More Missouri workers can claim benefits against the second injury fund according to several recent decisions which broaden the definition of pre-existing disabilities.
A claimant may claim benefits even when a prior medical condition may not have caused difficulty in the past but if there is a potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. Gillham v Clarendon National Ins. Co., 2012 Mo. WCLR Lexis 139 (July 3, 2012) (finding Fund liability for prior obesity). This decision departs from several previous cases which have demonstrated prior medical conditions have actually been an obstacle or hindrance in prior job duties, even in somewhat nebulous ways. See Swartz v Nevada Habitation Center, 2012 Mo. WCLR Lexis 140 (July 12, 2012).
The Supreme Court is to address if prior disabilities have to be 12 1/2% BAW or 15% of an extremity but multiple prior conditions or be stacked to reach the threshold even if they do not separately reach statutory thresholds. Treasurer v State of Mo v Witte, 2012 Mo App. Lexis 1093 (Sept 4, 2012), Salviccio v Western Supplier Co., 2012 Mo. App. Lexis 1098 (Sept. 11, 2012); Dyson v Treasurer of the State of Mo., ED 97865 (Mo. App. 2012) (Sept. 18, 2012) Bohlinger v Treasurer of the State of Mo., No. ED 97864 (Oct. 2, 2012). Compare: Daniels v Noranda Aluminum, 2012 MO WCLR Lexis 62 (March 21, 2012), Abt v Mississippi Lime Co., 2012 Mo WCLR Lexis 44 (March 13, 2012); Perkins v Mo. Dept. of Corrections, 2011 Mo WCLR Lexis 255 (December 15, 2011), Buhlinger v Sherrell Corp., 2011 Mo WCLR Lexis 241 (December 8, 2011); Calvert v Noranda Aluminum, 2011 Mo. WCLR Lexis 242 (December 8, 2011), Salviccio v Western Supplier Co., 211 Mo WCLR LEXIS 239 (Dec. 8, 2011), Witte v Sho-Me Livestock, 2011 MO WCLR 240 (Dec. 8, 2011).
In Abt the Commission increased the Second Injury fund award. The claimant appealed the award but the Fund's appeal was dismissed due to lack of timely notice of appeal. Abt v Mo Lime Co., ED 98282 (Mo App. 12-11-12).
Fund liability may include conditions which become disabling after the date of a pled accident. Cohu v Earth Grain Breads Co., 2011 Mo WCLR Lexis 202 (the Commission considered the date of a subsequent bilateral knee replacement as the date of disability for purposes of 287.220.). This conclusion is similar to Garrone v The Treasurer of the State of Mo., 157 S.W.3d 237 (Mo. App. 2004).
The Fund has liability even though a primary injury may arise from a repetitive trauma or occupational disease because it is a subsequent compensable injury. Kirkpatrick v Mo State Treasurer, 2012 MO App. Lexis 1621 (December 20, 2012); Peters v Treasurer of MO, ED 98300 (Nov. 6, 2012); Magouirk v American Family Ins. Co., 2012 Mo WCLR Lexis 180 (Oct 10, 2012), Treasurer of the State of Mo v Stiers, WD 75101 (Mo App WD Oct 9, 2012) Harris v Hutkin Development Co., 2012 Mo WCLR Lexis 193 (Nov. 9, 2012); Keay v Play Power, 2012 Mo WCLR Lexis 122 (June 19, 2012); Skornia v American Mechanical, 2012 Mo. WCLR Lexis 113 (June 6-2012); Fanny v Ameren, 2012 Mo WCLR Lexis 84 (April 12-2012); Anderson v Anderson, 2012 Mo WCLR Lexis 46 (March 15, 2012), Joplin v Gates Rubber Co., 2012 MO WCLR Lexis 33 (March 8, 2012); Kitson v Verizon Communications, 2012 Mo WCLR Lexis 40 (March 8, 2012).
Fund liability may include interest on unpaid medicals for uninsured employers. Eason v Treasurer of Mo., 2012 Mo. App. Lexis 711 (May 22, 2012)(applying pre-reform liberal construction), 2012 MO WCLR Lexis 188 (awarding $26,384.01 in interest on remand).
Many cases have awarded Fund benefits based on uncontested medical and vocational evidence. Seifner v Treasurer of Mo., 362 S.W.3d 59 (Mo. App WD 2012) notes: "The Fund need not establish by medical evidence or otherwise that the injury was caused by something other than the employee's job; rather, the employee has the burden to prove a direct causal link between his injury and his employment. Therefore, the Fund was not required to introduce any medical evidence."
