HCS HB 148 -- WORKERS' COMPENSATION LAW

SPONSOR:  Hunter

COMMITTEE ACTION:  Voted "do pass" by the Committee on Workforce
Development and Workplace Safety by a vote of 7 to 5.

This substitute changes the laws regarding workers' compensation.
The substitute:

(1)  Requires that any member appointed or serving on the Labor
and Industrial Relations Commission receive Senate confirmation
within 30 days after the Senate convenes for regular session or
immediately resign from the commission;

(2)  Redefines "accident" to mean a specific, identifiable,
traumatic event during a single work shift;

(3)  Defines "prevailing factor" to mean the accident is the
primary factor in relation to any other factor, causing both the
resulting medical condition and disability;

(4)  Requires that an injury due to an accident be compensable
only if the accident was the prevailing factor in causing the
resulting medical condition and disability;

(5)  Excludes as compensable any injury resulting from idiopathic
causes;

(6)  Requires that cardiovascular, pulmonary, respiratory, or
other disease or a cerebrovascular accident or a myocardial
infarction is an injury only if the accident is the prevailing
factor in causing the resulting medical condition and the
exertion of the work precipitating the disability was more than
the employee's usual work performed during regular employment;

(7)  Requires that an injury sustained in a company-owned or
subsidized automobile while traveling to or from home or work is
not compensable;

(8)  Requires that in applying the provisions of the Workers'
Compensation Law it is the intent of the General Assembly to
abrogate earlier case law interpreting the definition of
"accident," "occupational disease," "arising out of," and "in the
course of employment";

(9)  Requires that a for-hire motor carrier not be determined to
be an employer of a lessor or driver employed by the lessor;

(10)  Requires that an injury by occupational disease be
compensable only if the occupational exposure was the prevailing
factor in causing the resulting medical condition and disability;

(11)  Specifies that the ordinary deterioration of the body
caused by aging or ordinary activities performed in the course of
day-to-day living is not compensable;

(12)  Requires that an injury caused by repetitive motion is
compensable only if the occupational exposure is the prevailing
factor resulting in the medical condition or disability;

(13)  Requires that certain diseases resulting from exposure to
certain occupational hazards be recognized as an occupational
disease.  This provision applies to firefighters and police
officers;

(14)  Exempts as compensable any claims covered by federal law or
filed under workers' compensation laws of another state;

(15)  Requires that an employee who fails to use safety devices
provided by the employer or to obey posted safety rules will have
his or her compensation or death benefit reduced by 50%;

(16)  Requires that an employee who fails to obey any rule or
policy related to a drug-free workplace or the use of alcohol
will forfeit any compensation and death benefit;

(17)  Requires that alcohol use be the proximate cause of the
injury, provided the employer required the use of alcohol as part
of employment;

(18)  Requires that if an employee receives a reduction or
forfeiture of benefits order, services rendered prior to the
order by a health care provider must be compensated;

(19)  Requires that an employee participating in a
workplace-related recreational activity resulting in an injury
not be compensable;

(20)  Authorizes an employer to require an employee absent from
work due to medical reasons to use any accumulated paid leave to
offset the absence;

(21)  Requires that an employee must submit to an
employer-requested vocational testing and rehabilitation
assessment;

(22)  Requires that for the period of time a claimant is
receiving unemployment compensation, the claimant is disqualified
from receiving temporary total disability benefits;

(23)  Requires that an employee is ineligible to receive
temporary total or temporary partial disability benefits if the
employee is terminated from post-injury employment for
misconduct;

(24)  Requires that a finding of permanent partial disability or
permanent total disability be certified by a physician;

(25)  Requires that for the purpose of determining compensability
and disability, objective medical findings will prevail over
subjective medical findings;

(26)  Requires that complaints of pain, except those which can be
objectively documented by a physician, not be used in determining
physical or anatomical impairment;

(27)  Requires that, except where otherwise addressed, the
American Medical Association's, "Guide to the Evaluation of
Permanent Impairment," 5th Edition, be used in determining the
level of disability;

(28)  Requires that a permanent partial disability compensation
award is reduced to the extent that a pre-existing condition or
attributable aging process caused or prolonged the disability;

(29)  Excludes from admissibility any requested document,
information, or statement pursuant to a claim unless provided
within 30 days.  The term "statement" does not include video,
motion picture, or any reproduction of an image;

(30)  Excludes a limited monetary bonus from the employee's total
yearly pay when calculating the amount of compensation the
employee is entitled;

(31)  Requires that an administrative law judge or the commission
approve a settlement agreement unless the agreement was found to
be unjust;

(32)  Requires that attorney fees not exceed 25% of the amount of
the employee's compensation that is in dispute, exclusive of
medical and rehabilitation expenses;

(33)  Requires that certain claims information be given to the
employer within 30 days of the diagnosis of a condition;

(34)  Authorizes the Governor to appoint up to 40 administrative
law judges;

(35)  Specifies the appointment, terms, member qualification, and
duties of the Administrative Law Judge Review Committee;

(36)  Requires that all administrative law judges are subject to
an annual performance audit administered by the review committee;

(37)  Authorizes the commission or the Director of the Division
of Workers' Compensation to determine the location of hearings;

(38)  Clarifies the computation of the quarterly remission amount
required of employers;

(39)  Requires the director, beginning October 31, 2005, to
estimate the amount of benefits payable from the Second Injury
Fund for the following year.  The director is also required to
calculate the insured or self-insurers employer surcharge for the
ensuing year;

(40)  Requires the director, beginning January 1, 2006, to
calculate the employer surcharge, which is not to exceed 3% of
the projected following year requirement, less any remaining
balance from the previous year;

(41)  Requires that the failure of the director to calculate the
surcharge by October 31 results in the surcharge not becoming
effective for any calender quarter beginning less than 60 days
from the date of the calculation;

(42)  Requires, beginning January 1, 2006, that only
administrative law judges and the commission have the power to
review claims under the Workers' Compensation Law;

(43)  Requires that, if a self-insured employer has filed for
bankruptcy, the division is to notify any employee of the
bankrupt employer having an open claim.  The employee is required
to provide certain information to the division, the court of
jurisdiction, and the Missouri Private Sector Self-Insurance
Guaranty Corporation.  An employee failing to provide the
required information within 30 days of the notice will bar the
division from invoking jurisdiction over any matter for which the
employee was entitled workers' compensation benefits;

(44)  Requires the Attorney General, beginning January 1, 2006,
to annually provide the division and the General Assembly with a
report containing fraud and noncompliance prosecution costs and
other pertinent information;

(45)  Requires that a health care provider committing fraud under
the Workers' Compensation Law is guilty of a class A misdemeanor
and subject to a fine of up to $20,000.  Any provider committing
a subsequent or, in the event of a previous conviction, a second
fraudulent act is guilty of a class D felony;

(46)  Updates testing and standards pursuant to occupational
hearing loss;

(47)  Requires that the party initiating any proceeding found by
the division or the commission to be without grounds may be
assessed the costs of the proceedings; and

(48)  Requires that for a claimant to receive compensation for
any occupational disease or repetitive trauma certain information
must be provided to the employer within 30 days of the diagnosis.

FISCAL NOTE:  Estimated Income on General Revenue Fund of More
than $115,000 in FY 2006, More than $121,450 in FY 2007, and More
than $128,094 in FY 2008.  Estimated Effect on Other State Funds
of an Income of Unknown to a Cost of Unknown in FY 2006, FY 2007,
and FY 2008.  Unknown expected to exceed $100,000.

PROPONENTS:  Supporters say that the costs associated with
workers' compensation insurance are a deterrent to business
expansion, location, and survival in Missouri.  The liberal
interpretation of a compensable injury, administrative law judge
awards, attorney fees, and unnecessary attorney involvement in
claim settlements drive up the insurance costs for employers.  A
simple system, designed to pay for an injured employee's medical
costs and time lost from work while preserving the employee's
job, is out of control.

Testifying for the bill were Representative Hunter; Chris Archer;
Jerry Hunter; Associated Industries of Missouri; Missouri Chamber
of Commence and Industry; National Federation of Independent
Business; American Insurance Association; Missouri Insurance
Coalition; Kirksville Regional Economic Development,
Incorporated; Barth Holohan III; Troy Robertson; City of Lebanon;
Steve Jinkins; Missouri Motor Carriers Association; John Hancock;
Missouri Self Insurers Association; Missouri Private Sector
Individual Self Insurers Guaranty Corporation; Missouri Hospital
Association; Billy Meyer; Brad Kocher; Paul Lenover; Dianna
Yates; Missouri United School Insurance Council; Dr. Gary Van
Meter; Randy Lee; Steve Luebbert; Steve Buckley; Lonnie Combs;
Missouri Retailers Association; Missouri Grocers Association;
Missouri Restaurant Association; Independent Electrical
Contractors Association; Bradley Young; Missouri Automobile
Dealers Self Insurers Trust; Kathy Swan; Missouri Merchants and
Manufacturers Association; and Thomas Shaw.

OPPONENTS:  Those who oppose the bill say that an attorney's
assistance is a fundamental right of an employee, and associated
fees are not responsible for the cost increases in workers'
compensation insurance.  Increased insurance costs are due to
increased medical costs, the downturn of the national economy,
and natural disasters.  Administrative law judges being subject
to review by the legislative branch of government is
contradictory to an employee receiving a fair and impartial
judgment.

Testifying against the bill were Missouri AFL-CIO; John
Schneider; Missouri Association of Trial Attorneys; Richard
Gartner; Carpenters' District Council of Kansas City; and
Carpenters' District Council of Greater St. Louis.

OTHERS:  Others testifying on the bill say that the Workers'
Compensation Law requires workers to give up the right to sue
their employers in return for a fair and just compensation to
offset associated medical costs and lost wages.  Settlement
offers should be dated and in writing.  Police by virtue of their
first responder requirements and daily interaction with the
public are in a more stressful work environment than
firefighters.  All cost drivers, including medical costs, must be
revisited to correct the inadequacies in the law rather than the
enhancement of business interests exclusively.

Others testifying on the bill were Representative Flook; Missouri
Municipal League; Larry Hedgecock; Kansas City Police Officers
Association; and Independent Drivers Association.

Roland Tackett, Legislative Analyst

Missouri House of Representatives
93rd General Assembly, 1st Regular Session
Last Updated August 25, 2005 at 1:18 pm