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Supreme Court asked to untangle Injury Fund fix.

Byline: Scott Lauck

A five-year-old fix to the Second Injury Fund is "not very clear," according to at least one member of the Missouri Supreme Court. How the court will ultimately read it remains to be seen.

The court heard arguments on Oct. 24 in an appeal by an injured worker attempting to claim benefits from the Second Injury Fund, a part of the workers' compensation system that covers claims by workers whose pre-existing conditions are made worse by an on-the-job injury.

The fund's money comes from a surcharge on the workers' compensation insurance premiums that businesses pay. In 2005, the Missouri Legislature capped the surcharge at 3 percent, causing a shortfall that nearly caused the fund to become insolvent and forcing the state delaying payment of awards to thousands of people.

In 2013, lawmakers passed a law that, as of Jan. 1, 2014, temporarily increased the surcharge but barred claims for permanent partial disability, or PPD, occurring after the law's effective date.

Douglas Cosby, who suffered a knee injury in early 2014 shortly after the law went into effect, argues that his injury worsened several prior injuries he suffered before the law changed. He is seeking to claim PPD benefits from the Second Injury Fund, in addition to the workers' compensation award he received for the knee injury itself.

Cosby's attorney, Marshall Edelman of the Edelman Law Office in St. Louis, argued that the new law unconstitutionally bars his client from filing a claim for benefits.

"To automatically lose without being heard is against the law," Edelman said. He urged the court to interpret the Second Injury Fund law in a way that allows Cosby to recover from the fund, as his pre-existing injuries predate the statutory change.

But David McCain, an assistant attorney general, argued that such an interpretation cut against lawmakers' clear attempts to shore up the fund's financing. He noted that a person with congenital birth defect born just prior to the change in the law would be able to claim PPD for the remainder of his or her life, even if he or she were injured decades in the future.

Edelman argued that the law "is poorly written, frankly, and it is confusing," and the court appeared to agree. As they parsed the exact terms used in the statute, Judge Laura Denvir Stith noted that it contained "very technical language, and it's not very clear in the way it's written."

If claims for partial disabilities can't be made against the fund, that could leave employers on the hook. Chief Justice Zel Fischer asked McCain what he thought lawmakers had intended.

"You think the legislature intended to increase the liability for employers for enhanced injuries?" Fischer asked. McCain responded that he didn't think the legislature intended workers to be compensated for those enhanced injuries at all, but that under current precedent that liability likely would fall on employers.

That prompted Edelman, who argued the case with his father, Ronald Edelman, to argue that such an interpretation would mean that employers weren't getting the value of the surcharge they pay.

"Here I'm an employees' lawyer arguing for the employer," Edelman said with a laugh. "Sorry, dad!"

The case is Cosby v. Treasurer of the State of Missouri, SC97317.

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Publication:Missouri Lawyers Media
Date:Oct 25, 2018
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