Amendments to the Workers' Compensation Act, specifically, § 287.220.3 were enacted by the legislature in 2013. Those amendments clearly set forth that the amended section applies to all claims against the Second Injury Fund for injuries occurring after January 1, 2014.
This section provides, in pertinent part:
> 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) 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.
>
> (ii) A direct result of a compensable injury as defined in section 287.020; 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.
Employee's October 28, 2014, primary injury by accident to his left shoulder, resulted in a 27.5% permanent partial disability (at the 232 week level); and a 10% permanent partial disability (at the 210 week level) to his left elbow. The injury occurred after January 1, 2014, and therefore we are required to apply the law under § 287.220.3. The administrative law judge erred in this respect by applying § 287.220.2 RSMo.
Injury No.: 14-089634
Employee: Randall Clinkenbeard
-3-
Our ruling here is, in the first instance, governed by the clear and unambiguous words of the statute, which mandates that we "shall construe the provisions of this chapter strictly." § 287.800 RSMo. In looking to the words of § 287.220.3, it is clear on its face that a claim against the Second Injury Fund for "injuries occurring after January 1, 2014," (injury is defined by reference to § 287.020 RSMo), is to be compensated in accordance with § 287.220.3.
The amendments to the statute were set forth long prior to the hearing in this matter (April 2019), and well before the work injury of October 28, 2014. The new terms of subsection 3 were promulgated well in advance of the effective date of January 1, 2014. The unambiguous language of the statute sets forth that a claim for injury occurring after that date would be governed by § 287.220.3. Employee argues that a "retroactive application" of the Supreme Court's decision in *Cosby* would work an injustice to him. *Id.* However, *Cosby* merely affirmed that the plain words of the statute should be followed. In discussing the plain and ordinary meaning of the statute, the Court stated:
> "When read in the context of section 287.220 as a whole, section 287.220.2 must be interpreted to apply to all cases of permanent disability in which all injuries, including the subsequent compensable injury, occurred prior to January 1, 2014. Section 287.220.3 applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury occurred after January 1, 2014."
*Cosby v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, 579 S.W. 3d 202 at 207 (Mo banc 2019).
We reject employee's argument that § 287.220.2 should apply to his case. He argues that although *Cosby* effectively abrogated *Gattenby v. Treasurer of Missouri*, 516 S.W.3d 859 (Mo. App. W.D. 2017)², had the *Cosby* decision been rendered prior to his hearing, he may have taken a different strategy in settling with the employer, and in presentation of his case. He goes so far as to suggest we should revisit the stipulations which the parties previously voluntarily adopted as binding, and to remand to revisit the liability of all parties. We reject that argument and in accordance with the law must give effect to the parties' previously adopted stipulations and voluntary agreements of settlement, in this case, with the objective of settling employer's obligations to employee, in all respects but the issue of future medical. *Bock v. Broadway Ford Truck Sales Inc.*, 55 S.W. 3d 427, 436 (Mo. App. E.D. 2001; (See also Exhibit 30, the written stipulation and agreement). If we did not do so, any party, who later regretted the terms of its bargained for settlement, could reopen their case and prolong the dispute indefinitely.
No qualifying preexisting disability has been established.
² *Gattenby* was decided by the Missouri Court of Appeals for the Western District. Jurisdiction in the instant matter was within the Southern District of Missouri. *Gattenby* held that section 287.220.3 applied where both the preexisting and primary injuries occurred after January 1, 2014. *Cosby* held that *Gattenby* should no longer be followed to the extent it was inconsistent with the Court's opinion. *Cosby* at 208, n. 5. Since that time in the wake of *Cosby*, the Western District has ruled in *Dubuc v. Treasurer of the State of Missouri*, 597 S.W.3d 372 (Mo. App. 2020) and *Treasurer of the State of Missouri v. Parker*, No. WD83030, (July 14, 2020). That matter is now on transfer to the Missouri Supreme Court. The Missouri Court of Appeals for the Eastern District affirmed the Commission's ruling in *Bennett v. Treasurer of State*, No. ED108713, (Aug. 25, 2020) that Fund liability did not exist where the employee did not prove permanent total disability resulted from his primary injury with a single preexisting right shoulder injury. The Courts' rulings are somewhat at odds at this time.
Injury No.: 14-089634
Employee: Randall Clinkenbeard
-4-
Dr. David Volarich offered medical reports on November 7, 2016 and on September 22, 2017, after examination of employee, and review of records. He cited the numerous preexisting injuries and conditions claimed by employee (as set forth in the administrative law judge's decision and award at page 10), and concluded that based on all the cited conditions, in combination with his primary injury, employee was permanently and totally disabled. Mr. Phillip Eldred, vocational rehabilitation specialist, also opined that the combination of all the preexisting conditions with employee's primary injuries resulted in permanent total disability.
The analysis under § 287.220.3, at the outset involves the following two requirements. First, a showing of a medically documented preexisting disability that reaches the threshold of 50 weeks permanent partial disability. Second, the preexisting disability must meet one of the qualifying types of disabilities listed in subparts i - iv of § 287.220.3(2)(a)a. or § 287.220.3(2)(b). If either one of these is absent, Second Injury Fund liability does not exist. Only after these two qualifying conditions are met, do we reach the final piece of the analysis. We can find Second Injury Fund liability only if "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) ... results in a permanent total disability..." Id. (Our emphasis)
There was no evidence that any of the prior injuries were the direct result of active military duty (sub i). The evidence before us does not establish that any of the preexisting conditions or injuries were compensable injuries³, as defined in section 287.020.3 RSMo (sub ii). It was not shown that any preexisting condition directly and significantly aggravated or accelerated the subsequent work injury (sub iii). None of the injuries were related to work in a sheltered workshop, as set forth in 287.220.3(2)(b).
There is evidence to show a preexisting fracture of the right shoulder from 2009, which was a non-work-related injury. Therefore, subsection (2) (a) (iv) of § 287.220.3 addressing an opposite extremity requires co