SECOND REGULAR SESSION
95TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES FISHER (125) (Sponsor), MUNZLINGER, STREAM, RICHARD, FUNDERBURK, THOMSON, NANCE, HOBBS, STEVENSON, WELLS, DEEKEN, ZERR, FLANIGAN, TILLEY, JONES (89), DIEHL, SATER, SCHOELLER, LAIR, BROWN (149), SCHARNHORST, DAY, GUEST, DETHROW, WILSON (130), NIEVES, RUESTMAN, SCHAD AND ALLEN (Co-sponsors).
4750L.02I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 287.220, 287.690, and 287.715, RSMo, and to enact in lieu thereof five new sections relating to workers' compensation law.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 287.220, 287.690, and 287.715, RSMo, are repealed and five new sections enacted in lieu thereof, to be known as sections 287.220, 287.225, 287.690, 287.715, and 287.890, to read as follows:
287.220. 1. No claim for permanent partial disability due to an injury occurring on or after August 28, 2010, shall be made against the second injury fund established under this section, except as provided in subsection 6 of this section.
2. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.
[2.] 3. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. However, beginning August 28, 2010, there shall be no compromise settlements contemplated by section 287.390 paid from the second injury fund in an amount greater than forty thousand dollars. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.
[3.] 4. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.
[4.] 5. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.
[5.] 6. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.
[6.] 7. Every three years the second injury fund shall have an actuarial study made to determine the solvency of the fund, appropriate funding level of the fund, and forecasted expenditures from the fund. The first actuarial study shall be completed prior to [July 1, 1988] July 1, 2011. The expenses of such actuarial studies shall be paid out of the fund for the support of the division of workers' compensation.
[7.] 8. The director of the division of workers' compensation shall maintain the financial data and records concerning the fund for the support of the division of workers' compensation and the second injury fund. The division shall also compile and report data on claims made pursuant to subsection 9 of this section. The attorney general shall provide all necessary information to the division for this purpose.
[8.] 9. All claims for fees and expenses filed against the second injury fund and all records pertaining thereto shall be open to the public.
[9.] 10. Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.
11. (1) Beginning August 28, 2010, claims against the second injury fund for disability shall only be compensated as provided for in this subsection and subsections 12 to 14 of this section and section 287.200. Claims for disability against the second injury fund shall be compensable where an employee has a medically documented preexisting disability as a direct result of active military duty or as a result of a preexisting permanent partial disability from a compensable injury as defined in section 287.020. To be compensable from the second injury fund, there shall be a medically documented preexisting disability resulting from active military duty or a preexisting permanent partial disability from a compensable injury as defined in section 287.020, which equals a minimum of fifty weeks of compensation, or if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability according to the medical standards that are used in determining such compensation, and thereafter sustains a subsequent work-related injury that, when combined with the preexisting military disability or preexisting permanent partial disability from a compensable injury as defined in section 287.020, results in permanent total disability as defined in section 287.020, compensation for such permanent total disability shall be paid as provided herein.
(2) If the preexisting permanent partial disability from a compensable injury as defined in section 287.020 or a disability resulting from active military duty and the subsequent work-related injury that is found to be compensable as defined in section 287.020 together result in total and permanent disability, then the employer at the time of the subsequent work-related injury shall be liable only for the disability resulting from the subsequent work-related injury considered alone and of itself; except that if the compensation for which the employer at the time of the subsequent work-related injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for the permanent total disability under section 287.200 out of the second injury fund.
(3) Maintenance of the second injury fund shall be provided by section 287.710. The state treasurer shall be the custodian of the fund which shall be deposited the same as are the state funds and any interest accruing thereon shall be added thereto. The funds shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer.
12. (1) In all cases in which a recovery against the fund is sought for permanent total disability, the employee shall file a claim naming the treasurer of the state of Missouri as custodian of the fund as a party and the employee shall submit to appropriate vocational testing, a vocational rehabilitation assessment, and an independent medical examination scheduled by the fund. Results of any such vocational testing, vocational rehabilitation assessment, or independent medical examination shall be admissible at any administrative or judicial proceeding where the claimant is a party.
(2) All awards for permanent total disability or medical or death benefits for an uninsured employer affecting the fund, shall be subject to the provisions of this chapter governing review and appeal.
(3) Compensation for benefits payable under this section, shall be based on the average weekly wage calculated under section 287.250 as of the date of the injury.
13. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary medical expenses. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the fund, shall have the same defenses to such claims as would the uninsured employer. The treasurer of the state of Missouri shall be permitted to present any evidence with respect to the audit findings on the medical charges. Any moneys received by the employee or the employee's dependents through civil or other action against the uninsured employer as a result of the injury may go toward reimbursement of the second injury fund for all payments made to the employee, the employee's dependents, or paid on the employee's behalf from the fund under this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against the employer not covered by this chapter as required in section 287.280.
14. All claims for permanent total disability shall be determined in accordance with the facts. When an injured employee receives an award for permanent total disability but by the use of glasses, prosthetic appliances, or physical rehabilitation the employee is restored to his regular work or its equivalent, the life payment mentioned in subsection 1 of this section shall be suspended during the time in which the employee is restored to his regular work or its equivalent. The employer and the division shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability. In any case where the life payment is suspended under this subsection, the commission may at reasonable times review the case and either the employee or the employer may request an informal conference with the commission relative to the resumption of the employee's weekly life payment in the case.
287.225. No compensation shall be payable from the second injury fund if the employee elects to pursue compensation under the workers' compensation law of another state with jurisdiction over the employees' injury or accident or occupational disease.
287.690. [1. Prior to December 31, 1993,] Beginning January 1, 2011, for the purpose of providing for the expense of administering this chapter [and for the purpose set out in subsection 2 of this section], every person, partnership, association, corporation, whether organized under the laws of this or any other state or country, the state of Missouri, including any of its departments, divisions, agencies, commissions, and boards or any political subdivisions of the state who self-insure or hold themselves out to be any part self-insured, company, mutual company, the parties to any interindemnity contract, or other plan or scheme, and every other insurance carrier, insuring employers in this state against liability for personal injuries to their employees, or for death caused thereby, under this chapter, shall pay, as provided in this chapter, tax upon the net deposits, net premiums or net assessments received, whether in cash or notes in this state, or on account of business done in this state, for such insurance in this state at the annual rate of no less than one-half of one percent and no greater than two percent in lieu of all [other] premium taxes on such net deposits, net premiums or net assessments, which amount of taxes shall be assessed and collected as herein provided. Beginning October 31, [1993] 2010, and every year thereafter, the director of the division of workers' compensation shall estimate the amount of revenue required to administer this chapter and the division director shall determine the rate of tax to be paid in the following calendar year pursuant to this section commencing with the calendar year beginning on January 1, [1994] 2011. If the balance of the fund [estimated to be] on hand on [December thirty-first] July first of the year each tax rate determination is made on October thirty-first is less than one hundred ten percent of the previous year's expenses plus any additional revenue required due to new statutory requirements given to the division by the general assembly, then the division director shall impose a tax not to exceed two percent in lieu of all other taxes on net deposits, net premiums or net assessments, rounded up to the nearest one-half of a percentage point, which amount of taxes shall be assessed and collected as herein provided. The net premium equivalent for individual self-insured employers and any group of political subdivisions of this state qualified to self-insure their liability pursuant to this chapter as authorized by section 537.620, RSMo, shall be based on average rate classifications calculated by the department of insurance, financial institutions and professional registration as taken from premium rates filed by the twenty insurance companies providing the greatest volume of workers' compensation insurance coverage in this state. For employers qualified to self-insure their liability pursuant to this chapter, the rates filed by such group of employers in accordance with subsection 2 of section 287.280 shall be the net premium equivalent. Every entity required to pay the tax imposed pursuant to this section and section 287.730 shall be notified by the division of workers' compensation within ten calendar days of the date of the determination of the rate of tax to be imposed for the following year. Net premiums, net deposits or net assessments are defined as gross premiums, gross deposits or gross assessments less canceled or returned premiums, premium deposits or assessments and less dividends or savings, actually paid or credited.
[2. After January 1, 1994, the director of the division shall make one or more loans to the Missouri employers mutual insurance company in an amount not to exceed an aggregate amount of five million dollars from the fund maintained to administer this chapter for start-up funding and initial capitalization of the company. The board of the company shall make application to the director for the loans, stating the amount to be loaned to the company. The loans shall be for a term of five years and, at the time the application for such loans is approved by the director, shall bear interest at the annual rate based on the rate for linked deposit loans as calculated by the state treasurer pursuant to section 30.758, RSMo.]
287.715. 1. For the purpose of providing for revenue for the second injury fund, every authorized self-insurer, and every workers' compensation policyholder insured pursuant to the provisions of this chapter, shall be liable for payment of an annual surcharge in accordance with the provisions of this section. The annual surcharge imposed under this section shall apply to all workers' compensation insurance policies and self-insurance coverages which are written or renewed on or after April 26, 1988, including the state of Missouri, including any of its departments, divisions, agencies, commissions, and boards or any political subdivisions of the state who self-insure or hold themselves out to be any part self-insured. Notwithstanding any law to the contrary, the surcharge imposed pursuant to this section shall not apply to any reinsurance or retrocessional transaction.
2. Beginning October 31, [2005] 2010, and each year thereafter, the director of the division of workers' compensation shall estimate the amount of benefits payable from the second injury fund during the following calendar year and shall calculate the total amount of the annual surcharge to be imposed during the following calendar year upon all workers' compensation policyholders and authorized self-insurers. The amount of the annual surcharge percentage to be imposed upon each policyholder and self-insured for the following calendar year commencing with the calendar year beginning on January 1, [2006] 2011, shall be set at and calculated against a percentage, not to exceed three percent, of the policyholder's or self-insured's workers' compensation net deposits, net premiums, or net assessments for the previous policy year, rounded up to the nearest one-half of a percentage point, that shall generate, as nearly as possible, one hundred ten percent of the moneys to be paid from the second injury fund in the following calendar year, less any moneys contained in the fund at the end of the previous [calendar] fiscal year. All policyholders and self-insurers shall be notified by the division of workers' compensation within ten calendar days of the determination of the surcharge percent to be imposed for, and paid in, the following calendar year. The net premium equivalent for individual self-insured employers and any group of political subdivisions of this state qualified to self-insure their liability pursuant to this chapter as authorized by section 537.620, RSMo, shall be based on average rate classifications calculated by the department of insurance, financial institutions and professional registration as taken from premium rates filed by the twenty insurance companies providing the greatest volume of workers' compensation insurance coverage in this state. For employers qualified to self-insure their liability pursuant to this chapter, the rates filed by such group of employers in accordance with subsection 2 of section 287.280 shall be the net premium equivalent. The division director may advance [funds] moneys from the workers' compensation fund to the second injury fund if surcharge collections prove to be insufficient. The outstanding total of moneys advanced by the division director from the workers' compensation fund to the second injury fund shall not exceed thirty-three and one-third percent of the total amount of the annual surcharge as calculated in this section to be imposed in the year moneys are advanced to the second injury fund. No additional advance from the workers' compensation fund to the second injury fund shall be made by the director until the previous advance has been reimbursed in full. Any [funds] moneys advanced from the workers' compensation fund to the second injury fund [must] shall be reimbursed by the second injury fund no later than December thirty-first of the fifth year following the advance. The surcharge shall be collected from policyholders by each insurer at the same time and in the same manner that the premium is collected, but no insurer or its agent shall be entitled to any portion of the surcharge as a fee or commission for its collection. The surcharge is not subject to any taxes, licenses or fees.
3. All surcharge amounts imposed by this section shall be deposited to the credit of the second injury fund.
4. Such surcharge amounts shall be paid quarterly by insurers and self-insurers, and insurers shall pay the amounts not later than the thirtieth day of the month following the end of the quarter in which the amount is received from policyholders. If the director of the division of workers' compensation fails to calculate the surcharge by the thirty-first day of October of any year for the following year, any increase in the surcharge ultimately set by the director shall not be effective for any calendar quarter beginning less than sixty days from the date the director makes such determination.
5. If a policyholder or self-insured fails to make payment of the surcharge or an insurer fails to make timely transfer to the division of surcharges actually collected from policyholders, as required by this section, a penalty of one-half of one percent of the surcharge unpaid, or untransferred, shall be assessed against the liable policyholder, self-insured or insurer. Penalties assessed under this subsection shall be collected in a civil action by a summary proceeding brought by the director of the division of workers' compensation.
6. Funds collected under the provisions of this section shall be the sole funding source of the second injury fund.
287.890. 1. The governor may by executive order enforce the provisions of this section regarding the Missouri state workers' compensation council.
2. There is hereby created a "Missouri State Workers' Compensation Council". The council shall consist of nine appointed voting members and two appointed nonvoting members. All appointees shall be persons whose training and experience qualify them to deal with the difficult problems of workers' compensation, particularly legal, accounting, actuarial, economic, and social aspects of workers' compensation.
(1) Three voting members shall be appointed to the council by the governor. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employers. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employees. One voting member shall be appointed to represent the public interest separate from employee or employer representation.
(2) Three voting members and one nonvoting member shall be appointed to the council by the speaker of the house of representatives. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employers that employ twenty or less employees. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employees. One voting member shall be appointed to represent the public interest separate from employee or employer representation. One nonvoting member shall be appointed from the house of representatives.
(3) Three voting members and one nonvoting member shall be appointed to the council by the president pro tem of the senate. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employers. One voting member shall be appointed on account of his or her vocation, employment, or affiliations being classed as representative of employees. One voting member shall be appointed to represent the public interest separate from employee or employer representation. One nonvoting member shall be appointed from the senate.
3. The council shall organize itself and select a chairperson or cochairpersons and other officers from the nine voting members. Six voting members shall constitute a quorum and the council shall act only upon the affirmative vote of at least five of the voting members. The council shall meet no less than four times yearly. Members of the council shall serve without compensation, but are to be reimbursed the amount of actual expenses. Actual expenses shall be paid from the workers' compensation fund under section 287.710.
4. The division shall provide professional and clerical assistance as needed for regularly scheduled meetings.
5. Each nonvoting member shall serve for a term of four years or until he or she is no longer a member of the general assembly whichever occurs first. A nonvoting member's term shall be a maximum of four years. Each voting member shall serve for a term of three years. For the initial appointment, the governor-appointed employer representative, the speaker of the house-appointed employee representative, and the president pro tem of the senate-appointed public interest representative shall serve an initial term of one year. For the initial appointment, the governor-appointed employee representative, the speaker of the house-appointed public interest representative, and the president pro tem of the senate-appointed employer representative shall serve an initial term of two years. At the end of a voting member's term he or she may be reappointed; however, he or she shall serve no more than two terms excluding the initial term for a maximum of eight years.
6. The council shall advise the division in carrying out the purposes of this chapter. The council shall submit annually by January fifteenth to the governor and the general assembly its recommendations regarding amendments to this chapter, the status of workers' compensation insurance, the projected maintenance of the solvency of the second injury fund, and the adequacy of the workers' compensation law.
7. The council shall present to the division every proposal of the council for changes in this chapter and shall seek the division's concurrence with the proposal. The division shall give careful consideration to every proposal submitted by the council for legislative or administrative action and shall review each legislative proposal for possible incorporation into department of labor and industrial relations' recommendations.
8. The council shall have access to only the records of the division that are necessary for the administration of this chapter and to the reasonable services of the employees of the division. It may request the director or any of the employees appointed by the director or any employee subject to this chapter to appear before it and to testify relative to the functioning of this chapter and to other relevant matters. The council may conduct research of its own, make and publish reports, and recommend to the division needed changes in this chapter or in the rules of the division as it considers necessary.
9. The council, unless prohibited by a concurrent resolution of the general assembly, shall be authorized to commission an outside study of the solvency, adequacy, and staffing and operational efficiency of the Missouri workers' compensation system. The study shall be conducted every five years, the first being conducted in fiscal year 2005. The study shall be funded subject to appropriation from the workers' compensation fund under section 287.710.
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