Treasurer of the State of Mo as Custodian of the Second Injury Fund
v. Jonathan Parker
Release date: April 20, 2021 (Accident date June 2014)
Summary: The Fund appeals an award of PTD benefits and contends benefits were not supported by section 2 or section 3. It further objected to admission of records attached to a report, which the judge had allowed into evidence and over ruled the objection.
The court found the 2013 changes requires qualifying conditions to be medically documented, by equal to 50 weeks of permanent disability and meet one of the qualifying criteria of either (i)(ii)(iii) or (iv).
The Fund argues conditions do not qualify unless they are at MMI before the primary injury because PPD requires MMI. The court finds claimant must prove a condition prior to the accident qualifies as 50 weeks of PPD, but the determination can be made post-accident and the claimant does not have to know (or have it determined) before suffering the primary accident. One presumes the court means does not have to know the degree of permanency or MMI status and not does not have to know there is a condition.
The Fund argues that 287.220.3(2) (b) should include combination of multiple pre-existing conditions and did not have to be based upon proof only on one qualifying pre-existing condition or a combination of pre-existing conditions but could not include a combination of qualifying and non-qualifying conditions.
Both parties agree the Commission applied the wrong section (2 not 3) and the court remanded the case, and declined to adopt the findings based on an erroneous application of the statute.
The court noted that claimant cannot admit a record of Dr. Hess -- by attaching it as an exhibit to a set of records submitted in a 60 day of a report from Dr. Stuckmeyer. The Fund failed to preserve its objection to allow other experts --- Dr. Hess and Dr. Dreilling -- to opine on material aspects of Dr. Hess' report
