Workers’ Compensation Q & A

1. Are there new workers’ compensation laws?

Yes.  The Missouri legislature passed Senate Bill number 1 and 103.  Governor Matt Blunt signed these bills into law effective August 28, 2005.  You can see a copy of the bill and the new law changes here. (PDF 3.3 MB)

2. Will the new workers’ compensation laws affect my case?

Columbia Worker's Compensation AttorneyYes.  If you are injured at work after August 28, 2005.

3. How will the new workers’ compensation law affect my case?

The apparent goal of the new laws is to reduce benefits and to reduce the number of work related injury claims.  Some of the more significant changes (there are dozens) in terms of affecting your rights and benefits the most are summarized below:

The new workers’ compensation law eliminates all of the Legal Advisors.  In addition, the Administrative Law Judges are no longer allowed to give legal advice.

Occupational diseases and injuries due to repetitive motion are compensable only if the occupational exposure was the prevailing factor.  The old definition was a substantial factor, which was a broader definition than the prevailing factor.

There are substantial penalties and reduction of benefits, for violating drug, alcohol and safety policies in affect at your work place.

You are required to provide written notice of your injury (see below) within 30 days.  The old law only required oral notice of the injury to your employer.

Empowers employers to terminate all temporary disability benefits (off work money) for Employees who are terminated for post injury misconduct.

Permanent partial disability is also affected.  Causation and disability must be stated to a reasonable degree of medical certainty and must be demonstrated and certified by a physician.  In addition, where inconsistent, or conflicting medical opinions (reports) exist, objective medical findings shall prevail over subjective medical findings.  Note:  the new law still allows us to obtain an independent medical examination by a doctor that we chose to determine permanent disability and causation.

4. What injuries are covered by the Act?

The injury, death, or occupational disease must result from an accident or exposure to an occupational disease that arises out of and in the course of the employee’s employment. This is sometimes a difficult issue, particulalry when the worker has had a prior injury.

5. Is a worker entitled to benefits under the Missouri Workers’Compensation Act for injuries that occur from performing repetitive motions in the course of their job?

Yes.  A worker that has sustained an injury, or occupational disease, commonly referred to as “repetitive trauma” is entitled to benefits under the Act.  These types of injuries generally result from a worker’s repeated, consistent, physical movement of a particular part of their body in the performance of normal work activities.  Unfortunately, due to the fact that symptoms of these types of injuries manifest themselves over a period of time, the worker might not associate the eventual diagnosis of the injury as work-related.  Just because the work comp insurance company denies an injury does not mean that the worker isn’t entitled to benefits.

For an occupational disease case to be compensable, the occupational exposure must be the prevailing factor not just a substantial factor (old definition). In addition, the Employer responsible for the occupational disease, is the Employer who last exposed the Employee to the occupational hazard of the occupational disease prior to evidence (example: nerve conduction study) of disability.

6. Does a worker have a viable Workers’ Compensation claim if the worker injures a previously injured part of the body or aggravates an existing physical condition?

Yes.  If a worker sustains a work-related injury to a previously injured part of their body, regardless of whether the previous injury was work-related or not, the worker is not barred from recovery under the Act.  Similarly, if the worker has an accident that aggravates or accelerates a pre-existing physical condition, he or she is still entitled to the rights and benefits provided by the Act.

However, the new workers’ compensation law states that any award of compensation for disability shall be reduced by any disability determined to be pre-existing or attributed to the natural process of aging.  This new section is going to make it all the more vital to have an independent medical exam performed by a doctor who is not selected by your Employer or their work comp insurance company.

7. Is a worker that sustains an on the job injury entitled to compensation if the injury causes disfigurement?

A worker who suffers a serious and permanent disfigurement (for example a burn or scarring) to the head, face, neck or arms as a result of a work-related injury, is entitled to benefits for disfigurement under the Act.

8. What should an injured worker do immediately after suffering a work-related injury?

Section 287.420 of the Revised Statutes of Mo amended the notice requirements effective August 28, 2005. Under this section Employee’s are required to provide written notice to their Employer of the time, place and nature of the injury, and the name and address of the person injured no later than 30 days after the work related accident. If the injury is an occupational disease then the notice must be given within 30 days after the diagnosis of the occupational disease condition. You can obtain a form to provide written notice to your Employer on the links below.

This form is in Adobe Acrobat and can be opened and printed from Acrobate Reader, or downloaded and saved to your computer.

This form is in Microsoft Word format and can be opened and printed from Word, or downloaded and saved to your computer.

9. Can I still pursue my case if I did not give written notice to my Employer?

Probably.  There is an exception to the written notice requirement that may apply to you.  But the sooner you act, the better.

10. Is it important for injured workers to give an accurate and extensive description of the accident to their own medical providers?

Yes.  If a dispute arises as to how, when, or if the worker sustained an injury as a result of a work-related accident, then a detailed and accurate description of the accident to his or her medical provider could substantiate the worker’s claim.

11. What benefits are available under the Missouri Workers’ Compensation Act for a work-related injury?

First, you are entitled to medical treatment. However, your employer does have the right to select the doctor for your medical treatment, although you have a right to a second opinion from other doctors at your own expense.

Second, if your employer’s authorized treating physician takes you off work for more than three days, then you are entitled to recover TTD checks.  The term TTD stands for “Temporary Total Disability” and should roughly equal 2/3% of your gross weekly wages averaged over the 13 weeks before your date of injury.

Third and most importantly, you are also entitled to compensation if you have a permanent injury as a result of a work-related accident. The insurance company may or may not offer you a settlement. Furthermore, you do not have to settle for the treating doctor’s rating of your permanent disability.  In some cases the work comp doctor may not think you have any permanent disability and you may still be entitled to a settlement for permanent injury. It is important to talk to attorney as early in the process as possible and to maximize your recovery.

12. Does an injured worker have to accept the treating doctor’s rating?

Because your employer has selected your authorized treating physician, often your rating from this physician is usually low or non-existent. Doctors’ opinions regarding your disability can and do vary, and an attorney can help you obtain an independent medical examination that may yield a higher rating and ultimately more money to you.

13. Does an injured worker have to file his or her Workers’ Compensation claim within a specified period of time?

Yes. In general an injured worker should file a claim within two years of the date of injury or within two years of the last benefit paid by the Employer/Insurer.  This time limit is referred to as a Statute of Limitations, and if a claim is not filed within the applicable statute of limitations your claim is barred and you can no longer pursue your rights as provided under the Act. You should also be aware that a Claim is not a Report of Injury. Your employer is required to file a Report of Injury, but you must file a Claim with the Division of Workers’ Compensation before the Statute of Limitations expires in your case.

14. Should an injured worker allow his or her employer or its Workers’ Compensation insurance company to record a statement regarding the accident?

No.  There is no requirement that you provide a recorded statement to the Employer/Insurer. A recorded statement is not taken for the benefit of the injured worker.  The recorded statement could be used as evidence against a worker at a subsequent hearing before an administrative law judge.

15. Should an injured worker sign any documents for his or her employer or its Workers’ Compensation insurance company?

No. The only document an injured worker should sign is an accident report as requested by his or her employer. This does not include the written Report of Injury that an Employee should fill out (see above).  Any other documents signed by the worker, no matter how harmless or insignificant they may appear, may adversely affect the worker’ s rights and benefits under the Act and/or a potential third party case.

16. Should an injured worker sign a medical authorization for the Employer/Insurer?

Probably not.  The Employer/Insurer will often provide the worker with what is known as a blanket medical authorization’ which would allow the Employer/Insurer to obtain any and all records regarding your treatment for anything that you have ever been treated for.  The Employer/Insurer is not entitled to a blanket medical authorization; they are only entitled to an authorization limited to the particular parts of your body that you claim are injured.

17. Can a worker receive Social Security Disability benefits and benefits from a work-related injury?

Yes, if an injured worker is disabled from working and it is anticipated that their disability will continue for one year or longer, then he or she could be eligible for Social Security benefits.

18. If an injured worker is approved for Social Security benefits will it have any affect on his or her Workers’ Compensation benefits?

Yes. The Social Security Administration will take an offset or reduce your Social Security benefits by the amount of any Temporary Total Disability benefits received from Workers’ Compensation if you are receiving both at the same time. In addition, they may take an offset for Permanent Partial Disability benefits obtained in your Workers’ Compensation case if the appropriate forms are not utilized.  In other words, the lump sum settlement that you receive in your Worker’ s Compensation case may reduce or eliminate your Social Security Disability benefits if the proper settlement papers are not utilized. Your Workers’ Compensation attorney will ensure that the proper settlement papers are utilized.

19. Should an injured worker apply for group health insurance benefits instead of Workers’ Compensation benefits?

No.  Often an Employer will encourage their injured workers to use group health insurance benefits instead of Workers’ Compensation benefits. However, it is advisable not to apply for group heath insurance for the following reasons:

First, most group health insurance policies do not provide for lost income or temporary total disability benefits (TTD) while you miss work due to the injury.

Second, most group health insurance policies usually require that a worker pay a portion of the medial expenses, which is called a deductible or co-pay.  This is often 10 to 20% of the medial bills incurred.

Third and most importantly, group health insurance benefits frequently exclude the payment of any benefits for work injures, and therefore, might require the injured worker to indicate, in writing, that the benefits being provided are not a result of a work-related injury.  Such an admission could jeopardize their Workers’ Compensation Claim.

However, your group health insurance coverage can be used if the work comp doctor releases you from treatment regarding your work injury, or if work comp denies any treatment or tests. You should discuss this with your attorney before taking any action.

20. What if the work injury resulted from an automobile accident, a defective machine, or another “third-party” case?

An injured worker could have the right to receive a substantial amount of monetary damages from a third-party lawsuit or claim if the facts and circumstances of the accident establish that a third party other than the employer (or co-workers) is responsible for the accident.  However, the work comp insurance company will usually have a right to be paid back out of any such claim. Only an attorney can help the worker collect as much as possible in such cases.

21. What is the “Second Injury Fund”?

The Second Injury Fund is a State fund that is funded by a surcharge imposed on the Employer’s Workers Compensation premiums in Missouri. The Second Injury Fund can provide additional benefits to injured workers. There are several situations where this can occur.

First, the Second Injury Fund can provide payment for medical treatment if the employer is required to have Workers’ Compensation insurance but for whatever reason does not have any. Secondly, under certain limited circumstances, the Second Injury Fund will pay lost income benefits from a second job when an injury occurred on the primary job.

The third and the most common benefit paid by the Second Injury Fund is a lump sum settlement that is paid because of the additional disability that results from a work related injury when combined with a pre-existing disabling condition. In order for benefits to be payable by the Second Injury Fund, both the primary injury and the pre-existing injury must meet minimum threshold requirements on both ends.

If the injury is to the “body as a whole”(e.g. a back injury) then the minimum threshold requirement is 12.5% of the body.  If the injury is to an extremity (arm or leg) then the minimum threshold requirement is 15% at the level of that extremity (e.g. 15% of the hand, elbow, or shoulder).

For example, if you settled your primary case for 12.5% of the body as a whole because of a low back injury, and have a prior work comp case that was adjudicated (settled or tried) for 15% of the shoulder, then the Second Injury Fund would pay an additional lump sum settlement (in addition to what your Employer or Employer’s work comp carrier paid) to resolve this Second Injury Fund claim.  How much the Second Injury Fund would pay would depend on your permanent partial disability rate and what “loading factor” was used.

Continuing with this example, if your gross wages were $300.00 a week, then your permanent partial disability (work comp) rate would be $200.00. If a 10% “load”was applied then 12.5% of the back would be 50 weeks and 15% of the shoulder would be 34.8 weeks, or a total of 84.8 weeks times 10% (the load) times the comp rate would result in the second injury fund paying a settlement of $1696.00 (8.48 weeks times $200.00).  The pre-existing disability does not have to be a work related injury, but it does still have to meet the threshold requirements. Therefore, if a pre-existing injury is not adjudicated (i.e. wasn’t a work comp claim), a doctor would have to assign a rating to rate the pre-existing disability for Second Injury Fund purposes.

The fourth benefit that the Second Injury Fund provides is when a person is totally and permanently disabled (i.e. is not employable in the open labor market) as a result of the combination of the primary work related injury and other pre-existing disabling conditions. This payment can be in the form of a weekly check for the rest of the life of the injured worker, or a lump sum payment. The issues involved in this type of Second Injury Fund claim are too numerous and complex to go into on our website so please make an appointment with us if you feel this situation may apply to you.

22. Why do injured workers need an attorney to handle their Workers’ Compensation claim?

These selected questions and answers barely scratch the surface of the issues and pitfalls that can occur during the Workers’ Compensation process.  Your employer and their insurance company have professional Workers’ Compensation adjusters and attorneys to handle these cases on their behalf.  Their goal is to save their clients money, which means paying you as little as possible.  An attorney can act on your behalf and your best interest to obtain the best settlement or award that is possible for your set of circumstances. If your employer and their insurance company deny your injury is work-related, deny you medical treatment, fail to pay you T.T.D. while you are off work because of your injuries, or fail to pay you an adequate settlement, then an attorney can prepare and try your case before an Administrative Law Judge. An attorney can make sure that you have an independent medical examination and rating by a doctor that is not selected by the employer or the Workers’ Compensation company.  If you are on Social Security Disability, then an attorney can use the appropriate forms to structure your settlement so the Social Security Administration does not reduce your benefits.  An attorney can often appear at settings on your behalf so you do not have to spend half of your day sitting in court dealing with the insurance company’s attorneys. An attorney at the Hines & Wilson Law Firm is available to answer your questions and guide you through the process in a professional and courteous manner and to help you obtain all of the benefits that you are entitled to from your job-related injury.