In the Missouri Court of Appeals Eastern District DIVISION TWO
BRIAN WHITE, ) No. ED113099 ) Respondent, ) ) Appeal from the Labor and Industrial vs. ) Relations Commission ) TREASURER OF THE STATE OF ) MISSOURI AS CUSTODIAN OF THE ) SECOND INJURY FUND, ) ) Appellant. ) FILED: June 17, 2025
Opinion
The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (SIF),
appeals from the Labor and Industrial Relations Commission’s (Commission) award of
permanent total disability (PTD) benefits to Brian White (White) for his November 2020 chest
injury in combination with disabilities resulting from White’s preexisting occupational shoulder
disease. The sole question before us is whether occupational diseases satisfy the preexisting
disability requirement for SIF liability under § 287.220.3(2)(a)a(ii). 1 During the pendency of
this appeal, the Supreme Court of Missouri decided occupational diseases are not compensable
under this section of the statute and therefore are not covered by SIF. Treasurer of State v.
1 All Section references are to RSMo (2016), unless otherwise noted. Section 287.220 has since been amended with no changes to the subsections relevant to this appeal. Penney, 710 S.W.3d 498 (Mo. banc 2025). 2 Accordingly, we reverse and remand for further
proceedings consistent with this opinion.
Background
From May 2007 to December 2020, White worked as a distribution field worker for
Missouri American Water (MAW). White’s responsibilities involved mostly intensive manual
labor, which included tasks such as regularly lifting objects around 40 to 100 pounds, digging by
hand, climbing atop ladders, and walking long distances to stretch up to 1,000 feet of hose.
Throughout his career, White has suffered several work-related injuries. Relevant to resolving
the narrow issue before us are White’s 2010 shoulder injuries and 2020 chest injury.
In October 2010, White suffered a work-related injury to his shoulders, which was
deemed to be an occupational disease under the Missouri’s Workers’ Compensation Act (Act).
White filed a worker’s compensation claim for his shoulders and settled with MAW for 23%
permanent partial disability (PPD) to each shoulder or 106.72 weeks of disability in total. In
addition to this shoulder injury, White has received worker’s compensation for numerous other
work-related injuries throughout the years, including but not limited to injuries to his neck, back,
wrists, and knees. Although evidence of these prior compensable injuries— compensable in the
sense that White received worker’s compensation benefits for them —is contained in the record,
the Commission did not make findings as to whether these injuries were statutorily sufficient to
trigger SIF liability.
In 2020, White injured his chest while working with an overhead load spring on an
industrial vacuum truck. White filed a worker’s compensation claim for this chest injury and
MAW settled for 12.5% PPD disability. As a result of these particular work-related injuries,
2 The Supreme Court also heard a similar issue in Eckardt v. Treasurer of Missouri, 710 S.W.3d 523 (Mo. banc 2025). However, the Supreme Court decided that case on different grounds. See id. at 528–31.
2 White sought compensation from SIF for PTD and proceeded to a hearing before an
administrative law judge (ALJ).
The ALJ determined SIF was liable for PTD benefits to White. To reach this
determination, the ALJ made two findings. First, the ALJ held White had a qualifying
preexisting disability equal to at least 50 weeks of disability with his 2010 shoulder injury.
Second, the ALJ found White suffered a subsequent compensable work-related injury or a
primary injury with his 2020 chest injury. The ALJ reasoned these injuries together resulted in
PTD pursuant to § 287.220.3(2)(a)b, and as such created SIF liability.
SIF appealed to the Commission on multiple grounds. Specifically relevant to this
appeal, SIF claimed the ALJ improperly found White’s 2010 injury to his shoulders constituted
a preexisting disability under § 287.220.3(2)(a)a(ii). Instead, SIF argued that the 2010 shoulder
injuries were occupational diseases, and that § 287.220.3(2)(a)a(ii) excludes occupational
diseases from compensation. The Commission rejected this statutory interpretation and affirmed
the ALJ’s award of PTD benefits to White. Specifically, the Commission stated “[i]n the
absence of controlling case law instructing otherwise, we reaffirm our position that a medically
documented compensable occupational disease disability of greater than fifty weeks may qualify
as a preexisting disability for purposes of [SIF] liability under § 287.220.3(2)(a)a(ii).”. SIF now
appeals.
Standard of Review
Our standard of review of the Commission’s award is set by statute.
The [C]ourt, 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;
3 (4) That there was not sufficient competent evidence in the record to warrant the making of the award.
§ 287.495.1. “This Court reviews the Commission’s findings to determine if they are supported
by competent and substantial evidence upon the whole record, but questions of statutory
interpretation are questions of law reviewed de novo.” Treasurer of State v. Parker, 622 S.W.3d
178, 180–81 (Mo. banc 2021) (internal quotation omitted).
Discussion
In its sole point on appeal, SIF contends the Commission improperly interpreted
§ 287.220.3(2)(a)a(ii) to allow occupational diseases to qualify as a preexisting disability
triggering SIF liability. Given the Supreme Court’s recent holding, we agree. Specifically, the
Supreme Court decided occupational diseases are not compensable under § 287.020, therefore
occupational diseases cannot satisfy the preexisting disability requirement for purposes of
creating SIF liability under § 287.220.3(2)(a)a(ii). Penney, 710 S.W.3d at 503. We apply the
Supreme Court’s ruling to the case at bar, but first we explain how an employee creates SIF
liability.
To create SIF liability under § 287.220.3, an employee must meet two requirements.
Parker, 622 S.W.3d at 181. “First, the employee must have at least one qualifying preexisting
disability.” Id. (citing § 287.220.3(2)(a)) (emphasis in original). “To qualify under the first
condition, the preexisting disability must be medically documented, equal at least 50 weeks of
permanent partial disability, and meet one of [four] criteria.” Id. The only criteria presented to
us in this appeal is the second criteria, which states a preexisting disability can be “[a] direct
result of a compensable injury as defined in section 287.020.” § 287.220.3(2)(a)a(ii) (emphasis
added).
4 Section 287.020 defines injury as “an injury which has arisen out of and in the course of
employment” that caused “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.” § 287.020.3(1), (5),
RSMo (Cum. Supp. 2018). This section allows accidental injuries to be compensable “only if
the accident was the prevailing factor in causing both the resulting medical condition and
disability.” § 287.020.3(1), RSMo (Cum. Supp. 2018).
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In the Missouri Court of Appeals Eastern District DIVISION TWO
BRIAN WHITE, ) No. ED113099 ) Respondent, ) ) Appeal from the Labor and Industrial vs. ) Relations Commission ) TREASURER OF THE STATE OF ) MISSOURI AS CUSTODIAN OF THE ) SECOND INJURY FUND, ) ) Appellant. ) FILED: June 17, 2025
Opinion
The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (SIF),
appeals from the Labor and Industrial Relations Commission’s (Commission) award of
permanent total disability (PTD) benefits to Brian White (White) for his November 2020 chest
injury in combination with disabilities resulting from White’s preexisting occupational shoulder
disease. The sole question before us is whether occupational diseases satisfy the preexisting
disability requirement for SIF liability under § 287.220.3(2)(a)a(ii). 1 During the pendency of
this appeal, the Supreme Court of Missouri decided occupational diseases are not compensable
under this section of the statute and therefore are not covered by SIF. Treasurer of State v.
1 All Section references are to RSMo (2016), unless otherwise noted. Section 287.220 has since been amended with no changes to the subsections relevant to this appeal. Penney, 710 S.W.3d 498 (Mo. banc 2025). 2 Accordingly, we reverse and remand for further
proceedings consistent with this opinion.
Background
From May 2007 to December 2020, White worked as a distribution field worker for
Missouri American Water (MAW). White’s responsibilities involved mostly intensive manual
labor, which included tasks such as regularly lifting objects around 40 to 100 pounds, digging by
hand, climbing atop ladders, and walking long distances to stretch up to 1,000 feet of hose.
Throughout his career, White has suffered several work-related injuries. Relevant to resolving
the narrow issue before us are White’s 2010 shoulder injuries and 2020 chest injury.
In October 2010, White suffered a work-related injury to his shoulders, which was
deemed to be an occupational disease under the Missouri’s Workers’ Compensation Act (Act).
White filed a worker’s compensation claim for his shoulders and settled with MAW for 23%
permanent partial disability (PPD) to each shoulder or 106.72 weeks of disability in total. In
addition to this shoulder injury, White has received worker’s compensation for numerous other
work-related injuries throughout the years, including but not limited to injuries to his neck, back,
wrists, and knees. Although evidence of these prior compensable injuries— compensable in the
sense that White received worker’s compensation benefits for them —is contained in the record,
the Commission did not make findings as to whether these injuries were statutorily sufficient to
trigger SIF liability.
In 2020, White injured his chest while working with an overhead load spring on an
industrial vacuum truck. White filed a worker’s compensation claim for this chest injury and
MAW settled for 12.5% PPD disability. As a result of these particular work-related injuries,
2 The Supreme Court also heard a similar issue in Eckardt v. Treasurer of Missouri, 710 S.W.3d 523 (Mo. banc 2025). However, the Supreme Court decided that case on different grounds. See id. at 528–31.
2 White sought compensation from SIF for PTD and proceeded to a hearing before an
administrative law judge (ALJ).
The ALJ determined SIF was liable for PTD benefits to White. To reach this
determination, the ALJ made two findings. First, the ALJ held White had a qualifying
preexisting disability equal to at least 50 weeks of disability with his 2010 shoulder injury.
Second, the ALJ found White suffered a subsequent compensable work-related injury or a
primary injury with his 2020 chest injury. The ALJ reasoned these injuries together resulted in
PTD pursuant to § 287.220.3(2)(a)b, and as such created SIF liability.
SIF appealed to the Commission on multiple grounds. Specifically relevant to this
appeal, SIF claimed the ALJ improperly found White’s 2010 injury to his shoulders constituted
a preexisting disability under § 287.220.3(2)(a)a(ii). Instead, SIF argued that the 2010 shoulder
injuries were occupational diseases, and that § 287.220.3(2)(a)a(ii) excludes occupational
diseases from compensation. The Commission rejected this statutory interpretation and affirmed
the ALJ’s award of PTD benefits to White. Specifically, the Commission stated “[i]n the
absence of controlling case law instructing otherwise, we reaffirm our position that a medically
documented compensable occupational disease disability of greater than fifty weeks may qualify
as a preexisting disability for purposes of [SIF] liability under § 287.220.3(2)(a)a(ii).”. SIF now
appeals.
Standard of Review
Our standard of review of the Commission’s award is set by statute.
The [C]ourt, 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;
3 (4) That there was not sufficient competent evidence in the record to warrant the making of the award.
§ 287.495.1. “This Court reviews the Commission’s findings to determine if they are supported
by competent and substantial evidence upon the whole record, but questions of statutory
interpretation are questions of law reviewed de novo.” Treasurer of State v. Parker, 622 S.W.3d
178, 180–81 (Mo. banc 2021) (internal quotation omitted).
Discussion
In its sole point on appeal, SIF contends the Commission improperly interpreted
§ 287.220.3(2)(a)a(ii) to allow occupational diseases to qualify as a preexisting disability
triggering SIF liability. Given the Supreme Court’s recent holding, we agree. Specifically, the
Supreme Court decided occupational diseases are not compensable under § 287.020, therefore
occupational diseases cannot satisfy the preexisting disability requirement for purposes of
creating SIF liability under § 287.220.3(2)(a)a(ii). Penney, 710 S.W.3d at 503. We apply the
Supreme Court’s ruling to the case at bar, but first we explain how an employee creates SIF
liability.
To create SIF liability under § 287.220.3, an employee must meet two requirements.
Parker, 622 S.W.3d at 181. “First, the employee must have at least one qualifying preexisting
disability.” Id. (citing § 287.220.3(2)(a)) (emphasis in original). “To qualify under the first
condition, the preexisting disability must be medically documented, equal at least 50 weeks of
permanent partial disability, and meet one of [four] criteria.” Id. The only criteria presented to
us in this appeal is the second criteria, which states a preexisting disability can be “[a] direct
result of a compensable injury as defined in section 287.020.” § 287.220.3(2)(a)a(ii) (emphasis
added).
4 Section 287.020 defines injury as “an injury which has arisen out of and in the course of
employment” that caused “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.” § 287.020.3(1), (5),
RSMo (Cum. Supp. 2018). This section allows accidental injuries to be compensable “only if
the accident was the prevailing factor in causing both the resulting medical condition and
disability.” § 287.020.3(1), RSMo (Cum. Supp. 2018). However, this section also states
“[t]hese terms shall in no case except as specifically provided in this chapter be construed to
include occupational disease in any form[.]” § 287.020.3(5), RSMo (Cum. Supp. 2018)
(emphasis added). An occupational disease is “an identifiable disease arising with or without
human fault out of and in the course of employment . . . and to have flowed from [employment]
as a rational consequence.” § 287.067.1. 3 To satisfy the second condition, the employee must
then show he “thereafter sustains a subsequent compensable work-related injury that, when
combined with the preexisting disability . . . results in a permanent total disability . . . .” Parker,
622 S.W.3d at 181 (quoting § 287.220.3(2)(b)). Parties and courts often refer to subsequent
compensable work-related injuries as primary injuries. Id. Upon establishing both
requirements, an employee becomes entitled to PTD benefits from SIF. Id.
White asserts the Commission properly applied § 287.220.3(2)(a)a(ii) when determining
his 2010 shoulder injuries were a compensable qualifying preexisting disability. If White’s
interpretation is correct, then he would proceed to the second step of establishing SIF liability.
If his shoulder injuries or any other prior injury did not qualify as a preexisting disability, then
he fails the first step of creating SIF liability. In their briefing, both parties agreed Penney
would decide this case, and SIF notified this Court of Penney’s decision during the pendency of
3 The legislature amended this section in 2023 but the definition of occupational disease did not change.
5 this appeal. The Supreme Court definitively held occupational diseases cannot serve as
qualifying preexisting disabilities under § 287.220.3(2)(a)a(ii) because they are not compensable
injuries under § 287.020. Penney, 710 S.W.3d at 503.
In reaching this decision, the Supreme Court reasoned the legislature sought to limit SIF
liability when it amended the Act in 2005, “indicating a legislative intent ‘to divorce the
compensability of occupational disease claims from . . . the statutory provisions which define
‘accident’ and ‘injury.’” Id. at 501 (internal quotation omitted). “The 2005 amendments,
therefore, delineated two different types of ‘compensable injuries’ each with their own scheme
to determine compensability—injuries by accident as defined in [§] 287.020 and injuries by
occupational disease as defined in [§] 287.067.” Id. (internal citation omitted).
In 2013, the legislature again amended the statutes creating subsection 3 of § 287.220,
which established the two requirements an employee must meet to create SIF liability. Id.
(internal citation omitted). These amendments sought to limit the number of workers eligible for
SIF funds as SIF faced insolvency. Id. Turning to § 287.020, the Supreme Court found the
legislature clearly excluded occupational diseases from compensable injuries with the language:
“[t]hese terms shall in no case except as specifically provided in this chapter be construed to
include occupational disease in any form.” Id. at 502.
This interpretation led the Supreme Court to reverse the Commission’s award of PTD
benefits to the pharmacy technician employee in Penney, who claimed occupational diseases as
qualifying preexisting disabilities. Id. at 503. Here, like the employee in Penney, White relied
upon an occupational disease to serve as his qualifying preexisting disability. See id. Given that
occupational diseases are not compensable injuries under § 287.020 and cannot serve as a
6 qualifying preexisting disability under § 287.220.3(2)(a)a(ii), White fails the first requirement of
establishing SIF liability.
We therefore find the Commission erred as a matter of law, by making its award in
excess of its powers under § 287.495.1(1). We grant the appeal. Because the record contains
evidence of other prior work-related injuries, that do not necessarily implicate Penney, and may
trigger SIF liability, we remand the case for further proceedings.
Conclusion
The Commission’s decision is reversed and remanded for the Commission to consider
whether there is any SIF liability under any combination of qualifying preexisting disabilities
pursuant to any provision of § 287.220.3(2)(a)a(i)–(iv).
Rebeca Navarro-McKelvey, J.
Lisa P. Page, P.J. and Virginia W. Lay, J., concur.