SB 1385 - This act modifies various provisions relating to workers' compensation. DEFINITION CHANGES (Section 287.020) The definition of "accident" is modified to repeal to use of the word "unexpected" so that "accident" is defined as a "traumatic event", rather than "an unexpected traumatic event." Furthermore, injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employee's principal place of business, rather than the employer's principal place of business or from the employee's principal place of business to the employee's home are not compensable. The abrogation of the extension of premises doctrine is modified by removing reference to liability for accidents on property not controlled by the employer. OCCUPATIONAL DISEASE (Sections 287.020, 287.063, and 287.067) The act modifies the definition of "occupational disease" to include "repetitive trauma injuries" and further specifies that for purposes of determining if an employee has sustained an occupational disease, the exposure to the injury must have arisen out of and in the course of employment. Furthermore, the definition of injury is modified to include reference to occupational disease and to further provide that an injury by accident or occupational disease is deemed to arise out of and in the course of employment only if: • It is reasonably apparent, upon consideration of all the circumstances, that the accident or occupational disease is the prevailing factor in causing the injury; • It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life; and • The employee was engaged in a work activity to the greater benefit of the employer when the occupational disease was contracted or accident occurred. REDUCTION OR FORFEITURE OF BENEFITS (Section 287.120) Current law requires the reduction of compensation and death benefits by at least 25% where an injury is caused by 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. This act requires the reduction of the indemnity benefit by at least 25%, rather than the compensation and death benefit. Current law requires the forfeiture of benefits where the employee's participation in a recreational activity or program is the prevailing cause of the injury. This act repeals an exception to this rule that exempted circumstances where the employee was paid wages or travel expenses while participating in such recreational activity or program. MENTAL INJURIES (Section 287.120.8) Current law provides that a mental injury resulting from work-related stress does 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. This act requires the stress to be measured in comparison with employees working in the same position. MAXIMUM FEE SCHEDULE (Section 287.140.3, 287.210) Current law provides that all fees and charges for services under the workers' compensation law shall be fair and reasonable, subject to regulation by the Division of Workers' Compensation (DWC) or the Labor and Industrial Relations Commission. This act requires the Division to establish by rule a schedule of fees for any service provided pursuant to the workers' compensation law and further requires all fees and charges under such law to be in accordance with the fee schedule. MEDICAL FEE DISPUTES (Section 287.140.4 and .8) Any medical fee dispute shall be filed not later than: • Two years from the date the first notice of dispute of the medical charge was received by the health care provider if such services were rendered before July 1, 2013; • One year from the date the first notice of dispute of the medical charge was received by the health care provider if such services were rendered after July 1, 2013; and • Two years from the date of service, when no payment has been made. The act repeals a provision requiring the Director of the Division of Workers' Compensation to establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. EMPLOYER'S SUBROGATION LIEN (Section 287.150) The act provides that where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall have a subrogation lien against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. The act repeals an exception to an employer's subrogation rights in the case of an employee's wrongful death where the employee suffers or suffered from an occupational disease due to toxic exposure and the employee, dependents, or persons eligible to sue for wrongful death are compensated under workers' compensation. COMPENSATION PAID OUT OF SECOND INJURY FUND (Section 287.220) The act modifies the procedure for claims for permanent partial disability. Specifically, it repeals a requirement that an employee's preexisting disability be medically documented. Furthermore, if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the Labor and Industrial Relations Commission (LIRC), the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the LIRC and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of the Second Injury Fund (SIF). AVERAGE WEEKLY WAGE (Sections 287.021, 287.240, and 287.250) The act modifies references to the term "average earnings" by changing the term to "average weekly wage" and furthermore provides that in any claim for compensation, an allegation of an average weekly wage shall not be considered a statement of fact deemed admitted if an answer to the claim is not timely filed. STATUTE OF LIMITATIONS AND NOTICE REQUIREMENTS (Sections 287.063, 287.420, and 287.430) Current law provides that the statute of limitation for an occupational disease shall not begin to run until it becomes reasonably discoverable and apparent that an injury has been sustained. This act provides a definition for the phrase "reasonably discoverable and apparent." Furthermore, the act provides that no proceedings for compensation for any occupational disease or repetitive trauma 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 thirty days after the injury becomes reasonably discoverable and apparent, unless the employee can prove the employer was not prejudiced by failure to receive the notice. Current law provides that a claim against the SIF shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer, whichever is later. This act requires such a claim to be filed at any point prior to the conclusion by settlement or final award, after appeals, of the primary claim. APPEALS (Sections 287.480 and 287.510) The act provides that if an application for review is made to the LIRC within 20 days from the date of an award for compensation by any party, all parties to the case of automatically retained as a party or parties to the appeal. The act also gives appellate courts jurisdiction to review temporary or partial awards of compensation where the issue concerns an employer's liability and the employer claims that it is not liable for paying any compensation. COMMUTATIONS AND AGREEMENTS TO DISCHARGE LIABILITY (Sections 287.530 and 287.540) The act repeals a provision of law allowing the LIRC to commute any compensation awarded under workers' compensation law. Furthermore, the act allows the parties to agree to discharge the employer from further liability, which may be permitted only by the LIRC, provided it meets the same stipulations for compromise settlements as required under current law. INADMISSIBLE EVIDENCE - SETTLEMENTS CONTINGENT ON RESIGNATION (Section 287.780) In any civil action alleging discrimination for exercising rights under workers' compensation law, the act makes inadmissible evidence that a settlement offer was made contingent upon a voluntary resignation of employment. SCOTT SVAGERA