Motton v. Outsource Intern., ED 79862.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKathianne Knaup Crane
Citation77 S.W.3d 669
PartiesVertie MOTTON, Claimant/Respondent, v. OUTSOURCE INTERNATIONAL, Employer, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Appellant.
Docket NumberNo. ED 79862.,ED 79862.
Decision Date11 June 2002
77 S.W.3d 669
Vertie MOTTON, Claimant/Respondent,
v.
OUTSOURCE INTERNATIONAL, Employer, and
Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Appellant.
No. ED 79862.
Missouri Court of Appeals, Eastern District, Division One.
June 11, 2002.

[77 S.W.3d 671]

Robert E. Ballman, St. Louis, MO, for respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., M. Jennifer Sommers, Assistant Attorney General, St. Louis, MO, for appellant.

KATHIANNE KNAUP CRANE, Judge.


In this workers' compensation case, the Second Injury Fund appeals from the final award of the Labor and Industrial Relations Commission (Commission) finding Second Injury Fund liability. The Second Injury Fund asserts that the Commission erred in holding section 287.220.1 RSMo (1994) ambiguous and finding claimant's preexisting permanent partial arm injury at the shoulder of 12.5% met the statutory minimum of 15% permanent partial disability for Second Injury Fund liability. We reverse.

Claimant was employed by Tandem St. Louis/Outsource International (employer). On June 17, 1998, while performing her duties on an assembly line, claimant partially lost her balance while climbing down a ladder and injured her left ankle, left foot, and left leg.

On November 16, 1998 claimant filed a workers' compensation claim for the June 17, 1998 injury. Claimant settled that claim against employer for a lump sum in the amount of $5,964.67 based on a disability rating of 22.5% of the body as a whole. Claimant also made a claim for permanent partial disability against the Second Injury Fund, alleging that she had sustained a prior injury to her left arm at the shoulder. At the hearing on Second Injury Fund liability, claimant introduced a Stipulation for Compromise Settlement with Manpower, Inc., from an August 28, 1997 injury, "based upon approximate disability of 12.5% of left arm at shoulder."

On February 9, 2001 the ALJ issued an award granting claimant compensation from the Second Injury Fund. In his rulings of law, the ALJ found section 287.220 ambiguous "when it states '15% permanent partial disability for a major extremity' and does not specify number of weeks of disability." The ALJ continued:

When it refers to major extremity it is unclear as to what level of the major extremity is being referred. In the case of the arm there are five different levels of value referenced under the statute (hand-wrist, forearm, elbow, upper arm, and shoulder) and for the leg there are five different levels of value (foot, ankle, knee[,] upper leg, and hip). Fifteen percent permanent partial disability for each of these arm and leg levels results in a different amount of disability, unlike the definite weeks mentioned for an injury to the body as a whole (50 weeks).

Because he found the statute ambiguous, the ALJ determined that "major extremity" means the arm at the level of the wrist and that "fifteen percent" was 15% of the number of weeks of compensation for the arm at the wrist (175 weeks) or 26.5 weeks of compensation. The ALJ concluded that, because a 12.5% disability to the arm at the shoulder resulted in 34.8 weeks of disability compensation and 34.8 weeks exceeded the 26.5 weeks representing 15% of weeks of permanent partial disability at the level of the wrist, the Second Injury Fund threshold limits were satisfied.

The Second Injury Fund filed an Application for Review with the Commission. The Commission adopted the findings and conclusions of the ALJ, with one member dissenting, and awarded compensation from the Second Injury Fund.

For its sole point, the Second Injury Fund contends that the Commission erred in finding that claimant's preexisting 12.5% shoulder disability met the

77 S.W.3d 672

statutory threshold for Second Injury Fund liability. The Second Injury Fund argues that section 287.220.1 requires a minimum finding of 15% permanent partial disability for a preexisting major extremity injury, and claimant's 12.5% permanent partial disability for a preexisting injury to the arm at the shoulder does not meet the statutory minimum.1

We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Soos v. Mallinckrodt Chemical Co., 19 S.W.3d 683, 685 (Mo.App.2000). In workers' compensation cases, we broadly and liberally interpret the law with a view to the public interest and with an understanding that the law is intended to extend its benefits to the largest possible class. West, 804 S.W.2d at 746 (quoting Wolfgeher v. Wagner Cartage Serv., Inc., 646 S.W.2d 781, 783 (Mo. banc 1983)). Although a liberal construction of the workers' compensation statute in favor of claimants is required, "this principle may not be extended so far as to destroy what we believe to be a `clearly indicated' intent of the legislature." Staples v. A.P. Green Fire Brick Co., 307 S.W.2d 457, 463 (Mo. banc 1957); see also Simpson v. Dale E. Saunchegrow Const., 965 S.W.2d 899, 905 (Mo.App.1998). Accordingly, we do not ignore the statute's language to award compensation where the statute does not so provide.

Where one asserts a right under such [worker's compensation] act, he must find his justification therefor in the provisions of such act, based upon the language used, DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; and provisions not therein found plainly written or necessarily implied from what is written will not be imparted or interpolated therein in order that the existence of such right may be made to appear when otherwise, upon the face of said act, it would not appear.

Allen v. St. Louis-San Francisco Ry. Co., 338 Mo. 395, 402, 90 S.W.2d 1050, 1053 (Mo.1935). "We are not at liberty to write into the Act `under the guise of construction, provisions which the legislature did not see fit to insert.'" Simpson, 965 S.W.2d at 905 (quoting State ex rel. Mills v. Allen, 344 Mo. 743, 755, 128 S.W.2d 1040, 1046 (Mo. banc 1939)).

Section 287.220 directs when compensation is to be paid from the Second Injury Fund as well as the amounts to be paid from the fund in "[a]ll cases of permanent disability where there has been previous disability." Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App.2000); section 287.220.1. "`Permanent partial disability' means a disability that is permanent in nature and partial in degree." Section 287.190.6. The portion of section 287.220 that is the subject of this appeal provides:

If any employee who has a preexisting...

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13 cases
  • Treasurer of State v. Witte, s. SC 92834
    • United States
    • United States State Supreme Court of Missouri
    • 12 Noviembre 2013
    ...combining injuries is not consistent with the language of section 287.220.1 and already has been rejected. See Motton v. Outsource Int'l, 77 S.W.3d 669, 674–75 (Mo.App.2002). In Motton, the court of appeals held that the commission erred in considering whether a major extremity disability m......
  • State v. Civil Service Com'n, ED 82384.
    • United States
    • Court of Appeal of Missouri (US)
    • 12 Noviembre 2003
    ...990 S.W.2d 64, 66 (Mo.App.1999). We look to a dictionary for the plain and ordinary meaning of words. Motton v. Outsource Intern., 77 S.W.3d 669, 673 (Mo.App.2002). We may also look at prior judicial meanings given to the words. Leiser v. City of Wildwood, 59 S.W.3d 597, 603 (Mo.App.2001). ......
  • Treasurer of Mo. v. Witte, SC92834
    • United States
    • United States State Supreme Court of Missouri
    • 12 Noviembre 2013
    ...combining injuries is not consistent with the language of section 287.220.1 and already has been rejected. See Motton v. Outsource Int'l, 77 S.W.3d 669, 674-75 (Mo. App. 2002). In Motton, the court of appeals held that the commission erred in considering whether a major extremity disability......
  • Treasurer of Missouri v. Witte, WD74644
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Septiembre 2012
    ...disability in order to determine if the minimum threshold was satisfied. But, as explained in Motton v. Outsource International, 77 S.W.3d 669, 672 (Mo. App. E.D. 2002), "[w]e are not at liberty to write into [a statute] under the guise of construction, provisions which the legislature did ......
  • Request a trial to view additional results

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