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Workers' Compensation Law

Chris T. Archer, Esquire 

A spouse's right to assume the permanent total benefits of her husband vested at the time of her husband's original accident, despite the fact that her husband died after the June 2008 statutory changes that legislatively abrogated Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007). Gervich v. Condaire and Treasurer of Missouri, No. ED 94726 (Mo. App. E.D., March 8, 2011), Mooney, J.
The commission denied Mrs. Gervich's claim for her continued receipt of her husband's permanent total disability benefits for her lifetime consistent with Schoemehl, based upon the argument that she did not have the expectation or vested right to the same, as her husband - the original claimant - died after June of 2008. Effective June 26, 2008, the Missouri legislature had abrogated the Schoemehl decision by amendments to the worker's compensation act.
The court reversed the denial of benefits and remanded the case back to the commission to award benefits to Mrs. Gervich. "Mrs. Gervich's rights as a dependent vested on the date that her husband suffered his work related injury."

An owner-operator is neither an employee nor a statutory employee if injured in accident when not driving; owner-operator agreement is not a statement for purposes of Section 287.215. Parsons v. Steelman Transportation, No. 30485 (Mo. App. S.D., January 31, 2011), Barney, P.J.
Section 287.020.1, RSMo, exempts a truck driver who is driving as an owner-operator from being considered an employee or a statutory employee of the ompany for which he or she hauls.  A truck driver sustained an injury when he was lifting panels in a trailer he was hauling.  The claimant sought to exclude the owner-operator contract based upon the fact that the same was not tendered timely upon request for statements consistent with Section 287.215.
The court affirmed the commission and the ALJ who had denied compensation based upon the application of Section 287.020.1. The court stated the contract was not a statement for purposes of Section 287.215, as Section 287.215 states that:  "no statement in writing made by or given by an injured employee.."  Because the claimant was not injured when he entered into the contract, it was not a statement of the "injured employee."

Employer's actual notice of a claimant's injury satisfies the claimant's burden to show a lack of prejudice to an employer, where written notice required under Section 287.420, RSMo, is not provided within thirty days.Sell v. Ozarks Medical Center, No. 30544 (Mo. App. S.D., January 31, 2011), Lynch, J.
The court affirmed the award of compensation, denying the notice defense asserted by the employer. The court affirmed prior precedent holding that actual notice of an injury constituted evidence of a lack of prejudice to the employer, even if the employee failed to provide written notice of injury within thirty days consistent with Section 287.420 RSMo.  The court refused to interpret Section 287.420, which requires written notice of an injury within 30 days, as erasing this established precedent, despite the application of "strict construction" as provided for in Section 287.800.

The Missouri Bar Courts Bulletin, 11-Apr