SUPREME COURT OF MISSOURI en banc JAMES SWAFFORD, ) Opinion issued January 10, 2023 ) Appellant, ) ) v. ) No. SC99563 ) TREASURER OF MISSOURI AS ) CUSTODIAN OF SECOND ) INJURY FUND, ) ) Respondent. )
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
James Swafford appeals the Labor and Industrial Relations Commission’s
(“Commission”) decision overruling his claim for permanent total disability (“PTD”)
benefits from the Second Injury Fund (“Fund”). On appeal, Swafford challenges the
Commission’s decision for allegedly disregarding the expert testimony he offered to
establish a causal relationship between his preexisting disabilities and his primary injury.
Because Swafford failed to establish his preexisting disabilities “directly and significantly
aggravated or accelerated” his primary injury pursuant to section 287.220.3(2)(a)a(iii), 1
the Commission’s decision is affirmed.
1 All statutory references are to RSMo 2016. Background
Swafford worked as a hostler for Waller Truck Company; his primary
responsibility was transporting semi-trailers from one location to another. Prior to
suffering the primary injury giving rise to this case, Swafford had multiple preexisting
disabilities. First, he suffered from ankylosing spondylitis (“AS”), a congenital condition
causing his spine and rib bones to fuse together over time and resulting in “constant
pain,” difficulty breathing, curved posture, and a limited range of motion. Swafford also
suffered from various cardiac conditions for which he has undergone multiple
procedures, including hypertrophic cardiomyopathy, mitral valve regurgitation, and atrial
fibrillation. Lastly, Swafford has suffered from right-shoulder pain since 2012, which
was associated with his repetitive single-handed cranking of jacks used to adjust the
height of semi-trailers. In 2016, he was diagnosed with bursitis in his right shoulder,
which required steroid injections every three to four months.
Swafford’s primary injury occurred in October 2017 when he slipped while
getting out of a truck and was left hanging by his right arm. He “felt a pop” in his right
shoulder and was subsequently diagnosed with a “moderately large rotator cuff tear” and
a labrum tear. After settling his workers’ compensation claim with his employer,
Swafford filed a claim for PTD benefits against the Fund, alleging his preexisting
disabilities, combined with his primary injury, rendered him permanently and totally
disabled.
In support of his claim, he presented independent medical examination reports
from Dr. Erich Lingenfelter and Dr. Brent Koprivica. Dr. Lingenfelter noted:
2 I believe he has AC joint arthropathy and mechanical impingement both from a fall as well as his preexisting AS. … I think he does now have inflammatory bursitis as a result of the fall and that fall is the sentinel event and primary prevailing factor for his inflammatory bursitis and AC joint arthropathy however at present he is a poor surgical candidate and has issues such as hypertrophic cardiomyopathy and other significant medical issues that would make him be a very poor surgical candidate .... I have equal share to blame i[n] his current autoimmune situation. Because of his spine issues his scapula is now postured in a position that cannot elevate and protract regularly in order to allow more room for the supraspinatus outlet. This creates impingement phenomenon as well so this is also likely equal [sic] a contributing factor. ... In summary he has significant preexisting pathology and some things that are equally contributing to his issues however the sentinel event that created the chronic inflammatory bursitis which I might add is likely exacerbated by his disease process could be treated with cortisone and a round of therapy but no further treatment on top of that.
Dr. Koprivica opined that there was a “significant synergistic effect” between Swafford’s
preexisting disabilities and primary injury. 2
The Administrative Law Judge (“ALJ”) ultimately denied Swafford’s claim,
concluding he failed to demonstrate he suffered from a “qualifying” preexisting disability
under section 287.220.3. 3 Swafford appealed to the Commission, which affirmed the
ALJ’s decision. The Commission agreed with the ALJ’s determination that Swafford
failed to show his preexisting disabilities “directly and significantly aggravated or
2 Additionally, Swafford presented medical records from one of his treating physicians, Dr. Kent Huston. Dr. Huston provided no opinions regarding the cause of Swafford’s permanent and total disability. 3 To constitute a “qualifying” injury under the statute, it must be medically documented, equal to at least 50 weeks of permanent partial disability (“PPD”), and meet one of four listed criteria in section 287.220.3(2)(a)a(i)-(iv).
3 accelerated” his primary injury pursuant to section 287.220.3(2)(a)a(iii). Swafford
appeals the Commission’s decision. 4
Standard of Review
The Commission’s decision must be “supported by competent and substantial
evidence upon the whole record.” Mo. Const. art. V, sec. 18. On appeal, the
Commission’s factual findings shall be conclusive and binding in the absence of fraud,
and no additional evidence shall be heard. Section 287.495.1. This Court also defers to
the Commission’s determinations regarding the credibility of witnesses and the weight
given to conflicting evidence. Weibrecht v. Treasurer of Mo., No. SC99493, ___ S.W.3d
___, slip op. at 5 (Mo. banc Jan. 10, 2023). On appeal, this Court:
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.
Section 287.495.1(1)-(4).
4 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. 4 Analysis
The issue in this case is whether the Commission erred in determining Swafford
failed to establish that he is entitled to PTD benefits from the Fund. To be entitled to
PTD benefits under subsection 3, an employee must meet two conditions. First, the
employee must have a qualifying preexisting disability. Section 287.220.3(2)(a)a. To
satisfy the first condition and establish a qualifying preexisting disability, an employee’s
preexisting disability must be medically documented, equal at least 50 weeks of
permanent partial disability, and satisfy one or more of the criteria in items (i)-(iv) of
section 287.220.3(2)(a)a. Second, the employee must show the employee “thereafter
sustains a subsequent compensable work-related injury that, when combined with the
preexisting disability ... results in a permanent total disability.” Section
287.220.3(2)(a)b.
Swafford sought to satisfy the first condition and establish a qualifying disability
under item (iii) of section 287.220.3(2)(a)a because his prior disability resulted from one
or more non-compensable injuries. To qualify under item (iii), an employee’s preexisting
qualifying disability must “directly and significantly aggravate[] or accelerate[]” the
primary workplace injury.
Swafford claims that, in finding he failed to satisfy the requirements of section
287.220.2(2)(a)a(iii), the Commission “arbitrarily disregarded, ignored, and rejected
unimpeached and uncontroverted medical evidence” demonstrating that his preexisting
disabilities “directly and significantly aggravated or accelerated” his primary injury to
5 render him permanently and totally disabled. As a result, he claims its decision was not
supported by sufficient and competent evidence.
Despite Swafford’s contentions, the Commission expressly found
Dr. Lingenfelter’s “vaguely worded report” failed to establish, “as a factual matter,” that
Swafford’s preexisting disabilities “significantly and directly aggravated his primary
injury.” 5 It also adopted the ALJ’s other findings, including the ALJ’s finding that Dr.
Koprivica provided “no medical evidence” that any of Swafford’s preexisting disabilities
“directly and significantly aggravated or accelerated” his primary injury. As such, the
Commission did not disregard, ignore, or reject Swafford’s medical evidence. Rather, it
determined that evidence was insufficient to prove his claim under section
287.220.3(2)(a)a(iii). Swafford correctly contends these unrebutted medical reports
established that his preexisting disabilities had some worsening effect on his primary
injury. But the Commission did not err in concluding those reports were insufficient to
show that worsening effect rose to the level of significant and direct aggravation or
acceleration.
“Workers’ compensation law is entirely a creature of statute, and when
interpreting the law the court must ascertain the intent of the legislature by considering
the plain and ordinary meaning of the terms and give effect to that intent if
possible.” Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 381 (Mo. banc 2014).
“In the absence of statutory definitions, the plain and ordinary meaning of a term may be
5 The Commission made the same express finding regarding Dr. Huston’s treatment records. 6 derived from a dictionary, and by considering the context of the entire statute in which it
appears.” State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007)
(internal citation omitted). Additionally, this Court “presumes every word, sentence, or
clause in a statute has effect, and the legislature did not insert superfluous language.”
Mantia v. Mo. Dep’t of Transp., 529 S.W.3d 804, 809 (Mo. banc 2017).
The phrase “directly and significantly aggravates or accelerates” contained in
section 287.220.3(2)(a)a(iii) has not been construed by this Court. Webster’s Third New
International Dictionary defines “aggravate” as “to burden” and “to add weight to” and
“accelerate” as “to hasten the ordinary progress or the development of” and “increase the
rate or amount of.” Webster’s Third New International Dictionary of the English
Language 10, 41 (3d ed. 1993). As such, the “aggravate or accelerate” requirement can
be interpreted to mean the preexisting disabilities must exacerbate the primary injury in
some way. But that alone is not enough; the preexisting disabilities must directly and
significantly exacerbate the primary injury. “Significant” is defined as “deserving to be
considered” and “direct” is defined as “characterized by or giving evidence of a close
especially logical, casual, or consequential relationship.” Id. at 640, 2116. Hence, the
impact of the preexisting disabilities on the primary injury must be more than incidental;
they must clearly exacerbate the primary injury in a meaningful way.
To better understand this distinction, it is helpful to examine the legislative origins
of section 287.220.3(2)(a)a(iii). The legislature amended section 287.220 in 2013 “to
limit the number of workers eligible for fund benefits because the Fund was insolvent.”
Weibrecht, No. SC99493, ___ S.W.3d at___, slip op. 2. In doing so, the legislature
7 created subsection 2, which “retained the pre-amendment framework for Fund liability”
for compensable injuries occurring before January 1, 2014. Id. For compensable injuries
occurring after that date, the legislature created subsection 3, which “limited fund liability
for [PTD] claims[.]” Id. Accordingly, the standards imposed by subsection 3 are more
restrictive than those imposed by subsection 2.
Under subsection 2, a claimant is entitled to PTD benefits from the Fund if the
employee is rendered permanently and totally disabled by the combined effects of any
qualifying preexisting disabilities and the primary injury occurring prior to January 1,
2014. Likewise, section 3 requires that the subsequent compensable work-related injury
combine with any qualifying preexisting disabilities to result in a permanent total
disability. Section 287.220.3(2)(a)b. But subsection 3 adds further requirements,
including that any preexisting disability be “medically documented.” Section
287.220.3(2)(a)a. And for a claim based on a preexisting disability resulting from a non-
compensable injury, like Swafford’s claims, the claimant also must prove the preexisting
disability “directly and significantly aggravates or accelerates” an employee’s primary
injury. Section 287.220.3(2)(a)a(iii). The requirement that a qualifying preexisting
disability combine with or, in Dr. Lingenfelter’s terms, “contribute” to an employee’s
permanent and total disability is distinct from whether it “directly and significantly
aggravates or accelerates” the employee’s primary injury.
Dr. Lingenfelter repeatedly noted that Swafford’s preexisting disabilities affected
his primary injury, but he did not clearly articulate the extent to which any of those
disabilities exacerbated that injury. Without such elaboration, the Commission was not
8 required to conclude, based on that report, that Swafford’s preexisting disabilities
“directly and significantly” worsened his October 2017 workplace injury. Furthermore,
Dr. Koprivica stated there was a “significant synergistic effect” between Swafford’s
preexisting disabilities and primary injury. But that specific language relates to the
standard for fund liability prior to the 2013 amendments to section 287.220. See Pierson
v. Treasurer of Mo., 126 S.W.3d 386, 389 (Mo. banc 2004) (“Where the statute applies,
the employer is liable only for the amount of disability caused by the current injury, and
the fund is liable in the amount of the increase in disability caused by the synergistic
effect of the two injuries.” (emphasis added)). 6 While Swafford correctly asserts that
medical experts need not use the “magic words” contained in section
287.220.3(2)(a)a(iii) to prove his claim, the fact that Dr. Koprivica did employ “magic
words” (“synergistic effect”) associated with the less-stringent standard (“combine with”)
undoubtably undermines his claim. The Commission did not err by declining to construe
the language in Dr. Koprivica’s report beyond its plain meaning—that Swafford qualified
for fund liability under the “pre-amendment framework” now contained in section
287.220.2. Such language was insufficient to establish fund liability under section
287.220.3. 7
6 While the term “synergistic effect” did not appear in the prior statute itself, it was employed by courts—and medical experts—to describe the standard for Fund liability imposed by section 287.220.1. See, e.g., Pierson, 126 S.W.3d at 389; Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 631 (Mo. banc 2012). 7 In his reply brief, Swafford argues his case should be remanded to the ALJ to allow him to present additional evidence regarding whether he was entitled to Fund liability under section 287.220.3(2)(a)b. He contends such an opportunity is required, in part, because
9 Conclusion
The Commission’s findings were supported by substantial and competent
evidence. Swafford failed to establish his primary injury and preexisting disabilities
entitled him to PTD benefits from the Fund under section 287.220.3(2)(a)a(iii).
Accordingly, the Commission’s decision is affirmed.
______________________________ Mary R. Russell, Judge
Wilson, C.J., Powell, Fischer and Ransom, JJ, concur; Breckenridge, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Breckenridge, J.
this Court’s decision in Treasurer of Missouri v. Parker, 622 S.W.3d 178 (Mo. banc 2021), constituted “a significant clarification of statutory language” concerning “what evidence would be necessary to prevail under section 287.220.3(2)(a)b.” But Swafford made no argument about presenting additional evidence prior to his reply brief. “Assignments of error set forth for the first time in the reply brief do not present issues for appellate review.” Berry v. State, 908 S.W.2d 682, 684 (Mo. banc 1995) (internal quotation omitted). Accordingly, this claim is denied. 10 SUPREME COURT OF MISSOURI en banc JAMES SWAFFORD, ) ) Appellant, ) ) v. ) No. SC99563 ) TREASURER OF MISSOURI AS ) CUSTODIAN OF SECOND ) INJURY FUND, ) ) Respondent. )
DISSENTING OPINION
I respectfully dissent from the principal opinion’s holding that there was substantial
and competent evidence to support the Labor and Industrial Relations Commission’s
finding that James Swafford failed to establish his prior qualifying disabilities directly and
significantly aggravate and accelerate his primary injury, as required by section
287.220.3(2)(a)a(iii). 1 I would find the evidence presented by Mr. Swafford was sufficient
to prove his preexisting qualifying disabilities of ankylosing spondylitis and hypertrophic
cardiomyopathy directly and significantly aggravated and accelerated his right shoulder
1 All statutory references are to RSMo 2016. and elbow injuries. Accordingly, I would vacate the commission’s denial of his claim for
second injury fund benefits and remand to the commission. 2
Mr. Swafford presented evidence his employer sent him to Dr. Erich Lingenfelter,
an orthopedic surgeon, for evaluation of his right shoulder. Dr. Lingenfelter made the
following entry in his independent medical examination (“IME”) report:
The labral tear has been present and has existed since 2012 which is confirmed by previous MRIs. This did not happen acutely and quite frankly labral tears in this age group do not even get fixed. At the most they sometimes get debrided but I do not believe this is his pain generator. I think he has AC joint arthropathy and mechanical impingement both from a fall as well as his pre-existing AS. He has history reports that this was somewhat more of a sentinel event that changed his function however there is no detectable signs of a rotator cuff tear on MRI and a partial-thickness tear typically would not cause this degree of weakness. I think he does now have inflammatory bursitis as a result of the fall and that fall is the sentinel event and primary prevailing factor for his inflammatory bursitis and AC joint arthropathy however at present he is a poor surgical candidate and has issues such as hypertrophic cardiomyopathy and other significant medical issues that would make him be a very poor surgical candidate and I would not advise doing anything about this anyway at this point or likely ever. [Of] . . . equal share to blame i[n] his current autoimmune situation. Because of his spine issues his scapula is now postured in a position that cannot elevate and protract regularly in order to allow more room for the supraspinatus outlet. This increases impingement phenomenon as well so this is also likely equal[ly] a contributing factor . . . . In summary he has significant preexisting pathology and some things that are equally contributing to his issues however the sentinel event that created the chronic inflammatory bursitis which I might add is likely exacerbated by his disease process could be treated with cortisone and a round of therapy but no further treatment on top of that.
2 In her dissenting opinion, Commissioner Shalonn K. Curls properly applied the governing law to the evidence, and, with some alterations, I adopt her analysis of the facts and the law, as well as her findings and conclusions, without further attribution.
2 Additionally, Dr. Lingenfelter’s IME report notes Mr. Swafford has “relatively
good pain-free range of motion of left side but it is also limited because of the scapular
posturing which is likely a manifestation of his ankylosing spondylitis.” He added
Mr. Swafford “has limited ability to protract or move his scapula in a coordinated
position,” and that he “has extremely poor posture likely not his fault because his spine is
probably fused at this point or close to that.”
Dr. Lingenfelter’s IME report demonstrates Mr. Swafford’s preexisting ankylosing
spondylitis makes his right shoulder injury significantly worse. He explained how the
ankylosing spondylitis prevented Mr. Swafford scapula from functioning properly, which,
in combination with the work injury, significantly contributed to the impingement
phenomenon in the right shoulder. Dr. Lingenfelter expressly stated Mr. Swafford’s
inflammatory bursitis from the shoulder injury was exacerbated by the preexisting disease
process. Dr. Lingenfelter also confirmed the effects of Mr. Swafford’s shoulder injury are
made worse by the fact he is not a surgical candidate due to his preexisting heart condition.
Dr. Lingenfelter opined the shoulder injury Mr. Swafford suffered related to his October
6, 2017 work accident was significantly worse due to his preexisting ankylosing
spondylitis. The October 6, 2017 injury would not have been as bad, as serious, or as
severe as it was without the ankylosing spondylitis.
Additionally, Mr. Swafford’s treatment records from his rheumatologist,
Dr. Kent Huston, support Dr. Lingenfelter’s conclusions that Mr. Swafford’s ankylosing
spondylitis aggravated his shoulder problems, including shoulder pain and loss of motion.
Dr. Huston started treating Mr. Swafford in 2015 for ankylosing spondylitis. Mr. Swafford
3 complained to Dr. Huston about right shoulder pain, beginning in January 2016. At that
point, Dr. Huston’s examination revealed full range of motion of the shoulders and elbows,
and good grip strength bilaterally. By March 2017, Mr. Swafford reported to Dr. Huston’s
nurse practitioner that he was having pain in his right shoulder and right elbow, and her
examination revealed right shoulder pain with decreased range of motion. He received
steroid injections in his right shoulder and right elbow. On October 18, 2017, Mr. Swafford
reported to Dr. Huston’s nurse practitioner that he was noticing more pain in his neck and
right shoulder, and his physical examination showed decreased range of motion in the right
shoulder with pain. Mr. Swafford received another injection in his right shoulder.
The rheumatology records show Mr. Swafford’s ankylosing spondylitis had
progressed to the point before his work injury where it was impairing the range of motion
in his right shoulder and causing right shoulder pain. However, he was still able to work
as a hostler. The shoulder problems caused by the ankylosing spondylitis aggravated the
work injury by making his shoulder worse and rendering him unable to continue his work
as a hostler.
Dr. Brent Koprivica’s opinions do not contradict or dispute Dr. Lingenfelter’s
opinions about the interaction between Mr. Swafford’s preexisting disabilities and his work
injury. In analyzing the case under section 287.220.2, Dr. Koprivica did not specifically
express an opinion about whether Mr. Swafford’s preexisting disabilities directly and
significantly aggravated or accelerated his work injury. However, Dr. Koprivica did not
counter or refute Dr. Lingenfelter’s conclusion despite specifically referencing
Dr. Lingenfelter’s notes in his report.
4 In fact, several of Dr. Koprivica’s opinions support the conclusion that
Mr. Swafford’s preexisting disabilities aggravated his work injury by making the effects
of that injury worse, more troublesome, and more burdensome than it would be without the
preexisting disabilities. Dr. Koprivica stated, “[W]hen one looks at the impact of
combining the significant preexistent industrial disabilities that I have identified with the
additional disability attributable to the October 6, 2017, work injury claim, there is
significant synergistic effect.” He added, “[N]oting that Mr. Swafford has not successfully
returned to the open labor market since the October 6, 2017, work injury, noting the level
of disability which he presents from the combination of the multiple disabilities, there are
concerns that Mr. Swafford is, in fact, permanently and totally disabled.” Dr. Koprivica’s
report notes, “[T]he level of significance of his thoracic and lumbar pain represented an
ongoing permanent obstacle to reemployment for job tasks requiring any significant
amount of bending, pushing, pulling, twisting and heavier lifting and carrying.” He stated,
“There is contribution to the restrictions I would place regarding right shoulder from
preexistent industrial disability.”
Dr. Koprivica confirmed Mr. Swafford’s ankylosing spondylitis and heart condition
each constituted preexisting permanent partial disability of 25-percent permanent partial
disability to the body as a whole, which exceeds the threshold of 50 weeks required by
section 287.220.3(2)(a)a.
Dr. Lingenfelter’s uncontroverted and unimpeached IME report, along with the
support of Dr. Huston’s treatment records and Dr. Koprivica’s report, provides strong
5 medical evidence that these preexisting disabilities directly and significantly aggravated or
accelerated Mr. Swafford’s work injury.
Dr. Lingenfelter’s IME report establishes Mr. Swafford’s preexisting ankylosing
spondylitis directly and significantly aggravated and accelerated the right upper extremity
injury he suffered at work. It is undisputed, and the ALJ found, the preexisting ankylosing
spondylitis exceeds 50 weeks of permanent partial disability.
Notably, until his October 6, 2017 work injury, Mr. Swafford was able to work as a
hostler within the restrictions imposed by his preexisting disabilities. The injury to his
right upper extremity at Waller Truck Company, Inc., not only closed the door on his ability
to do that job, but it also closed the door on any other job that might be available in the
open labor market, including jobs in retail sales and as a cashier, because those jobs require
use of his right upper extremity that exceed his medical restrictions. The evidence shows
Mr. Swafford is, therefore, permanently and totally disabled.
Mr. Swafford’s ankylosing spondylitis and heart condition each exceeds the
50-week minimum on its own. Those conditions satisfy the requirement that there be “a
medically documented preexisting disability equaling a minimum of fifty weeks.” As
explained above, those conditions aggravated and accelerated Mr. Swafford’s October 6,
2017 right shoulder injury.
The ALJ’s award denying compensation based on a finding that Mr. Swafford had
no qualifying preexisting disabilities pursuant to section 287.220.3 is against the weight of
the evidence in this case. And an award that is “contrary to the overwhelming weight of
the evidence is, in context, not supported by competent and substantial evidence.”
6 Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Because the
principal opinion holds otherwise, I respectfully dissent.
___________________________________ PATRICIA BRECKENRIDGE, JUDGE