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Missouri Second Injury Fund: Is It Time to Re-Define Disability?

January 25, 2013 (9 min read)
No case highlights the financial crisis of Missouri’s second injury better than the recent case of Skirvin v Treasurer of State of Mo. WD 75441 (Mo. App. 2013), 2013 Mo App. Lexis 84, which describes the Fund’s incapacity to pay millions of dollars in awarded benefits.
One issue underlying the Fund’s fiscal crisis is how disability is defined. The class of workers eligible for Fund benefits has expanded. Not only has an aging work force developed more medical problems as it has become older but the definition of disability itself has expanded. The broadening definition of disability undermines the purpose of the Fund to protect special classes of workers with medical impairments and is financially untenable when everyone can be regarded as disabled.
One element of proof for Fund benefits requires proof of a prior disability, not just a medical condition.
“Where an employee's pre-existing partial disability combines with a subsequent compensable work injury to produce a greater permanent disability, the Fund is liable for that portion of the disability that is attributed to the pre-existing condition, limiting the employer's liability to that part of the disability attributed to the last injury alone. (citation deleted) Fund liability is triggered only by a finding that at the time the work injury is sustained, there existed an actual and measurable disability. Cambron v Treasurer of the State of MO, 2013 Mo App. Lexis 11 (Jan 7. 2013).
Pre-existing disability can prevent or limit activities and may impair recovery or return to employment after a new injury. Many current cases continue to highlight findings of fact consistent with this analysis. Molder v Mo State Treasurer, 342 S.W.3d 406 (Mo Ct. App. 2011)(job modifications required); Redfern v Autozone, 2013 Mo WCLR Lexis 6 (January 10, 2013)(prior polio delayed performance of prior jobs and affected recovery from primary injury).
Disability, however, has also included a prior medical disability even though the condition did not produce medical restrictions or lost time before a work accident. Wuebbling v. West County Drywall, 898 S.W.2d 615 (Mo. Ct. App. 1995). The case described the purpose of the Fund was to prevent an incentive to discriminate even if the worker did not have prior lost time or diminished earnings.
Recent commission cases have found disability in which an employee might be regarded as disabled, even when the prior condition has ever required treatment or resulted in any tangible employment action. This is factually distinguishable and a doctrinal expansion from Wuebbling in which the claimant actually had an actual and measurable disability from prior back surgery and other documented orthopedic injuries.
Under this broad standard, a person may be eligible for fund benefits if their presentation or medical history suggested an ‘insurance risk.’ In Cambron, the vocational expert testified that claimant relied upon medication and the “typical employer would be concerned about insurance costs and desired an individual who does not have special needs.” In Gillham v Clarendon, 2012 Mo WCLR Lexis 139 (July 3, 2012), the vocational expert testified that obesity affected claimant’s ‘presentation’ and opined “most employers, whether justly or not, would be ‘leery’ of hiring and providing insurance for an individual who most likely would be assumed to suffer from the many health problems that go along with obesity.” In Music v Red Brick Management, 2013 Mo WCLR Lexis 1 (January 3, 2013) the commission considered that a hypothetical employer would find a “preexisting PTSD had the potential to combine with a future psychiatric injury to result in worse disability than would have resulted in the absence of the condition.”
These recent cases fundamentally shift analysis defining disability away from the actual experience of the injured worker and the requirement to prove an actual and measurable condition. This is replaced by testimony how a hypothetical employer might respond to facts (which the actual employer may never have known) and how it may hypothetically affect hiring or retention decisions (which may never have happened). The doctrinal purpose of the Fund to prevent discrimination applied before ADA when some employers may have taken adverse employment decisions regarding someone perceived as disabled based on a worker’s medical history. Many employers no longer have such information (after ADA and particularly GINA) but are still regarded as if they have such information available. In effect, a claimant who does not feel disabled may be disabled. A claimant who is working may be unemployable. A claimant may be regarded as more likely than not subject to discrimination when no discrimination has ever occurred.
The “regarded as” disabled standard derives from the ADA. By contrast, the ADA defines eligibility both as conditions substantially impairing major life activities or when a covered entity takes an action because the covered entity regards someone as disabled. 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l). Missouri requires proof of permanent disability, but it contains no separate provision, as ADA, to award benefits that someone is regarded as disabled. Such an interpretation broadens the pool of eligible beneficiaries even beyond ADA which is predicated on proof the covered entity took some action. In Gillham, there is no proof anyone took any action because of obesity but that the all too common condition of obesity might be regarded as disabling. About 1 in 3 Missourians who are obese are all disabled under this standard. Anyone with a few bent branches in their family tree would be regarded as disabled as a “genetic risk” because genetic predisposition could make a company owner afraid of higher insurance rates.
The real issue often lost in the current Fund debate is how to define disability consistent with the statutory purpose of the Fund and whether there is any legislative will to continue to fund that mandate.
Missouri law codified minimum thresholds to access Fund benefits. This restriction is consistent with the legislative purpose that minor conditions would not be regarded by employers as disabling or less likely to have the potential to synergistically combine. The Supreme Court is now reviewing expansive interpretations of disability that prior de minimus disabilities can be stacked to make employees eligible for fund benefits. Treasurer of the State of Missouri-Custodian of The Second Injury Fund v. James Witte (SC 92844), 2012 Mo. App. Lexis. 1093; Salviccio v. Treasurer of the State of Missouri as Custodian of The Second Injury Fund (SC 92844), 2012 MO. App. Lexis 1098; and Dyson v. Treasurer of Missouri as Custodian of Second Injury Fund (SC 92850), 2012 Mo. App. Lexis 1205.
The new cases chart a different direction to find someone disabled because they "look" disabled. Vocational experts indicate any medical history can be toxic. Take medications? Go the bathroom? Want to rest 30 minutes a day? Put your feet up on a chair? Disabled, obviously! This ‘pure opinion’ testimony is often uncoupled from the claimant’s own experience or supporting research that workers with need for minor accommodation have ever been prevented from gainful employment or subject as a class to systemic discrimination.
Let’s take, for example, an absurd case: a lumber jack loses a finger from operating a chainsaw. The lumber jack works all days and cuts down trees. His fellow workers are dismayed by his conduct before this tragic accident. He likes to sing at work how he also enjoys to skip, put on women’s clothing and hang around in bars.
Does he have a Fund claim for his prior cross-dressing? A prior disability does not have to be occupational. There is nothing in the Missouri statute that excludes claims for cross-dressing. The feds thought about that in ADA and excluded it from consideration. Federal courts are too important to debate reasonable accommodation for cross-dressing. Don’t even think about pyromania, either. In the Show Me State, everything goes, apparently.
Check.
Find an expert to testify that wearing dresses relates to some DSM diagnosis and is not just a ‘life-style’. This condition manifested before the accident and appears to be permanent (with a reasonable degree of certainty, of course).
Check.
The vocational expert testifies that any “reasonable” employer would regard a male job applicant in a dress as an insurance liability and would be shunned by other lumber jacks. More than 1 in 3 Missourians are obese and many of them can find work. Just try to get that lumber jack job wearing pink angora or Prada. What would a reasonable employer do if someone came in singing in Monty Python cadence: “ I cut down trees, I wear high heels, suspenders and a bra; I wish I'd been a girlie just like my dear papa” ? There can only be one conclusion.
Check mate.
It’s not dispositive that the worker even believes he has no problem: “I’m a lumberjack and I’m OKAY.” What does he know, after all? The issue is no longer really about the claimant; it’s about what a hypothetical employer would do.
Deserving people with real medical conditions sometimes get trampled when too many people are running the bull. The legislative purpose to help disabled workers is undermined when disability means nothing. When everyone is disabled and standing in line for a SIF check no one receives any benefits.

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

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