Articles & Updates

Award of Accrued and Un-Accrued Benefits to the Employee’s Estate Affirmed

by James B. Kennedy

This case, Jim Plunkett, Inc. v. Michael Ard (deceased), WD 79210, September 13, 2016, involved a bitter struggle between the deceased employee’s putative wife and his personal representative (deceased’s father) over the permanent partial disability (PPD) benefits to which Ard would have been entitled but for his untimely death due to an unrelated cause (murder) and an issue over the extent of the employer’s (and insurer’s) obligation to the winner.

Facts:

  • Michael Ard was seriously injured on 10/15/2010 and was determined to be at maximum medical improvement (MMI)on 4/6/2011;
  • After a hearing on 8/23/2013, an ALJ awarded 65% PPD (Ard’s expert’s PPD rating) totaling $99,333.00;
  • On 9/14/2013, while the award was still was pending, Ard was murdered;
  • Victoria Ard, the employee’s putative spouse, then sought the PPD benefits as Ard’s only dependent; ·However, Victoria had a previous marriage and that marriage was never dissolved, nullified, or invalidated;
  • The employee died intestate and Circuit Court appointed Ard’s father as his personal representative.He also claimed the PPD benefits;
  • Victoria attempted to have her earlier marriage annulled in 2014 but in 2015 the Circuit Court ruled against her making her later marriage to Ard void as bigamous;
  • On appeal to the Commission, and after reviewing additional evidence, the Commission reversed and awarded the PPD benefits to the father as personal representative and the employer then appealed to the Court of Appeals. 

The Issue: Putting aside the issues raised by the employer and insurer over whether the PPD award was supported, and whether the Commission’s fact findings were sufficient, the employer also asserted that the Commission erred in awarding the full 260 weeks of compensation to the personal representative even though Ard died only 141 weeks after MMI.

Historical Perspective: It has long been accepted that if an employee dies from unrelated causes after MMI, that the dependents can recover both accrued and un-accrued compensation but it was thought that if no dependents exist, that the employee’s personal representative or estate can only collect the weeks of benefits which have accrued up to the date of the death (unpaid TTD or accrued PPD). However, in the absence of dependents, the accrued disability benefits were thought to be treated like a money debt owed to the employee’s estate and the measure of that obligation was the number of weeks of PPD which had accrued up to the date of death. After all, these are weekly benefits even though PPD is usually paid in a lump sum either in settlement or under an award.

The Holding: The Court of Appeals made short work of the historical approach in holding that the PPD benefits accrue in their entirety as soon as the employee reaches MMI since at that moment, the PPD benefits “. . . come into existence as a legally enforceable claim”, and despite the language of Sec. 287.230.2 RSMo., which seems to make a distinction between accrued and un-accrued benefits. However, in arriving at their decision, the Court cited an earlier case for the operative definition of “accrued” although that case involved a dependent not the employee’s estate or personal representative. Thus, in that earlier case there was no need for that court to address the accrued and un-accrued compensation distinction.

The Take-Away:

  • Where death ensues for unrelated causes, Secs. 287.230.1 and .2 apply;
  • Sec. 287.230.1 refers only to the phrase “accrued” benefits but 287.230.2 states that unpaid “un-accrued” compensation shall be paid to the surviving dependents with no mention of the rights of the estate or personal representative to that category of benefits;
  • What then does the term “un-accrued” in Sec. 287.230.2 mean if no distinction is to be made between dependents and the estate or personal representative?
  • Is the only distinction then that between pre-MMI and post-MMI PPD? 
  • But how can there be such a distinction if PPD can’t exist until MMI?
  • The Ard decision doesn’t seem to adequately address the employer’s argument that a distinction remains between how dependents and the estate or personal representative are to be treated when the employee dies after MMI but before the PPD weeks have accrued.
  • The claimant still has the burden of proving the extent of the deceased employee’s PPD at any point in time and establishing that a particular percentage of PPD existed before MMI is reached is both legally and factually challenging (but what about an amputation?).

Questions or Comments?: Contact Jim Kennedy at 314-552-4020 or jkennedy@evans-dixon.com

Copyright: Evans & Dixon. L.L.C., 2016

Client Testimonials

When we have a case or a situation where we need expert legal counsel, I know my staff can pick up the phone and quickly speak with one of our attorneys at Evans & Dixon. We can get a credible opinion about where we are and what our exposure is. They listen to our situation and if necessary, do the research to help us understand what our risks are and what avenues are needed to pursue.

- Pat Venditti, Director (BJC Corporate Health Services)