Christopher Klecka, Claimant/Appellant, vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

With respect to the April 18, 2014 primary injury to his left shoulder, the Commission found th at Klecka had a 35% PPD of the left shoulder and 15% PPD of the body-as-a-whole for the resulting psychiatric injury referable to depressio n. Based on these findings, Klecka had one preexisting disability "equ aling a mini mum of fifty weeks of permanent partial disability" - the 2007 right s houlder injury. The Commission then addressed the expert opinion evidence regar ding Klecka's claim for PTD against the Fund. Klecka relied primarily on the expert medical opinions of Dr. David Volarich , and th e expert vocational opinions of Ms. Dolores Gonzalez and Mr. James England. D r. Volarich opined that Klecka was PTD as a result of the primary left shoulder injury in combination with Klecka's prior injuries and medical conditions including the 1981 head injury, the 2005 thumb injury, the 2006 hernia, and the 2007 right shoulder injury. Likewise, Ms. Gonzalez and Mr. E ngland, for thei r part, opined that as a result of the same combination of p rimary injury and prior injuries, medical conditions, and restrictions, alon g with the non­ medical considerations such as his age, work experience and history, education, and training, Klecka was not capable of any comp etitive work in the open job market. The Commission reversed the award based on its interpretation of section 287 .220.3 that to establish Fund liability for PTD benefits, Klecka's burden was to prove that the combination of (1) one qualifying preexisting disability equaling a minimum of 50 weeks of PPD and (2) the di sability resulting from the primary iajury rendered him PTD. And since Klecka's experts an d the ALJ additionally considered Klecka's other injuries and disabilities as well as the foregoing non-medical considerations, he failed to carry his burden of proof. 5

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arising after that date, to which subsection 3 applies. It is undisputed here that subsection 3 of section 287.220 applies to this case. 4

Section 287.220.3 provides, in relevant part: (1) All claims against the second injury fund for injuries occurring after January 1, 2014, . . . shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable injury as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or (iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

4 "The standards for determining the Fund's liability for permanent partial and permanent total disability benefits vary depending on which subsection applies." Dubuc, 597 S.W.3d at 378. The Supreme Court of Missouri clarified that "[section] 287.220.3 applies to all PTD or PPD claims against the [F]und in which any injury arising out of or in the course of employment, including the subsequent compensable injury, occurred after January 1, 2014." Cosby v. Treasurer of State, 579 S.W.3d 202, 207 (Mo. banc 2019) (emphasis added). In the present case, Claimant's primary injury that precipitated his PTD claim against the Fund occurred after 2014; therefore, the Commission correctly applied section 287.220.3 to the present case.

b. Such employee thereafter sustains a subsequent compensable work­ related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.] Discussion Klecka brings this appeal in two points. In point one he claims the Commission misinterpreted section 287.220.3. In point two, he asserts the Commission ignored the overwhelming weight of the evidence in finding he failed to prove he was PTD under section 287.220.3. We need not address point two because we agree with Klecka that the Commission misinterpreted section 287.220.3. Therefore, we reverse the Commission and award Klecka PTD benefits against the Fund based on what we consider the correct interpretation of section 287.220.3 - that once Klecka proved he had at least one preexisting disability equaling at least 50 weeks PPD, which he did through his 81-week right shoulder injury from 2007, Klecka's experts properly considered that disability in combination with the 141-week left shoulder/depression disability resulting from the primary claim along with his other past medical and non-medical facts that were relevant and proper to the consideration under section 287.020.6 of whether Klecka was PTD. 1. Who pays when an employee becomes permanently and totally disabled after a work-related injury -the employer or the Fund? In large measure, this case and the meaning of the 2013 amendments to section 287.220.3 present a simple choice: Which entity , the employer 5 at the time of the last injury or the Fund, should be responsible for an employee's PTD benefits. This question fundamentally embodies the worker's compensation bargain. Zueck v. Oppenheimer Gateway Properties, Inc., 809 5 We recognize that Klecka's settlement with his employer precludes any finding of liability against the employer here but we include the employer for purposes of our analysis. 9

With the 1943 enactment of section 287 .220, the Fund was established. The legislature had two main principles in mind, one an aspirational goal and the other a financial incentive to achieve that goal. The overarching goal was and is to encourage employers to hire disabled citizens. Garibay v. Treasurer of State of Missouri as Custodian of Second Injury Fund, 964 S.W.2d 474,479 (Mo. App. E.D. 1998); Treasurer of State-Custodian of Second Injury Fund v. Wi tte, 414 S.W.3d 455,460 (Mo. bane 2013) ("The purpose of the fund is 'to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of that injury."'). To accomplish that goal, the Fund relieves an employer or his insurer of liability for the employee's preexisting disability and limits the employer's liability to the amount of disability resulting from the last injury. Harris v. Treasurer of State, 192 S.W.3d 531, 538 (Mo. App. E.D. 2006) (citing Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo. bane 1966)). In that conte xt, section 287.200, the general statute governing PTD claims, and section 287.220, the provision that determines when the Fund is liable for such claims, are the principal p rovisions we look to in order to answer the question posed by this case and any other PTD case in which it is alleged that the employee's PTD status is the result in part of disability that preexists the last injury - who pays? If the claimant is PTD and satisfies the requirements of section 287.220.3, the Fund pays. If not, the employer pays. And these s ections are to be read together. The legislature has made that clear here in its 2013 a mendments to section 287.220.3. With its fundamental declarative statement in subparagraph (2), "Claims for permanent total disability under section 287 .200 against the s econd injury fund shall be compensable only when the following conditions are met: ... ," the le gislature has expressed its intent that PTD claims against the Fund are still governed by the 11