Employee claimed permanent total disability benefits against the employer/insurer or 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-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
Injury No. 14-025678
Employee: Roy Dale Franklin
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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).
We wish to make clear our understanding that the Cosby, supra, works the effect that § 287.220.3 RSMo applies to employee's claim against the Second Injury Fund herein. That said, irrespective of whether an employee's Second Injury Fund claim is subject to § 287.220.2 or § 287.220.3 RSMo, we must first address the issue of the nature and extent of disability attributable to employee's primary occupational disease injury.
Disability attributable to employee's primary injury
Employee is sixty-six years of age. He had no training or education since graduating from high school. Employee's fifty-eight hour a week job as a welder for employer from 2006 to 2014 included frequently lifting fifty or more pounds, carrying, squatting, and kneeling. Employee had a number of preexisting conditions. He returned to heavy labor and worked fifty-eight hours per week after multiple injuries and surgeries relating to his right knee, right and left shoulders, low back, and bilateral carpal tunnel syndrome.
Employee asked employer to excuse him from certain types of work due to his back condition. Employer refused this request. While working on welding derricks from 2013-2014, employee's sciatica returned and his back condition worsened. On Sunday, April 13, 2014, he could not get out of bed.
Initially, employer told employee to stay home until he felt better. After employee consulted attorney Andrew Wood, employer referred employee to OccuMed. Employer's physician Dr. Estep documented employee's report of back pain and released him to return to work with restrictions that included no lifting, pushing, pulling or carrying more than ten pounds. Employer assigned employee to office work. Employee's condition did not improve after therapy, epidural steroid injections and traction. He never returned to his prior job on the floor.
Employee's expert Dr. Brent Koprivica conceded employee had industrially disabling limitations prior to 2014 but opined that if employee was permanently and totally disabled, it was due to the primary injury in isolation. Dr. Koprivica deferred to a vocational expert as to whether employee was permanently and totally disabled. Dr. Koprivica alternatively opined that if a fact finder found that employee's permanent total disability was not due to the primary injury, that he would assign 25% PPD to the primary injury. Dr. Koprivica further stated that when he took into account employee's total preexisting disabilities in combination with his April 2014 occupational disease claim he considered employee permanently and totally disabled. Finally, Dr. Koprivica testified that even assuming employee's prior lumbar condition and right knee disability were disregarded he would be permanently and totally disabled based on the combination of his primary injury and bilateral hand and shoulder condition.
Injury No. 14-025678
Employee: Roy Dale Franklin
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Vocational rehabilitation expert Phillip Eldred noted that employee, a high school graduate, tested at the 7th grade level in word reading, the 5th grade level in spelling, and the 10th grade level in math. Mr. Eldred opined that employee could not return to less than sedentary work and identified no transferable skills for sedentary work. Based on his review of employee's medical restrictions, Mr. Eldred considered employee permanently and totally disabled as a result of his April 12, 2014, injury in isolation.
After testing of employee's reading, sentence comprehension, spelling and math ability, vocational rehabilitation expert Kristine Skahan identified a list of his transferable skills. She opined that employee was place-able in the competitive open labor market in entry-level work that would allow for a change of position. She suggested possible positions as telemarketer, photocopy machine operator, document scanner/imaging specialist, hospital clerk, surveillance monitor, scale house operator, shipping receiving weigher, or gas station cashier. Ms. Skahan acknowledged that employee had no experience in any of these jobs and t