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Ogden v. Conagra Foods, Inc.

Court of Appeals of Missouri, Southern District, Second Division

March 14, 2017

DONALD OGDEN, deceased, RONDA OGDEN, Respondent,
v.
CONAGRA FOODS, INC., Appellant.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          OPINION

          DANIEL E. SCOTT, J.

         If an 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?[1] We conclude the answer is "no" and affirm Ronda Ogden's award.

         Background Timeline

         In 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.

         On 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.

         Effective 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.[2]

         In 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 lifetime.[3]

         In 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 pending?

         Conagra 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.

         Conagra now appeals to this court, ...


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