| FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Employee: | James Swafford |
| Employer: | Waller Truck Company, Inc. (settled) |
| Insurer: | Missouri Employers Mutual Insurance Company (settled) |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This 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, read the parties'briefs, and considered the whole record, we find that the award of the administrative law judge denying compensation for employee’s Second Injury Fund claim is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the administrative law judge’s award and decision with this supplemental opinion. |
| Discussion |
| The employee settled his claim against employer/insurer on February 14, 2019, for the lump sum of $30,000 less a 25% attorney’s fee. The sole issue at hearing was the Second Injury Fund’s liability for any disability compensation.Employee’s claim against the Second Injury Fund herein involves a primary injury that occurred on or about October 6, 2017. Pursuant to the Supreme Court of Missouri’s June 25, 2019, decision in the case of *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019), § 287.220.3 (2013) applies to employee’s claim against the Second Injury Fund for permanent total disability. See also *Coffer v. Treasurer of the State as Custodian of the Second Injury Fund*, 598 S.W.3d 909 (Mo. App. 2020).In relevant part, Section 287.220.3 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 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[.]
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).
The administrative law judge concluded that employee had no preexisting disability that met the requirements of 287.220 .3 . He found that employee's prior shoulder condition did not reach the threshold of fifty weeks, based on employee's expert's rating of that condition at 10 % at the 232 -week level. He noted that employee's prior cardiac condition and ankylosing spondylitis on the other hand, each rated at 25 % of the BAW (100 weeks), exceeded the fifty-week threshold but found that these conditions failed to qualify as preexisting disabilities under 287.220 .3 because neither resulted from a compensable work injury, a military related disability, or an injury to the opposing extremity, and there was "no medical evidence that either condition directly or significantly aggravated the primary right shoulder injury (emphasis added)." 1
[^0]
[^0]: ${ }^{1}$ Award, p. 8.
Improvee: James Swafford
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Employee's timely application for review alleged in part that the administrative law judge erred in that he arbitrarily disregarded and ignored Dr. Erich Lingenfelter's opinion that employee's preexisting heart condition and ankylosing spondylitis aggravated injuries resultant from employee's October 6, 2017, work related fall.
The Second Injury Fund contends that employee may not rely on Dr. Lingenfelter's April 18, 2018 report and records of Dr. Kent Huston in his appeal to the Commission because employee did not use the documents "as his evidence in his case in chief".[^2] The Second Injury Fund asserts that because employee failed to properly submit Dr. Lingenfelter's report pursuant to 287.210.5 as a "complete medical report" in compliance with 287.210.7, the report constitutes inadmissible hearsay and does not qualify as competent and substantial evidence. The Second Injury Fund alternatively argues that, "[N]either Dr. Lingenfelter nor Dr. Huston ever definitively opined that any of claimant's pre-existing conditions significantly and directly aggravated the primary injury."[^3]
Employee's attorney offered Dr. Lingenfelter's report and Dr. Huston's records at hearing as Claimant's Exhibits 6 and 17. At that time, the Second Injury Fund's attorney specifically stated "No objection" in response to both exhibits.[^4] We find the administrative law judge properly made these documents a part of the record and that Dr. Lingenfelter's report and Dr. Huston's records therefore constitute competent evidence in this case.
We find that Dr. Lingenfelter's vaguely worded report, referencing employee's ankylosing spondylitis and hypertrophic cardiomyopathy as preexisting pathology that contributed to employee's right shoulder condition, and Dr. Huston's treatment records, documenting employee's complaints of pain in his neck and right shoulder after his work injury, fall short of establishing, as a factual matter, that employee's ankylosing spondylitis and hypertrophic cardiomyopathy significantly and directly aggravated his primary injury.
The administrative law judge provided detailed factual findings and explained his view of the opinion evidence. Other than our affirmative findings regarding the issue of admissibility of Dr. Lingenfelter's opinion and Dr. Huston's records and our more expansive discussion relating to statutory interpretation of § 287.220.3, we otherwise agree with the administrative law judge's findings and conclusions with regard to the issues involved in this appeal.
Because we resolve this appeal based on a finding that the employee failed to establish, as a threshold issue, any qualified preexisting disability pursuant to § 287.220.3(2)(a) we do not consider additional issues discussed in the parties' briefs involving application of § 287.220.3(2)(b).[^5]
[^2]: Brief of Respondent Treasurer, p. 10.
[^3]: Id., p. 18.
[^4]: Transcript, pp. 4, 7.
[^5]: We note the Supreme Court of Missouri recently provided new guidance relating to statutory interpretation of § 287.220.3(2)(b) in Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker, SC98704 (April 20, 2021).