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Supreme Court weighs if own ruling triggers new hearings

The Missouri Supreme Court is considering whether claimants can reopen their cases against the Second Injury Fund after the court announced a significant change in how such claims are to be handled. 

The high court heard two cases on Sept. 28 where the injured workers’ claims for permanent total disability benefits were denied. The cases landed in the high court after two districts of the Court of Appeals held that they were entitled to new hearings in the wake of a 2019 Supreme Court case, Cosby v. Treasurer of the State of Missouri.

Now the Supreme Court is considering whether the litigants had been right to adhere to an earlier precedent that had set an entirely different standard until Cosby overturned it.

“Why do you get to live in a world where you pretend that decision is immutable and won’t be challenged and isn’t going to be overruled during the pendency of this action?” Chief Justice Paul C. Wilson asked one of the claimants’ attorneys. “Nobody else in this state gets that benefit.”

Jack H. Knowlan Jr., the attorney facing the question, said attorneys and judges must rely on the law as it exists, not as it might exist depending on what the Supreme Court does.

“Where does that stop?” he said. “That’s a dangerous concept, and it flies in the face of everything I’ve ever believed or been taught about the common law system.”

The Second Injury Fund covers claims by workers whose preexisting conditions are made worse by an on-the-job injury.  In 2005, Missouri lawmakers capped the business surcharge at 3 percent that pays for the fund, causing a shortfall that nearly left the fund insolvent. Lawmakers responded with a law that, as of Jan. 1, 2014, temporarily increased the surcharge but barred new claims for permanent partial disability, or PPD, and set stricter standards for claiming permanent total disability, or PTD.

In 2017, the Western District held in Gattenby v. Treasurer that the new law restricted PTD claims only if both the preexisting and primary injuries occurred after the law’s 2014 effective date. The Supreme Court declined a request to review the case at the time.

However, in the 2019 Cosby case, the Supreme Court said in a footnote that Gattenby should no longer be followed. The ruling surprised some workers’ compensation attorneys, as the case involved a constitutional challenge to the bar on PPD, rather than the meaning of the part of the statute governing PTD.

Knowlan, an attorney with Little, Schellhammer, Richardson & Knowlan in Poplar Bluff and a former administrative law judge in the workers’ compensation system, represented Gary Weibrecht, who argued that a back injury on the job combined with several years-old injuries left him disabled. Cosby came out after Weibrecht’s hearing but before there was a ruling. Knowlan argued that he should be able to reopen the case to present evidence under the new standard. 

“I had prepared my case one way, and now all I’m asking is the opportunity to present that other evidence,” he said.

Thomas Dubuc, who sought disability benefits after falling off a ladder while running fiber optic lines, faced a similar issue with the shift in the standard. In 2020, the Western District had sent the case back to be heard under the Cosby standard, but the Labor and Industrial Relations Commission declined to accept new evidence and ruled against Dubuc.

“The law has changed, the standards we are subject to has changed,” said Dubuc’s attorney, Matt Uhrig, a solo practitioner in Ashland. “Fundamental fairness would say we should be able to reopen the case and present additional evidence.”

State attorneys representing the Second Injury Fund, however, argued that attorneys knew the Cosby case was being litigated and should have anticipated what it might require. 

“His strategic or calculated risk or whatever it may have been, or overconfidence, should not have precluded him — did not preclude him — from putting on evidence both ways,” said Keyla S. Rhoades, an assistant attorney general facing off against Knowlan.

“There were many claimants attorneys who put off trying their cases because of the uncertainty of this litigation,” assistant attorney general Sheila B. Skulborstad added separately during arguments in Dubuc’s case.

The court also heard a third workers’ compensation case that also seeks a new hearing after a denial of PTD benefits. James Swafford’s hearing was conducted after the Cosby case announced the standard. 

But Swafford’s attorney, Benjamin S. Creedy of Murphy, Taylor, Siemens & Elliott in St. Joseph, said the labor commission arbitrarily disregarded evidence that his preexisting disabilities met the standard. The case could clarify the meaning of the statue’s requirement that the preexisting injuries must “aggravate or accelerate” the subsequent work-related injury.

The cases are Weibrecht v. Treasurer, SC99493; Dubuc v. Treasurer, SC99605; and Swafford v. Treasurer, SC99563.