Pierson v. Treasurer of State

• Decision Date: 13 January 2004
• Docket Number: No. SC 85386.,SC 85386.
• Citation: 126 S.W.3d 386
• Parties: Thomas PIERSON, Respondent v. TREASURER OF THE STATE of Missouri as Custodian of the Second Injury Fund, Appellant.
• Court: Missouri Supreme Court

126 S.W.3d 386

Thomas PIERSON, Respondent v. TREASURER OF THE STATE of Missouri as Custodian of the Second Injury Fund, Appellant.

No. SC 85386.

Supreme Court of Missouri, En Banc.

January 13, 2004.

As Modified on Denial of Rehearing February 24, 2004.

Jeremiah W. (Jay) Nixon, Atty. Gen., M. Jennifer Sommers, Asst. Atty. Gen., M. Todd L. Beekley, Asst. Atty. Gen., St. Louis, for Appellant.

J. Patrick Chassaing, Paul E. Martin, Clayton, for Respondent.

PER CURIAM.¹

Thomas Pierson was injured in the course of his employment with The Boeing Company when he ruptured a cervical disc. The injury required a discectomy with an allograft fusion and plating at the C5-C7 level. Pierson settled his claim against Boeing for 35 percent of the body as a whole referable to the neck, or 140 weeks of disability.

Pierson has also suffered from strabismic amblyopia since early childhood, a condition that resulted in a 100 percent loss of vision in his left eye. He alleged that the loss of vision combined synergistically with the injury to his disc to result in greater disability for which the Missouri second injury fund is liable. The fund argued that, even if the two injuries combined synergistically, under section 287.220.1² the fund was not liable for any increased disability because the fund can be held liable only if the preexisting injury is to a major extremity or to a part of the body as a whole. The fund argues that the loss of an eye is neither an injury to a major extremity nor an injury to the body as a whole; thus, the synergistic effect of Pierson's preexisting loss of use of his eye is not compensable.

The labor and industrial relations commission concluded that the fund was liable. It determined that Pierson's pre-existing eye condition amounted to 140 weeks of permanent partial disability to the body as a whole, plus an additional 10 percent, or 14 weeks, due to total loss of use for a total of 154 weeks for a total of 110 percent. The commission then determined that the two disabilities combined in a synergistic effect that was significantly greater than the disability resulting from each injury when considered separately. Applying a loading factor of 30 percent to 294 weeks for the combined disabilities, the commission assessed fund liability for 88.2 weeks at $303.01 per week totaling $26,725.48. The commission also awarded a loss of use premium.

The fund appeals. Decisions of the commission that are clearly interpretations of law are reviewed for correctness without deference to the commission's judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991). In workers' compensation cases, the law is liberally construed with a view to the public welfare, and a substantial compliance with the statutes is sufficient to give effect to the commission's awards. Section 287.800.

Applying this standard, this Court affirms the commission's determination that the combined injury is compensable by the fund under section 287.220.1, but reverses its determination that the fund is liable for any of the loss of use premium.

Section 287.220.1³ sets out the law governing when the second injury fund is liable. It provides for fund liability if the preexisting disability and the combined effect of it and the new injury are each of such seriousness that they are a hindrance or obstacle to employment and "if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability." Sec. 287.220.1. Where the statute applies, the employer is liable only for the amount of disability caused by the current injury, and the fund is liable in the amount of the increase in disability caused by the synergistic effect of the two injuries. See Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App.1990) (summarizing an earlier version of the section and explaining that the fund is liable only for the difference between the sum of the injuries and the synergistically increased disability resulting from their combination).

The fund's appeal is entirely based on its argument that the eye is neither a major extremity nor a part of the "body as a whole" as the latter phrase is used in section 287.220.1. It agrees that it would be liable for the synergistic effect of the two injuries if the eye were a major extremity or if it were part of the "body as a whole." Yet, it cites this Court neither to case law nor to a definition of "body as a whole" supporting its position. Rather, it relies on the schedule of losses set out in section 287.190.

The schedule set out in section 287.190 lists 29 types of injuries to "members" of the body for which differing numbers of weeks of compensation shall be allowed, depending on the seriousness of the loss. A loss of the lower arm, for example, is entitled to 210 weeks of compensation, while a loss of the arm at the shoulder is entitled to 232 weeks of compensation. The loss of a finger or thumb is entitled to from 16 to 60 weeks of compensation, depending on the location of the loss. The term "members" is not defined, but the schedule lists losses of arms, hands, fingers, legs, feet, toes, ears, and eyes. Subsection 3 states that partial permanent injuries to these parts of the body shall be proportionately recompensed.

The fund argues that, as the schedule set out in section 287.190 refers to the eye as a "member," this means that the eye cannot be considered to be a part of the body as a whole. But, section 287.190 does not use the term "body as a whole" at all, nor say that "members" are not parts of the body as a whole. Indeed, as noted, the relevant statutes nowhere define the phrase "body as a whole."

Moreover, the fund admits that injuries to all of the other members of the body listed in section 287.190 other than eyes and ears are compensable by the fund as injuries to "major extremities" and that injuries to all parts of the body not listed in section 287.190 are compensable by the fund as injuries to parts of the "body as a whole." To accept the fund's interpretation of sections 287.190 and 287.220, then, this Court would be required to hold that the legislature has chosen to make all injuries except those to the eyes and ears compensable by the fund when they combine synergistically with a later injury.

The fund's position is rejected. It offers no logical reason why the legislature would chose not to allow fund compensation for these two types of injuries, but would for all others. It offers no citation to case law or statute that specifically so requires, instead asking the Court to infer from a table that grants employer compensation for an injury to the eye the conclusion that fund compensation would not be allowed. Such a conclusion would be inconsistent with the statutory directive to interpret the workers compensation laws with a view to the public welfare and with permitting substantial compliance with the statutes to give effect to the commission's awards. Sec. 287.800. The purpose of the fund is to encourage the employment of individuals who are already disabled from a preexisting injury, regardless of the type or cause of...