MO Comp Update: Supreme Court Decides Cosby v. SIF – Dangers ahead for Employers/Insurers
MO Comp Update
The Missouri Supreme Court handed down their decision in Cosby v. SIF on Tuesday, June 25 (read the entire decision HERE). The main issue was whether the elimination of Second Injury Fund liability (in the vast majority of cases) in 2014 was constitutional. The MO Supreme Court affirmed the decision of the Industrial Commission stating that the legislative changes were constitutional and the claim for benefits against the Second Injury Fund was denied.
DANGER FOR ALL EMPLOYERS AND INSURERS
In affirming the decision from the Industrial Commission, the MO Supreme Court may have also opened the door for INCREASED EXPOSURE/LIABILITY against Employers/Insurers in that the Commission stated the following in the original 2017 award in Cosby:
“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)
My position will be that decisions from the Industrial Commission are not precedent (binding) on legal issues and since the MO Supreme Court did not address this particular issue, the language above from the Commission is not binding.
ALLEGING ENHANCED BENEFITS AGAINST EMPLOYERS
Based on the affirmation of the Commission by the MO Supreme Court, though, plaintiff attorneys are now filing Amended Claims for Compensation, alleging that Employers/Insurers 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.
I am working with the Missouri Legislature to draft a legislative fix for this issue by statutorily eliminating this Enhanced Disability liability against Employers/Insurers. If this occurs, though, there could be major ramifications (potential for civil liability, open window period of possible liability, constitutional challenges, etc.). As such, we will be spending a LOT of time between now and the beginning of the Missouri Legislative Session in January 2020 to craft the best possible legislative fix for this potential issue.
If you would like to discuss how this new attempt to obtain enhanced disability benefits against Employers/Insurers may apply to any specific cases you are handling, please feel free to call or email