David Harris v. Phillips Metals

Section 287.220.1 reads, in part:

If the previous disability or disabilities . . .and the last injury together result in total and permanent disability, . . . the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself. . .

Section 287.220.4 explains the timing of SIF payments in the event of successive work-related permanent disabilities:

If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.

There is no dispute that employee suffered more than one injury in the same employment and that he thereby suffered concurrent and consecutive permanent disabilities. The question before us is did employee's third injury cause a permanent partial disability? If so, § 287.220.4 applies.

The SIF argues that the phrase, "causes concurrent and consecutive permanent partial disability" refers to the extent of disability resulting from the last injury alone. Employee does not directly address this argument. Rather, the employee argues that the reasoning of the SIF leads to a credit or offset not authorized by the Workers' Compensation Law. We accept the SIF argument.

The basis for our conclusion is found in the Missouri Supreme Court's opinion in Stewart v. Johnson, 398 S.W.2d 850 (Mo. banc 1966). The employee in Stewart suffered a work injury that combined with preexisting disabilities to render him permanently and totally disabled. The Stewart court explained the proper application of § 287.220.1 RSMo for apportioning liability between employer and the SIF. The court ruled it must "first consider only the disability resulting from the last injury; otherwise the words 'considered alone and of itself' are meaningless." Id., at 854 (emphasis added). Applying this rule, the court found that "the disability resulting from the last injury alone was a permanent partial disability." Id. The court then concluded that employer's liability is calculated with reference to § 287.190 RSMo, the permanent partial disability statute. Then, the remainder that would be due for permanent total disability is apportioned to the SIF.

We are convinced the same reasoning applies to the interpretation of § 287.220.4. The subsection refers to the extent of disability suffered in successive individual injuries. We conclude that the plain language of $\S 287.220 .4$ requires that we consider the disability caused by each injury alone to determine if that subsection applies.

The employee in the instant case, like the employee in Stewart, suffered a work injury that combined with preexisting disabilities to render him permanently and totally disabled. The administrative law judge properly applied the rule enunciated in Stewart and found that the last injury, alone and of itself, caused a permanent partial disability of 120 weeks.

Based upon the foregoing, we conclude that employee suffered more than one injury in the same employment that caused concurrent and consecutive permanent partial disability. Therefore, § 287.220.4 applies to determine the timing of the compensation payments in this case.

According to § 287.220.4, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability. SIF payment for permanent partial disability is not due until the employer has completed its permanent partial disability payments. § 287.220.1 RSMo. Further, because an individual cannot be partially disabled and totally disabled at the same time, it is appropriate to suspend the running of all permanent partial disability periods during periods of temporary total disability. See our discussion in Maximum Weekly Benefit, infra.

Applying the above rules, the employer's 60-week permanent partial disability period for the first injury ran from May 18,

2001, through June 28, 2002, a total of 58 weeks. At that time, temporary total disability from the third injury began to run. The temporary total disability ran until March 26, 2003. During the period of temporary total disability, the permanent partial disability from the first disability was suspended. On March 27, 2003, the permanent partial disability period from the first injury began to run again for the remaining 2 weeks. The employer's permanent partial disability period for the first injury ended April 10, 2003.

Employer's 240-week permanent partial disability period for the second injury began to run on April 11, 2003, but it was promptly suspended on April 24, 2003, when another period of temporary total disability began to run for the third injury. The temporary total disability period ended October 21, 2003, when employee reached maximum medical improvement from the third injury. As of October 22, 2003, employee was permanently and totally disabled. On October 22, 2003, employer's permanent partial disability liability period for the second injury resumed and runs for a total of 238 weeks and 2 days until May 16, 2008. On May 17, 2008, the SIF 45-week permanent partial disability liability period for the second injury begins to run and runs through March 28, 2009.

Employer's 120-week period permanent partial disability period for the third injury begins to run on March 29, 2009, and runs through July 17, 2011. On June 18, 2011, SIF liability for full permanent total disability benefits begins.

Employee is permanently and totally disabled as of October 22, 2003. According to § 287.220.1 RSMo, when a combination of the primary injury and preexisting disabilities renders the employee permanently and totally disabled, the SIF liability is determined as follows:

[I]f the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund".

SIF is liable for the remainder of the compensation that would be due for permanent total disability under $\S 287.200$ after subtracting employer's payment. See Laturno v. Carnahan, 640 S.W. 2d 470 (Mo. App. 1982), Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 (Mo. App. 1982). For the period from October 22, 2003, through May 16, 2008, the remainder is $\$ 80.08 .{ }^{[1]} For the period from May 17, 2008, through March 28, 2009, the remainder is \$ 409.50 .{ }^{[2]} For the period March 29, 2009, through July 17, 2011, the remainder is \$ 80.08 .{ }^{[3]}$ Beginning June 18, 2011, and continuing for employee's lifetime or until modified by law, the remainder is $\$ 409.50 .{ }^{[4]}$

The result of our conclusions is that employee never receives more than the statutory maximum weekly benefit for permanent total disability. See § 287.200 RSMo. This result is in accord with the majority view.

There is both a theoretical and a practical reason for the holding that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxima for total disability. The theoretical reason is that, at a given moment in time, a person can be no more than totally disabled. The practical reason is that if the worker is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it may be more profitable for him or her to be disabled than to be well--a situation which compensation law studiously avoids in order to prevent inducement to malingering.

5-92 Larson's Workers' Compensation Law § 92.01.

The Second Injury Fund shall pay to employee:

- $\ 80.08 per week for the period October 22, 2003, through May 16, 2008;

- $\ 409.50 per week for the period May 17, 2008, through March 28, 2009;

- $\ 80.08 per week for the period March 29, 2009, through July 17, 2011; and,

- $\ 409.50 per week beginning June 18, 2011, and continuing for employee's lifetime or until modified by law.

The award and decision of Administrative