As many of you know, the Missouri Legislature has passed, and Governor Blunt has signed, sweeping changes in Missouri’s Workers’ Compensation Law.  Most of these have an effective date of August 28, 2005.  Over the next few months, I will continue to update you as to what I believe to be important changes in the law, changes that will profoundly effect the rights of injured employees, particularly Local 2665.

             Some of the most critical changes involve the area of “notice”, the statutory requirement that an employee notify his employer of an accident or the diagnosis of a condition in the case of repetitive trauma or occupational disease.
             The statutory language reads as follows: (Bracketed items were a part of the prior law and have been removed from the new law). Please note the shaded (highlighted) portions of the statute:

I.          §287.020 RSMo

1.         The word “employee” as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations.  Any reference to any employee who has been injured shall, when the employee is dead, also include his dependents, and other persons to whom compensation may be payable.  The word “employee” shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter.  The word “employee” shall not include an individual who is the owner ,as defined in subsection 43 of section 301.010, RSMo, and operator of a motor vehicle which is leased or contracted with a driver to a for-hire [common or contract] motor [vehicle] carrier operating within a commercial zone as defined in section 390.020 or 390.041, RSMo, or operating under a certificate issued by the [motor carrier and railroad safety division of the department of economic development] Missouri department of transportation or by the [interstate commerce commission] United States Department of Transportation, or any of its subagencies.

2.         The word “accident” as used in this chapter shall [unless a different meaning is clearly indicated by the context, be construed to] mean an unexpected [or unforseen identifiable event or series of events happening suddenly and violently, with or without human fault,] traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.[An injury is compensable if it is clearly work related.  An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability.] An injury is not compensable [merely] because work was a triggering or precipitating factor.

3.         (1) In this chapter the term “injury” is hereby defined to be an injury which has arisen out of and in the course of employment. [The injury must be incidental to and not independent of the relation of the employer and employee.  Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.] An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability.  “The prevailing factor” is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

                        (2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the [employment] accident is [a substantial] the prevailing factor in causing the injury; and

(b) [It can be seen to have been followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and]

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life;

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable;

(4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition;

(5) The terms “injury” and “personal injuries” shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial denture, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body to replace the physical structure and such disease or infection as naturally results therefrom.  These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the workers is at work.

            4.         “Death” when mentioned as a basis for the right to compensation means only death resulting from such violence and its resultant effects occurring withing three hundred weeks after the accident; except that in the cases of occupational disease, the limitation of three hundred weeks shall not be applicable.

            5.         [Without otherwise affecting either the meaning or interpretation of the abridged clause, “personal injuries arising out of an in the course of employment”, it is hereby declared not to cover workers except while engaged in or about the premises where their duties are being performed , or where their services require their presence as a part of such service.] Injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee’s home to the employer’s principal place of business or from the employer’s principal place of business to the employee’s home are not compensable.  The “extension of premises” doctrine is abrogated to the extent it extends liability for accidents that occur on property not owned or controlled by the employer even if the accident occurs on customary, approved, permitted, usual or accepted routs used by the employee to get to and from their place of employment. 

            6.         [A person who is employed by the same employer for more than five and one-half consecutive work days shall for the purpose of this chapter be considered an “employee”.]

            7.         The term “total disability” as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

            [8.]       7. As used in this chapter and all acts amendatory thereof, the term “commission”

shall hereafter be construed as meaning and referring exclusivley to the labor and industrial relations commission of Missouri, and the term “director” shall hereafter be construed as meaning the director of the department of insurance of the state or Missouri or such agency of government as shall exercise the powers and duties now conferred and imposed upon the department of insurance of the state of Missouri.

            [9.] 8. The term “division” as used in this chapter means the division of workers’ compensation of the department of labor and industrial relations of the state of Missouri.

            [10] 9. For the purposes of this chapter, the term “minor” means a person who has not attained the age of eighteen years; except that, for the purpose of computing the compensation provided for in this chapter, the provisions of section 287.250 shall control.

            10. In applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of “accident”, “occupational disease”, “arising out of”, and “in the course of the employment” to include, but not limited to holdings in: Bennet v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases.

SUMMARY AND RECOMMENDATION

            The legislature was to make it more difficult for us to prevail in these workers’ compensation claims.  (The topic of “Notice” will be discussed in this context in Part II of this memo).

            An injury is compensable only if the “accident” which caused it was the “prevailing factor”, which means the “primary factor” as compared to other factors.  What does this mean? The answer is no one knows until new case law develops.

            The bright side is that the injuries Local 2665 members unfortunately sustain on the job are usually very well documented and less difficult to establish as compensable. 

            The new law is full of tricks and traps designed to defeat legitimate workers’ compensation claims.  Do not let yourself be a victim.  

II         §287.420 RSMo (Notice) 

            No proceedings for compensation for any accident 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] has been given to the employer [as soon as practicable after the happening thereof but not] no later than thirty days after the accident, [unless the division or the commission finds that there was good cause for failure to give notice, or that] unless 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 in fact misled and prejudiced thereby.] No proceedings for compensation for any occupational disease or repetitive trauma 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, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice.

SUMMARY AND RECOMMENDATION

            Pursuant to the new statute, the good cause exception has been removed and the notice is an absolute requirement unless the employer was not prejudiced.  The burden of proof as to the lack of prejudice will almost certainly rest with the employee after the change.  

            Prior to the statutory changes, there was no notice requirement, written or otherwise in occupational disease or repetitive trauma claims.  It should be noted that the notice window opens as soon as the employee is diagnosed with the condition and closes 30 days thereafter.  Should an employee for instance, be diagnosed with a mild case of carpal tunnel syndrome or a mild case of epicondylitis notice must be given immediately, probably to include the identity of the diagnosing physician in order to be safe.  This will be the case even if little or no treatment is rendered.

            It should also be noted that the burden of proof as to the lack of employer’s prejudice definitely lies with the employee.  It should not be thought that the division determines that lack of prejudice easily.  The employee will almost certainly be held to a strict standard in that regard.  This is especially true given the removal of the statutory language in Section 287.800 that previously required liberal construction of the workers’ compensation law.  The statute now must be strictly construed and the employee receives no benefit of the doubt.

            The changes in notice requirements in the new statute will likely have profound impact on an employee’s right to file a claim after August 28, 2005.  The employer will not be required to specify the notice requirements other than to tell employees that failure to notify employer within 30 days may jeopardize their ability to receive compensation and benefits.  This limited notice is simply not enough to provide a complete picture for the employee. 

RECOMMENDATION

            People in the Fire Service have a greater risk of sustaining repetitive injuries on the job.  Our members aggravate already injured body parts on a regular basis, simply by performing the routine tasks of their jobs. 

            Under the old law, for example, a paramedic could make a claim that he or she had developed carpal tunnel from years of handling stretchers.  The claim was made once and alleged the injury was occupational and repetitive.  That was enough for the Division of Workers’ Compensation to consider that future on the job incidents aggravating the same injury/illness were absorbed into the pre-existing claim.

            This is no longer the way it is under the new law.  Now every single time a previously injured body part is again injured, it must be reported in writing within 30 days.  If you fail to report you will be denied medical treatment and compensation.  Worse, the employer will then seek to argue the incident/injury you did not report was the one most responsible for your condition.           

            The solution is to document even the smallest injuries or aggravations of pre-existing injuries by filling out the Report of Injury form which your employer is required to provide.

            What we have is a bad law which has ridiculous consequences, like creating the necessity for filing multiple and repeated injury claims in order to preserve one’s rights under the Workers’ Compensation system.

            Please feel free to call me with any questions you might have about Missouri Workers’ Compensation law in general, as well as the unfortunate changes just made to it.

            Your Workers’ Compensation referrals are much appreciated.