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 publ - Missouri Statutes

Compensation and payment of compensation for disability--second injuryfund created, services covered, actuarial studiesrequired--failure of employer to insure, penalty--records open topublic, when--concurrent employers, effect.

287.220. 1. All cases of permanent disability where there has beenprevious disability shall be compensated as herein provided. Compensationshall be computed on the basis of the average earnings at the time of the lastinjury. If any employee who has a preexisting permanent partial disabilitywhether from compensable injury or otherwise, of such seriousness as toconstitute a hindrance or obstacle to employment or to obtaining reemploymentif the employee becomes unemployed, and the preexisting permanent partialdisability, if a body as a whole injury, equals a minimum of fifty weeks ofcompensation or, if a major extremity injury only, equals a minimum of fifteenpercent permanent partial disability, according to the medical standards thatare used in determining such compensation, receives a subsequent compensableinjury resulting in additional permanent partial disability so that the degreeor percentage of disability, in an amount equal to a minimum of fifty weekscompensation, if a body as a whole injury or, if a major extremity injuryonly, equals a minimum of fifteen percent permanent partial disability, causedby the combined disabilities is substantially greater than that which wouldhave resulted from the last injury, considered alone and of itself, and if theemployee is entitled to receive compensation on the basis of the combineddisabilities, the employer at the time of the last injury shall be liable onlyfor the degree or percentage of disability which would have resulted from thelast injury had there been no preexisting disability. After the compensationliability of the employer for the last injury, considered alone, has beendetermined by an administrative law judge or the commission, the degree orpercentage of employee's disability that is attributable to all injuries orconditions existing at the time the last injury was sustained shall then bedetermined by that administrative law judge or by the commission and thedegree or percentage of disability which existed prior to the last injury plusthe disability resulting from the last injury, if any, considered alone, shallbe deducted from the combined disability, and compensation for the balance, ifany, shall be paid out of a special fund known as the second injury fund,hereinafter provided for. If the previous disability or disabilities, whetherfrom compensable injury or otherwise, and the last injury together result intotal and permanent disability, the minimum standards under this subsectionfor a body as a whole injury or a major extremity injury shall not apply andthe employer at the time of the last injury shall be liable only for thedisability resulting from the last injury considered alone and of itself;except that if the compensation for which the employer at the time of the lastinjury is liable is less than the compensation provided in this chapter forpermanent total disability, then in addition to the compensation for which theemployer is liable and after the completion of payment of the compensation bythe employer, the employee shall be paid the remainder of the compensationthat would be due for permanent total disability under section 287.200 out ofa special fund known as the "Second Injury Fund" hereby created exclusivelyfor the purposes as in this section provided and for special weekly benefitsin rehabilitation cases as provided in section 287.141. Maintenance of thesecond injury fund shall be as provided by section 287.710. The statetreasurer shall be the custodian of the second injury fund which shall bedeposited the same as are state funds and any interest accruing thereon shallbe added thereto. The fund shall be subject to audit the same as state fundsand accounts and shall be protected by the general bond given by the statetreasurer. Upon the requisition of the director of the division of workers'compensation, warrants on the state treasurer for the payment of all amountspayable for compensation and benefits out of the second injury fund shall beissued.

2. In all cases in which a recovery against the second injury fund issought for permanent partial disability, permanent total disability, or death,the state treasurer as custodian thereof shall be named as a party, and shallbe entitled to defend against the claim. The state treasurer, with the adviceand consent of the attorney general of Missouri, may enter into compromisesettlements as contemplated by section 287.390, or agreed statements of factthat would affect the second injury fund. All awards for permanent partialdisability, permanent total disability, or death affecting the second injuryfund shall be subject to the provisions of this chapter governing review andappeal. For all claims filed against the second injury fund on or after July1, 1994, the attorney general shall use assistant attorneys general except incircumstances where an actual or potential conflict of interest exists, toprovide legal services as may be required in all claims made for recoveryagainst the fund. Any legal expenses incurred by the attorney general'soffice in the handling of such claims, including, but not limited to, medicalexamination fees, 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 annualappropriations made by the general assembly, from the fund, to the attorneygeneral's office for this specific purpose.

3. If more than one injury in the same employment causes concurrenttemporary disabilities, compensation shall be payable only for the longest andlargest paying disability.

4. If more than one injury in the same employment causes concurrent andconsecutive permanent partial disability, compensation payments for eachsubsequent disability shall not begin until the end of the compensation periodof the prior disability.

5. If an employer fails to insure or self-insure as required in section287.280, funds from the second injury fund may be withdrawn to cover the fair,reasonable, and necessary expenses to cure and relieve the effects of theinjury or disability of an injured employee in the employ of an uninsuredemployer, or in the case of death of an employee in the employ of an uninsuredemployer, funds from the second injury fund may be withdrawn to cover fair,reasonable, and necessary expenses in the manner required in sections 287.240and 287.241. In defense of claims arising under this subsection, thetreasurer 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 civilor other action, must go towards reimbursement of the second injury fund, forall payments made to the employee, the employee's dependents, or paid on theemployee's behalf, from the second injury fund pursuant to this subsection.The office of the attorney general of the state of Missouri shall bring suitin the circuit court of the county in which the accident occurred against anyemployer not covered by this chapter as required in section 287.280.

6. Every three years the second injury fund shall have an actuarialstudy made to determine the solvency of the fund, appropriate funding level ofthe fund, and forecasted expenditures from the fund. The first actuarialstudy shall be completed prior to July 1, 1988. The expenses of suchactuarial studies shall be paid out of the fund for the support of thedivision of workers' compensation.

7. The director of the division of workers' compensation shall maintainthe financial data and records concerning the fund for the support of thedivision of workers' compensation and the second injury fund. The divisionshall also compile and report data on claims made pursuant to subsection 9 ofthis section. The attorney general shall provide all necessary information tothe division for this purpose.

8. All claims for fees and expenses filed against the second injury fundand all records pertaining thereto shall be open to the public.

9. Any employee who at the time a compensable work-related injury issustained is employed by more than one employer, the employer for whom theemployee was working when the injury was sustained shall be responsible forwage loss benefits applicable only to the earnings in that employer'semployment and the injured employee shall be entitled to file a claim againstthe second injury fund for any additional wage loss benefits attributed toloss of earnings from the employment or employments where the injury did notoccur, up to the maximum weekly benefit less those benefits paid by theemployer in whose employment the employee sustained the injury. The employeeshall be entitled to a total benefit based on the total average weekly wage ofsuch employee computed according to subsection 8 of section 287.250. Theemployee shall not be entitled to a greater rate of compensation than allowedby law on the date of the injury. The employer for whom the employee wasworking where the injury was sustained shall be responsible for all medicalcosts incurred in regard to that injury.

(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.)

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.).

(2004) Defense by uninsured employer of having fewer than five employees is also available to the Second Injury Fund. Higgins v. Treasurer of the State of Missouri, 140 S.W.3d 94 (Mo.App.W.D.).

(2006) Subsection 4 of section does not apply to compensation payments by the Second Injury Fund. Honer v. Treasurer of State of Missouri, 192 S.W.3d 526 (Mo.App.E.D.).