All sides of the workers’ compensation bar have been waiting on the Supreme Court to decide Treasurer v. Parker, SC98704. Parker involves an appeal by the Second Injury Fund (“Fund”) of an award of permanent total disability. The parties agreed that section 287.220.3 (the section that addresses primary injuries after 1/1/2014) applied instead of 287.220.2 (the section that addresses primary injuries that occur prior to 1/1/2014) which is the section the Commission erroneously used. The Court could have just remanded the case to the Commission to utilize the correct portion of the statute and said nothing more. Although the case was remanded back to the Commission, the Court did provide some additional guidance on the interpretation of section 287.220.3, as puzzling as that guidance might be.
The Court emphasized the conditions that must be met under 287.220.3. First, the employee must have at least one qualifying preexisting disability equal to at least 50 weeks of PPD, and that disability must be: a direct result of active military duty; or direct result of a compensable injury; or not a compensable injury but aggravated or accelerated the subsequent work-related injury; or is to the opposite extremity to the subsequent work-related injury. Second, the employee must show that he thereafter sustained a subsequent compensable work-related injury (aka primary injury) that combined with the preexisting disability to result in PTD.
To start, the Court discussed how the employee need not be at MMI from his preexisting disabilities before the primary injury occurred. Next, the Court observed that the preexisting disability does not need to have been determined to equal 50 weeks of PPD before the primary injury took place.
Next, the Court held that any and all qualifying disabilities can combine with the primary injury to result in PTD. The Fund argued that only one preexisting disability can combine with the primary injury to result in PTD. However, the Court disagreed and held that the singular use of the word “disability” presumed the plural “disabilities” and effectively held that an employee can “stack” the preexisting disabilities that qualify and combine them with the primary injury to argue that these disabilities resulted in PTD. This is very significant in cases where the employee has multiple qualifying pre-existing disabilities.
Third, the Court dismissed Mr. Parker’s argument to consider all disabilities regardless of whether they qualify under one of the four stricter categories. The Court held that so long as the preexisting disabilities qualify, they can be considered in the claim for PTD against the Fund. Interestingly, the Court notes that two claimants with identical qualifying preexisting disabilities and primary injuries should be evaluated the same way when determining if they are totally disabled regardless of whether one employee has additional non-qualifying disabilities.
So what does this mean for the long list of PTD cases where negotiations have stalled as all sides wait for some guidance on how to interpret the 2013 amendments to the Fund? Many cases continue to sit in a holding pattern as we await some guidance for changes that were made nearly a decade ago. Parker appears to be the start of that guidance, and it seems the insurmountable burden for employees to pursue benefits from the Fund has been somewhat alleviated, for now. Unfortunately, the ambiguity in Parker may leave more questions than answers.
In the larger picture, what is at stake is the increasing likelihood that employers will be held liable for PTD benefits in cases where the claimant cannot jump through the hoops necessary to establish Fund liability for PTD benefits.
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