dissenting.
I respectfully dissent from that portion of the opinion which affirms the $15.00 per week award against the second injury fund for the 110 weeks during which the employer is required to pay for permanent partial disability.
I concur in the majority opinion as it affirms the trial court judgment affirming the Labor and Industrial Relations Commission’s award of permanent total disability due to the second injury.
Section 287.220.1 reads in part “* * * except that if the compensation for which the employer at the time of the last injury is liable, is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under § 287.200 out of a special fund known as the Second Injury Fund. * * * ” (Emphasis added).
In effect, the majority are amending the statute. It plainly says (and the majority ignores this wording completely) that if the compensation for which the employer is liable is less than the compensation for permanent total disability, the payments for permanent total disability are to be made only after the completion of payment of the compensation by the employer.
Nothing could be plainer. And the compensation to be paid by the employer is in fact less than the permanent total disability compensation.
The legislature is presumed to know the statutes. When the change in the rates was legislated, making the rate for permanent partial disability less than that for permanent total disability, the statute which was in effect required the permanent total disability payments to be made only after the completion of the employer’s payment. If the legislature had wished to change § 287.220.1 at that time, they could have done so. They failed to amend, perhaps for a reason pertaining to the second injury fund or for some other reason not readily apparent because of a lack of legislative history. It is not up to this court to usurp that legislative function.
I concur in that part of the majority opinion which affirms the finding of permanent total disability resulting from the second injury.
I dissent from the portion of the majority opinion which affirms the permanent total disability award to be paid during the period of permanent partial disability.