Workers' compensation law affects leave, wages

While the tort reform legislation outside of the workers’ compensation arena prompted a rash of lawsuit filings around the state, the changes to work-related laws did not. That is not to say there won’t be a far-reaching impact, but the changes might not be as immediately apparent.

An article published in the May 9 issue of Springfield Business Journal gave a basic outline of the changes of the 2005 amendments to the Missouri Workers’ Compensation Act, including the definition of “accident,” the limits on compensability of accidents occurring on the way to and from work, penalties regarding drugs and alcohol and safety violations, and the limits on attorneys’ fees.

This discussion will focus on the changes affecting truck drivers and trucking companies, as well as employee personal leave and lost wages, and lost time for follow-up medical care for work- related injuries.

The changes to Section 287.040, .041 and .043 eliminate some over-the-road truck drivers from being covered by the Missouri Workers’ compensation law. A typical arrangement for a trucking company is to hire a driver as an independent contractor. The contract states that the driver is an independent contractor, not an employee. The contract spells out that the driver is not provided workers’ compensation insurance by the trucking company. When the driver does not own a rig, as is often the case, the trucking company assists the driver in obtaining one through a lease-purchase agreement. Typically, the company that supplies the truck is affiliated with the trucking company.

They are not the same entity, however, and there is a separate agreement between the driver-lessee and the company-lessor.

This provision in the law was initially set in place in 1993; however, many court decisions have disregarded this statute and found that the drivers were employees of the trucking companies. The companies were ordered to pay the drivers workers’ compensation benefits.

The specific changes are set out in Section 287. 043, which expressly rejects the two cases ordering benefits. The two cases are Nunn v. C.C. Midwest, 151 S.W. 3d 388 (MO. App. W.D. 2004) and Owner Operator Independent Drivers Ass’n Inc. v. New Prime Inc., 133 S.W. 3d 162 (MO App. S.D. 2004).

The effect of the legislation overruling these cases is that when trucking companies enter into agreements with drivers to act as independent contractors, and not employees, the drivers will actually be treated as independent contractors. The trucking companies will not be required to provide workers’ compensation benefits “after the fact;” i.e., after the driver is injured on the job but has failed to obtain workers’ compensation benefits for himself.

An additional change is to set out a provision empowering employers to “allow or require” employees to use their paid leave, personal leave, or medical or sick leave when they miss work “to attend to medical treatment, physical rehabilitation or medical evaluations during work time.” In addition, this new section nullifies any law that is in dispute with this section.

This does not mean that an employer can require an employee to take personal, paid, or medical or sick leave when they are actively being treated in order for the employer to avoid paying lost wages. Instead, it addresses a situation in which an employee has been released to return to work after an injury, but still must leave work for an occasional medical appointment, physical rehabilitation appointment or a disability evaluation.

This change means that the employer can depend on paying lost wages until the employee is released to return to work, and for the occasional situation described above, the employer can require the employee to use accrued benefits. The change is a clarification in the prior law, in that previously employees frequently requested (usually at the behest of their attorneys) that they be provided with lost wages for the type of follow-up visits described above, even if they had plenty of sick or personal time available. This simply is another way that the benefits already provided to employees by employers are effectively utilized, while preventing the already high workers’ compensation costs from increasing even further.

Many of the changes will be applied to those injuries that occur on Aug. 28 or later. However, some of them will be applied to cases where the injuries occurred prior to Aug. 28.

The determination of whether the changes will apply to injuries occurring prior to Aug. 28 will depend on whether the changes are deemed “substantive” or “procedural.” This will most likely be an area of contention, and exactly when changes are applied will have to be litigated in some instances.

It is generally thought, however, that these changes will make costs more predictable and more manageable.

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.