LISA COFFER,                                  )
                                              )
       Claimant-Appellant,                    )
                                              )
       vs.                                    )              No. SD36471
                                              )
TREASURER OF THE STATE OF                     )              Filed: April 14, 2020
MISSOURI AS CUSTODIAN OF THE                  )
SECOND INJURY FUND,                           )
                                              )
       Respondent-Respondent.                 )

  APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

REVERSED AND REMANDED

       An administrative law judge (“ALJ”) awarded Lisa Coffer (“Claimant”)

permanent total disability benefits against the Treasurer of the State of Missouri as

Custodian of the Second Injury Fund (the “Treasurer”) under section 287.220.2, as

amended in 2013 and effective January 1, 2014. The award was attributable to bilateral

carpal tunnel syndrome (an occupational disease arising out of and in the scope of

Claimant’s employment) that prevented her from working beginning December 13, 2013,

in combination with multiple previous disabilities due to earlier unrelated injuries.




                                             1
Claimant filed a claim for the bilateral carpal tunnel syndrome against the Treasurer in

November 2014.

         The Labor and Industrial Relations Commission (the “Commission”) reversed the

ALJ’s award on the ground that section 287.220.3(1) applied to Claimant’s claim rather

than section 287.220.2 as a matter of statutory interpretation because (1) Claimant’s

claim was for an occupational disease and the claim was filed after January 1, 2014, and

(2) there was no evidence presented to the ALJ that showed any of Claimant’s multiple

previous disabilities met the requirements of section 287.220.3(2). Claimant appeals

claiming that subsection 2 applies to her claim as a matter of law. The Treasurer does not

challenge any fact relevant to the resolution of this claim on appeal. We reverse the

Commission’s decision because, consistent with the Eastern and Western Districts of this

Court, we believe the Supreme Court of Missouri resolved the conflict between

subsections 2 and 3 of section 287.220 in Cosby v. Treasurer of the State of Missouri as

Custodian of the Second Injury Fund, 579 S.W.3d 202 (Mo. banc 2019), and that

resolution requires the application of subsection 2 to Claimant’s claim rather than

subsection 3. 1




1
  Claimant also raises a second point on appeal in which Claimant asserts that the Commission “failed to
reconcile the conflicting language” in other statutory provisions relating to the statute of limitations for
claims against the Treasurer. In light of our resolution of Claimant’s first point in her favor, we do not
reach Claimant’s second point. In a motion to transfer the appeal to our Supreme Court pursuant to its
exclusive appellate jurisdiction, the Treasurer asserted that Claimant’s second point presented a real and
substantial challenge that section 287.220.3 was invalid because it violates the Missouri constitution. Our
view that the Supreme Court’s decision in Cosby provides a definitive interpretation of subsections 2 and 3
of section 287.220, and determined that the employee-claimant “failed to prove section 287.220” as so
interpreted “violates his constitutional rights” (Cosby, 579 S.W.3d at 210, 208-10), renders any challenge to
the constitutional validity of section 287.220.2 and .3 contained in Claimant’s second point merely
colorable and not real and substantial (even assuming any such challenge properly was preserved for
appellate review). As a result, we deny the Treasurer’s motion to transfer the appeal to the Supreme Court
pursuant to its exclusive appellate jurisdiction.


                                                     2
                                         Standard of Review

               Pursuant to article V, section 18 of the Missouri Constitution, this
        Court reviews the commission’s decision to determine if it is “supported
        by competent and substantial evidence upon the whole record.”
        Additionally, section 287.495.1 provides, in pertinent part:

                        Upon appeal no additional evidence shall be heard
                 and, in the absence of fraud, the findings of fact made by
                 the commission within its powers shall be conclusive and
                 binding.[ 2] The court, on appeal, shall review only
                 questions of law and may modify, reverse, remand for
                 rehearing, or set aside the award upon any of the following
                 grounds and no other:

                 (1) That the commission acted without or in excess of its
                 powers;
                 (2) That the award was procured by fraud;
                 (3) That the facts found by the commission do not support
                 the award;
                 (4) That there was not sufficient competent evidence in the
                 record to warrant the making of the award.

        This Court reviews questions of law de novo. Mantia v. Mo. Dep’t of
        Transp., 529 S.W.3d 804, 808 (Mo. banc 2017).

Cosby, 579 S.W.3d at 205-06. “This Court strictly construes the provisions of workers’

compensation statutes.” Id. at 206, 207 n.4.

                                                Analysis

        The portions of subsections 2 and 3 of section 287.220 relevant to this appeal

provide:

        2. All cases of permanent disability where there has been previous
        disability due to injuries occurring prior to January 1, 2014, shall be
        compensated as provided in this subsection. . . .

        3. (1) All claims against the second injury fund for injuries occurring after
        January 1, 2014, and all claims against the second injury fund involving a

2
 We defer to the Commission’s findings of fact, but we view the evidence objectively and not in the light
most favorable to the decision of the Commission. Dubuc v. Treasurer of the State of Missouri as
Custodian of the Second Injury Fund, No. WD 82809, 2020 WL 1016619, at *1 n.2, *4 (Mo.App. W.D.
Mar. 3, 2020).


                                                    3
       subsequent compensable injury which is an occupational disease filed
       after January 1, 2014, shall be compensated as provided in this subsection.

       (2) No claims for permanent partial disability occurring after January 1,
       2014, shall be filed against the second injury fund. Claims for permanent
       total disability under section 287.200 against the second injury fund shall
       be compensable only when the following conditions are met:

       (a) a. An employee has a medically documented preexisting disability
       equaling a minimum of fifty weeks of permanent partial disability
       compensation according to the medical standards that are used in
       determining such compensation which is:

       (i) A direct result of active military duty in any branch of the United States
       Armed Forces; or

       (ii) A direct result of a compensable injury as defined in section 287.020;
       or

       (iii) Not a compensable injury, but such preexisting disability directly and
       significantly aggravates or accelerates the subsequent work-related injury
       and shall not include unrelated preexisting injuries or conditions that do
       not aggravate or accelerate the subsequent work-related injury; or

       (iv) A preexisting permanent partial disability of an extremity, loss of
       eyesight in one eye, or loss of hearing in one ear, when there is a
       subsequent compensable work-related injury as set forth in subparagraph b
       of the opposite extremity, loss of eyesight in the other eye, or loss of
       hearing in the other ear; and

       b. Such employee thereafter sustains a subsequent compensable work-
       related injury that, when combined with the preexisting disability, as set
       forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph,
       results in a permanent total disability as defined under this chapter; or . . . .

       In Cosby, the employee-claimant injured his knee when he fell off a ladder at

work on January 22, 2014. 579 S.W.3d at 205. The employee-claimant had multiple

previous disabilities from pre-2014, unrelated injuries, and, in February 2014, filed a

claim for permanent total and permanent partial disability against the Second Injury Fund

for the January 22, 2014 knee injury. Id. An ALJ and the Commission denied permanent

total disability benefits because the employee-claimant continued to work, and denied



                                              4
permanent partial disability benefits because the employee-claimant’s knee injury

occurred after January 1, 2014, and section 287.220.3(2) prohibits claims against the

Second Injury Fund for permanent partial disability occurring after January 1, 2014. Id.

at 207-08. On appeal before our Supreme Court pursuant to its exclusive appellate

jurisdiction, the employee-claimant challenged only the denial of permanent partial

disability benefits. Id. at 205-206 & n.2. The employee-claimant asserted in part that

section 287.220.2 (rather than subsection 3) applied because all of his previous

disabilities occurred before 2014 though his currently compensable knee injury occurred

after January 1, 2014. Id. at 206.

       In interpreting subsections 2 and 3 of section 287.220 and resolving the conflict

between the two subsections, the Supreme Court stated:

               Mr. Cosby asserts a strict reading of section 287.220.2 allows PPD
       benefits when the previous disability was due to any injury before January
       1, 2014. Mr. Cosby interprets “injuries” as used in section 287.220.2 to
       encompass all his preexisting conditions rather than the knee injury that
       precipitated the filing of his current claim against the fund. . . .
               Section 287.220.3(1) applies to “[a]ll claims against the second
       injury fund for injuries occurring after January 1, 2014.” (Emphasis
       added). Section 287.020.3(1) defines “injury” to mean “an injury which
       has arisen out of and in the course of employment.”[] When the
       legislature provides a statutory definition, it “supersedes the commonly
       accepted dictionary or judicial definition and is binding on the courts.”
       State ex rel. Jackson v. Dolan, 398 S.W.3d 472, 479 (Mo. banc 2013).
       Therefore, section 287.220.3 applies to all claims for PPD benefits for
       injuries arising out of or in the course of employment after January 1,
       2014.
               Importantly, section 287.220.3(2) goes on to provide: “No claims
       for permanent partial disability occurring after January 1, 2014, shall be
       filed against the second injury fund.” That section does not differentiate
       between claims in which there has been previous disability prior to
       January 1, 2014, and claims in which the previous disability occurred after
       January 1, 2014. The plain and ordinary meaning of the language in
       section 287.220.3(2) precludes the filing of claims arising from injuries
       occurring after January 1, 2014, without regard to when any previous
       disability occurred. Because Mr. Cosby’s 2014 knee injury arose out of



                                            5
       his employment after January 1, 2014, section 287.220.3 applies to bar his
       PPD benefits claim.

Cosby, 579 S.W.3d at 206-07 (footnote omitted). The Supreme Court then added:

               When read in the context of section 287.220 as a whole, section
       287.220.2 must be interpreted to apply to all cases of permanent disability
       in which all injuries, including the subsequent compensable injury,
       occurred prior to January 1, 2014. In other words, section 287.220.2
       applies to all PTD or PPD claims against the fund for injuries arising out
       of or in the course of employment when the injury causing PPD and the
       subsequent compensable injury all occurred prior to January 1, 2014.
       Section 287.220.3 applies to all PTD or PPD claims against the fund in
       which any injury arising out of or in the course of employment, including
       the subsequent compensable injury, occurred after January 1, 2014.[]
               Mr. Cosby’s 2014 knee injury arising in the course of employment
       occurred after January 1, 2014. It follows that section 287.220.3, rather
       than section 287.220.2, applies to his claim for PPD benefits following his
       2014 knee injury. Consequently, Mr. Cosby’s PPD claim against the fund
       is not a claim authorized by the statute because his injury occurred after
       January 1, 2014. The commission, therefore, did not err in finding section
       287.220.3 applied to Mr. Cosby’s PPD claim.[]

Cosby, 579 S.W.3d at 207-08 (footnotes omitted) (emphasis added).

       Subsequently, the Eastern District, in Krysl v. Treasurer of Missouri as

Custodian of the Second Injury Fund, 591 S.W.3d 13 (Mo.App. E.D. 2019), considered

a fact pattern essentially the same as the fact pattern in this appeal with the non-material

exception that the claim in Krysl was for permanent partial disability benefits rather than

permanent total disability benefits as in this appeal. Id. at 15. In Krysl, the employee-

claimant filed a claim against the Second Injury Fund in July 2016 for an occupational

disease (severe right carpal tunnel syndrome) that occurred on January 1, 2013, in

combination with a previous disability for diabetes. Id. at 14-15. An ALJ awarded the

employee-claimant permanent partial disability benefits, but the Commission reversed the

award because the employee-claimant’s claim was for an occupational disease and the

claim was filed after January 1, 2014, with, in the Commission’s reasoning, the result that



                                              6
the claim for permanent partial disability was precluded under section 287.220.3. Id.

The employee-claimant appealed arguing that the date of his compensable occupational

injury was “determinative” of whether subsection 2 or 3 of section 287.220 applied

regardless of the fact his claim was filed after January 1, 2014. Id. at 15. The Eastern

District agreed with the employee-claimant, held that his claim “should be governed by

Section 287.220.2,” and reversed the Commission’s decision. Id. at 17. In doing so, the

Eastern District stated:

               Section 287.220 governs the compensation and payment of claims
       and was amended in 2013 to limit claims against the Fund effective
       January 1, 2014. Section 287.220.2 unequivocally allows compensation
       for claims filed against the Fund in, “[a]ll cases of permanent disability
       where there has been previous disability due to injuries occurring prior to
       January 1, 2014 . . . .” (emphasis added). The language in Section
       287.220.3(1) specifically limits Fund liability for “[a]ll claims against the
       second injury fund for injuries occurring after January 1, 2014, and all
       claims against the second injury fund involving a subsequent
       compensable injury which is an occupational disease filed after January
       1, 2014.” (emphasis added).
               It is the distinction between accidental injury and occupational
       disease that is crucial to the interpretation of Section 287.220. Unlike an
       accidental injury, occupational diseases accrue over time.                An
       occupational disease does not become a compensable injury until it causes
       the employee to become disabled, meaning it affects the employee’s
       ability to perform ordinary tasks and harms his earning ability. See
       Garrone v. Treasurer of State of Missouri, 157 S.W.3d 237, 242 (Mo.
       App. E.D. 2004) (internal citations omitted). An employee can experience
       significant symptoms of an occupational disease well before it becomes a
       compensable injury. Id. In fact, an employee could even be substantially
       treated for an occupational disease but unless it becomes disabling prior to
       January 1, 2014, Subsection 287.220.3(1) precludes Fund liability [for
       permanent partial disability].
               The plain terms of Section 287.220.2 exclude “[a]ll cases of
       permanent disability where there has been previous disability due to
       injuries occurring prior to January 1, 2014 . . . .” (emphasis added). It
       does not distinguish between accidental injuries and occupational disease.
       However, the legislature then specifically uses the term “subsequent
       compensable injury” in its limitation of Fund liability for occupational
       disease in Section 287.220.3(1). See Macon Co. Emergency Services
       Board, 485 S.W.3d at 355 (“It is presumed that each word, clause,



                                             7
       sentence and section of a statute will be given meaning and that the
       legislature did not insert superfluous language.”). Thus when considering
       occupational disease, these two phrases, in conjunction with the term “all
       cases” in subsection 2 clearly indicates the legislature’s intent to include
       compensable occupational diseases occurring prior to January 1, 2014,
       which by their very nature could result in a claim filed after January 1,
       2014.[] Thus, all claims for any existing injuries due to occupational
       disease that were not a disabling “subsequent compensable injury” before
       January 1, 2014, are barred. The plain language of subsection 3(1) simply,
       if less than artfully, limits the Fund’s liability for all claims for any
       injuries, both accidental and occupational, which occurred after January 1,
       2014.[]
               Moreover, and of greater concern, the Commission’s conclusion
       effectively inserts the terms “except for occupational disease” in
       subsection 2 and “regardless of the date of injury” into Section
       287.220.3(1) which neither the Commission nor this court can do. See
       Macon Co. Emergency Services Board, 485 S.W.3d at 355. Not only does
       the Commission’s interpretation ignore the use of “subsequent
       compensable injury” by the legislature and [sic] but also requires the
       addition of words not contained in the statute. This contradicts the basic
       rules of statutory interpretation and our primary function to ascertain
       legislative intent from the language used in the statute. Anderson ex rel.
       Anderson, 248 S.W.3d 101, 106 (2008).

Id. at 16-17 (footnotes omitted) (bracketed “for permanent partial disability” added). The

Eastern District also noted in a footnote that:

       The Missouri Supreme Court’s recent decision in Cosby supports this
       interpretation. Although the injury at issue in Cosby was accidental, the
       Court’s holding regarding the applicability of Section 287.220.3 to
       preclude claims against the Fund for PPD did not rest on the nature of the
       injury. Instead, the Court focused solely upon the date of the injury,
       holding if the injury causing PPD and the subsequent compensable injury
       occurred prior to January 1, Section 287.220.2 governs the Fund’s
       liability. [Cosby, 579 S.W.3d] at 211.

Id. at 16 n.2. On February 4, 2020, the Supreme Court denied the Treasurer’s application

to transfer the appeal to the Supreme Court from the Eastern District.

       Most recently, the Western District in Dubuc v. Treasurer of the State of

Missouri as Custodian of the Second Injury Fund, No. WD 82809, 2020 WL 1016619

(Mo.App. W.D. Mar. 3, 2020), considered a claim against the Second Injury Fund for



                                              8
permanent total disability benefits attributable to the employee-claimant’s fall from a

ladder at work in October 2015 in combination with multiple previous disabilities due to

injuries before 2014. Id. at *1-2, *3, *5. In distinguishing Krysl, the Western District

stated in a footnote:

       In his brief, Dubuc suggests that the Eastern District agrees that section
       287.220.2 applies if any preexisting disability or compensable workplace
       injury occurs before January 1, 2014, and that section 287.220.3 applies
       only if all preexisting disabilities and the compensable workplace injury
       occur after January 1, 2014, relying on Krysl v. Treasurer of Missouri as
       Custodian of Second Injury Fund, 591 S.W.3d 13 (Mo. App. E.D. 2019).
       Krysl did not so hold. In Krysl, “[a]ll parties unequivocally stipulated
       [that] Krysl's occupational disease occurred on or about January 1, 2013.
       Thus, based upon the plain language of Section 287.220, the Fund’s
       liability ... should be governed by Section 287.220.2.” Id. at 17. This is
       precisely the outcome that Cosby dictates. Krysl is of no import to this
       case, as none of the medical conditions or workplace injuries relied on to
       assert a claim against the Fund [in Krysl] occurred after January 1, 2014.

Id. at *6 n.9 (bracketed “in Krysl” added).

       Consistent with the Eastern District in Krysl and the Western District in Dubuc,

we believe that our Supreme Court’s interpretation of subsections 2 and 3 of section

287.220 in Cosby controls the resolution of this appeal. Because Claimant’s

compensable occupational disease occurred before January 1, 2014 (i.e., on December

13, 2013), the Commission should have decided Claimant’s claim under section

287.220.2 rather than section 287.220.3 even though Claimant did not file her claim for

the occupational disease against the Second Injury Fund until after January 1, 2014 (i.e.,

in November 2014).

       The Commission’s decision is reversed and remanded with instructions to

reinstate the ALJ’s award of permanent total disability benefits to Claimant.




                                              9
Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, P.J., – Concurs

William W. Francis, Jr., J., – Concurs




                                         10
