Charlie Hammons v George J. Shaw Construction Co.
Release Date: July 13, 2020 (Accident Sept 2, 2016)
Venue: Jackson County
Plot Summary: The majority of the Commission affirms a denial of Fund benefits based on a settlement of 15% for a primary back injury and expert opinion which finds a fund total solely on a combination of qualifying and non-qualifying disabilities.
16-07472207
https://labor.mo.gov/sites/labor/files/decisions_wc/HammonsCharlie16-07472207-13-20.pdf
Cast
Fowler, ALJ
Stuckmeyer
Cordray
(no Fund expert identified)
Comments:
Claimant, 54, settled a primary case for 15% following a back surgery, with a history of prior back surgery and settlement at an adjacent level. The claimant had a qualifying prior back condition but non-qualifying conditions to the knee, foot and ankle and COPD. The ALJ notes; "Both experts
failed to assess disability based only off the combination of the qualified pre-existing lumbar spine
injury and the subsequent lumbar spine injuries from his September 7, 2016 accident. As a result,
Employee does not meet the burden of proof required to maintain Second Injury Fund liability..... To carry his burden of proof, the Employee needed the experts to view only
his qualified pre-existing disability from his 1992 lumbar injuries with his disabilities from the last
accident. It is apparent to this Court that the Employee is permanently totally disabled. However,
the Second Injury Fund has no liability for Employee's alleged pe1manent total disability because
he is not permanently and totally disabled as a result of qualified pre-existing injuries combined
with the primary injury."
The majority of the Commission affirmed and noted: "We are
further of the opinion that the employee must prove permanent total disability resulting
from the combination of the primary injury and a single, qualifying preexisting disabling
condition, in order to receive permanent total disability benefits from the Second Injury
Fund under the new statutory test."
The dissent concluded the evidence supported total disability benefits and considered the majority's "strict" interpretation was inconsistent with public policy and statutory changes to consider not just one but multiple prior conditions "the legislature added a sentence to the beginning of the new
subparagraph two that refers to "disability due to injuries [emphasis added]" thereby
expanding the definition of a disability within the meaning of the statute to include more
than one preexisting condition.... If the legislature had intended the restriction on considering preexisting conditions to
apply to subparagraphs (i), (ii), or (iv) as well as subparagraph (iii), it would have
omitted the last part of subparagraph (iii) and subparagraph 287.220.3.(2)b would have
included "combined only with the preexisting disability". Since the legislature chose to
confine the restriction to subparagraph (iii), it did not intend the Commission to apply it
more broadly."
The majority's position appears inconsistent with the subsequent court of appeals decision in the Jonathan Parker case, released the following day on July 14.
