Court of Appeals of Missouri, Southern District, Second Division
FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
E. SCOTT, J.
open workers' compensation case already pends, must a
Form 21 Claim for Compensation also be on file within the
so-called Schoemehl window (January 9, 2007 - June
26, 2008) to preserve Schoemehl rights? We conclude the answer is "no"
and affirm Ronda Ogden's award.
2001, Donald Ogden rolled a Conagra truck and sustained skull
and spine fractures, brain trauma, and other serious
injuries. Conagra promptly filed a Report of Injury and
commenced to pay weekly disability benefits and medical
expenses that would total some $2.4 million through Mr.
Ogden's death in 2014.
January 9, 2007, our supreme court, construing statutes
dating to the time of Mr. Ogden's injury, ruled that
permanent total disability (PTD) benefits survived to
dependents if the injured employee died of a cause unrelated
to the work injury. Schoemehl, 217 S.W.3d at 901-03.
June 26, 2008, our legislature abrogated Schoemehl
by statutory amendment (H.B. 1883), effectively framing the
"Schoemehl window" because both
Schoemehl and H.B. 1883 operated prospectively,
albeit in different respects.
2009, counsel filed a Form 21 Claim for Compensation that
included Mrs. Ogden's "claim under
[Schoehmehl] for benefits as a dependent in the
event of the death of her husband." By agreement of the
parties, no action was taken because Conagra was paying Mr.
Ogden's benefits voluntarily and the Schoemehl
claim was not ripe for adjudication during his
2014, Mr. Ogden died from causes unrelated to his work
injury. At a later hearing on Mrs. Ogden's claim,
Conagra's counsel succinctly described the only disputed
issue (our emphasis):
Gervich says a couple of times if the case was
pending between this window, the Schoemehl window,
January 9, 2007, to June 26, 2008, that's the date
Schoemehl was decided until the date the court - the
legislature abrogated it. So they say Schoemehl
applies to cases pending between that time frame. And so then
the question is from Gervich as well is, What does
that mean, that your case was pending or that your claim was
urged that a filed Form 21 must pend within the
Schoemehl window, so the Ogdens' 2009 filing
came too late. Deducing from Gervich and other cases
that the date of injury controlled instead, the Industrial
Commission rejected Conagra's theory and awarded
Schoemehl benefits to Mrs. Ogden:
[B]ecause our Supreme Court in Gervich strongly
suggested that the date of injury, rather than some other
triggering event, is the pivotal consideration when
determining whether Schoemehl applies, we are
persuaded that an employee's dependents may recover under
Schoemehl where the injury giving rise to the claim
for permanent total disability benefits occurs before June
26, 2008, regardless of whether a formal claim for
compensation is filed before that date.
now appeals to this court, ...