Colleen Prewett v. Jewish Vocational Services

The award and decision of Administrative Law Judge Mark S. Siedlik, issued August 29, 2012, is attached and incorporated by this reference.

We approve and affirm 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 $16^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

CONCURRING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I write this concurring opinion to voice my agreement with certain of the views expressed by Presiding Judge Gary W. Lynch in the Spradling case. Writing separately, Judge Lynch drew attention to the absurdity of providing lifetime benefits under the Missouri Workers' Compensation Law to the family of an employee whose death has nothing to do with work, where the same family would receive far less compensation if the employee had died as a result of the work injury:

One of the two rationales stated in Schoemehl ... was to prevent the "unreasonable result" of allowing surviving dependents to receive permanent partial disability benefits but not permanent total disability benefits. Schoemehl v. Treasurer of State, 217 S.W.3d 900, 903 (Mo. banc 2007). I write separately to lament that our constitutional obligation to follow Schoemehl, MO. CONST. art. V, § 2 (1945), now requires this Court to affirm what I consider to be the unreasonable result of awarding lifetime benefits to surviving dependents where the employee's death was unrelated to the work injury, when the surviving dependents would have only received benefits during the time of their dependency if the employee's death had been caused by the work injury.

Spradling v. Treasurer of Missouri, SD31907 (April 24, 2013) (Lynch, P.J., concurring) at pg. *15.

Before issuance of the Spradling decision, I was of the belief that Gervich v. Condaire, Inc., 370 S.W.3d 617 (Mo. 2012) and White v. Univ. of Mo., 375 S.W.3d 908 (Mo. App. 2012) provided ample authority for reading $\S 287.240(4)$ RSMo in such a way as to prevent the unreasonable result identified by Judge Lynch. But in light of the holding in Spradling, which I agree is dispositive of the issue whether the divestment provisions under § 287.240(4) are applicable to an award of Schoemehl benefits, I must reluctantly join in the decision to affirm the administrative law judge's award of lifetime permanent total disability benefits to employee's dependent.

James Avery, Member

Employee: Colleen Prewett (deceased)

Injury No. 03-145299

Dependents: Chad Prewett

Employer: Jewish Vocational Services (settled 3/4/11)

Insurer: Missouri Employees Mutual Ins. Co.

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

Hearing Date: May 3, 2011

Checked by: MSS/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: December 4, 2003
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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 as set out above? Yes

Issued by Division of Workers' Compensation

Employee: Colleen Prewett (deceased) Injury No. 03-145299

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was leaving a work meeting when she was hit by a vehicle in the parking lot.
2. Did accident or occupational disease cause death? No Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: Body as a whole referable to neck and back
4. Nature and extent of any permanent disability: Employee is permanently and totally disabled
5. Employee's average weekly wages: $\ 648.08
6. Weekly compensation rate: $\ 432.07 temporary and permanent total disability; $\ 347.05 permanent partial disability
7. Method wages computation: Stipulated and agreed by the parties
8. Compensation paid to date for temporary disability: $\ 11,972.00
9. Amount of compensation payable: 160 weeks of permanent partial disability (previously paid) and $\ 11,972.00 of temporary total disability (previously paid)
10. Second Injury Fund liability: Yes

Second Injury Fund differential $\ 85.02 per week for 160 weeks $=\ 13,603.20

Effective beginning June 19, 2008 the Second Injury Fund became liable for permanent total disability benefits at the rate of $\ 432.07 per week and it shall remain liable for such benefits for the life of dependent, Chad Prewett.

The amount awarded to the claimant shall be subject to a twenty-five percent (25\%) lien in favor of Lisa R. McWilliams, Attorney, for reasonable and necessary attorney's fees pursuant to Mo. Rev. Stat. $\S 287.260 .1$.

Employee: Colleen Prewett (deceased)

Injury No. 03-145299

Dependents: Chad Prewett

Employer: Jewish Vocational Services (settled 3/4/11)

Insurer: Missouri Employees Mutual Ins. Co.

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

Hearing Date: May 3, 2011

Checked by: MSS/lh

At the hearing on May 3, 2011, the parties stipulated:

1. That on or about December 4, 2003 Respondent was subject to the Missouri Workers' compensation law;
2. That Claimant was employed by Respondent on December 4, 2003;
3. That the Claimant suffered a personal injury by accident in Jackson County, Missouri while in the course and scope of her employment with Respondent;
4. That Respondent was given proper and timely notice;
5. That a timely claim was made against the employer and the Second Injury Fund.

Evidence presented on behalf of Employee:

Chad Prewett, husband of the deceased, Colleen Prewett, testified. Additionally, claimant's evidence at the hearing consisted of the following:

Exhibit A - A Motion with exhibits \& Order substituting Chad Prewett

Exhibit B - Original and Amended Claim for Compensation

Exhibit C - Stipulation for Compromise Settlement with the Employer

Exhibit D - Deposition of Anita Baker

Exhibit E - Personnel records from Jewish Vocational Services on Colleen Prewett

Exhibit F - Deposition of Dr. P. Brent Koprivica including deposition exhibits

Exhibit G - Deposition of Mike Dreiling, including deposition exhibits

Exhibits H through S - The following medical records:

The Fund cross-examined each witness at deposition and hearing but did not present any additional evidence at hearing. After this case was submitted, the Missouri Supreme Court accepted transfer of Gervich v. Condaire to examine the key issue of survivor benefits if the claimant was found to be permanently, totally disabled, and died of unrelated causes. The parties agreed to hold this case in abeyance until the Court ruled on Gervich. That decision was handed down July 31, 2012, making this case ready for disposition.

The issues to be determined are the following:

I) Whether claimant suffered any disability for which the Second Injury Fund would be liable?

II) If claimant is found to have been permanently and totally disabled, is the Second Injury Fund liable for ongoing lifetime benefits to be paid to her dependent husband or should benefits cease on the date of her death?

Employee Colleen Prewett died of causes unrelated to her work injury on May 3, 2010. Due to her death, Employee's attorney filed a Motion to Substitute Chad Prewett, Colleen Prewett's husband and sole dependent. Order for Substitution was made on November 10, 2010. (Ex. A).

Prior to her death, Colleen Prewett settled her claim against the employer for \$67,500.00 which based on the Stipulation for Compromise Settlement represented 40 % permanent disability to the body as a whole and $\ 11,972.00 in temporary total disability. (Ex. C).

On May 2, 2011, employee's spouse, Chad Prewett, appeared in person and by his attorney Lisa R. McWilliams for a hearing on final award of his wife's claim against the Second

Injury Fund. The Second Injury Fund appeared through their counsel Eric Lowe. The Division had jurisdiction to hear the case pursuant to R.S. Mo. § 287.110. For the reasons set out below, I find that Colleen Prewett was permanently and totally disabled and that the Second Injury Fund is liable for permanent total disability benefits. Additionally, I find that Chad Prewett as a dependent of Colleen Pr