1

Missouri Court of Appeals

Southern District

Division One

GREGORY PHELPS, )

 )

Appellant, )

 )

vs. ) No. SD36998

 )

MISSOURI STATE TREASURER AS ) FILED: June 25, 2021

CUSTODIAN OF THE SECOND INJURY FUND, )

)

Respondent. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

Gregory Phelps (hereafter referred to as “Claimant” and sometimes “Employee”) appeals 

the final award of the Labor and Industrial Relations Commission (the “Commission”) denying 

his workers’ compensation claim for permanent total disability (“PTD”) benefits from the 

Treasurer of the State of Missouri as custodian of the Second Injury Fund (the “Fund”). In three 

points relied on, Claimant asserts that the Commission “erred as a matter of law” in denying his 

claim because the Commission incorrectly interpreted and applied section 287.220.3.1 Because 

his first and second points lack merit and their denial moots his third point, we affirm the 

Commission’s award.

 1 All statutory references are to RSMo 2016, unless otherwise indicated.
2

Applicable Legal Principles

When, as in this case, “the Commission affirms and adopts the award and decision of the 

[Administrative Law Judge (“ALJ”)], we review the ALJ’s findings as adopted by the 

Commission.”2 Williams v. City of Jennings, 605 S.W.3d 152, 157 n.2 (Mo.App. 2020) (citing 

Angus v. Second Injury Fund, 328 S.W.3d 294, 297 (Mo.App. 2010). By their adoption, the 

ALJ’s findings become the Commission’s findings, which are subject to appellate review.

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. Cosby v. Treasurer 

of State, 579 S.W.3d 202, 205-06 (Mo. banc 2019).... “When interpreting 

statutes, this 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.” Id. at 206.... Further, this Court refrains from adding words to the 

statute. Macon Cnty. Emergency Servs. Bd. v. Macon Cnty. Comm’n, 485 S.W.3d 

353, 355 (Mo. banc 2016).

Treasurer of State v. Parker, SC98704, 2021 WL 1554726, at *2 (Mo. banc Apr. 20, 2021). 

The Commission’s findings of fact are conclusive if supported by competent and 

substantial evidence upon the whole record and reached in the absence of fraud. Archer v. City 

of Cameron, 460 S.W.3d 370, 374 (Mo.App. 2015) (citing Coday v. Division of Employment 

Sec., 423 S.W.3d 775, 778 (Mo. banc 2014)). Here, none of Claimant’s points challenge any 

Commission factual finding as not being supported by competent and substantial evidence upon 

the whole record. See MO. CONST. art V, § 18; section 287.495.1(4). We utilize, therefore, the 

Commission’s unchallenged factual findings in our de novo review of Claimant’s legal 

challenges to the Commission’s interpretation and application of section 287.220.3.

 2 Upon Claimant’s application for review, the Commission issued a supplemental opinion that affirmed and adopted 

the ALJ’s award and decision denying compensation and that also noted, “[a]lthough not the basis for this award,” 

there was an additional basis, not mentioned in the ALJ’s decision, for denying the claim.
3

“This Court strictly construes the provisions of workers’ compensations statutes.” Cosby, 

579 S.W.3d at 206; section 287.800.1. “When interpreting statutes, this 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.” Cosby, 579 S.W.3d at 206 (alteration and quotation marks 

omitted). While in isolation a word may be susceptible to more than one meaning, “its plain 

meaning is determined from its ‘usage in the context of the entire statute.’” Holmes v. Steelman, 

SC97983, 2021 WL 2445785, at *5 (Mo. banc June 15, 2021) (quoting State ex rel. Goldsworthy 

v. Kanatzar, 543 S.W.3d 582, 585 (Mo. banc 2018)). “A court cannot look at single, separate 

words in a statute and then apply to each a definition untethered from its context.” Id. (citing 

Kehlenbrink v. Dir. of Revenue, 577 S.W.3d 798, 800 (Mo. banc 2019)). “Strict construction 

does not authorize an ALJ, the Commission, or this court to add words to or subtract words from 

a statute or ignore the plain meaning of the words chosen by the legislature.” Naeter v. 

Treasurer of Missouri, 576 S.W.3d 233, 237 (Mo.App. 2019) (citing Dickemann v. Costco 

Wholesale Corp., 550 S.W.3d 65, 68 n.5 (Mo. banc 2018)).

Under section 287.220.3, an employee must meet two conditions to make a compensable 

PTD claim against the Fund. Parker at *2. The first condition, at issue in Claimant’s first and 

second points, is that “the employee must have at least one qualifying preexisting disability.” Id. 

To qualify under the first condition, the preexisting disability must be medically 

documented [(“the first requirement”)], equal at least 50 weeks of permanent 

partial disability [(“the second requirement”)], and meet one of the following 

criteria [(“the third requirement”)]:

(i) A direct result of active military duty in any branch of the United States Armed 

Forces [(“the first criteria”)]; or

(ii) A direct result of a compensable injury as defined in section 287.020 [(“the 

second criteria”)]; or

(iii) Not a compensable injury, but such preexisting disability directly and 

significantly aggravates or accelerates the subsequent work-related injury and 
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shall not include unrelated preexisting injuries or conditions that do not aggravate 

or accelerate the subsequent work-related injury [(“the third criteria”)]; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in 

one eye, or loss of hearing in one ear, when there is a subsequent compensable 

work-related injury as set forth in subparagraph b of the opposite extremity, loss 

of eyesight in the other eye, or loss of hearing in the other ear [(“the fourth 

criteria”)] [.]

Id. (emphasis added); section 287.220.3(2)(a)a(i)-(iv).

The second condition, at issue in Claimant’s third point, is “the employee must show he 

‘thereafter sustains a subsequent compensable work-related injury that, when combined with the 

preexisting disability ... results in a permanent total disability....’” Id.; section 287.220.3(2)(a)b. 

“The ‘subsequent compensable work-related injury’ is often referred to as the ‘primary injury.’” 

Id.

Factual and Procedural Background

As his primary injury, the Commission found that Claimant sustained a compensable 

work-related injury to his left shoulder on April 14, 2016, and that determination is not in dispute 

in this appeal. Claimant settled his worker’s compensation claim for this injury with his 

employer and its insurer.

The Commission also determined that “[t]he evidence clearly supports a finding that 

[Claimant] is permanently and totally disabled....” That determination is not in dispute in this 

appeal.

Rather, Claimant asserted before the ALJ and the Commission that the Fund was liable 

for PTD benefits because his pulmonary system/lungs, right knee, and low back were each a 

qualifying preexisting disability, see section 287.220.3(2)(a)a (“the first condition”), that when 

combined with his primary injury resulted in his PTD, see section 287.220.3(2)(a)b (“the second 
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condition”). As to those alleged preexisting disabilities, the ALJ made the following factual 

findings:

[Pulmonary system/lungs]

Employee was diagnosed with asthma as a child. He has taken steroid 

medications and breathing treatments for the condition, but he does not believe 

his asthma limited his activities. Employee is a smoker and began smoking at age 

13.

While working for the Fire Department, Employee sustained several smoke and 

chemical inhalation injuries that he believes worsened his asthma and increased 

his need for medications and inhalers. Employee did not provide specific dates for 

these exposures. He recalled having breathing treatments at least three to four 

times. He did not file any claims for workers’ compensation regarding these 

exposures and there are no reports of injury on file with the Division of Workers’

Compensation.

On March 9, 2000, Employee suffered a chemical exposure while working for the

Malden Housing Authority. He was running a spray rig using herbicides when the 

line broke and sprayed him. He inhaled the herbicide and suffered a reaction. A 

report of injury was filed with the Division of Workers’ Compensation. He 

testified that he went to the hospital and was given steroid shots. He testified that 

he was diagnosed with chemical burn in his lungs. He testified he was also 

diagnosed with COPD, although it is unclear when this diagnosis was made. He

testified that workers’ compensation paid for his “initial treatment.” A Receipt 

and Notice of Termination of Compensation Payments filed on behalf of the 

Housing Authority of the City of Malden on July 13, 2000, reflects that Employee 

was paid 3 [and] 2/7 weeks of temporary total disability benefits and stated that 

the nature of the disability was “CHEMICAL BURN.” The notice reflected that 

benefits were terminated on July 5, 2000, because Employee had returned to work 

but that Employee was still treating for the injury. Employee testified that he 

continued to work as long as he could, but was unable to get the job done and 

believed his employer wanted him to leave so he finally quit. After that he was off 

of work for about a year. He did not receive a workers’ compensation settlement 

and did not understand that he could pursue a settlement.

Employee retired from the Fire Department after his chemical exposure because 

of his health. He could no longer wear an air mask or perform his job duties. His 

breathing improved, but he did not fully recover. He continues to use medications 

(Symbicort and two different inhalers) on a regular basis.

***
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Right knee

In approximately 1976, Employee sustained a non-work-related injury to his right 

knee. He had some torn cartilage that was removed surgically. After completing 

treatment, his right knee was weaker and caused him problems “now and then.”

Employee testified that he re-injured his right knee in approximately 1998 while 

working at the scene of a motor vehicle accident for the Malden Fire Department 

when his right foot got stuck in the mud in a ditch. There is no record of a report 

of injury or a claim for compensation being filed with the Division of Workers’

Compensation regarding this accident. Employee was evaluated by Dr. Michael 

Trueblood for complaints of locking and catching in his right knee and the 

mechanism of injury was listed as “truck off in ditch in the mud-while in the ditch 

knee deep in-the knee popped; swelling.” Dr. Michael Trueblood diagnosed a 

medial meniscus tear and performed arthroscopic right medial meniscectomy on 

February 24, 1998. Employee’s right knee was weaker after this surgery. As a 

result of this injury, he used his left leg more when working on his hands and 

knees. It took him longer to perform his handyman jobs, and he declined to 

perform some jobs that required crawling on his hands/knees. Instead, he referred 

those jobs to his sons, who worked for him. When he went to work for the Malden 

Housing Authority, his right knee continued to slow him down. His right knee 

slowed him down at subsequent jobs and he found it hard to get down on his 

knees when working on the school buses. He had problems standing on a ladder, 

developed a limp, and avoided steps. If he does use stairs, he has to walk one step 

at a time.

On September 23, 2009, while working for Gideon School District, Employee 

reinjured his right knee while working on a ladder. The ladder slipped, causing 

him to lose his footing, and he twisted his knee. The injury was accepted as 

compensable and his employer provided benefits. He was referred to Dr. Milne 

who diagnosed a right knee medial meniscus tear and chondromalacia and 

performed a right knee partial medial meniscectomy with chondroplasty. He was 

released at [maximum medical improvement (“MMI”)] on March 23, 2010, and 

Dr. Milne assigned a rating of 4% permanent partial disability attributable to his 

work injury and 0% permanent partial disability attributable to his preexisting 

condition. Employee testified that the surgery alleviated his pain but his knee

became weaker. After this surgery, he could hardly get down on his right knee at 

all. Employee settled his claim for workers’ compensation against Employer for 

15% of the right leg.

[Low Back]

In approximately 2007, Employee injured his back while working for Risco 

School District. He was moving a file cabinet with a dolly when it tipped and he 

hurt his low back while trying to catch it. A report of injury was filed with the 

Division of Workers’ Compensation. Employee’s medical records are not part of 

this record; however, he testified he was evaluated by Dr. Kee Park, who 

recommended a fusion. He sought a second opinion with Dr. Tolentino and he 

agreed with Dr. Park. The workers’ compensation insurer sent him for a third 
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opinion and he underwent injections. He had approximately six weeks of therapy. 

He testified that workers’ compensation paid for this treatment. After he was 

released from treatment, he no longer did any heavy lifting and experienced 

numbness in his thighs and the tops of his legs, right worse than left. He 

continued to work but could no longer weed eat or mop. His back tightened up 

with sitting and standing and he had to alternate positions every 15-20 minutes. 

Muscle spasms made it harder to work. He had an achy pain all the time. His pain 

was worse with lifting or repetitive motion. He did not receive a settlement.

Employee reinjured his back on January 22, 2015, while unloading a truck while 

working for Gideon School District. He was diagnosed by Dr. James Coyle with 

an acute lumbar strain superimposed on degenerative disc disease with annular 

tears at L4-5 and L5-S1 Dr. Coyle opined his work accident was the prevailing 

factor in causing his condition. He further opined Employee was not a surgical 

candidate and recommended conservative care. Employee underwent physical 

therapy, an epidural steroid injection and a trigger point injection. He was 

released at MMI by Dr. Andrew Wayne on April 7, 2015. Dr. Wayne assigned a 

rating of 2% permanent partial disability of the whole person attributable to the 

January 22, 2015[,] work accident. He opined that none of that disability was 

attributable to his preexisting condition. Employee settled his claim with 

Employer-Insurer for 11.4% body as a whole, referable to his low back. His low 

back symptoms remained about the same except the numbness in his leg

happened more frequently after this accident.

As to Claimant’s pulmonary system/lungs, right knee, and low back conditions, the ALJ 

found and determined as follows:

[Pulmonary system/lungs]

Although Employee testified and a report of injury confirms that he sustained a 

chemical exposure at work in 2000, I find Employee did not meet his burden of 

proof that he sustained compensable injury as defined in section 287.020. 

Pursuant to the version of Section 287.020 in effect in 2002[footnote omitted], 

Employee had the burden to prove that work was “a substantial factor” in causing 

“the resulting medical condition or disability.” Dr. Volarich provided an opinion 

that Employee had a 30% disability to his pulmonary system due to asthma, 

COPD, and sleep apnea, but he did not address whether the chemical exposure at 

work was a substantial factor in causing those conditions and the resultant 

disabi1ity. I find there is insufficient evidence in the record to meet Employee’s 

burden of proof. I further find Employee did not meet his burden of proof that his 

multiple smoke and chemical exposures while working for Malden Fire 

Department resulted in compensable injuries.

[Right knee]

I find that Employee’s 1976 right knee injury was a non-work-related injury and 

therefore does not meet the requirements of Section 287.020.3 RSMo.
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Although Employee testified that he injured his right knee at work in 

approximately 1998, the evidence is insufficient to support a finding that the 1998 

accident was a substantial factor in causing Employee’s right knee condition or 

any of Dr. Volarich’s assigned disability rating of 50% of the knee. There is no 

record of a treating doctor or medical expert addressing medical causation as it 

pertains to this accident. I find Employee did not meet his burden of proof that 

this was a compensable injury as defined in the version of section 287.020 in 

effect at the time of injury.

I find, based on the testimony, medical evidence, and Employee’s prior stipulation 

for compromise settlement, Employee has a medically documented preexisting 

disability of 15% of his right knee (24 weeks) that was a direct result of a 

compensable injury (on 9/23/2009) as defined in section 287.020. This disability 

does not satisfy the requirements of Section 287.020.3(2)(a)a [sic] because the 

disability equals less than fifty weeks of compensation.

[Low back]

Although Employee testified and a report of injury confirms that he sustained an 

injury to his lumbar spine at work in 2007, the evidence is insufficient to support 

a finding that the 2007 accident was the prevailing factor in causing Employee’s 

back condition or any of Dr. Volarich’s assigned rating of 25% of the body as a 

whole. There is no record of a treating doctor or medical expert addressing 

medical causation as it pertains to this accident. I find Employee did not meet his 

burden of proof that he sustained a compensable injury as defined in section 

287.020.

I find, based on the testimony, medical evidence, and Employee’s prior stipulation 

for settlement, that Employee has a medically documented preexisting disability 

of 11 .4% of the body as whole referable to the lumbar spine (45.6 weeks) that 

was a direct result of a compensable injury (on 1/22/2015) as defined in section 

287.020. This disability does not satisfy the requirements of Section 

287.020.3(2)(a)a [sic] because the disability equals less than fifty weeks of 

compensation.

In the absence of a qualifying preexisting disability satisfying the first condition—section 

287.220.3(2)(a)a, the ALJ entered an award denying Claimant PTD benefits from the Fund.

Upon Claimant’s application for review, the Commission issued a supplemental opinion 

that affirmed and adopted the ALJ’s decision and award denying compensation and that included 

the following paragraph:

Although not the basis of this award, we note that employee also failed to 

demonstrate that a single qualifying preexisting disability, exclusive of any other 

preexisting disabilities, combined with disability from his primary injury to result 
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in permanent total disability. Employee’s contention that Treasurer of Missouri as 

Custodian of the Second Injury Fund v. Parker, (WD83030, July 14, 2020) 

controls this issue is incorrect. On September 4, 2020, pursuant to Rule 83.02, the 

Western District Court of Appeals transferred its opinion in this case to the 

Supreme Court. In addition, the Eastern District Court of Appeals, in Sterling 

Bennett v. Treasurer of the State of Missouri, as Custodian of the Second Injury 

Fund (ED108713, August 25, 2020), specifically endorsed the Commission’s 

denial of Second Injury Fund liability pursuant to § 287.220.3(2) where the 

employee failed to present a total disability opinion that considered only the 

combination of his primary injury and a single preexisting right shoulder injury.

This appeal timely followed.

Discussion

In three points relied on, Claimant asserts four claims of legal error by the Commission in 

making its award denying him PTD benefits from the Fund: two claims, included in his first and 

second points, that the Commission misinterpreted and misapplied section 287.220.3(2)(a)a(ii)—

the second criteria; one claim, included in his first point, that the Commission misapplied section 

287.220.3(2)(a)a(iv)—the fourth criteria; and one claim, in his third point, that the Commission

misinterpreted and misapplied section 287.220.3(2)(a)b—the second condition. For ease of 

analysis, we will group and address these claims in their statutory order by considering 

Claimant’s first two points in reverse order and bifurcating his first point by its two claims.

Commission did not Increase Claimant’s Burden to Prove the Second Criteria—Section 

287.220.3(2)(a)a(ii)

In his second point, Claimant argues that the Commission erred in finding that none of 

Claimant’s preexisting disabilities to his pulmonary system/lungs, right knee, or low back met 

the criteria under the first condition—section 287.220.3(2)(a)a—in that “the Commission 

increased Employee’s burden of proof by requiring a preexisting ‘compensable injury’ as found 

in §287.220.3(2)(a)[a](ii) [(the second criteria)] to be one in which the Employee both filed a 

claim and received an award of permanent partial disability to be considered a ‘compensable 

injury’.” (Emphasis added.) Claimant is incorrect.
10

The existence, nature and extent of employee’s preexisting disabilities were contested 

issues before the Commission. Claimant bore the burden of proof on these issues. Johme v. St. 

John’s Mercy Healthcare, 366 S.W.3d 504, 509 (Mo. banc 2012) (the workers’ compensation 

claimant bears the burden of proof to show that the claimant’s injury was compensable in 

workers’ compensation). This overall burden of proof consists of two separate burdens—the 

burden of production and the burden of persuasion. Annayeva v. SAB of TSD of City of St. 

Louis, 597 S.W.3d 196, 200 n.8 (Mo. banc 2020) (citing Krispy Kreme Doughnut Corp. v. Dir. 

of Revenue, 488 S.W.3d 62, 67 (Mo. banc 2016)).

In a workers’ compensation case, a claimant meets his or her burden of production when 

the claimant introduces competent and substantial evidence on the whole record sufficient to 

support a finding on each of the facts necessary to that award. Annayeva, 597 S.W.3d at 200 

n.8. Conversely, the Fund has no burden to produce contrary evidence. Seifner v. Treasurer of 

State-Custodian of Second Injury Fund, 362 S.W.3d 59, 66 (Mo.App. 2012).

“The burden of persuasion, on the other hand, requires the [claimant] actually ‘to 

convince the fact-finder to view the facts in a way that favors [the claimant].’” Annayeva, 597 

S.W.3d at 200 n.8 (quoting Krispy Kreme Doughnut Corp., 488 S.W.3d at 67).

In determining if Claimant had at least one qualifying preexisting disability as a direct 

result of a compensatory injury under section 287.220.3(2)(a)a(ii)—the second criteria, the 

Commission considered and weighed, along with other evidence, whether Claimant had filed a 

workers’ compensation claim or received an award for Claimant’s prior injuries that he asserted 

resulted in a work-related disability. Such evidence is relevant, even though not necessarily 

conclusive, as to whether a particular preexisting disability was a direct result of a compensable 

injury as defined in section 287.020 and, if so, as to the nature and extent of the resulting 
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disability. Claimant does not challenge the relevance of this evidence or the Commission’s 

consideration of it.

Rather, Claimant asserts that the Commission required him, in order to satisfy his burden 

of production, to introduce into evidence a workers’ compensation claim and an award to prove a 

compensatory injury under section 287.220.3(2)(a)a(ii)—the second criteria. Claimant supports

his assertion only by noting the correlation between his preexisting disabilities in which the 

Commission found were a direct result of a compensable injury as those wherein he filed a claim 

and received an award and Claimant’s alleged work-related disabilities in which the Commission 

did not find were a direct result of a compensable injury as those wherein he did not file a claim 

or receive an award. While the record reflects its accuracy, this correlation does nothing more, 

however, than support that the filing of a claim and the receipt of an award was a fact considered 

by the Commission, which, as discussed in the preceding paragraph, is not challenged by 

Claimant. This is so because the Commission considered and weighed the totality of evidence 

presented as to each alleged injury and disability in making its findings as to whether Claimant 

met his burden of persuasion and this universe of evidence was larger than the single binary fact 

of whether Claimant had filed a claim and received an award for a particular injury. Nothing in 

the Commission’s findings or in the record supports that the Commission imposed the asserted 

requirement upon Claimant’s burden of production. Claimant’s second point is denied.3

 3 Claimant raises other issues in his argument under this point that are not included in his point relied on. Because 

these issues are not presented for appellate review, they are not addressed. “[I]ssues to which an appellant alludes 

only in the argument portion of appellant’s brief are not presented for review.” Fifth Third Bank v. Brady, 581 

S.W.3d 130, 132 n.3 (Mo.App. 2019) (quoting In re Marriage of Flud, 926 S.W.2d 201, 206 (Mo.App. 1996)).
12

Under the Second Criteria—Section 287.220.3(2)(a)a(ii)—a Preexisting Disability must be a 

Direct Result of a Compensable Injury as Defined in Section 287.020 to qualify under the 

First Condition

In his first claim in his first point, Claimant contends that the Commission erred in 

denying his claim for PTD benefits because it misinterpreted and misapplied section 

287.220.3(2)(a)a(ii)—the second criteria—as to his pulmonary system/lungs, right knee and low 

back preexisting disabilities in that “the correct interpretation of §287.220.3(2)(a)[a] requires 

determining the total weeks of permanent partial disability for each body part/area affected and 

not by separating recurrent injuries to the same body part/area by their particular injury and reinjury dates.” We disagree because the premise of Claimant’s interpretation—a sequential threestep analysis—is contrary to the qualifying preexisting disability analysis recently announced by 

our Supreme Court in Parker.

In his argument supporting this claim, Claimant asserts that his interpretation of section 

287.220.3(2)(a)a(ii)—the second criteria, as contained within his first point, envisions a 

sequential three-step analysis. According to Claimant, step one of his analysis requires that he 

establish that he had a “medically documented preexisting disability” regardless of causation. 

His step two requires that he then establish that the medically documented preexisting disability, 

once again regardless of causation, equals a minimum of 50-weeks of permanent partial 

disability. And his final step three requires that he establish that the medically documented 

preexisting disability that equals a minimum of 50-weeks of permanent partial disability is “a 

direct result of a compensable injury as defined in section 287.020....” As to his third and final 

step, Claimant contends that if any part of such preexisting disability was caused by a 

compensable injury as defined in section 287.020, then the “total preexisting disability” would 

be a “direct result” of a compensable injury as defined in section 287.020 thereby satisfying the 

second criteria. Claimant, however, fails to direct us to any language in section 287.220.3(2)(a)a 
13

that suggests, much less requires, such a sequential three-step analysis for the first condition. 

Moreover, Claimant’s interpretation and analysis of the first condition—section 

287.220.3(2)(a)a—is not consistent with the interpretation and analysis of that section as recently 

announced by the Supreme Court of Missouri.

As previously noted, our Supreme Court found in Parker that a qualifying preexisting 

disability under the first condition—section 287.220.3(2)(a)a—must satisfy three requirements:

(1) be medically documented, (2) equal at least 50 weeks of permanent partial disability, and (3) 

meet one of the four listed criteria. Parker, SC98704, 2021 WL1554726, at *2; section 

287.220.3(2)(a)a(i)-(iv). A preexisting disability must meet all three requirements in order to 

qualify and the failure to meet any one requirement disqualifies it. So, as relevant to our 

discussion of the second criteria—section 287.220.3(2)(a)a(ii), if a particular preexisting 

disability is not medically documented, equal to at least 50 weeks of permanent partial disability, 

or “[a] direct result of a compensable injury as defined in section 287.020” it is not a qualifying 

preexisting disability under the first condition—section 287.220.3(2)(a)a. Id. 

Here, the Commission considered the nature and extent of all of Claimant’s alleged 

preexisting disabilities and found that only two were a direct result of a compensable injury as 

defined in section 287.020: the disability resulting from his 2009 injury to his right knee and the 

disability resulting from his 2015 injury to his low back. The Commission concluded, therefore, 

that Claimant’s other alleged preexisting disabilities resulting from other causes did not factually 

satisfy the second criteria. This conclusion, based upon the Commission’s interpretation and 

application of section 287.220.3(2)(a)a(ii)—the second criteria, is consistent with the Parker

interpretation and analysis of that section and, therefore, is not an error of law.
14

As for the two preexisting disabilities the Commission found satisfied the second criteria, 

the Commission further found that neither satisfied the second requirement—equals 50 weeks of 

permanent partial disability—under the first condition—section 287.220.3(2)(a)a. The 

Commission concluded, therefore, that Claimant’s disabilities resulting from these injuries were 

not qualifying preexisting disabilities under the first condition. This conclusion, based upon the 

Commission’s interpretation and application of the first condition—section 287.220.3(2)(a)a, is 

consistent with the Parker interpretation and analysis of that section and, therefore, is not an

error of law.

Claimant’s second criteria—section 287.220.3(2)(a)a(ii)—claim in his first point is 

denied.

Under the Fourth Criteria—Section 287.220.3(2)(a)a(iv)—“the Opposite Extremity”

Requirement for a Primary Injury is not Applicable

The Commission found that Claimant had no medically documented disability that fell 

under section 287.220.3(2)(a)a(iv)—the fourth criteria. In his first point, Claimant also claims 

that the Commission “erred as a matter of law” in interpreting and applying section 

287.220.3(2)(a)a(iv) because his primary injury to his left shoulder was an injury to the opposite 

extremity of this right knee and its preexisting disability, as provided in the fourth criteria—

section 287.220.3(2)(a)a(iv), in that “the correct interpretation of §287.220.3(2)(a)[a] requires 

determining the total weeks of permanent partial disability for each body part/area affected and 

not by separating recurrent injuries to the same body part/area by their particular injury and reinjury dates.” We need not reach or address the latter ultimate issue asserted by Claimant, 

however, because the premise of this claim—the left shoulder is “the opposite extremity” of the 

right knee under the fourth criteria—is not correct.
15

The framework for our discussion of this fourth criteria claim, just as for the preceding 

second criteria claim, is informed by Parker and its interpretation and analysis of the first 

condition—section 287.220.3(2)(a)a. See Parker, SC28704, 2021 WL1554726, at *2. Thus, as

applicable to disabilities and injuries to extremities of the body under the fourth criteria, if a 

particular preexisting disability is not (1) medically documented, (2) equal to at least 50 weeks of 

permanent partial disability, or (3) “[a] preexisting permanent partial disability of an extremity... 

when there is a subsequent compensable work-related injury [the primary injury] as set forth in 

subparagraph b of the opposite extremity...” it is not a qualifying preexisting disability under the 

first condition—section 287.220.3(2)(a)a. Id. The third requirement of the first condition cannot 

be satisfied under the fourth criteria unless there is (1) a preexisting permanent partial disability 

of an extremity and (2) the primary injury is to “the opposite extremity.” See section 

287.220.3(2)(a)a(iv).

Claimant argues that his “primary, compensable work-related injury ... resulted in 

disability to his left shoulder which was an extremity of the body. The opposite of left is right. 

The preexisting disability to his right knee was to an extremity on the opposite side of the left 

shoulder.” As a result, Claimant contends he has satisfied all the requirements under section 

287.220.3(2)(a)a(iv)—the fourth criteria.

The Fund, while agreeing that both the left shoulder and the right knee are extremities, 

contends that the left shoulder is not “the opposite extremity” of the right knee as that phrase is 

used in section 287.220.3(2)(a)a(iv)—the fourth criteria. The Fund contends that the plain and 

ordinary meaning of “opposite” when coupled with “extremity” is best captured by the MerriamWebster dictionary’s definition of “opposite” as “being the other of a pair that are corresponding

or complementary in position, function, or nature.” MERRIAM-WEBSTER DICTIONARY, 
16

https://www.merriam-webster.com/dictionary/opposite (last visited June 17, 2021). The Fund 

also contends “the use of the word ‘the’ suggests there is only one opposite extremity.”

In his reply brief, Claimant responds to the Fund’s contentions by stating that section 

287.220.3(2)(a)a(iv)—the fourth criteria—“simply requires that the preexisting disability be to 

an extremity (such as an arm or leg) and that the primary or last work-related injury be to an

opposite extremity which is on a completely different side of the claimant’s body.” (Emphasis 

added). He omits, however, any legal authority in his response that provides, under strict 

statutory construction, for the substitution of the word “an” for the word “the” as used in the 

phrase “the opposite extremity” as is provided in the fourth criteria—section

287.220.3(2)(a)a(iv). Indeed, we have no authority to subtract or add words to a statute. Naeter, 

576 S.W.3d at 237. He also omits any response as to why the Fund’s proffered dictionary 

definition for “opposite” does not reflect the plain and ordinary meaning of that word as used in 

the fourth criteria.

We find the Fund’s argument persuasive. As used in the fourth criteria, “opposite” is an 

adjective that modifies the noun “extremity.” Section 287.220.3(2)(a)a(iv). The plain meaning 

of “opposite” should be ascertained in that context. Holmes, SC97983, 2021 WL2445785, at *5. 

“Extremity” as used in the fourth criteria is referencing the body’s four extremities: a pair of 

legs and a pair of arms. The Fund’s proffered dictionary definition for “opposite” as “being the 

other of a pair that are corresponding or complementary in position, function, or nature” 

accurately reflects the plain meaning of “opposite” as it modifies the word “extremity” in the 

context of its use in the fourth criteria. Accordingly, giving the words in section

287.220.3(2)(a)a(iv)—the fourth criteria—their plain and ordinary meaning, “the opposite 

extremity” to a right leg is the left leg, not the left arm. Therefore, the fourth criteria—section 
17

287.220.3(2)(a)a(iv)—does not apply to Claimant’s primary injury to the shoulder of his left arm 

and the Commission did not commit any legal error in finding that Claimant had no medically 

documented disability that fell under the fourth criteria.

Claimant’s fourth criteria—section 287.220.3(2)(a)a(iv)—claim in his first point is 

denied.

Second Condition—Section 287.220.3(2)(a)b—Combination of Qualifying Preexisting 

Disability and Primary Injury Requirement is Moot

In his third point, Claimant asserts that the Commission “erred as a matter of law” by 

misapplying section 287.220.3(2)(a)b—the second condition—in its supplemental opinion 

discussion related to Claimant’s failure “to demonstrate that a single qualifying preexisting 

disability, exclusive of any other preexisting disabilities, combined with disability from his 

primary injury to result in permanent total disability.” This point, however, is moot because the 

second condition—section 287.220.3(2)(a)b—is not applicable unless and until the first 

condition for Fund liability under section 287.220.3(2)(a)a—the existence of at least one 

qualifying preexisting disability—is satisfied. Parker, SC98704, 2021 WL1554726, at *2. 

Here, in denying Claimant’s first and second points, we found no error in the Commission’s 

finding that Claimant failed to prove the existence of at least one qualifying preexisting disability 

under the first condition—section 287.220.3(2)(a)a. Claimant’s third point is denied.

Decision

The Commission’s award denying Claimant PTD benefits from the Fund is affirmed.

GARY W. LYNCH, J. – OPINION AUTHOR

JEFFREY W. BATES, C.J./P.J. – CONCURS

DON E. BURRELL, J. – CONCURS