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Dunkin v. Treasurer of State of Missouri

Court of Appeals of Missouri, Western District, First Division

March 14, 2017

ESTATE OF LEONARD DUNKIN, Appellant,
v.
TREASURER OF THE STATE OF MISSOURI - CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

         APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

          Before James E. Welsh, Presiding Judge, Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE

         Deborah Dunkin ("Deborah")[1] appeals the decision of the Labor and Industrial Relations Commission ("Commission") denying her motion to substitute parties based on a lack of jurisdiction. We find that Deborah's status as a dependent of the injured employee was not established in the underlying final award, thus extinguishing her ability to receive successor benefits following the injured employee's death. The decision of the Commission is affirmed.

         FACTUAL AND PROCEDURAL HISTORY

         Leonard Dunkin ("Leonard") was injured on January 15, 2008, and in 2012 was awarded permanent total disability benefits "for as long as Claimant remains so disabled."[2] The final award stated that Leonard had been married for almost forty-two years. After Leonard passed away on July 5, 2015, his surviving spouse, Deborah, filed a motion with the Commission to be substituted as a party in the underlying case under section 287.580[3] for the purpose of being awarded Leonard's permanent total disability benefits as his surviving dependent. The Commission determined that the final award contained no basis on which it could grant such relief and dismissed the motion for lack of jurisdiction. This appeal followed.

         STANDARD OF REVIEW

We will not disturb the Commission's decision in a workers' compensation case unless the Commission acted in excess of its powers, the decision was procured by fraud, the facts found by the Commission do not support the decision, or there was not sufficient competent evidence in the record to support the decision. § 287.495.1. We review questions of law de novo. Gervich v. Condaire, Inc., 370 S.W.3d 617, 620 (Mo. banc 2012). Therefore, we are not bound by and do not defer to the Commission's interpretation or application of the law. Id.

Carter, 2016 WL 6208482 at *1.

         DISCUSSION

         Deborah's sole point on appeal is that the Commission erred in dismissing her motion for substitution for lack of jurisdiction. Deborah argues that she had a contingent right to receive Leonard's benefits upon his death in that the final award impliedly found that she was the dependent of her deceased husband at the time of his work injury.

         In its order dismissing Deborah's motion, the Commission noted that it is a creature of statute, can only exercise the authority granted by statute, and is without authority to further delineate a final award or expound on its meaning. See Farmer v. Barlow Truck Lines, 979 S.W.2d 169, 170 (Mo. banc 1998); Falk v. Barry, Inc., 158 S.W.3d 327, 328-29 (Mo. App. W.D. 2005). The sole relief sought by Deborah, as an alleged surviving dependent of the employee, was the continuation of permanent total disability benefits under Schoemehl v. Treasurer of Mo., 217 S.W.3d 900, 902 (Mo. banc 2007). Because Deborah did not identify any other basis supporting her request to be substituted as a party in interest, [4] the Commission concluded that it had no statutory authority to provide the relief requested by Deborah and dismissed the motion. See Winberry v. Treasurer of Mo., 258 S.W.3d 455, 457 (Mo. App. E.D. 2008); Falk, 158 S.W.3d at 329.

         Since the Commission issued its Order, this court has clarified when a dependent's contingent right to benefits pursuant to Schoemehl is preserved for future review and adjudication by the Commission. Carter, 2016 WL 6208482 at *1. The Missouri Supreme Court held in Schoemehl "that, when an employee with a permanent total disability dies of a cause unrelated to the compensable work-related injury, the disability benefits shall be paid to the employee's dependents for their lifetime because the surviving dependents are deemed to have the same rights as the employee." Carter, 2016 WL 6208482 at *2 (citing Schoemehl, 217 S.W.3d at 902). Although the holding was abrogated by section 287.230 in 2008, Schoemehl continues to apply to claims for permanent total disability benefits that were pending between January 9, 2007, and June 26, 2008. Carter, 2016 WL 6208482 at *2 (citing Gervich v. Condaire, Inc., 370 S.W.3d 617, 621 (Mo. banc 2012); Strait v. Treasurer of Mo., 257 S.W.3d 600, 601 (Mo. banc 2008)). This Court held in Carter that so long as the claim was pending during the Schoemehl window and the final award established a spouse's dependency status, the "issue of the dependent's contingent right to Schoemehl benefits" is preserved "for future determination" because section 287.470 allows an award to be reviewed by a party in interest, e.g., a dependent, due to a change in condition, e.g., the employee's death. Carter, 2016 WL 6208482 at *4 (citing White v. University of Missouri, Kansas City, 375 S.W.3d 908, 912-13 (Mo. App. W.D. 2012)).

         Deborah argues that, pursuant to Carter, she has a contingent right to Schoemehl benefits in that the final award impliedly found that she was the dependent of her deceased husband at the time of his work injury. Thus, the issue before this court is whether Deborah's dependency status was established in the final award entered in Leonard's underlying workers compensation case. By way of illustration, in White, "[t]he Commission entered a finding of fact that Gail White and the employee had been married for 35 years and remained married, and then ruled that 'the employee's claim qualifies for application of the Schoemehl case.'" 375 S.W.3d at 912. Although the court held that the dependent's right to Schoemehl benefits was not ripe for adjudication at that time because the employee was still living, the finding that Gail ...


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