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Motton v. Outsorce International6/11/2002
ility which would have resulted from the last injury had there been no pre-existing disability. 287.220.1 (emphasis added).
In order to recover permanent disability compensation from the Second Injury Fund, claimant had the burden to prove that she had a pre-existing permanent partial disability of such seriousness as to constitute a hindrance or obstacle to her employment. Section 287.220.1; Tidwell v. Koster Co., 8 S.W.3d 585, 589 (Mo.App. 1999). The pre-existing disability necessary to trigger Second Injury Fund liability is a permanent partial disability that existed at the time the work-related injury was sustained. Section 287.220.1; Tidwell, 8 S.W.3d at 589.
In addition, for injuries resulting in permanent partial disability, a claimant must show that the "pre-existing permanent partial disability . . . if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation." Section 287.220.1; Leutzinger v. Treasurer of Missouri, 895 S.W.2d 591, 593 (Mo.App. 1995). The addition of the fifteen percent threshold to the statute in 1993 was a substantive change. Smart v. Missouri State Treasurer, 916 S.W.2d 367, 371 (Mo.App. 1996); Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 60 (Mo.App. 1996); Fletcher v. Second Injury Fund, 922 S.W.2d 402, 408 (Mo.App. 1996).
The question is whether the phrase "fifteen percent of a major extremity, according to the medical standards that are used in determining such compensation" is ambiguous. Claimant responds that the phrase is ambiguous because it does not specify any levels for "major extremity" and because it does not define permanent partial disability in terms of weeks of compensation.
We interpret the workers' compensation law according to the general rules of statutory construction. Frazier v. Treasurer of Missouri as Custodian of the Second Injury Fund, 869 S.W.2d 152, 156 (Mo.App. 1993). We will not create an ambiguity in a statute, where none exists, in order to depart from a statute's plain and ordinary meaning. Premium Standard Farms, Inc. v. Lincoln Tp. of Putnam County, 946 S.W.2d 234, 239 (Mo. banc 1997). Our primary goal is to ascertain the intent of the legislature by considering the plain and ordinary meaning of the terms used. Frazier, 869 S.W.2d at 156. In determining legislative intent, we give an undefined word used in a statute its plain and ordinary meaning. Hoffman v. Van Pak Corp., 16 S.W.3d 684 (Mo.App. 2000). Under traditional rules of construction, the word's dictionary definition supplies its plain and ordinary meaning. Id.
The parties agree on the definition of "extremity" found in Dorland's Illustrated Medical Dictionary 638 (29th ed.): "1. extremitas, 2. an upper or lower limb; see membrum., 3. a hand or foot." "Membrum" is defined as "a member or a limb." Id. at 1082. Specifically, a "membrum superius" is defined as an "upper limb: the limb of the body extending from the deltoid region to the hand; see also arm." Id. "Major" is defined as "greater in number, extent, or importance." Webster's New International Dictionary 1484 (2nd ed.). A "major extremity" is not ambiguous on its face and clearly includes an arm. An injury to the arm at the shoulder is an injury to a major extremity.
The term "major extremity" is not ambiguous because it does not specify a percentage of disability for the particular levels of body parts. The legislature was familiar with the use of levels of body parts in its schedule of compensation. Its decision not to use those levels in establishing a minimum threshold of disability indicates that it intended not to do so. See Frazier,
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