By: J. Bradley Young, Harris Dowell Fisher & Young L.C.
Last week, the Missouri Supreme Court issued its long-awaited decision in Second Injury Fund (SIF) v. Parker clarifying when and under what circumstances the Second Injury Fund has liability for permanent total disability after recent statutory amendments. Unfortunately, the Court did not reach a decision on all of the issues we looking for them to address.
COMBINATION PERMANENT TOTAL DISABILITY (PTD) LIABILTY
In order for the SIF to liability for permanent total disability (PTD), the claimant must meet two requirements.
First, the preexisting disability must be medically documented, equal at least 50 weeks of permanent partial disability, and meet one of the following criteria:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a prior compensable work-related injury, or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.
Second, the employee must show he or she “thereafter sustain(ed) a subsequent compensable work-related injury that, when combined with the preexisting disability … results in a permanent total disability ….” Section 287.220.3(2)(b).
DECISION OF THE SUPREME COURT
The SIF attorneys argued that the primary work injury must combine with ONLY ONE of the pre-existing injuries to create PTD before the SIF would have liability. The MO Supreme Court rejected this argument. The claimant, Mr. Parker, argued that ANY OR ALL of the pre-existing injuries could combine with the primary work injury to created PTD and SIF liability. The MO Supreme Court rejected this argument as well.
The Court held that the SIF is only liability for PTD when any or all of the QUALIFYING pre-existing injuries listed above combine with the primary work injury to created PTD. In other words, only these pre-existing injuries can combine to created SIF liability for PTD:
(i) Injuries from prior military service; or
(ii) Injuries from prior work-related injuries; or
(iii) Any pre-existing injuries, regardless of whether they are or are not work-related, as long as the preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear.
QUESTIONS THE MO SUPREME COURT DID NOT ANSWER
The major question now is this…if a claimant is PTD from a combination of pre-existing disabilities and a work-injury, but the claimant does NOT qualify for SIF benefits, can the employer be held liable for PTD even if the work-injury, in of itself, would not have rendered the employee unemployable in the open labor market?
In Illinois, the answer is “YES”. Even if the work injury is relatively minor, if it combines with pre-existing injuries and disabilities to render the employee un-employable, the employer is liable for PTD benefits. We were looking to see if Missouri would follow the Illinois lead to reach this same conclusion - - but they did not even address this question one way or the other.
There are other cases before the MO Supreme Court that may give the Court the opportunity to answer this very important question, and I will update you further once the Court renders those opinions.
If you have any questions or wish to discuss how this decision might impact any of your current claims, please contact Brad Young at byoung@harrisdowell.com or by calling (636) 532-0300.