Court: Claimant fails statutory requirements for PTD benefits

To demonstrate entitlement to Second Injury Fund permanent total disability (PTD) benefits, a claimant must show she had at least one qualifying preexisting injury that qualifies under the statutory requirements, the Missouri Supreme Court ruled on April 29, reversing an award.

From 1980 to 2019, Diana Penney worked as a pharmacy technician. Her work required her to extensively use her hands by giving out prescriptions, typing on the computer, using the cash register and screwing and unscrewing prescription bottle lids.

Between 2018 and 2019, she was diagnosed with three repetitive use (occupational) diseases due to her employment. Her first injury involved her back, and she underwent two surgeries; her second involved protruding disks in her neck and upper back.

Penney’s final work-related occupational disease claim was a diagnosis of right carpal tunnel syndrome and ulnar nerve entrapment at the elbow on the left side. She stopped working after having surgery but suffered continuing pain and weakness in both hands.

She then sought PTD benefits from the Fund. An administrative law judge (ALJ) concluded Penney is permanently and totally disabled as a result of the combined effect of her occupational diseases, awarding her PTD benefits.

The Fund appealed to the Labor and Industrial Relations Commission, and the Commission affirmed the award of benefits.

Arguing Penney’s occupational diseases cannot qualify as preexisting injuries under section 287.220.3(2)(a)a(ii), the Fund appealed again.

In an opinion authored by Judge Robin Ransom, the state’s highest court reversed.

The Fund argued that an occupational disease cannot qualify as a preexisting disability under category (ii), which requires the disability to be a “direct result of a compensable injury as defined in section 287.020[.]”

Section 287.020 defines only injuries by accident, while section 287.067 defines occupational diseases, the Fund said.

The court worked its way through a legislative history of the statutory provisions to guide its analysis.

Prior to 2005, workers’ compensation statutes were to be liberally construed, and courts often “enlarged” the definition of accidental injury to include occupational disease in the workers’ compensation context, Ransom wrote.

But in 2005, the legislature changed the construction courts must apply to workers’ compensation statutes from liberal to strict and substantially modified the standards for compensability of occupational disease claims via amendments to section 287.067, “indicating a legislative intent ‘to divorce the compensability of occupational disease claims from … the statutory provisions which define ‘accident’ and ‘injury.’”

The 2005 amendments omitted the reference to section 287.020 and established an independent, detailed scheme for the compensation of occupational disease claims, delineating two different types of “compensable injuries,” each with their own scheme to determine compensability: injuries by accident as defined in section 287.020 and injuries by occupational disease as defined in section 287.067.

In 2013, the legislature again amended the workers’ compensation statutes, creating subsection 3 of section 287.220 to limit the Fund’s liability for PTD claims based on work injuries occurring after Jan. 1, 2014.

Under subsection 3, a claimant must satisfy certain conditions to make a compensable PTD claim against the Fund, including having at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of permanent partial disability and be a “direct result of a compensable injury as defined in section 287.020[.]”

The question for the court was whether Penney’s two prior occupational diseases qualified under category (ii) as “compensable injur[ies] as defined in section 287.020[.]”

“Certainly, after the 2005 amendments divorcing accidental injuries and occupational disease, the legislature’s choice to reference only section 287.020 in category (ii) strongly suggests it intended to limit category (ii) to accidental injuries,” the court wrote. “Moreover, given the Fund’s insolvency issues prior to creating category (ii), the legislature might have reasonably chosen to restrict qualifying preexisting disabilities in this manner to limit the number of workers eligible for benefits.”

The relevant portions of section 287.020.3 confirmed this conclusion, the court added, as 287.020.3(5) states the terms “injury” and “personal injuries” “shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form.”

Penney countered that the “except as specifically provided in this chapter” language brought occupational diseases within the ambit of section 287.020 because section 287.067, which is within chapter 287, renders an occupational disease a “compensable injury.”

“The Court declines to follow this logic,” Ransom wrote. “[T]he statutory framework at issue delineates two types of compensable injuries: injuries by accident and injuries by occupational disease. While occupational diseases are ‘compensable’ under section 287.067, the legislature chose to limit preexisting injuries that qualify under category (ii) to compensable injuries as defined in section 287.020, the section pertaining to injuries by accident. This Court cannot ignore the legislature’s choice to include the bolded language above, which would be rendered superfluous were this Court to accept Penney’s argument.”

Acknowledging it was not unsympathetic to Penney’s case — given her significant and debilitating injuries due to nearly 40 years working as a pharmacy technician — the court explained that whether she is permanently and totally disabled and whether she is entitled to PTD benefits from the Fund are entirely distinct questions.

The court reversed the Commission’s decision.

Judge W. Brent Powell filed a dissenting opinion, joined by Judge Paul C. Wilson.

The legislature may have intended to sharply limit employee eligibility to workers’ compensation benefits with its amendments, but the “plain and unambiguous language of the relevant statues — regardless of whether they are ‘strictly’ or ‘liberally’ construed — does not immunize the Fund from liability when an employee’s preexisting injury is an occupational disease,” he wrote. “Because repetitive-use injuries are expressly compensable under the workers’ compensation statutes, Penney’s prior occupational diseases qualify as preexisting disabilities and, combined with her primary injury, entitle Penney to benefits under the Fund.”

Mark Kelly of Kelly Law Office in Liberty, who represented Penney, did not respond to a request for comment.

Neither did the Attorney General’s Office, represented by Ayana Shiggs.

The case is Treasurer of the State of Missouri v. Penney, No. SC100693.