has offered child support lien releases for all of the child support liens in this matter (Employee's Exhibit S). As a result of the evidence, I find that the child support liens no longer exist. Therefore, I find that Employee's award is NOT subject to any child support lien.

Joseph Rice, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by: