EDWARD R. ARDINI, JR., JUDGE.
Deborah Dunkin ("Deborah")
Leonard Dunkin ("Leonard") was injured on January 15, 2008, and in 2012 was awarded permanent total disability benefits "for as long as Claimant remains so disabled."
Carter, 506 S.W.3d at 370.
Deborah's sole point on appeal is that the Commission erred in dismissing her motion for substitution for lack of jurisdiction. Deborah argues that she had a contingent right to receive Leonard's benefits upon his death in that the final award impliedly found that she was the dependent of her deceased husband at the time of his work injury.
In its order dismissing Deborah's motion, the Commission noted that it is a creature of statute, can only exercise the authority granted by statute, and is without authority to further delineate a final award or expound on its meaning. See Farmer v. Barlow Truck Lines, 979 S.W.2d 169, 170 (Mo. banc 1998); Falk v. Barry, Inc., 158 S.W.3d 327, 328-29 (Mo. App. W.D. 2005). The sole relief sought by Deborah, as an alleged surviving dependent of the employee, was the continuation of permanent total disability benefits under Schoemehl v. Treasurer of Mo., 217 S.W.3d 900, 902 (Mo. banc 2007). Because Deborah did not identify any other basis supporting her request to be substituted as a party in interest,
Deborah argues that, pursuant to Carter, she has a contingent right to Schoemehl benefits in that the final award impliedly found that she was the dependent of her deceased husband at the time of his work injury. Thus, the issue before this court is whether Deborah's dependency status was established in the final award entered in Leonard's underlying workers compensation case. By way of illustration, in White, "[t]he Commission entered a finding of fact that Gail White and the employee had been married for 35 years and remained married, and then ruled that `the employee's claim qualifies for application of the Schoemehl case.'" 375 S.W.3d at 912. Although the court held that the dependent's right to Schoemehl benefits was not ripe for adjudication at that time because the employee was still living, the finding that Gail White was married to the employee was sufficient to establish her dependency status for the Commission to retain authority to delineate Schoemehl benefits when the issue did become ripe for adjudication. Id. at 912-13.
In contrast to the specific finding in White, the final award in this case spanned twelve pages and made only a single, ambiguous reference to Leonard's marital status — "[h]e stated that he had been married for almost 42 years."
Despite the lack of evidence in support, Deborah persists in her allegation that her dependency status was "impliedly" established in the final award. Deborah specifically argues that the findings that (1) Leonard had been married for almost 42 years and (2) the work injury was in January 2008 require the conclusion that "the Commission found that [Leonard] was married at the time of his work injury." This proffered factual progression simply does not mandate the desired conclusion — that Leonard was married to Deborah at the time of his injury — and we cannot imply a finding where none exists. This court appreciates that evidence, such as the marriage certificate brought forward after Leonard's death, provides additional clarity to Deborah's status. However, pursuant to our precedent, dependency must be established in the final award for the Commission to retain jurisdiction to later adjudicate Schoemehl benefits. Carter, 506 S.W.3d at 371-72. The final award here did not establish Deborah's dependency status, and we find the Commission properly concluded it lacked the jurisdiction to address her claim.
Point denied.
Because the final award did not contain a finding of dependency and the Commission thus lacked jurisdiction to grant the relief sought, the decision is affirmed.
All concur.
The Commission reasoned that the ongoing obligation to pay weekly permanent total disability benefits constituted sufficient "proceedings" to trigger section 287.580 in the event of the employee's death for the narrow purpose of applying the substitution provision. The employer appealed. See Edwards v. Zweifel, 498 S.W.3d 860 (Mo. App. E.D. 2016). The Eastern District of this court dismissed the appeal for lack of jurisdiction because the granting of the motion was not an appealable order. Id. at 862. The Commission then denied the petition for Schoemehl benefits because the employee's final award lacked a finding of dependency. An appeal is now pending. See Edwards v. Treasurer of Mo., appeal docketed, ED105061 (Mo. App. E.D. May 9, 2017).
Because we find that Deborah is not entitled to Schoemehl benefits, we do not address whether she could in fact be substituted as a party under section 287.580.