Donald Ogden v. ConAgra Foods, Inc.

Employee: Donald Ogden, deceased

- 2 -

Employee and Ronda Ogden were married on February 26, 1988. On May 3, 2001, employee suffered catastrophic work injuries when the tractor-trailer he was driving for employer crashed and rolled over. At the time of the injury, employee remained lawfully married to Ms. Ogden. The parties have stipulated that Ronda Ogden was employee's only "dependent" for purposes of Chapter 287 at the time of his injury.²

Employer filed a "Report of Injury" (Form WC-1) with the Division on May 4, 2001, and began on that date to pay total disability benefits to employee in the amount of $599.96 per week. In connection with commencing weekly payments, employer also filed with the Division a "Notice of Commencement of Compensation Payments" (Form WC-3) on May 29, 2001. The Division assigned Injury No. 01-041053 to this matter.

On June 15, 2001, attorney Jeffrey Slattery filed an entry of appearance on behalf of employer in this matter, requesting that the Division furnish him with any notices regarding the claim. On February 18, 2005, Mr. Slattery filed a withdrawal of appearance, and on February 24, 2005, employer's present counsel entered his appearance.

Employee required extensive medical treatment for the catastrophic injuries he suffered in the work injury of May 3, 2001, which included a subarachnoid hemorrhage, intracerebral hemorrhage, left frontal subcutaneous hematoma, and multiple fractures of the cervical spine. Specifically, employee required emergency transportation and treatment immediately following the accident; a subsequent hospitalization of approximately three weeks before his condition could be stabilized; a stay of approximately one month in a rehabilitation facility thereafter; additional emergency transportation and treatment following a neurological emergency on June 14, 2001, following by a month-long hospitalization; another long-term stay in a rehabilitation facility from July through December 2001; and 24/7 nursing home care and treatment thereafter. At the time of the hearing in this matter, employer had paid a total of $1,995,038.11 for medical treatment rendered to employee.

On January 23, 2009, employee filed a "Claim for Compensation" (Form WC-21-2) with the Division for the injury suffered on May 3, 2001. On that form's Box 10 "Additional Statements," employee indicated as follows:

This claim is also made by Ronda Ogden, wife of Donald, who asserts her claim under Schoemehl v. Treasurer of State of Mo., 217 S.W.3d 900 (Mo. Banc 2007) for benefits as a dependent in the event of the death of her husband.

Authorized care is continuing and the claim is timely filed.

Transcript, page 76.

On February 6, 2009, employee filed an amended "Claim for Compensation" with the Division, advising that dependent had been appointed conservator of employee's estate.

² Consequently, we will hereinafter refer to Ms. Ogden as the "dependent."

Injury No.: 01-041053

On April 13, 2009, employer filed an "Answer to Claim for Compensation" (Form WC-22), denying "each and every allegation" contained in employee's claim for compensation. Transcript, page 80.

Employee died on October 9, 2014. Employer continued to voluntarily pay weekly total disability benefits in the amount of $\ 599.96 through October 9, 2014, for a total of $\ 420,571.69.

Dependent has provided expert medical opinion testimony from Dr. Robert Paul, who believes employee was permanently and totally disabled from the date of the work accident until the date of his death; and that employee died of an acute myocardial infarction, which was not a result of the work injury. There is no contrary expert medical opinion evidence on this record. We find the essentially uncontested opinions of Dr. Paul to be persuasive.

We find that employee was permanently and totally disabled as a result of the work injury, and remained permanently and totally disabled through the date of his death. We find that employee died on October 9, 2014, of an acute myocardial infarction, which was a cause unrelated to the work injury.

On January 9, 2007, the Supreme Court of Missouri issued its decision in the case of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007), holding that when a permanently and totally disabled employee dies of a cause unrelated to the work injury, the employee's surviving dependent(s) become the "employee" entitled to the award of lifetime permanent total disability benefits. ${ }^{3}$ On June 26, 2008, a legislative amendment abrogating the Schoemehl decision became effective.

The question before us is whether dependent is entitled to permanent total disability benefits pursuant to the Schoemehl analysis. Employer argues that, because employee did not file a formal claim for compensation until January 23, 2009, employee did not have a claim for permanent total disability benefits that was pending during the "Schoemehl window." See Bennett v. Treasurer of Missouri-Custodian of the Second Injury Fund, 271 S.W.3d 49, 53 (Mo. App. 2008), which held that "recovery under Schoemehl is limited to claims for permanent total disability benefits 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 HB 1883." Employer argues that employee's claim for permanent total disability benefits cannot be deemed to have been "pending" until the date upon which employee first filed with the Division a "Claim for Compensation" on the Division's Form WC-21-2. Employer suggests that the law as declared in Schoemehl only applies to claims wherein a formal claim for compensation is filed before June 26, 2008.

[^0]

[^0]: ${ }^{3}$ We note that in the Schoemehl decision, the Court did not purport to change the existing law of the state of Missouri or to create a new right to compensation for injured workers or their dependents; instead, the Court rendered its decision based on language from various legislative provisions that had been in place for decades.

Improvee: Donald Ogden, deceased

- 4 -

Dependent responds that, because employee's May 3, 2001, date of injury predates the legislative abrogation of *Schoemehl* effective June 26, 2008, it would be unconstitutional to retroactively apply such abrogation to preclude an award of permanent total disability benefits to her. Dependent relies upon *Gervich v. Condaire, Inc.*, 370 S.W.3d 617 (Mo. 2012), wherein the Supreme Court of Missouri ordered an award of *Schoemehl* benefits to the husband of an employee who died after the *Schoemehl* window closed, because his "right to compensation and the substantive law applicable to his claim are governed by the statutes in effect at the time of the injury." *Id.* at 624. Dependent suggests that where the date of injury occurs before June 26, 2008, the law as declared in the *Schoemehl* decision must be applied—provided the other elements (e.g., the employee predeceases the dependent of a cause unrelated to the work injury, etc.) are met.

The issue before us appears to be one of first impression. On the one hand, the courts have found that an amended claim for compensation filed after abrogation (which, for the first time, alleged an employee was entitled to permanent total disability benefits) related back to the date the employee filed her initial claim for compensation, which was before 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.4

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 if it was filed after abrogation, and in fact the court specifically noted its reservations as to 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 strongly suggested 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.5

We note also the decision in *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, there would appear to have been a "claim" for permanent total disability benefits in this matter as soon as employee suffered the

4 Employer's brief cites a number of decisions using similar "claim filed and pending" language; employer argu