SB 829 - This act makes the following changes to the Missouri Workers' Compensation Law:

1. It narrows the definition of injury by requiring work to be the "major" factor as the cause of the injury for the injury to be compensable. To be the major factor would mean that the work comprised more than 50% of all the factors combined which caused the injury. An injury, including an injury resulting directly or indirectly from idiopathic causes, is not compensable as a triggering or precipitating factor. Ordinary and gradual deterioration of the body caused by aging or normal, day-to-day activities are not directly caused by the employment. Compensability is not allowable for aggravation of a preexisting condition except to the extent that the work-related injury increases disability.

2. Currently, under the Workers' Compensation Law, any reference to the employer also includes his insurer. Under this act it would also include a group self-insurer.

3. Under current law, contractors are secondarily liable for the employees of subcontractors if the subcontractor had not insured the employee. The contractor, or secondary employer, is not liable if he maintains on file copies of current certificates of insurance from his subcontractors. A certificate of insurance shall provide that the holder be notified ten days prior to its cancellation or revocation.

4. The injured worker, the last employer and any prior employers of the injured worker may join any other prior employer to determine if there was repetitive motion exposure and to determine where the liability lies. If the injured worker does not cooperate in testifying to the facts surrounding a repetitive motion injury, the administrative law judge shall suspend all rights to workers' compensation benefits for that injured worker.

5. Currently, an employer is liable for an employee's injury or death resulting from an accident arising out of and in the course of employment, but the employer is released from all other liability. Under this act an employer's release from liability would include any of the employer's unintentional acts, under any theory of liability.

6. The exclusive remedy doctrine of the Workers' Compensation System is expanded to exempt co-employees, as well as the employer, from tort liability.

7. The act clarifies that safety measures adopted by an employer pursuant to a safety plan adopted by the insurer, if not obeyed or followed by an employee, shall result in a 15% reduction in benefits if such failure to obey the safety requirements results in an injury.

8. Currently, workers' compensation does not cover voluntary participation in recreational activities. This act also would bar compensation for injury or death resulting from voluntary participation in exercise activities or social events, regardless of whether it occurs on the employer's premises.

9. The act bars compensation if the injury was a result of horseplay, unless the employer had actual knowledge and did not take disciplinary action or the employer condoned it.

10. The penalty for filing a fraudulent Workers' Compensation claim by a provider is a Class A misdemeanor and subject to a fine of $10,000 or two times the value of the fraud, whichever is greater.

11. Managed care organizations certified by the Department of Insurance before August 28, 1993 must obtain recertification under criteria set by the Department.

12. Permanent disability assessments must be based upon objective medical evidence.

13. Currently, when a third party is liable to the employee or dependents for injury or death, the employer's right is subrogated to the employee/dependents, and any recovery by the employer is apportioned between the employer and employee. Under this act, any recovery by the employer in excess of employer-paid compensation and recovery expenses, shall be paid to the employee/dependents and is treated as an advance payment by the employer for any future payments of compensation. Under current law, if the liability for death and compensation is paid, the employer receives the sum paid for wrongful death. Under this act, the employer receives the sum, regardless of whether the dependents are entitled to share in the proceeds. In addition, current law, which voids contract language waiving subrogation rights involving employers in construction, is removed.

14. An employer may initiate benefit payments before a claim is filed but a voluntary payment is not an admission of the validity of the claim.

15. Any workers' compensation payments to the employee for temporary total/partial or permanent total disability shall be reduced by the amount of any retirement benefits received by the employee under Social Security, or any other retirement or pension benefits provided by the employer.

14. Temporary total, temporary partial or permanent total disability benefits cannot be paid if the injured worker is receiving unemployment compensation benefits.

15. A provision enacted in 1993 required an employer who terminated benefits to notify the injured worker of such termination and the reasons for such termination and allowed the injured worker to request a hearing on the termination. This provision is repealed in this act.

16. An injured person shall be examined by a vocational expert to determine whether he can be rehabilitated. The vocational expert need not be a physician and his testimony shall be admissible. The testimony of a physician or a vocational expert shall be admissible as in civil cases. Costs of depositions shall be borne proportionally by the parties based on the total number of pages. The cost of expert witnesses should be paid by the party incurring costs and shall act as a lien against the party.

17. Currently, if an employer fails to insure or self- insure as required, funds from the second injury fund may be used to cover necessary expenses of the injury, or of the death of the employee. This act would limit such necessary expenses to medical expenses in the case of injury, and funeral expenses in the case of death.

18. The definition of "dependent" as it pertains to a dependent of a deceased employee, would be modified to exclude a child when that child marries.

19. When an injured worker with multiple employment is entitled to temporary total disability benefits, the employer for whom the employee was injured is liable for compensation only to the extent that the employer would have to pay if he was the sole employer of the injured worker. The difference between that employer's liability and the full amount of compensation due shall be paid by the Second Injury Fund.

20. Currently, compensation payable other than for medical expenses and therapy is assignable for child support obligations. This act also makes it assignable for spousal maintenance.

21. Caps are placed on attorney fees for any compensation claim. An attorney's fee shall not exceed the lessor of: a reasonable amount for such services, or 25% of an amount recovered less than $10,001, 20% of an amount between $10,001 and $20,001 and 15% of an amount greater than $20,001, in addition to actual expenses incurred. The maximum amount in permanent disability or death cases is $25,000. No attorney fees for medical bills or temporary total disability compensation shall be charged unless a proper payment amount is refused or the employer terminates payment and the compensation is obtained/reinstated by the attorney. Any claim in which there is no material issue in dispute prior to attorney representation, or where the amount to be paid in compensation is less than the employer's offer prior to attorney representation, attorney fees shall not exceed a reasonable amount for time actually spent by the attorney, as decided by an administrative law judge or Commission. Attorney fees are recoverable only out of the compensation actually paid, except that additional, reasonable attorney fees shall be paid for subsequent representation for review and modification for additional benefits. An attorney found by an administrative law judge to be in violation of the attorney fees requirements shall be required to make restitution.

22. Temporary total and partial disability payments made for persons eligible for public assistance are no longer considered to be a debt due to the state.

23. A provision was enacted in 1993 that changed the injury reporting requirements for injuries costing less than $500 in medical costs. This act repeals that provision and puts the reporting requirement for those injuries back to what they were prior to 1993.

24. Administrative law judges are prohibited from referring either party to a claim to any attorney or physician except in cases where the judge appoints an impartial physician to examine the injured worker to determine the extent of liability. If a judge should make a prohibited referral, the Division shall recommend to the Governor termination of the judge. This prohibition also applies to all employees of the Division of Workers' Compensation. The Division shall not refuse to approve a compromise settlement.

25. Administrative law judges are required to hear all evidence in a disputed claim within 30 days of the commencement of the hearing and issue a written award within 30 days after hearing the last of the evidence.

26. Currently, proceedings before the Commission or any commissioner are simple, informal, summary and without regard to the technical rules of evidence. Under this act, administrative law judges, the Commission or any commissioner and appellate courts shall conduct proceedings according to the rules of evidence.

27. Applications and notices of appeal may be filed by fax, with an original with additional, required copies mailed on the same day.

28. Records in compensable cases, which must contain certain reports, treatment records and copies of settlements, shall be available for at least 10 years for future determination of any preexisting conditions. Any party to a workers' compensation or personal injury case shall have an absolute right to inspect and copy those records.

29. No notice of hearing is required in any claim before the Commission which is dismissed for failure to prosecute; rather the claim shall be dismissed by the judge by a written order sent by certified mail.

30. After the effective date of the act any claim for compensation for which no hearing has been conducted for three years after the claim for compensation was acknowledged by the Division shall be dismissed.

31. Any injured worker who fails to keep a second regularly scheduled medical appointment for treatment related to a claim of injury shall reimburse the physician for an appropriate amount for the physician's time. If the employer or insurer pays for the unkept appointment then the injured worker must reimburse the employer or insurer out of any settlement proceeds.

32. Current Workers' Compensation Law requires that the provisions of that law be construed liberally. This act changes that to require that the provisions of the law "be impartially construed with a view to the public welfare."

33. The Division of Workers' Compensation shall establish an independent advisory panel, consisting of two persons from the business community and eight licensed, clinical experts, to review and to provide guidance to the Division regarding the Division's database to assess current trends or patterns in occupational injuries and illnesses, and the costs associated. The Division shall establish specific quality of care and utilization methods based on the advisory panel's recommendations. A independent review organization, made up of four persons from the business community, one representative of labor and two licensed, clinical experts shall provide an independent written assessment to the division if an individual circumstance warrants it. This assessment shall be incorporated into the claims adjudication process.

This act is similar to SB 32 (1995).
MARGARET TOALSON