Martha Satterfield v. Carlisle Transportation Products, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-104637

**Employee:** Martha Satterfield

**Employer:** Carlisle Transportation Products, LLC

**Insurer:** American Zurich Insurance Company

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

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 8, 2020. The award and decision of Administrative Law Judge Victorine R. Mahon, issued January 8, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this _______ 22nd _______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

These two matters involve injuries to employee's abdomen and right foot. Employee also had several other work-related injuries, as noted by the awards of the administrative law judge. Employee also has several preexisting medical conditions. The administrative law judge concluded that employee failed to meet her burden to establish liability against the Second Injury Fund because employee did not establish that any particular work-related injury in either of these matters combined with a single preexisting injury (as if in a vacuum) to render claimant unable to compete in the open labor market. I disagree with this limited interpretation of the law.

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 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 workrelated 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).

It has long been held that under the Missouri Workers' Compensation Law other factors, such as an employee's physical condition, age, education, job skills, and work experience, should be considered in determining whether the employee is permanently and totally disabled and eligible to receive Second Injury Fund benefits. Karoutzos v. Treasurer of the State of Missouri, 55 S.W.3d 493 (Mo. App. 2001).

While the purpose of the amendments to $\S 287.220$, RSMo, may have been enacted to create stricter standards for Second Injury Fund liability, the amendments did not change the Second Injury Fund's purpose. 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).

Without the Second Injury Fund, 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, 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).

An interpretation of the 2014 amendments to § 287.220.2, RSMo, excluding consideration of multiple preexisting disabilities suggests that our legislature intended to shift the burden of compensating the most severely disabled workers upon the public as a whole. After all, if the employer or the Second Injury Fund are not liable, dramatically increased Social Security Disability claims and payments will inevitably result, the cost of which will be borne by taxpayers. This option would subvert not just the underlying purpose of the Second Injury Fund, but that of the Missouri Workers' Compensation Law as a whole, because " $[t]$ he purpose of workers' compensation is to make industry bear the burden of compensating employees for injuries arising out of the scope and course of employment." Gaston v. J.H. Ware Trucking, Inc., 849 S.W.2d 70, 74 (Mo. App. 1993). I reject this proposition.

The recent decision of Treasurer of State v. Parker, WD83030 (July 14, 2020), currently on transfer to the Missouri Supreme Court (SC98704), enunciated that the proper interpretation of $\S 287.220 .3$, RSMo, requires that once an employee has a preexisting disability that satisfied one of the subsections that exceeds the fiftyweek minimum, then the Commission may consider other preexisting injuries and disabilities as well as all other characteristics (e. g. age, education, employment history, etc.) to determine in the employee is permanently and totally disabled.

Injury No.: 15-104637

Injury No.: 17-011298

Employee: Martha Satterfield

-3-

In conclusion, the administrative law judge erred in interpreting § 287.220, RSMo, and denying Second Injury Fund liability for these claims. Employee sustained compensable injuries that combined with qualified preexisting disabilities and other relevant factors to render employee permanently and totally disabled.

I would reverse the decision of administrative law judge and award employee permanent total disability benefits from the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the law? Yes.
4. Date of accident or onset of occupational disease: March 31, 2015.
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene County, Missouri.
6. Was above claimant in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work claimant was doing and how accident occurred or occupational disease contracted: while lifting a large box onto a pallet, claimant sustained umbilical and inguinal hernias.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Abdomen.
14. Nature and extent of any permanent disability: See below.

1. Compensation paid to-date for temporary disability: $\ 6,142.71.
2. Value necessary medical aid paid to date by employer/insurer? $\ 26,138.58.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Claimant's average weekly wages: 758.81 .
5. Weekly compensation rate: $\ 505.89 for temporary total disability / $\ 451.02 for permanent partial disability.
6. Method wages computation: By stipulation.

1. Amount of compensation payable:

For Permanent partial disability:

Percent 10 percent to the body as a whole ( 40 weeks)

( 40 weeks $\times \ 451.02 )

Total: $\quad \ 18,048.80

1. Second injury fund liability: None.
2. Future requirements awarded: None.

This award is subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Newman Law Firm, LLC.