(Extensive, complex rules as to the Second Injury Fund (SIF) are set forth in Section 287.220 RSMo.)
The general rule is that the employee has the burden of proving a pre-existing disability, so as to bring about liability of the SIF, to the extent that such pre-existing disability was a "hindrance or handicap" to the employee in obtaining employment or re-employment in the open labor market. In a permanent total case, the court will first determine whether the last accident "considered alone, in and of itself", was significantly serious enough to cause the permanent total disability. If not, the court then, and only then looks to see if the pre-existing disability meets the above standard of constituting a "hindrance or handicap", combines, synergistically, medically, to create a greater overall disability, then the simple sum of the pre-existing disability and the disability from the last accident, considered alone and of itself.
In Ristau v DMAPZ, 2004 WL 76440, (Mo.App.W.D. 2004), employee was killed in the course and scope of his employment at his second job. The Commission affirmed ALJ's decision that the first employer was not required to pay death benefits but the second employer was required to pay the benefits. The Commission also order the SIF to pay wage loss benefits to employee's wife and children for wages from the second employer. The Court of Appeals ruled that the SIF was not liable to pay death benefits to the surviving wife and children . They held that ?287.250.8 states that an employee's wages shall be added together ONLY for TEMPORARY benefits pursuant to ?287.220.9. This statute, ?287.220.9, limits the type of benefits recoverable under the Fund to total or temporary partial disability benefits.
In Pierson v State Treasurer, 2004 WL 51803 (Mo. 2004), the SIF sought review of a Commission award determining the Fund's liability for a pre-existing eye blindness. The SIF argued that the Fund was not liable for any increased disability because the Fund can only be held liable if the preexisting injury is to a major extremity or to a part of the body as a whole and they argued, the loss of an eye does not meet that criteria. The Court of Appeals ruled that a pre-existing injury to the eye is also a partial injury to the body as a whole for purposes of SIF liability. Additionally, the Court of Appeals held that the SIF is not liable for a loss of use premium as set out in schedule to be paid for PPD, and that this requirement only applies to the employer.
In Uhlir v Nancy Farmer, State Treasurer of SIF, 94 S.W.3d 441 (Mo.App. E.D. 2003), a LANDMARK CASE, of a first impression in the State of Missouri, holds that where there is permanent partial disability to the same body part that is later reinjured in the primary case against the employer, and the employee is still working (not a PTD case) for the first time the courts recognized that that pre-existing disability to the same body part (herniated disc at L4-L5) can combine with later, additional disability to the same body part as the primary case against the employer, for SIF purposes.. In the past, on the "same body part" has always been rejected by the Fund as not being able to "combine to a greater overall disability than the simple sum of the two" because it was the same body part, no matter where in the body the prior disability and later disability are, so long as both disabilities are to the same body part. IN SHORT, "LOW BACK ON LOW BACK" WHEN COMBINED FOR SIF PURPOSES. How far that will be extended remains to be seen.