MISSOURI WORKERS' COMPENSATION CLAIM HANDLING GUIDELINES
- 1 DEFINITIONS
- 2 EXCLUSIVE REMEDY
- 3 JURISDICTION AND LIMITATIONS OF ACTIONS
- 4 COMPENSABILITY
5 EXCLUSIONS AND DEFENSES
5.1 Course of Employment
- 5.1.1 Engaged in the Furtherance of Employer’s Business
- 5.1.2 Not in Furtherance of Employer’s Business
- 5.1.3 Traveling Employees
- 5.1.4 Commuting
- 5.2 Related to Employment
- 5.3 Intentionally Self-Inflicted Injury or Death
- 5.4 Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs
- 5.5 Employee’s Violation of Positive Orders of Employer
- 5.6 Personal Animosity
- 5.7 Hostile Attacks
- 5.8 Retirement
- 5.1 Course of Employment
- 6.1 Average Weekly Wage
- 6.2 Total Disability
- 6.3 Partial Disability
- 6.4 Amputation or Loss of Use
- 6.5 Disfigurement/Scarring
- 6.6 Loss of Sight
- 6.7 Loss of Hearing
- 6.8 Cost Penalties
- 6.9 Death Benefits
- 6.10 Medical Benefits
- 6.11 Refusal of Medical Treatment
- 7 SUBROGATION OR CREDIT
- 8 ATTORNEYS
- 9 CLAIMS PROFESSIONALS
10 LITIGATION AND APPEAL
- 10.1 Workers’ Compensation Judge Proceedings
- 10.2 Workers’ Compensation Appeal Board
- 10.3 Commonwealth Court and Supreme Court
- 11 SETTLEMENT
- 12 INSURANCE
The definition of employer is defined in RSMo § 287.030.1. (1-3). This section states the word “employer” as used in this chapter shall be construed to mean:
(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representative of a deceased employer, and every other person including any person or corporation operating a railroad in any public service corporation, using the service of another for pay;
(2) The state, county, municipal corporation, township, school or road, drainage, swamp, and levee districts, or school boards, Board of Education, regents, carriers, managers or other control commission, board or any other political subdivision or corporation or quasi corporation or cities under special charge or under the commission form of government;
(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of Section 287.090 except that construction industry employers who erect, demolish, alter, or repair improvement shall be deemed an employer for the purposes of this chapter if they have one or more employees. An employee who is a member of the majorities in employer’s family within the third degree of affinity or consanguinity shall be counted in determining the total number of employees of such employer.
Section 287.040 RSMo defines statutory employment. It states
(1) any person who has work done under contract or on or about “his premises” which is in operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, sub-contractors and their employees when injured or killed on or about the premises of the employer while doing work which is in the usual course of business. The statute goes on to point out that in all of these cases, the immediate contractor of sub-contractor shall be liable as employer of the employees of this sub-contract relationship. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney’s fees and expenses of the suit. The final section of 287.040 RSMo is section 4. This is a new section since the 2005 amendments. It indicates that the provisions of this section shall not apply to the relationship between a for hire motor carrier operating within a commercial zone as defined in section 389.0.020 or 390.041. This requires under a certification by the Missouri Department of Transportation or by the United States Department of Transportation or any of its sub-agencies and then owner as defined in sub-section 43 of Section 301.010 RSMo and operator of a motor vehicle.
Section 287.020.1 RSMo defines "employee". It states that the word "employee" as used in this chapter shall be construed to mean "every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election including executive officers of a corporation". The definition of an "employee" includes "all minors who work for an employer, whether or not such minors are employed in violation of law, or arising out of this chapter". The word "employee" shall not include an individual who is the owner of and operator of a motor vehicle which is leased or contracted with a driver to a for hire motor carrier. Finally, as of January 1, 2014, the law indicates that an "employee" does not include any person performing services for board, lodging, aid, or sustenance received from any religious charitable or relief organization.
Missouri does recognize loaned and borrowed employees. For an employee of the general employer to be considered a borrowed employee the following elements have to be proven:
(1) The employee must consent to work for the special employer;
(2) The employee must actually be performing work of the special employer under either an express or an implied contract;
(3) The special employer must have the power to control all aspects of the work being performed and to determine not only how the work will be done but whether it will continue on or cease.
Independent contractors are not considered employees and are therefore not covered under the Workers’ Compensation Act. However, whether an individual is an employee versus an independent contractor depends specifically on the actual relationship. An independent contractor is defined as an individual who contracts to do work according to his or her own method or plan. The independent contractor is not subject to the control of the hiring party. The independent contractor is simply required to complete the assigned task pursuant to any codes or regulations governing the end product.
The court will look to the extent of control exercised by the employee over the worker to determine if it is an independent contractor relationship. If the employer exercises control on a daily basis on not only the final products but also how the task will be completed, the more likely it is to be an employee/employer relationship as opposed to independent contractor.
There have been many recent changes in Missouri Workers’ Compensation Act dealing with the exclusive remedy provisions of the Act. Until approximately 2005 the only and exclusive remedy for an employee who had personal injury or death caused by accident in the workplace was through the Workers’ Compensation Act. However, when sweeping changes were made to the Missouri Workers’ Compensation Act in 2005 the definition of accident was changed and was more narrowly construed. The accident definition included language that the event had to occur in a single work shift. This, for all intents and purposes excluded occupational diseases from the exclusive remedy provisions in the Missouri Workers’ Compensation Act. Also, in 2005 the provision was placed in the statute that required all judges to strictly construe the statutes. RSMo § 287.800. Thereafter, many attorneys began to sue employers in civil court and outside of workers’ compensation for occupational disease claims from repetitive trauma claims of carpal tunnel syndrome to chemical exposure cases. The Missouri Court of Appeals, Western District, held that Missouri Workers’ Compensation Law did not provide the exclusive remedy for Plaintiffs seeking remuneration for occupational diseases. State ex rel. KCP&L Greater Missouri Operations Co. v. Cook, 353 S.W.3d 14 (Mo.App. W.D. 2011). The Missouri legislature then worked to eliminate occupational disease claims from affecting employers in civil court. They enacted legislation which became effective "August 28, 2013" which placed the repetitive trauma occupational disease claims back under the exclusive remedy of workers’ compensation law. RSMo § 287.120. However, they did extract several types of cases and increased their value significantly. They first included a carve out for toxic exposure cases dealing with asbestosis, berylliosis, coal worker's pneumoconiosis, brochiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous leukemia, and myelodysplastic syndrome. These types of claims will all have a larger starting point for damages under the Missouri Workers’ Compensation Act, starting in 2014. RSMo § 287.200.4.
The legislature also carved out a section for the occupational disease claims respective to Mesothelioma only. RSMo § 287.223.
The general rule in Missouri is that Missouri will have jurisdiction over a work accident if the accident occurred in the state, if the contract for hire is made in the state or finally, if the principle place of business is within the state of Missouri.
Typically the location of the accident is not a disputed fact. More of the issues regarding jurisdiction come up with whether the claimant’s job is principally located in Missouri or if the contract of hire was in Missouri. The determination as to whether the principle place of business was in Missouri for an individual claimant depends on several factors. They look first at where the business is conducted on a day to day basis. They also look to determine the extent of time for the job in the state. They also look at the point of contact with the employer and whether it occurs in Missouri.
The contract for hire is typically an issue on the border cities of Missouri such as St. Louis and Kansas City. The law is clearly stated that the last act necessary to form the employment contract is the state where the contract for hire would be made. For example, if a Missouri business contacts a prospective employee at their home in Illinois and an offer of employment is made at that time, the claimant can invoke Illinois jurisdiction regardless of whether the accident occurs in Missouri by simply accepting the employment offer at his home in Illinois. That would be the last act necessary to form the contract.
Section 287.127 sets out the notice provisions in the Missouri Workers’ Compensation Act. It requires all employers to post notice at their place of employment that the employer is operating under the Missouri Workers’ Compensation Law, that employees must report all injuries immediately to the employer, the name, address and telephone number of the insurer if insured, the address and phone number of the Division of Workers Compensation, that the employer will provide additional information upon request and that a fraudulent action by the employer, employee, or any person is unlawful. The requirement that the employees must report all injuries also indicates that the employee must be aware that if they fail to report their injury, they may lose the right to receive compensation if the injury or illness is not reported within 30 days or in the case of occupational illness or disease, within 30 days of the time he or she is reasonably aware of work relatedness of the injury or illness. Employees that fail to notify the employer within 30 days may jeopardize their ability to receive compensation and any other benefits under this chapter. Section 287.420 further indicates that no proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than 30 days after the accident unless the employer was not prejudiced by failure to receive the notice. No proceeding for compensation for any occupational disease or repetitive trauma under this chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured has been given to the employer no later than 30 days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.
The Statute of Limitations in Missouri is governed by Section 287.430 RSMo. It states that no proceeding for compensation under this chapter shall be maintained unless a claim is filed with the Division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the Report of Injury or death is not filed by the employer as required by Section 287.380, the Claim for Compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death.
Section 287.067 defines occupational diseases. It states that an occupational disease is defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the disease is followed as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected, but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. Chapter 287.067.3 also indicates that an injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The prevailing factor is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day to day living shall not be compensable.
Many statutes control occupational disease claims in the state of Missouri. The general statute is 287.063. It indicates that an employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as it is set forth in sub-section 7 of Section 287.067, RSMo. The employer liable for the compensation in this section provided shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to the first evidence of disability, regardless of the length of time of such last exposure, subject to the notice provisions of Section 287.420. Section 287.063 also indicates that the Statute of Limitations referred to in 287.430 shall not begin to run in cases of occupational disease until it becomes reasonably discoverable and apparent that an injury has been sustained related to such exposure except that in cases of loss of hearing due to industrial noise, said limitations shall not begin to run until the employee is eligible to file a claim as he would have to provide it in Section 287.197.
As of January 1, 2014 several occupational disease chemical exposure claims have been given special priority. This provision is not retroactive. Occupational diseases including asbestosis, berylliosis, coal worker's pneumoconiosis, brochiolitis obliterans, silicosis, silicotuberculosis, manganism, acute myelogenous leukemia, and myelodysplastic syndrome are given heightened values compared to all other occupational disease claims. For these toxic exposure diseases, the claimant is entitled to 200% of the state’s AWW as of the date of diagnosis for 100 weeks and then they would be entitled to the remainder of their PTD or death benefits. RSMo § 287.200.4. This statute is not retroactive.
These cases not only get additional benefits but also the employer cannot seek subrogation through the manufacturer of the product. Mesothelioma has been carved out of the Missouri Workers’ Compensation Act, potentially. Again, there are enhanced benefits that one must pay if they elect to have Mesothelioma covered in the workers’ compensation arena. In addition to any PTD or death benefits they would otherwise be entitled to, they would also be entitled to 300% of the AWW for 212 weeks of benefits. If an employer does not elect to fall within the Workers’ Compensation protections, they may be sued civilly. Also, an employer must designate how they are going to cover themselves for Mesothelioma claims. If they elect to cover themselves on Mesothelioma claims through the workers’ compensation arena they will either have to be covered through an insurance carrier, be self-insured or elect to come under a self-insured pool administered by the Department of Workers’ Compensation. Just like the sections relating to the occupational disease exposure cases above the employer is not allowed to seek subrogation through a manufacturer if they have to pay out claims under this section. RSMo § 287.200.4. This statute also starts on January 1, 2014 and is not retroactive.
Under Section 287.120 of the Workers’ Compensation Act, every employer shall be liable, irrespective of negligence, to furnish compensation for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment.
Under the Missouri Worker's Compensation Act, the term injury is defined in connection to the term accident. However, an injury alone does not constitute an accident. Accident is defined as an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.
An injury is defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.
An injury shall be deemed to arise out of and in the course of employment only if:
(1) it is reasonably apparent, upon consideration of all the circumstance, that the accident was the prevailing factor in causing the injury; and
(2) it does not come from a hazard or risk unrelated to the employment to which the workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.
An injury resulting directly or indirectly from idiopathic causes is not compensable. See §287.020.
A specific accident is required for establishment of compensability of an alleged acute injury. However, if the alleged work injury is an occupational disease or repetitive motion/trauma claim, a specific accident is not required.
Any employee who is exposed to and contracts any contagious or communicable disease arising out of and in the course of his or her employment shall be eligible for benefits under the Missouri Worker's Compensation Act as an occupational disease. See §287.063.
Disease of the heart or cardiovascular system or lungs, respiratory tract, hypotension, hypertension may be recognized as occupational diseases and are defined to be injuries only if the accident is the prevailing factor in causing the resulting medical condition. See §287.020.
Under the Missouri Worker's Compensation Act, the term "occupational disease" is defined to mean an identifiable disease arising, with or without human fault, out of and in the course of the employment. Ordinary diseases of life, to which the general public is exposed outside of the employment, are not compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The diseases need not to have been foreseen or expected, but after its contraction, it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence. An injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.
Employees shall be conclusively deemed to have been exposed to the hazards of an occupational disease, when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists.
The employer liable for the compensation of an occupational disease shall be the employer in whose employment the employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time of such last exposure. See §287.063
In Missouri, an injury/accident must arise out of and in the course of the employee’s employment to be found compensable. Generally, accidents which occur while the employee is acting in furtherance of the employer’s business will be compensable. An injury suffered by an employee while performing an act for the mutual benefit of the employer and employee is usually compensable.
An injury is not compensable if, at the time it occurred, the employee was engaged in an activity of a purely personal nature, independent of the employment relationship.
Where the employee's participation in a recreational activity or program is the prevailing cause of the injury, benefits or compensation otherwise payable under the Act for death or disability shall be forfeited regardless that the employer may have promoted, sponsored or supported the recreational activity or program, expressly or impliedly, in whole or in part. The forfeiture of benefits or compensation will not apply if
(1) the employee was directly ordered by the employer to participate in such recreational activity or program;
(2) the employee was paid wages or travel expenses while participating in such recreational activity or program; or
(3) the injury from such recreational activity or program occurs on the employer's premises due to an unsafe condition and the employer had actual knowledge of the employee's participation in the recreational activity or program and of the unsafe condition of the premises and failed to either curtail the recreational activity or program or cure the unsafe condition.
Generally, injuries sustained by employees while going to work or coming from work are not compensable. But there are numerous exceptions to the rule and the ultimate determination of compensability will depend on the facts of each case, including when the employee is required to travel away from the employer’s premises.
If the work of the employee creates a necessity for travel, the employee is in the course of employment even when he/she is serving at the same time some purpose of his own. Some of these common law doctrines may no longer be applicable since the 2005 changes enacting “strict construction” of the law.
Employees whose work entails travel away from the employer’s premises are held to be within the course of employment continuously during the trip, except when a distinct departure or derivation on a personal errand is shown.
Injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee’s home to the employer’s business or vice versa are not compensable.
Under the dual purpose doctrine, injuries sustained by an employee during a trip to or from work are compensable where the primary purpose of the trip was in furtherance of the employer’s business even though at the same time the employee was serving some purpose of his/her own.
Injuries/accidents which occur during personal errands and deviations from the employee’s employment are generally not compensable.
The general rule is the Employer will be found liable if the Employer owns or has the right to control the premise or parking lot where the accident/injury occurred.
In Missouri, a compensable injury/accident must arise out of and in the course of the employee’s employment. In other words, there must be a causal connection between the work conditions and resulting injury. The injury must have resulted from a natural and reasonable incident of employment, or a risk reasonably inherent in the particular conditions of the employment and the injury is the result of a risk peculiar to the employment.
When looking at whether an injury/accident occurred “in the course of” of the employment, it must be proven that the injury occurred within the period of employment in a place where employee may reasonably be, while engaged in furtherance of employer’s business, or in some activity incidental to it.
An injury/accident which results from a risk to the public-at-large is generally not compensable. i.e. tripping over your own feet while walking. See Johme v. St. John’s Mercy Healthcare. Furthermore, injuries which result from Acts of God, personal assault, horseplay, and personal errands performed during the employment are generally not compensable.
Mental injury resulting from work-related stress do not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual.
No compensation shall be allowed for an injury or death due to the employee's intentional self-inflicted injury, but the burden of proof of intentional self-inflicted injury shall be on the employer or the person contesting the claim for allowance. See §287.120.3.
Where the employee fails to obey any rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or non-prescribed controlled drugs in the workplace, the compensation and death benefit shall be reduced fifty percent if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs.
If, however, the use of alcohol or non-prescribed controlled drugs in violation of the employer's rule or policy is the proximate cause of the injury, then the benefits or compensation otherwise for death or disability shall be forfeited.
The voluntary use of alcohol to the percentage of blood alcohol sufficient under Missouri law to constitute legal intoxication shall give rise to a rebuttable presumption that the voluntary use of alcohol under such circumstances was the proximate cause of the injury. A preponderance of the evidence standard shall apply to rebut such presumption.
An employee's refusal to take a test for alcohol or a non-prescribed controlled substance, at the request of the employer, shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a non-prescribed controlled substance by the claimant or if the employer's policy clearly authorizes post-injury testing. See §287.120.6.
Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, the compensation and death benefit shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees. See §287.120.5.
Under the Missouri Worker's Compensation Act, personal animosity is not a recognized defense to an alleged work-related injury.
In certain circumstances, assaults to an employee may be compensable, and in those claims the issue raised is whether the assault arose out of the employment. In all cases of assault, the injured employee must not be the aggressor to be found compensable.
Assaults that are related to the dangerous nature of the employee’s duties, or the environment in which the employee is required to work, or the outgrowth of frictions generated by the work itself, or that are in some way the result of a risk directly attributable to the employment are compensable.
Assaults committed in the course of private quarrels that are purely personal to the participants are not compensable.
Finally, assaults that result from irrational and unexplained incidents of a neutral origin that occur in the course of employment are compensable.
Under the Missouri Worker's Compensation Act, retirement is not a defense to the compensability of an alleged injury.
As retirement is not a recognized defense to a compensable injury under the Worker's Compensation Act, proof of voluntary retirement is moot.
In general, the claimant’s average weekly wage (AWW) is calculated by adding up the claimant’s gross earnings (including overtime) in the 13 weeks preceding his injury, and dividing by 13 (e.g., If the claimant earned $6,500.00 in the 13 weeks preceding his injury, his AWW would be $500.00). R.S.Mo. § 287.250.1(4).
If the claimant missed five regular or scheduled work days in the 13 weeks preceding the injury, the denominator is lessened by 1 (e.g., the claimant earned $6,500.00 in the 13 weeks preceding the injury, but the claimant only worked 58 days during that period. His AWW would be $541.67). R.S.Mo. § 287.250.1(4).
A claimant is typically entitled to temporary total disability (TTD) benefits when one of two scenarios occurs:
(1) the authorized treating physician indicates the claimant is not capable of working due to the injury; or
(2) the authorized treating physician imposes work restrictions that the employer is not able to accommodate.
The claimant’s TTD rate is determined by calculating 2/3 of his AWW (e.g., If the claimant’s AWW is $660.00/week, his TTD rate is $440.00/week). The TTD rate is capped at a certain amount, depending on when the claimant’s injury occurred (e.g., The claimant earned an AWW of $1,400.00 leading up to his injury on August 9, 2013. Though 2/3 of his AWW would be $933.33, his TTD rate is capped at $853.08).
The claimant is disqualified from receiving TTD benefits for any period during which he receives unemployment benefits. R.S.Mo. § 287.170.3. This is because, in order to obtain unemployment benefits, an unemployed individual must indicate that they are ready, willing, and able to work.
If the claimant is terminated from his employment for post-injury misconduct, he is no longer eligible to receive TTD benefits. Post-injury misconduct cannot include absence from the workplace due to an injury, unless the claimant is capable of working with restrictions, as certified by a physician. R.S.Mo. § 287.170.4.
Typically, a judge will determine whether the claimant is permanently and totally disabled (PTD) by assessing the credibility of the claimant, medical experts and vocational experts. If a judge believes the claimant is incapable of competing in the open labor market, the claimant will be deemed PTD. An Award of PTD will require the issuance of weekly benefits at the claimant’s PTD rate (2/3 of the AWW, up to a statutory weekly maximum).
In order for the employer/insurer to be liable for PTD benefits, the judge must find that the claimant is PTD as a result of the last work-related injury, in and of itself. Often times, the claimant is PTD as a result of the last work-related injury in combination with the claimant’s prior injuries (e.g., The claimant suffered a severe, work-related low back injury requiring surgical intervention. If the judge does not believe the low back injury, alone, would be sufficient to render the claimant PTD, the claimant may still be PTD due to the combination of the low back injury and several prior injuries). If the claimant is PTD as a result of the last work-related injury in combination with prior injuries, PTD liability rests with the Second Injury Fund. In that case, the employer/insurer are only liable for the disability attributable to the last work-related injury. The Second Injury Fund would be liable for all PTD benefits after the employer’s benefits are completed.
Missouri recognizes temporary partial disability (TPD) as a benefit under the Workers’ Compensation Act. RSMo § 287.180. TPD is paid at 2/3rds of the difference between the pre-accident and post-accident wage. The maximum TPD is 100 weeks.
In general, a claimant is entitled to permanent partial disability (PPD) designed to compensate the claimant for the permanent extent of disability in the claimant’s injured body part.
A claimant’s PPD rate is determined by calculating 2/3 of his AWW (e.g., If the claimant’s AWW is $600.00/week, his PPD rate is $400.00/week). Like TTD, the PPD rate is capped at a certain amount, depending on when the claimant’s injury occurred (e.g., The claimant earned an AWW of $1,400.00 leading up to his injury on August 9, 2013. Though 2/3 of his AWW would be $933.99, his PPD rate is capped at $446.85).
In Missouri, doctors will typically issue disability ratings when the claimant has been placed at maximum medical improvement (MMI). Though some doctors will issue impairment ratings, judges are free to ignore impairment ratings when assessing a claimant’s permanent partial disability. The basis of this position is that disability encompasses more than simply an individual’s impairment.
Some dockets require both parties to obtain disability ratings before a judge will issue an opinion with regard to PPD. The judge’s recommendation is then translated into weeks, which are then multiplied by the PPD rate to equal a dollar amount (e.g., Employer/Insurer have a rating of 5% PPD of the right shoulder. Claimant has a rating of 35% PPD of the right shoulder. Judge issues a recommendation of 25% PPD of the right shoulder. 25% x 232 x $446.85 = $25,917.30).
Unlike some surrounding states, vocational rehabilitation is not mandatory in Missouri. However, within 120 days of the injury, the employer shall determine whether the injured worker has sustained an injury that results in a loss of suitable, gainful employment. If this occurs, the employer may retain the services of a rehabilitation practitioner or provider. R.S.Mo. § 287.148.1.
In general, a claimant’s loss of earning capacity is to be factored into the permanent partial disability assessment. For example, some judges will assess a higher permanent partial disability rating if an individual is incapable of returning to his pre-injury employment.
If the claimant is terminated from his employment for post-injury misconduct, he is no longer eligible to receive TTD benefits. Post-injury misconduct cannot include absence from the workplace due to an injury, unless the claimant is capable of working with restrictions, as certified by a physician. R.S.Mo. § 287.170.4.
Vocational Experts are typically only retained on cases that involve an allegation of permanent total disability. In general, the claimant will retain a vocational expert that will opine that the claimant is incapable of competing in the open labor market. The employer/insurer will then retain their own vocational expert, who will often opine that the claimant is capable of returning to work in a number of positions. The judge will then assess the credibility of these two experts, and determine whether the claimant is, indeed, permanently and totally disabled.
If an individual suffers an injury that results in the amputation or complete loss of use of a body part, the number of weeks of compensation is increased by 10% (e.g., The claimant suffered an injury to his right hand which required the amputation of the hand at the wrist. Though the hand is worth 175 weeks of compensation, because the hand was amputated the claimant is entitled to 192.5 weeks of compensation). R.S.Mo. § 287.190.2.
If the claimant is seriously and permanently disfigured about the head, neck, hands, or arms, the claimant is entitled to some additional weeks of compensation as the division or commission “may deem just.” The sum of additional weeks of compensation shall not exceed 40 weeks. R.S.Mo. § 287.190.4.
Many judges implement a general rule of 1 week of disfigurement for every inch of scarring. Additional weeks of compensation will often be awarded for the discoloration, depth, and width of the scarring.
The complete loss of sight in one eye results in 154 weeks of compensation (i.e., 140 weeks + 10% increase under R.S.Mo. § 287.190.2). Permanent partial disability attributable to an eye injury is assessed using a number of factors including the effect of the injury on acuteness of vision, field of vision, and muscle function.
Loss of hearing attributable to an acute accident is governed by R.S.Mo. § 287.190.1. Loss of hearing attributable to industrial noise is governed by R.S.Mo. § 287.197. No claim for compensation for occupational deafness can be filed until after one month’s separation from the type of noisy work for the last employer in whose employment the employee was at any time during such employment exposed to harmful noise. The last day of such period of separation from the type of noisy work shall be the date of disability. R.S.Mo. § 287.197.7.
R.S.Mo. § 287.203 provides that, whenever the employer has provided compensation, and subsequently terminates such compensation, the employer must notify the employee of the reason for the termination of benefits. If the claimant disputes this termination, the claimant can request a hearing. If the division or the commission determines that any proceedings have been brought, prosecuted, or defended without reasonable grounds, the division may assess the whole cost of the proceedings upon the party who brought, prosecuted, or defended them. Included in the costs of proceedings that can be awarded are attorneys’ fees and all expenses associated with trial. However, these costs of proceedings are rarely awarded.
R.S.Mo. § 287.560 allows the division or commission to assess the whole cost of the proceedings on a party who brought, prosecuted, or defended a claim without reasonable grounds. In general, a claim or defense would be based on no reasonable ground if it presented no justifiable question, or is so readily recognizable as being devoid of merit on the face of the record that there is little prospect it could ever succeed. Included in the costs of proceedings that can be awarded are attorneys’ fees and all expenses associated with trial. However, these costs of proceedings are rarely awarded.
R.S.Mo. § 287.240 provides that, if the claimant dies as a result of the accidental work-related injury, total dependents receive lifetime benefits at the claimant’s PTD/TTD rate. If the deceased claimant’s spouse remarries, he/she receives two years of benefits from the date of remarriage. The deceased claimant’s children receive benefits until they reach the age of 18, or the age of 22 if they continue their education full-time at an accredited school, or go directly into any branch of the military.
If an injured claimant dies in a manner that is unrelated to the work injury, any compensation that accrued, but was unpaid at the time of death, is paid to the claimant’s dependents. Recent case law suggests that, if the claimant dies from a cause unrelated to the work injury prior to reaching maximum medical improvement, no permanent partial disability can be awarded. See Cantrell v. Baldwin Transportation, 296 S.W.3d 17 (Mo. Ct. App. 2009). Accrued but unpaid benefits may continue to be paid to the dependents of the deceased claimant if the claimant dies from unrelated causes.
R.S.Mo. § 287.140.1 states, “In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.” The employer/insurer get to choose the authorized treating physician.
In 2011, the Western District Court of Appeals clarified R.S.Mo. § 287.140.1 and held that the employer/insurer can be required to furnish medical treatment flowing from a work-related injury, even if the treatment also serves to cure and relieve a preexisting condition. See Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. Ct. App. 2011). If the claimant can establish that he/she suffered a work-related accident that arose out of and in the course of his/her employment, and that the accident was the prevailing factor in causing the resulting medical condition and disability, the employer/insurer are liable for all treatment reasonably required to cure and relieve the effects of the work injury, even if that treatment would also cure and relieve a preexisting condition.
If the employer/insurer refuse to provide medical treatment based on a reasonable denial of the compensability of an injury, the claimant can file for a Hardship Hearing under R.S.Mo. § 287.203. If the Court finds that a party defended or prosecuted without reasonable grounds, the costs of the proceedings can be ordered against the wrongfully defending or prosecuting party.
An employee has a right to refuse medical treatment provided or recommended by the employer/insurer’s physician. The employee has a right to select his/her own physician or surgeon or other such requirement at the employee’s expense. RSMo. § 287.140.
R.S.Mo. § 287.150 sets forth the general rule that, where a third person is liable to the employee for injury or death, the employer is subrogated to the rights of the employee against such third person. The recovery by the employer is not limited to the amount payable as compensation to such employee, but the employer may recover any amount which such employee would have been entitled to recover. Any recovery by the employer against the third person is to be apportioned between the employer and the employee.
The apportionment of any third party recovery in Missouri is governed by the Ruediger formula. Ruediger v. Kallmeyer Bro’s Service, 501 SW2d. 56 (Mo. 1973). The Ruediger formula allows the claimant’s attorney to deduct his fees and costs from the third-party recovery first. After the attorney’s fees and costs are deducted from the third- party recovery, the remainder of the third-party recovery is apportioned between the claimant and the employer by a fraction where the total workers’ compensation lien is the numerator and the total third-party recovery is the denominator. There are many different scenarios on the apportionment of third-party recovery that will need to be discussed with an attorney at the time of the negotiations. It is suggested to contact an attorney dealing in Workers’ Compensation before trying to address ones recovery.
When recovery against the third person is effected by the employee, the employer is to pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. R.S.Mo. § 287.150.3. After the expenses and attorney fee have been paid, the balance of the recovery is apportioned between the employer and the employee in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee.
Third party subrogation claims are most common in cases involving work-related motor vehicle accidents. Whenever the claimant is injured in a work-related motor vehicle accident, the employer/insurer should be aware of the likelihood that a subrogation interest will be involved.
Amounts paid by the employer/insurer for medical treatment sought by the claimant stemming from the work-related injury factors into the calculation of the employer/insurer’s subrogation interest.
As a general rule, the employer/insurer are entitled to a credit for any prior workers’ compensation settlements and Awards received by the claimant with regard to the same body part (e.g., The claimant suffers an injury to his right knee on 01/02/14. He had previously entered into a settlement agreement for 25% PPD of the right knee on 01/02/10. On the day of the 01/02/14 injury, the claimant’s knee was worth 120 weeks, rather than 160 weeks on the schedule of benefits).
The employer/insurer are required to be represented by an attorney at the time of settlement. The employee is entitled to proceed without an attorney through the resolution of his claim. In order to represent the employer/insurer, the attorney must be licensed in the state of Missouri.
In Missouri, claims adjusters or professionals do not need additional licensing or educational credits to handle claims. In fact, claims adjusters are not required to be physically located in the state of Missouri.
Hearings are held in front of Administrative Law Judges.
Hearings are held at the Division of Workers Compensation. There are many different divisions, located in various geographic regions across the State of Missouri. John J. Hickey was appointed to serve as the Division of Workers’ Compensation Director of the Missouri Department of Labor in 2011.
After August 28, 2005, the Division of Workers Compensation may appoint additional administrative law judges for a maximum of forty authorized administrative law judges. Appropriations shall be based upon necessity, measured by the requirements and needs of each division office.
Administrative law judges shall be duly licensed lawyers under the laws of Missouri. Administrative law judges shall not practice law or do law business and shall devote their whole time to the duties of their office.
Division of Workers Compensation administers programs and adjudicates disputes between employers and employees regarding workplace injuries and occupational diseases. The Division’s Administrative Law Judges have the authority to approve settlements or issue awards after a hearing relating to an injured workers’ entitlement to benefits. Mediation services are provided to help employers and employees resolve disputes about medical treatment, lost wages, etc. The primary responsibility of the local adjudication offices of the Division of Workers Compensation is to achieve resolution of cases involving work-related injuries due to accidents or occupational diseases.
In Missouri, a report of injury must be filled with the Division within 30 days of the injury. Thereafter, the matter will be docketed based upon whether the injured worker retains a lawyer.
Thereafter, if an injured worker is not represented, the Division will docket the matter for a “Voluntary Settlement Conference” to move the matter toward resolution.
If the injured worker is represented, the matter is docketed for a “Pre-Hearing Conference.”
Once a claim for compensation is filed, an Answer must be filed within 30 days of the Division’s receipt of claim. Failure to file an answer timely will result in acceptance of factual allegations.
In any event, a Claim for Compensation must be filed with the Division within 2 years from the date of accident or from the date of last benefits paid in order to maintain an action. Some exceptions apply. For example, if the report of injury is not filed with the Division within 30 days, of the employee’s reporting of an accident, the statute of limitations is extended from 2 years to three years.
The Division will continue to set the matters for Pre Hearings or Voluntary Settlement Conferences until the matter is resolved. However, either party may request a Pre-Hearing or Mediation Conference to obtain recommendations from an Administrative Law Judge regarding settlement value, need for additional treatment, etc.
If a matter is settled prior to a final hearing, the settlement is not final until an Administrative Law Judge approves the Stipulation for Compromise Settlement.
However, if the matter is not settled, it will eventually proceed to a Final Hearing where an Administrative Law Judge will hear all evidence and decide all issues in contest.
Administrative Law Judges have the authority to approve subpoenas and requests for copies of medical records under Rule 43.
After a final hearing, the Administrative Law Judge will issue an Award either awarding or denying certain benefits within 90 days of the last day of the hearing.
Final hearings are appealed to the Labor & Industrial Relations Commission (LIRC). Each party has 20 days to file its appeal from the date of the final award from the Administrative Law Judge.
The LIRCreview is de novo and reviews the whole record.
By statute, the only avenue for an injured worker is through the Division of Workers Compensation. Some exceptions do apply.
On Appeal from the Labor & Industrial Commission (LIRC), the matter proceeds to the Missouri Court of Appeals. A party has 30 days to appeal the LIRCdecision. The Court of Appeals only reviews questions of law.
A party has 30 days to appeal the Court of Appeals decision. Appeal is to the Supreme Court. The Supreme Court reviews only questions of law.
In Missouri, there is no mandatory mediation. However, some docket locations require mediation prior to proceeding toward a temporary or final hearing.
Parties have the opportunity to request a mediation from the Division. However, prior to requesting a mediation, some docket locations require each party to have a rating or their own Independent Medical Evaluation addressing the issues to be discussed at mediation.
A "Walk-In Settlement Conference" may be scheduled at the Division on a first come first serve basis. As with all other settlements, the settlement is not final until an Administrative Law Judge Approves the settlement.
Parties may agree to enter into a disputed settlement where an injured worker is compensated at an agreed upon value without the Employer and Insurer accepting liability for the injury and any associated medical expenses. However, an Administrative Law Judge must still approve the settlement.
Every employer is subject to the Worker's Compensation Act. However, in Missouri, an Employer is defined as “every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay” with five or more employees.
In essence, every employer with five or more employees must obtain coverage under the Workers Compensation Act or be self-insured. However, construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer if they have one or more employees.
When an employer does not carry workers' compensation insurance or is not self-insured, the injured employee or his dependents “may elect” one of three options.
First, the employee or his dependents may elect to file a civil action against “such employer.” The term “such employer” refers to the employer that fails to carry legally required workers' compensation insurance.
Second, the employee or his dependents may elect to “recover under this chapter” and pursue a workers' compensation claim.
Third, the employee or his dependents may elect to seek payment from the second injury fund.
An injured worker or his dependents may elect to bring a suit against the uninsured employer in civil court.
No such fund exists in Missouri, however, the Second Injury Fund will pay for medical benefits where an employer is uninsured and cannot pay benefits themselves. The Second Injury Fund will not pay TTD or PPD benefits on behalf of an uninsured employer. Also, the Missouri Insurance Guaranty Association covers employers whose insurance carrier becomes insolvent.