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Home / Opinions / Courts / Court of Appeals, Western District / Workers’ Compensation: SIF Insolvency – Compelled Payment – Writ Of Mandamus

Workers’ Compensation: SIF Insolvency – Compelled Payment – Writ Of Mandamus

Where a trial court entered a writ of mandamus ordering the state officials to pay a permanent total disability award entered in favor of a claimant against the state’s Second Injury Fund, the grant of mandamus is reversed because mandamus cannot issue to compel a full payment to the claimant since the fund is legally insolvent, but the case is transferred to the Missouri Supreme Court based on its general interest and importance.

Untenable position

Concurring opinion by Ahuja, J. :“I share the concerns expressed by both Judges Martin and Howard concerning the untenable position in which far too many disabled workers have been placed, due to the significant underfunding of the Second Injury Fund. Nevertheless, under existing caselaw which we are bound to follow, and in light of the narrow claim Mr. Skirvin has chosen to assert, I agree with Judge Martin that reversal is required.

“While I agree with much of what is said in Judge Martin’s thoughtful opinion, and with the result that opinion reaches (including the decision to transfer this important case to the Missouri Supreme Court), I believe this appeal can be decided without reaching many of the novel and difficult legal issues she addresses. In particular, in my view it is unnecessary for this Court to decide whether the Second Injury Fund is ‘insolvent,’ or has an ‘inexhaustible taxing power,’ to decide this appeal. To the contrary, reversal is required by State ex rel. Drainage District No. 8 of Pemiscot County v. Duncan, 68 S.W.2d 679 (Mo. banc 1934), whether or not the Fund has the ability to replenish itself.”

First come, first served

Dissenting opinion by Howard, J.: “While appellants acknowledge that the SIF has the funds to pay Mr. Skirvin’s claim, they denied payment because there are not enough funds to pay all claims, and it would not be equitable for Mr. Skirvin to go to the front of the line. But he is legally entitled to do so under the ‘first come, first served’ rule….

“The rights at issue here were created by the legislature, and the claimants of the SIF are seeking access to the exclusive remedy devised and implemented by the legislature. Inadequate funding of the SIF emasculates that remedy, and there is no substitute available.

“Mr. Skirvin has a present, clear, and unconditional right to be paid his award in full. The funds are available, and the State has the ability and obligation to replenish the funds for others. I would affirm the trial court. I concur in the majority’s order to transfer.”

Judgment is reversed; transferred.

Skirvin v. Treasurer (MLW No.64581/Case No. WD75541 – 50 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from circuit court, Cole County, Joyce, J. (Andrew H. Marty, St. Peters, for respondent) (Ronald R. Holliger and John R. Phillips, Jefferson City, for appellant).

Read the full text of this opinion. (PDF)