The 2017 legislative session saw many workers’ compensation bills filed in both the House and Senate. However, they all boiled down to Senate Bill 66 (“SB66”). SB66 modifies eleven existing sections of The Missouri Workers’ Compensation Law (Chapter 287.010, et. seq.). Governor Greitens signed the Bill on July 5 and it will become effective on August 28, 2017. Each significant amendment will be cited and discussed below.
Sec. 287.020 (Definitions):
- Adds a new subjection, 287.020.12, which now defines the phrase “maximum medical improvement” (MMI) to be the “. . . point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty.”
- Comment: This addition is intended to address the issues which have arisen over claims for ongoing lost time benefits after maximum medical improvement has been achieved.
Sec. 287.037 (Limited Liability Companies):
- Allows certain shareholders of Chapter S corporations to opt out of workers’ compensation coverage.
Sec. 287.120.6 (Liability of Employer – benefit reduction due to failed drug or alcohol testing):
- A positive drug test for a nonprescribed controlled drug or its metabolites raises a rebuttable presumption that the injury was sustained “in conjunction with” the use of the drug.
- It requires testing within 24 hours of the injury, that notice of the results must be given to the employee within 14 days of when the employer received notice of the positive results, the employee must be given an opportunity to do second test on the original sample, and the positive result must have been confirmed by mass spectrometry using generally accepted medical or forensic testing.
- Comment: the inclusion of metabolites is a modest improvement as is the presumption on the issue of “in conjunction with”, but the new language doesn’t go far enough to address the issues which have been encountered at trial in defending based upon this section.
Sec. 287.149 (Part of the vocational rehabilitation law - Secs. .144-149):
- States that temporary total or temporary partial disability benefits shall be paid throughout the rehabilitative process “ . . . until the employee has reached maximum medical improvement, unless such benefits are terminated by the employee’s return to work or are terminated as otherwise specified in this chapter.”
Sec. 287.170 (Temporary total disability):
- Provides that if an employee “voluntarily separates” from employment when the employer had work available that was in compliance with any medical restrictions imposed within a reasonable degree of medical certainty due to the injury, then no temporary total nor temporary partial disability shall be paid.
- Comment: What constitutes voluntarily separation? What happens where there is more than one set of restrictions?
Sec. 287.203 (Hardship hearing docket settings):
- Shortens the time in which the hearing must take place from 60 to 30 days.
Sec 287.240 (Death Benefits):
- Amends the definition of dependent child to include “any stepchild claimable by the deceased on his or her federal income tax return at the time of injury . . . .”
Sec. 287.243 (Line of Duty Compensation Act):
- Makes significant additions to the section which provides compensation for the work related death of a first responder.
Sec. 287.280 (Insurance/self-insurance required for all employers):
- Provides minimum premium payments for new trust self-insurers and new trust members and broadens the investment of surplus options available to self-insurance trusts.
Section 287.390 (Compromise settlement provision):
- After a “claimant” (undefined) has reached MMI, and a settlement offer has been made based upon the employer’s physician’s disability rating, the claimant shall have a period of 12 months to acquire a rating of their own. Otherwise, any settlement shall be based upon the initial rating, absent “extenuating circumstances” (but this provision can be waived by the employer).
- Comment: this amendment was intended to expedite the resolution of cases but as written is almost unfathomable. It will create more problems than it solves.
Section 287.780 (Civil action for damages due to discrimination for exercising WC rights):
- Adds the requirement that the exercise of rights must be the “motivating factor” in causing the discriminatory action taken by the employer, with additional language defining motivating factory.
- Comment: In the past, as established by case law, the standard of proof required the employee to establish that the exercise of rights was the “exclusive factor” in causing the discrimination. Then the Missouri Supreme Court adopted a new standard, the “contributing factor” standard, and this amendment was in reaction to that case decision. Many in industry wanted either a return of the prior exclusive factor standard or failing that, the adoption of a “prevailing factor” or “dominant factor” standard which is seen as more stringent that “motivating factor”. We hope that this new standard will be interpreted and more restrictive than contributing factor.
What pressing need was not addressed in SB 66? Answer: the need to deal with the employee’s ability to obtain an award of their full medical expenses without regard to their actual cost or remaining liability.
Question or comments? Contact James B. Kennedy at firstname.lastname@example.org, (314) 552-4020, or your regular Evans & Dixon Workers’ Compensation contact attorney.
Copyright: Evans & Dixon, L.L.C., 2017