MISSOURI LAW SUMMARY   MISSOURI WORKERS' COMPENSATION LAW SUMMARY   2013-2014   Time Period   Max. TTD, PTD & Death Benefit Rate   Maximum PPD  Rate   Medical Mileage reimbursement rate per mile   Days expressed as  decimals   7/01/05 - 6/30/06   $696.97   $365.08   37.5¢   1/7 = .14   7/01/06 - 06/30/07   $718.87   $376.55   41.5¢   2/7 = .29   7/01/07 - 06/30/08   $742.72   $389.04   45.5¢   3/7 = .43   7/01/08 - 6/30/09   $772.53   $404.66   47.5¢   4/7 = .57   7/01/09 - 6/30/10   $807.48   $422.97   50¢   5/7 = .71   7/01/10 - 6/30/11   $799.11   $418.58   50¢   6/7 = .86   7/01/11-6/30/12   $811.73   $425.19   48¢     7/01/12-6/30/13   $827.75   $433.58   52.5¢     7/01/13-6/30/14   $853.08   $446.85   53.5     Body as a whole 400 Loss of arm at shoulder 232 Loss of arm between shoulder and elbow 222 Loss of arm at elbow joint 210 Loss of arm between elbow and wrist 200 Loss of hand at the wrist joint 175 Loss of thumb at proximal joint 60 Loss of thumb at distal joint 45 Loss of index finger at proximal joint 45 Loss of index finger at second joint 35   Loss of index finger at distal joint 30 Loss of either the middle or ring finger at the proximal joint 35 Loss of either the middle or ring finger at the second joint 30 Loss of either the middle or ring finger at the distal joint 26 Loss of little finger at proximal joint 22 Loss of little finger at second joint 20 Loss of little finger at distal joint 16 Loss of leg at hip or so near at to preclude use of artif. limb 207 Loss of leg at or above knee, where stump remains 160 Loss of leg at or above ankle and below knee joint 155 Loss of one foot in tarsus 150 Loss of one foot in metatarsus 110 Loss of great toe of one foot at proximal joint 40 Loss of great toe of one foot at distal joint 22 Loss of any other toe at proximal joint 14 Loss of any other toe at second joint 10 Loss of any other toe at distal joint 8 Complete deafness of both ears (caused by trauma) 168 Deafness of both ears - Occupational noise exposure (287.197.3) 148 Complete deafness of one ear, other being (from trauma) 44 Complete deafness of one ear, Occup. noise exposure (287.197.3) 40 Complete loss of the sight of one eye 140 I. Accidental Injury   A. Accident: An occupational accident in Missouri is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." 287.067 RSMo.   B. Injury: To be compensable as a workers compensation claim, a work accident must now be the prevailing factorin causing the injury. Formerly, the employment only had to be a "substantial factor" in causing the injury. "Prevailing Factor" is further defined to be "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.   C. Occupational Diseases: Occupational diseases and repetitive motion injuries are compensable only if the occupational exposure is the prevailing factor in developing the disease. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or normal activities of day-to-day living shall not be compensable.   D. Occupational Disease, Last Exposure : The implementation of the amendments to this statue in 2005 changed which employer was liable in an occupational disease claim. Formerly the employer who last exposed the employee to the hazard prior to the filing of the claim was liable. Now, the last employer who exposed the employee to the hazard, prior to evidence of disability, is liable. The statute of limitations for an occupational disease claim does not begin to run until it becomes reasonably discoverable and apparent that an injury has been sustained "related to such exposure". 287.063 RSMo.   E. Three Month Rule: The three month rule regarding repetitive motion injuries is limited to going back to the "immediate prior employer" if work at that immediate prior employer was the prevailing factor in causing the injury. Thus, if within three months of an employee's new employment, the employee develops carpal tunnel symptoms, the current employer will have to prove the employment with the immediate prior employer was the prevailing factor in the injury if it is to shift liability for the injury. When litigating a "three month rule" claim, one must reconcile this statute with 287.063 which places liability on the last employer to expose the employee to the occupational hazard prior to evidence of disability. 287.067.8 RSMo.   F. Idiopathic Injuries: Injuries resulting directly or indirectly from idiopathic causes (a spontaneous or primary disease) are not compensable.   G. Heart Attacks: Heart injuries that occur on the job are compensable only if the accident is the prevailing factor in causing the resulting medical condition.   H. Psychiatric Conditions: Wholly mental injuries can be compensable if they result from work related stress that isextraordinary and unusual. The legal standard for proving a mental injury is made more difficult by requirement that it be measured by objective standards and proven by actual events. There are three objective measurements used to determine compensability:   1. Amount of stress the employee experiences in comparison to other workers in same classification with the same employer;   2. Amount of stress the employee experiences in comparison to all other workers in the general workforce;   3. Amount of stress compared to other workers in the similar line of work regardless of employer.   4. Mental injuries resulting from disciplinary action, poor work evaluation, job transfer, layoff, demotion, termination or similar action are not compensable if the action by the employer is taken in good faith. 287.120.8 & 287.120.9 RSMo.   II. Arising out of the employment   A. Assaults: Assaults are compensable if the assault arose "out of" the employment. This requires a causal link between the employment and the injury to the employee. This includes assaults related to the dangerous nature of the employee's duties, or assaults caused by friction between co-workers if related to work issues.   1. Private quarrels that are purely personal in nature are not compensable.   2. "Neutral assaults" which are irrational and unexplained are compensable if they occur in the course of employment.   3. Injuries to the aggressor are not compensable. Van Black v. Trio Masonry, 986 S.W.2d 200 (1999)   B. Horseplay: Actions between co-workers that, over time, become an incident of the employment, or a known risk will make resulting injuries compensable. This requires claimants to establish that actions have some connection to the underlying employment duties, or that they have become commonplace and accepted by employer.   III. In the course of employment   A. Going To and Coming From Rule: Injuries occurring in company owned or subsidized automobiles that occur while traveling from the employee's home to the employee's place of business, or vice versa, are not compensable. Personal errands and like activities will take a claimant out of the course of employment up until that errand is completed.   B. Parking Lot Cases: The statute now ends employer's liability for injuries that occur on property not owned or controlled by the employer, even if the injury occurs on customary, approved, permitted, usual or accepted routes used by the employee to get to their job. There is still liability in parking lots owned and controlled by the employer, but no liability for falling on the street or in a city lot, etc. The case law that had previously expanded liability to adjacent parking lots is now rejected. The statute also specifically rejects any prior Missouri case law that is inconsistent with any of the new statutes.   C. Prerequisite Training: Injuries sustained while in training required before being considered for employment are not compensable. Leslie v. School Services & Leasing, 947 S.W.2d 97 (1997).   D. Recreational Activities: Injuries suffered in recreational activities are compensable if the activity causing the injury has achieved a standard as a custom or practice of employment either in the industry generally. Like with horseplay, a key consideration is whether the employer had indicated acceptance of the activity or if the activity had continued long enough that the employer should have prohibited the activity if it was not accepted. Obviously, the activities giving rise to the injury must occur either during work, or at the work sight and be connected to some duty that is of benefit to the employer.   E. Personal Comfort Doctrine: Injuries sustained while attending to one's personal comfort are compensable if suffered "within the reasonable time and space limitations of their employment." This is based on the premise that some basic, personal needs must be attended to within those limitations in order to function as an employee. These include injuries during breaks both during and immediately before or after work, and if on premises or immediately adjacent thereto. Motor vehicle accident while returning from employer-authorized doctor's visit was not compensable. Neither was injuries during while jogging during break.   IV. Procedural Defenses   A. Notice of Injury: Pursuant to 287.420, the employee is required to provide notice as promptly as possible but not later than 30 days after the accident. This requirement can be waived if the employee can establish that their was good cause for the delayed notice or that the employer was not prejudiced.   B. Statute of Limitations: A claim must be filed with the Division of Workers' Compensation within two (2) years after the date of the accident or last payment of compensation or rendition of authorized medical treatment if the report of injury was properly filed. If the report of injury was not properly filed, the employee has three years from the date of the accident to file the claim with the Division. 287.430 RSMo.   C. Safety Rules and Penalties:   1. An employee's failure to use safety devices "shall" reduce benefits by "at least 25% but not more than 50%." Also, the employee's failure to use a safety device no longer has to be willful. Finally, employer's now only need to make a "reasonable effort" (instead of the previous diligent effort) to ensure their employees use provided safety devices. It is very important for employers to implement clear safety procedures and have some documentation that these procedures were made known to their employees in some fashion.   2. When an injury is sustained in conjunction with the use of alcohol or non-prescribed controlled drugs, the compensation "shall" be reduced by 50% instead of the prior 15%. The law remains the same that if the use of alcohol or drugs is the proximate cause of the injury, all benefits are to be forfeited. Under the statute, it is presumed through a rebuttable presumption that alcohol use is the proximate cause of the injury if the employee tests over .08. Further, if an employee refuses to take a drug or alcohol test at the employer's request, it can result in benefit forfeiture if the employer had sufficient cause to suspect drug or alcohol use by the employee or the employer's policy authorizes such post-injury testing. Clearly, the easier way through this statute is for the employer to make it a written part of their drug and alcohol policy to require testing post injury.   3. The new statute also deletes the former requirement that an employee had to have actual knowledge" of an employer's no alcohol/drug free workplace policy in order for the benefit reduction to apply. However, we recommend posting the policy as before in order to limit potential litigation on this issue. 287.120 RSMO.   V. JURISDICTION   A. Accident in Missouri: The Act applies to all injuries received and occupational injuries contracted in the State of Missouri. 287.110 RSMo.   B. Accidents outside of Missouri: If the injury occurs outside of Missouri, there still may be Missouri jurisdiction if the employee's employment was principally located in Missouri "within 13 calendar weeks of the injury or diagnosis of the occupational disease."   C. Situs of Contract: The Act applies to all injuries received and occupational injuries contracted outside of the Missouri when the contract for employment was consummated in the Missouri.   D. Principal Place of Employment: The Act applies to all injuries received and occupational injuries contracted outside Missouri when the employer's principal place of business is Missouri.   VI. PERMANENT PARTIAL DISABILITY   A. Permanent Partial Disability RSMo.: The revised statute mandates that, "disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings." Objective medical findings are further defined as "those findings demonstrable on physical examination or by appropriate test or diagnostic procedure". Any compensation award shall be reduced due to any preexisting disease or condition that attributed to the overall rating. 287.190 RSMO.   VII. MISCELLANEOUS PROVISIONS   A. Amputation: If disability is completely due to amputation or complete loss of use, benefits "shall be increased by ten (10) percent." 287.190.2 RSMo.   B. Average weekly wage: To calculate the average weekly wage for a claimant, you take the gross wages earned by the employee during the previous 13 weeks, divide that number by 13. In addition, you must include the value of board, rent, house, lodging and tips to the extent that they are taxable. The average weekly wage does not include retirement, social security, medical or life insurance. If the claimant is part time, the temporary total disability rate is based on the actual part time wages but for permanent partial disability and permanent temporary disability and death benefits average weekly wage based on rate of pay of full time workers (30 hours minimum). When calculating the average weekly wage for the purpose of permanent partial disability benefits, the average weekly wage for an employee who is under the age of 21 years old shall be adjusted to take into consideration increased earning power of such employee until she or he attains the age of 21. 287.250(6) RSMo.   C. Disfigurement: An Administrative Law Judge can award up to 40 weeks of permanent partial disability benefits to the claimant if they have suffered disfigurement to the head, neck, arms or hands. 287.190.4 RSMo.   D. Evaluation of hearing impairment: The Missouri Division of Workers' Compensation has promulgated Section 8 CSR 50-5.060 which establishes the procedure for evaluating hearing impairment. Liability for occupational hearing loss occurs only when an employee has been exposed to the hazard of such loss for a period of ninety (90) days or longer, and becomes exclusively that of the employer in whose employment such exposure took place. 287.063-5 RSMo. No employer is liable for hearing loss sustained prior to employment with him/her, nor for any hearing loss for which compensation previously has been awarded or paid. 287.197-8 RSMo. The date of disability of occupational hearing loss is the last day of a six month period following separation from the employment in which the employee is exposed to harmful noise 287.197-7 RSMo. The claim for compensation for occupational hearing loss must be made within one year of the date of disability, as defined above. The provision of medical attention and/or the payment of compensation will toll the statute, as in other workers' compensation cases. 287.197-7 RSMo.   E. Evaluation of Visual Disabilities: Compensable disability for loss of vision should be based on that proportional part of the compensation provided by law for loss of use or loss of function of one or both eyes which expresses the percentage loss of visual efficiency of the individual. The finding of visual disability is complex and should be done by a ophthalmologist or other specialist qualified to complex examinations of the eye. In each case of eye injury resulting in any degree of permanent disability, the insurer shall file Form 9-A, Physician's Report on Eye Injuries, completed in all the detail the form asks for, as promptly as possible. If the Form 9-A shows final estimation of the visual disabilities, it shall be used as the basis for computing the compensation due the injured worker. 8 CSR 50-5.020 (11).   F. Medical: An employee will receive mileage reimbursement only when traveling outside the employee's principle place of employment and not outside the employee's place of injury or residence as under the former statute. In addition, the revision deleted language that allowed for TTD benefits for time missed from work while receiving physical therapy or undergoing an employer requested PPD evaluation. Further, the statute empowers employers to "allow or require" injured employees to use their "paid leave, personal leave, or medical or sick leave" when they miss work in order to receive medical treatment, physical therapy or medical evaluations." 287.140 RSMo.   G. Ratings for lost teeth:   1. Permanent partial disability for loss of teeth, visual disabilities and hearing disabilities are found in 8 CSR 50-5.010 et seq. Loss of teeth shall be rated as permanent partial disability and compensation shall be paid for the period set forth in the following table. Each cutting, eye or wisdom tooth shall be counted as one tooth and each molar or grinding tooth as two teeth.   2. In addition to all other loss of compensation, loss of front teeth only shall be rated as disfigurement in an amount to sufficient to cover the reasonable cost of artificial teeth.   3. The table for the value of lost teeth are as follows:   Number of Weeks of. teeth Weeks of. Comp 1/8 .16 1/4 .31 1/3 .42 1/2 .63 2/3 .83 3/4 .94 21 26.25 23 28.75 24 30.00 25 31.25 26 32.50 36 45.00   37 46.25   38 47.50   47 58.75 7/8 1.09 1 1.25 2 .2.50 3 3.75 4 5.00 5 6.25 6 7.50 7 8.75 27 33.75 28 35.00 29 36.25 30 37.50 39 48.75 40 50.00 41 51.25 48 60.00   8 10.00   9 11.25 10 12.50 11 13.75 12 15.00 13 16.25 22 27.50 31 38.75 32 40.00 33 41.25 34 42.50 14 17.50 15 18.75 16 20.00 17 21.25 18 22.50 19 23.75 20 25.00 35 43.75 45 56.25 46 57.50 H. Statutory Employers: These statutes seek to clarify the recurring issue regarding independent contractors versus owner/operators, usually seen in the trucking field. Now, drivers will NOT be deemed to be statutory employees for trucking companies if they are driving for someone else who has leased the truck. Attention must be given to the contractual relationship of all parties. 287.040 and 287.041 RSMo.   I. Vocational Evaluations: Requires employees to submit to a vocational rehabilitation assessment that is requested by an employer or insurer. 287.143 RSMo.   J. Waiting Period: No compensation shall be payable for the first three days or less of disability during which the employer is open for the purpose of operating its business or enterprise unless the disability shall last longer than fourteen days. If the disability lasts longer than fourteen days, payment for the first three days shall be made retroactively to the claimant.   K. Permanent Partial Disability Calculation Examples:   1. Scheduled Injury, Max rate, No weeks of TTD   Date of accident, October 15, 2008, shoulder injury, 232 weeks, 15% PPD, gross average weekly wage is $1,100.00.   100%400"> 232   Weeks per schedule   x .15 PPD Percentage == 34.8 Weeks of Compensation   34.8   x $404.66 Max PPD rate = $14,082.17   Compensation Due   2. Scheduled Injury, Less than max rate, 25 weeks of TTD   Date of accident, October 15, 2008, shoulder injury, 232 weeks, 15% PPD, gross average weekly wage $560.00.     232 Weeks per schedule (Payment of TTD does not change the scheduled weeks)   x .15 PPD Percentage = 34.8 Weeks of Compensation       34.8     x $373.52 Compensation rate (2/3 of $560   = $12,998.50 Compensation Due   3. Body as a Whole Injury, Less than max rate, 30 weeks of TTD   Date of accident, May 11, 2009, body as a whole, 400 weeks, 20% PPD, gross average weekly wage $600.00.     400 Weeks, body as a whole   x .15 PPD Percentage = 60 Weeks of Compensation       60     x $400.20 Compensation rate (2/3 of $600   = $24,012.00