More surviving spouses can now recover benefits for life under a recent Missouri court of appeals case. In Gervich v Condaire, ED 94726 (Mo. App. 2011), decided 3-8-11, the court of appeals found a surviving spouse could recover life-time benefits even if a PTD claimant died after the legislature in 2008 abrogated Schoemehl v Treasurer of MO, 217 S.W.3d 900 (Mo banc 2007). Schoemehl allowed life-time benefits to a surviving spouse when a PTD claimant died from unrelated causes. The Commission denied life-time survivor benefits in Gervich because the spousal interest might divest before the legislative fix since the spouse could have died or re-married. The Court of Appeals found this proposition not supported by any case law. Schoemehl found that a spouse is deemed to have the same rights as the deceased claimant to life-time benefits. The court noted that both spouses shared a property interest in the compensation as a result of marriage. The pivotal issue was whether the spouse was a dependent at the time of the accident and if the claim was “pending” at the time of the January 2007 Schoemehl decision.
In Gervich, claimant’s case was pending before the Division at the time the Supreme Court decided Schoemehl in January 2007, and claimant did not have a hearing until 2009, about 10 months after the June 2008 legislative fix. Claimant died shortly before the hearing. The Second Injury Fund was found liable for permanent and total disability benefits. The court of appeals found no merit to the Second Injury Fund’s new argument that Schoemehl benefits applied only to cases pending “on appeal” after January 2007, an argument not supported by citation or authority. The Fund argued no vested interest existed but provided no citation or any authority to support the theory advanced by the Commission. The court rejected the divestment argument, and found in a case a few months earlier that an interest had vested both to a claimant (then living) and a spouse in Tilley v USF Holland, 325 S.W.3d 487 (Mo. App. ED 2010).
Also see the Commission decision in Gervich v Condaire decision.
See also Goad v Blue Cross, DOLIR 7-22-10 (adopting divestment argument).
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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