The Missouri Court of Appeals Eastern District handed down Klecka v. Treasurer of Missouri as Custodian of the Second Injury Fund on June 22, 2021—and this is a case that employers and claimants need to be watching closely. This may be hope—or fool’s gold.
Mr. Klecka had already settled with his employer prior to trial against the Second Injury Fund (SIF). The ALJ awarded him SIF PTD benefits, but the Commission reversed and denied benefits. This appeal to the Eastern District followed.
Mr. Klecka had only one qualifying prior injury that was worth 50 weeks or more—a prior 2007 right shoulder injury that was settled for 35% of the shoulder. However, he also has a 1981 head injury from a non-work related MVA, a 1982 left knee surgery to correct a non-work-related condition, a 2005 right thumb work injury worth 9 weeks, and a 2006 work related hernia worth 30 weeks. The court believes that the non-qualifying conditions can come into consideration under the “medical and non-medical factors” language of 287.020.6.
The Eastern District was asked to determine if Mr. Klecka, a welder with a left shoulder injury and psych injury, is PTD and entitled to lifetime benefits from the Second Injury Fund. The court addresses the Parker decision head on in looking at claimant’s prior injuries as conditions of life under 287.020.6 and states that they believe this issue was not covered in the Parker decision:
We disagree with the Commission’s statutory interpretation of section 287.220.3. Our holding and disposition here are guided in part by the Missouri Supreme Court’s recent decision in Treasurer as Custodian of Second Injury Fund v Parker. No. SC 98704, 2021 WL 15547226 (Mo. Banc April 20, 2021), in which the Court rejected the Fund’s interpretation of section 287.220.3 that only one qualifying disability may be considered in combination with the primary injury to determine PTD liability against the Fund. But, we also look at to section 287.220.3’s incorporation into this analysis of section 287.020.6’s broad definition of permanent and total disability , which was not addressed in Parker, to reach our conclusion that the other medical and non-medical factors such as age, education, work experience, training, and physical condition remain proper considerations under section 287.020.6 in a post -2014 PTD claim against the Fund so long as the claimant has satisfied the 50-week minimum pre-existing disability.
The court begins by rejecting that there must be one to one synergy with the qualifying prior disability and the primary work injury to create PTD—which harmonizes with Parker. That is where the harmony ends though. Parker said that only other “qualifying” injuries can be considered in the PTD equation. The court in Klecka then notes that the experts in the case considered other (medical and non-medical) priors in finding claimant PTD. They held this was proper under 287.020.6.
The court discusses the history of the SIF and the legislative choices made in the 2013 amendments that they believe justify the expansion of liability for the SIF using 287.020.6 as the SIF amendments were not, in their opinion, made the exclusive route to SIF liability for purposes of PTD. They further discuss how, after a work injury, it was not the intent of the legislature to put the claimant in a position where neither the SIF nor the employer would be liable for PTD if claimant is no longer able to work. They state with tighter restrictions to the SIF, more liability will fall to employers, but they believe that their interpretation is consistent with the history and framework of the SIF from its inception in 1943 and evolution through the 2013 amendments.
The ultimate conclusion and holding by the court is that 287.220.3 instructs who is responsible for PTD payments when PTD is proven—and if there is one qualifying injury under 287.220.3 then the SIF is responsible. There still needs to be a determination that the claimant is not PTD from the last injury in isolation. However, they also infer that someone would still be responsible for PTD after a work injury when there are not “qualifying” SIF priors—meaning, employers. They note that they believe this decision will still follow the intent of the need for the SIF by encouraging employers to hire disabled workers by limiting employer’s liability to that from the last injury only– implying that employers would still only be responsible for the last injury in isolation.
So—what does this mean for employers? This could be very helpful in allowing employers to point to the SIF when the only injury that could qualify is not quite enough for PTD, but other conditions are. This is not a huge expansion of Parker, but it is more than we had. This case still does not state directly and openly that employers are liable when the SIF is not—but this may be a question that is addressed by the Supreme Court and another reason to be following along closely to what comes next.
Is this a case to rely upon in our cases right now—for now, yes, but if the Supreme Court accepts transfer, it would be best to await the decision of the Supreme Court. However, this is a case that should have every employer, insurer, and claimant on the edge of their seat. The SIF is applying for transfer to the Supreme Court, and we anticipate that it will be taken up by the Supreme Court for statutory clarification.
If you have any questions about this decision, please contact Catherine Goodnight or your current MVP Missouri workers’ compensation attorney.
Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances. This is not inclusive of all exceptions and requirements which may apply to any individual claim. It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.