2. (§9.23) As to the Second Injury Fund
As to the Missouri Second Injury Fund (the Fund) only, the employee must file a claim as against the Fund within two years after the date of the injury or within one year after a claim is filed against an employer, whichever is later. Section 287.430, RSMo 2016. In prior editions of this publication it was suggested that as a matter of good practice, counsel should ideally name the Fund in the initial claim if counsel has any information from the employee that would support such a claim—i.e., preexisting disability, injury, or health issues—because the Fund can always simply be dismissed at a later date if the preexisting issue proves nonviable in terms of recovery.
The foregoing suggestion and the Division’s treatment of the employer and the Fund as two separate and distinct parties are consistent with prior law holding the Fund liable for multiple benefits, including benefits that would not necessarily be owed by the employer’s insurer. (For example, in years past the Fund had liability for payment of medical expenses and death benefit compensation in the case of an uninsured...
