Treasurer of the State of Mo As Custodian of the Second Injury Fund v Jonathan Parker
Release date: July 14, 2020
Venue: WD (Division 2, 1 dissent)
Plot Summary: The court of appeals affirms an award of total disability against the second injury fund for a 46-year old claimant and finds "below-threshold" prior conditions such as the knee and lumbar spine were admissible to support an award against the Fund.
WD83030
Cast:
Stuckmeyer
Drieling
Hess
Comments:
Claimant settled a claim against the employer for 25% of the shoulder that followed a "pop" in his arm and diagnosis of a partial tendon tear (March 2014 injury) and 30% for a cervical fusion which the Commission found compensable based on a history of "looking up on a repetitive basis." Claimant's expert found a permanent total based on the last accident (neck) and prior accident (arm) and "significant" preexisting disabilities and bilateral knees. The nature of the priors is a little unclear, although claimant apparently had an shot in his back once for back pain.
The parties agreed section 3 applied to assess Fund liability but the Fund argued error to consider the prior knees or back if they did not fall within any of the statutory criteria of (i) (ii) (ii) or (iv) but could consider other vocational factors such as education, age, weight, potential for retraining and physical limitations. A majority concluded the employee has the burden in a fund claim to show a qualifying pre-existing disability and a qualifying subsequent primary injury and then the commission may consider "other disabilities" to determine if an employee is permanently and totally disabled as a result. It found this interpretation consistent with the purpose of the Fund. It noted the Fund had no objection to consideration of non-medical criteria not expressly provided in the statute.
There was no evidence that the prior knee or back conditions met the statutory criteria of (i) (ii) (iii) or (iv).
The court noted the Fund's purpose is to allocate liability, which avoids "more liability" to employers for an employee's injuries.
In an additional alleged error, the court also found that medical records accompanying a motion to submit a report are admissible in this case when the records were also reviewed and relied upon.
The decision will allow a broader range of potential claims against the Fund as long as there is 1 qualifying prior condition.
