Gervich v. Condaire, Inc.

Citation370 S.W.3d 617
Decision Date31 July 2012
Docket NumberNo. SC 91727.,SC 91727.
PartiesGary GERVICH, Deceased, and Deborah Gervich, Appellant, v. CONDAIRE, INC., and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondents.
CourtUnited States State Supreme Court of Missouri

370 S.W.3d 617

Gary GERVICH, Deceased, and Deborah Gervich, Appellant,
v.
CONDAIRE, INC., and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondents.

No. SC 91727.

Supreme Court of Missouri,
En Banc.

July 31, 2012.


[370 S.W.3d 618]


Richard Grossman, St. Louis, for Appellant.

Carol L. Barnard, Attorney General's Office, and, Kenneth Alexander, Holtcamp, Liese, Schulz & Hilliker, St. Louis, for Respondents.


PATRICIA BRECKENRIDGE, Judge.

Deborah Gervich appeals the decision of the Labor and Industrial Relations Commission denying her workers' compensation benefits as a dependent of her deceased husband, Gary Gervich. The commission found that Gary Gervich's right to permanent total disability benefits terminated at the time of his death because his wife's right to such benefits had not “vested” prior to the 2008 statutory amendments that eliminated dependents from the definition of “employee” in section 287.020.1, RSMo Supp.2007.1 Contrary to the finding of the commission, the statutes in effect at the time of Mr. Gervich's injury govern. Those statutes provide that the dependents of an injured worker, who was entitled to permanent total disability benefits and who died of causes unrelated to the work injury, are included within the definition of “employee;” therefore, they are entitled to continuing permanent total disability benefits. Additionally, section 287.240(4) states that an employee's dependents are determined “at the time of the injury” and include the spouse of an injured worker. Accordingly, the commission was not authorized by law to deny such benefits to Ms. Gervich. The commission's decision

[370 S.W.3d 619]

is reversed, and the cause is remanded.

Factual and Procedural Background

Mr. Gervich sustained a work-related injury on April 6, 2006, while working as a pipefitter at Condaire, Inc. He filed a claim for workers' compensation on May 15, 2006. In his amended claim, Mr. Gervich asserted that he was permanently and totally disabled. While Mr. Gervich's claim was pending the legislature, in 2008, amended the workers' compensation statutes pertaining to the right of an injured worker's dependent to collect continuing compensation when the injured worker dies of causes unrelated to the work injury.2

Mr. Gervich died on April 5, 2009, from causes unrelated to his work injury. Ten days later, Ms. Gervich appeared at a hearing scheduled to determine the final award on her husband's claim against his employer, his employer's insurer, and the second injury fund. At the hearing, Ms. Gervich filed a suggestion of death and a motion for substitution of party, asserting that she was her husband's sole surviving dependent. Her motion was sustained. In addition to pursuing the claim that her husband was permanently totally disabled by his injury, Ms. Gervich amended his claim to assert that, under section 287.020.1, RSMo Supp.2007, when her husband died, she became the “employee” for purposes of compensation. As the “employee,” Ms. Gervich claimed a right to continued payment of her husband's permanent total disability benefits.

The administrative law judge found that Mr. Gervich was permanently and totally disabled as a result of an accidental injury arising out of and in the course and scope of his employment and that, on his death on April 5, 2009, Ms. Gervich became the employee by operation of section 287.020.1, RSMo Supp.2007. The administrative law judge further found that, although she became the employee on the date of her husband's death, she was not entitled to continued receipt of her husband's permanent total disability benefits because she did not prove that she, now the employee, was permanently and totally disabled as of that date. On appeal, the commission affirmed the administrative law judge's finding that Mr. Gervich was permanently totally disabled but denied Ms. Gervich's claim to the continued receipt of her husband's permanent total disability benefits on a different legal ground. It found that Ms. Gervich's rights as a dependent did not vest until her husband died on April 5, 2009, which occurred subsequent to the 2008 statutory amendments that eliminated a dependent's right to continuing permanent total disability benefits when the injured worker dies of causes unrelated to the work injury.

On appeal, Ms. Gervich claims that the commission was not authorized by law to deny her claim, as her husband's surviving spouse, to continued receipt of his permanent total disability benefits. She asserts that the commission's “vesting upon death” analysis is erroneous and that the plain language of section 287.240(4) directs that a dependent's rights are defined as of the date of the work-related injury. Ms. Gervich further asserts that applying the 2008 amendment to section 287.020.1 to deny her benefits violates the ban on retrospective laws in the Missouri Constitution. This Court granted transfer after an opinion

[370 S.W.3d 620]

by the court of appeals and has jurisdiction of the appeal. Mo. Const. art. V, sec. 10.

Standard of Review

This Court must affirm the commission's decision unless it is not authorized by law or supported by competent and substantial evidence on the whole record. Mo. Const. art. V, sec. 18. Section 287.495.1 provides that an appellate court reviews only questions of law and that the commission's decision should be modified, reversed, remanded or set aside only if: (1) the commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award. Questions of law are reviewed de novo. Pierce v. BSC, Inc., 207 S.W.3d 619, 621 (Mo. banc 2006). This Court is not bound by the commission's interpretation and application of the law, and no deference is afforded to the commission's interpretation of the law. Id.

Dependent Status Is Determined at Time of Injury

Ms. Gervich claims that the commission was not authorized by law to deny her claim to benefits when it determined her right to such benefits had not “vested” before the effective date of the 2008 statutory amendments that abrogated Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007). She contends that, when an injured employee dies of causes unrelated to the work injury, a surviving spouse has the right to collect the injured worker's permanent total disability benefits for the remainder of the spouse's life—as long as the case was pending between January 9, 2007, and June 26, 2008. Because Mr. Gervich's injury occurred April 6, 2006, and his case was pending as of January 9, 2007, Ms. Gervich claims that she is entitled to receive his permanent total disability benefits.

In Schoemehl, this Court addressed whether the workers' compensation statutes in effect at that time required that an employee's dependents have the right to continuing permanent total disability benefits. Id. at 901. This Court found that the language of the workers' compensation statutes, when reading the relevant statutory sections together, provided that the dependents of an injured employee who died from causes unrelated to the work-related injury had a right to continuing permanent total disability benefits. Id. at 903. The Court looked primarily at three statutes, sections 287.020, RSMo Supp.2007, 287.200, and 287.230. One of the three statutes,...

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