MO Comp Update: Alarming Trend – Plaintiff Bar Now Alleging Employers are Responsible for PTD From PRIOR Injuries

MO Workers Comp Update

Over the past few weeks I have spoken to multiple plaintiff attorneys who are in the process of amending all Missouri Claims for Compensation with a date of injury AFTER January 1, 2014. Why?

The MO Supreme Court should be handing down a decision soon in the case of Cosby v. Second Injury Fund ( click here to read the background story ). In 2017, the Industrial Commission stated that EMPLOYERS should be responsible for Permanent Total Disability (PTD) when a work injury, regardless of how minor, combines with PRIOR injuries to make the employee unemployable in the open labor market. The Industrial Commission said this in the Cosby decision in 2017:

“In our view, the 2013 amendments to § 287.220 work the effect that employers and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of preexisting 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… By the same token, we believe an employer is liable for any claim of permanent total disability resulting from the combination of preexisting disability with a subsequent compensable primary injury…Rather than extinguishing any rights or removing any existing remedy, the legislature in 2013 merely shifted back to employers and their insurers any liability that would have otherwise rested with the Second Injury Fund.” (Emphasis added)

The Industrial Commission cited the case of Federal Mutual Insurance Company v. Carpenter (1963) to support this decision.

ALLEGING ENHANCED BENEFITS AGAINST EMPLOYERS

Because of what may occur in the Cosby decision, plaintiff attorneys are now filing Amended Claims for Compensation, alleging that Employer/Insurer are now responsible for additional/enhanced PPD benefits, and even Permanent Total Disability Benefits, for injuries occurring after 2014 based on the above-cited rationale given by the Industrial Commission in 2017.

The Missouri Supreme Court could fix this problem by ruling that the 2013 statutory amendments are unconstitutional, but that outcome is far from certain. I will immediately post an update once the MO Supreme Court issues a ruling in the Cosby case.

If you would like to discuss how this new attempt to obtain enhanced benefits against Employers/Insurers may apply to any specific cases you are handling, please feel free to call or email.