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Articles & Updates

Missouri DWC Replaces COVID-19 Emergency Presumption Rule

by James Kennedy

MISSOURI DWC REPLACES COVID-19 EMERGENCY PRESUMPTION RULE WHICH EXPIRED ON FEBRUARY 1, 2021 

THE NEWS: 

The original COVID-19 presumption rule, 8 CSR 50-5.00, which became effective April 22, 2020, expired on February 1, 2021*. However, on January 15, 2021, the Missouri Division of Workers’ Compensation adopted Emergency Rule 8 CSR 50-5.007, which replaces the expiring original Rule. To appreciate the impact of this action, understand that:

  •   The new Rule is a duplicate of the Rule which was expiring, except that it contains some clarifications of the original Rule. 
  •   The official title of the new Rule is: “Evidence of Occupational Disease Exposure for First Responders.” It is tied to the provisions of Section 287.243, the Line of Duty Compensation Act. 
  •   That is, the Emergency Rule adopts the definitions of covered employees contained in Section 287.243.
  •    The new Rule again limits coverage to selected first responders, those in the “Line of Duty” who are Air Ambulance pilots, Air Ambulance Registered Professional Nurses, Emergency Medical Technicians, Firefighters (including volunteer firefighters) or Law Enforcement Officers.** 
  •    It is still not the sweeping COVID-19 emergency measures that have been adopted in some states which extend to all types of medical personnel, even in some states to non-medical employees, such as retail sales people, and other employees whose work exposes them to a high risk of infection due to the where and what of their jobs. 

The New Rule:

  •     It provides that the employer may complete a document titled “Affirmation of Employer -- Scope of Employment of First Responder Employee”. It reads as follows: “By signing this form I affirm by personal knowledge or belief that the individual named below is a First Responder as defined in Section 287.243 and that such individual’s duties arising in the normal scope and course of his/her employment do require and cause in-person interactions with the public, in a manner not typically required of the general public, as to expose him/her to COVID-19 and that such individual did perform such duties during the time of the declared state of emergency”.
  •    The form then goes on to state that: “This form shall constitute evidence that may be offered in a proceeding under Chapter 287.”
  •     The Affirmation must then list the employee, the employer’s representative and then be signed and notarized.
  •    The Rule confirms that the Affirmation shall constitute evidence which can be used in any Chapter 287 proceeding and may be relied upon as sufficient competent evidence of a finding that the occupational disease arose out of and in the course of the employee’s employment and that such occupational exposure was the prevailing factor in causing the resulting medical condition, disability and/or death.
  •      The presumption shall not apply if there is a subsequent medical determination that the First Responder did not contract COVID-19.
  •       Notwithstanding the affirmation described above, if the weight of sufficient competent evidence shows that the First Responder’s COVID-19 resulted from exposure not related to their employment, the claim shall not be compensable.
  •      The Rule expires on July 30, 2021. 

The Take Away:

 The COVID-19 Emergency Rule is of great interest and importance to those stakeholders who handle claims against State and local governmental units or otherwise deal with First Responders who are covered by Section 287.243, but it clearly appears to be limited to the categories of employees set out in that section.

 Comments: Always keep in mind that Section 287.067.7 states: “(A)ny 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 this chapter as an occupational disease”. This provision is always available for any employee who contracts COVID-19, but who is not a first responder as defined in 287.243, although establishing the “arising out of and in the course of employment” element can be a great challenge when dealing with a pandemic virus, a virus to which employees can be easily exposed in their non-employment life.

 *For a detailed discussion of the original COVID-19 Emergence Rule, please see the article posted on April 17, 2020, available on the Publications & Resources, Articles & Case Updates, page of this website.

 **Section 287.243 applies only upon the death of the First Responder and provides for a limited lump sum payment from a special find created for this purpose.

 Questions or Comments: Contact Jim Kennedy at 314-552-4020 or email at jkennedy@evans-dixon.com

 

 

 

 

 

Copyright: Evans & Dixon, LLC, 2021

 

 

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