Employee, a Wal-Mart cash office worker, sustained injury to her back on January 27, 2017, while she was lifting a bag of $500.00 worth of quarters from a safe to put into a cash recycler machine.
On February 27, 2019, employee settled her claim with employer/insurer for $41,888.22 based on 20% permanent partial disability of the body as a whole plus payment of out-of-pocket medical expenses of $7,946.62. The administrative law judge found that employee sustained 20% permanent partial disability of the body as a whole related to her January 27, 2017, accident. No party disputes this finding.
Employee had several medical conditions prior to her January 27, 2017, primary injury. These conditions consisted of: (1) right and left hip pain requiring hip replacement surgeries, both related to workers' compensation injuries; (2) degenerative disc disease resulting in assessment of 10% disability based on the body as whole related to a
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Injury No.: 17-035499
Employee: Jody Sneed
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workers' compensation claim; and (3) left knee problems due to a fall that required treatment in the form of injections and therapy.
Based on Dr. Mitchell Mullins' evaluation, the administrative law judge found that employee's preexisting compensable left hip injury resulted in 55% preexisting permanent partial disability at the 207 week left hip level. He found that this disability exceeded the fifty-week threshold to establish Second Injury Fund liability provided for in § 287.220.3(2). Employee's left hip disability was the subject of a 2001 workers' compensation claim that alleged occupational disease due to repetitive pushing and pulling of pallets of freight in order to stock shelves.
The administrative law judge further found, based on employee's credible testimony and her experts Dr. Mullins and vocational counselor Mr. Philip Eldred, that employee is permanently and totally disabled as a result of her January 27, 2017, injury combined with disabilities she had before that date.
We adopt the administrative law judge's factual findings relating to the nature and extent of employee's primary and preexisting disabilities and medical causation of her permanent total disability.
Conclusions of Law
Second Injury Fund liability
Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under § 287.220.3(2) RSMo for establishing a compensable claim against the Second Injury Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019).
In relevant part, the statute provides as follows:
Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:
(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020 [emphasis added]; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-
Injury No.: 17-035499
Employee: Jody Sneed
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related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and
b. 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, results in a permanent total disability as defined under this chapter[.]
§ 287.220.3(2) RSMo.
Pursuant to § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our 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.
*Allcorn v. Tap Enters.,* 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).
Preliminarily, we find the administrative law judge erred in considering disability attributable to employee's 2001 left hip workers' compensation claim as a qualified preexisting condition pursuant to 287.220.3 because employee's 2001 claim alleged an occupational disease due to repetitive pushing and pulling of pallets of freight in order to stock shelves. Pursuant to strict construction occupational disease claims must be excluded from consideration as a preexisting injury pursuant to § 287.220.3(2)(a)a(ii) because that section references a preexisting injury that is "A direct result of a compensable injury as defined in section 287.020[.]" Section 287.020.3(5) states that "injuries" and "personal injuries" "shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form [emphasis added] ..."
We further find that even if employee's preexisting left hip disability were deemed a qualified preexisting disability pursuant to § 287.220.3, employee's Second Injury Fund claim must fail because she failed to demonstrate that her alleged permanent total disability resulted from a combination of disability attributable to her primary injury and a single preexisting disability that satisfies the enumerated criteria under § 287.220.3(a)a.
Injury No.: 17-035499
Employee: Jody Sneed
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Rather, based on the only evidence in the record, employee's alleged permanent and total disability is due to the combination of her primary injury and various claimed preexisting disabling conditions, including at least one (10% of the body as a whole attributable to degenerative disc disease) that clearly does not equal a minimum of fifty weeks of compensation according to medical standards used in determining such compensation.
It appears to us that employee invites us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply § 287.220.3(2)(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(2)(a)b. Employee's interpretation further requires us to ignore the plain language of the existing section, which clearly instructs us, by using singular rather than plural language, to consider "the preexisting disability."
We acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, that is at odds with our interpretation of § 287.220.3(2)(a)b. See *Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker WD83030* (July 14, 2020). One member of the three-judge division that decided the case challenged the majority's interpretation in a strongly written dissenting opinion. For the reasons stated above, we fundamentally disagree with the Western District majority's recent interpretation of § 287.220.3(2)(a)b.
We instead find that the express language of § 287.220.3(2)(a)b requires that an employee 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 would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of her January 27, 2017, injury in combination with a single preexisting disability that meets the fifty-week requirement set out in § 287.220.3(2). Rather, as we have found, employee's permanent and total disability is due to a combination of the effects of the primary injury and various preexisting disabilities.