Missouri: Using Workers Compensation Legal ABC’s To Stay Out of Hot Water

A.    How Claims Work

Which Employers are Covered Under the Missouri Workers Compensation Act?

The Missouri Workers’ Compensation Law applies to employers with 5 or more employees and “construction industry” employers with 1 employee or more.  §287.030, RSMo.

Under the Missouri Workers’ Compensation Law, an employee who suffers an injury or contracts an occupational disease arising out of and in the course of employment is eligible for compensation for a disability

What Benefits Are Owed to the Injured Worker (claimant)?

Anytime a worker is injured while performing work for the employer, that injured worker (claimant) is entitled to 3 things under Missouri law

1. Medical care.

The claimant is entitled to receive all reasonable and necessary medical care to cure and relieve the effects of the work injury (Tillotson v. St. Joseph Medical Center, 347. S.W.3d 511 (Mo. App. W.D. 2011).  This medical care is directed and controlled by the employer/insurer, meaning that the employer/insurer choose the medical providers.  If the claimant does not want to treat with the medical professionals chosen by the employer/insurer, then the claimant is personally responsible for the payment of the medical bills – – not the employer/insurer.

2. Temporary Total Disability Benefits (TTD).

If a claimant is injured on the job and cannot work, he/she is entitled to receive 66.66% of the claimant’s Average Weekly Wage at the time of the accident.  These TTD benefits are to be paid until the claimant is released to return to work or until the claimant reaches Maximum Medical Improvement (MMI).  MMI is commonly defined as: “No further medical care will substantially improve the injury.”

3. Permanent Disability Benefits.

This can be either what is called Permanent Partial Disability (PPD) or Permanent Total Disability (PTD).  As the names suggest, PPD is a permanent disability that only partially affects the claimant.  This is typically any injury which, although permanent, does not prevent the claimant from resuming work in the open labor market, either for the employer where the claim arose or from any other employer in the open labor market.  PTD, on the other hand, is a permanent injury that prevents the claimant from being hired in the open labor market.

DETAILS RELATED TO EACH TYPE OF BENEFIT

Temporary Total and Temporary Partial Disability Benefits

1. In General

Under the Missouri Workers’ Compensation Statute, benefits are to be paid for time off work following a work-related injury.  A claimant is to be paid temporary total or temporary partial disability benefits.  Working with a claimant and returning them to work, within doctors’ restrictions, as soon as possible can benefit both the employee and the employer.

1. Statutory Provisions and Definition

Total Disability

Under  §287.020.7 RSMo., “total disability” is defined as follows: “The term “total disability” as used in this chapter shall mean the inability to return to any employment and not merely mean an inability to return to the employment in which the employee was engaged at the time of the accident.”

Temporary Total Disability and Temporary Partial Disability

While total disability is defined by §287.020.7 RSMo., the statutes do not define “temporary total disability” and “temporary partial disability”.  The Missouri courts have held that temporary total disability awards are intended to cover the employee’s healing period following a work-related injury.  Temporary total disability is to be granted only for the time prior to when the employee can return to work.  Temporary partial disability is to be awarded during the healing period to compensate the employee for the reduction in his working ability during the healing period.

Method of Payment

The method of payment for temporary total disability (TTD) benefits is set forth in §287.170  RSMo.  During the period of temporary total disability, the employer must pay compensation for not more than 400 weeks during the continuance of such disability.  In order to determine the rate at which TTD must be paid, the employer must use the following formula:  the employer must calculate the employee’s “average weekly wage” (AWW) for the thirteen weeks prior to the accident and then pay the TTD rate which is 66 and two-thirds percent (2/3) of the AWW.  The minimum amount that can be paid is $40.00 per week.

Temporary total disability benefits are paid during the healing period after the accident for which the employee is not able to work at all – – including an inability to work in a restricted-work capacity.

The method of payment for temporary partial disability (TPD) is set forth in §287.180  RSMo., in pertinent part as follows:

“For temporary partial disability, compensation shall be paid during such disability but not for more than 100 weeks, and shall be 66 and two-thirds percent (2/3) of the difference between the average earnings prior to the accident and the amount which the employee, in the exercise of reasonable diligence, will be able to earn during the disability, to be determined in view of the nature and extent of the injury and the ability of the employee to compete in an open labor market.”

Temporary partial disability benefits are subject to the same statutory maximum and minimum amounts as TTD benefits.  TPD benefits are paid when the employee can return to work, but is unable to work his/her regular work schedule.  In other words, if the employee typically worked 35 hours per week prior to the accident, but after the accident, the treating physician

places restrictions on the employee which only allow the employee to work 25 hours per week, the employee is temporarily partially disabled for 10 hours per week.  As such, assuming that the employee is working at the same wage rate, he would be entitled to receive 66 and two-thirds of 10 hours per week at the employee’s regular wage rate.

Calculation of Average Weekly Wage

The different methods for calculating an employee’s average weekly wage (AWW) are set forth in §287.250 RSMo.  The statute provides for different methods of calculating the AWW based upon whether the employee’s wages are set by the week, month, year, hour, etc.  Typically, the AWW is based upon the thirteen weeks of employment by the employer prior to the accident.  However, one of the more difficult areas under the statute is calculating the average weekly wage of part time employees, non-regular employees, or employees employed for less than thirteen weeks.  If in any doubt, consult the statutory section in order to ensure that the AWW is calculated correctly as all temporary and permanent benefits are based on the calculation.

3. Duration of Temporary Benefits

Temporary total disability benefits are payable until the employee is able to find some employment or has reached maximum medical improvement. Under §298.120.12:

“For the purposes of this chapter, “maximum medical improvement” shall mean 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.”

Ability to Return to Employment

Temporary total or partial benefits are owed until an injured employee is able to return to any employment, not necessarily until the employee is able to return to the same employment in which the employee was engaged at the time of the accident.  See §287.020.7  RSMo.  In the context of considering whether an injured employee remains temporarily totally disabled, the courts do not look solely at whether an employee can return to lighter or other employment from a physical standpoint.  The courts also look at whether an employee is able to perform a lighter or different job from an economic standpoint.  If an employee is unable to find lighter work, an employee can still be temporally totally disabled even if able to physically perform some type of lighter work.

However, most administrative law judges require an employer to continue paying TTD benefits when the employee is unable to return to work for that same employer.  In other words, if an employee is given restrictions by the physician and the employer cannot accommodate those restrictions, then the employee will still be entitled to continue receiving TTD benefits, even though that employee might be able to find another position at a different employer meeting those restrictions.  In essence, the administrative law judge will not put the burden on the employee to find other employment.

Maximum Medical Improvement

Once an employee reaches maximum medical improvement (MMI), temporary disability benefits are no longer owed, even if the employee cannot return to his/her former employment.  In Williams v. Pillsbury Co., 694 S.W.2d 488 (Mo.App. 1985), an employee of a flour mill developed an allergy to flour dust which eventually caused him to terminate his employment.  Medical reports established that no improvement of his allergy was envisioned, but that he was fully able to work at some place OTHER than the flour mill where he previously worked.  The court held that neither TTD nor TPD benefits are intended to encompass disability after a condition has reached a point where further progress is not expected (the functional definition of MMI).  Therefore, the employee was not entitled to TTD benefits.  The court noted that TTD benefits under the Workers’ Compensation Act are not designed as unemployment compensation.

HOW CLAIMS BEGIN

In Missouri, there are three different ways that a “claim” appears before the Division of Workers Compensation:

1. If an injured workers, either by himself/herself or by retaining an attorney, files what is called a “Form 21″ with the Division. Once this happens, the employer/insurer must file an Answer with the Division within 30 days of receiving notice of the claim from the Division.

 

2. The second way is called the “pro se” claim. Here, the insurance carrier or the third party administrator (TPA) reaches a settlement directly with the claimant without the claimant retaining an attorney.

When this happens, the carrier (through counsel) arranges for a voluntary settlement conference at the Division and counsel for the employer/insurer meets with the claimant at the docket setting.  There, the settlement is presented to the Administrative Law Judge (ALJ) for approval.  The Judge must determine whether the settlement is, as the regulations state: “is in the best interests of the parties”.  Translation – – if the settlement is not what the Judge considers to be “fair”, the Judge can refuse to approve the settlement.

3. The third way “claims” appear before the Division is when the Division, on its own, sets claims on a voluntary settlement conference docket without any request being filed with the Division. Procedurally, if a Report of Injury is filed with the Division (more on that later), and nothing else happens, the Division will set a claim on a voluntary settlement conference docket to determine if the claimant needs any further or additional medical care, or to determine if the parties wish to reach a settlement.

SUSPENSION OF BENEFITS

1. Suspension of Temporary Total Disability

“Temporary disability awards are intended to cover a healing period.  Temporary total disability is to be granted for the time prior to when to employee can return to work…neither temporary total disability nor temporary partial disability is intended to encompass disability after the condition has reached a point where further progress is not expected.”  Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo.App. 1985).

General principles regarding suspension of benefits:

Employer may suspend benefits when its obligation “to cure and relieve from the effects of the injury” are satisfied.

• “Maximum medical improvement” does not guarantee the employee is able to return to work.

 

• Returning to work does not necessarily mean that the employee has reached “maximum medical improvement”.

 

• When the claimant fails to appear for an Independent Medical Exam (see :Return Injured Workers to Work” herein)

B.   Documentation and Reporting

1. Maintain Complete Personnel Files

Proper documentation in personnel files is important for a variety of reasons.  For example, whether an employee is terminated for cause may be highly significant in many aspects of employment law, including workers compensation.  Many employers are hesitant to discipline an employee during the pendency of a workers’ compensation case for fear of a workers’ compensation retaliation claim.  If an employee is disciplined, proper documentation is necessary to refute any claim by the disciplined employee that such discipline was as a result of the employee seeking workers’ compensation benefits.

In addition, document any physical difficulty a claimant has in performing any task.  If a claimant has pre-existing work restrictions, this may allow an employer to take a credit for pre-existing work disability.  The most common argument used by claimants against such a credit is that the prior condition had resolved and the restrictions were no longer valid.  By documenting any difficulty in performing a task in the employee’s personnel file, such claims can be refuted.

2. Require Immediate Reporting of Any Accident

During orientation, all employees should be advised of your requirement that all accidents be immediately reported.  Employees should be required to complete a written report of injury.  Written documentation that the employee received this instruction, preferably signed by the employee, should be maintained in the employee’s personnel file.  Prompt reporting of accidents is vital to ensuring that the claimant receives proper medical care and that accidents may be properly investigated.  Moreover, if an employee fails to report an accident but later argues he or she was unaware of the notice requirement, proper documentation of instruction will be helpful in establishing a notice defense.  And finally, a written report of injury should be required so that the employee cannot claim that they gave verbal notice of the accident to another employee.

An employee’s failure to immediately report any accident should be documented in the employee’s personnel file.  In addition, supervisors should be trained in the importance of encouraging notice of accidents and advised of their role in immediately forwarding any report of accident to the person designated to accept such reports.  Any reports that supervisors are discouraging reporting of accidents should be promptly investigated and written records should be kept of the investigation.  Complete accident reports and file them with the Division of Workers Compensation or the Illinois Industrial Commission.

3. Statutory Requirements for Reporting a Work Injury

An employee must report a workplace injury or accident within thirty (30) days. §287.420, RSMo provides in pertinent part:

“No proceedings for compensation 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, have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the division or the commission finds that there was good cause for failure to give the notice, or that the employer was not prejudiced by failure to receive the notice. No defect or inaccuracy in the notice shall invalidate it unless the commission finds that the employer was in fact misled and prejudiced thereby.”

Practice Point: Please note that it is very difficult to win a case in Missouri based upon a “lack of notice” defense alone. Therefore, despite the language in the statute, an employer should typically not rely on a notice defense and waive all of its other rights under the Act, such as controlling medical treatment, unless another defense can be combined with a notice defense to provide more assurance of a favorable outcome.

An employer must report workplace injuries and accidents to the Division of Workers’ Compensation within thirty (30) days after it acquires knowledge of the injury.  §287.380, RSMo provides in pertinent part:

“Every employer or his insurer in this state…shall within 30 days after knowledge of the injury, file with the division…a full and complete report of every injury or death to any employee for which the employer would be liable to furnish medical aid, other than immediate first aid which does not result in further medical treatment or lost time from work…”

An employee may file a workers’ compensation claim against his/her employer within two (2) years of the injury, or within two years of the last payment made for medical treatment. § 287.430, RSMo provides in pertinent part:

“Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefore 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 the injury or the death is not filed by the employer as required by §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. The filing of any form, report, receipt, or agreement, other than a claim for compensation, shall not toll the running of the periods of limitation provided in this section…”

Note that if the employer fails to file the report of injury with the Division within 30 days, the statute of limitations is increased to three years. Also note that in occupational disease cases, the statute of limitations does not begin to run essentially until the employee is advised by a physician that his disease is medically causally related to his employment.

If an employee feels that he/she is not receiving proper benefits, the employee may file a Hardship Hearing request pursuant to  §287.203 RSMo. The hearing must be held within 60 days after filing. Administrative law judges are given the power to award the “cost of recovery’ to the prevailing parties. It has been held that “cost of recovery” includes attorneys’ fees.

C.   Investigating Injuries

1. Determine if Immediate Medical Care is Necessary

Providing medical care is the first, and some would say the most important aspect of the Workers Compensation Act.  If the claimant requires immediate care, then immediate care should be provided.

Unless the employer has irrefutable evidence that the injures are not work-related, immediate medical care should be provided if such care is required.

Why?  Because in Missouri, if the employer refuses medical care, the claimant is then allowed to obtain his/her own medical care, is allowed to self-direct the medical care and choose any provider that he/she wants, and the employer/insurer MUST then pay for that unauthorized and self-directed care if the Administrative Law Judge finds that the unauthorized and self-directed medical care is medically-causally related to the work injury.

It is better for an employer to direct and authorize the emergency or immediate medical care and then investigate the claim in the absence of IRREFUTABLE evidence that the claim is not work-related.

2. Promptly Identify and Interview Witnesses

In questionable claims, a claimant’s testimony is often un-refuted. While it is true that a claimant has the burden of proof, if a claimant testifies that he sustained a work-related injury and this testimony is un-refuted, the claim will almost always be found compensable, even if the circumstances of the claim are questionable. If there is reason to question a claim, prompt identification and interviewing of witnesses will help determine if the claim should be disputed, and will help with the defense.

During the claim investigation process, the employer should:

• Find out what the claimant was doing BEFORE the alleged accident, and obtain a precise and detailed account of how the accident allegedly occurred.
• Be sure to note if the employee was doing nothing and just felt pain.
• Obtain a precise and detailed account of what the employee did AFTER the injury occurred.
• Obtain a precise and detailed account of all injuries, the specific body parts that the employee claims are injured, and whether he has ever injured these areas before.  (Gordon v. City of Ellisville)
• Find out if the employee was injured in an area of the facility that the employee should not have been in, or injured doing a type of work he/she should not have been doing.
• Find out from the employee if anyone witnessed the accident.
• Determine the precise time of the accident, and how much time passed from the time of the accident to the time the accident was reported.
• Talk to co-employee’s after the accident to find out the identity of any additional witnesses as well as background on the character of the employee.
• Listen to the “grapevine”…see if anyone has heard the employee making statements to co-employees about his accident, his financial condition, his anger against the company, or his desire to “stick it” to the company.
• Determine if any health and safety rules or regulations were violated.
• Determine if horseplay or fighting could have been involved in the accident. (IC Decision April 2017)
• Find out if the employee TOLD anyone about the accident…even if those people may not have actually seen the accident.

3. Accident Report

An accident report MUST be prepared.  Otherwise, anything and everything alleged by the claimant is likely to be simply accepted as true.  In this accident report, write as much as possible in that report, including:

• The exact words used by the employee to describe the accident and the body parts injured in the accident. Put those statements in quotes for use in subsequent depositions.
• Have the employee sign the accident report if he is able. (Admission)
• Be sure to include in the accident report the alleged time of the accident, and what the claimant was doing both before and after the alleged accident.
• Also include the claimant’s supervisor name and contact information for later use and investigation.

Set Off for Failure to Use Safety Devices or Failure to Follow Safety Rules

The Workers Compensation Act allows an employer/insurer to reduce the benefits owed to claimant if he/she fails to use safety devices or if the claimant fails to follow safety rules.

• §287.120.5 – “Where the injury is caused by the failure of the employee to use safety devices (or to obey safety rules)…the compensation and death benefits…shall be reduced at least 25% but not more than 50%.”

Practice Point – make sure to document as soon as possible any violation of safety rules or any failure by the claimant to use safety devices so that TTD benefits can be reduced from outset.

Use of Drugs or Alcohol

The Workers Compensation Act also allows an employer/insurer to reduce the benefits owed to claimant, or even deny the claim, if the claimant had drugs or alcohol in their body at the time of the accident.

• §287.120.6 – “Where the employee fails to obey any rule or policy…related to a drug-free workplace…the compensation and death benefit provided for herein shall be reduced 50% if the injury was sustained in conjunction with the use of alcohol or non-prescribed controlled drugs”

This means that if the claimant had alcohol in his system at less than the legal limit for alcohol (0.08) or any recreational or illegal drugs, he/she is still entitled to medical care.  However, TTD and PPD/PTD benefits can be reduced by 50%.

Presence of Alcohol Above the Legal Limit

• §287.120.6(3) – “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…was the proximate cause of the injury (and)…shall result in the forfeiture of benefits under this chapter”

As such, if the claimant has alcohol in his system at 0.08 or higher, the entire claim can be successfully denied.

Drugs and Alcohol Summary

• If ANY non-prescribed drugs OR alcohol at less than 0.08% BAL, are in the Employee’s system AT THE SAME TIME AS the injury, medical is still paid but compensation is reduced 50%.

 

• If alcohol is in the system at 0.08% BAL or more, all benefits are forfeited.

 

D.   RETURNING INJURED WORKERS TO WORK

 

1. When is the employee required to return to work?

The employee is never actually required to return to work. However, once the treating physician has either given the employee restrictions which can be accommodated by the employer or has given the employee a “full duty” release, the employer is no longer obligated to continue to pay either TTD or TPD benefits. Note that if the employee is given light duty, the employer has the obligation of notifying the employee that light duty work is available.

2. What is required of the employer if the employee refuses to return to work?

If the employee has been released to return to work as in paragraph 1, above, the employer is no longer required to continue paying temporary benefits. The employer should notify the employee in writing that failing to return to work can be grounds for discipline, if your policy so provides. If, however, the employee seeks medical treatment on their own and brings in a conflicting note from another physician stating that the employee cannot work, the employer should proceed cautiously. It is always best under those circumstances to obtain a copy of all of those medical records and forward them to the authorized physician for his review and comment.

3. Is an employer required to make light duty accommodations for an injured employee?

No, the employer is not required to make light duty available for an employee with restrictions. However, if the employer is unable to accommodate the light duty restrictions and the employee has not yet reached “maximum medical improvement”, the employer will be required to continue paying TTD benefits.

 TTD MAY Stop if Employee is Terminated For Cause

Often, when employees return to work, the employment is subsequently terminated for cause for violation of company policy.  This can include violation of any company policy that would normally result in termination, including but not limited to:

• Insubordination
• Failure to return to work
• Using drugs or alcohol on the job
• Fighting
• Horseplay
• Etc.

If the claimant is terminated for cause, his/her entitlement to TTD benefits stops.

• §287.170.4 – “If the employee is terminated from post injury employment based upon the employee’s post injury misconduct, neither TTD nor TPD benefits…are payable. As used in this section, “post injury misconduct” shall not include absence from the work place due to an injury unless the employee capable of working with restrictions, as certified by a physician.”

No TTD While Receiving Unemployment Benefits

Frequently, for various reasons, an employee is considered “laid off” or even “terminated” following a work injury.  If that employee then files for an receives unemployment benefits, the employee is NOT entitled to TTD benefits for any period of time during which he/she received unemployment benefits.

• §287.170.3 – “an employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation.”

Author Notes

J. Bradley Young, with Harris Dowell Fisher & Young, has almost thirty years of experience in all aspects of workers compensation defense. Mr. Young has spoken before corporate organizations and at in-house client seminars for many years, and frequently lectures for nationally-known seminar companies on topics relating to workers’ compensation claims, employer liability, and third party administration of claims.

He is a Top Contributor for multiple workers compensation LinkedIn Groups, and is a regular columnist for both WorkersCompensation.com and InsuranceThoughtLeadership.com.

Mr. Young is also an on-air legal analyst for local radio station KMOX, Television station KTVI Channel 2, and writes monthly articles for journals and magazines on a wide variety of legal topics.

Mr. Young can be reached at (636) 532-0300, at www.harrisdowell.com , or by email at [email protected]