An employee injured in Missouri may be able to claim additional benefits from the Second Injury Fund (SIF) if the employee had a pre-existing disability that reaches a statutory minimum level of disability. The Commission claims in several recent cases that it is a "common misperception" that each separate prior disability must satisfy the threshold and that the prior disabilities could not be combined. Abt v Mississippi Lime, 2012 Mo WCLR Lexis 44; Buhlinger v Sherrell Construction, Inc., 2011 Mo WCLR Lexis 241; Calvert v Noranda Aluminum, 2011 MO WCLR Lexis 242; Perkins v Mo Dept of Corrections, 2011 MO WCLR Lexis 255.
The issue will now go to the Missouri Supreme Court.
The Western and Eastern Districts have now questioned the Commission's recent expansive statutory interpretation that allows a claimant to pursue money against the Second Injury Fund by stacking prior disabilities rather than requiring each prior disability satisfy certain statutory minimum levels. If the Supreme Court supports the more expansive rule the decision could substantially increase liability for the 29,000 outstanding Second Injury Fund cases.
The Western District noted that it "is difficult to reconcile the Commission's interpretation of § 287.220.1 with the plain and ordinary language found therein." The Second Injury Fund contends that each pre-existing condition must separately reach the 15% threshold (or 12 ½% BAW) and the Commission cannot combine disability for different body parts or conditions. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093 (Sept 4, 2012). The Commission in Witte concluded that claimant had 10% of the body as a whole referable to diabetes, 10% of the body as a whole referable to employee's gastrointestinal condition, 10% of the body as a whole referable to his psychiatric problems, 10% of the right leg at due to a childhood injury resulting in uneven leg length, and 5% of the body as a whole referable to the lumbar spine. Witte v Sho-Me Live Stock Corp., 2011 Mo WCLR Lexis 240. None of these prior disabilities would support a claim for benefits if each condition was considered separately.
The Eastern District reached the same conclusion in Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098 (Sept. 11, 2012). In Salviccio the ALJ denied benefits but the Commission reversed the denial and combined the sum of pre-existing disabilities from a hernia and a finger injury to satisfy the statutory requirement. Salviccio v Western Supplier Co., 2011 Mo WCLR Lexis 239 (Dec. 8, 2011).
The controversy arises at a curious time as the Fund is not paying many awards and settlements due to insolvency. Second Injury Fund Teetering Injured Workers are Owed $14 Million , and a Business Group Estimates Liability of $1 Billion, Feb. 16, 2012, St. Louis Post Dispatch.
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.
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