           In the Missouri Court of Appeals
                   Eastern District
                                        DIVISION TWO
BRUCE KRYSL,                                    )            ED107591
                                                )
       Appellant,                               )            Appeal from the Labor and
                                                )            Industrial Relations Commission
v.                                                   )       13-104992
                                                 )
TREASURER OF MISSOURI AS                             )
CUSTODIAN OF THE SECOND                              )
INJURY FUND,                                         )
                                                     )
       Respondent.                                   )       Filed: October 1, 2019

                                          OPINION
       Bruce Krysl (“Krysl”) appeals the decision of the Labor and Industrial Relations

Commission (“the Commission”) denying compensation. We reverse and remand.

                                        BACKGROUND

       In 1994, Krysl was employed as a sculptor for the Veiled Prophets of St. Louis (“VP”),

carving large characters for parade floats. Krysl’s job required him to perform repetitive strokes

while sculpting the characters. In 2012, Krysl was diagnosed with diabetes, requiring treatment

for peripheral neuropathy in his upper and lower extremities, among other symptoms resulting

from his diabetes. In 2013, he began to experience numbness and tingling in his right hand while

sculpting and was ultimately diagnosed with severe right carpal tunnel syndrome. The parties
stipulated his primary compensable occupational injury occurred on January 1, 2013. Krysl

underwent surgery for carpal tunnel release and was released to full duty in 2015.

           Krysl filed a claim for compensation on July 5, 2016. He settled his primary injury claim

against VP in May 2017, leaving the claim against the Second Injury Fund (“the Fund”). Krysl’s

claim against the Fund was heard by the administrative law judge (“ALJ”) in February 2018.

The ALJ awarded Krysl permanent partial disability. The Fund filed an application for review.

The Commission reversed the ALJ’s award, finding that even though the primary occupational

injury occurred on January 1, 2013, Section 287.220.3(1) RSMo (2016)1 applied and precluded

his claim for permanent partial disability against the Fund because Krysl filed his claim after

January 1, 2014.

                                                   DISCUSSION

           In each of his two points on appeal, Krysl contends the Commission erroneously

interpreted Section 287.220 in denying his claim for compensation against the Fund. In both

points, Krysl’s argument centers upon the fact that the parties stipulated his occupational injury

occurred January 1, 2013. Thus, his claim, which was filed after January 1, 2014, did not

preclude a claim against the Fund because the date of his injury was determinative.

                                                 Standard of Review

           We review the Commission’s decision to determine whether it is “supported by

competent and substantial evidence upon the whole record.” Cosby v. Treasurer of State as

Custodian of Second Injury Fund, 2019 WL 2588575 *2, quoting Article V, section 18 of the




1
    All further statutory references are to RSMo (2016).

                                                           2
Missouri Constitution. In addition, Section 287.495.1 states, in relevant part, that we shall only

review questions of law and we may modify, reverse, remand or set aside the award only upon

the following grounds:

       (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.

       We review questions of law de novo. Cosby, at *2.

                                             Analysis

        Each of Krysl’s two points on appeal contend the Commission erroneously interpreted

Section 287.220 in denying his claim for compensation against the Fund because the parties

stipulated his occupational injury occurred January 1, 2013. Krysl argues the plain language of

Section 287.220 compensates all injuries occurring prior to January 1, 2014, even though his

claim was filed after that date. We agree.

       The Commission found that because Krysl’s claim was filed after January 1, 2014,

Section 287.220.3 precludes his claim for permanent partial disability (“PPD”) against the Fund.

This interpretation ignores the plain language of the statute and creates an unnecessary conflict

within Section 287.220. Of greater concern, it also requires an impermissible addition of terms

to arrive at the result. See Macon Co. Emergency Services Board v. Macon Co. Comm’n, 485

S.W.3d 353, 355 (Mo. banc 2016) (“This Court will not add words to a statute under the auspice

of statutory construction.”).




                                                 3
          When interpreting statutes, we must ascertain the legislature’s intent by considering the

plain and ordinary meaning of the terms used and give effect to that intent where possible.

Cosby v. Treasurer of State as Custodian of Second Injury Fund, 2019 WL2588575 *3. We

consider the words in context and we must construe sections of statutes in pari materia to

determine the meaning and scope of the language. Id.

          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

                                                   4
liability.

        The plain terms of Section 287.220.3(1) 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, 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, 2014.23 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, 2014.4




2
  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,
3
  , Section 287.220.2 governs the Fund’s liability. Id. at *4.
4
  As in Krysl’s case, this interpretation only applies to a narrow group of individuals affected by this conflict who
sustained a compensable injury prior to, but filed claims after, January 1, 2014, for such occupational disease.

                                                          5
        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 but also requires the

addition of words not contained in the statute.5 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 at 106.

        All parties unequivocally stipulated 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 in

this case should be governed by Section 287.220.2. Although Krysl filed his claim for injury due

to occupational disease after January 1, 2014, he sustained a compensable injury prior to this

date resulting in his PPD. Therefore, his claim against the Fund was not precluded by Section

287.220.3, and the Commission erred in denying benefits on this basis.

                                             CONCLUSION

        The judgment of the Commission is reversed and remanded with instructions to reinstate

the ALJ’s award of permanent partial disability

benefits.

                                                           ___________________________________
                                                           Lisa P. Page, Judge




Philip M. Hess, P.J., concurs.

5
 The Commission’s interpretation also impacts the substantive rights of claimants which would be improperly
applied to claims retrospectively. See Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc

                                                      6
Kurt S. Odenwald, J., concurs in separate concurring opinion.




2007) (Missouri Constitution prohibits laws that are retrospective in operation which is one that takes away or
impairs vested or substantial rights acquired under existing law or imposes new obligations or duties with respect to
past transactions). Our interpretation gives effect to the plain language of the statute, complies with the legislative
intent to limit Fund liability for all injuries after January 1, 2014, and avoids this ex post facto application of the
amended statute.




                                                           7
           In the Missouri Court of Appeals
                   Eastern District
                                        DIVISION TWO

BRUCE KRYSL,                                       )         ED107591
                                                   )
       Appellant,                                  )         Appeal from the Labor and
                                                   )         Industrial Relations Commission
v.                                                 )         13-104992
                                                   )
TREASURER OF MISSOURI AS                           )
CUSTODIAN OF THE SECOND                            )
INJURY FUND,                                       )
                                                   )
       Respondent.                                 )         Filed: October 1, 2019

                                  CONCURRING OPINION

       This appeal requires statutory interpretation of legislative amendments related to

Missouri’s system of workers’ compensation. I write separately to underscore the challenges of

adhering to legislative intent in light of ambiguous or otherwise unclear language that has

appeared in several legislative amendments to the workers’ compensation statutes since 2005.

The sole issue presented on appeal is whether Bruce Krysl (“Krysl”) is entitled to recover partial

permanent disability benefits from the Second Injury Fund (“the Fund”) due to his work-related

carpal tunnel syndrome. Our responsibility is to apply the law to the facts before us. Applying
the law in this matter requires our review of two sections of the same statute, which we hold

allows Krysl to recover from the Fund. As this Court correctly notes, the two subsections at

issue appear to be in conflict under the interpretation applied by the Labor and Industrial

Relations Commission (the “Commission”). Section 287.220.26 generally provides that “[a]ll

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.” Section

287.220.3 states that “[a]ll claims against [the Fund] for injuries occurring after January 1, 2014,

and all claims against [the Fund] involving a subsequent compensable injury which is an

occupational disease filed after January 1, 2014, shall be compensated as provided in this

subsection.” Section 287.220.3(1).

           The Commission’s interpretation of Section 287.220 focuses on the filing requirement of

subsection 3. In so doing, the Commission suggests that the more specific requirement of

subsection 3 supersedes the general language of subsection 2, and is therefore controlling. In

particular, the Commission distinguishes the “triggering” event for Fund liability under each

subsection—the occurrence of an injury under Section 287.220.2 and the filing of a claim for

injuries resulting from an occupational disease under Section 287.220.3. At first glance, the

Commission’s argument seems logical. However, further analysis of these provisions

undermines the Commission’s application of Section 287.220 to deny Krysl’s claim. By

focusing solely on the triggering language of each subsection, the Commission overlooks what

this Court does not—that subsection 2 covers claims for all injuries (including those resulting

from occupation disease) occurring before January 1, 2014, while subsection 3 limits coverage




6
    All Section references are to RSMo (Cum. Supp. 2013), unless otherwise indicated.

                                                          2
for claims of “subsequent compensable injuries” resulting from an occupational disease filed

after January 1, 2014.

       Critically, the legislature did not define the term “subsequent compensable injury.”

Accordingly, we will give those words their plain meaning. The term “subsequent compensable

injury” is different from a compensable disabling injury that was identified before January 1,

2014. In essence, a subsequent compensable injury is reasonably interpreted as a subset of a

compensable injury—an injury from an occupational disease that did not become disabling until

after January 1, 2014. This Court reasonably gives significance to the legislature’s use of the

word “subsequent.” The dictionary defines “subsequent” as “following in time” and “coming or

being later than something else.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE

ENGLISH LANGUAGE UNABRIDGED 2278 (2002). Here, the parties stipulated that Krysl

developed a disabling injury resulting from an occupational disease before January 1, 2014.

Because Krysl’s disabling injury did not follow in time after January 1, 2014, his injury was not

a “subsequent compensable injury.” By recognizing the different meanings of these terms, we

harmonize both subsections 2 and 3 of Section 287.220 and eliminate the false conflict suggested

by the Commission. We consider the words in context and construe both subsections 2 and 3 of

Section 287.220 in pari materia to determine the meaning and scope of the language. Cosby v.

Treasurer of State as Custodian of Second Injury Fund, SC 97317, 2019 WL 2588575, at *3

(Mo. banc June 25, 2019) (citing S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d

659, 666 (Mo. banc 2009)).

       Our opinion also notes that applying the Commission’s interpretation of Section 287.220

requires the addition of words not found in the text of the statute. Along that same line of

reasoning, however, one can posit that under our interpretation of Section 287.220, the

                                                 3
legislature did not need to include in subsection 3 the condition based upon “filing.” Given our

definition, any subsequent compensable injury would necessarily be filed after January 1, 2014,

because the injury would not be disabling, and therefore not compensable, until after January 1,

2014. I am mindful that when interpreting statutes, courts do not presume that the legislature

enacts meaningless provisions. Edwards v. Gerstein, 237 S.W.3d 580, 581 (Mo. banc 2007)

(internal citation omitted). For that reason, we are presented with a quandary as to the

legislature’s purpose in adding the filing condition. This quandary is the reason I write this

concurring opinion. The language of Section 287.220 leaves this Court with a dilemma—which

rule of statutory construction to follow.

        In my view, our approach remains faithful to the legislature’s intent to address the

financial insolvency of the Fund in a manner consistent with the purpose of providing disability

benefits under the Fund. The purpose of Section 287.220.3 was to limit—not eliminate — Fund

liability. Contrary to the Commission’s argument, allowing Krysl to recover from the Fund on

his claim for his permanent partial disability does not disregard the legislature’s intent as

expressed in the plain language of the statute and does not lead to an absurd result rendering the

amendments useless. As noted in the opinion, our interpretation of “subsequent compensable

injury” will have minimal impact on Fund liability because this interpretation only applies to a

narrow subset of potential claimants who sustained a compensable injury due to an occupational

disease prior to January 1, 2014, but who did not file a claim until after January 1 2014. As a

result, our interpretation aligns with the legislature’s intent to rescue the Fund from its financial

instability.

        For these reasons, I concur.




                                                   4
    ___________________________________
    Kurt S. Odenwald, Judge




5
