Charlie Hammons v. George J. Shaw Construction Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 16-074722

**Employee:** Charlie Hammons

**Employer:** George J. Shaw Construction Company (Settled)

**Insurer:** Midwest Builders Casualty Mutual (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The question before us is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and a single preexisting disabling condition that satisfies the enumerated criteria under § 287.220.3(a)a, but rather from the combination of his primary injury and all of his claimed preexisting disabling conditions, including those conditions that do not satisfy § 287.220.3(a)a.

We affirm with the administrative law judge's award finding that strict construction of § 287.220.3(2) requires an employee to prove that he or she is permanently and totally disabled due to a combination of only one qualifying preexisting disability in combination with a subsequent compensable work-related injury.

Section 287.800 RSMo requires administrative law judges and the Commission to construe provisions of the Missouri Workers' Compensation Law strictly. As courts have instructed:

> A strict construction of a statute presumes nothing that is not expressed. ... [I]t 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.

Injury No.: 16-074722

Employee: Charlie Hammons

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

Pursuant to the requirements of the amended test for permanent total disability claims against the Second Injury Fund provided for in § 287.220.3, set out in the administrative law judge's award, we conclude it is necessary to identify, with specificity, which of an employee's identified preexisting disabling conditions are claimed to combine with the primary injury to render the employee permanently and totally disabled.

If this were not the case, we would be permitted to include all identified preexisting disabilities in our analysis, without regard to whether they individually satisfy the enumerated criteria under § 287.220.3(a)a. Such an analysis would require us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply § 287.220.3(a)b as if it read as follows:

> 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, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of § 287.220.3(a)b. Rather, we conclude that the language of the statute requires that an employee prove that his or her permanent total disability results from a combination of the primary injury and a preexisting disability that meets the 50-week and categorical criteria under § 287.220.3(a)a. As stated above, we are further of the opinion that the employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test.

There is no evidence on this record that suggests employee is permanently and totally disabled as a result of the combination of the primary injury with his sole qualifying preexisting disability that related to the lumbar spine. Accordingly, it follows, and we so conclude, that employee has failed to satisfy the requirements of § 287.220.3.

For the foregoing reasons, we deny employee's claim against the Second Injury Fund.

**Decision**

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

The October 1, 2019, award and decision of Administrative Law Judge Emily S. Fowler is attached and incorporated herein.

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Given at Jefferson City, State of Missouri, this **13th** day of July 2020.

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

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Injury No.: 16-074722

Employee: Charlie Hammons

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Purpose, history, and context are all important factors in determining the legislature's intent in amending § 287.220 in 2014.

**Purpose of the Second Injury Fund**

Barring a law to the contrary, the employer and its insurer are responsible for paying lifetime benefits to injured workers whose last injury, in combination with preexisting conditions, causes them to become permanently and totally disabled. See § 287.120.1 and 287.200 RSMo (2014) and Federal Mutual Insurance Co. v. Carpenter, 371 S.W.2d 955,957 (1963). This naturally discourages employers from hiring workers with preexisting disabilities. In post-World War II America, veterans and labor organizations lobbied for the creation of the Second Injury Fund to relieve prospective employers of the fear of hiring workers with preexisting disabilities. *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 621, n. 1 (Mo. App. 1995).

The General Assembly created the Second Injury Fund in 1947 to "encourage the employment of individuals who [were] already disabled from a pre-existing injury, regardless of the type of cause of that injury. ... it encourages such employment by ensuring that the employer is only liable for the disability caused by the work injury. Any disability attributable to the combination of the work injury with pre-existing disabilities [was] compensated, if at all, by the fund." *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 460 (Mo. banc 2013) (citation omitted).

**History of the Second Injury Fund**

Originally, the legislature placed no limits on Second Injury Fund eligibility. As more injured workers filed claims against the Second Injury Fund, the courts restricted Second Injury Fund liability by limiting eligibility to parties who could demonstrate a preexisting "industrial disability" from a bona fide work-related injury. The legislature replaced the judicially created standard with more precise numerical thresholds for permanent partial disability cases in 1993 but also allowed the courts to consider non-work-related preexisting conditions when awarding Second Injury Fund permanent partial disability benefits. *Id.*, at 465.

In 2005, the legislature significantly revised the Workers' Compensation Law to restrict access to all workers' compensation benefits—including Second Injury Fund benefits. Among the changes was to require administrative law judges, the Commission, and reviewing courts to apply "strict construction" when interpreting the law instead of the "liberal construction" that previously existed. Compare § 287.800 RSMo (2004) to § 287.800 RSMo (2014).

In 2014, the legislature again modified § 287.220 to limit the number of workers eligible for Second Injury Fund benefits. It eliminated permanent partial disability liability for injuries occurring on or after January 1, 2014, and restricted eligibility for permanent total disability benefits. See *Cosby v. Treasurer of the State of Missouri*, 579 S.W.3d 202, 209-210 (Mo. banc, 2019). Unfortunately, it is not clear how much the legislature intended to limit eligibility for permanent total disability benefits. In rejecting claims of

Injury No.: 16-074722

Employee: Charlie Hammons

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unconstitutional vagueness, the Court tacitly acknowledged that the statute is ambiguous. *Id.*, at 208-209.

As the Supreme Court stated in *Witte*: "[t]he primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words used in their plain and ordinary meaning. ... Only where the language is ambiguous will the Court resort to other rules of statutory construction." *Treasurer of State-Custodian of Second Injury Fund v. Witte*, 414 S.W.3d 455, 461 (Mo. banc 2013).

In *Kilbane v. Director of Dept. of Revenue*, 544 S.W.2d 9 (Mo. banc 1976), the Court declared that "in construing statutes to ascertain legislative intent it is presumed the legislature is aware of the interpretation of existing statutes placed upon them by the state appellate courts, and that in amending a statute or in enacting a new one on the same subject, it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature would be accomplishing nothing, and legislatures are not presumed to have intended a useless act." *Id.*, 11 (citations omitted).

The 2014 legislative changes came on the heels of the above-referenced *Witte* opinion. In *Witte*, the Court addressed multiple cases in which injured workers sought compensation for permanent partial disability from the Second Injury Fund. *Witte* did not address Second Injury Fund liability in permanent total disability cases. However, the post-*Witte* changes the legislature chose to make, and chose not to make, are illuminating.

The *Witte* Court found it significant that in the 2013 version of the statute, when addressing Second Injury Fund liability for permanent partial disability claims, the legislature referred to "a disability" and "the disability" as opposed to "disabilities" when determining eligibility for permanent partial disability benefits from the Second Injury Fund. And, "[t]he statute also use[d] the singular 'injury' rather than the plural 'injuries.'" *Treasurer of State-Custodian of Second Injury Fund v. Witte*, *supra*, at 463.

The 2014 revision replaced subparagraph 287.220.1 with three separate subparagraphs. The new subparagraph one describes the purpose of the Second Injury Fund. The legislature took the description from the end of the previous subparagraph one. Subparagraph two consists of the rest of the previous subparagraph one but the legislature added a sentence to the beginning of the new subparagraph two that refers to "disability due to injuries [emphasis added]" thereby expanding the definition