IMPORTANT NOTE– If you have a workers’ compensation injury that arose before 8/28/2017 then you should immediately consult with an attorney to determine if the new law applies retroactively to your claim. This depends on whether it is substantive versus a procedural change. As with any new law, the answers are yet to be determined by the courts.

Section 287.020.12: Defines maximum medical improvement (MMI) as the “. . . point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty.”

Comment– This is important in determining Temporary Total Disability (TTD) and Temporary Partial Disability (TPD) and the date at which Permanent Total Disability (PTD) payments begin. TTD/TPD is paid time off work while you are recovering and are unable to work or earning less on light duty.  MMI had never been defined by statute till now despite everyone using this term.

Comment– Many believe this amendment was in response to the Greer v. Sysco Food Services, SC94724 (Mo. banc 2015) decision. However, the new amendment does not forgo the situation where a person is released at MMI twice or goes on to get more treatment. Arguably, if you are released twice and/or go on to get more treatment then it would appear your condition was not “stabilized.”

 Section 287.037.2: This allows certain shareholders of Chapter S corporations to reject Missouri workers’ compensation coverage.

Section. 287.120.6(4):  New Drug Penalty Test:

            “Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:

• (a) The initial testing was administered within 24 hours of the accident or injury;
• (b) Notice was given to the employee of the test results within 14 calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
• (c) The employee was given an opportunity to perform a second test upon the original sample; and
• (d) The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.”

Comment– The Employer must first perform steps (a) – (d). In some situations the drug penalty can be very severe and in some cases it can lead to a 50% or 100% forfeiture of all work comp benefits.

 Section 287.149.1: TTD/TPD:

TTD or TPD benefits shall be paid throughout the rehabilitative process “until the employee reaches MMI, unless such benefits are terminated by the employee’s return to work or are terminated as otherwise specified in this chapter.”

Section 287.170.5: New penalty for voluntarily leaving your job: (One of the most significant changes in our opinion)

“If an employee voluntarily separates from employment with an employer at a time when the employer had work available for the employee that was in compliance with any medical restriction imposed upon the employee within a reasonable degree of medical certainty as a result of the injury that is the subject of a claim for benefits under this chapter, neither TTD nor TPD benefits available under this section or section 287.180 shall be payable.”

Comment– The statute does not address the situation when doctors have conflicting restrictions. Nor does it define what “voluntarily separates” means.

 Section 287.200.1: Changes the statute to say PTD benefits start from date of MMI for the lifetime of the employee.

Section 287.203: Shortens the time in which Hardship Hearings must take place from 60 days to 30 days from the request.

Section 287.240(4)(a)– Adds “any stepchild claimable by the deceased on his or her federal income tax return at the time of injury . . . .” for dependents of a deceased worker for death benefits.

Section 287.243 Line of Duty Compensation Act– Many changes to the distribution of benefits to survivors of first responders who were killed in the line of duty.

Section 287.390.7:  Settlements:

“In the case of compromise settlements offered after a claimant has reached MMI, upon receipt of a permanent disability rating from the employer’s physician, a claimant shall have a period of 12 months from such date to acquire a rating from a second physician of his or her own choosing.”

“Absent a finding of extenuating circumstances by an ALJ or the commission, if after 12 months a claimant has not acquired a rating from a second physician, any compromise settlement entered into under this section shall be based upon the initial rating.”

“A finding of extenuating circumstances by an ALJ or the commission shall require more than failure of the claimant to timely obtain a rating from a second physician”

“The provision of this subsection may be waived by the employer with or without stating a cause.”

Comment-  Although this new amendment doesn’t say it, you always have the right to go to trial and not be bound by this rule.  This rule hurts those workers without a lawyer who don’t know they can get their own doctor’s rating and to go to trial.

Section 287.780: Change in standard for proving an Employer discriminated against you for exercising your work comp rights:

“No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.”

“…motivating factor shall mean that the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.”

Comment- The prior standard under Templemire v. W & M Welding, Inc., 433 S.W.3d 371 (Mo. banc 2014) was “contributing factor”. Prior to that case, for decades it had been the “exclusive cause” standard.

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Missouri Workers’Compensation
TOP COMMON FALSE FACTS

FALSE- You have no case because you hurt yourself.
TRUTH– Fault does not matter. You still have a case.

FALSE- You automatically lose if you don’t report the injury the same day you are hurt.
TRUTH– You must give written notice within 30 days. Actual knowledge and verbal notice may be enough.

FALSE- You no longer work for the employer and therefore get nothing.
TRUTH– If you left the job you can still file a work comp claim

FALSE- You went to your own doctor so therefore you forfeit all benefits.
TRUTH– You may have to pay for that doctor visit but you still can pursue benefits from the employer. In many cases you only find out your injury was work related from your own doctor.

FALSE- Carpal Tunnel & Occupational Diseases aren’t covered
TRUTH– These are covered in workers’ compensation- including all repetitive trauma injuries. In fact, most injuries are covered.

FALSE- You don’t have a case because your employer is out of business.
TRUTH– You still have a case. The work comp insurance still covers it. Even if the insurance is bankrupt you can still pursue the Missouri Guarantee Insurance Fund.

FALSE- Employer tells you to submit the work injury bills to your company health insurance plan.
TRUTH– Always insist work comp pay. It is at no cost, no copay, & zero deductible to you. Work comp is separate and apart from health insurance

FALSE- Employer tells you they never owe you mileage.
TRUTH– Employer shall advance/reimburse transportation when medical appointments are outside metro area where you worked.

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Previous Standard: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Daubert Standard: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)  The testimony is based on sufficient facts or data; (c)  The testimony is the product of reliable principles and methods; and (d)  The expert has reliably applied the principles and methods to the facts of the case.

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This is the first Court of Appeals case to interpret Senate Bill 1 since it came into effect on 1/1/2014. Senate Bill 1 created, among other things, a new Section 287.220.3 in Missouri Workers’ Compensation. This case harmonizes sections 287.220.2 and 287.220.3 of the MO Work Comp law.

Mr. Gattenby was injured at work in 2014 and also had several pre-existing injuries that all occurred before 2014.  Mr. Gattenby alleged he was permanently and totally disabled due to the combination of his injuries against the Second Injury Fund. The argument was over whether 287.220.2 or 287.220.3 applied.

The Court explained that 287.220.3 applied only where both the preexisting and the primary injuries occur after January 1, 2014. In support of its analysis, the Court stated, 287.220.2 plainly refers to “previous disability,” whereas 287.220.3 does not.

Because Mr. Gattenby’s claim against the SIF involved pre-existing injuries that resulted in disability before 1/1/2014, subsection 287.220.2 is controlling.

This opinion is very important because up till this point the Second Injury Fund maintained the position that all new cases with a primary work injury occurring after 1/1/2014 was controlled under the “new law” and standards of Section 287.220.3.

This case further bolsters statutory interpretation for Fund responsibility for PPD cases under 287.220.2 where the primary injury is after 1/1/2014 and the pre-existing injury is before 1/1/2014.

The post Important distinction for Fund liability- First PTD Award interpreting SB1 appeared first on Ronald D. Edelman, Attorney.

Workers’ Compensation Injuries Filed – 7,687 – via the Missouri Department of Labor- Data

If you have been injured on the job, make sure you provide a written report of injury immediately to your Employer. Be sure to demand medical treatment in writing.

Remember- A written report of injury is not the same as filing a Claim for Compensation. You must still file a Claim for Compensation within the statute of limitations. If you file a Claim for Compensation after the statute of limitations then you will receive nothing.

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