                                        In the
                       Missouri Court of Appeals
                                 Western District
THOMAS DUBUC,                                )
                                             )
              Respondent,                    )   WD82809
                                             )
v.                                           )   OPINION FILED: March 3, 2020
                                             )
TREASURER OF THE STATE OF                    )
MISSOURI - CUSTODIAN OF THE                  )
SECOND INJURY FUND,                          )
                                             )
               Appellant.                    )

           Appeal from the Labor and Industrial Relations Commission

 Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
                             and Gary D. Witt, Judge


      The Treasurer of the State of Missouri in its capacity as the custodian for the Second

Injury Fund ("Second Injury Fund" or "Fund") appeals from the Labor and Industrial

Relations Commission's ("Commission") determination that the Second Injury Fund is

liable to Thomas Dubuc ("Dubuc") for permanent total disability benefits. The Second

Injury Fund argues that the Commission erroneously interpreted and applied the law.
Because the Commission determined the Fund's liability by erroneously relying on section

287.220.2 instead of section 287.220.3, we reverse and remand.1

                                   Factual and Procedural History2

        On October 30, 2015, Dubuc fell off a ladder while running fiber optic lines between

telephone poles as an employee for OTG, LLC ("Employer"). Dubuc drove himself to a

friend's house, where an ambulance was waiting to take him to the emergency room at

Capital Region Medical Center in Jefferson City. Dubuc complained that he was suffering

from pain in his left wrist and in his back. Dubuc was diagnosed with a minimally

displaced intra-articular fracture of his left wrist, and the treating doctor noted tenderness

along Dubuc's posterolateral ribs. As the hospital prepared to discharge Dubuc, Dubuc

noticed blood in his urine. A CT scan revealed that Dubuc had suffered a laceration of his

left kidney with perinephric hematoma. Dubuc was transferred and admitted to University

Hospital in Columbia for additional treatment. Dubuc remained hospitalized for seven

days. When Dubuc was discharged on November 6, 2015, he was given instructions to

follow up with the orthopedic surgeon and the urology department, and to avoid weight

bearing activities with his left arm.

        After approximately six months of follow-up appointments, Dubuc was seen by his

orthopedic surgeon for the final time on May 20, 2016. The orthopedic surgeon's notes



         1
           All statutory references are to RSMo 2000 as supplemented through October 30, 2015, the date of Dubuc's
compensable workplace injury, unless otherwise indicated.
         2
           "In reviewing the Commission's decision, we view the evidence objectively and not in the light most
favorable to the decision of the Commission." Moss v. Treasurer of State of Mo.-Custodian of Second Injury Fund,
570 S.W.3d 110, 113 n.2 (Mo. App. W.D. 2018) (quoting Poarch v. Treasurer of State of Mo.-Custodian of Second
Injury Fund, 365 S.W.3d 638, 642 (Mo. App. W.D. 2012)).

                                                        2
indicated that the fracture to Dubuc's left wrist had healed. Those notes further indicated

that the numbness and tingling Dubuc was experiencing "on the left side" was consistent

with carpal tunnel syndrome and lateral epicondylitis, neither of which was related to his

October 30, 2015 injury. The orthopedic surgeon released Dubuc for normal activities.

       Dubuc filed a claim for workers' compensation benefits on November 20, 2015,

seeking compensation for injuries to his upper extremities, back, neck, and spine, and for

internal injuries. Dubuc's claim sought compensation from his Employer and from the

Second Injury Fund. Dubuc settled his claim with the Employer on February 1, 2017, for

a lump sum of $50,000 that represented 30 percent permanent partial disability of the left

wrist and 13.5 percent of the body as a whole. Dubuc's claim against the Second Injury

Fund was heard by an Administrative Law Judge ("ALJ") on June 26, 2018.

       Dubuc and the Second Injury Fund stipulated that the issue to be resolved in the

hearing "is the liability of the Second Injury Fund for permanent total disability . . . benefits

including the nature and the extent of the permanent disability sustained as the result of

[the] injury of October 30, 2015." Dubuc and the Second Injury Fund also stipulated that

Dubuc's claim against the Employer was settled as outlined above, though the parties did

not agree that the settlement represented the extent of Dubuc's permanent disability

resulting from the October 30, 2015 accident.

       During the hearing, Dubuc testified and the ALJ received exhibits. Dubuc testified

that he continued to experience tingling and numbness in his left hand, particularly in his

thumb and in the two fingers closest to his thumb. Dubuc testified that the tingling and

numbness in his hand affected his grip so that he can no longer grip tools or carry heavy

                                               3
items, as required for his work running fiber optic lines. The parties stipulated that the date

of Dubuc's maximum medical improvement was May 20, 2016.

       Dubuc additionally testified about four preexisting disabilities: (1) in April 2010,

Dubuc sustained fractures to his L2 and L3 vertebrae after falling off a wall while fishing,

and has suffered pain in his back since that time, with the pain being made worse after the

October 30, 2015 accident; (2) in August 2011, Dubuc was diagnosed with deep vein

thrombosis; (3) in August 2011, Dubuc was diagnosed with Factor V Leiden, a genetic

mutation that causes excess blood clotting; and (4) in 2012, Dubuc was diagnosed with and

treated for depression. In addition, exhibits received in evidence established that Dubuc

dislocated his shoulder when he fell off a wall in 2010; had five bilateral inguinal hernias

repaired between 1983 and 1996; and suffered from chronic neck pain for many years.

       Other exhibits received during the hearing included a report from Dr. Mitchell C.

Mullins ("Dr. Mullins"), the doctor retained by Dubuc's attorney to conduct a medical

evaluation of Dubuc. Dr. Mullins conducted a physical examination of Dubuc and

reviewed Dubuc's medical records on June 28, 2016, and issued his report the same day

("Dr. Mullins's initial report" or "his initial report"). Dr. Mullins's initial report concluded

that Dubuc had limitations on his ability to work, including restrictions on his abilities to

lift weight, to stand and walk, to sit for long periods of time, to push or pull, to climb, and

to use his hands. Dr. Mullins's initial report concluded that Dubuc has: (1) "a 12%

permanent partial disability to the body as a whole rated at the lumbar spine due to injury";

(2) "a 36% permanent partial disability rated at the left wrist due to injury," a rating that

"consider[ed] the posterior traumatic arthritis which is apparent in the wrist, loss of range

                                               4
of motion as well as the development of posttraumatic carpal tunnel syndrome"; (3) "a 5%

permanent partial disability rated at the left elbow due to lateral epicondylitis"; and (4) "a

6% permanent partial disability rated to the body as a whole due to the kidney laceration,"

a rating that "consider[ed] post[-]injury scarring and possible long-term effects on the renal

function." Dr. Mullins's initial report did not address Dubuc's preexisting disabilities or

whether Dubuc was permanently and totally disabled.

       After receiving additional medical records from Dubuc, Dr. Mullins issued an

addendum on September 1, 2016, to address Dubuc's preexisting disabilities ("Dr. Mullin's

addendum" or "his addendum"). Dr. Mullins's addendum concluded that Dubuc has: (1)

"a 10% permanent partial disability to the body as a whole rated at the thoracolumbar spine

due to prior compression fractures at T12 and L2"; (2) "a 18% permanent partial disability

rated at the right shoulder due to prior dislocation"; (3) "a 23% permanent partial disability

rated at the abdomen/body as a whole due to recurrent bilateral inguinal hernias"; (4) "a

25% permanent partial disability to the body as a whole due to the [F]actor V Leiden

deficiency and chronic anticoagulation," a "rating [that] consider[ed] the ongoing need for

anticoagulation, burden of treatment, and the risks and side effects associated with chronic

anticoagulation"; (5) "a 9% permanent partial disability to the body as a whole due to

depression," a "rating [that] consider[ed] the recurrent treatment since the mid-90s required

with the recurrence of symptoms off medication"; and (6) "an 8% permanent partial

disability to the body as a whole rated at the cervical spine due to acquired spinal stenosis,

and degenerative disc disease." Dr. Mullins's addendum concluded that: "In light of the

multiple pre-existing injuries as well as the significant trauma on October 30, 2015, it is

                                              5
my opinion the patient is permanently and totally disabled as a result of this combination."

However, Dr. Mullins testified in a deposition taken a few months after he issued his

addendum that the work restrictions outlined in his initial report rendered Dubuc

permanently and totally disabled as a result of the October 30, 2015 accident.

       Dubuc also admitted into evidence the deposition of Dr. David Ross Strauser ("Dr.

Strauser"), a vocational expert who evaluated Dubuc. Dr. Strauser testified that, based on

Dubuc's injuries and the restrictions associated with those injuries, "there would be no jobs

available in the current economy that Mr. Dubuc would be able to maintain on a regular

basis." Dr. Strauser testified that he believed Dubuc to be "permanently and totally

disabled from a vocational perspective." Dr. Strauser clarified that his opinion about

employability was based on "the multiple preexisting injuries as well as the significant

trauma [Dubuc suffered] on October 30th, 2015." However, when Dr. Strauser was pressed

to consider only those injuries set forth in Dr. Mullins's initial report, Dr. Strauser testified

that his "overall opinion would remain unchanged" in that he still believed that "[Dubuc]

would have extensive difficulty in meeting the demands of jobs that are currently available

in the labor market."

       The ALJ issued its award on August 31, 2018 ("ALJ Award"). The ALJ Award

identified the applicable law as section 287.220.2, and concluded that Dubuc "failed to

sustain his burden of proof that he is permanently and totally disabled as a result of his

October 30, 2015 accident and injuries combined with his preexisting disabilities." While

the ALJ Award acknowledged that Dr. Mullins and Dr. Strauser opined that Dubuc was

permanently and totally disabled when considering the injuries he sustained from the

                                               6
October 30, 2015 accident in combination with his preexisting disabilities, the ALJ Award

ultimately relied on Dr. Mullins's and Dr. Strauser's conclusions that the injuries Dubuc

suffered in the October 30, 2015 accident were alone sufficient to render Dubuc

permanently and totally disabled.

         Dubuc appealed the ALJ Award to the Commission. The Commission reversed the

ALJ Award, and issued its final award on April 17, 2019 ("Final Award").3 The Final

Award identified the applicable law as section 287.220. Though the Final Award did not

reference a subsection, the Final Award quoted section 287.220.2 when it noted that

compensation shall be paid from the Fund in "all cases of permanent disability where there

has been previous disability."

         The Final Award concluded that Dubuc's prior injuries did not prevent him from

working prior to October 30, 2015, but that the prior injuries "clearly had the potential to

combine with a work-related injury in the future to cause a greater degree of disability than

would have resulted in the absence of the condition."4 Thus, the Final Award concluded

that, "[f]or the purposes of Second Injury Fund liability, [Dubuc's] preexisting disabilities

therefore constituted a hindrance or obstacle to employment or reemployment." The Final

Award concluded that the Second Injury Fund is liable to Dubuc for the rate differential

between permanent total disability benefits and permanent partial disability benefits from




          3
            The Final Award was a 2-1 decision. The dissenting member of the Commission concluded that Dubuc's
permanent total disability was attributable solely to the October 30, 2015 injury.
          4
            This standard for determining Fund liability is found in section 287.220.2, which, in pertinent part, uses
the phrase "caused by the combined disabilities is substantially greater than that which would have resulted from the
last injury, considered alone and of itself."

                                                          7
October 30, 2015, for 104.5 weeks, and thereafter for weekly permanent total disability

benefits in the amount of $879.03.

       The Second Injury Fund filed this timely appeal.

                                     Standard of Review

       Section 287.490.1 controls our review of the Final Award:

       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.

While we defer to the Commission's factual findings, "'we review issues of law, including

the Commission's interpretation and application of the law, de novo.'" Nivens v. Interstate

Brands Corp., 585 S.W.3d 825, 831 (Mo. App. W.D. 2019) (quoting Lawrence v.

Treasurer of State-Custodian of Second Injury Fund, 470 S.W.3d 6, 12 (Mo. App. W.D.

2015)).

                                          Analysis

       The Second Injury Fund argues that the Commission erroneously interpreted and

applied the law when it awarded permanent total disability benefits to Dubuc. The Fund

argues that because Dubuc's October 30, 2015 work injury occurred after January 1, 2014,

section 287.220.3 applied to determine the Fund's liability, not section 287.220.2, and that



                                             8
under section 287.220.3, Dubuc was not entitled to compensation from the Fund for

permanent total disability.

       Section 287.220 establishes the Second Injury Fund. The General Assembly created

the Second Injury Fund in an effort "to encourage the employment of individuals who are

already disabled from a preexisting injury, regardless of the type or cause of that injury."

Treasurer of State-Custodian of Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo.

banc 2013) (quoting Pierson v. Treasurer of State, 126 S.W.3d 386, 389-90 (Mo. banc

2004)). The existence of the Fund ensures that "an employer is only liable for the

disability caused by the work injury." Id. The Fund's liability for permanent partial and

total disability claims is statutorily limited, however, to the parameters described in

section 287.220.

       The General Assembly amended section 287.220 effective January 1, 2014. The

amended statute now provides, in relevant part:

       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 . . . shall be compensated as provided in this subsection. . . .

Section 287.220.2-.3. The standards for determining the Fund's liability for permanent

partial and permanent total disability benefits vary depending on which subsection applies.

       It is uncontested that the Commission relied on section 287.220.2 to award

permanent total disability benefits to Dubuc. The Fund does not challenge that Dubuc is

permanently and totally disabled. The Fund argues, however, that the Commission


                                              9
committed legal error when it applied section 287.220.2, instead of section 287.220.3, to

determine the Fund's liability to Dubuc. The Fund relies on Cosby v. Treasurer of State of

Missouri as Custodian for Second Injury Fund, 579 S.W.3d 202 (Mo. banc 2019), which

was decided on June 25, 2019, approximately two months after the Final Award.

         In Cosby, an employee sought an award of permanent disability benefits from the

Second Injury Fund after injuring his left knee at work on January 22, 2014. Id. at 205.

The employee testified about four preexisting disabilities sustained in 1974, 2002, 2004,

and 2008. Id. The ALJ concluded that, because the employee's work injury occurred after

January 1, 2014, section 287.220.3 applied to determine the Fund's liability. Id. The ALJ

then concluded that the employee was not entitled to permanent total disability benefits

from the Fund because the employee continued to work following his 2014 work injury.

Id. The ALJ also concluded that the employee was not entitled to permanent partial

disability benefits from the Fund pursuant to section 287.220.3(2).5 Id. The employee

appealed to the Commission, which affirmed the ALJ's award.6 Id.

         On appeal, the employee did not contest the denial of his claim for permanent total

disability benefits, but did challenge the denial of his claim for permanent partial disability

benefits. The employee argued that he was entitled to permanent partial disability benefits

from the Fund because section 287.220.2, and not section 287.220.3, controlled this



         5
           Section 287.220.3(2) provides, in pertinent part, that "[n]o claims for permanent partial disability
occurring after January 1, 2014, shall be filed against the second injury fund."
         6
           In other words, the Commission agreed with the ALJ that section 287.220.3 applied to determine the
Fund's liability to Cosby for permanent disability benefits. We discuss, infra note 8, the likely explanation for the
Commission's inconsistent decision to apply section 287.220.2 to determine the Fund's liability to Dubuc for
permanent disability benefits.

                                                          10
determination. Id. at 206. The employee argued that the phrase "previous disability due

to injuries occurring prior to January 1, 2014," in section 287.220.2 refers only to the

preexisting disabilities relied on to assert a claim against the Fund, and not to the

subsequent compensable workplace injury. Id. Since his preexisting disabilities occurred

before January 1, 2014, the employee argued that section 287.220.2 controlled his

eligibility for permanent disability benefits from the Fund. Id.

       The Supreme Court rejected the employee's urged construction of section

287.220.2, noting that it "overlooks both that the term 'injury' is defined by statute for

purposes of workers' compensation and that the plain and ordinary language of section

287.220.3 precludes his interpretation of section 287.220.2." Id. at 206-07. The Supreme

Court noted that "[s]ection 287.220.3(1) applies to '[a]ll claims against the second injury

fund for injuries occurring after January 1, 2014.'" Id. at 207. The Court observed that

"[s]ection 287.020.3(1) defines 'injury' to mean 'an injury which has arisen out of and in

the course of employment.'" Id. The Court thus concluded:

       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 [permanent
       total disability] or [permanent partial disability] claims against the fund for
       injuries arising out of or in the course of employment when the injury causing
       [permanent partial disability] and the subsequent compensable injury all
       occurred prior to January 1, 2014. Section 287.220.3 applies to all
       [permanent total disability] or [permanent partial disability] 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.

Id. (emphasis added).


                                             11
        The Court reinforced its construction of sections 287.220.2 and .3 by noting that the

employee's urged construction of section 287.220.2 would create an inconsistency with the

plain and ordinary language of section 287.220.3(2), which provides that "[n]o claims for

permanent partial disability occurring after January 1, 2014, shall be filed against the

second injury fund." Id. The Court observed that this "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." Id. The Court thus

concluded that because the employee's compensable workplace injury occurred after

January 1, 2014, section 287.220.3 applied, and that the Commission did not err by

applying this subsection to deny the employee's claim for permanent partial disability

benefits. Id. at 208.

        Cosby is controlling. Dubuc fell off a ladder and sustained injuries to his left wrist

and arm, low back, and kidney on October 30, 2015. Because this compensable workplace

injury occurred after January 1, 2014, section 287.220.3 should have been applied by the

Commission instead of section 287.220.2 to determine the Fund's liability to Dubuc for

permanent total disability benefits.

        Dubuc argues that Cosby is not controlling because Cosby's application is limited

to claims against the Fund for permanent partial disability benefits.7 Dubuc argues that


        7
           The Missouri Association of Trial Attorneys ("MATA") filed an amicus curiae brief asserting the same
argument. MATA's amicus brief also argues that application of section 287.220.3 to Dubuc's claim against the Fund
is inconsistent with the purpose of the Fund to encourage employment of workers with preexisting disabilities. This
policy argument disregards that Cosby construed section 287.220 as it was written. It is within the province of the
General Assembly, not the courts, to determine how best to effectuate public policy. State ex rel. Koster v. Cowin,
390 S.W.3d 239, 245 (Mo. App. W.D. 2013). Moreover, Cosby rejected the same policy argument, observing that
"at the time section 287.220 was amended, the fund was insolvent. Under such circumstances, the legislature
justifiably sought to limit the number of workers eligible for fund benefits." 579 S.W.3d at 209-10.

                                                        12
this court's holding in Gattenby v. Treasurer of State of Missouri-Custodian of Second

Injury Fund, 516 S.W.3d 859 (Mo. App. W.D. 2017), is controlling when a claim is made

against the Fund for permanent total disability benefits.8 We disagree.

        Gattenby involved a claim for permanent total disability benefits, where a knee

injury was sustained in March 2014, and preexisting disabilities were suffered in 2007,

2009, and 2010. Id. at 860. Gattenby concluded that the phrase "previous disability due

to injuries occurring prior to January 1, 2014," in section 287.220.2 refers to preexisting

injuries that resulted in disability prior to January 1, 2014, regardless when the subsequent

compensable workplace injury occurred. Id. at 862. Gattenby held that the omission of

any reference to "previous disability" in section 287.220.3(1) indicated an intent to apply

section 287.220.3 only when all injuries (the preexisting injuries and the subsequent

compensable workplace injury) occurred after January 1, 2014. Id. Gattenby thus held

that "section 287.220.3 applies only where both the preexisting and the primary injuries

occur after January 1, 2014." Id. (emphasis added).

        Gattenby and Cosby both construed the phrase "previous disability due to injuries

occurring prior to January 1, 2014," in section 287.220.2. Notably, Gattenby's construction

of that phrase was the same as the employee's urged (and rejected) construction in Cosby.

Gattenby concluded that all injuries (preexisting and the subsequent compensable

workplace injury) must occur after January 1, 2014, for section 287.220.3 to apply. Cosby


         8
           The Commission's Final Award relied on section 287.220.2 to determine whether Dubuc was entitled to
permanent total disability benefits from the Fund, though the Commission's final award in Cosby relied on section
287.220.3 to determine Cosby's entitlement to both permanent total and permanent partial disability benefits from
the Fund. We assume the explanation for this discrepancy is Gattenby, which was apparently decided in the
intervening period between the Commission's final award involving Cosby and its Final Award involving Dubuc.

                                                        13
concluded that if any workplace injury (preexisting or the subsequent compensable

workplace injury) occurred after January 1, 2014, then section 287.220.3 must apply.

Gattenby and Cosby reached diametrically opposed conclusions regarding the intended

meaning of sections 287.220.2 and .3, and cannot be reconciled. Consistent with this fact,

Cosby abrogated Gattenby:

       Mr. Cosby relies on Gattenby v. Treasurer of Missouri–Custodian of the
       Second Injury Fund, 516 S.W.3d 859, 862 (Mo. App. 2017), for the
       proposition that section 287.220.3 "applies only where both the preexisting
       and primary injuries occur after January 1, 2014." In Gattenby, however, the
       court of appeals failed to acknowledge that the workers' compensation statute
       defines the term "injury" and that the plain and ordinary language of section
       287.220.3 disallows PPD benefits to employees whose previous or
       subsequent compensable injuries occurred after January 1, 2014.
       Accordingly, Gattenby should no longer be followed to the extent it is
       inconsistent with this opinion.

Cosby, 579 S.W.3d at 208 n.5.

       Dubuc acknowledges that Cosby abrogated Gattenby, but persists in arguing that

Gattenby was abrogated only with respect to claims against the Fund for permanent partial

disability benefits. We disagree. Gattenby did not involve a claim for permanent partial

disability benefits and only involved a claim for permanent total disability benefits. Cosby

was the reverse. If this distinction mattered, it would have been unnecessary for Cosby to

abrogate Gattenby. Instead, Cosby recognized that Gattenby's construction of sections

287.220.2 and .3 applied to all permanent disability claims against the Fund. Similarly,

Cosby's construction of sections 287.220.2 and .3 applied to all permanent disability claims

against the Fund. Cosby's construction of sections 287.220.2 and .3 did not depend on the

type of permanent disability claim involved, and instead turned on the statutory definition


                                            14
of "injury." 579 S.W.3d at 206-07. Though Cosby discussed section 287.220.3(2), which

prohibits all "claims [against the Fund] for permanent partial disability occurring after

January 1, 2014", it did so to reinforce its construction of sections 287.220.2 and .3, and

not because the Court intended its construction of the statutes to be limited in application

to permanent partial disability claims.

       There is no reasoned basis for interpreting sections 287.220.2 and .3 differently

based on whether the claim asserted against the Fund is for permanent partial or permanent

total disability benefits. Sections 287.220.2 and .3 describe the parameters of the Fund's

liability for both types of permanent disability claims. See section 287.220.2; section

287.220.3(2). And in some cases, permanent partial and permanent total disability claims

are simultaneously asserted against the Fund. See, e.g., Cosby, 579 S.W.3d at 204 (noting

that the ALJ determined Cosby was not entitled to permanent partial disability or

permanent total disability benefits from the Fund). More to the point, Cosby has resolved

this issue. Cosby held that "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," and "section 287.220.3 applies to all [permanent total

disability] or [permanent partial disability] 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." 579 S.W.3d at 207 (emphasis added). We

therefore reject Dubuc's contention that Gattenby controls instead of Cosby with respect to




                                            15
claims against the Fund for permanent total disability.9 See Boland v. Saint. Luke's Health

Sys., 588 S.W.3d 879, 884(Mo. banc 2019) ("It is well settled that, unless '[t]he rulings

made, and the legal conclusions reached, by this [C]ourt,' have been 'criticized, modified,

or overruled by this [C]ourt[,]' such rulings are controlling in all lower courts. (emphasis

omitted) (quoting State ex rel. Maclay v. Cox, 10 S.W.2d 940, 946 (Mo. 1928))).

         Undeterred, Dubuc argues that Cosby's legal holding was obiter dicta to the extent

it addressed permanent total disability claims. We disagree. "Obiter dicta, by definition,

is a 'gratuitous opinion.'" Richardson v. QuikTrip Corp., 81 S.W.3d 54, 59 (Mo. banc

2002) (quoting Muench v. S. Side Nat'l Bank, 251 S.W.2d 1, 6 (Mo. 1952)). "[S]tatements

. . . are obiter dicta [if] they [are] not essential to the court's decision of the issue before it."

Id. (quoting Campbell v. Labor & Indus. Relations Comm’n, 907 S.W.2d 246, 251 (Mo.

App. W.D. 1995)). Cosby required the Court to determine the meaning of sections

287.220.2 and .3. Cosby's resolution of this question of law was necessarily applicable,

therefore, to the subject of both subsections--the Fund's liability for all permanent disability

claims. Cosby's expression of this obvious point is not obiter dicta merely because the

broad legal standard announced was then applied by the Court to a narrower set of facts.

See, e.g., Richardson, 81 S.W.3d at 59 (holding that court's announcement of a legal



         9
          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, No. ED107591, 2019 WL 4780359 (Mo.
App. E.D. Oct. 1, 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 *3. 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 occurred after January 1, 2014.

                                                          16
standard was not obiter dicta merely because the standard is broader in scope than the

narrower set of particular facts before the court).

        Finally, Dubuc argues that Cosby relied on the definition of "injury" found at section

287.020.3(1), when it should have relied on the definition of "injury" found at section

287.020.3(5).       Dubuc argues that reliance on the definition of "injury" in section

287.020.3(5) would have altered the outcome in Cosby. The premise of Dubuc's argument

is flawed.10

        Section 287.020.3(1) and section 287.020.3(5) are not incongruent and instead work

in harmony. Section 287.020.3(1) provides that "the term 'injury' is hereby defined to be

an injury which has arisen out of an in the course of employment." (Emphasis added.)

Section 287.020.3(5) provides that the term "'injury' . . . shall mean violence to the physical

structure of the body and to the personal property which is used to make up the physical

structure of the body . . . ." Read together, "injury" as defined in section 287.020.3(1)

means "[violence to the physical structure of the body and to the personal property which

is used to make up the physical structure of the body] which has arisen out of and in the

course of employment." Cosby correctly concluded, therefore, that the term "injury" as

used in sections 287.220.2 and .3 refers to injuries arising out of and in the course of

employment.

        In light of the foregoing discussion, we conclude that the Commission erroneously

declared and applied the law when it relied on section 287.220.2 to determine that Dubuc


        10
           Dubuc's assertion would constitute an improvident challenge to Supreme Court precedent we are duty
bound to follow. See Boland, 588 S.W.3d at 885.

                                                      17
was entitled to an award for permanent total disability benefits from the Fund. Instead,

section 287.220.3 controlled this determination.

       The Second Injury Fund argues that we need not remand this matter to the

Commission to apply the proper legal standard to the evidence, and that we can instead

apply the correct law and modify the Final Award. It is true that following our review of

questions of law, section 287.490.1 authorizes this court to modify, reverse, remand for

rehearing, or set aside an award. However, for reasons we explain, we do not believe it

appropriate to exercise our authority to modify the Final Award in this case.

       Section 287.220.3(2) addresses when a claim for permanent total disability against

the Second Injury Fund will be compensable. A claimant must establish that:

       (a) a. [The claimant] 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


                                             18
         items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a
         permanent total disability as defined under this chapter; or

         (b) An employee is employed in a sheltered workshop as established in
         sections 205.968 to 205.972 or sections 178.900 to 178.960 and such
         employee thereafter sustains a compensable work-related injury that, when
         combined with the preexisting disability, results in permanent total disability
         as defined under this chapter.

Section 287.220.3(2)(a)-(b).

         The Second Injury Fund alleges that Dubuc's evidence failed to establish these

requirements in that: (1) while Dr. Mullins opined that Dubuc had two qualifying

preexisting disabilities equaling at least fifty weeks of permanent partial disability (his

hernias rated at 23 percent body as a whole and his blood condition rated at 25 percent

body as a whole),11 there was no evidence that these disabilities were medically

documented before the October 30, 2015 work injury; (2) even assuming there was

evidence that these qualifying preexisting disabilities were medically documented, there

was no evidence that these disabilities were a result of active military duty or of a

compensable injury as defined in section 287.020, or that these qualifying preexisting

disabilities directly and significantly aggravated or accelerated the subsequent

compensable workplace injury which occurred on October 30, 2015.

         We agree with the Fund that no evidence in the record permits the conclusion that

Dubuc's potentially qualifying preexisting injuries (the hernias and blood condition) were

a result of active military duty or a direct result of a compensable injury as defined in


         11
           Dubuc's Brief reflects his agreement that the only preexisting disabilities described in the evidence that
could qualify as preexisting disabilities under section 287.220.3 are his hernia condition and his blood condition.
Both parties' Briefs state that Dr. Mullins's rating of the hernia condition would equate to 92 weeks, and that Dr.
Mullins's rating of the blood condition would equate to 100 weeks.

                                                          19
section 287.020. As a result, in order for Dubuc to secure an award for permanent total

disability benefits from the Fund, the evidence in the record must establish that these

preexisting disabilities were medically documented before his workplace injury on

October 30, 2015; that one or both of the these preexisting disabilities "directly and

significantly aggravate[d] or accelerate[d] the subsequent work-related injury [on

October 30, 2015];" and that these preexisting disabilities were not "unrelated preexisting

injuries or conditions that do not aggravate or accelerate the subsequent work-related injury

[on October 30, 2015]." Section 287.220.3(2)(a)a(iii).

       The Commission generally found, without reference to specific disabilities, that all

of Dubuc's preexisting disabilities described in the evidence "clearly had the potential to

combine with a work-related injury in the future to cause a greater degree of disability than

would have resulted in the absence of the condition." And the Commission found that

"based on Dr. Mullins'[s] and Dr. Strauser's expert opinions, . . . [Dubuc's] undisputed

permanent and total disability is attributable to a combination of industrially disabling

preexisting conditions in combination with disability from the primary injury." As we have

explained, these findings erroneously applied the standard for determining Fund liability

described in section 287.220.2. As a result, the Commission's findings did not address

which (if any) of Dubuc's preexisting disabilities were medically documented preexisting

disabilities equaling a minimum of fifty weeks of permanent partial disability

compensation according to the medical standards that are used in determining such

compensation. Section 287.220.3(2)(a)a. And the Commission did not address whether

Dubuc's qualifying preexisting disabilities (if any) "directly and significantly aggravate[d]

                                             20
and accelerate[d] the subsequent work-related injury" Dubuc suffered on October 30, 2015,

a more strident standard of eligibility than the standard described in section 287.220.2.

Section 287.220.3(2)(a)a(iii). Finally, the Commission did not consider whether Dubuc's

qualifying preexisting disabilities (if any) were "unrelated preexisting injuries or conditions

that do not aggravate or accelerate the subsequent work-related injury [on October 30,

2015]." Id.

       These determinations will require the Commission to consider all of the evidence

and to make additional factual findings before applying the correct legal standard to the

facts. Our standard of review does not permit us to make factual findings. See Nivens, 585

S.W.3d at 831. As such, modification of the Final Award is not appropriate. Instead, we

reverse the Final Award and remand this matter to the Commission to properly apply the

law to the evidence.

       The Second Injury Fund's point on appeal is granted.

                                         Conclusion

       The Commission's Final Award is reversed. This matter is remanded to the

Commission with instructions to apply the proper legal standards described in section

287.220.3 to the evidence to determine whether Dubuc has sustained his burden to establish

the right to an award of permanent total disability benefits from the Fund.



                                           __________________________________
                                           Cynthia L. Martin, Judge

All concur


                                              21
