Treasurer of State v. Parker

• Decision Date: 20 April 2021
• Docket Number: No. SC 98704,SC 98704
• Citation: 622 S.W.3d 178
• Parties: TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Appellant, v. Jonathan PARKER, Respondent.
• Court: Missouri Supreme Court

622 S.W.3d 178

TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Appellant,

v.Jonathan PARKER, Respondent.

No. SC 98704

Supreme Court of Missouri, en banc.

Opinion issued April 20, 2021

The fund was represented by Eric W. Lowe of the attorney general's office in Kansas City, (573) 751-3321.

Parker was represented by Steffanie Stracke of Edelman & Thompson LLC in Kansas City, (816) 561-3400.

The Missouri Association of Trial Attorneys, which filed a brief as a friend of the Court, was represented by Todd C. Werts of Lear Werts LLP in Columbia, (573) 875-1991.

Paul C. Wilson, Judge

The Second Injury Fund (the "Fund") appeals the decision of the Labor and Industrial Relations Commission (the "Commission") awarding permanent total disability ("PTD") benefits to Jonathan Parker under section 287.220.2.¹ Because Mr. Parker's injuries occurred after January 1, 2014, all parties agree the Commission erred in applying subsection 2 of section 287.220 rather than subsection 3 of that statute. The Fund argues this Court should deny Mr. Parker benefits under subsection 3, and Mr. Parker argues this Court should award him benefits under subsection 3. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. Because article V, section 18 of the Missouri Constitution permits this Court to review only the decisions and findings of the Commission, not to make such decisions in the first instance, this Court vacates the Commission's award of PTD benefits to Mr. Parker and remands the case to the Commission to determine whether Mr. Parker is entitled to benefits under subsection 3.

Background²

From 2004 to 2015, Mr. Parker worked as a tree-trimmer for Asplundh. Mr. Parker suffered a work-related injury to his right elbow and shoulder in March 2014. In June 2014, Mr. Parker suffered another work-related injury to his neck. Dr. Stechschulte performed surgery on Mr. Parker's right arm in August 2014. Following this surgery, Mr. Parker continued to work for Asplundh, but he did not return to his position as a tree-trimmer, instead performing only light-duty work. In September 2015, Dr. Adrian Jackson performed a cervical discectomy and fusion surgery on Mr. Parker. He did not return to work for Asplundh following this surgery. Mr. Parker asked to return to work at Asplundh in a capacity that did not involve tree climbing, but he never heard back from Asplundh. In June 2016, Mr. Parker attempted to work at Dollar Tree stocking shelves, but quit after a few weeks due to pain from his injuries.

Mr. Parker filed claims against the Fund for his March 2014 injury and his June 2014 injury. After he dismissed his claim for the March 2014 injury, Mr. Parker proceeded to a hearing on his June 2014 injury. At the hearing, Mr. Parker offered a medical report authored by Dr. James Stuckmeyer. Attached to Dr. Stuckmeyer's report were medical records that Dr. Stuckmeyer reviewed but did not prepare. The Fund did not object to the admission of Dr. Stuckmeyer's complete medical report, but the Fund objected to the admission of the records attached to the report. The administrative law judge ("ALJ") overruled the Fund's objection. Ultimately, the ALJ found the Fund liable for PTD benefits under section 287.220.2. The Commission adopted the award of the ALJ (as supplemented and corrected) in its "Final Award Allowing Compensation."

Analysis

This Court reviews the Commission's findings to determine if they are "supported by competent and substantial evidence upon the whole record," but questions of statutory interpretation are questions of law reviewed de novo. Cosby v. Treasurer of State , 579 S.W.3d 202, 205-06 (Mo. banc 2019) (quotation marks omitted). "When interpreting statutes, this Court must ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms and give effect to that intent if possible." Id. at 206 (alteration and quotation marks omitted). Further, this Court refrains from adding words to the statute. Macon Cnty. Emergency Servs. Bd. v. Macon Cnty. Comm'n , 485 S.W.3d 353, 355 (Mo. banc 2016).

I. Statutory Construction³

In 2013, the legislature amended section 287.220 to limit the number of workers eligible for fund benefits because the Fund was insolvent. Cosby , 579 S.W.3d at 205. 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. Id. at 207-08. Although the legislature retained the pre-amendment framework for fund benefits in subsection 2, it eliminated claims for permanent partial disability ("PPD") under subsection 3. Further, the legislature limited the Fund's liability for PTD claims under subsection 3.

Under subsection 3, employees now must meet two conditions to make a compensable PTD claim. First, the employee must have at least one qualifying preexisting disability. § 287.220.3(2)(a). To qualify under the first condition, the preexisting disability must be medically documented, equal at least 50 weeks of permanent partial disability, and meet one of the following criteria:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear[.]

§ 287.220.3(2)(a)(i)-(iv). Second, the employee must show he "thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability ... results in a permanent total disability...." § 287.220.3(2)(b). The "subsequent compensable work-related injury" is often referred to as the "primary injury."

The Fund argues the first condition can be met only when the preexisting disability is determined to have reached maximum medical improvement ("MMI") before the employee suffered his primary injury. The Fund reasons that section 287.220.3(2)(a) requires the employee's preexisting disability equal a minimum of 50 weeks of PPD. The Fund further contends PPD cannot be calculated before the injury reaches MMI. The Fund concludes an employee whose preexisting disability has not been determined to reach MMI before he suffered his primary injury did not have a preexisting disability equaling 50 weeks of PPD.

Section 287.220.3(2)(a), however, requires only that "[a]n employee has a medically documented preexisting disability equaling a minimum of fifty weeks of [PPD]" before suffering the primary injury. [Emphasis added.] That the employee's disability was determined to reach MMI after he suffered his primary injury does not mean the employee suffered his preexisting disability after he suffered his primary injury. The statute does not require the employee know his injury equals a minimum of 50 weeks of PPD before suffering the injury or that PPD already be established in proceedings before the Commission. Accepting the Fund's reading of section 287.220.3(2)(a) would require this Court to add words to the statute. Therefore, an employee who suffers a preexisting disability before his primary injury can meet the first condition regardless of whether he knew (or it had been determined) before suffering his primary injury that his preexisting disability equaled 50 weeks PPD.

To meet the second condition, the Fund argues only one preexisting disability can combine with the primary injury to result in PTD. Again, this Court disagrees. Although section 287.220.3(2)(b) refers to the preexisting disability in the singular form – "when combined with the preexisting disability " – section 1.030 instructs that the singular form should be interpreted to include the plural form.⁴ (Emphasis added.) Therefore, section 287.220.3(2)(b) should be read to include "when combined with the preexisting disabilities ."

Mr. Parker argues the second condition can be met by showing the primary injury resulted in PTD when combined with all of the employee's disabilities (regardless of whether those disabilities meet the first condition). This argument also fails. Section 287.220.3(2)(b) specifies that the subsequent work-related injury must combine "with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph ." (Emphasis added.) By specifying that the preexisting disability must qualify under one of the four eligibility criteria in the first condition, the legislature excluded disabilities that are not the primary injury and that do not qualify under the first condition from being considered when determining if the claimant meets the second condition. Therefore, an employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.

Mr. Parker argues that only considering qualifying preexisting disabilities when determining if a claimant meets the second condition would render some claimants "too qualified," but that is not the case. The existence of non-qualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition. In other words, two claimants with identical qualifying preexisting disabilities and primary injuries should be evaluated the same way when determining if they meet the...