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Motton v. Outsorce International6/11/2002
869 S.W.2d at 156.
Likewise, the use of a percentage of disability rather than "weeks" of disability indicates a legislative choice, not an ambiguity. We have held that the 1993 change to section 287.220.1 establishes a more objective standard by which Second Injury Fund liability is to be determined. Culp v. Lohr Distributing Co., 898 S.W.2d 613, 614 (Mo.App. 1998). "The pre-existing disability must be of sufficient seriousness as to hinder employment plus, in the case of additional permanent partial disability, be of sufficient significance as to be susceptible of measurable rating at least equal to the minimums set forth in the statute." Id. Section 287.220.1 includes two different forms of measurable rating: fifty "weeks" for an injury to the body as a whole and 15% for a major extremity injury. Both forms of rating are commonly used in workers' compensation proceedings.
In workers' compensation practice, the extent of partial disability is rated by a percent of disability to a body part or to the body as a whole. The determination of the specific amount or percentage of disability is a finding of fact within the special province of the Commission, which is not strictly limited to the percentages of disability provided by the medical expert. Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo.App. 1983).
However, expert opinion evidence is required to prove the extent of the pre-existing disability. Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo.App. 1999). In addition, for permanent disability the workers' compensation statute assigns a number of "weeks" of compensation for the total loss of different body parts. Section 287.190.1-3.
The percent of disability and the number of "weeks" of compensation are both used to calculate compensation for permanent partial disability. To make this computation, the number of "weeks" of compensation which may be paid for the total loss of a particular body part must be determined as set out in section 287.190.1-3. B. Michael Korte, 29 Missouri Practice, Workers' Compensation Law and Practice, section 5.12 (1997). The Commission must also determine the degree or amount of permanent partial disability expressed as a percentage figure. Id. These numbers are multiplied to arrive at the amount of permanent partial disability and then the monetary benefit is calculated. Id.
In setting the threshold for Second Injury Fund liability, the legislature chose to define disability for the body as a whole in terms of "weeks," but for a major extremity in terms of a percentage. Had the legislature intended to set the threshold for disability for a major extremity on a minimum number of "weeks", rather than a minimum percent of disability, it could have done so as it did when it set the threshold for disability of the body as a whole. See Frazier, 869 S.W.2d at 156. Rather, the legislature premised liability on a percentage of disability. The legislature's decision not to measure disability to a major extremity by weeks of compensation indicates that it did not intend to do so. Id. at 156-57.
In addition, the use of the phrase "according to medical standards that are used in determining such compensation" indicates that the legislature meant to refer to disability as established by medical standards, which is expressed in terms of a percentage. The American Medical Association has, since 1958, used medical impairment ratings, expressed in terms of percentages, to measure disability. Proving Medical Diagnosis and Prognosis, section 2000.06 (Houts and Marmor eds.) (1998). The International Association of Industrial Accident Boards and Commissions has formulated a standard permanent partial disability schedule ex
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