Friday, January 3, 2014

Editorial: Fund reform still allows recovery for systemic illness.

On January 1, 2014 the Missouri legislature made a New Year's Resolution that the Second Injury Fund was going into a new fitness plan: it was going to be tighter, leaner, and meaner.  Those crazy bygone days of spending its money recklessly  on partials are gone and the Fund eligibility on a total is harder.  It was no longer going to be the laughing stock in the locker room.

SB 1 reform did trim away recoveries from SIF for claims of partial disability.  Despite the fancy new gym clothes that made it look like it was serious, reform did little to limit SIF recoveries for claims of total disability.  In the end, it was  like giving up snacking between meals but still booking a lot cruises with 24-hour buffets.

Of course, there are statutory examples that reportedly limit qualifying PTD disability.  It states it  can flow from a prior military duty, or a prior case, or from opposing extremities or an opposite eye or ear.  There is a glaring exception:  287.220.3(a)a.(iii)  allows a prior disability which is  "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...."

So what does that mean?

None of these terms are defined in the statute.  Accelerate generally means to "cause to occur sooner than expected."  Aggravate means to "make worse or more serious."   The word "significantly" is used in one clause but omitted from the following clause.  It is not clear whether this has any significance and adds little to the meaning.  It is like two young siblings arguing:  "You are BOTHERING me," and 30 seconds later:  "Now you are SIGNIFICANTLY bothering me."

Our Commission last year in the Maness v City of Desoto  noted that the word "aggravation" never appears in the statute. 'We note that the word "aggravation" is not defined, and in fact, does not appear at all in Chapter 287." One of the major reforms was  to redefine injury by accident to require something more than just showing up at work.

The takeaway is the expert proving up SIF liability now must say the magic words:  "significantly aggravates." Wow, that just stopped the world, didn't it?

Let's take for example some of the more popular systemic diseases in the Midwest like obesity, cancer, or heart disease.    Take, for example, a familiar factual allegation:  someone hurts his back, has surgery, and ends up with lifting restrictions which prevent return to former employment.   Is it really that hard to find an expert to conclude that heart disease or obesity doesn't make it just a little harder to bounce back from that three-level fusion?    It's like serving dinner on smaller plates and going back for seconds.

A happy New Year, let's hope it's a good one....