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.

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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" definitio