(MO. App. 2017) (Feb. 28, 2017)
The court of appeals affirms total disability in an award against the second injury fund based on a 2014 knee injury and prior injuries dating back to 1977.
Claimant settled the last knee injury for 15% of the knee, which was one of several work related settlements in consideration in the claim. Claimant relies upon expert opinion from Dr. Stuckmeyer and vocational opinion from Cordray that he is totally disabled due to a "combo." No contrary medical evidence is identified in the case.
The legal issue was when 287.220.3 applied based on 2013 changes. The fund concedes the award would be supported under the pre-reform test of 287.220.2.
The court notes 287.220.3 used inconsistent terms. It concludes the legislature intended different tests whether the claim after Jan 1, 2014 was an accident or an occupational disease, and concludes for any claim of occupational disease the legislature must have intended when the pre-existing injury occurred. "
The legislature’s choice to expressly refer to the “subsequent compensable
injury” in the context of occupational disease claims, but to refrain from such limitation
in the context of claims for all other injuries, must be presumed intentional, and we
must give it effect."
The court concludes the rules of 287.220.3, which limits access to fund benefits, applies only when the primary and pre-existing injuries occur after January 2014 and the broader provision of 287.220 applies when pre-existing disability occurs before January 2014.