In the Missouri Court of Appeals Eastern District DIVISION FOUR
JOHN D. MATTHEWS, ) No. ED109168 ) Appellant, ) Appeal from the Labor and ) Industrial Relations Commission vs. ) ) TREASURER OF MISSOURI AS ) CUSTODIAN OF THE SECOND ) INJURY FUND, ) ) Respondent. ) FILED: April 6, 2021
Lisa Matthews (“Appellant”) appeals from the Missouri Department of Labor and
Industrial Relations Commission’s (the “Commission”) dismissal of her motion to be substituted
as a party in the workers’ compensation case of her late husband, John D. Matthews (“Employee”).
In her motion, Appellant asserted she was Employee’s dependent and was therefore entitled to
receive permanent total disability benefits that had been awarded to him from the Second Injury
Fund (the “Fund”). The Commission dismissed Appellant’s motion for lack of jurisdiction
because the final award in Employee’s case did not establish that Appellant was his dependent at
the time of his work-related injury. We affirm.
Factual and Procedural Background
Employee sustained a work-related injury on March 1, 2003. He settled with his employer
and later pursued a claim against the Fund for permanent total disability benefits. On April 27, 2015, following a hearing, the Administrative Law Judge (“ALJ”) awarded Employee permanent
total disability benefits. The Fund appealed to the Commission, which affirmed the award on
January 20, 2016. Although the award referenced Employee’s “wife” and stated that he “has been
married for 31 years,” it did not contain any findings regarding dependents of Employee or the
applicability of benefits pursuant to Schoemehl v. Treasurer of the State of Mo., 217 S.W.3d 900
(Mo. banc 2007). Because no party appealed the January 20, 2016 award of the Commission, it
became final 30 days later on February 19, 2016. See Section 287.495.1
Pursuant to the award, the Fund paid Employee weekly permanent total disability benefits
until his death on March 11, 2020, which was not related to his injury. Appellant subsequently
filed with the Commission a motion for substitution of parties in which she sought to receive
Employee’s permanent total disability benefits as his surviving dependent pursuant to Schoemehl.
In her motion, Appellant asserted that she was Employee’s spouse at the time of his injury. The
Commission dismissed the motion for lack of jurisdiction, concluding it had no statutory authority
to continue the benefits because the ALJ’s award did not contain a finding that Appellant was
Employee’s dependent on the date of his injury. This appeal follows.
Standard of Review
In a workers’ compensation case, we will not disturb the Commission’s decision unless it
acted without or in excess of its powers, the award was procured by fraud, the facts found by the
Commission do not support the award, or there was not sufficient competent evidence in the record
to warrant the making of the award. Section 287.495.1. “On review, this Court examines the
record as a whole to determine if the award is supported by sufficient competent and substantial
evidence, or whether the award is contrary to the overwhelming weight of the evidence.” Edwards
1 All statutory references are to RSMo (2016).
2 v. Treasurer of State, 529 S.W.3d 7, 10 (Mo. App. E.D. 2017). “While we review questions of
law de novo, we defer to the Commission on issues of fact.” Id.
Discussion
Appellant argues the Commission erred in dismissing her motion for substitution of parties
because she presented evidence that she was Employee’s dependent on the date of his injury, which
entitled her to a continuation of his permanent total disability benefits pursuant to Schoemehl. We
disagree.
In Schoemehl, the Supreme Court of Missouri held that an employee’s right to permanent
total disability benefits survives to his or her dependents upon the employee’s death from causes
unrelated to the workplace injury. 217 S.W.3d at 901-03. The General Assembly abrogated
Schoemehl by amending Section 287.230 effective June 26, 2008. See Lawrence v. Treasurer of
State – Custodian of Second Injury Fund, 609 S.W.3d 782, 784 (Mo. App. W.D. 2020). “While
the holding in Schoemehl no longer applies to cases where the amended version of Section 287.230
applies, the amendment is not retroactive.” Edwards, 529 S.W.3d at 10. “Recovery under
Schoemehl is limited to situations where the injured employee’s case was pending before the
Division [of Workers’ Compensation], the Commission, or an appellate court between January 9,
2007, when the Supreme Court issued Schoemehl, and June 26, 2008, the effective date of the
legislation abrogating Schoemehl.” Id.
Here, the parties agree Employee’s claim was pending during the “Schoemehl window.”
See id. In analyzing a claim for Schoemehl benefits, however, we must first consider whether the
issue has been preserved. “[T]he issue of a dependent’s contingent right to Schoemehl benefits for
future determination is preserved if the dependency at the time of the injury is established as a
matter of law in the final award.” Id. at 11. “Once the issue is preserved, the Commission has
3 the authority to further delineate the award under Section 287.470 after the employee’s death as a
‘change in condition.’” Id. But if the final award does not make findings establishing the
dependents, the Commission does not have the authority to later disturb the finality of the award
by modifying it to make dependency findings that the Commission did not include in the final
award. Lawrence, 609 S.W.3d at 784-85; Carter v. Treasurer of the State of Mo. – Custodian of
the Second Injury Fund, 506 S.W.3d 368, 372 (Mo. App. W.D. 2016).
The mere mention in the final award that the employee is married is insufficient to establish
dependency at the time of the injury. For example, in Edwards, the court held the final award’s
references to the employee’s “wife” did not constitute a finding that the claimant was his wife or
his dependent at the time of his injury. 529 S.W.3d at 9, 12; see also Lawrence, 609 S.W.3d at
785 (holding that the mere reference to the employee’s “wife” and “daughters” was insufficient to
establish dependency).
Here, Appellant acknowledges the final award did not identify her by name as Employee’s
dependent. She asserts, however, the final award nevertheless established dependency because it
stated Employee “has been married for 31 years”—a period of time that included the date of his
injury. The court rejected a similar argument in Estate of Dunkin v. Treasurer of State – Custodian
of Second Injury Fund, 516 S.W.3d 863, 866-67 (Mo. App. W.D. 2017), where the court held the
mere mention of the length of time an employee was married was insufficient to support an award
of Schoemehl benefits. In that case, the final award stated the employee “had been married for
almost 42 years” but did not include the spouse’s name or expressly state she was a dependent at
the time of the injury. Id. Appellant attempts to distinguish Dunkin by stressing it involved a final
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
JOHN D. MATTHEWS, ) No. ED109168 ) Appellant, ) Appeal from the Labor and ) Industrial Relations Commission vs. ) ) TREASURER OF MISSOURI AS ) CUSTODIAN OF THE SECOND ) INJURY FUND, ) ) Respondent. ) FILED: April 6, 2021
Lisa Matthews (“Appellant”) appeals from the Missouri Department of Labor and
Industrial Relations Commission’s (the “Commission”) dismissal of her motion to be substituted
as a party in the workers’ compensation case of her late husband, John D. Matthews (“Employee”).
In her motion, Appellant asserted she was Employee’s dependent and was therefore entitled to
receive permanent total disability benefits that had been awarded to him from the Second Injury
Fund (the “Fund”). The Commission dismissed Appellant’s motion for lack of jurisdiction
because the final award in Employee’s case did not establish that Appellant was his dependent at
the time of his work-related injury. We affirm.
Factual and Procedural Background
Employee sustained a work-related injury on March 1, 2003. He settled with his employer
and later pursued a claim against the Fund for permanent total disability benefits. On April 27, 2015, following a hearing, the Administrative Law Judge (“ALJ”) awarded Employee permanent
total disability benefits. The Fund appealed to the Commission, which affirmed the award on
January 20, 2016. Although the award referenced Employee’s “wife” and stated that he “has been
married for 31 years,” it did not contain any findings regarding dependents of Employee or the
applicability of benefits pursuant to Schoemehl v. Treasurer of the State of Mo., 217 S.W.3d 900
(Mo. banc 2007). Because no party appealed the January 20, 2016 award of the Commission, it
became final 30 days later on February 19, 2016. See Section 287.495.1
Pursuant to the award, the Fund paid Employee weekly permanent total disability benefits
until his death on March 11, 2020, which was not related to his injury. Appellant subsequently
filed with the Commission a motion for substitution of parties in which she sought to receive
Employee’s permanent total disability benefits as his surviving dependent pursuant to Schoemehl.
In her motion, Appellant asserted that she was Employee’s spouse at the time of his injury. The
Commission dismissed the motion for lack of jurisdiction, concluding it had no statutory authority
to continue the benefits because the ALJ’s award did not contain a finding that Appellant was
Employee’s dependent on the date of his injury. This appeal follows.
Standard of Review
In a workers’ compensation case, we will not disturb the Commission’s decision unless it
acted without or in excess of its powers, the award was procured by fraud, the facts found by the
Commission do not support the award, or there was not sufficient competent evidence in the record
to warrant the making of the award. Section 287.495.1. “On review, this Court examines the
record as a whole to determine if the award is supported by sufficient competent and substantial
evidence, or whether the award is contrary to the overwhelming weight of the evidence.” Edwards
1 All statutory references are to RSMo (2016).
2 v. Treasurer of State, 529 S.W.3d 7, 10 (Mo. App. E.D. 2017). “While we review questions of
law de novo, we defer to the Commission on issues of fact.” Id.
Discussion
Appellant argues the Commission erred in dismissing her motion for substitution of parties
because she presented evidence that she was Employee’s dependent on the date of his injury, which
entitled her to a continuation of his permanent total disability benefits pursuant to Schoemehl. We
disagree.
In Schoemehl, the Supreme Court of Missouri held that an employee’s right to permanent
total disability benefits survives to his or her dependents upon the employee’s death from causes
unrelated to the workplace injury. 217 S.W.3d at 901-03. The General Assembly abrogated
Schoemehl by amending Section 287.230 effective June 26, 2008. See Lawrence v. Treasurer of
State – Custodian of Second Injury Fund, 609 S.W.3d 782, 784 (Mo. App. W.D. 2020). “While
the holding in Schoemehl no longer applies to cases where the amended version of Section 287.230
applies, the amendment is not retroactive.” Edwards, 529 S.W.3d at 10. “Recovery under
Schoemehl is limited to situations where the injured employee’s case was pending before the
Division [of Workers’ Compensation], the Commission, or an appellate court between January 9,
2007, when the Supreme Court issued Schoemehl, and June 26, 2008, the effective date of the
legislation abrogating Schoemehl.” Id.
Here, the parties agree Employee’s claim was pending during the “Schoemehl window.”
See id. In analyzing a claim for Schoemehl benefits, however, we must first consider whether the
issue has been preserved. “[T]he issue of a dependent’s contingent right to Schoemehl benefits for
future determination is preserved if the dependency at the time of the injury is established as a
matter of law in the final award.” Id. at 11. “Once the issue is preserved, the Commission has
3 the authority to further delineate the award under Section 287.470 after the employee’s death as a
‘change in condition.’” Id. But if the final award does not make findings establishing the
dependents, the Commission does not have the authority to later disturb the finality of the award
by modifying it to make dependency findings that the Commission did not include in the final
award. Lawrence, 609 S.W.3d at 784-85; Carter v. Treasurer of the State of Mo. – Custodian of
the Second Injury Fund, 506 S.W.3d 368, 372 (Mo. App. W.D. 2016).
The mere mention in the final award that the employee is married is insufficient to establish
dependency at the time of the injury. For example, in Edwards, the court held the final award’s
references to the employee’s “wife” did not constitute a finding that the claimant was his wife or
his dependent at the time of his injury. 529 S.W.3d at 9, 12; see also Lawrence, 609 S.W.3d at
785 (holding that the mere reference to the employee’s “wife” and “daughters” was insufficient to
establish dependency).
Here, Appellant acknowledges the final award did not identify her by name as Employee’s
dependent. She asserts, however, the final award nevertheless established dependency because it
stated Employee “has been married for 31 years”—a period of time that included the date of his
injury. The court rejected a similar argument in Estate of Dunkin v. Treasurer of State – Custodian
of Second Injury Fund, 516 S.W.3d 863, 866-67 (Mo. App. W.D. 2017), where the court held the
mere mention of the length of time an employee was married was insufficient to support an award
of Schoemehl benefits. In that case, the final award stated the employee “had been married for
almost 42 years” but did not include the spouse’s name or expressly state she was a dependent at
the time of the injury. Id. Appellant attempts to distinguish Dunkin by stressing it involved a final
award that described the marriage in the past tense while the final award at issue here stated that
Employee “has been married for 31 years.” (emphasis added). The Dunkin court, however, held
4 that even if it assumed the sentence describing the marriage “could be read to express that [the
employee] was married at the time of injury, it [did] not establish that he was married [to the
claimant] at that time” because the final award never mentioned her by name. Id. at 867. Similarly,
here, although the final award included language that Employee was married during a period of
time that included the date of his injury, it did not identify Appellant as his spouse and therefore
did not establish she was his dependent on that date.
Appellant argues the Commission should have looked beyond the final award to the “whole
record,” which includes deposition testimony that Employee was married to Appellant at the time
of the injury. The court rejected the same argument in Lawrence, where the transcript contained
references to the employee’s wife and daughters, noting that “it is irrelevant that an individual’s
status as a dependent of a claimant could have been established in a Final Award or that such a
finding would have been supported by the evidence adduced at the hearing before the ALJ.” 609
S.W.3d at 785 (emphasis in original). The court stressed that “dependency at the time of the injury
must be ‘established as a matter of law in the final award.’” Id. at 786 (emphasis in original)
(quoting Edwards, 529 S.W.3d at 11).
Here, because the final award did not establish as a matter of law that Appellant was
Employee’s dependent at the time of his injury, the Commission lacked jurisdiction to grant the
relief sought and properly dismissed her motion to substitute parties. See Dunkin, 516 S.W.3d at
867.
5 Conclusion
For the foregoing reasons, we affirm the decision of the Commission.
_______________________________ MICHAEL E. GARDNER, Judge
Gary M. Gaertner, Jr., P.J., concurs. Philip M. Hess, J., concurs.