1 RANDALL CLINKENBEARD, ) ) Claimant-Appellant, ) ) v. ) No. SD36942 ) STATE OF MISSOURI DEPARTMENT ) Filed: December 21, 2021 OF CORRECTIONS, ) ) Employer-Respondent, ) ) and ) ) TREASURER of MISSOURI as ) CUSTODIAN of SECOND INJURY ) FUND, ) ) Additional Party-Respondent. )

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED Randall Clinkenbeard (“Claimant”) appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) deny ing Claimant’s claim for permanent total disability (“PTD”) benefits against the Treasurer of the State of Missour i in his capacity as

custodian of the Second In jury Fund (“SIF”). In three alternative points on appeal, Clai mant contends the Commission erred as a matter of law in: (1) misapplying sec tion 287.220.3(2)(a); (2) applying section 287.220.32 “retroactively” to his claim; and (3) de nying his request to remand the case to the administrative law judge (“ALJ”) “for a more co mplete finding of facts . . . because there is

a dearth of evidence relate d to the analysis of liab ility under [section] 287.220.3[.]” 1 Finding no such error of law, we affirm the decision of the Commission. Background On October 28, 2014, Claimant was working in the sally port at the Department of Corrections (“Employer”). As he was search ing vehicles entering and exiting the facility, Claimant injured his left shoulde r and left elbow (“the primary in jury”). Claimant settled his primary-injury claim with Employer for 27.5% of the left shoulder and 10% of the left elbow, along with 24 weeks and 6 days of temporary total disability (“TTD”). Claimant then pursued his PTD claim against the SIF based upon the following history of work-related and non-work-related injuries:

1. 2009 injury to his right shoulder th at included a broken clavicle;

2. Right-knee problems dating to 2006 or 2007 th at eventually required surgery;

3. 2010 work injury to left knee that re quired surgery in 2010, along with revision surgery in 2013;

4. 2010 bilateral hip pain treat ed with injections;

5. 2010 work injury to lower back;

6. Ongoing sleep apnea dating to 2007 a nd narcolepsy dating to 2009;

7. 1989 injury to left wrist that re quired 500 stitches to close;

8. Non-insulin-dependent diabetes with poor control and end organ disease that dated back to 2008; and

9. 1980’s gastroesophageal reflux disease.

1 Unless otherwise indicated, all statutory references are to RSMo Cum. Supp. 2014.3 After a June 2019 hearing, the ALJ applie d section 287.220.2 to Claimant’s evidence

and entered an award of PTD benefits to be paid from the SIF, finding “that Claimant is permanently and totally disabled as a result of his preexisting injuri es and conditions in combination with the disability fr om the last work injury.” The SIF timely filed an application for re view with the Commission, asserting that the ALJ had misapplied the law in applying se ction 287.220.2 to Claimant’s claim instead of applying section 287.220.3. In support of that argument, the SIF claimed that the ALJ’s application of section 287.220.2 was inconsiste nt with the Supreme Court of Missouri’s

recent decision in Cosby v. Treasurer of State , 579 S.W.3d 202 (Mo. banc 2019), which held that section 287.220.3, by its plain and ordina ry language, applies to all claims against the SIF for all work-related injuries that occur after January 1, 2014. Id. at 204-05. The Commission, in a 2-1 decision, agreed w ith the SIF and reversed the decision of the ALJ. Applying the plain langua ge of section 287.220.3 as stated in Cosby , the Commission concluded that a preexisting conditio n must meet two separate requirements in

order to be considered in c onnection with a compensable work-related primary injury to determine SIF liability for PTD: (1) the claimant must show a medically-documented, preexisting disability that reaches the threshol d of 50 weeks of perman ent partial disability (“PPD”); and (2) the preexisting disability must meet one of the qualifying types of disabilities listed in subparts i – iv of section 287. 220.3(2)(a)a. or (2)(b). Only after these two requirements are met should the Comm ission consider whether the qualifying preexisting disability, combined with a work-re lated primary injury, re ndered the claimant

PTD.4 The Commission found that Claimant had only one preexisting injury – the 2009 fracture of his right shoulder – that would pot entially be a qualifying disability under section 287.220.3(2)(a)(iv). And because “no medical opinion supports the conclusion that the combination of the right shoulder preexist ing condition and any re sulting disability, combined with [the primary injury] to result in [PTD,]” the Commission concluded that the SIF was not liable to pay Claimant PTD benefits under section 287.220.3.

Standard of Review Pursuant to article V, section 18 of the Missouri Constitution, this Court reviews the commission’s decision to determine if it is “supported by competent and substantial evidence upon the whole record.” Additionally, section 287.495.1 provides, in pertinent part: Upon appeal no additional evidence sha ll be heard and, in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on a ppeal, 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 commi ssion do not support the award; (4) That there was not sufficient comp etent evidence in the record to warrant the making of the award. This Court reviews questions of law de novo. Mantia v. Mo. Dep’t of Transp. , 529 S.W.3d 804, 808 (Mo. banc 2017). Cosby , 579 S.W.3d at 205-06. Analysis Point 1 – Alleged Misapplication of Section 287.220.3 In his first point on appeal , Claimant asserts that5 [the Commission] erred as a matter of law in denying [Claimant]’s claim for [PTD] benefits against the [SIF] because it misapplied [section] 287.220.3(2)(a)[] stating that only injuries th at fall within items (i), (ii), (iii), or (iv) of subparagraph a[.] may be considered in dete rmining if [Claimant] is permanently and totally disabled. We disagree. Section 287.220 governs claims against the SIF for PTD benefits. Cosby , 579

S.W.3d at 207. Pursuant to section 287.220.3(2): Claims for [PTD] under section 287.200 agains t the [SIF] shall be compensable only when the following conditions are met: (a) a. An employee has a medically docum ented preexisting disa bility equaling a minimum of fifty weeks of [PPD] compen sation according to the medical standards that are used in determining such compensation which is: (i) A direct result of active military duty in any branch of the United States Armed Forces; or (ii) A direct result of a compensable inju ry as defined in section 287.020; or (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates th e subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subse quent work-related injury; or (iv) A preexisting [PPD] 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 subparagra ph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and (b) Such employee thereafter sustains a subs equent compensable work-related injury that, when combined with the preexisting disabi lity, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragr aph, results in a [PTD] as defined under this chapter[.]

The Commission’s view of the a pplicable law was as follows: The analysis under [section] 287.220.3, at the outset involves the following two requirements. First, a showing of a medically documented preexisting disability that reaches the threshold of 50 w eeks [PPD]. Second, the preexisting disability must meet one of the qualifying types of disabilities listed in subparts i – iv of [s ection] 287.220.3(2)(a)a. or [section]6 287.220.3(2)(b). If either one of these is absent, [SIF] liability does not exist. Only after these two qualifying conditions are met, do we reach the final piece of the analysis. We can find [SIF ] liability only if “employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability , as set forth in items (i ), (ii), (iii), or (iv) ... results in [PTD] ...” Id. (Our emphasis) Finding no evidence to support the applica tion of any other subpart of section 287.220.3, the Commission went on to state: There is evidence to show a preexisti ng fracture of the right shoulder from 2009, which was a non-work-related injury. Therefore, subsection 2 (a) (iv) of [section] 287.220.3 addressing an opposite extremity requires consideration. However, no medical opi nion supports the co nclusion that the combination of the right shoulder pr eexisting condition and any resulting disability, combined with the [primary in jury] to result in [PTD]. Rather, Dr. Volarich and Mr. Eldred opined that it was all the preexisting conditions together that combined to result in [PTD] with the primary injury. We find that [PTD] has not resulted from a combination of [the primary injury] and a preexisting disability to his right shoulder. We find the other claimed preexisting conditions and in juries do not qualify under [section] 287.220.3.

Claimant asserts that because the Commissi on found his right-shoulder fracture to be a preexisting disability that met the criter ia in section 287.220.3(2)(a)(iv), the Commission misapplied the law when it failed to then consider whether Claimant’s less-serious preexisting injuries and disabilities, in additi on to “all other characte ristics” of Claimant, combined with the primary injury to render him PTD and eligible for such benefits from the SIF. In other words, Claimant argues that because one of his preexisting disabilities qualified under section 287.220.3(2)(a), then all of his preexisting disabilities must be considered in determining whether the SIF is li able to pay him PTD benefits. Even if we assume that Claimant adduced sufficient compet ent evidence to prove the first part of his contention (that the combination of all of hi s injuries, disabilities, and characteristics rendered him PTD), that evidence is not sufficient to prove that the SIF is liable to pay those7 benefits. In regard to PTD benefits, our high court rejected Claimant’s argument as follows

in Treasurer of State v. Parker , 622 S.W.3d 178 (Mo. banc 2021). Mr. Parker argues the second condition can be met by showing the primary injury resulted in PTD when combined with all of the employee’s disabilities (regardless of whether those disabilities meet the first condition). This argument also fails. Sec tion 287.220.3(2)(b) specifies that the subsequent work-related injury must combine “with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph .” (Emphasis added.) By specifyi ng that the preexisting disability must qualify under one of the four eligibil ity criteria in the first condition, the legislature excluded disabili ties that are not the primary injury and that do not qualify under the first condition from bei ng considered when determining if the claimant meets the second condition. Therefore, an employee satisfies the second condition by showing the prim ary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.

622 S.W.3d at 182. Dr. Volarich opined that Clai mant is “[PTD] as a direct result of the work-related injury of 10/28/14 in combination with his preexisting medical conditions.” Mr. Eldred similarly opined that Claimant is “[PTD] as a result of his injury on October 24th, ’14, combined with his preexisting injuries and medi cal conditions.” Claimant did not offer any testimony from any expert that he was PTD as a result of the combination of his preexisting right-shoulder injury and the primary injury. 2 The Commission’s analysis on this issue – that “no medical opinion supports the conclusion that the combination of the right sh oulder preexisting condition and any resulting disability, combined with [the primary in jury] to result in [PTD,]” was correct. See Parker , 622 S.W.3d at 182. Point 1 is denied.

2 Nor does Claimant offer any evidence or argument that any of his preexisting disabilities (other than the right-shoulder fracture) fall within an y of the four eligible categories se t forth in section 287.220.3(2)(a)a.8 Point 2 – “Retroactive” A pplication of Section 287.220.3 Claimant’s second point argues that if “this Court does not find that [Claimant] is entitled to [PTD] benefits from the [SIF] pursuant to [section] 287.220.3,” then we should

find that the Commission “erred as a matter of law in applying [it] retroactively because retroactive application of [section] 287.220.3 causes an unjust hardship on [Claimant] who justifiably relied on the decisional law at the time of the hearing when he stipulated to the liability of [Employer].”

Claimant asserts that he reasonably relied on the “old” law, as set forth in Gattenby v. Treasurer of the State of Missouri – Custodian of the Second Injury Fund , 516 S.W.3d 859 (Mo. App. W.D. 2017) ( abrogated by Cosby , 579 S.W.3d at 207), “for the proposition that [SIF] liability would be analyzed under the broad umbrella of [section] 287.220.2 in stipulating to the liability of [Employer] and In surer at the hearing[.]” Claimant’s brief then refers to our supreme court’s four-part test, set out in Sumners v. Sumners , 701 S.W.2d 720 (Mo. banc 1985), for determining whether its d ecisions should be appl ied retroactively or only prospectively in arguing that the Commission erred as a matte r of law in “retroactively” applying the “new law” created in Cosby

. Gattenby , decided by the western district of our court in 2017, involved an employee’s claim for PTD based upon a knee inju ry sustained in March 2014, and a history of preexisting disabilities dating from 2007, 2009, and 2010. 516 S.W.3d at 860. Gattenby interpreted section 287.2 20.3 to apply only if “ both the preexisting and primary injuries occur after January 1, 2014.” 516 S. W.3d at 862 (emphasis added). Cosby was pending before our supreme court at the time of Claimant’s hearing before the ALJ, and the Court handed down its op inion several days after the ALJ issued her9 decision in Claimant’s case. Cosby specifically abrogated Gattenby and held that the plain language of section 287.220.3 provides that it governs the SIF’s liability if any workplace injury occurred after Januar y 1, 2014. 579 S.W.3d at 208 n.5. Contrary to Claimant’s argument, Cosby did not bring about a ch ange in the law. “[T]he plain and ordinary language of secti on 287.220.3” has not changed since its effective date on January 1, 2014, and it applies to “[a]ll claims against the [SIF] for injuries occurring after January 1, 2014.” Id. at 207. The Commission did not err as a matter of law in applying the plain meaning of the statut e as interpreted by our supreme court. See Mo. Const. art. V, sect. 2. Point 2 is denied. Point 3 – Request for Remand to ALJ for Additional Findings Claimant’s third point asserts that ev en if section 287.220.3 is to be applied “retroactively,” the Commission erred as a matter of law in denying his request to remand

the case for a more complete finding of facts on the liability of the parties for [PTD] benefits in the context of [section] 287.220.3 because there is a dearth of evidence related to the analysis of liability under [section] 287.220.3 as such evidence was not relevant until after Cosby established that the [SIF]’s liability was governed by [section] 287.220.3 and not [section] 287.220.2. As noted in our analysis of Point 2, section 287.220.3 has been relevant to the determination of SIF liability from the time of its effective date on January 1, 2014. In Cosby , our high court did not say that its ap plication of sectio n 287.220.3 represented a change in the existing law, and it did not state that it was applying this “new” law retroactively in affirming the Commission’s deci sion that the SIF was not liable to pay an

award of PPD benefits under section 287.220.3.10 Claimant asked the Commission to remand this matter to the ALJ for “a more complete finding of facts” pursuant to secti on 287.610.5. Claimant now cites that statute on appeal in support of his argument that the Co mmission erred “as a matter of law” in denying his request that the claim be remanded to the ALJ. Section 287.610.5 provides that “[the Commission] may remand any decision of an [ALJ] for a more complete finding of facts.” (Emphasis added.) This permissive language gives the Commission the discretion to order such a remand, but it does not require a remand as a matter of law. Point 3 does not claim, and then support with any appropriate argumen t, that the Commission abused its discretion in refusing to remand the matter to the ALJ. Finally, Claimant made no effort to identif y -- either to the Commission or to this court on appeal -- what additional fact findings by the ALJ would entitle Claimant to prevail on his claim against the SIF under the requirements of section 287.220.3. C.f. Tidwell v.

Walker Constr. , 151 S.W.3d 127, 132 (Mo. App. S.D. 2004) (a party seeking a new trial on the ground of newly discovered evidence not presen ted in the first instance to the ALJ or

Commission must show that the new evidence is so material it would probably have produced a different result ha d it been presented). Point 3 is also denied, and the decision of the Commission is affirmed.

DON E. BURRELL, Opinion author GARY W. LYNCH, J. – Concurs NANCY STEFFEN RAHMEYER, Senior Judge – Dissents in separate opinion1 RANDALL CLINKENBEARD, ) ) Claimant-Appellant, ) ) vs. ) No. SD36942 ) STATE OF MISSOURI, ) Filed: December 21, 2021 DEPARTMENT OF CORRECTIONS, ) ) Employer-Respondent, ) ) and ) ) TREASURER OF THE STATE OF ) MISSOURI, AS CUSTODIAN OF THE ) SECOND INJURY FUND, ) ) Additional Party-Respondent. )

APPEAL FROM THE LABOR AND I NDUSTRIAL RELATIONS COMMISSION

DISSENTING OPINION I respectfully dissent because I believ e the Commission abused its discretion in denying Claimant an opportunity to present additional evidence that became newly relevant to the application of section 287.220 because of a change in the prevailing decisional law

that occurred more than two months after the completion of the evidentiary hearing before the ALJ and eighteen days after the ALJ’s Award.2 So far as I am aware, at the time of th e evidentiary hearing on April 1, 2019 and the ALJ’s Award on June 7, 2019, the only published appellate decisi on that interpreted the legislative changes to section 287.220.2 and .3 that were effective January 1, 2014 was the

Western District’s decision in Gattenby v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund , 516 S.W.3d 859 (Mo.App. W.D. 2017). Gattenby held that section 287.220.3 applied only where both the preex isting and primary in juries occur after January 1, 2014. Id. at 862. We are a unita ry court of appeals, Akins v. Director of

Revenue , 303 S.W.3d 563, 567 n.4 (Mo. banc 2010), and only a district acting en banc can “choose[] not to follow a previous decision of an appellate court of this state.” Supreme Court Operating Rule 22.01. Gattenby was not abrogated by Cosby v. Treasurer of State , 579 S.W.3d 202 (Mo. banc 2019), until June 25, 2019, eighteen days after the ALJ’s Award. Two days later, on the last day to file an a pplication for review of the ALJ’s Award, the SIF filed an application for review stating: The administrative law judge erred in finding the Second Injury Fund liable for permanent total benefits in th at the ALJ incorre ctly applied §287.220.2 analysis to this claim instead of §287.220.3 inconsistent with the plain meaning of §287.220 and the recent deci sion of the Supreme Court in Cosby v Treasurer , No. SC97317 (Mo. en banc). A dissenting member of the Commissi on wrote she was “convinced that the appropriate course of action unde r these unique circumstances is to remand this matter to the administrative law judge to allow for the pr esentation of additiona l evidence.” The dissenting member further stated: In the case before us, the admini strative law judge applied § 287.220.2, and in so doing, there was no need to address the addi tional qualifications for preexisting conditions, as set fort h in § 287.220.3. Based on a reasonable conclusion by employee’s counsel that Gattenby was the state of the law at the time of preparing the case for hear ing, the need for establishing the3 connection between any one specific, qualifying preex isting disability with the primary injury, was not part of the case development and presentation. . . . The employee did not file an application for review to the Commission in this matter. However, in response to the Second Injury Fund’s application to the Commission, ba sed on the ground that the incorrect provision of law was applied, employee’s attorney requested that should we adopt the Second Injury Fund’s argum ent, he should be provided an opportunity to provide additional evidence specific to the issue. Effectively, the employee’s request is a motion to reopen the record for a supplemental hearing for additional evidence. 8 CSR 20-3.030[](2)[.] In the furtherance of justice, I believe th at is what should occur here, gi ven that the st ate of the law was, and still is, subject to further qualification and re finement . . . . Because I disagree with the majority’s decision to deny Second Injury Fund liability without a full opportunity for employee to present his case under the current state of the law, I must respectfully dissent. I believe the dissenting Co mmissioner was correct. Although the literal langua ge of section 287.610.5 references only remand “for a more complete finding of facts,” I believe th e statute also authorizes the Commission to order the ALJ to reopen the original hearing to receive additional evidence necessary to permit the ALJ to make a more complete finding of facts. See Tidwell v. Walker

Construction , 151 S.W.3d 127, 129, 131-32, 133 (Mo.App. S.D. 2004) (remand to ALJ for hearing to “allow [claimant] to introduce additional evidence” in somewhat similar circumstances). Claimant was the only witness who appear ed in person at the evidentiary hearing before the ALJ. Although Claimant testifie d about numerous, pre-2014 injuries and medical

conditions he incurred before his last co mpensable, work-related injury on October 28, 2014, and about the effect of those previous inju ries and conditions on his last compensable, work-related injury, counsel for the SIF neve r objected to this testimony on any ground including relevance, and, other than brief cross-examination of Claimant including about “prior conditions,” did not offer any eviden ce on behalf of the SIF. I understand that4 Claimant had the burden of proof in this proc eeding, but there is nothing in the record to

indicate the SIF at the time of the evidentiary hearing or the ALJ’s Award raised the claim, or believed, section 287.220.3 applied to Cl aimant rather than section 287.220.2 under Gattenby

. In these circumstances, I believe the Co mmission abused its discretion in denying Claimant an opportunity to present additional evidence necessary to meet his burden of proof under section 287.220.3, and I would reverse and remand on that basis.

Nancy Steffen Rahmeyer, Senior Ju dge – Dissenting Opinion Author