Douglas Cosby v. Drake Carpentry, Inc.

The court reasoned that the foregoing language meant that the new (and more rigorous) standards for proving a compensable claim of permanent total disability against the Second Injury Fund, now set forth under § 287.220.3(2), apply only where the employee's primary and preexisting injuries occur after January 1, 2014.

By contrast, the present claim is one for permanent partial disability benefits from the Second Injury Fund. In this regard, the legislature has provided very clear direction:

No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund.

§ 287.220.3(2) RSMo.

The foregoing language does not address how claims against the Second Injury Fund "shall be compensated," as described in § 287.220.3. Instead, it plainly states that no claim shall be filed against the Second Injury Fund for permanent partial disability occurring after January 1, 2014. The present claim is, without question, a claim for permanent partial disability against the Second Injury Fund occurring as of and after January 22, 2014. ${ }^{1}$ For this reason, and because we must strictly construe the language of Chapter 287 pursuant to § 287.800.1 RSMo, we find the Gattenby decision distinguishable.

As correctly noted by the administrative law judge in his award, the Division of Workers' Compensation and this Commission do not possess statutory authority to resolve employee's argument that the 2013 amendments to § 287.220 RSMo are unconstitutional. However, we do hereby recognize that these arguments have been timely raised and properly preserved for any appellate purposes.

Additionally, we deem it appropriate at this time to express our view that the 2013 amendments are not unconstitutional, in that no rights were extinguished. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury[.]" Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). In our view, the 2013 amendments to $\S 287.220$ work the effect that employers and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of preexisting disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries. By the same token, we believe an employer is liable for any claim of permanent total disability resulting from the combination of preexisting disability with a subsequent compensable primary injury, where the facts and circumstances of the claim do not satisfy the new and more rigorous standards set forth under $\S 287.220 .3(2)$ for proving a compensable claim of

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[^0]: ${ }^{1}$ Claims against the Second Injury Fund for permanent partial disability benefits are premised on a synergistic interaction between the primary injury and preexisting disability, which results in greater disability than the simple sum of disabilities referable to the primary injury and preexisting conditions. See § 287.220.2 RSMo. Logically, then, employee did not have a "claim for permanent partial disability" against the Second Injury Fund until the occurrence of his primary injury on January 22, 2014.

permanent total disability against the Second Injury Fund. Rather than extinguishing any rights or removing any existing remedy, the legislature in 2013 merely shifted back to employers and their insurers any liability that would have otherwise rested with the Second Injury Fund.

Because employee's claim cannot be accepted as filed pursuant to the plain and unambiguous language of $\S 287.220 .3(2)$, we must deny the claim.

All other issues are moot.

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 July 28, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 16^{\text {th }} \qquad$ day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Douglas Cosby

Injury No. 14-003644

Dependents:

Before the

Employer: Drake Carpentry, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: N/A

Jefferson City, Missouri

Hearing Date: May 11, 2016/June 6, 2016

Checked by: DLZ

1. Are any benefits awarded herein? No
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: January 22, 2014
5. State location where accident occurred or occupational disease was contracted: Crawford 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 fell from ladder
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: Left knee
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 3,583.89
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: Douglas Cosby Injury No. 14-003644

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 718.51
3. Weekly compensation rate: $\$ 479.01 / \ 446.85
4. Method wages computation: Stipulation

1. Amount of compensation payable:

All issues of primary claim were previously resolved

1. Second Injury Fund liability: Yes No X Open

TOTAL: NO BENEFITS ORDERED TO BE PAID

1. Future requirements awarded: None

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: Ronald Edelman

Employee: Douglas Cosby

Employee: Douglas Cosby

Deyendents:

Employer: Drake Carpentry, Inc.

Additional Party: Second Injury Fund

Insurer: N/A

Injury No: 14-003644

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $11^{\text {th }}$ day of May, 2016, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Ronald Edelman. The Employer, having previously settled and resolved all issues in the primary claim, did not appear. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General David McCain. The record was ordered left open until 5:00 p.m., June 6, 2016. The award being sought is a final award against the Second Injury Fund.

The parties have entered into a stipulation pertaining to certain facts which are not at issue in this claim as follows, to wit: On or about the $22^{\text {nd }}$ day of January, 2014, Drake Carpentry, Inc., was an employer operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of January 22, 2014, Douglas Cosby was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about January 22, 2014, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Crawford County, Missouri, and the parties agree that Phelps 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

Employee: Douglas Cosby Injury No. 14-003644

filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 718.51, sufficient to allow the following compensation rates: $\ 479.01 for temporary total disability, temporary partial disability, and permanent total disability and $\ 446.85 for permanent partial disability; temporary disability benefits have been paid in the amount of $\ 3,583.89; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award; the parties further agreed that all pleadings were filed on a timely basis.

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

Whether amendments to Section 287.220 RSMo. set out in Senate Bill 1, passed by the legislature effective January 1, 2014, are constitutional?

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 February 24, 2014; Answer of the Second Injury Fund to Claim