On September 11, 2012, the Eastern District of the Missouri Court of Appeals handed down its decision in Salviccio v. Treasurer of the State of Missouri, As Custodian of the Second Injury Fund (Slip Opinion ED97862), which holds that the injured employee may not stack/combine previous disabilities in order to reach the threshold which triggers possible Second Injury Fund (“SIF”) liability–except in limited situations. The court of appeals then transferred this case to the Missouri Supreme Court due to the “general interest and importance of the issues.” We will have to wait to see what happens at the Supreme Court, but here is a bit on where we are now on the question of whether an injured employee’s current or previous disabilities are serious enough to win against the Fund.
The Missouri statute on liability of the SIF is section 287.220.1, which sets minimum limits an employee must meet. Boiling down considerable verbage, those limits are that each current and previous disability must separately amount to 50 weeks or more if a Body As A Whole disability, or 15% permanent partial disability if a major extremity only.
The employee in Salviccio injured his left knee and settled the claim for 20% Permanent Partial Disability (“PPD”) at that level. He later took his accompanying claim against the Fund to trial and won 12.3 more weeks of compensation to be paid by the Fund on the theory that the combination of all the employee’s injuries was 12.3 weeks more than the simple total of the present knee injury added to the disability from his previous disabilities. The previous disabilities here were a 50% disability (11 weeks) at the proximal joint/22 week level for a left little finger injury, two hernias of 16 and 14 weeks respectively, and 50 weeks for his diabetes with some symptoms of paresthesia.
The employee wanted to combine all these previous disabilities for to get the maximum possible from the Fund–and the Labor and Industrial Labor Relations Commission obliged. However, the court of appeals sided with the Fund, measuring each disability separately, and concluded that only the diabetes disability met the 50 week requirement. Consequently, the court reduced the award against the Fund to 8.2 weeks of compensation.
Of particular interest is the little finger injury because it was rated at 50%, which exceeds the 15% required of a major threshold injury to trigger Fund liability. However, the court of appeals found that an 11 week injury to the proximal joint on the little finger of the non-dominant left hand is simply not a “major” extremity injury.
Compare, however, the decision in Palazzolo v. Joe’s Delivery Service, 98 S.W.3d 645, 648 (Mo. Ct. App. E.D. 2003), which upheld an award against the Fund on a 15% disability at the 110 week level of the foot (the distal third). In that case, the Fund apparently admitted that the foot may be a major extremity. By analogy, a hand at the 175 week level would also seem to be a major extremity for these purposes.
(One wonders what the court would do with a case where the previous disability was an operation on the left wrist which left the 4th finger non-responsive due to tendon damage. The scar and surgery occurs at the 175 week hand/wrist level but the disability lies with use of the 4th finger.)
Finally, we read in Salviccio that there is a limited scenario in which separate disabilities to the same major extremity may be stacked to meet the 15% major extremity only threshold for Fund liability. The court notes its 2003 decision in Shipp v. Treasurer of State of Missouri, 99 S.W.3d 44, 53 (Mo. Ct. App. E.D. 2003), finding it acceptable to combine previous disability to the right wrist and right shoulder which added up to 15% disability of the right arm in the Commission’s mind, thus meeting the threshold limit triggering Fund liability.
In sum, while it seems acceptable to combine disabilities at various levels of one major extremity to implicate the Fund, it is not permissible to combine separate Body as a Whole disabilities or to merge extremity only disability with Body as a Whole disability.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000
Litigation, Personal Injury, Workers’ Compensation
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