Carl Horton v. Fulton State Hospital

Improvee: Carl Horton

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demonstrate any legislative intent to preclude Second Injury Fund liability in cases involving preexisting hearing loss, or to justify such a patently "illogical" result.

Second, we note that the legislature expressly abrogated a number of judicial decisions and judicial interpretations of key terms in 2005. See, e.g., § 287.020.10 RSMo. We note also that the legislature left the material provisions of §§ 287.190 and 287.220.1 undisturbed. Accordingly, to accept the Second Injury Fund's argument in this matter, we would need to assume that, rather than list the *Pierson* decision as among those abrogated in 2005, the legislature intended to silently abrogate *Pierson* and introduce a new, unstated definition of "body as a whole" by means of replacing the liberal construction mandate of § 287.800 RSMo for the new requirement thereunder that the language of Chapter 287 be strictly construed. In asking us to make these assumptions, the Second Injury Fund argument distorts the meaning of strict construction:

[A] strict construction of a statute presumes nothing that is not expressed. The rule of strict construction does not mean that the statute shall be construed in a narrow or stingy manner, but it means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

*Allcorn v. Tap Enters.*, 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).

To assume the legislature's 2005 amendments to Chapter 287 silently abrogated *Pierson* in favor of the "illogical" exclusion of Second Injury Fund liability in cases of preexisting hearing loss would, in our view, run directly contrary to the mandate of strict construction, because it would require us to presume something that is not expressed by those amendments. It would also require us to presume a definition of "body as a whole" that is not affirmatively pointed out by the terms of either §§ 287.190 or 287.220.1. Applying the clear, plain, obvious, or natural import of the phrase "body as whole," as well as the controlling precedent from *Pierson*, we conclude that this employee's preexisting hearing loss amounted to a preexisting disability affecting his body as a whole. For these reasons, we affirm the award of compensation.

**Conclusion**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge David L. Zerrer, issued May 14, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

AnX past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $6^{\text {th }}$ day of November 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Carl Horton

Injury No. 12-093343

Dependents:

Employer: Fulton State Hospital

Additional Party: Second Injury Fund

Insurer: N/A

Hearing Date: March 16, 2015/March 27, 2015

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: DLZ

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 3, 2012
5. State location where accident occurred or occupational disease was contracted: Fulton, Callaway County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was struck from behind and hit head on door.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: head; body as a whole
14. Nature and extent of any permanent disability: 12.5 % referrable to the head and 5 % referrable to the neck, all of the body as a whole.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Carl Horton Injury No. 12-093343

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 485.10
3. Weekly compensation rate: $\ 323.40
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Employer previously settled all primary injury claims.

1. Second Injury Fund liability: Yes X No Open

13.2 weeks of permanent partial disability from Second Injury Fund-\4,268.88

TOTAL: \ 4,268.88

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Van Camp Law Firm

Employee: Carl Horton

Employee: Carl Horton

Deyendents:

Employer: Fulton State Hospital

Additional Party: Second Injury Fund

Insurer: N/A

Injury No: 12-093343

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $16^{\text {th }}$ day of March, 2015, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and with his attorney, Christine Kiefer. The Employer in the primary claim did not appear, having previously settled all issues in the primary injury claim. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is a party to this claim, and appeared by Assistant Attorney General Maggie Ahrens. The record was ordered to be left open until 5:00 p.m., March 27, 2015.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $3^{\text {rd }}$ day of December, 2012, Fulton State Hospital was an employer operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of December 3, 2012, Carl Horton was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about December 3, 2012, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Callaway County, Missouri, and the parties agree that Cole County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 485.10, sufficient to allow a compensation rate of $\ 323.40 for temporary total

disability, permanent partial disability, and permanent total disability; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

The liability of the Second Injury Fund for enhanced permanent partial disability?

A legal file was established for this hearing, which consisted of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division December 13, 2012; Amended Claim for Compensation, filed with the Division April 10, 2014; Second Injury Fund Answer to Claim for Compensation, filed with the Division December 21, 2012; Second Injury Fund Answer to Amended Claim for Compensation, filed with the Division April 25, 2014; Stipulation for Compromise Settlement, approved by the Division September 2, 2014; Request for Final Hearing, filed with the Division January 9, 2015.

Exhibit 1. Copy of Stipulation for Compromise Settlement for Injury 12-093343;

Exhibit 2. Independent Medical Evaluation of Dr. Raymond F. Cohen, dated June 17, 2013;

Exhibit 3. Independent Medical Evaluation of Dr. David Mason, Ph.D., Hearing Instrument Specialist;

Exhibit 4. Supplementa