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Hearing loss is disability to ‘body as a whole’

A man with preexisting hearing loss, who was injured in a work-related accident, was entitled to benefits from the Second Injury Fund, the Missouri Court of Appeals has held.

The Western District found that the man’s bilateral hearing loss was an injury to the “body as a whole” based on a 2004 Missouri Supreme Court case handed down prior to changes to workers’ compensation law that required strict construction of the statute.

The fund argued that strict construction necessitated a different result, but the court pointed out in a footnote that the high court’s decision in Pierson v. Treasurer had not been expressly abrogated as had other judicial decisions.

“We reject the Fund’s contention that the legislature attempted to silently or passively abrogate Pierson by changing the construction of the statutes from a liberal to strict construction. The plain meaning of the statutory language of section 287.220 clearly includes hearing loss as an injury to the body as a whole and a preexisting liability upon which Fund liability can be founded,” Judge Gary D. Witt wrote for the court.

Christine M. Kiefer, a Jefferson City attorney with the Van Camp Law Firm, represented Carl Horton, the injured worker. She said although there are not a lot of cases where hearing loss is the preexisting disability, an important issue was how the court looked at strict construction.

“The decision is significant in that the Second Injury Fund asked the court to use strict construction in a way that it wasn’t meant to be used. Strict construction doesn’t mean you throw out common sense or legislative intent,” she said.

“The construction of the statutes sought by the Fund is not strict construction, as the Fund asks us to read into the statute a disqualification to Fund liability that is not present,” the Western District explained.

Missouri Court of Appeals Western District, located in Kansas City. Photo by Scott Lauck.

Missouri Court of Appeals Western District,
located in Kansas City. Photo by Scott Lauck.

Maggie M. Ahrens, an assistant attorney general, represented the Second Injury Fund. She did not respond to a request for comment.


Horton, an employee at Fulton State Hospital, had hearing loss in both ears when he was assaulted and knocked unconscious by a patient in 2012. He was diagnosed with a concussion and later suffered from headaches and eye sensitivity and underwent physical therapy for shoulder, neck and back pain.

The administrative law judge found that Horton’s hearing loss was a preexisting injury that was an obstacle to employment and combined with the 2012 injuries to create a greater disability. The ALJ found that the bilateral hearing loss constituted a preexisting permanent partial disability of 15.5 percent of the body as a whole. The Second Injury Fund was ordered to compensate him for 13.2 weeks of benefits for the permanent partial disability that resulted from the combination of his injuries.

On appeal, the fund argued that Horton’s preexisting disability did not meet the statutory threshold for benefits because hearing loss was not a disability to the body as a whole.

Body as a whole

Under Section 287.220.1, preexisting partial disabilities must be to a “major extremity” or to the “body as a whole,” and neither phrase is defined by the statute. “Body as a whole” has been held to mean an injury to the body that doesn’t qualify as a major extremity.

The fund argued that because hearing loss is referred to in another section, which sets out a schedule of losses to body “members,” it could not be an injury to the body as a whole for the triggering of fund liability.

But the Western District said this argument was rejected by the Missouri Supreme Court in Pierson, which held that vision loss could be an injury to the body as a whole, triggering fund liability, even though vision loss was listed in the schedule of losses.

In Horton’s case, the fund argued that the movement from liberal to strict construction after the 2005 amendments required a different result. However, the appellate court said that accepting the fund’s argument would require a holding that the legislature decided to make all injuries — except those to eyes and ears — compensable when combined with a later injury.

“There is no logical reason why the legislature would have chosen to disallow Fund compensation for only these two types of injuries. In the absence of any indication in the statutes that the legislature intended to create such a strange outcome and there being no logical reason to believe such a result was intended, we refuse to read into the statute the limitation urged by the Fund,” Judge Witt wrote.

The case is Treasurer v. Horton, WD79261.

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