Joplin, MO Business Blog

Case Review - Second Injury Fund Liability

In the case of Portwood v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Mr. Portwood contended that the Second Injury Fund was liable for a latent preexisting disability that became symptomatic after he was injured while on the job.  Mr. Portwood's job injury resulted in a 25% permanent partial disability to the right upper extremity at the shoulder.  After this injury occurred, Mr. Portwood learned that he had a preexisting condition in his cervical spine known as a Klippel-Feil deformity.  Prior to the work injury he had no knowledge of this condition, it did not result in him losing work, and it was not a hindrance or obstacle to his employment.  At the hearing before the ALJ the parties stipulated that should the Fund be found liable, the calculations would be: 15% to the right shoulder at the 232 level, 15% to the cervical spine for the prior condition, and a 10% load factor.  The ALJ determined that the fund was not liable and the Commission affirmed this decision.  Mr. Portwood appealed.

The Missouri Court of Appeals, Western District, affirmed the ALJ's and the Commission's decision.  For the Fund to be liable, Mr. Portwood had to show either that he had a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or that his two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself.  The preexisting disability must  be that which is actual and measurable at the time the work injury is sustained.  Mr. Portwood's preexisting condition did not qualify as a "disability" at the time of the work injury due to it being undiagnosed and asymptomatic until the work injury occurred, he did not lose work from it and it did not constitute a hindrance or obstacle to his employment before the work injury.

Source:  Gary Portwood v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Missouri Court of Appeals, Western District, WD67140, April 17, 2007

Case Review: Workers' Compensation vs. Personal Injury Suit

The Missouri Supreme Court, sitting en banc, recently ruled on whether an employee can sue a co-employee for injuries sustained as a result of the co-employee's negligent act.  Here, the plaintiff was employed as a driver for the employer.  The defendant was the president of the company and the plaintiff's supervisor.  Plaintiff was injured when a water pressure tank on the side of the company truck exploded and threw him to the ground.  The trial court ruling allowed plaintiff to sue the defendant personally and outside of the workers' compensation regulations.  The Supreme Court stated that section 287.120 does not explicitly prevent the plaintiff from suing his co-employee but that the Missouri courts have ruled to extend the employer's scope of immunity from liability to a fellow employee except in limited circumstances.  These limited circumstances require that there be an affirmative negligent act outside the scope of an employer's responsibility to provide a safe workplace (the "something more" test).  This was described to be "an affirmative act that creates additional danger beyond that normally faced in the job-specific work environment."  The court refused to adopt a reasonable person standard in this test.  Under the circumstances of this case the Supreme Court found that the evidence was substantial to find that the defendant had negligently welded the rusted pressurized water tank and that he directed the plaintiff to "run it till it blows;"   that this satisfied the "something more" test; and that this constituted an affirmatively negligent act by the defendant in creating an additional danger beyond what plaintiff normally faced in his job-specific environment.  The court upheld the trial court's ruling.

Source:  Burns v. Smith, SC87789, (Mo. banc 02/13/2007)