Opinion
No. ED 81979
June 10, 2003
Appeal from the Labor and Industrial Relations Commission.
J. Patrick Chassaing, 130 S. Bemiston, Suite 200, Clayton, MO, 63105, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Appeal Box 899, Jefferson City, MO, 65102, Todd L. Beekley, Asst. Atty. Gen., M. Jennifer Sommers, Asst. Atty. Gen., 720 Olive Street, Suite 2000, St. Louis, MO, 63101, for respondent.
The Second Injury Fund (Fund) appeals the award of the Labor and Industrial Relations Commission (Commission) affirming the decision of the Administrative Law Judge (ALJ) finding Second Injury Fund liability in the amount of $26,725.48 for Thomas Pierson's (Employee) permanent partial disability for a pre-existing eye blindness. The Fund contends the Commission erred in finding it liable for permanent partial disability to the eye, in that the eye is neither a "body as a whole injury" or a "major extremity injury" as required by Section 287.220.1, RSMo 2000. The Fund also argues the Commission erred in finding the Fund liable for the loss of use premium under Section 287.190.2 and increasing Employee's award by 10 percent. We transfer to the Missouri Supreme Court.
All further statutory references are to RSMo 2000 unless otherwise indicated.
Employee was injured in the course of his employment with The Boeing Company (Employer) when he ruptured a cervical disc. The injury required surgery — specifically a discectomy with an allograft fusion and plating at the C5-C7 level. Employee settled his primary injury claim against Employer for 35 percent of the body as a whole referable to the neck, or 140 weeks of disability.
Employee also suffered from a pre-existing condition. Diagnosed with strabismic amblyopia, Employee has had a 100 percent loss of vision in his left eye since early childhood. The ALJ found that Employee's pre-existing condition amounted to 140 weeks of permanent partial disability, plus an additional 10 percent, or 14 weeks, due to total loss of use for a total of 154 weeks for a total of 110 percent. The ALJ found that the two disabilities combined in a synergistic effect was significantly greater than the disability resulting from each injury when considered separately. Applying a loading factor of 30 percent to 294 weeks for the combined disabilities, the ALJ determined Second Injury Fund liability for 88.2 weeks at $303.01 per week totaling $26,725.48.
The Fund appealed to the Commission. The Commission affirmed and adopted the decision of the ALJ. This appeal follows.
In its first point, the Fund contends the Commission erred in finding it liable for permanent partial disability to an eye. The Fund argues that an eye is neither a "body as a whole injury" nor a "major extremity injury" and therefore is not compensable under Section 287.220.1.
We review decisions of the Commission that are clearly interpretations of law for correctness without deference to the Commission's judgment.West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo.banc 1991). In workers' compensation cases, we broadly and liberally interpret the law with a view to the public interest and with an understanding that the law is intended to extend its benefits to the largest possible class. Id. at 746.
Section 287.220 sets out when a claimant can recover against the Fund. To recover against the Fund based upon permanent partial disability, a claimant must show the existence of a "preexisting permanent partial disability whether from a compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." Section 287.220.2. The statute goes on to classify such disabilities and to establish thresholds for the Fund involvement as:
[T]he preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability.
Section 287.220.2. (Emphasis added.) The Fund asserts Employee's eye disability is neither a "body as a whole injury" nor a "major extremity injury only." Employee concedes that his pre-existing eye disability is not "a major extremity injury only." Thus, we must determine whether the undefined term "body as a whole" includes a pre-existing eye disability.
Relying on Section 287.190, the Fund argues that a "body as a whole injury" is equivalent to a "non-scheduled" injury. Section 287.190 contains a schedule of losses, which includes complete loss of sight in one eye at 140 weeks. Thus, the Fund argues complete loss of vision to an eye is a scheduled injury subject to 140 weeks of compensation and therefore, is not an injury to the "body as a whole" compelling application of Second Injury Fund liability. We disagree.
We find the recent decision in Palazzolo v. Joe's Delivery Services, Inc., slip op. ED81152 (Mo.App.E.D. February 11, 2003) instructive. InPalazzolo, the Commission found the Fund liable for a 15 percent permanent partial disability of the foot at the 110-week level. Id. at 2. The Fund appealed claiming that the term "major extremity" in Section 287.220.1 does not include the foot at the 110-week level. Id. The Fund argued that because the legislature made clear graduations in the value of various physical appendages under Section 287.190.1 and gave three different levels of value for injuries to the foot, the 110-, 150-, and 155-week levels, the legislature intended the 110-week level of the foot to represent an injury to roughly a third of the foot. Id. at 3. Thus, the Fund maintained that while the foot may be an "extremity," the metatarsus is a part of the foot, and should not constitute a "major extremity" as used in the statute. Id. The court rejected the Fund's argument stating:
In requiring that the subsequent partial injury equal a minimum of 15% permanent disability, the legislature did not choose to limit that threshold or define a major extremity by "levels" in the schedule of losses. The legislature was familiar with the use of levels of body parts in its schedule of compensation. Its decision not to use those levels in establishing a minimum threshold of disability indicates that it intended not to do so.
Id. (Citations omitted.) The court went on to say that the "legislature intended to make a simple 15% disability to a major extremity the threshold rather than attempt a more complex formula based on weeks of disability to various body parts at various levels." Id. The court inPalazzolo affirmed the Commission's award because the claimant met the statutory criteria in that he sustained a 15 percent disability to his foot, and the foot is a major extremity. Id.
Using the logic of Palazzolo, the Fund may not use the disability levels in the schedule contained in Section 287.190.1 to define "major extremity," and thus, it follows that the Fund may not rely on the same schedules to define "body as a whole." Section 287.190.1 establishes the limits of liability for work-related injuries. The Fund statute, Section 287.220.1, is intended to provide additional compensation for all cases of qualifying pre-existing disability. Section 287.190.1 provides guidance in assessing the amount of Second Injury Fund liability. The Fund cannot use the statute to restrict Second Injury Fund liability under Section 287.220.1, especially when the result is the compensation for some injuries under Section 287.220.1 and the exclusion of others, regardless of the level of disability involved.
The purpose of the Fund is to encourage the employment of individuals who are already disabled from a pre-existing injury, regardless of the type or cause of that injury. Boring v. Treasurer of Missouri, 947 S.W.2d 483, 487-88 (Mo.App.E.D. 1997). The Fund's interpretation would lead to an absurd result, and therefore, we are not persuaded by the Fund's argument. Here, Employee had a pre-existing injury, a complete loss of sight in one eye, scheduled at 140 weeks, which exceeds the minimum number of weeks, 50 weeks, for a "body as a whole injury." The fact that complete loss of sight in an eye is listed as a scheduled injury does not preclude Second Injury Fund liability. Thus, we believe the Commission did not err in finding the Fund liable for Employee's pre-existing disability. Point denied.
In its second point, the Fund asserts the Commission erred in finding the Fund liable for the loss of use premium pursuant to Section 287.190.2. The Fund maintains Section 287.190.2 is not applicable to the Fund and therefore the Fund is not liable for the loss of use premium.
Section 287.190 sets out the schedule to be paid for permanent partial disability. Section 287.190 provides in pertinent part:
1. For permanent partial disability, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with sections 287.170 and 287.180, respectively, the employer shall pay to the employee compensation computed at the weekly rate of compensation in effect under subsection 5 of this section on the date of the injury for which compensation is being made, which compensation shall be allowed for loss by severance, total loss of use, or proportionate loss of use of one or more of the members mentioned in the schedule of losses.
(Emphasis added.) Subsection 2 of Section 287.190 provides:
If the disability suffered in any of the items (1) through (29) of the schedule of losses is total by reason of severance or complete loss of use thereof the number of weeks of compensation allowed in the schedule for such disability shall be increased by ten percent.
Here, the Commission ordered the Fund to pay the extra 10 percent, or additional 14 weeks of disability for Employee's complete loss of sight in his left eye. The Fund asserts the loss of use premium in Section 287.190.2 only applies to the liability of an employer and not to the Fund. We agree.
Workers' compensation law is construed according to the general terms of statutory construction. Frazier v. Treasurer of Missouri as Custodian of the Second Injury Fund, 869 S.W.2d 152, 156 (Mo.App.E.D. 1993). The primary goal of statutory interpretation is to ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms used. Frazier, 869 S.W.2d at 156.
Here, Section 287.190.1 specifically provides that "the employer" shall pay. It follows that subsection 2 of Section 287.190 also applies to the amount "the employer" shall pay and the employer must pay 10 percent more when there is a complete loss of use. There is no premium for complete loss of use language in Section 287.220, the provision that governs Second Injury Fund liability. While we note that Section 287.190.1 is used by the Second Injury Fund in determining losses, we believe the loss of use premium does not apply to the Fund and only applies to the employer by the plain language of the statutes. We also look to the purposes of the Fund and the Workers' Compensation Act for guidance.
The purpose of the Fund is to encourage employment of disabled workers by reducing the liability of their employers. Wuebbeling v. Treasurer of the State of Missouri, 898 S.W.2d 615, 617 (Mo.App.E.D. 1995). In effect, the Fund removes the incentive to discriminate against disabled workers by offering assurance to employers that if the prior disability combines with a later, on-the-job injury so as to produce permanent and total disability that would not have resulted in the absence of the prior disability or condition, the employer's liability will be no greater than it would have been if the employee had been a perfectly healthy, non-disabled worker. Id. at 618.
In contrast, the general purpose of the Workers' Compensation Act is to "place upon industry the losses sustained by employees resulting from injuries arising out of and in the course of employment." Rogers v. Pacesetter Corp., 972 S.W.2d 540, 542 (Mo.App.E.D. 1998). The Act obligates the employer to provide the injured employee indemnity for loss of earning power and disability to work. Section 287.200. Additionally, the employer is also required to provide medical care to the injured employee for the treatment of his or her injury or occupational disease. Farmer-Cummings v. Future Foam, Inc., 44 S.W.3d 830, 836 (Mo.App.W.D. 2001); Section 287.140.
Considering the varying purposes of the Fund and the Workers' Compensation Act, we believe the Fund and the employer compensate for different aspects of an employee's disability. The statute recognizes this distinction in requiring the employer and not the Fund to compensate the employee for complete loss of use by increasing the employer's liability by 10 percent when there is a complete loss of use. Accordingly, we believe the Commission erred in finding the Fund liable for the loss of use premium and increasing its liability from 140 weeks, 100 percent of the eye, to 154 weeks, 110 percent of the eye.
For the foregoing reasons, we would reverse that portion of the Commission's decision finding the Fund liable for the loss of use premium and increasing the Fund's liability by 14 weeks and remand the cause to the Commission to refigure the amount of compensation the Fund is required to pay Employee for the complete loss of sight in his left eye and affirm in all respects. However, because of the general interest and importance of the issues, we transfer to the Missouri Supreme Court pursuant to Rule 83.02.
Hoff, J., and Draper, J., concur.