Published by: Eureka Missouri Chamber of Commerce
Located online at: eurekachamber.us
WORKERS’S COMPENSATION REFORM IS SENT TO THE GOVERNOR FOR HIS SIGNATURE!!
By The Missouri Chamber of Commerce and Industry
Mar 16, 2005, 12:34
March 16, 2005
Missouri Chamber of Commerce and Industry
428 East Capitol, Jefferson City, MO 65101
Daniel P. Mehan, Missouri Chamber president and CEO
Kelly Gillespie, Missouri Chamber vice president of governmental affairs
Karen Buschmann, Missouri Chamber vice president of communications
Breaking a decade of stalemate, the Missouri General Assembly sends strong workers’ compensation reforms to Gov. Blunt for signature
JEFFERSON CITY (March 16, 2005) –The Missouri General Assembly has completed its work on Senate Bill 1, legislation that would bring comprehensive reform to Missouri’s workers’ compensation system.
The Missouri Chamber of Commerce and Industry commends the swift action of the Missouri Senate and House on this issue. One of the Missouri Chamber’s leading legislative priorities, workers’ compensation reform has been relentlessly lobbied by the group throughout the session – from working with legislators at every phase of the process to ensure critical provisions were included in the bill language, to this week’s email campaign that generated more than 1000 Missouri employer letters and calls to members of the conference committee urging their support of strong reforms.
In the end, lawmakers approved the broadest reforms the state has seen in workers’ compensation law over the last decade, including the following provisions:
- Establishing a legal threshold for accident, injury, and occupational disease – This provision would establish the criteria to more fairly determine which injuries should fall into workers’ compensation and to create a legal stopgap for abuse and fraud. The change would require work to be “the prevailing” factor in causing an injury, rather than “a substantial” factor, as the law currently reads.
- Streamlining the process and improving accountability of administrative law judges – These provisions would require immediate review of all administrative law judges and would require that administrative law judges serve terms and undergo a reappointment process every twelve years, with procedures established for cases where removal is necessary. These provisions also would eliminate the position of legal advisors and associate law judges so that the state can focus funds on fully functional administrative law judges. The legislation also would allow the Division of Workers' Compensation to assess current case workload and increase, where necessary, the number of administrative law judges in order to prevent backlogs of pending cases.
- Prioritizing objective medical findings over subjective complaints of pain – This provision maintains that when determining compensability where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective complaints of pain. Current law treats both objective and subjective evidence with the same level of relevance.
- Requiring strict interpretation of the law – Current workers’ compensation law is liberally construed toward the employee. These provisions would require an impartial review of evidence and a strict review of the law itself so that both sides of a case are treated fairly.
- Strengthening the burden of proof – This provision would adopt the same standard of burden of proof for workers' compensation law as is used in civil cases. Parties, employees or employers, advancing a particular proposition would be required to establish that the claim is more likely true than not - a 51 percent to 49 percent proposition. Current case law directs litigants to use reasonable probability - a one in three proposition.
- Limiting attorney involvement – This provision would stipulate that the usual and customary contingency fees for claimant's attorneys be based on the amount of the settlement in dispute, thereby removing any amount offered by the employer prior to the attorney getting involved in the case. This pro-employee provision would allow the employee to keep 100 percent of the money initially offered by the employer, even if the employee eventually hires an attorney.
- Increasing penalties for alcohol and drug violations – This provision would increase the percentage of workers’ compensation benefits that can be withheld when an injury is connected to violations of an organization’s alcohol and drug policy, moving the current 15 percent reduction to a 50 percent reduction.
- Increasing penalties for safety violations – This provision would increase the percentage of workers’ compensation benefits that can be withheld when an injury is connected to violations of an organization’s safety policy, moving the current 15 percent reduction to a 25 percent reduction, with the ability to move up to a 50 percent reduction depending upon the situation.
- Tightening penalties for fraud – Unlike current law, these provisions provide meaningful disincentives to keep abusers from cheating the system, including the deterrent threat of a felony penalty.
- Abrogating three court case holdings that broadly expand which injuries are compensable – These provisions represent a rejection of the positional risk theory - that if you have any attachment to the workforce, the employee is covered. And, it sends a very strong signal to the administrative law judges to follow the law as written.
- Reforming the Department of Labor and Industrial Relations Commission appointment process – This provision will tighten the appointment process for labor commissioners and require that any appointed commissioner – permanent or interim – receives Senate approval.
- Clarifying a section in the law that stipulates that employers may request employees use accrued sick and other leave during the return-to-work process – While this has been the practice since workers’ compensation was established in Missouri, a court case last summer set a precedent away from this practice.
- Limiting the extension of premises to those locations that are within an employer’s control.
- Disallowing double-dipping by blocking unemployment benefits from employees that are concurrently drawing total temporary disability benefits.
- Limiting permanent / partial disability payments to account for pre-existing conditions.
- Allowing video tape to be admissible in court as evidence to refute injury claims, another key fraud tool.
The Missouri Chamber of Commerce and Industry (www.mochamber.com) was founded in 1923 and is the largest business association in Missouri, representing almost 3,000 employers providing more than 425,000 jobs for Missourians.
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