Amendments alter Missouri workers' compensation laws

Workers’ compensation reform includes changes in what constitutes an accident, where compensable injuries can occur, penalties regarding drugs, alcohol and safety violations, and limitations on attorneys’ fees.

Prior to 2005, for an injury to be covered under workers’ compensation, the work need only have been a substantial factor in the injury. That meant that if an individual had, say, a history of a bad back and strenuous activities outside of the workplace, yet had work which also required heavy lifting, then that individual’s back injury would be covered under workers’ compensation if the work was found to be a “substantial factor.” The 2005 amendments change the law so that the work accident must be a prevailing factor in causing the medical condition and disability.

The amended statute further provides that an injury is compensable only if it is “reasonably apparent” that the accident is the prevailing factor. The injury or accident must not come from a hazard or risk unrelated to the employment, and the hazard or risk must not be one to which workers would be equally exposed in normal life.

For example, assume an individual has carpal tunnel syndrome, a condition that affects the wrists and is often the result of repetitive activities. Typing and assembly line work frequently results in carpal tunnel syndrome. Assume the individual with carpal tunnel syndrome does repetitive activity at work but also works at home milking cows on her dairy farm. Under the current statute, the work activities on the assembly line must be the prevailing factor. If a physician who diagnoses the condition finds that the cow milking contributes equally to the carpal tunnel syndrome, the condition will not be compensable.

The 2005 amendment has abrogated or curtailed the “extended premises” doctrine. Previously, an individual who was in an accident on the way to or from work could be covered under workers’ compensation if conditions were met such as driving a company automobile or taking a customary, approved, permitted, usual or accepted route. Now, injuries sustained in company-owned or subsidized automobiles while the employee is on the way to or from work will not be compensable.

It is true that any employer and employee can set up different terms for their particular job. However, this amendment simply means that injuries to and from work will not automatically be covered if there isn’t a contrary agreement between the employer and the employee.

The penalties regarding drugs, alcohol and safety violations have been changed as well. Pre-amendment, there was a penalty of 15 percent to be assessed against an employee’s benefits if the employee was under the influence of drugs or alcohol when the injury occurred. The employer was required to have a policy regarding drugs and alcohol (meaning that their use in the workplace was forbidden), and the employee had to have had knowledge of the policy. Many employers satisfy the notice requirement by having new employees sign drug and alcohol policies when they start employment. This is a good practice, as it eliminates a swearing match between supervisors and employees about whether the employee was informed of the policy.

As amended, if an injury is sustained in conjunction with the use of drugs or alcohol, the benefits shall be reduced by 50 percent. Further, if the use of alcohol or drugs is the proximate cause of death or injury, the benefits shall be forfeited entirely.

There was a 15 percent penalty assessed prior to the amendment for the violation of any safety rule. If an employee violated any safety regulations of the employer, and the regulations were posted in a conspicuous place, then the employee’s benefits would be reduced by 15 percent. Now, the failure to use safety devices need not be willful, and the penalty has been increased from 15 percent to 50 percent. The employer need not post the regulations in a conspicuous place, but need only have made a reasonable effort to cause the employees to use the safety device or devices.

If an employee claimed to be unaware of a safety regulation and committed a violation, the courts often found that the employee did not have proper notice of the regulation.

A frequently seen example is an employee removing a safety guard on an assembly line position. That might enable the employee to get work done more quickly, but it endangers the employee. The amendment changes the law so that if an employee does remove a guard or fails to wear protective gear, the penalty can be assessed even if the employee claims to be unaware of the requirements.

One additional significant change is in the area of attorneys’ fees. As the law stood, an attorney could take 25 percent of the amount of the settlement as a fee. That was the case even if the employee had been offered the exact same settlement prior to getting an attorney. Now, an attorney can only take 25 percent of the amount greater than what was offered prior to representation.

This will encourage insurance companies to make reasonable offers and also discourage attorneys from accepting cases where there are serious negotiations going on.

In short, the new changes should provide greater protection for the employers yet still provide employees with protection of their rights to workers’ compensation benefits.

Rebecca Tatlow is a partner with the law firm Evans & Dixon LLC, which specializes in the defense of workers’ compensation and has offices in Springfield, St. Louis and Kansas City.