Missouri Senate

Perfected

ACCIDENT AND INJURY - The act modifies the definition of "accident" to include only events that are "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence producing at the time objective systems of an injury, caused by a specific event during a single work shift". Modifies the definition of "injury" by limiting the definition to only allow compensation if the accident was the prevailing factor in causing the condition. The act limits benefits for pre-existing conditions in cases where a work-related injury causes increased permanent disability and reduces compensation by the amount of permanent partial disability that was pre-existing. Exempts from coverage injuries from unknown causes and personal health conditions that manifest themselves at work when an accident is not the prevailing factor in the need for medical treatment. Prohibits accidents which are sustained while traveling to the employer's principal place of business from the employee's home or to the employee's home from the employer's principal place of business from being compensable.

ABROGATION OF CASE LAW - It is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "arising out of", and "in the course of the employment", as extended in the following cases: Bennet v. Columbia Health Care and Rehabilitation, 80 S.W. 3d 524, (Mo. App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W. 2d 852 (Mo. banc 1999); and Drewes v. TWA, 984 S.W. 2d 512 (Mo.banc 1999).

EMPLOYER LIABILITY - Any person who contracts to have work done as part of the usual course of business on their premises shall be liable to the contractor, it's subcontractors and employees for death or injury which occurs on the premises. If the erection of improvements, demolition, alteration or repair of the premises is being provided by an independent contractor, the independent contractor shall be deemed the employer of the subcontractors and employees where the principle contractor is on the premises and doing work. The immediate contractor or subcontractor shall have primary liability as an employer of the employees of his subcontractor. A right to contribution is available for any secondarily liable parties. The provisions of this section (Section 287.040 RSMo.) shall not apply to for-hire motor carriers.

COMPENSABILITY - Occupational disease is only compensable if the occupational exposure was the prevailing factor in causing the condition. Injury due to repetitive motion is recognized as an occupational disease and is only compensable if the occupational exposure is a prevailing factor in causing the medical condition or disability.

REDUCTION OF BENEFITS FOR CERTAIN ACTS - The act eliminates the posting requirements for reduction of compensation and death benefits where an injury is caused by the failure the employee to use employer provided safety devises. The act increases the penalty when violation of drug and alcohol rules are involved, by reducing benefits by 50 percent. Intoxication at or above the legal blood level shall give rise to a rebuttable presumption that the voluntary use of alcohol was the proximate cause of injury. A preponderance of the evidence standard will apply to rebut the presumption created by intoxication at or above the legal level.

NOTICE POSTING BY EMPLOYERS - Every employer must post notice in a prominent and conspicuous place, which notifies employees of the requirement that such employees must inform their employers of an accident within thirty days from such accident and that failure to do so may jeopardize their ability to receive medical coverage, compensation or any other benefit for the injury under workers' compensation law.

FAILURE TO INSURE - Any employer who knowingly fails to insure his liability will be guilty of a Class A misdemeanor and, in addition, will be liable for up to three times the annual premiums the employer should have paid or fifty thousand dollars.

CRIMINAL PENALTIES FOR VIOLATIONS OF WORKERS' COMPENSATION LAW-

1. Any insurance company or self-insurer who knowingly or intentionally refuses to comply with known and legally indisputable compensation obligations with an intent to defraud will be guilty of a class D felony, and receive the greater of a fine up to ten thousand dollars or double the value of the fraud. The punishment for a subsequent offense is increased to a class C felony.

2. Any person who knowingly makes a false or fraudulent statement to an investigator of the division of workers' compensation in the course of investigating fraud or noncompliance will be guilty of a class a misdemeanor and receive a fine of up to ten thousand dollars. The punishment for a subsequent offense is increased to a Class C felony.

3. Any person, company, or other entity that prepares or provides an invalid certificate of insurance as proof of workers' compensation insurance will be guilty of a Class D felony and receive a fine of the greater of a fine up to ten thousand dollars or double the value of the fraud.

4. Any employer who knowingly fails to insure his liability under workers' compensation law will be guilty of a Class A misdemeanor and will receive the greater of a fine in an amount up to three times the amount of annual premiums the employer would have paid or fifty thousand dollars.

5. Any health care provided who commits fraudulent billing practices will be guilty of a Class A misdemeanor and receive a fine of up to twenty thousand dollars. The punishment for a subsequent offense is increased to a Class D felony.

STATUTE OF LIMITATIONS - The act creates a three year statute of limitations, beginning upon discovery of the offense, for prosecution of any individual who knowingly files or aids another in filing fraudulent worker's compensation claims or for claims of fraudulent billing practices on the part of a health care provider.

DISCLOSURE OF RECORDS IN FRAUD AND NONCOMPLIANCE INVESTIGATIONS-

All reports, records, tapes, photographs, and similar materials or documentation submitted by any person, including the department of insurance, to the fraud and noncompliance unit or otherwise obtained by the unit and used to conduct an investigation for any violation of workers' compensation law, shall be considered confidential and not subject to Missouri's sunshine law. Nothing in this section prohibits the fraud and noncompliance unit from releasing records used to conduct an investigation to the local, state, or federal law enforcement authority or federal or state agency conducting an investigation, upon written request.

VOCATIONAL TESTING AND ASSESSMENT - The act provides that an employee must submit to appropriate vocational testing and a vocational rehabilitation assessment required by an employer or insurer.

SUBROGATION LIENS - The act grants an employer a subrogation lien when a third person is liable for the death of an employee.

DISQUALIFICATION FOR RECEIPT OF UNEMPLOYMENT COMPENSATION OR POST INJURY MISCONDUCT - disqualifies an employee from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation. Any employee who is terminated from post injury employment based upon post injury misconduct shall be ineligible to receive either temporary total disability or temporary partial disability benefits. If temporary total disability is ordered following a hearing which covers a period in which unemployment compensation is received by the employee, the employer will receive a dollar for dollar credit from the disability obligation and the employee will receive any difference between the amount of unemployment compensation benefits and the temporary total disability benefit from the employer.

COMPENSATION FOR HEARING LOSS - loss of hearing of twenty-six decibels or less shall not constitute any compensable hearing disability and loss of hearing average ninety-two decibels shall constitute total or one hundred percent compensable hearing loss.

ACCIDENT REPORTING - The act requires every employer or his insurer in this state file with the division a full and complete report of every injury or death to any employee within thirty days from the date of injury or death.

VOLUNTARY SETTLEMENT AGREEMENTS - allows parties to enter into voluntary agreements to settle claims and states that approval shall be granted as long as the settlement is not the result of undue influence or fraud and it is shown that the employee fully understands his or her rights and benefits and voluntarily agrees to accept the terms of the agreement.

NOTICE OF REPETITIVE TRAUMA CASE - requires written notice to an employer be made no later than thirty days after diagnosis of the condition before proceedings are maintained for a repetitive trauma or occupational disease case.

PROCEEDINGS BEFORE THE COMMISSION - All proceedings before the commission or any commissioner shall be simple, informal and summary, and without regard to the technical rules of evidence, and in accordance with Section 287.800.

SECOND INJURY FUND - Beginning October 31, 2005,requires the director of the division of workers' compensation to estimate the amount of benefits payable for each year and calculate the total amount of annual surcharge to be imposed upon all workers’ compensation policyholders and self-insured for the following calendar year. The amount of the annual surcharge shall be set at a percentage not to exceed three percent.

STANDARD OF REVIEW - imposes strict construction review with regard to the provisions of the workers compensation chapter and an impartial standard of review for the facts and evidence of a case.

CLAIMS AGAINST INSOLVENT SELF-INSURED PARTIES - requires the Division to notify each employee of a self-insured member filing bankruptcy of his or her obligation to file a notice of claim with the court of jurisdiction and of the need of the employee to provide the guarantee fund and the division with the records set out in this section. The act then requires the claimant to file a claim with the appropriate bankruptcy court prior to the time division of workers' compensation attaches jurisdiction.

EXPERIENCE RATING PLAN - The experience rating plan prohibits an adjustment to the experience modification of an employer if the total medical cost does not exceed one thousand dollars (rather than the previous five hundred dollars)and the employer pays all of the total medical costs and there is no lost time from employment, except other than the first three days or less of disability (under the waiting period section), and no claim is filed. An employer who opts to utilize this provision still has an obligation to report the injury.

WORKER SAFETY COMMITTEES - Each state agency must promulgate rules and regulations for the creation of worker safety committees within such agency. These committees will have an advisory capacity and will make recommendations of methods to increase workplace safety.

JASON ZAMKUS