Robert Shelton v. Titan Plastics Group

(Modifying the Award of the Administrative Law Judge)

Injury No.: 03-018920

Employee: Robert Shelton, deceased

Dependent: Alice Shelton, widow

Employer: Titan Plastics Group (Settled)

Insurer: Commerce \& Industry Insurance Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, heard the parties' arguments, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the March 13, 2013, award and decision of the administrative law judge, as modified herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Robert Shelton sustained a work injury on March 11, 2003. He filed a claim for compensation. Robert Shelton died on March 9, 2012. His surviving spouse, Alice Shelton, was substituted as the claimant in this matter. She settled the claim against employer/insurer and proceeded to trial against the Second Injury Fund. The administrative law judge concluded that effective March 10, 2012, Alice Shelton is entitled to so-called Schoemehl benefits as described below:

Under Section 287.240 RSMo, a wife upon a husband with whom she lives or who is legally liable for her support is conclusively presumed to be totally dependent for support. Based upon the evidence, I find that Alice Shelton, the wife of Employee, was the sole conclusively presumed total dependent at the time of Employee's accident and injury and has remained the same through the date of the hearing. Further, I find that Employee did not have any other qualified dependents at the time of his work-related injury and also find that this claim was pending within the time recognized by the Schoemel decision and subsequent cases. Employee departed this life on March 9, 2012. Consequently, I find that Alice Shelton is entitled to Employee's permanent total disability payments

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

- 2 -

Injury No.: 03-018920

from March 11, 2012 and continuing thereafter for her life except in the event of her remarriage she shall receive a lump sum payment equal in amount to the benefits due for a period of two years which shall be paid to her and the periodic death benefits shall cease in accordance with 287.240. The Second Injury Fund is therefore also directed to pay to Alice Shelton the sum of $530.63 per week commencing on March 11, 2012, and said weekly benefits shall be payable for her life except in the event of her remarriage she shall receive a lump sum payment equal in amount to the benefits due for a period of two years which shall be paid to her and the periodic death benefits shall cease in accordance with 287.240. Since part of the Second Injury Fund's liability has accrued prior to the date of the award, the Second Injury Fund shall make a lump sum payment for the appropriate amount that is past due.

(Emphasis ours).

The Second Injury Fund filed an Application for Review raising two points on appeal. First, the Second Injury Fund argues the administrative law judge erred by awarding a two year lump sum bonus payment to employee's surviving spouse, Alice Shelton. Next, the Second Injury Fund argues the administrative law judge erred in awarding permanent total disability benefits to Alice Shelton. In its brief, the Second Injury Fund invites us to disregard the Missouri Supreme Court's holding in *Schoemehl v. Treasurer*. We decline the invitation.

For the reasons set forth below, we affirm the administrative law judge's award of permanent total disability benefits to Alice Shelton. We modify the portion of the administrative law judge's award ruling that the remarriage provisions of § 287.240 RSMo apply to this claim.

**Does the death of an injured worker terminate permanent total disability benefits because it represents the conclusion of the employee's disability for purposes of § 287.200.1 RSMo?**

The Second Injury Fund argues that upon the death of Robert Shelton, his disability ended for purposes of § 287.200.1 RSMo. As a result, the Second Injury Fund argues, all entitlement to permanent total disability benefits related to the work injury herein ended by operation of law because permanent total disability benefits are only payable "during the continuance of the disability."

The Missouri Supreme Court rejected the Second Injury Fund's argument in *Schoemehl, supra*. We are constrained to rule in accordance with Supreme Court precedent. We affirm the administrative law judge's award of permanent total disability benefits to Alice Shelton.

**Do the remarriage provisions of § 287.240 apply to this claim?**

The administrative law judge ruled that the "periodic death benefits" awarded to Alice Shelton are subject to termination in the event she remarries. The administrative law judge further ruled that Alice Shelton will be entitled to a remarriage benefit in the event she remarries in

2 217 S.W.3d 900 (Mo. 2007).

See § 287.200.1 RSMo.

an amount equal to the benefits due for a period of two years. We disagree with these rulings.

We reject the characterization of the benefits due to Alice Shelton as death benefits. Schoemehl and its progeny make plain that the benefits due Alice Shelton are properly characterized as permanent total disability benefits. Notwithstanding the Supreme Court's clear articulation that benefits payable to a substituted "employee" under the Schoemehl rationale are permanent total disability benefits, at least one appellate court has suggested that the remarriage provisions of $\S 287.240 apply to Schoemehl benefits. In White v. University of Missouri, { }^{4}$ the court concluded that this Commission erred to the extent the Commission purported to determine Mrs. White's entitlement to Schoemehl benefits because Mr. White - the injured worker - was still living. The White court went on to state:

There are not only conditions precedent to the dependent's potential receipt of benefits, but also there are conditions subsequent-identical in content to the conditions precedent, except for the timing-that may be determined after the payment of successor benefits has begun. Section 287.240(4) provides that a dependent spouse's presumptive entitlement to benefits ceases if the spouse dies or remarries. Successor benefit payments begin promptly at the time of qualification, but they remain subject to revocation upon occurrence of death or remarriage. ${ }^{5}$

We believe the above-quoted language is dicta. As pointed out by the court in Spradling v. Treasurer, "the White decision never got to the question of whether the dependent spouse was entitled to successor benefits and, if so, for how long because the issue was 'simply not ripe for review by [the appellate] court, nor was it ripe for determination by the Commission."'6

The plain language of $\S 287.240$ does not extend the remarriage benefit and remarriage termination provisions to benefits other than death benefits. We find no language in the Schoemehl decision suggesting that we should apply the remarriage provisions to permanent total disability benefits granted pursuant to the holding in Schoemehl. We conclude that the remarriage provisions of $\S 287.240$ cannot apply to change the permanent total disability benefits awarded herein.

In summary, we believe the administrative law judge erred when he concluded that the remarriage provisions of $\S 287.240$ may later operate to grant or limit the benefits payable to Alice Shelton. Consequently, we must modify the administrative law judge's award on this point.

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[^0]: ${ }^{4} 375 S.W.3d 908, 913 (Mo. App. 2012).

{ }^{5} White, 375 S.W.3d at 913.

{ }^{6}$ Spradling v. Treasurer of Missouri, No. SD31907 (Mo. App. S.D., Apr. 24, 2013)(application for transfer sustained by the Missouri Supreme Court on June 25, 2013).

Based upon the evidence, we find that Alice Shelton was Robert Shelton's wife on the date of the injury that is the subject of this claim. Pursuant to the "dependent" definition found in § 287.240(4) and the stipulations of the parties, we find that Alice Shelton was Robert Shelton's dependent at the time of the injury that is the subject of this claim. We find that this claim was pending within the time the Schoemehl decision was operative. ${ }^{7}$ Robert Shelton died on March 9, 2012, from causes unrelated to his work injury. Based upon the forgoing, we find that Alice Shelton is the "employee" entitled to permanent total disability benefits in this case.

We affirm the administrative law judge's award of benefits for all periods prior to March 10, 2012. We modify the administrative law judge's award of benefits for the period beginning March 10, 2012. We direct the Second Injury Fund to pay to Alice Shelton weekly permanent total disability benefits of $\ 530.63 for her lifetime, or until modified by law.

In all other respects, we affirm the award of the administrative law judge.

We further 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.

The award and decision of Administrative Law Judge Carl Strange issued March 13, 2013, is attached hereto and incorporated by this reference, except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of October 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Attest:

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[^0]: ${ }^{7}$ The holding in Schoemehl was abrogated and overruled by statute, effective June 26, 2008. See A.L. 2008 H.B. 1883.

I write this concurring opinion to voice my disagreement with the holding in Schoemehl v. Treasurer and its progeny. ${ }^{8}$ As pointed out in an opinion concurring with the result in Spradling v. Treasurer, the Schoemehl ruling mandates "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." ${ }^{9}$ Not only does the Schoemehl holding result in a windfall to the dependents of injured workers who die from causes unrelated to a work injury, it places the burden of paying the windfall upon industry. Such an outcome is contrary to the purpose of the Workers' Compensation Law which "is to place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment."10

Having said that, I believe Schoemehl and its progeny are dispositive on this issue. I lament that it is our constitutional obligation to follow its ruling but I must reluctantly join in the majority's decision to affirm the administrative law judge's award of permanent total disability benefits to Robert Shelton's surviving spouse, Alice Shelton.

I dissent from the portion of the majority's decision holding that the remarriage provisions of $\S 287.240$ RSMo do not apply to Schoemehl "employees." The remarriage benefit and termination provisions are articulated within the definition of "dependent" as set forth in § 287.240(4). If it is proper to use the favorable portions of the "dependent" definition to trigger the substitution of the dependent as the "employee" entitled to permanent total disability benefits, then it is equally proper to use the unfavorable portions of the definition to trigger the point at which the substitution and benefits end.

James G. Avery, Jr., Member

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[^0]: ${ }^{8} 217 S.W.3d 900 (Mo.banc 2007).

{ }^{9}$ Spradling v. Treasurer of Missouri, No. SD31907 (Mo. App. S.D., Apr. 24, 2013)(Lynch, P.J., concurring).

${ }^{10}$ Schoemehl, 217 S.W. at 901.

Employee: Robert Shelton, deceased

Injury No. 03-018920

Dependents: Alice Shelton

Employer: Titan Plastics Group

Additional Party: Second Injury Fund

Insurer: Commerce \& Industry Insurance Company

Hearing Date: March 4, 2013

Checked by: CS/rm

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? March 11, 2003.
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 pushing a toolbox when a forklift ran into it and injured his right knee, left knee, and neck.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Right knee, left knee, and body as a whole referable to his cervical spine.
3. Nature and extent of any permanent disability: 35% permanent partial disability of his left lower extremity at the 160 week level, 37.5% permanent partial disability of his right lower extremity at the 160 week level, and 13.64% permanent partial disability of his body as a whole at the 400 week level referable to his cervical spine.
4. Compensation paid to date for temporary total disability: 33,339.28.
5. Value necessary medical aid paid to date by employer-insurer: 50,596.15.
6. Value necessary medical aid not furnished by employer-insurer: N/A
7. Employee's average weekly wage: 795.94.
8. Weekly compensation rate: 530.63 for temporary total disability and permanent total disability; and $340.12 for permanent partial disability.
9. Method wages computation: By Agreement.
10. Amount of compensation payable: a. The employee’s claim against the employer-insurer previously settled by compromise settlement agreement. b. The employee and his dependent, Alice Shelton, awarded permanent total disability benefits from Second Injury Fund at a rate of $190.51 per week for the period of March 13, 2007 to June 19, 2010 and then at a rate of $530.63 per week beginning June 20, 2010 (See Findings).
11. Second Injury Fund liability: Yes (see Findings).
12. Future requirements awarded: N/A

Said payments shall be payable to the employee and his dependent, Alice Shelton, 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 employee and his dependent, Alice Shelton, shall be subject to a lien in the amount of costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee and his dependent: Ronald Little.

The employee, Robert Shelton, did not appear at the trial since he departed this life on March 9, 2012. Since his death, his dependent spouse, Alice Shelton, has pursued her claim for benefits based on the employee's work accident and injury as the conclusively presumed total dependent of the employee. On March 4, 2013, Employee's dependent, Alice Shelton, appeared in person and by her attorney, Ronald Little, for a hearing for a final award. The Second Injury Fund was represented by 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 March 11, 2003, Titan Plastics Group was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Commerce \& Industry Insurance Company.
2. On or about March 11, 2003, the employee was an employee of Titan Plastics Group and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about March 11, 2003, 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 $\ 795.94, his rate for temporary total disability and permanent total disability is $\ 530.63, and his rate for permanent partial disability is $\ 340.12.
7. The employee's injury is medically causally related to the work injury occurring on or about March 11, 2003.
8. The employer has furnished $\ 50,596.15 in medical aid to the employee.
9. The employer has paid temporary total disability benefits for $625 / 7 weeks at a rate of \ 530.63 per week for a total of $\ 33,339.28.
10. The employee reached maximum medical improvement on March 12, 2007.
11. Alice Shelton is the sole conclusively presumed total dependent of Robert Shelton, deceased.
12. Robert Shelton departed this life on March 9, 2012.
13. Employee suffered a 35 % permanent partial disability of his left lower extremity at the 160 week level, 37.5 % permanent partial disability of his right lower extremity at the 160 week level, and 13.64 % permanent partial disability of his body as a whole at the 400 week level referable to his cervical spine as a result of the March 11, 2003 work related injury.
14. Second Injury Fund liability, if any, for permanent total disability benefits will be at a rate of $\ 190.51 per week for the period of March 13, 2007 to June 19, 2010 and then at a rate of $\ 530.63 per week beginning June 20, 2010.

1. Nature and Extent of Disability.
2. Liability of the Fund.
3. Dependency under Schomehl

The following Employee's Exhibits were offered and admitted into evidence:

A. Deposition and Exhibits of Dr. Thomas Musich;

B. Deposition and Exhibits of Mr. James England;

C. Deposition of Employee;

D. Medical records of Baptist Hospital of Cocke County;

E. Medical records of Dr. Navid Siddiqui;

F. Medical records of Three Rivers Healthcare North;

G. Medical records of Orthopedic Associates;

H. Medical records of Bluff Radiology Group;

I. Medical records of Dr. E.C. Hansbrough;

J. Medical records of Cape Neurosurgical Associates;

K. Medical records of Abercrombie Radiological Consultants, Inc.;

L. Medical records of Bulls Gap Medical Center;

M. Medical records of Crescent Medical Clinic;

N. Medical records of Dr. Frederick Seifer;

O. Medical records of Dr. Abdelrahman Mohamed;

P. Medical records of East Tennessee Comprehensive Rehabilitation Center;

Q. Medical records of Dr. Larry Hartman;

R. Medical records of Wellmont Holston Valley Medical Center;

S. Medical records of Dr. Ronald Christopher;

T. Medical records of Healthstar Physicians;

U. Medical records of Morristown-Hamblen Hospital;

V. Medical records Morristown-Hamblen Healthcare System;

W. Medical records of Dr. John Reynolds;

X. Marriage certificate and death certificate;

Y. Stipulation for Compromise Settlement Injury No. 03-018920;

Z. Amended Claim for Compensation Injury No. 03-018920; and

AA. Attorney Contracts.

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

"All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed, and the pre-existing permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no pre-existing disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for."

- 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).

- Section 287.240.4 RSMo. states that a wife is conclusively presumed to be totally dependent for support upon a husband with whom she lives or who is legally liable for her support.

- In Schoemehl v. Treasurer of State, 217 S.W.3d 900, 902 (Mo. 2007), the Court stated, Section 287.240.4, which applies to the entire workers' compensation chapter, states that "[t]he word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, whole or part, upon his or her wages at the time of the injury." Emphasis added. As such, any "dependent" would have to be born and dependent at the time of the injury.

- The holding in Schoemehl was subsequently abrogated with the passage of Mo. Rev. Stat. §287.230.2, which was effective June 26, 2008. However, in Bennett v. Treasurer of Missouri, 271 S.W.3d 49, 53 (Mo. App. W.D. 2008), the Court recognized that "recovery under Schoemehl is limited to claims for permanent total disability benefits that were pending between January 9, 2007, the date of the Schoemehl decision and June 26, 2008." Pending means no final decision has yet been rendered. Tilley v. USF Holland Incorporated, 325 S.W.3d 487, 494 (Mo. App. E.D. 2010). In Gervich v. Condaire, Inc., 370 S.W.3d 617, 624 (Mo. banc 2012), the Court held that even if the employee's death occurred after the statutory amendment to $\S 287.240$, the surviving spouse maintains their right to take his or her place for benefits. This right was further clarified in White v. University of Missouri, WD 74081 (Mo. App. W.D. 9-4-2012) as the Court explained that spouses have a future contingent benefit to receive permanent total benefits in the event that they remain married to the employee, the employee predeceases them and the spouse does not subsequently re-marry.

Robert Shelton ("Employee") by his spouse Alice Shelton ("Dependent") has requested an award of permanent total disability benefits against the Second Injury Fund. In support of this position, Dependent has offered Employee's medical records along with the opinions of Dr. Thomas Musich 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 was 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 March 11, 2003. The Second Injury Fund is also not liable if the last injury alone caused Employee to be permanently and totally disabled.

Employee graduated high school and attended college for about one year and a half. Employee was in the Army National Guard from 1980 to 1986 primarily as a tank driver. Employee worked for Titan Plastics Group ("Employer") for over two years. On March 11, 2003, Employee was pushing a toolbox when a forklift ran into it and injured his right knee, left knee and neck. In order to address continuing complaints and problems, Employee underwent a neck surgery and multiple knee surgeries.

On August 5, 2008, Dr. Thomas Musich examined Employee and opined that due to the March 11, 2003 primary injury that Employee suffered a 40\% permanent partial disability of his left lower extremity at the 160 week level, 37.5 % permanent partial disability of his right lower extremity at the 160 week level, and 30 % permanent partial disability of his body as a whole at the 400 week level referable to his cervical spine. With regard to pre-existing injuries, Dr. Musich opined Employee had a 37.5 % permanent partial disability of his right lower extremity at the 160 week level, a 15 % permanent partial disability of his left upper extremity at the 175 week level, a 20 % permanent partial disability of his left upper extremity at the 232 week level, and a 20 % permanent partial disability of his body as a whole at the 400 week level referable to his lumbar spine. After opining that "in my medical opinion that the combination of this patient's past and present disabilities is significantly greater than their simple sum due to the multiple levels of pathology involved", Dr. Musich opined "Mr. Shelton may require vocational rehabilitation to determine whether or not he is able to obtain and maintain employment in the open job market". Further, Dr. Musich opined that "if vocational rehabilitation finds Mr. Shelton is incapable of obtaining and maintaining full time employment in the open job market, I would consider this patient to be totally and permanently disabled" (Employee's Exhibit A).

Mr. James England, a vocational rehabilitation expert, examined Employee on December 17, 2008. At that time, Mr. England opined that "considering the effect of his combination of medical problems along with his size and presentation I simply do not believe that he is competitively employable". Mr. England further opined that "I believe that his total lack of employability potential will likely continue absent significant improvement in his overall functioning, appearance, etc." (Employee's Exhibit B).

After carefully reviewing all of the evidence, I find Employee, Dependent, and the opinions of Dr. Musich and Mr. England to be credible and fully supported by the evidence. In

accordance with those opinions, the evidence indicates that Employee is permanently and totally disabled as a result of the combination of all of his disabilities. Based on the evidence, I find Employee suffered a 35\% permanent partial disability of his left lower extremity at the 160 week level, 37.5 % permanent partial disability of his right lower extremity at the 160 week level, and 13.64 % permanent partial disability of his body as a whole at the 400 week level referable to his cervical spine as a result of the March 11, 2003 work injury. With regard to Employee's preexisting conditions, I find that Employee's permanent partial disability equals the percentages as identified by Dr. Musich's report and that Employee met his burden of proving that his preexisting conditions 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. Musich's opinion, I find that the combination of Employee's impairments created a greater disability than the simple total of each separate injury.

Based on the evidence, I find that no employer would reasonably be expected to hire Employee and that Employee was permanently and totally disabled as a result of a combination of his primary injury and pre-existing injuries. Further, I find that Employee reached maximum medical improvement on March 12, 2007. In accordance with my above findings, I find that the Second Injury Fund's liability for permanent and total disability benefits at a rate of $\ 190.51 per week began on March 13, 2007 and ended on June 19, 2010. Further, I find that the Second Injury Fund's liability for permanent and total disability benefits at a rate of $\ 530.63 per week began on June 20, 2010. The Second Injury Fund is therefore directed to pay to Employee the sum of $\ 190.51 per week commencing on March 13, 2007 and ending on June 19, 2010. The Second Injury Fund is also directed to pay to Employee the sum of $\ 530.63 per week commencing on June 20, 2010 through March 10, 2012 which is the date that Employee departed this life. Employee's permanent total disability benefits commencing March 11, 2012 shall be paid to Dependent in accordance with my findings under issue three. Since the total amount of the Second Injury Fund's liability owed directly to Employee has accrued prior to the date of the award, the Second Injury Fund shall make a lump sum payment for the appropriate amount that is past due to Employee's estate.

Under Section 287.240 RSMo, a wife upon a husband with whom she lives or who is legally liable for her support is conclusively presumed to be totally dependent for support. Based upon the evidence, I find that Alice Shelton, the wife of Employee, was the sole conclusively presumed total dependent at the time of Employee's accident and injury and has remained the same through the date of the hearing. Further, I find that Employee did not have any other qualified dependents at the time of his work-related injury and also find that this claim was pending within the time recognized by the Schoemel decision and subsequent cases. Employee departed this life on March 9, 2012. Consequently, I find that Alice Shelton is entitled to Employee's permanent total disability payments from March 11, 2012 and continuing thereafter for her life except in the event of her remarriage she shall receive a lump sum payment equal in amount to the benefits due for a period of two years which shall be paid to her and the

periodic death benefits shall cease in accordance with 287.240. The Second Injury Fund is therefore also directed to pay to Alice Shelton the sum of $\ 530.63 per week commencing on March 11, 2012, and said weekly benefits shall be payable for her life except in the event of her remarriage she shall receive a lump sum payment equal in amount to the benefits due for a period of two years which shall be paid to her and the periodic death benefits shall cease in accordance with 287.240. Since part of the Second Injury Fund's liability has accrued prior to the date of the award, the Second Injury Fund shall make a lump sum payment for the appropriate amount that is past due.

Ronald Little, attorney at law, is allowed a fee of costs plus 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: