Industry adjusts to workers' compensation changes

According to figures from the Missouri Department of Labor and Industrial Relations, the number of workers’ compensation claims dropped to 7,016 from Aug. 28, 2005 to Jan. 1, 2006, compared to 8,862 in the same period a year earlier.

At the top of the list of changes that are being credited with driving down the number of cases filed is Section 287.120.6 of the new Missouri Workers’ Compensation Act. This section addresses injuries and penalties associated with the use of drugs and alcohol in the workplace.

Under the old statute, a worker who was injured on the job while under the influence of alcohol or nonprescribed drugs had the right to file for workers’ compensation benefits, but his benefits could be reduced by 15 percent for such a scenario.

The previous law also put the responsibility on the employer to have an anti-substance abuse policy in place, and also demanded that the employer make efforts to ensure workers were educated about such a policy by posting the policy and being responsible for employees’ knowledge of the policy.

The new Missouri law takes a harder look at the employee’s role if he or she uses alcohol or nonprescribed drugs while working, rather than the employer’s role in making policy. If an injury or death occurs “in conjunction” with a worker’s use of alcohol or nonprescribed drugs, then the worker can expect a 50 percent reduction in benefits. The employer must still have a rule or policy relating to a drug-free workplace.

Section 287.120.6 (3) of the new law adds a new dimension to an employee’s conduct after an on-the-job accident or injury. The section states, “… An employee’s refusal to take a test for alcohol or a nonprescribed controlled substance, as defined by Section 195.010 RSMo, at the request of the employer shall result in the forfeiture of benefits under this chapter if the employer had sufficient cause to suspect use of alcohol or a nonprescribed controlled substance by the claimant or if the employer’s policy clearly authorizes post-injury testing.”

Taking the new law further, if the use of alcohol or nonprescribed controlled drugs which violates the employer’s rule or policy is the proximate cause of the death or injury, benefits that otherwise would be awarded for death or disability would be completely forfeited. Exceptions to this situation existed under the old law. Now, if alcohol or nonprescribed drugs are proven to be the proximate cause, there is no question that benefits would be forfeited.

Job safety components of the workers’ compensation law also were reviewed and revised by the legislature last year. Under the old Section 287.120.5, a worker injured on the job in conjunction with a safety violation could see a 15 percent reduction in a benefits payout. However, the old law relied heavily on the extenuating role of the employer – did the employer make a “diligent” effort to ensure on-the-job safety, and did the employer “post safety rules in conspicuous places”?

The rewritten section shifts some of the burden of knowing about safety rules from the employer to the employee. The new section outlines the need for the employer to make “reasonable efforts to cause his or her employees to use the safety device or devices.” And, if the employee has “actual knowledge” of the rule (vs. requiring an employer to make a “diligent effort” to inform and educate his or her workers about safety rules), workers’ compensation benefits can be reduced “at least 25 percent but not more than 50 percent …”

The common theme in these revisions and in the common sense changes that employers and insurers are hoping to find in the predicted results are a split of responsibilities when the general safety of work conditions and workplace drug policies come into play. With these changes, employees should take a more active role in following these policies, and employers should step forward in implementing and enforcing them.

Undoubtedly, you will see insurance companies and their counsel embracing these provisions when litigating workers’ compensation claims under the new law. If early trends continue, the new workers’ compensation law could have an economic impact on businesses’ injury claim rates and, ultimately, their premium rates. It’s all part of the changes that could “trickle down” from this newly revised law.

Shari Lockhart is the managing partner of the Springfield office of Evans & Dixon LLC, a St. Louis-based law firm engaged in the practice of workers’ compensation and civil litigation defense. She can be reached at slockhart@evans-dixon.com.