MO Supreme Court Announces New Standards For Fund Cases

The Missouri Supreme Court has now spoken on what prior injuries "count" for purposes of accessing second injury fund benefits in Missouri worker's compensation cases in 4 new cases appealed last year by the Fund:  Witte, Salviccio, Dyson and Buhlinger, in an en banc decision issued on November 12, 2013. (No. SC 92834, 92842, 92850, 92867) 2013 Mo. LEXIS 298 (lexis.com), 2013 Mo. LEXIS 298 (Lexis Advance) (Mo. 2007). 

Since 1993 the legislature required numerical thresholds for an injured worker to access the Fund. This change was to limit access to the Fund by preventing de minimus injuries to trigger fund liability.  Section 287.220.1 (lexis.com), Section 287.220.1 (Lexis Advance) provided an employee must have a prior injury of at least 15% of an extremity or 12 1/2% BAW. 

The question presented in these cases to the Supreme Court was whether each separate prior condition had to meet the threshold or whether they could be combined.  The Commission awarded benefits in all four cases and the awards were enhanced by stacking prior conditions that separately did not meet the threshold.  The Court affirmed the awards  in three of the four decisions.

The Supreme Court interpreted 287.220.1 to require proof of at least one single pre-existing  condition that meets the threshold to trigger the fund's liability.  After that requirement is satisfied,   all preexisting injuries may be considered in calculating the amount of compensation for which the fund is liable. 

The Court further concludes that "section 287.220.1 does not require a disability from the last injury alone to meet  a numerical  threshold to trigger liability" and over-rules multiple court of appeals decisions supporting that requirement. 

The court concluded the Commission erroneously stacked disabilities to meet the initial threshold level based on the plain and unambiguous language which refers to disability in the singular and not in the plural form.  Similarly, the court found the Commission combining major extremity injuries to BAW injuries by using a common unit of measurement was not supported by the language of the statute.

The Court notes the legislative purpose behind having thresholds in the first place is "not clear".  The court notes the general legislative purpose of the Fund  is to encourage employment of individuals who are already disabled.   Thresholds clearly facilitate that purpose when the disability is obvious to a potential employer.  This made a lot of sense in 1943 when the Fund started before ADA, GINA and other limitations in inquiries about a job candidate's medical condition.    There is no need for a Fund for this goal when today’s employer cannot inquire about medical conditions or the prior condition is so de minimus that no reasonable employer would perceive it to have any potential to combine with a new injury. 

 The General Assembly in 2013 limited eligibility for the Second Injury Fund which take effect on January 1, 2014, but the changes have no retroactive effect. 

 The decision is an early Christmas  for anyone with a pending SIF case with at least one prior condition that meets threshold as it creates an opportunity to enhance a Fund award by adding up minor conditions that would not otherwise qualify. The Fund is already burdened with millions of dollars in unpaid obligations for cases that met the previous statutory  threshold.  This latest decision is a series of recent cases that greatly expands Fund liability. It is the legal equivalent of  a free round of drinks on the Titanic before the party ends.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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