 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Motton v. Outsorce International6/11/2002
Opinion Vote: REVERSED.
Crandall, Jr., P.J. and Dowd, Jr., J. concur.
Opinion:
In this workers' compensation case, the Second Injury Fund appeals from the final award of the Labor and Industrial Relations Commission (Commission) finding Second Injury Fund liability. The Second Injury Fund asserts that the Commission erred in holding section 287.220.1 RSMo (1994) ambiguous and finding claimant's pre-existing permanent partial arm injury at the shoulder of 12.5% met the statutory minimum of 15% permanent partial disability for Second Injury Fund liability. We reverse.
Claimant was employed by Tandem St. Louis/Outsource International (employer). On June 17, 1998, while performing her duties on an assembly line, claimant partially lost her balance while climbing down a ladder and injured her left ankle, left foot, and left leg.
On November 16, 1998 claimant filed a workers' compensation claim for the June 17, 1998 injury. Claimant settled that claim against employer for a lump sum in the amount of $5,964.67 based on a disability rating of 22.5% of the body as a whole. Claimant also made a claim for permanent partial disability against the Second Injury Fund, alleging that she had sustained a prior injury to her left arm at the shoulder. At the hearing on Second Injury Fund liability, claimant introduced a Stipulation for Compromise Settlement with Manpower, Inc., from an August 28, 1997 injury, "based upon approximate disability of 12.5% of left arm at shoulder."
On February 9, 2001 the ALJ issued an award granting claimant compensation from the Second Injury Fund. In his rulings of law, the ALJ found section 287.220 ambiguous "when it states '15% permanent partial disability for a major extremity' and does not specify number of weeks of disability." The ALJ continued:
When it refers to major extremity it is unclear as to what level of the major extremity is being referred. In the case of the arm there are five different levels of value referenced under the statute (hand-wrist, forearm, elbow, upper arm, and shoulder) and for the leg there are five different levels of value (foot, ankle, knee[,] upper leg, and hip). Fifteen percent permanent partial disability for each of these arm and leg levels results in a different amount of disability, unlike the definite weeks mentioned for an injury to the body as a whole (50 weeks).
Because he found the statute ambiguous, the ALJ determined that "major extremity" means the arm at the level of the wrist and that "fifteen percent" was 15% of the number of weeks of compensation for the arm at the wrist (175 weeks) or 26.5 weeks of compensation. The ALJ concluded that, because a 12.5% disability to the arm at the shoulder resulted in 34.8 weeks of disability compensation and 34.8 weeks exceeded the 26.5 weeks representing 15% of weeks of permanent partial disability at the level of the wrist, the Second Injury Fund threshold limits were satisfied.
The Second Injury Fund filed an Application for Review with the Commission. The Commission adopted the findings and conclusions of the ALJ, with one member dissenting, and awarded compensation from the Second Injury Fund.
For its sole point, the Second Injury Fund contends that the Commission erred in finding that claimant's pre-existing 12.5% shoulder disability met the statutory threshold for Second Injury Fund liability. The Second Injury Fund argues that section 287.220.1 requires a minimum finding of 15% permanent partial disability for a pre-existing major extremity injury, and claimant's 12.5% permanent partial disability for a pre-existing injury to the arm at the shoulder does not meet the stat
Page 1 2 3 4 5 Missouri Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|