The Workers' Compensation Law of the State of Missouri was enacted in 1926. Prior to that time, the only remedy available to an injured worker was a suit in court. This "remedy" that time, the only remedy available to an injured worker was a suit in court. This “remedy” was too frequently no remedy at all. The cost of court proceedings was often prohibitive. Technical defenses were often successfully used to prevent recovery of damages. It frequently took many years before a judgment could be obtained and collected, if at all.
The underlying aim of workers' compensation laws was to make the cost of industrial accidents and diseases, with resulting deaths and disabilities, regardless of their causes, a charge upon industry, which ultimately passes it on to the consumer as part of the cost of its product.
The Missouri Workers' Compensation Law (hereafter, “ACT”) has been of great benefit to workers; but it has fallen far short of providing adequate compensation to injured or disabled employees or their dependents in case of their death.
AS OF AUGUST 28, 2005, SUBSTANTIAL CHANGES TOOK AWAY ACCESS TO COVERAGE FOR TRADITIONALLY COVERED INJURIES AND DISEASES. EVEN IF COVERED UNDER THIS NEW LAW, BENEFITS WERE REDUCED. IT IS UNLIKELY THAT ANYONE SUFFERING A JOB RELATED INJURY WILL HAVE ACCESS TO FULL MEDICAL CARE AND TO PROTECTION FROM THE ECONOMIC RUIN CAUSED BY THE JOB RELATED DISABILITY.
It was the intention of the Workers' Compensation Law to make the remedy so simple that an injured employee would not be obliged to have any particular knowledge of its provisions or to retain an attorney in order to safeguard his rights. However, in practice, unless an employee is familiar with the provisions of the Act, the employee seldom receives the benefits which are legally due him. If a case is the least bit complicated or unusual, it is virtually indispensable for an employee to have a lawyer to represent him. Many of the intended benefits of the Act have vanished in a maze of legal opinions.
1 Hereafter, all references to “him” shall refer to both male and female gender.
The purpose of this pamphlet is to advise workers of their rights under the Workers' Compensation Law of Missouri, and what should be done to safeguard them. It must necessarily be general in its nature and serve as a guide in situations most commonly arising under the Act. Specific cases cannot be covered nor can it be said with assurance that the present interpretation of any provision will not be altered by future decisions.
When you have a specific problem about which you are doubtful, CONSULT YOUR COMMITTEE PERSON OR STEWARD. If your right to compensation has been denied by your employer, do not accept his decision as final. CONSULT YOUR UNION COMMITTEE PERSON, SHOP STEWARD, OR ATTORNEY.
Employers with five (5) or more employees (except that in the construction industry, an employer comes under the law if he has one or more employees) are required to carry Workers' Compensation insurance under the Missouri Workers' Compensation Law. Employers not engaged in hazardous operations, who have less than five employees regularly employed, may come under the Act by filing an acceptance with the commission and posting notice thereof in accordance with the law.
1. MAY I ELECT NOT TO COME UNDER THE ACT?
NO, unless you are a member of a specific religious group which meets specific guidelines.
2. HOW CAN I FIND OUT IF MY EMPLOYER HAS WORKERS' COMPENSATION COVERAGE?
The Missouri Division of Workers' Compensation will advise you of the status of any employer if you write them at P.O. Box 58, Jefferson City, Missouri 65102. Or call toll-free at 1-800-775-2667.
3. IS THERE ANY WAY OF FORCING AN EMPLOYER TO BECOME SUBJECT TO THE ACT?
NO. However, by law, certain employers with five (5) or more employees (construction industry employer with one employee), who reject the Act are denied certain valuable defenses if they are sued for damages.
4. IF MY INJURY AT WORK IS CAUSED BY THE NEGLIGENCE OF A THIRD PARTY, CAN I SUE HIM/HER?
If there was any fault or negligence by anyone other than your employer which contributed to your injuries, you may have a third-party wrongful act, or tort claim against that individual or company. This third-party claim would be in addition to your rights under the Workers' Compensation Law. If you recover damages from a third person, you may be required to first pay back to your employer all or a portion of the sum which it has paid out, but you are entitled to any excess over and above that amount.
5. DO I HAVE TO SHOW THAT MY EMPLOYER WAS AT FAULT IN ORDER TO COLLECT FROM HIM UNDER THE COMPENSATION LAW?
NO. Recovery under the Workers' Compensation Law is irrespective of any negligence upon the part of the employer. Negligence is no longer a factor under the Act.
6. IF MY EMPLOYER IS COVERED BY THE ACT, CAN I SUE HIM FOR DAMAGES?
POSSIBLY. Traditionally, your sole remedy was under the Act. It is unclear if you may sue under the latest changes to the Act. However, the recent Missouri Supreme Court decision in MARA v. DOLIR has opened the possibility of allowing you to sue your employer when it denies the compensability, or work-relatedness of your injuries. Those injuries which are no longer covered by the Act, suggest that you can now sue your employer for those injuries, albeit in a civil court. Some occupational diseases and cumulative trauma injuries may be possible to pursue as a civil lawsuit. You will need to speak with an attorney if you have any questions.
7. HOW LONG DO I HAVE TO BE EMPLOYED TO BE COVERED BY WORKERS' COMPENSATION?
You are covered as soon as you begin your employment.
In order to be covered by the Workers' Compensation Act in Missouri, there must have been an "accident" "arising out of" and "in the course of" your employment that results in injury or death. The term "accident" is defined as an unexpected or unforeseen event happening suddenly and violently with or without human fault and producing at the time objective symptoms of an injury. The term "injury" means violence to the physical structure of the body and such disease or infection as naturally results from that. An injury alone does not constitute an accident. The terms "accident", "arising out of" and "in the course of" are legal in nature and have been the subject of literally hundreds of cases, although recent changes have eliminated the holdings of many of those cases. An injury is deemed to be covered, if it is incidental to and not independent of the Employment, and work is the prevailing factor in causing both the resulting medical condition and disability.
8. FOR WHAT INJURIES CAN I RECOVER COMPENSATION?
You may be eligible for all injuries caused by accident arising out of and in the course of your employment.
9. MUST MY DISABILITY BE THE RESULT OF THE ACCIDENT ALONE, INDEPENDENT OF ALL OTHER CAUSES?
NO. Your employer may also be held liable where your accident aggravates a pre-existing disease or condition, but it must be a prevailing factor in causing the injury. Your age may work to reduce your benefits under the newest changes.
10. ARE ALL INJURIES WHICH ARE SUSTAINED AT WORK COMPENSABLE UNDER THE ACT?
NO. It is possible for an injury to arise in the course of employment, but not arise out of it. However, the exceptions are rare. If you have such a case for which I you do not receive benefits, it would be well to consult your committee person, shop steward or attorney.
11. WILL DRINKING PREVENT ME FROM GETTING COMPENSATION?
If the employee fails to obey any rule or policy of the employer regarding alcohol or non-prescribed drugs, any compensation may be reduced by 50%. If the use of alcohol or non-prescribed drugs in violation of the employer's rule is the prevailing cause of the injury, then Workers' Compensation benefits shall be forfeited.
12. WHAT ACT OF MINE WILL PREVENT ME FROM GETTING COMPENSATION?
You cannot get compensation for an injury that is intentionally self-inflicted, but the burden of proof is upon the employer.
WHAT TO DO WHEN INJURED
When you are hurt on the job you should report your injury and the accident which caused it immediately to your foreman, first aid person, or such other person who is the proper party designated by your employer. Not only should this notice be given immediately in order that you might receive the necessary medical attention, but your injury will then be on record. The Act requires that you give notice in writing within thirty days of the date of the accident. However, if your employer has actual notice of the injury, written notice may be unnecessary although you may have to prove this.
13. WHAT ELSE SHOULD I DO TO PROTECT MY RIGHTS?
You should also obtain the names of any witnesses to your accident and their addresses and keep this information.
14. IF A REPRESENTATIVE OF MY EMPLOYER WRITES DOWN THE DETAILS OF MY ACCIDENT AND INJURY AND ASKS ME TO SIGN SUCH A STATEMENT, SHOULD I DO SO?
NO. It is only necessary that you notify your employer. You are not required to sign anything. In a number of cases in the past certain employers and their insurance companies have used the device of taking statements for the purpose of building up a defense to the worker's just claim for compensation. Too often the statement becomes a description of what the employer would like to have had happened instead of what actually did occur. Sometimes this is done by failing to question the worker as to the important details of the accident, sometimes by not writing in all facts given by the injured workers and sometimes by actually changing the answers. However, if you wish to make a statement do the following for your own protection:
(a) Be sure that the statement contains your entire story in your exact words and is not just a summary of your story made by the person who takes the information.
(b) Before signing it, take the statement with you and show it to your committee person or steward, so that you may be certain it contains all the true facts of the case. Be sure to read it over carefully before signing it.
(c) Get and keep a copy of the statement.
DO NOT DO THE FOLLOWING:
Do not swear to it.
Do not answer questions about matters not directly concerned with your accident, such as citizenship, draft status, etc.
Remember the Employer does not have the authority under the Act to require you to sign any statement!
15. IF I DISCOVER LATER THAT I RECEIVED INJURIES OF WHICH I WAS UNAWARE AT THE TIME OF THE ACCIDENT, WHAT SHOULD I DO?
You should report these newly discovered injuries as soon as possible. It is a good idea to have this reporting either witnessed, or to have such be written. Recent Courts of Appeal decisions indicate that for purposes of an occupational disease (e.g., carpal tunnel syndrome, repetitive traumas, etc.) that you MUST notify your employer within 30 days of a licensed physician advising you that your condition is work-related. Merely suspecting that your condition is work-related is not sufficient. Once you are notified by your physician that a condition is work-related, the 30 day window to provide notice will begin. If you fail to provide such timely notice, it is likely that your injuries will not be covered under the Act and will be denied by your employer.
16. SHALL I REPORT AN ACCIDENTAL INJURY EVEN IF IT IS A SMALL ONE?
YES, be sure to do so. Many very serious conditions develop from minor injuries. It is most important that you report all injuries and all accidents no matter how small they may seem to you at the time.
17. IS MY EMPLOYER REQUIRED TO MAKE ANY REPORTS CONCERNING INDUSTRIAL ACCIDENTS?
YES. The law requires that your employer make a report to the Division of Workers' Compensation of all accidental injuries within 10 days of the date they occurred. The employer is also required to make such further reports from time to time as the Division may require. If you find your employer is not reporting these accidents as required by law, you should pass this information on to your committee person or steward. If your own claim is involved, notify the Division immediately. The enforcement of the law requiring such reports is solely for the law enforcing agencies of the State of Missouri. Your right to compensation is not affected.
Under the Workers' Compensation Law, you may be entitled to one or more of the following basic benefits:
(1) medical treatment
(3) temporary disability payments
(4) permanent disability payments, and
(5) death benefits.
18. FOR WHAT ACCIDENTAL INJURIES DO I GET COMPENSATION?
You are entitled to receive compensation if your accident results in:
(a) Disability to earn full wages for more than three days; or
(b) Specific loss of a part of your body as outlined in the schedule of losses.
19. SUPPOSE THE ACCIDENT DISFIGURES ME BUT DOES NOT DISABLE ME. AM I ENTITLED TO ANYTHING?
YES. If the disfigurement is to the head, neck, hands or arms, you may collect up to 40 weeks of compensation depending upon the extent of the disfigurement. Generally, our attorneys do not request an attorneys’ fee for disfigurement only cases.
20. IF MY ACCIDENT CAUSES ME PAIN AND DISCOMFORT, BUT I AM STILL ABLE TO WORK, AM I ENTITLED TO COMPENSATION?
NO. Temporary pain and discomfort alone do not entitle you to compensation, unless of course, the pain and discomfort are permanent. However, if the pain and discomfort become so intense that you cannot work, then you are entitled to compensation.
21. WHEN DOES MY COMPENSATION START?
It begins the 4th day following the accident. However, if you are disabled for more than fourteen (14) days, then you are entitled to compensation for the first three days of disability.
22. WHEN MUST MY EMPLOYER MAKE THESE PAYMENTS TO ME?
Compensation is payable as the wages were paid, or at least every two weeks.
23. CAN MY WORKERS' COMPENSATION BE GARNISHED OR ATTACHED?
YES, but only if for child support, alimony, or money owed the Veterans Administration. Workers' Compensation is not subject to ordinary creditors' claims, nor is it considered income. It is not taxable.
24. DOES THE FACT THAT I AM PAID FOR MY INJURY FROM THE PROCEEDS OF AN INSURANCE POLICY PREVENT ME FROM OBTAINING WORKERS' COMPENSATION FOR IT?
NO. No savings, insurance, benefit fund, or protective association payments to you can relieve your employer from paying your Workers' Compensation.
TEMPORARY TOTAL DISABILITY
Total disability is a disability which prevents you from earning any money at some occupation. It does not mean that you must be unable to get around or do some things about the house.
25. IF I AM TOTALLY DISABLED AS A RESULT OF AN ACCIDENT, HOW MUCH COMPENSATION DO I RECEIVE?
On and after each July 1, the maximum weekly compensation is equal to 2/3 of your average weekly wage, not to exceed an adjusted benefit maximum. If you have two or more employments on the date of your accident your income from both can be added to secure benefits up to the maximum amount. Each year maximum benefits are adjusted upwards, dependent upon the State’s average weekly wage. Your benefits are determined as of the date of your accident, and your weekly wage is determined based upon an average of your earnings over the thirteen weeks prior to your accident.
26. HOW LONG DOES MY COMPENSATION RUN IN A CASE OF TEMPORARY TOTAL DISABILITY?
For a maximum of 400 weeks from the date of your accident, which is a little less than 8 years, but only for so long as your inability to work is temporary. Furthermore, the Act was amended to include language that penalizes you if you are terminated from your employment for “post-injury misconduct.” Although this phrase has not been fully defined by the Courts of Appeal or the Supreme Court, it would serve to terminate your TTD benefits even if you were engaged in misconduct having nothing to do with your employment. (§287.170 (4) R.S.Mo.)
PERMANENT TOTAL DISABILITY
Permanent total disability benefits are payments for sustained inability to return to any employment. Ability to compete in the open labor market is a test for determining permanent total disability.
27. IF I AM INJURED SO BADLY THAT I CAN NEVER AGAIN HOLD DOWN A REGULAR JOB, HOW MUCH COMPENSATION DO I RECEIVE?
You will be paid for your lifetime (or the duration of your disability) 66-2/3% of your average weekly earnings for the 13 weeks preceding your injury. The weekly compensation rate in effect at the time of your injury determines the most that you can recover. This maximum changes annually.
TEMPORARY PARTIAL DISABILITY
Partial disability is a disability which permits you to return to some kind of work, either lighter or different from what you were doing at the time of the accident, but nevertheless prevents you from earning as much wages as you did at the time of the accident. It must be of a temporary nature, and most often occurs while you are under a physician’s orders to limit your activities.
28. HOW MUCH COMPENSATION DO I GET FOR PARTIAL DISABILITY?
You will receive, for not more than 100 weeks, 66-2/3% of the difference between your earnings prior to the accident and the amount you are able to earn during the period of your disability, but you cannot receive more than the maximum. This maximum changes annually.
29. DOES IT MAKE ANY DIFFERENCE WHETHER I AM A SKILLED OR UNSKILLED WORKER?
NO. It makes no difference under the Missouri Act whether you are a skilled or unskilled worker. The same rules apply.
30. HOW LONG DO TEMPORARY PARTIAL BENEFITS RUN?
For up to 100 weeks.
PERMANENT PARTIAL DISABILITY
31. WHAT COMPENSATION DO I GET IF I LOSE A MEMBER OF MY BODY?
Your compensation is the number of weeks in the schedule multiplied by your average weekly compensation rate.
The following is the schedule provided by the law:
Nature of Injury
Loss of arm at shoulder 232
Loss of arm between shoulder and elbow 222
Loss of arm at elbow joint 210
Loss of arm between elbow and wrist 200
Loss of hand at wrist joint 175
Loss of thumb of hand at proximal joint 60
Loss of thumb of hand at distal joint 45
Loss of index finger at proximal joint 45
Loss of index finger at second joint 35
Loss of index finger at distal joint 30
Loss of either the middle or ring finger at proximal joint 35
Loss of either the middle or ring finger at second joint 30
Loss of either the middle or ring finger at distal joint 26
Loss of little finger at proximal joint 22
Loss of little finger at second joint 20
Loss of little finger at distal joint 16
Loss of one leg at the hip joint or so near thereto as to preclude use of artificial limb 207
Loss of one leg at or above the knee, where the stump remains sufficient-to permit the use of artificial limb 160
Loss of one leg at or above ankle and below knee joint 155
Loss of one foot, in tarsus 150
Loss of one foot, in metatarsus 110
Loss of great toe of one foot at proximal joint 40
Loss of great toe of one foot at distal joint 22
Loss of any other toe at proximal joint 14
Loss of any other toe at second joint 10
Loss of any other toe at distal joint 8
Complete deafness of both ears 180
Complete deafness of one ear, the other being normal 49
Complete loss of the sight of one eye 140
The amendments to the Act have also added language which, upon its face, would appear to discriminate against older workers. Namely, §287.190.5(3) states that “any award for compensation shall be reduced by an amount proportional to the permanent partial disability determined to be a preexisting disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need of treatment.” In effect, older workers are penalized for the “wear-and-tear” on their bodies, irrespective of whether that deterioration was caused by their work.
Additionally, the Act was further amended to state that in cases where there are inconsistent or conflicting medical opinions, OBJECTIVE findings shall prevail over subjective findings. More simply stated, if a diagnostic test suggests you are not hurt and you continue to complain of symptoms which cannot be found through objective standards, that the objective findings must be given the greater weight. The net effect of this change is to reduce the weight that a judge may consider when an MRI, X-ray, etc., are interpreted to read that you are not truly hurt.
32. IF I CONTINUE WORKING AFTER LOSING ONE OF THE ABOVE-MENTIONED PARTS OF MY BODY, DO I STILL GET COMPENSATION FOR THIS LOSS?
YES. You don't have to have any loss of wages in order to get compensation for specific loss.
33. IF I DO NOT HAVE A LOSS BY AMPUTATION BUT DO SUFFER A LOSS OF USE OF A MEMBER, AM I ENTITLED TO COMPENSATION?
YES. Loss of use is considered the same as loss by separation or amputation.
34. SUPPOSE I LOSE PART OF THE USE OF A MEMBER OF MY BODY. AM I ENTITLED TO COMPENSATION?
YES. You would be entitled to a proportionate number of weeks of compensation, depending upon the percentage loss of use.
35. CAN PAYMENTS MADE TO ME FOR TEMPORARY DISABILITY BE DEDUCTED FROM THE AMOUNT OWED FOR A PERMANENT LOSS?
36. IF MY DISABILITY BECOMES A PARTIAL LOSS OF MY ENTIRE BODY, HOW MUCH COMPENSATION CAN I OBTAIN?
You can collect a percentage of 400 weeks depending upon the extent of your disability. The maximum changes annually. This is commonly referred to as a body-as-a-whole (BAW) injury.
37. WHAT HAPPENS IF I SUFFER A PERMANENT INJURY FOLLOWING A PREVIOUS DISABILITY FROM ANOTHER ACCIDENT?
If your previous disability is to the same part of the body that you injured in a current accident, you are entitled to medical treatment and temporary disability compensation. You will receive permanent partial disability to the extent your current accident increases your disability beyond the level of previous disability to the same part of the body. If your previous disability is to a different part of the body, and the resulting combination of disability is substantially greater than what would have occurred from your current accident, you may be entitled to benefits from the Second Injury Fund. There are certain thresholds which must be met, and you should seek legal advice if you think this may apply to you. Note that the previous disability does not have to be work related in order to be eligible for benefits from the Second Injury Fund. If the combination effect of all previous disabilities and that caused by your current accident is to render you unable to work, then Permanent Total Disability benefits payable over your lifetime may be made from the Second Injury Fund. The maximum changes annually.
Death benefits include payment of burial expenses not to exceed a maximum amount of $5,000. Death benefits also include payments to the employees dependents in an amount calculated pursuant to a statutory schedule similar to that described in permanent disability benefits. If you are single and have no dependents, your employer would pay only for your funeral expenses and the expenses of your last illness and nothing more.
38. WHAT OTHER DEATH BENEFITS DOES THE WORKERS' COMPENSATION LAW PROVIDE?
If the injury which caused death occurred on or after July 1,1999, the weekly compensation shall be an amount equal to 66-2/3% of the employee's average weekly wage provided that said sum shall not exceed an amount equal to the maximum rate, which changes annually.
39. WHO DOES THE LAW CONSIDER TO BE MY DEPENDENTS?
Your spouse and any of your children under 18 years of age who are living with you are conclusively presumed to be entirely dependent upon you. Also, if your children over 18 years of age are physically or mentally incapacitated from earning a livelihood, or if a child attends an accredited educational institution to age 22 years, or if the child is in the Armed Forces of the United States and then commences college after service, the child is entitled to 4 years of benefits up to age 27. Additionally, the Supreme Court rendered an opinion in 2007 (Schoemehl v. Treasurer of the State of Missouri) which extended death benefits to the dependents of the injured worker who subsequently died from causes wholly unrelated to his injuries. For a limited period of time, dependents of an employee who is totally disabled but who dies from unrelated causes may have access to continued benefits after such death. Timely consultation with an experienced attorney is essential if you have any questions about availability of this benefit.
40. CAN ANYONE BESIDES MY SPOUSE AND CHILDREN BE CONSIDERED A DEPENDENT?
YES. Members of your family, brothers, sisters, grandchildren, parents or grandparents who are actually dependent upon you. These relatives are considered dependent if they actually receive money from you at the time of your injury and need it for their support.
41. IF MY SPOUSE REMARRIES, WHAT HAPPENS TO THE DEATH BENEFITS?
If there are no other dependents, the death benefits stop. If there are other dependents, benefits go to them. The surviving spouse would receive a lump sum of 104 weeks of compensation.
42. WHAT IS MEANT BY TOTAL DEPENDENT?
A total dependent is one who is entirely dependent upon you for support or who is conclusively presumed by the law to be dependent upon you at the time of the injury.
43. WHAT IS MEANT BY A PARTIAL DEPENDENT?
A partial dependent is a person who receives some support from you but is not entirely dependent upon you at the time of your injury. Provided that there are no total dependents, a partial dependent receives a part of the death benefit previously described for total dependents, the amount depending upon the proportion of your contribution toward the partial dependent or the percentage of dependency. Your lawyer's advice will probably be valuable upon any questions of partial dependency.
An occupational disease is any disease contracted out of and in the course of the employment that is particular to the employment, or incident to such work. Generally, the test is whether or not the employee is subjected to a greater hazard than the general public and whether or not the disease is caused by or directly resulted from working conditions or a particular employment. Work must be the prevailing factor in causing the disease and disability. Some examples of occupational diseases are: a. dust diseases of the chest b. diseases attributable to inhaling fumes c. metal poisoning d. silicosis e. lead poisoning f. industrial deafness g. radiation disability h. disease of the lung or respiratory tract i. hypotension j. hypertension k. disease of the heart or cardiovascular system l. Repetitive over use conditions, such as carpal tunnel syndrome.
44. ARE INFECTIOUS OR CONTAGIOUS DISEASES COMPENSABLE?
If your work is the prevailing factor in causing you to sustain the disease and disability, then it is compensable. If, however, the condition is caused by ordinary diseases of life, they are not. However, there are some who believe that the injured worker may be able to file a civil lawsuit. You should consult with an experienced attorney if you have any questions.
45. WHAT PAYMENTS ARE MADE FOR DISABILITY OR DEATH CAUSED BY OCCUPATIONAL DISEASE?
The compensation paid under the occupational disease section is the same as if the disability or death were by accident. If your physician tells you that you are suffering from an occupational disease caused by your work, consult your committee person, union steward or your attorney immediately so that your rights may be protected.
46. WHAT ARE THE PROVISIONS MADE FOR OCCUPATIONAL DEAFNESS?
The provisions of the Act relating to occupational deafness are extremely complicated and technical. The determination of partial or total occupational deafness under the provisions of the Act is so technical and hemmed in by restrictions that every employee who sustains any occupational deafness of either one or both ears should immediately consult the committee person, union steward or attorney, so that all of his or her rights may be fully protected.
47. WHAT MUST YOU PROVE IN A HERNIA CASE?
In all claims for compensation for hernia resulting from injuries arising out of and in the course of employment, the employee must meet very strict tests. (1 ) That there was an accident or unusual strain resulting in hernia; (2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.
48. ARE ANY ADDITIONAL PAYMENTS PROVIDED IF MY EMPLOYER OR INSURER OFFERS ME PHYSICAL REHABILITATION?
YES if injured before August 28, 2005, but not for injuries thereafter. If after the medical care otherwise required by law has been rendered, the employer or insurer offers you physical rehabilitation and you accept it, and after notification and approval by the Division, a payment of $40 from a state fund will be paid to the employee while he is actually being rehabilitated.
49. WHAT IS REQUIRED FOR THE DIVISION TO APPROVE THE REHABILITATION PAYMENTS?
The injury must be a serious one where physical rehabilitation is deemed necessary by a qualified physician. The physical rehabilitation must be provided at a facility or institution which is specifically qualified to provide physical rehabilitation for seriously injured industrial workers and has received a certificate of qualification from the Division of Workers' Compensation.
50. HOW DOES THE PAYMENT FOR THE TIME I AM RECEIVING PHYSICAL REHABILITATION AFFECT MY OTHER COMPENSATION?
The payment of the additional benefits for physical rehabilitation is in addition to any other compensation to which you may be entitled.
51. HOW LONG DO THE PAYMENTS FOR PHYSICAL REHABILITATION LAST?
You receive the payments during all the time you are receiving physical rehabilitation, but the period of physical rehabilitation does not exceed beyond 20 weeks - except in unusual cases and then only by special order of the Division of Workers’ Compensation. Payments are not paid after an employee has returned to work.
52. WHAT ABOUT VOCATIONAL REHABILITATION?
Effective July 1, 1991, the employer may provide vocational rehabilitation to a severely injured employee. Temporary total and temporary partial disability benefits shall be paid throughout the rehabilitation process. The permanency of the disability cannot be determined until the rehabilitation process is completed. If such program is offered and the employee refuses to accept it, the employee's benefits shall be reduced by 50%. Few employers have chosen to voluntarily offer this benefit. It is “Employer” choice. You do not have the right to force your Employer to furnish Vocational Rehabilitation. However, you may contact the local Division office for Vocational Rehabilitation independently for possible assistance.
Medical benefits are provided by the employer and include payment for medical, surgical and hospital treatment (including nursing, ambulance and medicines) that is reasonably required to cure and relieve you from the effects of the injury.
53. WHO HAS THE RIGHT TO CHOOSE THE DOCTOR TO TAKE CARE OF ME?
Generally, your employer has the right to choose the physician who is to treat you. However, in an emergency you may choose your own doctor.
54. IF MY EMPLOYER REFUSES TO GIVE ME MEDICAL CARE AND I GET MY OWN DOCTOR, WHO PAYS?
In such cases the employer must pay him, if there was a refusal.
55. DOES MY EMPLOYER HAVE TO FURNISH ME WITH ARTIFICIAL LIMBS, ARTIFICIAL EYES, OR FALSE TEETH?
The Division may require the employer to furnish an artificial leg, foot, arm, hand or brace or artificial eye when the Division shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use of such artificial leg, etc. Loss of front teeth are rated as disfigurement in an amount sufficient to cover the reasonable cost of artificial teeth. You may also qualify for lifetime replacement. If this applies to you, seek legal assistance.
56. IS AN EMPLOYER REQUIRED TO REPLACE GLASSES, DENTURES OR OTHER DEVICES DESTROYED AS A RESULT OF AN INDUSTRIAL ACCIDENT?
If your employer sends you a notice to report for an examination by his doctor, you must do so. The law requires that you submit to such an examination. This does not mean, however, that the doctor is entitled to cross-examine you on facts not related to your physical condition.
57. WHAT HAPPENS IF I REFUSE TO GO FOR SUCH AN EXAMINATION?
Your right to compensation may be suspended.
58. WHO PAYS FOR THIS EXAMINATION?
Your employer or its insurance company must pay for it.
59. MUST I ACCEPT THE COMPANY DOCTOR'S OPINION AS FINAL?
NO. If there is any doubt in your mind, consult your own doctor. Be aware you will have to pay your doctor, and any health insurance you have likely will not cover this cost. You should see a physician who is familiar with workers compensation, who has no allegiance with the Employer or its insurer. You may wish to consult you steward , committee person, or attorney.
LUMP SUM PAYMENTS AND COMPROMISE SETTLEMENTS
A lump-sum payment is the payment in one sum of the present value of your employer's established liability for compensation to you. A compromise settlement is a final settlement of a disputed claim by payment of a lump sum to you by your employer.
60. HOW ARE COMPENSATION BENEFITS PAID TO ME?
They are paid to you in the same manner as your wages were paid while working, but not less frequently than once every two weeks.
61. CAN I DRAW MY COMPENSATION BENEFITS IN ONE LUMP SUM?
YES, If permanent partial disability benefits are paid. If permanent total benefits are to be paid, ordinarily you cannot receive a lump payment, without approval from the Division.
62. MUST MY EMPLOYER CONSENT TO PAYMENT OF A LUMP SUM FOR ME TO OBTAIN IT?
63. MUST MY EMPLOYER CONSENT TO A COMPROMISE SETTLEMENT?
YES. A compromise settlement is possible only after your employer and you agree on its terms and only if, after hearing the parties, it is approved by the Division. You cannot reopen your case after a compensation settlement. It is a final settlement, unless rare instances of fraud occur; or unless your settlement agreement provides for you to reopen it.
64. WHEN I RECEIVE MY COMPENSATION CHECK MUST I SIGN A PAPER FOR IT?
NO. At least generally, partial receipts are not used. If you are asked to sign any written agreement, you should consult your committee person, union steward or attorney.
65. IF I RECOVER FROM MY INJURIES SUFFICIENTLY TO RETURN TO WORK, MUST MY EMPLOYER REHIRE ME?
NO. There is no obligation under the Worker's Compensation law on your employer to rehire you or to continue you in employment because of your accident. You must look to your union for protection.
66. SUPPOSE I HAVE A GROUP POLICY THAT ENTITLES ME TO WEEKLY BENEFITS. SHALL I ACCEPT THEM?
Most group insurance policies provide for weekly disability benefits for a limited period of time, payable only if your injury is NOT compensable. If your policy is of this type and your injury entitled you to Workers' Compensation, do not accept the insurance. If you are not absolutely sure what type of policy you have, consult your attorney. However, if you do accept group policy benefits, remember that any statements made by you in presenting your group claim may be used against you later in defense of your compensation claim.
67. SUPPOSE I HAVE A HOSPITALIZATION POLICY AND SUSTAIN AN ACCIDENTAL INJURY AT WORK, SHALL I HAVE MY DOCTOR BILLS PAID FROM THE HOSPITALIZATION POLICY?
NO. For the same reason as stated above. Your rights to Workers' Compensation and hospitalization benefits are usually inconsistent. If your hospitalization insurance is of this type, do not accept its benefits if you are entitled to Workers' Compensation. If you are in doubt, consult your attorney.
PROCEDURE FOR FILING A CLAIM
In about 90% of the cases, compensation is paid by the employer by an agreement. In about 10% of the cases, the employer may refuse to pay and in that event you must file a claim. File your claim with the Missouri Workers' Compensation Division on the printed form called "Claim for Compensation" which the Division furnishes. You can obtain this form by writing the Division of Workers’ Compensation, P.O. Box 58, Jefferson City, Missouri 65102, or by consulting with an attorney, which is recommended in such event.
68. IS THERE ANY DIFFERENCE BETWEEN MAKING A DEMAND FOR COMPENSATION FROM MY EMPLOYER AND FILING A CLAIM FOR COMPENSATION WITH THE DIVISION?
YES. The purpose of the demand for compensation is to notify your employer that you are entitled to compensation. The filing of a claim for compensation brings the matter of your right to compensation formally before the Division.
69. WHERE SHALL I FILE THESE FORMS?
File them with the Division of Workers' Compensation at the appropriate office listed above. Remember in filling out the forms to do the following:
(a) Make 4 copies of your claim, file 3 of them with the Division and keep a copy for yourself.
(b) See that the blanks are filed in as accurately as possible. If you do not know dates or amounts, or if there are other questions you cannot answer, leave the space blank.
(c) Consult your committee person, union steward or attorney.
(d) This form is a legal document which has the effect of binding you to certain admissions, so care must be used in completing the claim. Typically, have your attorney assist you.
70. HOW LONG AFTER THE ACCIDENT DO I HAVE TO FILE MY CLAIM?
You may file your claim any time within two years from the date of your accident or date of the last payment on account of the injury. However, do not wait that long. File your claim IMMEDIATELY because it may be hard to prove your case if you delay. If no report of injury was filed with the Division, the time is three years from date of accident or date of last payment.
71. HOW LONG DO I HAVE TO FILE MY CLAIM IF SOME COMPENSATION HAS BEEN PAID?
You have two years from the date of the last payment. Furnishing medical treatment has been held to be equivalent to the payment of compensation.
72. WHAT HAPPENS AFTER I HAVE FILED MY CLAIM WITH THE DIVISION?
Your employer must file an answer to your claim within 30 days, and after that your case is set for pre-hearing conference before an administrative law judge of the Division. The Division will mail you a notice of the time and place of the hearing. YOU MUST APPEAR FOR THE HEARING, unless you are represented by an attorney, in which case, he should advise you what to do.
73. DO I HAVE TO BRING WITNESSES OF THE ACCIDENT WITH ME?
NO. If you have witnesses of the accident, you can take them with you to the hearing. If your witnesses refuse to go to the hearing, you can subpoena them. At your request, the Division will furnish you with the necessary form of subpoena. Do not subpoena witnesses to go to a pre-hearing. You are best served if you give the names of your witnesses to your attorney.
74. SUPPOSE THERE ARE NO WITNESSES TO THE ACCIDENT, HOW CAN I PROVE MY CASE?
Your own word may be enough, particularly if it is verified by surrounding circumstances, such as a prompt report of your accident to the employer, or a consistent history to a treating physician.
75. SUPPOSE MY EMPLOYER, WHILE ADMITTING THAT I HAD AN ACCIDENT, DENIES THAT I AM DISABLED BECAUSE OF IT; WHAT SHALL I DO?
Get your own doctor to examine you and to appear and testify in your behalf at the Division hearing. Many of the differences between the worker and his/her employer regarding the payment of compensation arise because of differences in medical opinions. Here, your steward or committee person can assist you, by referring you to experienced lawyers who can help you.
76. IS THE HEARING BEFORE THE ADMINISTRATIVE LAW JUDGE A TRIAL?
A hearing before an administrative law judge is very much like a trial of a case in court. You should be fully prepared to try your case. The rules of evidence apply, and if you are to have a trial, you should consult with an attorney.
77. DO I HAVE TO GET A LAWYER TO REPRESENT ME AT THE HEARING?
A lawyer is not necessary if you are certain that your employer or the insurance company has agreed to pay you everything to which you are entitled under the Act. However, remember that it would not be necessary to have a hearing at all unless your employer or the insurance company were disputing your right to compensation and unless they felt they had a chance of defeating your claim. They hire very able lawyers to present their side of the case. The rules of evidence in a compensation hearing are as technical as in a lawsuit. It is just as necessary to have a lawyer in a contested compensation case as it is in any other court proceeding.
78. WHAT HAPPENS AFTER THE HEARING?
The administrative law judge files his award and the Division mails you a copy of it.
You may file an "Application for Review" by the Labor & Industrial Relations Commission within 20 days of the date on which the award was rendered. The Division and the Commission furnishes printed forms of "Application for Review." These forms should accompany your notice of the administrative law judge's award. If not, get them from any of the Division's offices. File the Application for Review with the Division of Workers' Compensation, P.O. Box 58, Jefferson City, Missouri 65102, or with the Labor and Industrial Relations Commission, 3315 W. Truman Blvd., Jefferson City, Missouri 65109.
79. WHAT CAN I DO IF I HAVEN'T ENOUGH TIME (WITHIN 20 DAYS) TO OBTAIN THE FORMS REQUIRED AND TO FILE THEM WITH THE COMMISSION?
You must file your application for review or the award becomes final.
80. HAVE I LOST MY RIGHT TO APPEAL IF I WAIT LONGER THAN 20 DAYS?
81. IF I WIN MY CASE, CAN MY EMPLOYER APPEAL?
YES. He has the same right to appeal as you.
82. WHAT HAPPENS AFTER AN APPLICATION FOR REVIEW IS FILED?
In most instances the full Commission simply reviews the record of the case made before the administrative law judge. It may, however, in unusual cases, ask for oral argument. No further testimony is presented and the Commission thereafter makes its decision. You will be mailed your copy of the decision of the Commissioners.
83. CAN AN APPEAL BE TAKEN FROM A TEMPORARY AWARD?
Yes, under certain circumstances.
84. WHAT ARE THE GROUNDS FOR AN APPEAL?
The Court may change the Commission's award only upon the following grounds.
(a) That the Commission acted in excess of its powers;
(b) That the award was procured by fraud;
(c) That the facts found by the Commission do not support the award. That there was not sufficient competent evidence in the record to warrant making the award.
When you get well or return to work, your employer may submit a final receipt to you for your signature on a printed form supplied by the Division. A "final receipt" is a receipt to be filed with the Division showing the total amount of compensation paid. In signing a final receipt, please be careful of the following things:
(a) See that all names and dates and amounts are correct;
(b) Be sure your injury is properly described;
(c) All spaces should be filled out completely;
(d) Read the directions printed on the form and follow them.
85. SHALL I GET A COPY OF THE FINAL RECEIPT?
YES, be sure to do so.
86. DOES THE SIGNING OF A FINAL RECEIPT CLOSE MY CASE FOR GOOD?
NO. (See "Further Compensation or Reopening Case.")
87. WHAT HAPPENS IF I REFUSE TO SIGN FINAL RECEIPTS?
Your injury may be set for a conference. The conference is an informal hearing at which both you and your employer appear before a representative of the Division who hears both sides. If you and your employer fail to come to an agreement after your conference, then you must file a claim.
FURTHER COMPENSATION OR REOPENING YOUR CASE-SPECIAL SITUATIONS
88. IF MY EMPLOYER WILL NOT AGREE TO PAY ME FURTHER COMPENSATION, WHAT CAN I DO?
File a claim with the Division, if you have not already done so.
89. WHAT IF MY INJURY IS GRADUAL, AND I DID NOT HAVE A SPECIFIC ACCIDENT. AM I ENTITLED TO BENEFITS?
Conditions from repetitive overuse , such as carpal tunnel syndrome, tennis elbow, certain rotator cuff (shoulder) problems, reflex sympathetic dystrophy, thoracic outlet syndrome, CRPS, and fibromyalgia are examples of physical injuries which have been found to be caused or substantially related to employment. If you have worked for less than 90 days for the employer when you notice the symptoms of your injury, your past employers may need to be included in your claim. This often gets complicated, and you will need assistance from your steward, committee person, or lawyer.
90. ARE HEART ATTACKS EVER COMPENSABLE? POSSIBLY.
Given the recent changes to the Act, proving the compensability of these types of injuries has become very difficult . In most cases, Employers and their insurers will try to defeat your claim by indication your diet, lack of exercise, smoking, and heredity are the cause. If you or someone you know has a heart attack, it should be thoroughly investigated early to determine whether your work was a substantial factor in causing the heart attack. However, the Act provides a presumption for some workers who are members of a paid fire department or are paid police officers. This presumption suggests that certain diseases of the lungs, heart, cardiovascular system, etc., may be recognized as occupational diseases due to exposure to smoke, gases, carcinogens, lack of oxygen, but only if a direct causal relationship is established. (§287.067(6) R.S.Mo.)
91. DOES THE EMPLOYER OR INSURER HAVE THE RIGHT TO HAVE THEIR CASE MANAGER ATTEND MY DOCTOR’S APPOINTMENT?
NO. You have the right to privacy. Because you are injured, your Employer has the right to obtain information about your condition, but you don’t have to be subjected to a specialist, hired by the employer or insurer, who can seek to intimidate you or the physician. Other times, these nurses can be of limited use. The best advice is to be skeptical, ask the nurse whose interest it is they are representing and consult with your steward, committee person or attorney.
92. MUST I HIRE AN ATTORNEY WHENEVER I AM INJURED?
NO. However, you should realize your employer has his trained specialists watching out for his interests, from the personnel department, to the adjuster, case manager, administrator, and attorney. Consult with your steward or committee person first, and then an attorney. Most attorneys will give you a free initial consultation, before you decide whether or not to hire one.
93. ARE BENEFITS DIFFERENT FROM STATE-TO-STATE?
If you were hired, injured, or your employment is principally localized in Missouri, then you are entitled to Missouri benefits. If you were hired or injured in a different state, you may be entitled to greater benefits. Consult with your steward, committee person or attorney. Time limitations for reporting injuries and filing claims vary, so it is important that you act quickly following your accident.
94. IF I HAVE TWO OR MORE EMPLOYERS WHEN I GET INJURED, DOES THIS AFFECT MY CLAIM?
YES. Your wages earned from all jobs are combined, so that if you are temporarily and totally disabled, you will receive sixty-six and two-thirds percent up to the maximum rate in effect on the date of your accident
95. WHAT ABOUT FRAUD? IS IT REALLY A PROBLEM?
The statistics compiled to date suggest that fraud and abuse by Employers and insurers are in greater numbers then employees, lawyers or doctors. Many employers believe that employees seeking compensation nonetheless commit fraud when they apply for unwitnessed accidental injuries, or for injuries occurring after a weekend off work. It is a crime for anyone to knowingly claim compensation for an injury which did not occur at work. It is also a crime for the employer to knowingly discharge its obligations (which cannot be disputed) in such a way to deprive you of your benefits.
LABOR DOES NOT CONDONE ANY TYPE OF FRAUD COMMITTED BY EMPLOYERS, INSURERS OR EMPLOYEES. IF YOU SUSPECT AN ABUSE HAS OCCURRED, CONTACT YOUR STEWARD, COMMITTEE PERSON OR ATTORNEY.
96. HOW DO SOCIAL SECURITY OR MEDICARE BENEFITS AFFECT MY WORKERS’ COMPENSATION BENEFITS?
If you qualify for Social Security disability, you may have a reduction in that benefit for the same months that you receive Workers’ Compensation payments. Generally, you can expect to receive up to 80% of your monthly pre-injury earnings before Social Security benefits can be reduced. Your Workers’ Compensation benefits will not be reduced, however. If you have applied for Social Security Disability or Retirement benefits, or expect to do so within 30 months of your contemplated workers’ compensation settlement, Medicare’s interest will need to be addressed. This means that Medicare does will not pay for future treatment for a work related condition for which the workers’ compensation insurance company should have been responsible. You will need attorney help in this event, as the process is cumbersome and difficult.
97. WHAT ABOUT FUTURE MEDICAL CARE? CAN I GET IT, EVER?
Your employer has the obligation to provide you with such medical care and attention as may reasonably be required to care or to relieve, you from the effects of your injury. If your treating physician tells you that some day on down the road you will need surgery, ask him to write it down in his records, or better yet, to give you a copy of what it is he recommends. Frequently, employers don’t ask their doctors to express their thoughts as to what the future may hold for you. So, it is important to ask the company and even your doctor for an opinion before you consider any settlement. Once you have settled your claim, you are at risk because you have released your employer from this future responsibility. Also, if you have had surgery to replace a joint, your employer may owe lifetime replacement for these. Consult your steward, committee person or attorney if you have a specific question.
98. CAN I BE FIRED BECAUSE I FILE A CLAIM FOR WORKERS’ COMPENSATION?
NO. It is unlawful for your employer to terminate you or discriminate against you because you chose to pursue your rights to receive benefits. Contact your steward or committee person immediately if any actions are taken, or threatened, against you.
99. ARE STRESS INJURIES COMPENSABLE? POSSIBLY.
If you have an emotional disorder caused by the trauma resulting from a physical injury. If you do not have a physical injury, the standard of proof, and the causes for the emotional (stress) injury are limited. Consult your steward, committee person or attorney. A mental injury is not considered to arise out of and in the course and scope of your employment if it resulted from (a) disciplinary action; (b) work evaluation; (c) job transfer; (d) layoff; (e) demotion/termination; (f) or any similar action taken in good faith by your employer. (§287.120(9) R.S.Mo.)
100. HOW DO I HIRE A QUALIFIED ATTORNEY?
Here are a few suggestions:
•If you have no experience with an attorney, ask your steward or committee person for a recommendation.
•You can ask other union officers, brothers or sisters for a referral based upon their experience.
•Your local union, area labor council, or the officers of the Missouri AFL-CIO can give you a recommendation.
•Ask the lawyer about his or her experience in litigating Workers’ Compensation Claims. Does the lawyer limit his practice (specialize)? How many times has he appealed cases to the Court of Appeals or the Supreme Court?
•Is the lawyer a member of the Union Privileges Legal Services network?
•Is the lawyer active in local, state and or national bar associations, such as The Missouri or Kansas Association of Trial Attorneys, American Association for Justice (formerly ATLA), and/or the Workers’ Injury Law & Advocacy Group (WILG)?
•Does the lawyer represent employers and insurers, or is his practice limited to representing injured workers and their families?
On February 24, 2009, the Missouri Supreme Court issued its long-awaited opinion in the matter of Missouri Alliance for Retired Americans v. Dept. of Labor & Industrial Relations, Division of Workers’ Compensation. In this opinion, the Supreme Court was asked to address whether the changes effected by Senate Bills 1 and 130 in 2005 were unconstitutional? The court did not address the issues of constitutionality, but instead, ruled that the various unions who were plaintiffs, did not have standing to bring the lawsuit as they could not demonstrate that any of their members had been subjected to a specific harm resulting from the 2005 amendments. However, the Court did issue a declaratory statement that by eliminating certain injuries and diseases from coverage under the Act, injured workers were permitted to seek suits for civil damages against their employers. This was important when considered in conjunction with another Supreme Court opinion issued on January 27, 2009 titled J.C.W. and T.D.W., minors, by their next friend, Kelly K. Webb v. Jason L. Wyciskalla.
In that opinion, the Supreme Court held that “the courts of this state should confine their discussions of circuit court jurisdiction to the constitutionally recognized doctrines of personal and subject matter jurisdiction; there is no third category of jurisdiction called “jurisdictional competence.” Another way of stating this is that the circuit courts no longer must defer to an administrative agency’s (such as the Division of Workers’ Compensation) decision that it has jurisdiction over an issue. Now, every circuit court judge in the state has the authority to decide if it maintains jurisdiction over the issue, allowing the injured party to proceed forward with a civil suit.