Phillip Carter v. Unknown

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 14-045845

Employee:

Phillip Carter, deceased

Claimant and Alleged Employee: Edith Carter, surviving spouse

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, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge as modified herein.

In his Rulings of Law, the administrative law judge found, "This Court finds that it has no jurisdiction or basis on which to award Ms. Carter benefits under this claim for compensation." ${ }^{2}$ We modify the administrative law judge's finding to read: "This Court finds that it has no basis upon which to award Ms. Carter benefits under this claim for compensation."

On October 25, 2016, the Missouri Court of Appeals for the Western District handed down its opinion in Carter v. Treasurer of Mo, ${ }^{3}$ a claim founded upon the very same facts as the instant claim (Injury No. 14-045845). The Carter court ruled that Edith Carter's contingent right to Schoemehl benefits was extinguished ("not preserved") when the award granting permanent total disability benefits to her husband (the injured employee) became final, because the award did not contain a finding that Edith Carter was employee's dependent at the time of his injury. ${ }^{4}$ Inasmuch as both claims derive from the same facts, we conclude Edith Carter's contingent right to Schoemehl benefits was extinguished when the award granting permanent total disability benefits to her husband (the injured employee) in Injury No. 05-014920 became final, in accordance with the holding in Carter, supra.

We attach the August 1, 2016, award and decision of Administrative Law Judge Mark Siedlik hereto. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with our findings and conclusions herein. We affirm the administrative law judge's award and decision, as supplemented and modified herein.

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2014 unless otherwise indicated.

${ }^{2} Award p. 2.

{ }^{3}$ Carter v. Treasurer of Mo., WD77747 (Mo. App. W.D., Oct. 25, 2016))(not final until expiration of the rehearing period.).

${ }^{4} \mathrm{Id}$.

Claimant: Phillip Carter, deceased

- 2 -

Given at Jefferson City, State of Missouri, this $\qquad 31^{\text {st }} \qquad$ day of January 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

On July 14, 2016, Edith Carter, in person and with counsel, as well as the Second Injury Fund appeared for hearing. ${ }^{1}$ Now having heard evidence and reviewed the file in the above matter, the following factual findings, rulings of law and Award are entered:

Over objection by the Fund, Ms. Carter testified that she was married to Phillip Carter and remained so married through his date of death (Claimant’s Exhibit A). She further testified over the Fund’s objection that on April 13, 2014 Phillip Carter died, and the Second Injury Fund terminated paying his permanent total disability benefits at that time (Claimant’s Exhibits B and C).

Edith Carter filed a new claim for compensation on June 26, 2014, which was assigned Injury No. 14-045845 (SIF Exhibit 1). The sole basis for this claim was for Ms. Carter to obtain "Schoemehl benefits".

On cross examination, Ms. Carter admitted the following:

[^0] [^0]: ${ }^{1}$ On 2/18/16 an Order was entered by the undersigned ALJ dismissing Injury No. 14-045845. Counsel for both Ms. Carter and the Second Injury Fund had agreed and requested the undersigned ALJ to enter a dispositive Order based on the pleadings. Despite that agreement, counsel for Ms. Carter appealed the Order. On 3/30/16 the Labor Industrial Relations Commission remanded the claim back to the undersigned ALJ to enter an order on the merits after taking evidence. Per that directive, the hearing was held on 7/14/16 and this is Award is a result of that hearing.

Issued by the Division of Workers' Compensation

Employee: Phillip Carter (Deceased)

1. That she was not an employee,
2. That there was no date of injury as she was not injured while employed,
3. That there was no part of her body injured,
4. That there was no description of how any injury occurred as there was no injury, and
5. That she listed no employer as she was not an employee.

Whether Ms. Carter, in her claim for compensation (Injury Number 14-045845) has met her burden of proving that she is entitled to any compensation under claim number 14-045845.

Edith Carter, as the named claimant in injury number 14-045845, asks the Court for an Award under claim number 14-045845 to award her Schoemehl benefits as a result of the death her husband Phillip Carter on 4/13/14.

This Court finds that it has no jurisdiction or basis on which to award Ms. Carter benefits under this claim for compensation. Chapter 287 RSMo. shall apply to all injuries received and occupational diseases contracted in this state. §287.110 RSMo (Cum. Supp. 2005) Injuries under the chapter are defined as "violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body." §287.020.3(5) Additionally, the word "employee"....means every person in the service of any employer. §287.020.1 RSMo (2014) And, the word "employer" means...every person, partnership, association, corporation, limited liability partnership or company....using the service of another for pay. §287.030.1 RSMo (Cum. Supp. 2005) Ms. Carter’s claim for compensation in Injury Number 14-045845 fails as a matter of law for the following reasons:

a. Ms. Carter's 2014 claim cites no occurrence of a work related injury.

b. Ms. Carter's 2014 claim cites no injury to any body part as a result of a work-related injury.

c. Ms. Carter's 2014 claim lists no employee.

d. Ms. Carter's 2014 claim lists no employer.

e. The only basis for Ms. Carter's 2014 claim is for "Schoemehl benefits".

Ms. Carter neither experienced any compensable injury that would be the subject of a valid workers' compensation claim, nor was she an employee pursuant to the Workers' Compensation Act. And there was no employer listed in injury number 14-045845. Rather, Ms. Carter's sole reason for filing Injury Number 14-045845 was to request this Court award her Schoemehl benefits. (See Schoemehl v. Treasurer, 217 S.W. $3^{\text {rd }} 900$ (Mo. 2007)

Ms. Carter has filed a new injury number that does not contain any of the valid elements of a workers' compensation claim. This is not the vessel by which to obtain Schoemehl benefits which Ms. Carter claims arise from her deceased husband's past workers' compensation claim.

Issued by the Division of Workers' Compensation

Employee: Phillip Carter (Deceased)

The earlier claim, an award from a work injury in 2005, contains no evidence of Mrs. Carter being married to or dependent upon Mr. Carter, either a mistake or oversight which cannot be remedied here. Her claim lacks merit and benefits are hereby denied.

Mark S. Siedlik

Administrative Law Judge

Division of Workers' Compensation