Blog: Workers’ Compensation and Personal Injury

YOUR WAGE RATE IS IMPORTANT TO YOUR BENEFITS IN WORKERS COMPENSATION

“…many times the Employer or their Insurer misrepresent or are incorrect about your average weekly wage. Why do they do this, I suspect it is just to save themselves money.“

There are several benefits in workers compensation. Most are tied into the determination of your average weekly wage. The average weekly wage (AWW) is discussed under Missouri law RSMO 287.250. Usually it is based upon the 13 weeks of wages you earn before the date you are injured. You simply add the prior 13 weeks wages and divide by thirteen. Your benefit rate is then determined to be 2/3’s of  the AWW. There are different maximums limits on the rate depending on whether you are getting weekly benefits or a final lump sum for permanency when you return to work.

What is important for you to know is that many times the Employer or their Insurer misrepresent or are incorrect about your wages. Why do they do this, I suspect it is just to save themselves money.  Of course what they do is underestimate the amount you are supposed to get. When you first hire an attorney it is important to give him information to help determine your correct AWW.  Bring your attorney your payroll records. If you are a part-time employee, you may be  entitled to a full time co- worker’s wages that does your same job duties. If you are a minor, you may be entitled to a full time adult co- worker’s wages. There are several ways to bump up the value of your wages to get you more compensation both for weekly stipend to live on while you are healing, for disfigurement, and for permanency compensation rate.  This simple miscalculation by the Employer or their Insurer can cost you thousands, tens of thousands or hundreds of thousands of dollars lost benefits if you let the employer get away with it.  At my firm we address the correct AWW in every case. Just another reason it is important to hire an attorney who is used to addressing this problem. If you have any questions, please call us for a free initial consultation. Ron Edelman

The clock is ticking! You must report your injury in writing within 30 days of your work injury in Missouri to your Employer. You can do this in any form of writing or you can use the Division provided form  at Report Your Occupational Disease or Repetitive Trauma Injury (mo.gov). You do not have to use the Division form or your Employer’s form or a simple email to your supervisor will work.  Be sure to include a demand for treatment.

WHAT WE SEE HAPPENING:

When you are first injured at work, there is always hesitation to tell anyone. Many of my clients have told me they are conflicted in telling their employer right away.

• First they are embarrassed as they feel that they caused their own injury.
• Second, they are hoping that they are not hurt enough to lose work. The employee’s natural inclination is to wait a couple of days or weeks to see if the symptoms from the injury go away.
• Third, employee is afraid of losing their job.

For the following reasons, I am telling you it is important that you immediately report your injury, in writing, to the employer as soon as possible regardless of your fears.

If you are seriously hurt you may lose your job anyway and be unable to work. Reporting your injury and asking for workers compensation benefits is the only way to support yourself or your family, and get medical treatment during the healing period.

If you fail to give written notice within 30 days of your injury, or reasonable becoming aware that you have suffered a work related occupational injury, you may lose your workers compensation case, and jeopardize your  rights to all benefits.  Although notice to the employer has always been a requirement to getting benefits for work injuries, this provision was made tougher  in the law RSMO 287.127.1(2).

Prior to this provision, actual verbal notice was sufficient. Now you run the risk to lose all benefits if you do not report the injury in writing.  Why is actual notice not good enough now? Because unfortunately some employers lie about you telling them about your injury. They lie when they say you do not get benefits because you caused the accident yourself.

Workers Compensation is a no fault system of compensation. Even though you cause your own injury, you get benefits. They lie when they tell you that you have to use your own medical insurance.  Most group medical carriers exclude paying for work related injury treatment.  They lie to you when they say you are to late in reporting it the same day.  You have up to 30 days to report it.  The employer lies to you  when they say you went to your own doctor and therefore they do not have to provide benefits.  The law allows you emergency care to be covered by the employer, at least one time.  You may only suffer not recovering the cost of the initial medical treatment, but do not lose the entire claim.

These are only a few of the lies my client’s have told me over my 40 plus years of being an attorney.   As soon as an employer starts telling you these lies, you know you immediately need to hire an attorney to represent you.  To avoid jeopardizing your workers compensation benefits ,  this you need to swallow the bullet and be brave enough to report the injury in writing right away. If the employer will not let you do this report of injury, email it, fax it, or mail a certified letter of notice to the Employer and keep a copy.  Even if they send you to authorized medical care right away, do the written report of injury.  If the employer will still not allow you to make the report of injury, you can also call the Missouri  Fraud and Non Compliance unit and report the employer for failing to let you make a report of injury in Missouri. That phone number for the unit is: 800-592-6003. 

The first thing my office does when an injured employee calls us and is within the first 30 days from the date of injury and accident, we advise them to make the report of injury. If they are unable to, we do it for them.

If you have any questions, please call us for a free consultation. Ron Edelman

On 10/24/2018, Marshall Edelman, Attorney, argued in front of the Missouri Supreme Court regarding novel issues in Missouri Workers’ Compensation. He appeared with his father, Ronald D. Edelman, Attorney. This is the first challenge to the interpretation and constitutionality of the 2014 amendment to the Missouri work comp system involving enhanced permanent partial disabilities against the Second Injury Fund.

Our office is challenging the law because it is the right thing to do and, if successful, will benefit all Missourians. The Fund has taken the position that injured workers are not entitled to enhanced permanent partial disability benefits from the Fund for primary injuries after 1/1/2014. We disagree. This sends a signal to employers that they have more incentive to discriminate against those persons with preexisting disabilities who can actually work than those that can’t. This is not a rational basis.

The decision in this case, Cosby v. Treasurer of Missouri, SC97317, will affect nearly every employer and employee in Missouri. This case was recently featured in the news. Click here to read the article. Marshall is honored to be featured in Mizzou Law School’s newsletter regarding this. Click here to read Mizzou Law’s newsletter.

This case was also featured twice in the Missouri Lawyers Weekly . Click here for the first article titled, “Injury Fund fix headed to Supreme Court” and click here for the second article titled “Supreme Court asked to untangle Injury Fund fix.” (Subscription newspaper may require login)

The Missouri Legislature submitted many changes to workers’ compensation in 2017. This culminated in Senate Bill 66 which was signed by the Governor on 7/5/2017 and became effective on 8/28/2017. Here is what you NEED to know:

IMPORTANT NOTE– If you have a workers’ compensation injury that arose before 8/28/2017 then you should immediately consult with an attorney to determine if the new law applies retroactively to your claim. This depends on whether it is substantive versus a procedural change. As with any new law, the answers are yet to be determined by the courts.

Section 287.020.12: Defines maximum medical improvement (MMI) as 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 is important in determining Temporary Total Disability (TTD) and Temporary Partial Disability (TPD) and the date at which Permanent Total Disability (PTD) payments begin. TTD/TPD is paid time off work while you are recovering and are unable to work or earning less on light duty.  MMI had never been defined by statute till now despite everyone using this term.

Comment– Many believe this amendment was in response to the Greer v. Sysco Food Services, SC94724 (Mo. banc 2015) decision. However, the new amendment does not forgo the situation where a person is released at MMI twice or goes on to get more treatment. Arguably, if you are released twice and/or go on to get more treatment then it would appear your condition was not “stabilized.”

 Section 287.037.2: This allows certain shareholders of Chapter S corporations to reject Missouri workers’ compensation coverage.

Section. 287.120.6(4):  New Drug Penalty Test:

            “Any positive test result for a nonprescribed controlled drug or the metabolites of such drug from an employee shall give rise to a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled drug if:

• (a) The initial testing was administered within 24 hours of the accident or injury;
• (b) Notice was given to the employee of the test results within 14 calendar days of the insurer or group self-insurer receiving actual notice of the confirmatory test results;
• (c) The employee was given an opportunity to perform a second test upon the original sample; and
• (d) The initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.”

Comment– The Employer must first perform steps (a) – (d). In some situations the drug penalty can be very severe and in some cases it can lead to a 50% or 100% forfeiture of all work comp benefits.

 Section 287.149.1: TTD/TPD:

TTD or TPD benefits shall be paid throughout the rehabilitative process “until the employee reaches MMI, unless such benefits are terminated by the employee’s return to work or are terminated as otherwise specified in this chapter.”

Section 287.170.5: New penalty for voluntarily leaving your job: (One of the most significant changes in our opinion)

“If an employee voluntarily separates from employment with an employer at a time when the employer had work available for the employee that was in compliance with any medical restriction imposed upon the employee within a reasonable degree of medical certainty as a result of the injury that is the subject of a claim for benefits under this chapter, neither TTD nor TPD benefits available under this section or section 287.180 shall be payable.”

Comment– The statute does not address the situation when doctors have conflicting restrictions. Nor does it define what “voluntarily separates” means.

 Section 287.200.1: Changes the statute to say PTD benefits start from date of MMI for the lifetime of the employee.

Section 287.203: Shortens the time in which Hardship Hearings must take place from 60 days to 30 days from the request.

Section 287.240(4)(a)– Adds “any stepchild claimable by the deceased on his or her federal income tax return at the time of injury . . . .” for dependents of a deceased worker for death benefits.

Section 287.243 Line of Duty Compensation Act– Many changes to the distribution of benefits to survivors of first responders who were killed in the line of duty.

Section 287.390.7:  Settlements:

“In the case of compromise settlements offered after a claimant has reached MMI, upon receipt of a permanent disability rating from the employer’s physician, a claimant shall have a period of 12 months from such date to acquire a rating from a second physician of his or her own choosing.”

“Absent a finding of extenuating circumstances by an ALJ or the commission, if after 12 months a claimant has not acquired a rating from a second physician, any compromise settlement entered into under this section shall be based upon the initial rating.”

“A finding of extenuating circumstances by an ALJ or the commission shall require more than failure of the claimant to timely obtain a rating from a second physician”

“The provision of this subsection may be waived by the employer with or without stating a cause.”

Comment-  Although this new amendment doesn’t say it, you always have the right to go to trial and not be bound by this rule.  This rule hurts those workers without a lawyer who don’t know they can get their own doctor’s rating and to go to trial.

Section 287.780: Change in standard for proving an Employer discriminated against you for exercising your work comp rights:

“No employer or agent shall discharge or discriminate against any employee for exercising any of his or her rights under this chapter when the exercising of such rights is the motivating factor in the discharge or discrimination.”

“…motivating factor shall mean that the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence on the discharge or discrimination.”

Comment- The prior standard under Templemire v. W & M Welding, Inc., 433 S.W.3d 371 (Mo. banc 2014) was “contributing factor”. Prior to that case, for decades it had been the “exclusive cause” standard.

The Law Firm of Ronald D. Edelman, Attorney along with associates Marshall Edelman and Steven Edelman are handling the case in Missouri which is challenging the constitutionality and interpretation of enhanced permanent partial disability benefits against the Missouri Second Injury Fund. To our knowledge it is the first and only case to do so.  We are therefore informing both claimants and practitioners as to the following.

On 1/1/2014, Missouri work comp law section 287.220 was changed. The interpretation and constitutionality of the change is now in dispute. This section of the work comp law has provided benefits since the 1940s from the Second Injury Fund. The Fund is managed by the Missouri State Treasurer.

The Fund was created to pay for injured workers additional benefits for the combinational effects of certain pre-existing injuries and a new work injury.  It does not matter whether the pre-existing injury was work related.

The reason why the Fund was created has been clear for nearly three quarters of a century. The courts announced the Fund was created by the Legislature to encourage employers to hire handicapped persons. Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955 (Mo 1963). The focus of the Fund is to compensate for the potential that a “previous injury” would give rise to prospective employer’s incentive to discriminate. Wuebbeling v. West County Drywall, 898 S.W.2d 615,, 620 (Mo. App. E.D. 1995)

The Fund has taken the position that the change of Missouri Work Comp law section 287.220.2(3) eliminated permanent partial disability claims against the Fund after 1/1/2014.

On 8/16/2017, the Labor and Industrial Relations Commission for the Missouri Department of Labor that hears appeals of Workers’ Compensation matters issued an award in Douglas Cosby v. Drake Carpentry Inc. (LIRC 14-003644) denying compensation for a claim against the Fund for permanent partial disability involving a primary injury that occurred after 1/1/2014.

The Commission stated in Cosby that rather than extinguishing any rights or removing any existing remedy, the legislature shifted back to the employer and their insurers any liability that would have otherwise rested with the Second Injury Fund

The Commission stated, “In our view, the 2013 amendments to 287.220 work the effect that employer and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of pre-existing disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries.

The Commission cited the case of Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963) that states, “”in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury.”

Based on the Cosby Commission decision, the EMPLOYER is now responsible for enhanced combinational PPD benefits.

It can also be interpreted that any PTD combinational benefits that used to rest with the Fund but no longer do because of the more rigorous guidelines are now the responsibility of the Employer.

This case is currently on appeal by our office. The Commission decision can be found on their website here.

Image by the US National Weather Service

Happy Eclipse day! Here are some helpful links. Subtract 5 from the UT time to get central time zone. Totality is at 1:18pm at our office.

Please be safe on the roads and at work. We hope no one gets hurt during this event but if you are injured on or off the job during the eclipse you may have a claim. Insurance blogs have already posted about the workers’ compensation health and safety risks of the eclipse on employees.

Click here for NASA safety tips. To get a more exact prediction of when you will see the solar eclipse you should check out the Interactive Time Map to search your address or click here for the NASA website to search by zip code.  Be sure to view the up to date Eclipse Cloud Cover Weather Map .

Many times injured workers are told false information about Missouri Workers’ Compensation. Below, please find some of the top false facts spread about Missouri Work Comp along with their corrections. You can also view our Top Common False Facts chart.

Missouri Workers’Compensation
TOP COMMON FALSE FACTS

FALSE- You have no case because you hurt yourself.
TRUTH– Fault does not matter. You still have a case.

FALSE- You automatically lose if you don’t report the injury the same day you are hurt.
TRUTH– You must give written notice within 30 days. Actual knowledge and verbal notice may be enough.

FALSE- You no longer work for the employer and therefore get nothing.
TRUTH– If you left the job you can still file a work comp claim

FALSE- You went to your own doctor so therefore you forfeit all benefits.
TRUTH– You may have to pay for that doctor visit but you still can pursue benefits from the employer. In many cases you only find out your injury was work related from your own doctor.

FALSE- Carpal Tunnel & Occupational Diseases aren’t covered
TRUTH– These are covered in workers’ compensation- including all repetitive trauma injuries. In fact, most injuries are covered.

FALSE- You don’t have a case because your employer is out of business.
TRUTH– You still have a case. The work comp insurance still covers it. Even if the insurance is bankrupt you can still pursue the Missouri Guarantee Insurance Fund.

FALSE- Employer tells you to submit the work injury bills to your company health insurance plan.
TRUTH– Always insist work comp pay. It is at no cost, no copay, & zero deductible to you. Work comp is separate and apart from health insurance

FALSE- Employer tells you they never owe you mileage.
TRUTH– Employer shall advance/reimburse transportation when medical appointments are outside metro area where you worked.

On 3/28/2017, Governor Greitens signed HB153 into law making Missouri a Daubert state for qualifying expert witnesses on certain cases only. Link to Bill Text.

Previous Standard: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Daubert Standard: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b)  The testimony is based on sufficient facts or data; (c)  The testimony is the product of reliable principles and methods; and (d)  The expert has reliably applied the principles and methods to the facts of the case.

Missouri Governor Greitens announced Anna Hui, Acting Director of the Illinois Department of Labor, will become the new Director of the Missouri Department of Labor. See the Governor’s 3/30/2017 press release here.