MO: Spouse Awarded Lifetime Benefits for PTD Claimant

MO: Spouse Awarded Lifetime Benefits for PTD Claimant

A recent court of appeals case affirming a PTD award addressed two important issues:  the impact of an application for unemployment benefits on TTD benefits and when a dependent spouse in a PTD case before 2008 may receive benefits even if a claimant dies from unrelated causes.

Claimant underwent two low back surgeries after a 2003 lifting accident and was awarded permanent total benefits with open medical because of continued back and left leg symptoms affecting his capacity to stand, sit, squat or perform simple tasks. Tilley v USF Holland Corp., No.  94431, (Mo. App. ED 9-21-10), affirmed the PTD award.

The employer’s defense failed disputing an award of temporary total disability benefits.  The employer asserts after claimant’s back surgeon released him from care, claimant applied for unemployment benefits and was never told by a doctor that he could not work.  Claimant remained out of work after his first single level L5-S1 discectomy and leading up to his multi-level L4-S1 fusion for a “failed back” surgery 17 months later.  The court affirmed an award for TTD.  The court noted that an application for unemployment benefits was not an admission regarding capacity to work, but reflected only a willingness to work. Section 287.170.3, amended after this case, disqualifies a claimant from temporary total benefits only when claimant applies for and receives unemployment compensation. The Commission based its conclusion on claimant’s testimony about his debilitating symptoms and opinions from claimant’s rating and vocational expert that he was unemployable. The employer offered no medical evidence regarding claimant’s capacity to work, but offered a vocational opinion that claimant could perform sedentary work.

The Missouri Supreme Court in a controversial 2007 case extended lifetime benefits to a dependent surviving spouse, until the legislative abrogated the case about a year later.  Since Schoemehl v Treasurer of the State of Mo., 217 S.W.3d 900 (Mo. 2007) numerous cases have struggled  when a case might be “pending” or what the statute meant by “dependent” to trigger such benefits for surviving spouse for accidents occurring before the fix.   Tilley’s wife had been added as a party during the gap between the Schoemehl decision on January 9, 2007 and the legislative fix on June 26, 2008.  Tilley concludes the case was "pending" and claimant did not have to establish that the case was a final award on appeal before June 26, 2008.

The court, however, declined to address the definition of “dependent” and whether claimant must be deceased before the 2008 legislative change as the issue was raised initially at oral argument.  There is no indication in the opinion that claimant had died prior to June 26, 2008.  In Schoemehl the court defined "dependent" under 287.240.4 to mean dependent of a deceased employee. The Commission has found no interest vested to a surviving dependent unless claimant died before the fix. Kammeier v AR Fleming Printing, DOLIR 4-1-09, Gervich v Condaire, DOLIR 4-7-10, and Goad v Blue Cross Blue Shield, DOLIR 7-22-10.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts