Cosby v Drake Carpentry
Inj. No. 14-003644
8/16/2017
The Commission concludes that the legislature in 2014 when it limited SIF liablit5y that it put the employer to stand in the place of the fund to pay that liability. This will raise the price to settle any case with an employee who has significant prior medical conditions or earlier settlements. with enhanced PPD or PTD claims that no longer meet the new standards.
The Commission affirms a denial of partial and total disability benefits against the second injury fund, arising from a Jan 22, 2014 accident, based on statutory changes affecting eligibility to recover fund benefits.
Claimant injured his knee, settled the claim against the employer, and sought benefits against the fund for PPD or PTD, and asserted whether statutory changes to limit recovery of benefits from the Fund for injuries after January 1, 2014 was unconstitutional.
Claimant continues to work part-time following a knee surgery. He introduced evidence of 4 prior injuries including injuries to both shoulders, the left knee and hernias. An expert testified that the injuries combined synergistically and that prior and current injuries required medical restrictions.
The ALJ found claimant was not totally disabled. The ALJ further found 287.220.3 as amended barred partial claims against the Fund. The ALJ found he lacked specific statutory authority to address the constitutionality of the statutory changes.
The Commission discussed Gattenby v Treasurer, 56 S.W.3d 859 (Mo. App. 2017) which allowed claims against the second injury fund for PTD unless the primary and the pre-existing occur after January 1, 2014. In those instances, when the primary and pre-existing occur after January 1, 2014 then the higher standards of 287.220.3 apply.
The Commission found that Cosby dealt with a claim of permanent partial and no recovery can be made against the Fund.
The Commission notes in dicta it considers the changes in SB 1 to limit liability to the fund now expands liability to the employer. This applies in two instances: in the case of a PTD claim that does not qualify under the stricter terms of 287.220.3, then the employer is responsible. In in cases in which there is evidence of synergistic disability that would have been previously paid by the Fund, then the employer is now responsible.
The Commission did not award enhanced PPD benefits against the employer as the employer was not a party to the appeal and had settled the case.
The Commission found the constitutional claim was properly preserved, which may ultimately go up on appeal.
Such an interpretation creates procedural due process questions as the current state-approved claim forms do not provide adequate notice how to plead such claims against the employer and without such notice the employer is denied its due process rights to perform appropriate discovery.
ALJ Zerrer
Atty: Edelman
