Based on a comprehensive review of the evidence described above, including Claimant's testimony, the expert medical opinions, the medical treatment records and the Stipulations for Compromise Settlement between Claimant and Employer in this case and the pre-existing injury, as well as based on my personal observations of Claimant at hearing, and based on the applicable laws of the State of Missouri, I find the following:
I find that there is no dispute in this case, and the evidence clearly shows, that Claimant sustained an occupational disease, arising out of and in the course of his employment for Employer on June 4, 2010, which resulted in an injury to his right knee. I find that he was working as a bricklayer, tuck-pointer and acid washer for Employer and developed right knee complaints as a result of the leg-intensive, repetitive job duties he performed for Employer, including kneeling, squatting and climbing up and down ladders. I find that Claimant sustained overuse syndrome of the right leg with traumatic tendinitis of the right knee, status post partial right knee replacement. I find that his right knee injury and medical treatment was medically causally connected to his occupational disease exposure at work leading up to June 4, 2010. I further find, based on the stipulation of the parties, that Claimant sustained 25 % permanent
partial disability of the right knee related to this compensable (primary) occupational disease injury at work on June 4, 2010.
Issue 1: Does an occupational disease claim trigger Second Injury Fund liability as an "injury" under Mo. Rev. Stat. § 287.220?
Considering the date of the injury, it is important to note that the new statutory provisions are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."
Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. Id. at 199.
Under Mo. Rev. Stat. § 287.067.1 (2005), occupational disease is defined as "an identifiable disease arising with or without human fault out of and in the course of the employment." Additionally, under Mo. Rev. Stat. § 287.067.3 (2005), "An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." That section then defines "prevailing factor" as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." It continues, "Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable."
Considering the competent and substantial evidence listed above, I find that Claimant has met his burden of proving the presence of an occupational disease, resulting in overuse syndrome of the right leg with traumatic tendinitis of the right knee, status post partial right knee replacement, which arose out of and in the course of his employment for Employer and which is medically causally connected to that employment.
The main dispute in this case seems to revolve around whether or not occupational disease claims are properly defined as injuries, and, thus, whether they can give rise to Second Injury Fund benefits under the statute, when that statute is strictly construed. In other words, the Second Injury Fund argues that occupational disease claims are not "injuries" under a strict construction of the statute. Therefore, the Second Injury Fund has no liability for benefits based on an occupational disease claim.
Any review of this issue must begin with the statute that gives rise to Second Injury Fund benefit exposure in Workers' Compensation cases. Second Injury Fund liability for permanent partial disability is set out in Mo. Rev. Stat. § 287.220.1 (2005), which in pertinent part states:
All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. [Emphasis added]
So, since the statute indicates that it is the combination of the pre-existing disability with the disability from the last "injury" that triggers Second Injury Fund liability, the question becomes how "injury" is defined and whether "injury" includes both accidents and occupational disease claims or not.
The Workers' Compensation Statute provides a definition for the term "injury." Under Mo. Rev. Stat. § 287.020.3 (1) (2005), the statute provides that, "In this chapter the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment." The definition continues under Mo. Rev. Stat. § 287.020.3 (5) (2005), "The terms 'injury' and 'personal injuries' shall mean violence to the physical structure of the
body...These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form..." Therefore, by the plain meaning of this language, except as provided later in the statute, occupational diseases are not injuries.
The exception, specifically referenced in this definition, is contained in Mo. Rev. Stat. $\S \mathbf{2 8 7 . 0 6 7}$ (2005). Section 3 of that statute indicates, "An injury due to repetitive motion is recognized as an occupational disease for the purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability."
To read the statute as the Second Injury Fund suggests, would be to ignore or exclude the words "except as specifically provided in this chapter" from Section 287.020.3 (5). I find that that would not be appropriate. Even with the mandate of strictly construing the statute, words placed in the statute by the Legislature are presumed to have meaning and certainly should not be ignored or excluded. I find that only if those words are essentially eliminated from Section 287.020.3 (5) can you then reach the conclusion that occupational diseases are not injuries for the purposes of the Workers' Compensation Statute.
The Second Injury Fund further cites recent case law that interpreted the exclusivity provision of the statute in relation to occupational disease claims, as further support for their position in this matter. I do not find this case law probative or relevant to the direct question of whether an occupational disease can be an "injury" under the terms of the Second Injury Fund statute. The case law the Second Injury Fund cites interpreted the exclusivity provision to only apply to accidental injuries, not occupational disease injuries, because in Section 287.120, the terms "accidental injury" and "personal injury or death...by accident" are specifically included in that section. In other words, since the statute contains the specific description of injury by accident in Section 287.120, then occupational diseases are not also included.
However, that is not the case in the matter at bar. Section 287.220 does not include any specific description of injury by accident or otherwise. It simply says "injury." Therefore, the definitional section of the chapter and any other related sections referenced in that definitional section are the parts of the chapter available for determining the meaning of the broad term "injury" in the Second Injury Fund section of the statute.
Reading all of these sections of the Workers' Compensation Statute together and attempting to give meaning to each of the sections, as best as it can be determined by the meaning of the words contained in each section, I find that "injury" is specifically defined as "violence to the physical structure of the body." I find that the leg-intensive, repetitive work activities Claimant performed for Employer leading up to June 4, 2010, which resulted in overuse syndrome of the right knee that had to be surgically repaired, amounted to a "violence to the physical structure of the body," namely his right knee.
I further find that occupational diseases "except as specifically provided in this chapter" are not injuries. However, I find that under Mo. Rev. Stat. § 287.067.3, "An injury due to repetitive motion is recognized as an occupational disease for the purposes of this chapter." I find no dispute in the record that Claimant's primary compensable Claim against Employer was based on repetitive motion. Since repetitive motion injuries are specifically recognized as
occupational diseases under this chapter, and since occupational diseases specifically provided for in this chapter are recognized as injuries, therefore, Claimant's repetitive motion occupational disease is recognized as an "injury" for the purposes of the Workers' Compensation Statute. As such, I find that it constitutes an "injury" as contained in Section 287.220 to give rise to Second Injury Fund benefits under the statute.