The Supreme Court of Missouri’s (SCOMO) much-anticipated decision in the seminal case of Cosby v. Treasurer of Missouri was handed down lasted week, and landed like a meteor, sending shock waves throughout the Missouri workers’ compensation community.
It felt like a scene from an old movie, with newsboys racing down the street, waving papers and yelling “EXTRA, EXTRA READ ALL ABOUT IT!” As soon as word started spreading, it seemed to be the only thing work comp lawyers were talking about, whether by email, at the St. Louis office of the Missouri division of workers’ compensation (DWC), or at lunch.
The appellant In Cosby challenged the 2014 amendments to the Workers’ Compensation Law that apparently eliminated claims for permanent partial disability (PPD) benefits from the Missouri second injury fund (“SIF”) by injured MO work comp injury victims for additional compensation in some cases where those workers suffered from pre-existing disability. Cosby alleged alternatively that either the MO legislature had left a loophole that maintained the viability of those claims, or that the changes were unconstitutional.
SCOMO affirmed lower court rulings that denied compensation to Cosby on both grounds. Although the dissent in a 5-2 decision had some concerns with the language of the 2014 amendments and would have chosen to construe allegedly conflicting provisions of RSMo 287.220 in the opposite of the methodology adopted by the majority, there was no disagreement that the legislature’s actions did not violate the open courts provision of the Missouri Constitution, and did not deny either due process or the equal protection of Missouri law.
While the outcome was not entirely unexpected by many observers, the implications, both legal and practical, may prove to be wide-ranging, due to one aspect of the case that was not mentioned, and another that appeared only in a footnote.
Although Cosby had settled his claim against his employer, the Missouri labor and industrial relations commission pointed out in its award (affirming an administrative law judge’s denial of Cosby’s SIF claim) that the Employer would have been liable for the SIF benefits that it denied.
Since SCOMO affirmed the commission’s award, some are arguing that it affirmed the commission’s findings as to employers’ liability for the PPD benefits previously owed by the SIF. Others point out that, since Cosby’s employer was not a party to the appeal, the commission’s statements constitute mere non-binding dicta, since the employer did not have any chance to dispute those comments.
Either way, the commission’s award provides a road map with a big, blinking neon arrow, for future MO workers’ comp lawyers to follow, not only as to PPD benefits, but, perhaps, for permanent total disability (PTD) compensation as well.
A footnote in Cosby is potentially the big bombshell. in construing the term “injury”, the Court notes that insofar as the interpretation of the term by a lower court in the last big SIF appeal, Gattenby v. Treasurer, conflicts with Cosby, Gattenby is to be disregarded.
Gattenby concerned the much higher PTD benefits payable by the SIF. The Missouri Attorney General’s office, which defends the SIF, is apparently taking the position that the Cosby footnote reverses Gattenby, thereby saving the SIF tens (if not hundreds) of millions of dollars of potential future liability.
This position will no doubt be tested, and soon, and looms as the next big SIF appellate case, as employees’ attorneys across the state have been relying on Gattenby to prosecute their SIF PTD claims. Whether or not the Attorney General’s position is correct remains to be seen, especially in light of SCOMO’s refusal of the SIF’s request to decide this issue in Gattenby itself.
Meanwhile, next in line will be claims of so-called enhanced employers’ liability for the former SIF benefits, both PPD and PTD. Many claimants’ lawyers are already asserting these claims, but none is known to have been decided by the commission as of this writing.
Enhanced employer liability claims raise much higher stakes for businesses and their insurers, and have already been said to attract the notice of legislators seeking to protect employers at the expense of their injured workers.
Whatever action the MO legislature may take in this regard, MO workers’ compensation attorneys are now turning their sights towards companies and away from the SIF in regard to their clients’ PTD claims. If employers do not have enhanced liability for the compensation formerly owed by the SIF, the efforts will now focus on the causation of the worker’s PTD by the primary work-related injury alone and by itself, without reference to prior disabilities.
Neither Cosby nor Gattenby affected employer liability for PTD benefits in those cases. Now, instead of the SIF pointing to PTD claimants who spent years working without limitation, doctors’ restrictions, lost time, or medical treatment prior to their work-related injuries, it will the claimants’ attorneys doing so.
Last and perhaps least, the question remains of what to do with what is probably thousands Cosby – style claims that remain pending at this time. Employees’ attorneys across Missouri have kept these claims alive awaiting the outcome of Cosby. How the Missouri division of workers’ compensation deals with this backlog remains to be seen, although there have been indications that it is aware of this issue and has been considering its options.
Whether and how soon the division schedules mass dockets or not, and whether the claims are set for prehearing conferences or dismissals remains to be seen. In the meantime, claimants’ attorneys can be expected to begin preparing motions to dismiss the claims or motions to withdraw their appearances, unless there are some other unexpected developments, or better options present themselves.