Injuries to multiple body parts settled as one "body as a whole" cannot combine to create SIF PTD.
In a 2-1 decision, with the Honorable Gary D. Witt dissenting, the Missouri Western District Court of Appeals affirmed the decision of the Labor and Industrial Commission to deny permanent total disability against the Second Injury Fund where one of the prior injuries that settled for an "approximate disability of 15% BAW referable to bilateral knees and the low back (400-week level)" combined with the primary injury to cause PTD.
Employee suffered a prior work-related injury in 1984 that settled for 32.5% of the left hand which is 56.875 weeks of disability. He suffered another injury in 2001 when he fell off a trailer requiring surgery on both knees and chiropractic massage on his back that settled for an "approximate disability of 15% of the body as a whole referable to bilateral knees and the low back (400-week level), which is 60 weeks of disability. He suffered a third, final, and primary injury in 2015 and at trial the administrative law judge concluded he was permanently and totally disabled due to the primary injury together with his prior disabilities form the 1984 and 2001 injury. The Commission reversed the ALJ's decision finding that Employee failed to prove he was PTD due solely to the combination of the primary injury and qualifying pre-existing injuries.
One of the conditions to make a compensable PTD claim against the Second Injury Fund is that the Employee have a medically documented preexisting disability equaling a minimum of 50 weeks of permanent partial disability which is a direct result of a compensable work-related injury as defined in §287.020. The Employee must then prove that this qualifying preexisting disability combines with the primary injury to result on PTD. The Supreme Court in Treasurer of State v. Parker held that while the primary injury can combine with multiple preexisting disabilities to satisfy §287.220.3(2)(a)b, each preexisting disability must qualify to be considered. Therefore, an employee must show that the primary injury results in PTD when combined only with all preexisting disabilities that qualify under one of the eligibility criteria. The Supreme Court also held in Kleka v. Treasurer of Mo. that the Employee does not satisfy these conditions where there is no evidence indicating he would still be PTD absent his non-qualifying injuries.
The Court explained that the burden is on the employee to demonstrate that his preexisting disabilities qualify under §287.220.2, and that here, Employee's prior 2001 Injury resulted in clearly differentiable disabilities none of which resulted in PPD of at least 50-weeks. The Commission may not treat the disability to the back and the disability to the bilateral knees as one disability for purposes of §287.220.3, such that they would meet the 50-week PPD minimum. The Compromise Settlement simply agrees to an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves, a function necessary to determine whether either qualifies as a preexisting disability as defined by §287.220.3(2). Because Employee's expert opinions and the ALJ concluded that he was PTD considering the non-qualifying preexisting 2001 disabilities, with no evidence that Employee would still be rendered PTD absent his non-qualifying injuries, the second condition of §287.220.3 is not satisfied resulting in a denial of PTD benefits against the Second Injury Fund. The Court did not address whether the Employer / Insurer is responsible for a permanently and totally disabled Employee when the Second Injury Fund is not liable due to the combination of non-qualifying disabilities resulting in PTD. Adams v. Treasurer of the State of Missouri - Custodian of the Second Injury Fund, WD 84818, decided October 25, 2022.