No party disputes that $\S 287.220 .3(2)$, effective January 1, 2014, applies to employee's Second Injury Fund claim in this case, based on his April 14, 2016, work injury. Cosby v. Treasurer of the State of Missouri, 579 S.W.3d 202 (Mo. banc 2019).
Section 287.220.3(2) reads, 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) 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; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent workrelated injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent workrelated 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
Injury No. 16-025639
Employee: Gregory Phelps
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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[.]
(emphasis added)
Section 287.220.3(2)(a)a sets up several initial hurdles an employee must overcome to trigger eligibility for Second Injury Fund benefits. For purposes of this opinion, analysis of this part of the statute is limited to subsection (ii) that provides that the preexisting disability is "a direct result of a compensable injury as defined in section 287.020" and subsection (iv) which provides that the preexisting disability is to an extremity "when there is a subsequent compensable work-related injury [the primary injury] of the opposite extremity."
Workers' compensation law is a creature of statute. When interpreting the law, the adjudicator should ascertain legislative intent by "considering the plain and ordinary meaning of the terms and giving effect to that intent if possible." *Templemire v. W & M Welding, Inc.*, 433 S.W.3d 371, 381 (Mo. 2014) (citations omitted). In the absence of statutory definitions, a court may consult a dictionary and consider the entire context of the statute to discern the plain and ordinary meaning of statutory terms. *Mantia v. Mo. DOT*, 529 S.W.3d 804, 809 (Mo. 2017). When a burden of proof is undefined, it is also appropriate to review the Missouri Approved Jury Instructions (MAI) for determination of the undefined standard and application of same. *Id.*, 809-810.
To meet the first hurdle, the employee must establish that he had a "medically documented preexisting disability." § 287.220.3(2)(a)a. This phrase is undefined in The Workers' Compensation Law. "Medically" is the adverb form of "medical" which relates to physicians, the practice of medicine, and medical treatment and "documented" is the past tense form of the verb "document" which means to support with documentary evidence. *Webster's Third New International Dictionary* 1402, 666 (2002). Earlier case law defined "preexisting disability" as an "industrial disability" occurring prior to the last or primary accident. *Stoddard v. Wilson Freight, Inc.*, 651 S.W.2d 152, 157-158 (Mo. App. 1983). As the court in *Stoddard* explained, if bodily infirmities prevent an employee from performing a part of their occupation or any other occupation so that their earning power is affected, then the employee is partially industrially disabled. *Id.*, at 158. More recent case law addressing the formerly used "hindrance and obstacle" language, has found that if a cautious employer could reasonably foresee that the preexisting injury has the potential to combine with a future work-related injury to result in more disability then the preexisting injury is disabling and constitutes a hindrance and obstacle to employment or re-employment. *Garibay v. Treasurer of Missouri*, 930 S.W.2d 57, 60 (Mo. App. 1996).
In this case, employee tendered testimony and extensive medical evidence that documented that he suffered from multiple disabling conditions that preexisted his April 14, 2016, work injury. Physicians diagnosed and actively treated employee for
Injury No. 16-025639
Employee: Gregory Phelps
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disabling conditions to his pulmonary system, which caused shortness of breath with exertion with wheezing, rhonchi, and cough. Employee also submitted evidence of multiple right knee injuries that had required three surgeries and limited the types of work he was able to perform. Further, employee tendered medical documentation that showed he suffered multiple low back injuries and had annular tears and disc protrusions at the L4/5 and L5/S1 lumbar spine levels which limited his ability to lift, bend and sit and his employer accordingly limited his job duties. These prior conditions had the potential to, and ultimately did, combine with a later work-related injury to create a greater overall disability. The first step of the analysis is met because employee's conditions related to his pulmonary system/lungs, right knee and low back all were "medically documented," affected his ability to perform part of his occupation, occurred prior to April 14, 2016, and were preexisting disabilities.
The second element is that the preexisting disability must equal a minimum of fifty weeks of permanent partial disability. "Permanent partial disability" is defined by § 287.190.6 as a disability that is permanent in nature and partial in degree. Permanent partial disability is required to be demonstrated and certified by a physician and stated within a reasonable degree of medical certainty. § 287.190.7. Notably absent from this second element is any requirement that the permanent partial disability be sourced to a single injury.
In this case, medical expert Dr. Volarich demonstrated and certified that employee had the following preexisting disabilities: 30% permanent partial disability of the pulmonary system rated at the body as a whole, 50% permanent partial disability of the right knee, and 25% permanent partial disability of the body as a whole at the lumbar spine. Dr. Volarich explained that the percentages of disability that preexisted April 14, 2016, were due to the recurrent injuries to each body area. Pursuant to § 287.190, Dr. Volarich's ratings equate to 120 weeks of permanent partial disability for the pulmonary system/lungs, 80 weeks of permanent partial disability for the right knee and 100 weeks of permanent partial disability for the low back. There are no opposing ratings in the record. Each of these preexisting permanent partial disabilities meet and exceed the fifty-week threshold of § 287.220.3(2)(a).
The administrative law judge in this case interpreted § 287.220.3(2)(a) as requiring each instance of employee's prior accidents and resultant injuries to be examined in isolation regardless of whether the employee sustained a re-injury to the same body area. Her award states that each single injury event must equal or exceed the fifty-week disability criteria for the preexisting disability to qualify and trigger Second Injury Fund liability. The plain language of § 287.220.3(2)(a) includes no commandment that each accident and resultant injury must meet the fifty-week threshold on its own. Therefore, the administrative law judge incorrectly erred in requiring the employee to distinguish each incident of disability and assign a separate percentage of disability to recover benefits. See Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. 2007).
The final hurdle in this case is for the preexisting disability to be either "a direct result of a compensable injury as defined in section 287.020" or to an extremity "when there is a subsequ