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MO Workers Comp: Industrial Commission moves SIF combination liability to Employers

The controversial decision by the MO Industrial Commission Cosby v. Drake (click HERE to read it), was handed down on August 16, 2017. This is a DEPLORABLE decision which could adversely impact Employers/Insurers throughout the State of Missouri.

Quick background: in 2014 the Missouri work comp law section 287.220 was changed to reduce liability against the Second Injury Fund (SIF) because the SIF was broke. Since 2014, the SIF has taken the position that the change of Missouri Work Comp law section 287.220.2(3) eliminated permanent partial disability claims against the Fund after 1/1/2014.

In 2014, these changes were not envisioned to impact Employers/Insurers because this is a benefit that is paid only to claimants. Now, the Industrial Commission has shifted what was SIF PPD liability to Employers/Insurers….even though there is nothing in the 2014 legislation that mandates or even suggests such a shift of this financial burden to Employers/Insurers.

The Commission stated in Cosby that rather than extinguishing any rights or removing any existing remedy, the legislature shifted back to Employers and their Insurers any liability that would have otherwise rested with the Second Injury Fund. The Commission stated,

“In our view, the 2013 amendments to 287.220 work the effect (sic) that employer and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of pre-existing disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries.”

The Commission cited the case of Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963) that states, “”in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury.”

Based on the Cosby Commission decision, the EMPLOYER/INSURER is now responsible for all enhanced combinational PPD benefits when a primary work injury combines with any pre-existing condition.


In situations where claimants had pre-existing disabilities from any cause (prior work or non-work injuries, diabetes, even morbid obesity) that combine with a work injury to create increased disability, the SIF would traditionally pay for that increased disability. The Employer/Insurer was not saddled with the liability for any increased disability resulting from a work injury combined with a prior injury. Now, according to the Industrial Commission, the Employer/Insurer must step in and pay the additional disability that was previously paid by the SIF.

I have already spoken to the claimant’s attorney in the Cosby case, and he has already prepared his appeal to the Southern District Court of Appeals. Since this is a matter of legal interpretation, the Court of Appeals (and perhaps even the MO Supreme Court) will have the final say on how the 2014 Comp Amendments should be interpreted.

Given the potential impact of this decision, I will be keeping very close watch over the progression of this case at the appellate level and will keep you advised as this develops. If you have any questions about how this might affect any current or ongoing claims, please let me know.