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Workers’ Compensation Act changes,
rob workers of rights

Recently, Gov. Matt Blunt signed workers’ compensation legislation passed by the Missouri General Assembly. The law carries with it many changes, most of which are designed to strengthen management’s ability to deny benefits to injured workers. While the changes are numerous, the changes that are of most concern for Missouri NEA members are listed below.

The definition of what constitutes an “accident” has changed so that people who are hurt while performing their normal jobs, without having an unusual trauma, will find it more difficult to collect benefits.

Workers who have pre-existing medical conditions that are aggravated or worsened by their employment will find it more difficult to collect benefits. Work activities must now be “the prevailing factor” and not “a substantial factor” in causing the injury. This higher standard will allow the insurers to deny more cases.

The statute of limitations will begin running on occupational disease claims (including repetitive trauma injuries such as carpal tunnel syndrome) as soon as workers know they have an injury.

Failure to use safety devices at work will result in at least a 25 percent penalty to workers, and possibly as high as 50 percent. This is a stark contrast to the employer’s penalty, which remains at 15 percent if it violates a safety statute.

Use of alcohol results in 50 percent loss of benefits, and refusal to take an alcohol test results in forfeiture of all benefits. Questions remain as to whether the reduction also applies to medical expenses.

Management may require workers to use all accumulated sick leave while attending medical treatment and evaluations. This may cause a person to exhaust all of his or her sick leave if he or she is required to attend extended physical therapy.

Workers who receive unemployment benefits while off work due to injury are disqualified from receiving disability benefits. Before, a person would simply have to reimburse unemployment once he or she received lost-time benefits under workers’ compensation.

Workers who are terminated for misconduct following an accident are disqualified from receiving disability benefits. This may provide incentive to employers to find ways to terminate people for misconduct to remove their obligation to pay lost-time benefits.

In occupational disease claims, including repetitive trauma injuries, claims will be barred unless the worker reports the injury to management within 30 days of the diagnosis of the condition. As a result, as soon as a person is diagnosed with the condition, he or she will be required to report it to the employer or run the risk of having the claim barred forever.

Probably the most telling aspect of the changes is the fact that Gov. Blunt removed these words from the law that have been present for decades: “all of the provisions of [the workers’ compensation law] shall be liberally construed with a view to the public welfare.” Each of these changes will result in a larger number of claims being denied, and if an injured worker is contacted by an insurance company before knowing his or her rights, the chances claims being denied will be that much greater.

Most significantly, the current law also affects cases that are accepted by the insurance company. In the past, workers often did not need an attorney to represent them in their workers’ compensation cases. The Division of Workers’ Compensation had created a docket dedicated to unrepresented or “pro se” workers. Legal advisors met with injured workers and representatives from the insurance carriers to assist the parties in coming to a fair resolution. Since injured workers were often unaware of all of their rights, the legal advisor was allowed to educate the injured worker to make certain that the settlements were fair.

Under the current law, all legal advisors have been abolished, and judges are now required to approve any settlement that comes before them as long as the settlement is not the result of “undue influence or fraud.” This places injured workers at the mercy of insurance adjusters who can use their knowledge of the workers’ compensation laws to encourage unknowing workers to settle their cases for fractions of their true value. Moreover, the adjuster’s influence could irreparably harm an injured worker who inadvertently closes out his or her rights for future medical care.

If you are hurt at work, speak with an attorney before providing any statements to an insurance adjuster. Furthermore, if an insurance adjuster makes you an offer, discuss the offer with an attorney before signing any documents. The attorney will help you make certain that all of your rights are fully protected and that all benefits are properly paid as required under the law.

by David Jerome Schuchat, Cook & Werner P.C.