A trio of recent Missouri Supreme Court cases could add new obstacles to the already difficult path that injured claimants must follow to recover from the state’s Second Injury Fund.
The court on Jan. 10 affirmed earlier decisions by the Labor and Industrial Relations Commission to deny claims for three workers who had alleged that on-the-job injuries coupled with previous injuries had rendered them permanent totally disabled.
In two of the rulings, the court’s majority denied new hearings for claimants whose cases had been tried under a standard set by a Court of Appeals opinion that the Supreme Court subsequently overturned. Though disappointing for the two claimants, the ruling likely affects only a small number of cases that were tried around the same time.
But other parts of the Supreme Court’s rulings could be consequential to workers’ compensation lawyers seeking to prove fund liability in the future. In one case, the majority held that the employee’s report to his doctors that he’d undergone hernia surgery many years before didn’t meet the statutory requirement that his injury be “medically documented.”
And in another case, the majority agreed that a doctor’s testimony about the effect of the worker’s old injuries wasn’t specific enough to prove that it “directly and significantly aggravated or accelerated” his new injury.
“I think that, between the legislature and the Supreme Court, work comp practitioners have been shoved between the proverbial rock and a hard place,” said Matt Uhrig, an attorney in Ashland who represented Thomas Dubuc, one of the three claimants whose cases were before the court.
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The Second Injury Fund covers claims by workers whose preexisting conditions are made worse by an on-the-job injury. Its funding comes from a surcharge on the premiums that businesses pay for workers’ compensation insurance. In 2005, Missouri lawmakers capped the surcharge at 3 percent, causing a shortfall that nearly left the fund insolvent.
Lawmakers passed a law that, starting in 2014, temporarily increased that 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 Court of Appeals Western District held in Gattenby v. Treasurer of the State of Missouri that the new law restricted PTD claims only if both the preexisting and primary injuries occurred after the law’s 2014 effective date. That ruling appeared to be controlling at the time that administrative law judges held hearings in 2019 for Dubuc and another PTD claimant, Gary Weibrecht.
But later that year, the Supreme Court held in Cosby v. Treasurer that the 2014 law’s stricter standards applied if any of the injuries occurred after the law’s effective date. The decision specifically overruled Gattenby.
Despite the shift in the standard, the Supreme Court’s majority said Weibrecht and Dubuc should have known the high court hadn’t fully settled the issue yet at the time of their hearings. Judge Mary R. Russell, who wrote all three Jan. 10 rulings, wrote that “nothing precluded” the claimants from making alternative arguments or presenting evidence under both versions of the statute.
Uhrig, Dubuc’s attorney, said it was unfair to require his client to have anticipated that Gattenby might be overruled.
“It feels like there’s been a violation of our client’s due process rights,” he said.
Jack Knowlan Jr. of Little, Schellhammer, Richardson & Knowlan in Poplar Bluff, who argued for Weibrecht, couldn’t be reached immediately for comment.
Judge Patricia Breckenridge dissented in Weibrecht’s case, writing that he should have been allowed to have a new hearing.
“Justice requires that Mr. Weibrecht be allowed to present evidence to satisfy the governing legal standard as clarified after his case was heard,” she wrote. However, she didn’t object to the similar outcome in Dubuc’s case, which the labor commission already had reheard under the Cosby standard following a Western District remand in 2020. Breckenridge agreed with the majority that the appellate court’s mandate required the commission to consider only the existing record.
However, Breckenridge dissented from Dubuc’s case on other grounds. Dubuc, who sought fund benefits after falling off a ladder while running fiber optic lines, had undergone hernia repairs starting while he was in the Navy in the 1980s. Although he produced doctors’ notes indicating what he’d told them about those surgeries, the Supreme Court’s majority agreed with the commission’s determination that a “self-reported” history didn’t satisfy the 2014 statute’s requirement that prior injuries be “medically documented.”
“The Commission did not add a requirement by looking for support that is authoritative in the medical field of Dubuc’s hernias, rather, it applied the plain language of the statute,” Russell wrote, adding that the purpose of the 2014 amendments was to restrict the fund’s liability rather than broaden it.
But Breckenridge, joined by Judge George W. Draper III, noted that providers are only required to maintain medical records for seven years.
“Given that the last surgery occurred in the mid-1990s, it would have been surprising had Mr. Dubuc been able to submit medical records some 20 years later from the providers who treated his hernias,” she wrote. She also said there was additional evidence of the surgeries, including a CT scan that showed signs of past hernia repairs.
Uhrig said the ruling will make it difficult to base claims on any injury older than 10 years. As a result, he said, his advice to clients will be to refuse to settle their cases and to take both the employer and the Second Injury Fund to trial.
‘Directly and significantly’
A similar split arose in the third case, in which James Swafford had sought fund benefits but was rebuffed after the commission said he’d failed to prove that his prior injuries “directly and significantly aggravated or accelerated” his more recent injury. A medical expert had testified that Swafford’s preexisting disabilities, which included a congenital condition that caused his spine and rib bones to fuse together over time, had a “synergistic effect” on the rotator cuff tear he suffered at work. But the majority said that phrase was more closely associated with pre-2014 caselaw and no longer met the standard.
“Hence, the impact of the preexisting disabilities on the primary injury must be more than incidental; they must clearly exacerbate the primary injury in a meaningful way,” Russell wrote.
Breckenridge, again joined by Draper, disagreed with the majority’s characterization of the evidence, saying the testimony clearly showed that Swafford’s injuries while working as a truck hostler “not only closed the door on his ability to do that job, but it also closed the door on any other job that might be available in the open labor market.”
Although the majority opinion insisted that medical providers do not have to use “magic words” to satisfy the statute, Benjamin S. Creedy of Murphy, Taylor, Siemens & Elliott in St. Joseph, an attorney for Swafford, wasn’t so sure. He said it will probably be necessary either to persuade doctors to use the precise language of the statute or, failing that, to hire another doctor.
“In some cases, you can find experts who know the language, use the language and use it appropriately,” Creedy said. “In other cases, you have doctors who speak doctor. It presents an obstacle, I think, in some cases to use the magic words.”
The cases are Weibrecht v. Treasurer, SC99493; Dubuc v. Treasurer, SC99605; and Swafford v. Treasurer, SC99563.