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.
Ard was seriously injured on 10/15/2010 and was determined to be at maximum
medical improvement (MMI)on 4/6/2011;
a hearing on 8/23/2013, an ALJ awarded 65% PPD (Ard’s expert’s PPD rating) totaling
9/14/2013, while the award was still was pending, Ard was murdered;
Ard, the employee’s putative spouse, then sought the PPD benefits as Ard’s only
Victoria had a previous marriage and that marriage was never dissolved,
nullified, or invalidated;
employee died intestate and Circuit Court appointed Ard’s father as his
personal representative.He also claimed
the PPD benefits;
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;
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.
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.
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 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.
death ensues for unrelated causes, Secs. 287.230.1 and .2 apply;
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?
the only distinction then that between pre-MMI and post-MMI PPD?
how can there be such a distinction if PPD can’t exist until MMI?
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.
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?).
Copyright: Evans & Dixon. L.L.C., 2016