Where the Labor and Industrial Relations Commission found that the 50-week minimum threshold of Section 287.220.1 for purposes of Second Injury Fund liability did not require an individual examination of each of a claimant’s pre-existing permanent partial disabilities but a determination of the claimant’s overall pre-existing PPD, the judgment is reversed because the court finds that the language of the statute requires that each pre-existing PPD must be considered in isolation to determine whether the thresholds are satisfied, but the court transfers the case to the Missouri Supreme Court based on general interest and importance.
Opinion concurring in part; dissenting in part by Pfeiffer, J.: “Respectfully, I concur in part and dissent in part. I concur with the majority opinion’s conclusion that the Commission erred in its § 287.220.1 minimum threshold calculation (to trigger second injury fund liability) when the Commission included ‘major extremity’ weeks of preexisting disability in its ‘body as a whole’ calculation of Claimant’s preexisting permanent partial disability. However, I respectfully dissent with the majority opinion’s ruling that this legal conclusion ends the Fund liability threshold discussion….
“While I agree with the majority opinion that a claimant cannot mix and match preexisting ‘body as a whole’ injuries with preexisting “major extremity” injuries to achieve a threshold Fund-triggering level of preexisting permanent partial disability, § 287.220.1 plainly permits combining multiple preexisting ‘injuries and conditions’ within the threshold discussion of either a ‘body as a whole’ preexisting disability or a ‘major extremity’ preexisting disability, if the facts and circumstances justify it. Here, it was not error for the Commission to conclude that a workers’ compensation claimant with a preexisting spastic colon, bad back, diabetes, and serious psychiatric problems suffered from a combined ‘body as a whole’ preexisting disability representing 140 weeks of compensation—far greater than the minimum threshold of 50 7 weeks of compensation for a ‘body as a whole’ preexisting disability necessary to trigger Fund liability.”
Judgment is reversed.
Treasurer v. Witte (MLW No. 64144/Case No. WD74644 – 26 pages) (Missouri Court of Appeals, Western District, Ellis, J.) Appealed from the Labor and Industrial Relations Commission (Rochelle L. Reeves for appellant) (Douglas B. Salsbury for respondent).
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