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287.220. Compensation and payment of compensation for disability - second injury fund created, services covered, actuarial studies required - failure of employer to insure, penalty - records open to public, when - concurrent employers, effect - priority of payment of liabilities of fund. -1. There is hereby created in the state treasury a special fund to be known as the "Second Injury Fund" created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.
2. All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from 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, and the 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. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.
3. (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.
(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:
(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:
(i) A direct result of active military duty in any branch of the United States Armed Forces; or
(ii) A direct result of a compensable injury as defined in section 287.020; or
(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or
(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and
b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or
(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.
(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.
(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.
4. (1) In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim.
(2) The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal.
(3) For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees incurred under sections 287.210 and the expenses provided for under section 287.140, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.
5. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.
6. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.
7. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses incurred relating to claims for injuries occurring prior to January 1, 2014, to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer consistent with subsection 3 of section 287.140, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses incurred relating to a death occurring prior to January 1, 2014, in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.
8. Every year the second injury fund shall have an actuarial study made to determine the solvency of the fund taking into consideration any existing balance carried forward from a previous year, appropriate funding level of the fund, and forecasted expenditures from the fund. The first actuarial study shall be completed prior to July 1, 2014. The expenses of such actuarial studies shall be paid out of the fund for the support of the division of workers' compensation.
9. The director of the division of workers' compensation shall maintain the financial data and records concerning the fund for the support of the division of workers' compensation and the second injury fund. The division shall also compile and report data on claims made pursuant to subsection 11 of this section. The attorney general shall provide all necessary information to the division for this purpose.
10. All claims for fees and expenses filed against the second injury fund and all records pertaining thereto shall be open to the public.
11. Any employee who at the time a compensable work-related injury is sustained prior to January 1, 2014, is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.
12. No compensation shall be payable from the second injury fund if the employee files a claim for compensation under the workers' compensation law of another state with jurisdiction over the employee's injury or accident or occupational disease.
13. Notwithstanding the requirements of section 287.470, the life payments to an injured employee made from the fund shall be suspended when the employee is able to obtain suitable gainful employment or be self-employed in view of the nature and severity of the injury. The division shall promulgate rules setting forth a reasonable standard means test to determine if such employment warrants the suspension of benefits.
14. All awards issued under this chapter affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal.
15. The division shall pay any liabilities of the fund in the following priority:
(1) Expenses related to the legal defense of the fund under subsection 4 of this section;
(2) Permanent total disability awards in the order in which claims are settled or finally adjudicated;
(3) Permanent partial disability awards in the order in which such claims are settled or finally adjudicated;
(4) Medical expenses incurred prior to July 1, 2012, under subsection 7 of this section; and
(5) Interest on unpaid awards.
Such liabilities shall be paid to the extent the fund has a positive balance. Any unpaid amounts shall remain an ongoing liability of the fund until satisfied.
16. Post-award interest for the purpose of second injury fund claims shall be set at the adjusted rate of interest established by the director of revenue pursuant to section 32.065 or five percent, whichever is greater.
(RSMo 1939 § 3707, A.L. 1943 p. 1068, A.L. 1945 p. 1996, A.L. 1951 p. 617, A.L. 1953 p. 524, A.L. 1955 p. 590, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1982 H.B. 1605, A.L. 1987 H.B. 564, A.L. 1992 H.B. 975, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al., A.L. 2013 S.B. 1)
Prior revision: 1929 § 3317
(1954) Fact that father of married woman made contribution of groceries and money to her and her family does not require factual finding that such woman and family were actually dependent upon him. Mossman v. St. Joseph Lead Co. (Mo.), 265 S.W.2d 335.
(1955) Employee was injured in 1947 and claim was settled for $4,850; he, thereafter, resumed work (for different employer) and in 1952 received a similar injury resulting in 30% disability; Commission computed benefits as follows: Amount paid under 1947 settlement deducted from maximum total permanent disability value; remainder divided by $30 to obtain number of weeks which would result from total disability, and then 30% of such resultant number of weeks constituted his amount of benefits. Calculation sustained. Fuytinck v. Burton W. Duenke Bldg. Co. (A.), 280 S.W.2d 449.
(1956) Where employee had been awarded benefits for thirty percent permanent partial disability to his leg and then suffered an injury to his back resulting in thirty-three and one-third percent permanent partial disability to his body as a whole, compensation payable (but not paid) for the first (leg) injury at the time of the second injury, was deductible from that payable for second injury. Komosa v. Monsanto Chem. Co. (A.), 287 S.W.2d 374.
(1956) Section 287.220 is limited to the extent that it enhances or adds to an existing disability. Evidence held sufficient to sustain finding that claimant "did not have any previous disability existing at the time of" the accident. Garrison v. Cambell "66" Express (A.), 297 S.W.2d 22.
(1963) Employer and his insurer were not relieved from payment of medical benefits after the expiration of 200 weeks, the period compensation was to be paid by employer to totally and permanently disabled employee and from which time compensation was to be paid for life from second injury fund. Federal Mutual Ins. Co. v. Carpenter (Mo.), 371 S.W.2d 955.
(1964) Claim filed against second injury fund more than one year after injury but less than one year from date of last medical payment from employer-insurer was timely filed. Grant v. Neal (Mo.), 381 S.W.2d 838.
(1964) The liabilities of the second injury fund and of the employer are separate; compromise and settlement by the claimant with either does not release the other. Grant v. Neal (Mo.), 381 S.W.2d 843.
(1967) The preexisting permanent partial disability necessary for compensation from the second injury fund relates to disability to work and means "industrial disability" or loss of earning capacity, rather than physical impairment as such. Wilhite v. Hurd (Mo.), 411 S.W.2d 72.
(1970) Surviving widow of injured workman whose right to compensation from second injury fund had accrued succeeded to her husband's right to compensation. Bone v. Daniel Hamm Drayage Co. (Mo.), 449 S.W.2d 169.
(1972) Preexisting disability as required by this section relates to disability to work and means industrial disability or loss of earning capacity rather than physical impairment as such. It must be such as to partially disable the claimant from work or to impede his labors. Jockel v. Robinson (Mo.), 484 S.W.2d 227.
(1973) Held that claimant must have had a previous "industrial disability" but there is no requirement that such disability was due to a "previous injury". Hettenhausen v. Gene Jantzen Chevrolet (Mo.), 499 S.W.2d 785.
(1991) Where claimant sustained injuries to her hip and lower back from a fall while receiving treatment for an ankle injury sustained at work, injuries constitute a single injury and employee is not entitled to additional compensation from second injury fund. Lahue v. Missouri State Treasurer, 820 S.W.2d 561 (Mo. App.).
(1997) Claimant could not recover from the Second Injury Fund for wage loss benefits for a second job prior to the effective date of the statute which created the fund. Van Wagner v. Missouri Director of Revenue, 954 S.W.2d 647 (Mo.App.W.D.).
(2012) Language requiring only a "compensable injury" to trigger Second Injury Fund liability includes both compensable injuries by accident and compensable injuries by occupational disease. Treasurer of State of Missouri v. Stiers, 388 S.W.3d 217 (Mo.App.W.D.).