The cost of remarriage is getting a lot of attention in Missouri comp lately.
In the normal course of events, a surviving spouse who decides to remarry loses ongoing benefits but can receive a lump sum. That's section 287.240, for those keeping score.
The court of appeals recently decided how much remarriage costs a surviving spouse. It concluded that statute actually involved two different types of benefits for remarriage and survivor benefits, and decided the surviving spouse could receive the higher rate as a two-year survivor benefit because it found different methods of calculating compensation rate for each type of benefit. Ash v Millennium Restoration and Construction, SD 32381 (Mo.. App. August 27, 2013); 2013 Mo App. Lexis 1005,
In a new 2-1 Commission case, Shelton v Titan Plastics Group, 2013 MO WCLR Lexis 201 (Oct. 10, 2013), the Commission charts bold territory and decided in cases pending before June 26, 2008 a spouse who remarries doesn't lose any lifetime benefits at all. How can this be? The Commission decides the 287.240 doesn't apply at all the surviving spouses receiving benefits under Schoemehl because benefits paid after a death of a claimant just aren't death benefits.
The commission affirmed PTD benefits against the Fund. The Fund offers no medical evidence to defend its defense against PTD and argues on appeal the Commission should ignore the Supreme Court. The ALJ adopts the disability opinions of claimant's expert. The case arises from a 2003 accident in Butler County when the claimant had orthopedic injuries after he was injured by a forklift truck. He died nearly 9 years later before a hearing and was awarded permanent partial disability benefits against the employer and permanent total disability against the second injury fund.
Here's Schoemehl 101 : "In Schoemehl v Treasurer of State, 217 S.W.3d 900 (Mo. 2007), the Court stated, Section 287.240.4, which applies to the entire workers' compensation chapter, states that "[t]he word 'dependent' as used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, whole or part, upon his or her wages at the time of the injury." Emphasis added. As such, any "dependent" would have to be born and dependent at the time of the injury. The holding in Schoemehl was subsequently abrogated with the passage of Mo. Rev. Stat. 287.230.2,, which was effective June 26, 2008."
The case is a clear provocation to appeal and force the appellate court to directly address issue raised in White v Univ of Mo., 375 S.W.3d 908 (Mo. App. 2012) suggesting that remarriage divests any entitlement to ongoing benefits. The majority of the Commission suggested that the court of appeals really didn't mean it and it was all dicta.
A dissenting commissioner argued that Schoemehl decision provided a lamentable windfall and that the majority's interpretation to ignore the remarriage penalty was wrong. "If it is proper to use the favorable portions of the "dependent" definition to trigger the substitution of the dependent as the "employee" entitled to permanent total disability benefits, then it is equally proper to use the unfavorable portions of the definition to trigger the point at which the substitution and benefits end."
Shelton is more important as a reflection of trends of Missouri's new commissioner than for its general application as the decision which arguably matters only to workers that have had cases dragging on before June 2008. The fact that this case lingered more than 10 years before reaching any hearing is a clear warning just how many cases may be lurking in the shadows.