Norris Stanley v. Noranda Aluminum, Inc.

^{1} Petitioner’s Brief, p. 27. ^{2} Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. 2021).

We find the Supreme Court's April 26, 2022 decision in Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562 (Mo. 2022) dispositive. In response to similar if not identical arguments as the employee raises herein, the Court expressly found:

Non-qualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220(3). Parker, 622 S.W.2d at 182 (emphasis added). There was no evidence [the employee's] primary injury, combined with his qualifying preexisting disability, resulted in PTD because he failed to elicit testimony from any of his experts indicating he would still be rendered permanently and totally disabled, absent his non-qualifying injuries (emphasis added). Id., at 557.

We are bound by the Supreme Court's holdings in both Parker and Klecka to affirm the ALJ's denial of compensation in this matter.

We affirm and adopt the award of the administrative law judge, addressing both of the above-cited claims, as supplemented herein.

The award and decision of Administrative Law Judge Maureen Byrne, dated January 25, 2022, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of November 2022.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


DISSENTING OPINION FILED

Shalonn K. Curls, Member


Kathryn Swar, Member

Attest:

$\frac{\text { Fula }}{1} \frac{\text { Hoge }}{\text { Secretary }}$

The Commission is bound by the Court's decision in Treasurer of State v. Parker, 622 S.W.3d 178 (Mo. 2021), despite its dire consequences for the state's most severely injured workers.

As earlier stated in my dissent to the majority's June 6, 2022 Order denying the employee's April 14, 2022 Motion to Stay Appeal/Motion to Present Additional Evidence, the interests of justice demand that the Commission remand this matter to the administrative law judge to allow the employee to present additional evidence.

On February 15, 2022, well after the parties submitted their case to the administrative law judge following the November 8, 2021 hearing, the Court of Appeals of the Western District issued James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, WD85662 (February 15, 2022). ${ }^{1}$ Swafford involved the critical issue of whether the Supreme Court's decision in Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019) constituted a substantive law change establishing good cause to allow an employee to present additional evidence to meet the burden of proof in a post-2014 Second Injury Fund Claim. The appeals court found it was unfair to punish an employee for failing to introduce evidence when he did not have the benefit of the court's guidance as to the evidence necessary to make a submissible case and unfair to deny the employee an opportunity to present evidence relevant to a newly announced legal standard.

The interests of justice compel that the employee's attorney is allowed an opportunity to present additional evidence on the issue of medical causation in light of the impact of Treasurer of State v. Parker, 622 S.W. 3d 178,182 (Mo. 2021) as interpreted in Klecka v. Treasurer of Mo. As Custodian of the Second Injury Fund, 644 S.W.3d 562 (Mo. 2022). To deny the employee the ability to clarify whether he is permanently and totally disabled from his conditions excluding the sole "nonqualifying" condition of his right knee is contrary to Parker's mandate that the existence of non-qualifying disability should not be counted against the employee and Klecka's instruction that "life factors" are appropriately considered in a post-2014 permanent total disability claim.

Because the employee has been denied a full opportunity to present his case under the current state of the law, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ The Supreme Court of Missouri accepted the Second Injury Fund's Application for Transfer of Swafford on May 17, 2022. James Swafford v. Treasurer of Missouri as Custodian of Second Injury Fund, SC99563.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

JANUARY 25, 2022

16-005037

Scan Copy

@Employee . . . . : NORRIS D STANLEY 130 ST THOMAS NEW MADRID, MO 63869 @Anst Atty General: ATTY GENERAL ERIC SCHMITT 2311 BLOOMFIELD ST STE 106 CAPE GIRARDEAU, MO 63703 @Employee Attorney: ROBERT W BUTLER 10639 BUSINESS 21 HILLSBORO, MO 63050-5094

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

W0-142 (05-21) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

JANUARY 25, 2022

16-005266

Scan Copy

@Employee . . . . : NORRIS D STANLEY 130 ST THOMAS NEW MADRID, MO 63869 @Anst Atty General: ATTY GENERAL ERIC SCHMITT 2311 BLOOMFIELD ST STE 106 CAPE GIRARDEAU, MO 63703 @Employee Attorney: ROBERT W BUTLER 10639 BUSINESS 21 HILLSBORO, MO 63050-5094

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

W0-142 (05-21) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Norris Stanley

Injury No. 15-024270, 16-005037, 16-005266, 16-022878

Dependents: N/A

Employer: Noranda Aluminum, Inc.

Additional Party: The Second Injury Fund

Insurer: New Hampshire Insurance Co. (settled)

Hearing Date: November 8, 2021

Checked by: $\mathrm{MB} / \mathrm{kg}$

1. Are any benefits awarded herein?

15-024270: No

16-005266: No

16-005037: No

16-022878: No

1. Was the injury or occupational disease compensable under Chapter 287?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Was there an accident or incident of occupational disease under the Law?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Date of accident or onset of occupational disease?

15-024270: April 8, 2015

16-005266: January 21, 2016

16-005037: January 27, 2016

16-022878: March 11, 2016

1. State location where accident occurred or occupational disease contracted:

15-024270: New Madrid County, Missouri

16-005266: New Madrid County, Missouri

16-005037: New Madrid County, Missouri

16-022878: New Madrid County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease?

15-024270: Yes

16-005266: Yes

16-005037: Yes

16-022878: Yes

1. Did the