Pamela McCoy v. Meridian Medical Technology

[^0] [^0]: ${ }^{1} 644 S.W.3d 562 (Mo. banc April 26, 2022). { }^{2} 643$ S.W.3d 501 (Mo. banc Mar. 15, 2022).

(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 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; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

Under § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." ${ }^{3}

According to the Supreme Court in Second Injury Fund v. Parker, { }^{4}$ in order to establish a compensable Second Injury Fund claim under § 287.220.3, an employee must meet two conditions:

(1) Have at least one "qualifying" preexisting disability as defined by § 287.220.3(2)(a);

(2) Thereafter sustain a subsequent compensable work-related injury that combined with employee's qualifying preexisting disability(ies) results in permanent total disability. ${ }^{5}$

[^0]

[^0]: ${ }^{3}$ Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. Banc. 2003).

${ }^{4} 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021).

{ }^{5}$ Parker, 622 S.W.3d 178 (Mo. banc. Apr. 20, 2021). Emphasis in original.

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{6}$

In Klecka, the Court stated that:

Under section 287.220.3, employees must meet two conditions to make a compensable [permanent and total disability] claim against the [Second Injury] Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of [permanent partial disability], and meet one of four listed criteria in section 287.220.3(2)(a)a(i)-(iv).... Second, the employee must show he 'thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,] ... results in a permanent total disability as defined under this chapter.' [Section 287.220.3(2)(a)b]. As this Court recently explained in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021):

'[A]n employee satisfies the second condition by showing the primary injury results in [permanent and total disability] when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition. ${ }^{7}$

The Court in Klecka also noted that the employee in that case "correctly observes section 287.220.3 does not prohibit the consideration of other 'life factors,' including, but not limited to... age, education, transferable skills, and physical appearance." ${ }^{8}$

Commission Rule 8 CSR 20-3.030(2) provides:

(2) Additional Evidence.

(A) After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail-

1. The nature and substance of the newly discovered evidence;
2. Names of witnesses to be produced;
3. Nature of the exhibits to be introduced;
4. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge;

[^0]

[^0]: ${ }^{6} Id. at 182 .

{ }^{7} Klecka, 644 S.W.3d at 566.

{ }^{8} \mathrm{Id}$., at 567

1. Newly discovered medical evidence shall be supported by a medical report signed by the doctor and attached to the petition, shall contain a synopsis of the doctor's opinion, basis for the opinion and the reason for not submitting same at the hearing before the administrative law judge; and
2. Tender of merely cumulative evidence or additional medical examinations does not constitute a valid ground for the admission of additional evidence by the commission.

(B) The commission shall consider the motion to submit additional evidence and any answer of opposing parties without oral argument of the parties and enter an order either granting or denying the motion. If the motion is granted, the opposing party(ies) shall be permitted to present rebuttal evidence. As a matter of policy, the commission is opposed to the submission of additional evidence except where it furthers the interests of justice. Therefore, all available evidence shall be introduced at the hearing before the administrative law judge.

Employee's motions to submit additional evidence, discovery, and additional briefs have been denied. We do not believe that employee met all of the requirements of 8 CSR 20-3.030(2)(A)16. Based upon our review of employee's motion to lift stay, employee wanted the opportunity to add additional evidence (testimony) from Dr. David Volarich and vocational expert Mr. Timothy Lalk to the record.

Even if employee attached this additional testimony to her motion (thereby complying with subsection 5), we do not believe that employee has met the requirements of subsections 4 and 6. This is because this testimony could have been discovered before the first administrative law judge hearing (subsection 4), and the experts' testimony will be cumulative (subsection 6).

The Supreme Court's decision in Klecka clarified the analysis of $\S 287.220$, but did not change the law. The Klecka decision was unlike the Supreme Court's decision in Cosby v. Treasurer of State-Custodian of Second Injury Fund, ${ }^{9} a case that significantly changed how courts apply \S 287.220 .3$ in Missouri workers' compensation cases and the result of which could not have been easily foreseen.

Although Dr. Volarich and Mr. Lalk are not attorneys, they have both served as experts for numerous workers' compensation cases prior to employee's case. They have also been around experienced attorneys that practice in the area of workers' compensation law.

If these experts truly believed that employee was permanently and totally disabled from her primary injury combined with any qualifying preexisting disability, they could have included that opinion in their original medical reports and testimony or amended their reports before the administrative law judge's hearing in employee's case. Dr. Volarich successfully amended his original report with a December 17, 2019 addendum. If employee was allowed to present this additional evidence and testimony, it would unnecessarily add several more months before a decision is rendered by the Commission in employee's case.

We do not believe that it is in the public's best interest for employee's case to remain at the Commission for several more months while employee is allowed the opportunity to obtain cumulative testimony from the same experts.

[^0]

[^0]: ${ }^{9} 579$ S.W.3d 202 (Mo. banc 2019).

The administrative law judge found employer to be liable for employee's 10\% permanent partial disability of the right elbow. The parties have not appealed this ruling. We find the administrative law judge's award of 10 % permanent partial disability of the right elbow to be supported by substantial and competent evidence, and we adopt this ruling.

We find the administrative law judge's determination of Second Injury Fund liability for employee's permanent total disability benefits to be incorrect. Here, Dr. Volarich and Mr. Lalk incorrectly considered non-qualifying preexisting disabilities in arriving at their opinions that employee is perma