Academic journal article Missouri Law Review

Second Injury Funds Nationally and in Missouri: Liability, Functionality, and Viability in Modern Times

Academic journal article Missouri Law Review

Second Injury Funds Nationally and in Missouri: Liability, Functionality, and Viability in Modern Times

Article excerpt


A Second Injury Fund ("SIF") is a statutory form of workers' compensation relief operating under state law. (1) SIFs allow employers to reduce their own liability for a worker's injury if part of the harm from that injury was caused by a previously existing disability. (2) The need for SIFs arises from the possibility that workers with prior injuries who are then reinjured are likely to experience greater harm than other workers. (3) As a result, employers could be exposed to greater liability, which might incentivize employers to discriminate against potential employees with previous injuries. (4)

SIFs are designed to prevent discrimination against potential employees who have pre-existing medical disabilities by eliminating the financial burden that may be placed on the employer due to the increased risk associated with employing a previously injured employee. (5) SIF statutes achieve their goals by allowing either the employer/insurer or the injured employee to file claims against the SIF in the state's workers compensation system, requesting either "permanent total disability" benefits, and/or, in some states, "permanent partial disability" benefits. (6)

While a major component of workers' compensation systems for much of the twentieth century, legislatures across the country have discontinued SIFs over the last twenty years. (7) Two main reasons inform these efforts: funding concerns and perceived redundancies created by the Americans with Disabilities Act ("ADA"). (8)

Like many other state legislatures, the Missouri General Assembly addressed the issue of what to do with their SIF in 2013. The legislature, ignoring national trends, enacted legislation intended to provide additional funds to the Missouri Second Injury Fund ("Missouri SIF") while simultaneously narrowing its scope. (9) This simple concept was disrupted in 2017 by the decision in Gattenby v. Treasurer of Missouri, (10) where the Missouri Court of Appeals for the Western District effectively nullified the 2013 Amendments for a term of years. (11)

The reasoning of Gattenby raised several questions about the future of the Missouri SIF. Part II focuses first on the historical origins of SIFs in order to demonstrate their purpose and illustrate how SIFs were designed to achieve their goals. Part III will then discuss recent trends nationally, especially in light of the ADA, which caused the closure of many SIFs. Lastly, Part IV will turn to the Missouri SIF and examine how Missouri conformed to national trends and what this has done recently in light of these trends.


The SIF for the State of Missouri and similar injury funds across the nation were initially created for similar purposes: to stop discrimination against disabled workers in the hiring process and to encourage the retention of workers by limiting potential employer liability in case of reinjury. (12)

The operation of SIFs is best illustrated with a hypothetical scenario. (13) During a previous job, an employee lost his right hand. Despite this, later in life he managed to find work with a different employer, one which only required him to use one hand. While working for his new employer, he lost his left hand. Normally the loss of the left hand, while debilitating, would not totally disable him. The problem arises when the prior loss of his right hand is also considered. These two injuries, his prior right hand loss and his subsequent left hand loss, combine to create an overall greater disability--now he cannot perform any jobs at all--rendering him totally disabled. This combined effect is not attributable to either employer as each was only responsible for the injury that occurred while the employee worked for them. After the employers pay for each hand, who compensates the employee for the combined effect of both injuries?

Without SIF-like statutes, the employee's most recent employer would bear the heavy burden of total disability liability, which in Missouri is defined as an "inability to compete on the open labor market," instead of the injury for which the employer was actually responsible. …

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