The Law Firm of Ronald D. Edelman, Attorney along with associates Marshall Edelman and Steven Edelman are handling the case in Missouri which is challenging the constitutionality and interpretation of enhanced permanent partial disability benefits against the Missouri Second Injury Fund. To our knowledge it is the first and only case to do so. We are therefore informing both claimants and practitioners as to the following.
On 1/1/2014, Missouri work comp law section 287.220 was changed. The interpretation and constitutionality of the change is now in dispute. This section of the work comp law has provided benefits since the 1940s from the Second Injury Fund. The Fund is managed by the Missouri State Treasurer.
The Fund was created to pay for injured workers additional benefits for the combinational effects of certain pre-existing injuries and a new work injury. It does not matter whether the pre-existing injury was work related.
The reason why the Fund was created has been clear for nearly three quarters of a century. The courts announced the Fund was created by the Legislature to encourage employers to hire handicapped persons. Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955 (Mo 1963). The focus of the Fund is to compensate for the potential that a “previous injury” would give rise to prospective employer’s incentive to discriminate. Wuebbeling v. West County Drywall, 898 S.W.2d 615,, 620 (Mo. App. E.D. 1995)
The Fund has taken the position that the change of Missouri Work Comp law section 287.220.2(3) eliminated permanent partial disability claims against the Fund after 1/1/2014.
On 8/16/2017, the Labor and Industrial Relations Commission for the Missouri Department of Labor that hears appeals of Workers’ Compensation matters issued an award in Douglas Cosby v. Drake Carpentry Inc. (LIRC 14-003644) denying compensation for a claim against the Fund for permanent partial disability involving a primary injury that occurred after 1/1/2014.
The Commission stated in Cosby that rather than extinguishing any rights or removing any existing remedy, the legislature shifted back to the employer and their insurers any liability that would have otherwise rested with the Second Injury Fund
The Commission stated, “In our view, the 2013 amendments to 287.220 work the effect that employer and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of pre-existing disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries.
The Commission cited the case of Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963) that states, “”in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury.”
Based on the Cosby Commission decision, the EMPLOYER is now responsible for enhanced combinational PPD benefits.
It can also be interpreted that any PTD combinational benefits that used to rest with the Fund but no longer do because of the more rigorous guidelines are now the responsibility of the Employer.
This case is currently on appeal by our office. The Commission decision can be found on their website here.