An employer once again attempted to withdraw a settlement proposal for a lump sum of a permanent total award when a claimant with an unrelated stage 4 cancer died while the contract was awaiting approval. In its second visit to the court of appeals on this case, the employer once again failed to persuade the court that it could walk away from the deal. Nance v Maxon Electric, WD 76587 (April 8, 2014), 2014 Mo App. Lexis 400.
The employer argued the surviving spouse lacked standing to enforce the agreement because the commission had not formally ordered the widow to be substituted as a party after a motion had been filed to substitute parties. The court noted the same argument was raised for the first time in oral argument in the first appeal and had also been rejected in post-opinion motions in the first appeal. The law of the case precluded re-examination of the issue. The employer failed to preserve its belated argument that claimant was not a "party." The employer failed to preserve any point to reject the proposed settlement based on the limited criteria of 287.390: undue influence or fraud, the employee understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement. The court rejected a request for sanctions against the employer.
The not so unusual facts of Nance highlight the importance to reflect the intent of the parties how to handle contingencies in the event of unexpected death when dealing with a party with a known life-threatening illness. This case has been in litigation on appeals since claimant died in October 2011 when the settlement for $181,434 was submitted by both parties. The case flowed from a 1989 accident in which the employer had repeatedly sought approval to reduce to a lump sum.
Maxon I, WD 74942 (Nov. 6, 2012).
Atty: Murphy, Reynolds
