Donald Busick v. Wilson Plumbing Company

abrogation, such that the employee had a "claim for permanent total disability benefits" pending during the Schoemehl window. Goad v. Treasurer of Mo., 372 S.W.3d 1, 11 (Mo. App. 2011). At first glance, the Goad decision would seem to suggest that the court considered the filing of a claim for compensation within the Schoemehl window to be a prerequisite to recovery, which would bolster employer's argument.

On the other hand, the Goad court provided the "relation back" analysis to reject an argument from the Second Injury Fund without actually reaching the question whether an employee's claim would fall outside the Schoemehl window where it was filed after abrogation, and in fact the court specifically noted its reservations with that proposition when it suggested that "the relevant time for determining H.B. 1883's applicability would appear to be the date of the worker's injury, not the date on which a claim was first asserted." 372 S.W.3d at 11 n.8. The Goad decision also predates Gervich, wherein the Missouri Supreme Court made clear that the date of injury, rather than some other event such as the employee's death, is the pivotal date for purposes of determining Schoemehl applicability.

We note also the case of Grubbs v. Treasurer of Mo. As Custodian of the Second Injury Fund, 298 S.W.3d 907 (Mo. App. 2009), which, although addressing a different provision of Chapter 287 altogether, noted that a "claim" is defined in Black's Law Dictionary as "[t]he aggregate of operative facts giving rise to a right enforceable by a court." Id. at 911. Under this definition, employee had a "claim" as soon as he suffered the compensable injury, or in other words, on November 18, 2006, before the closing of the Schoemehl window. And in Gillespie v. American Bus Lines, 246 S.W.2d 797, 800 (Mo. 1952), the court noted that "[n]o 'pleadings' are required under [Chapter 287]. Workmen's compensation proceedings are initiated by the filing of a notice of accident. A 'Claim' need be filed only in case of a dispute; and the commission must assist the claimant in filing his 'Claim'; it need not be signed by an attorney nor state facts sufficient to state a claim for relief or the definite amount of money claimed."

Ultimately, we are persuaded that the Gervich court's focus on the date of injury means that an employee's dependents may recover under Schoemehl where the injury giving rise to the claim for permanent total disability benefits occurs before closing of the Schoemehl window, regardless whether the claim for compensation is filed after June 26, 2008. For this reason, we agree with the administrative law judge's decision to reject employer's request for a finding that Schoemehl does not apply because employee's claim for compensation was not filed until after abrogation of the Schoemehl decision.

In White v. Univ. of Mo., 375 S.W.3d 908 (Mo. App. 2012), a decision issued after the administrative law judge issued her award herein, the court held that the Commission exceeded its powers in declaring that a dependent's claim for permanent total disability benefits "qualifies for application of the Schoemehl case," because the employee was still living at the time the Commission issued its award. Id. at 910, 913. The White decision makes clear that the Commission is limited to making a finding of dependency where the employee is still living.

Pursuant to White, we must modify the award of the administrative law judge as to the issue whether employee's wife will be entitled to receive his permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007). Accordingly, we vacate the finding that "Schoemehl applies." See Award, page 7. Instead, we find that on November 18, 2006, employee was married to Dorothy Mae Busick. We conclude that Dorothy Mae Busick was employee's "dependent," as that term is defined in § 287.240(4)(a) RSMo, at the relevant time for purposes of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007). But because employee is still living, Dorothy Mae Busick's right to receive benefits pursuant to Schoemehl "remains contingent, and cannot be adjudicated at this time." White, 375 S.W.3d at 912.

We modify the award of the administrative law judge as to the issue whether employee's wife will be entitled to receive permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007).

The award and decision of Administrative Law Judge Emily S. Fowler, issued April 9, 2012, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $28^{\text {th }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Based on my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that employee's claim does not qualify for application of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007), because he did not file his claim for compensation until after the legislative abrogation of the Schoemehl decision.

In Tilley v. USF Holland Inc., 325 S.W.3d 487 (Mo. App. 2010), the court expressly stated that the legislative abrogation of Schoemehl will apply to claims "initiated after the effective date of the amendment," or June 26, 2008. Id. at 494. In Gervich v. Condaire, Inc., 370 S.W.3d 617, 621 (Mo. 2012), the Missouri Supreme Court approvingly quoted the Tilley court on this point.

Here, employee's injury occurred on November 18, 2006, before the Schoemehl window opened, and his original claim for compensation was not filed until January 19, 2009, almost seven months after the Schoemehl window closed. Employee never had a Missouri claim for compensation pending prior to the effective date of the legislative amendments abrogating the Schoemehl decision. On the date that employee filed his claim for compensation, the applicable statutes specifically excluded "the injured worker's dependents" from the definition of "employee" for purposes of permanent total disability awards. § 287.200.1 RSMo. Section 287.230.3 RSMo further provided that:

In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate the holding in Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. 2007), and all cases citing, interpreting, applying, or following this case.

I disagree with the majority's reasoning that the filing of employee's claim for compensation was no more than an administrative formality. To the contrary, the filing of a claim for compensation is nothing less than a jurisdictional prerequisite for an award of permanent total disability benefits: "no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death ..." § 287.430 RSMo.

I am convinced that under the relevant case law and statutory provisions, there is no need to adjudicate the dependency of employee's wife, because employee did not have a claim for permanent total disability benefits pending during any time period that the Schoemehl decision represented the law of this state. I would enter an award concluding that employee's wife is precluded from receiving his permanent total disability benefits in the event he predeceases her of a cause unrelated to the work injury. Because the majority has determined otherwise, I respectfully dissent.

Employee: Donald Busick

Injury No. 06-110636

Dependents: N/A

Employer: Wilson Plumbing Company

Insurer: Missouri Employers Mutual Insurance Company

Additional Party: N/A

Hearing Date: March 7, 2012

Checked by: ESF/pd

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 18, 2006
5. State location where accident occurred or occupational disease was contracted: Shawnee County, Kansas
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. Wa