The Missouri Supreme Court has remanded a Labor and Industrial Relations Commission (LIRC) award of state fund benefits to an injured tree trimmer, asking it to apply amendments to a statute made by the legislature in 2013 that eliminated permanent partial disability (PPD).
In Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker, the Second Injury Fund appealed the decision of the LIRC awarding permanent total disability benefits to tree trimmer Jonathan Parker because he sustained his work injuries after January 1, 2014.
“It is for the Commission – and only the Commission – to apply the statutory scheme as construed above to the facts it finds in the present case and, then, to make or deny an award based on those findings and conclusions,” wrote Missouri Supreme Court Justice Paul Wilson in the April 20 decision.
In 2013, the legislature created subsection 2 of section 287.220 for compensable work injuries occurring before January 1, 2014, and subsection 3 for compensable work injuries occurring after January 1, 2014, and while the legislature retained the pre-amendment framework for fund benefits in the subsection, it eliminated claims for PPD under subsection 3, according to the Missouri Supreme Court.
“I didn't think the statutory language compelled the result that the Supreme Court arrived at,” said attorney John J. Larsen, Jr., who submitted an amicus brief to the Missouri Supreme Court on behalf of the Missouri Association of Trial Attorneys (MATA). “We're supposed to apply strict construction of the statute and that's difficult to do when you're trying to strictly construe ambiguous statutory language. My argument was that the purpose of the fund is to encourage the employment of the partially disabled. I see that purpose largely defeated by this decision.”
Larsen asserted in his brief that workers may find it advantageous, in the long run, to collect claims from employers rather than from the Second Injury Fund, which has a history of insolvency.
“MATA is concerned generally that if down the line, as we suspect, employers are found to be liable for permanent total disability in cases where the Second Injury Fund would be liable pursuant to the decision of the Western District in Parker, employers are going to be justifiably irate,” said Larsen who works at the personal injury firm Mandel, Mandel, Marsh, Sudekum & Sanger in St. Louis.
The Second Injury Fund, a state fund for disabled workers, was deemed insolvent in 2013, according to media reports.
"An injured worker doesn't care who pays their permanent total benefits and given the Second Injury Fund’s recent history of financial insolvency, you might deem it to be a better scenario for an injured worker to collect perm total claims from employers rather than from the fund,” Larsen told the St. Louis Record. “For one, you can settle them after a trial or even before trial where the fund has artificial limits on what they can pay on any given case.”
The Second Injury Fund is funded with a surcharge paid by employers, according to the Department of Labor and Industrial Relations website.
“If employers find out they're not getting the benefit of the bargain they thought they were paying for, they're going to run to the legislature and demand a fix,” Larsen said. “We're concerned because we don't know what the legislature is going to do and secondly there's going to be a prolonged continued period of confusion, which we're left with after Parker but would only get worse if there was a change in the law.”
Larsen, who served on the LIRC for five years from 2013 to 2018, said he thought the lower court’s decision was correct.
“What I argued in my brief was that if the idea is to encourage the employment of people with disabilities and to relieve employers of liability for perm total when an injured worker is rendered totally disabled and not the result of the last accident alone, the only way to really do that is to enable employers to have some reasonable understanding of when they're liable and when liability can be avoided,” he said.