Clearing the fog: What White v. Treasurer means for Missouri workers’ compensation defense

Weston Mills is a partner at Gilson Daub, a national law firm representing employers and insurers in workers’ compensation cases across 14 states. Mills is also the managing partner of the Gilson Daub Kansas City office and is licensed in Kansas and Missouri.

Hunter R. Martin is an associate attorney at Gilson Daub, focusing on workers’ compensation defense and serving clients in all venues across Missouri and Kansas.

In White v. Treasurer of the State, the Missouri Court of Appeals, Eastern District, recently clarified the legal precedent handed down by the Supreme Court of Missouri in Treasurer of the State v. Penney, which established that occupational disease claims do not qualify as pre-existing disabilities for purposes of Second Injury Fund liability in Missouri workers’ compensation cases.¹ 

While White and Penney definitively limit the scope of SIF liability, these cases may also shift the burden onto employers in permanent total disability (PTD) cases involving occupational diseases. 

Second Injury Fund and legislative changes 

The SIF, managed by the State of Missouri, is most commonly involved in workers’ compensation cases that deal with PTD caused by a combination of a pre-existing disability and a new work-related disability.² For the fund to be liable for PTDs, multiple criteria must be met. For purposes of this analysis, the primary criterion is that a claimant must have suffered a compensable prior disability which meets or exceeds 50 weeks of permanent partial disability (PPD) compensation under the Missouri Workers’ Compensation Act to be a qualifying injury.³ 

There are two main types of cases in Missouri workers’ compensation practice: those involving PPD and those involving PTD. PPD is involved in cases where a worker is injured and can continue working. PPD is commonly referenced as the percentage of disability the injured worker suffered to the affected body part. PTD cases involve injuries that prevent a worker from returning to the labor force. The PTD test asks whether it would be reasonable to expect an employer to hire the injured worker in the open labor market given their permanent disabilities and condition.⁴ 

The SIF can be liable for PTD benefits in cases where the worker becomes permanently and totally disabled because of a combination of their most recent injury and another qualifying injury, as opposed to the most recent injury alone.⁵ 

The SIF is funded by the State via workers’ compensation insurance premiums and taxes paid by employers.⁶ Prior to 2005, a qualifying injury could include an occupational disease, which is “an identifiable disease arising with or without human fault out of and in the course of the employment” and does not include general diseases which the general public is exposed to without regard for employment.⁷ The current statutes specifically mention a number of occupational diseases, including hearing loss due to industrial exposure, lung or respiratory disease as a result of exposure to toxic fumes, repetitive motion diseases (e.g., carpal/cubital tunnel), and Post-Traumatic Stress Disorder (under certain circumstances).⁸ This is not an exhaustive list of occupational diseases commonly seen in practice but serves as an adequate representative list of the types of claims referenced by White and Penney. 

In 2005, the Missouri General Assembly enacted radical changes to the Missouri Workers’ Compensation Act to encourage business development throughout the state. In furtherance of this purpose, the State attempted to reduce the cost of workers’ compensation insurance and administration by capping the SIF’s surcharge on insurance premiums, requiring strict construction of the applicable workers’ compensation statutes for appeals, and excluding occupational diseases from the workers’ compensation system entirely.⁹ 

In 2013, the law was changed again due to two important events. First, the Missouri Court of Appeals, Western District, in State ex rel. KCP&L Greater Mo. Operations Co. v. Cook¹⁰ found that because occupational diseases were now outside the scope of workers’ compensation, employers could be sued in tort for these diseases. This opened the floodgates of litigation over occupational diseases and caused significant expense to employers. Second, the SIF faced solvency issues following the surcharge cap that required statutory changes to preserve its ability to fulfill its legislatively mandated purpose.¹¹ 

In response to both these events, the Missouri General Assembly enacted a series of statutory changes to the Missouri Workers’ Compensation Act to keep the SIF solvent and address the increase in occupational disease litigation. The legislature created Mo. Rev. Stat. § 287.067, which made occupational diseases again compensable for employers but did not specifically extend that compensability to the SIF. It is this backdrop that sets the stage for the disputes in both Penney and White. 

Penney v. Treasurer

To understand the legal landscape of White, it is important to first understand the Supreme Court of Missouri case that solidified the law applied by the White court. In Penney v. Treasurer of the State of Missouri, the Court opined that occupational diseases were not compensable under § 287.220 and, therefore, not compensable against the SIF.¹² Under the strict construction mandated by the 2005 statutory changes, the Court stated it could not give a broader reading to the applicable law than its plain terms.¹³ Additionally, the Court highlighted that the legislature could have included occupational diseases to the applicable statutory section or referenced the SIF in § 287.067 and seemingly chose not to do so.¹⁴ Thus, the Court decided that occupational diseases were not compensable for purposes of SIF liability. 

While Penney was being decided and litigated, another case, White v. Treasurer,¹⁵ involving pre-existing occupational diseases, was also being brought through the appellate process. This case would end up being the clearest, most decisive confirmation hat occupational diseases were not compensable prior injuries to trigger SIF liability. 

White v. Treasurer 

Brian White worked as a distribution field worker for Missouri American Water from 2007-2020. In 2010, he suffered a work-related injury to his shoulders “which was deemed to be an occupational disease under … Missouri’s Workers’ Compensation Act.”¹⁶ He filed a workers’ compensation claim and received a settlement from his employer equating to a total of 106.72 weeks of compensation. In 2020, White injured his chest at work and filed another workers’ compensation claim for this injury. He again settled the case with his employer, this time for 50 weeks of compensation.¹⁷

White then filed a claim for PTD benefits from the SIF, arguing that his prior shoulder injury and new chest injury together qualified him for compensation. The administrative law judge agreed and awarded benefits. The Missouri state treasurer, as custodian of the SIF, appealed, but the Missouri Labor and Industrial Relations Commission affirmed the award. The Missouri state treasurer then appealed to the Missouri Court of Appeals, citing the Supreme Court of Missouri’s recent decision in Penney which established that occupational diseases were not qualifying disabilities sufficient to trigger SIF liability. 

The Missouri Court of Appeals reversed the findings of the commission and the administrative law judge because it was clearly demonstrated in the record that White’s previous shoulder injuries were determined to be an occupational disease. The appellate court emphasized the Supreme Court of Missouri’s opinion that “the legislature clearly excluded occupational diseases from compensable injuries.”¹⁸ The White court concurred that those legislative reforms limited the SIF’s exposure by excluding occupational diseases from compensability for SIF liability. 

With the confirmation of the exclusion of occupational diseases from SIF liability, the question remains regarding how this limitation of liability will affect employers and insurers as the only entities who could now be responsible for PTD cases involving pre-existing occupational diseases. 

Indirect effects: What practitioners need to know 

While the courts in White and Penney clearly ruled out PTD claims based on pre-existing occupational diseases against the SIF, neither case addressed similar PTD claims against employers. In fact, the existence of § 287.067 directly allows for these types of cases to proceed against employers. Penney and White directly limited the SIF’s liability but may have indirectly increased liability for employers and insurers for claims involving occupational diseases by way of making claimants and lawyers more hesitant to settle PTD claims involving occupational diseases, even if only tangentially. 

Because of White and Penney, a risk now exists that the SIF will not be found liable for benefits due to the exclusion of occupational diseases. If a claimant settles a PTD claim with their employer with the intent to file a claim against the SIF, a pre-existing occupational disease may give the SIF the equivalent of a complete defense to the worker’s claim, leaving them with no further recourse for compensation or benefits. 

The potential hesitancy to settle PTD claims could lead to longer, more expensive litigation for employers and insurers, as well as increased liability in the form of higher settlements and more PTD awards. Claimants’ lawyers may be increasingly hesitant to settle PTD claims with employers due to fear of an award against the SIF being overturned on appeal. An environment may be forthcoming where PTD claims will require employers and insurers to provide more aggressive settlement offers to resolve cases involving occupational diseases, pre-existing or otherwise. There also may be an increased need to aggressively litigate and investigate PTD cases to determine whether occupational diseases are involved. Understanding this trend now can allow defense practitioners to prepare their clients for a more aggressive litigation landscape in PTD claims involving occupational diseases. 

Final thoughts 

This precedent is recent, and its full impact may be still to come. However, defense counsel should be prepared for more complex and expensive litigation in workers’ compensation cases involving occupational diseases. It may be likely that claimants and their lawyers will turn their attention toward employers any time there is an argument that occupational diseases are included in a PTD claim. 

Moving forward, it will be imperative to review and investigate pre-existing injuries and disabilities when administering and defending workers’ compensation cases to avoid potential surprises based on Penney and White. Clear documentation and early legal analysis may be the difference between routine claims handling and significant liability exposure.

Endnotes
1 White v. Treasurer of State As Custodian of the Second Inj. Fund, 717 S.W.3d 835, 839 (Mo. Ct. App. 2025). 
2 Mo. Rev. Stat. § 287.220. 
3 Id. 
4 Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund, 570 S.W.3d 110, 116 (Mo. Ct. App. 2018). 
5 Mo. Rev. Stat. § 287.220. 
6 Mo. Rev. Stat. §§ 287.220 and 287.710. 
7 Mo. Rev. Stat. § 287.067. 
8 Id. 
9 David A. Lieb, Missouri Senate Backs Bill to Bolster Second Injury Fund, INSURANCE J. (May 17, 2023). 
10 State ex rel. KCP&L Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14, 30 (Mo. Ct. App. 2011). 
11 David A. Lieb, Missouri Senate Backs Bill to Bolster Second Injury Fund, INSURANCE J. (May 17, 2023). 
12 White, 717 S.W.3d 835, 836 (Mo. Ct. App. 2025). 
13 Treasurer of State v. Penney, 710 S.W.3d 498, 503 (Mo. 2025). 
14 Id. 
15 White, 717 S.W.3d 835–839. 
16 Id. at 836. 
17 Id. at 836–837. 
18 Id. at 839.