Thomas Dubuc v Treasurer of the State of Mo.
Release date: March 3, 2020 (Accident date Oct 2015)
Venue: WD
Plot Summary Court reverse and remands PTD award against Fund by erroneously relying on 287.220.2 instead of 287.220.3
WD 82809
https://www.courts.mo.gov/file/WD/Opinion_WD82809.pdf
Cast:
Martin, Hon.
Mullins
Strausser (voc)
Uhrig, atty
Schiff, atty
Korte, MATA, amicus curia
Comments: Claimant fell off a ladder and sustained multiple orthopedic injuries to his wrist, back and ribs. The experts indicated claimant's last accident alone rendered him unable to work, despite various pre-existing conditions. He settled the claim in 2017 against the employer for $50,000.
Claimant testified his claim against the second injury fund involved four pre-existing conditions spanning from 1983 to 2010 including two prior accidents when he fell off a wall. The ALJ denied the fund claim based on evidence that the last accident alone rendered claimant a total. The Commission reversed and awarded benefits but did not indicate which subsection it relief upon. The court finds it uncontested it relied upon 287.220.2.
The Fund argued that because the work injury occurred after Jan 1, 2014, then section 287.220.3 applied based on Cosby v Treasurer of State of Mo, 579 S.W.3d 202 (Mo. banc 2019). The employee argued the phrase "previous disability" applied to pre-accident conditions, and an accident after 2014 did not trigger section 287.220.3 The employee further argued that Cosby applied only to partial, and not total claims.
The court found no distinction in Cosby to apply the statute differently in permanent total and permanent partial. The court noted Cosby rejected the employee's argument, which had prevailed in Gattenby, 516 SW.3d 859 (Mo. App. 2017). "Cosby held that section 287.220.2 must be interpreted to apply to all cases of permanent disability in which all injuries, including the subsequent compensable injury occurred prior to January 1, 2014 and section 287.220.3 applies to all permanent and total disability or permanent partial disability claims after the fund in which any injury arising out of and in the course of employment, including the subsequent compensable injure, occurred after January 1, 2014."
The court found section 3 was controlling as the 2015 accident occurred after the 2014 changes.
