SB1385 • 2026

Modifies provisions relating to workers' compensation

Labor

Passed Legislature

This bill passed both chambers and reached final enrollment, even if later executive action is not shown here.

Sponsor: Trent, Curtis; House handler: N/A
Last action: 2026-01-27
Official status: Second Read and Referred S General Laws Committee
Effective date: 2026-08-28

Plain English Breakdown

Using official source text because the generated explanation was unavailable or could not be confirmed against the official bill text.

Modifies provisions relating to workers' compensation

The following summaries of this bill are available: Print All Summaries Introduced Print SB 1385 - This act modifies various provisions relating to workers' compensation.

What This Bill Does

The following summaries of this bill are available: Print All Summaries Introduced Print SB 1385 - This act modifies various provisions relating to workers' compensation.
DEFINITION CHANGES (Section 287.020) The definition of "accident" is modified to repeal to use of the word "unexpected" so that "accident" is defined as a "traumatic event", rather than "an unexpected traumatic event." Furthermore, injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employee's principal place of business, rather than the employer's principal place of business or from the employee's principal place of business to the employee's home are not compensable.
The abrogation of the extension of premises doctrine is modified by removing reference to liability for accidents on property not controlled by the employer.
OCCUPATIONAL DISEASE (Sections 287.020, 287.063, and 287.067) The act modifies the definition of "occupational disease" to include "repetitive trauma injuries" and further specifies that for purposes of determining if an employee has sustained an occupational disease, the exposure to the injury must have arisen out of and in the course of employment.

Limits and Unknowns

This entry is temporarily using official source text because the generated explanation could not be confirmed against the official bill text during the last sync.

Bill History

2026-01-27 S244
Second Read and Referred S General Laws Committee
2026-01-07 S87
S First Read
2025-12-01 Missouri House of Representatives and Missouri Senate
Prefiled

Official Summary Text

The following summaries of this bill are available:

Print All Summaries

Introduced

Print

SB 1385 - This act modifies various provisions relating to workers' compensation.

DEFINITION CHANGES (Section 287.020)
The definition of "accident" is modified to repeal to use of the word "unexpected" so that "accident" is defined as a "traumatic event", rather than "an unexpected traumatic event."

Furthermore, injuries sustained in company-owned or subsidized automobiles in accidents that occur while traveling from the employee's home to the employee's principal place of business, rather than the employer's principal place of business or from the employee's principal place of business to the employee's home are not compensable. The abrogation of the extension of premises doctrine is modified by removing reference to liability for accidents on property not controlled by the employer.

OCCUPATIONAL DISEASE (Sections 287.020, 287.063, and 287.067)
The act modifies the definition of "occupational disease" to include "repetitive trauma injuries" and further specifies that for purposes of determining if an employee has sustained an occupational disease, the exposure to the injury must have arisen out of and in the course of employment. Furthermore, the definition of injury is modified to include reference to occupational disease and to further provide that an injury by accident or occupational disease is deemed to arise out of and in the course of employment only if:
• It is reasonably apparent, upon consideration of all the circumstances, that the accident or occupational disease is the prevailing factor in causing the injury;
• It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life; and
• The employee was engaged in a work activity to the greater benefit of the employer when the occupational disease was contracted or accident occurred.

REDUCTION OR FORFEITURE OF BENEFITS (Section 287.120)
Current law requires the reduction of compensation and death benefits by at least 25% where an injury is caused by failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees. This act requires the reduction of the indemnity benefit by at least 25%, rather than the compensation and death benefit.

Current law requires the forfeiture of benefits where the employee's participation in a recreational activity or program is the prevailing cause of the injury. This act repeals an exception to this rule that exempted circumstances where the employee was paid wages or travel expenses while participating in such recreational activity or program.

MENTAL INJURIES (Section 287.120.8)
Current law provides that a mental injury resulting from work-related stress does not arise out of and in the course of the employment, unless it is demonstrated that the stress is work related and was extraordinary and unusual. This act requires the stress to be measured in comparison with employees working in the same position.

MAXIMUM FEE SCHEDULE (Section 287.140.3, 287.210)
Current law provides that all fees and charges for services under the workers' compensation law shall be fair and reasonable, subject to regulation by the Division of Workers' Compensation (DWC) or the Labor and Industrial Relations Commission. This act requires the Division to establish by rule a schedule of fees for any service provided pursuant to the workers' compensation law and further requires all fees and charges under such law to be in accordance with the fee schedule.

MEDICAL FEE DISPUTES (Section 287.140.4 and .8)
Any medical fee dispute shall be filed not later than:
• Two years from the date the first notice of dispute of the medical charge was received by the health care provider if such services were rendered before July 1, 2013;
• One year from the date the first notice of dispute of the medical charge was received by the health care provider if such services were rendered after July 1, 2013; and
• Two years from the date of service, when no payment has been made.

The act repeals a provision requiring the Director of the Division of Workers' Compensation to establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed.

EMPLOYER'S SUBROGATION LIEN (Section 287.150)
The act provides that where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall have a subrogation lien against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover.

The act repeals an exception to an employer's subrogation rights in the case of an employee's wrongful death where the employee
suffers or suffered from an occupational disease due to toxic exposure and the employee, dependents, or persons eligible to sue for wrongful death are compensated under workers' compensation.

COMPENSATION PAID OUT OF SECOND INJURY FUND (Section 287.220)
The act modifies the procedure for claims for permanent partial disability. Specifically, it repeals a requirement that an employee's preexisting disability be medically documented. Furthermore, 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 Labor and Industrial Relations Commission (LIRC), 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 LIRC 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 the Second Injury Fund (SIF).

AVERAGE WEEKLY WAGE (Sections 287.021, 287.240, and 287.250)
The act modifies references to the term "average earnings" by changing the term to "average weekly wage" and furthermore provides that in any claim for compensation, an allegation of an average weekly wage shall not be considered a statement of fact deemed admitted if an answer to the claim is not timely filed.

STATUTE OF LIMITATIONS AND NOTICE REQUIREMENTS (Sections 287.063, 287.420, and 287.430)
Current law provides that the statute of limitation for an occupational disease shall not begin to run until it becomes reasonably discoverable and apparent that an injury has been sustained. This act provides a definition for the phrase "reasonably discoverable and apparent." Furthermore, the act provides that no proceedings for compensation for any occupational disease or repetitive trauma shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the injury becomes reasonably discoverable and apparent, unless the employee can prove the employer was not prejudiced by failure to receive the notice.

Current law provides that a claim against the SIF shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer, whichever is later. This act requires such a claim to be filed at any point prior to the conclusion by settlement or final award, after appeals, of the primary claim.

APPEALS (Sections 287.480 and 287.510)
The act provides that if an application for review is made to the LIRC within 20 days from the date of an award for compensation by any party, all parties to the case of automatically retained as a party or parties to the appeal.

The act also gives appellate courts jurisdiction to review temporary or partial awards of compensation where the issue concerns an employer's liability and the employer claims that it is not liable for paying any compensation.

COMMUTATIONS AND AGREEMENTS TO DISCHARGE LIABILITY (Sections 287.530 and 287.540)
The act repeals a provision of law allowing the LIRC to commute any compensation awarded under workers' compensation law. Furthermore, the act allows the parties to agree to discharge the employer from further liability, which may be permitted only by the LIRC, provided it meets the same stipulations for compromise settlements as required under current law.

INADMISSIBLE EVIDENCE - SETTLEMENTS CONTINGENT ON RESIGNATION (Section 287.780)
In any civil action alleging discrimination for exercising rights under workers' compensation law, the act makes inadmissible evidence that a settlement offer was made contingent upon a voluntary resignation of employment.
SCOTT SVAGERA

Current Bill Text

Read the full stored bill text

EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 1385
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR TRENT.
5742S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 287.020, 287.021, 287.063, 287.067, 287.120, 287.127, 287.140, 287.150,
287.210, 287.220, 287.240, 287.250, 287.300, 287.420, 287.430, 287.480, 287.510,
287.530, 287.540, and 287.780, RSMo, and to enact in lieu thereof nineteen new
sections relating to workers' compensation, with penalty provisions.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 287.020, 287.021, 287.063, 287.067, 1
287.120, 287.127, 287.140, 287.150, 287.210, 287.220, 287.240, 2
287.250, 287.300, 287.420, 287.430, 287.480, 287.510, 287.530, 3
287.540, and 287.780, RSMo, are repealed and nineteen new 4
sections enacted in lieu thereof, to be known as sections 5
287.020, 287.021, 287.063, 287.067, 287.120, 287.127, 287.140, 6
287.150, 287.210, 287.220, 287.240, 287.250, 287.300, 287.420, 7
287.430, 287.480, 287.510, 287.540, and 287.780, to read as 8
follows:9
287.020. 1. The word "employee" as used in this 1
chapter shall be construed to mean every person in the 2
service of any employer, as defined in this chapter, under 3
any contract of hire, express or implied, oral or written, 4
or under any appointment or election, including executive 5
officers of corporations. Except as otherwise provided in 6
section 287.200, any reference to any employee who has been 7
injured shall, when the employee is dead, also include his 8
or her dependents, and other persons to whom compensation 9
SB 1385 2
may be payable. The word "employee" shall also include all 10
minors who work for an employer, whether or not such minors 11
are employed in violation of law, and all such minors are 12
hereby made of full age for all purposes under, in 13
connection with, or arising out of this chapter. The word 14
"employee" shall not include an individual who is the owner, 15
as defined in section 301.010, and operator of a motor 16
vehicle which is leased or contracted with a driver to a for- 17
hire motor carrier operating within a commercial zone as 18
defined in section 390.020 or 390.041, or operating under a 19
certificate issued by the Missouri department of 20
transportation or by the United States Department of 21
Transportation, or any of its subagencies. The word 22
"employee" also shall not include any person performing 23
services for board, lodging, aid, or sustenance received 24
from any religious, charitable, or relief organization. 25
2. The word "accident" as used in this chapter shall 26
mean [an unexpected] a traumatic event or unusual strain 27
identifiable by time and place of occurrence and producing 28
at the time objective symptoms of an injury caused by a 29
specific event during a single work shift. An injury is not 30
compensable because work was a triggering or precipitating 31
factor. 32
3. (1) In this chapter the term "injury" is hereby 33
defined to be an injury which has arisen out of and in the 34
course of employment. An injury by accident or occupational 35
disease is compensable only if the accident was the 36
prevailing factor in causing both the resulting medical 37
condition and disability. "The prevailing factor" is 38
defined to be the primary factor, in relation to [any] all 39
other [factor] factors combined, causing both the resulting 40
medical condition and disability. 41
SB 1385 3
(2) An injury by accident or occupational disease 42
shall be deemed to arise out of and in the course of the 43
employment only if: 44
(a) It is reasonably apparent, upon consideration of 45
all the circumstances, that the accident or occupational 46
disease is the prevailing factor in causing the injury; [and] 47
(b) It does not come from a hazard or risk unrelated 48
to the employment to which workers would have been equally 49
exposed outside of and unrelated to the employment in normal 50
nonemployment life; and 51
(c) The employee was engaged in a work activity to the 52
greater benefit of the employer when the occupational 53
disease was contracted or accident occurred. 54
(3) An injury resulting directly or indirectly from 55
idiopathic causes is not compensable. 56
(4) A cardiovascular, pulmonary, respiratory, or other 57
disease, or cerebrovascular accident or myocardial 58
infarction suffered by a worker is an injury only if the 59
accident is the prevailing factor in causing the resulting 60
medical condition. 61
(5) The terms "injury" and "personal injuries" shall 62
mean violence to the physical structure of the body and to 63
the personal property which is used to make up the physical 64
structure of the body, such as artificial dentures, 65
artificial limbs, glass eyes, eyeglasses, and other 66
prostheses which are placed in or on the body to replace the 67
physical structure and such disease or infection as 68
naturally results therefrom. These terms shall in no case 69
except as specifically provided in this chapter be construed 70
to include occupational disease in any form, nor shall they 71
be construed to include any contagious or infectious disease 72
contracted during the course of the employment, nor shall 73
SB 1385 4
they include death due to natural causes occurring while the 74
worker is at work. 75
4. "Death" when mentioned as a basis for the right to 76
compensation means only death resulting from such violence 77
and its resultant effects occurring within three hundred 78
weeks after the accident; except that in cases of 79
occupational disease, the limitation of three hundred weeks 80
shall not be applicable. 81
5. Injuries sustained in company-owned or subsidized 82
automobiles in accidents that occur while traveling from the 83
employee's home to the [employer's] employee's principal 84
place of business or from the [employer's] employee's 85
principal place of business to the employee's home are not 86
compensable. The extension of premises doctrine is 87
abrogated to the extent it extends liability for accidents 88
that occur on property not owned [or controlled] by the 89
employer even if the accident occurs on customary, approved, 90
permitted, usual or accepted routes used by the employee to 91
get to and from their place of employment. 92
6. The term "total disability" as used in this chapter 93
shall mean inability to return to any employment and not 94
merely mean inability to return to the employment in which 95
the employee was engaged at the time of the accident. 96
7. As used in this chapter and all acts amendatory 97
thereof, the term "commission" shall hereafter be construed 98
as meaning and referring exclusively to the labor and 99
industrial relations commission of Missouri, and the term 100
"director" shall hereafter be construed as meaning the 101
director of the department of commerce and insurance of the 102
state of Missouri or such agency of government as shall 103
exercise the powers and duties now conferred and imposed 104
SB 1385 5
upon the department of commerce and insurance of the state 105
of Missouri. 106
8. The term "division" as used in this chapter means 107
the division of workers' compensation of the department of 108
labor and industrial relations of the state of Missouri. 109
9. For the purposes of this chapter, the term "minor" 110
means a person who has not attained the age of eighteen 111
years; except that, for the purpose of computing the 112
compensation provided for in this chapter, the provisions of 113
section 287.250 shall control. 114
10. In applying the provisions of this chapter, it is 115
the intent of the legislature to reject and abrogate earlier 116
case law interpretations on the meaning of or definition of 117
"accident", "occupational disease", "arising out of", and 118
"in the course of the employment" to include, but not be 119
limited to, holdings in: Bennett v. Columbia Health Care 120
and Rehabilitation, 80 S.W.3d 524 (Mo.App. W.D. 2002); Kasl 121
v. Bristol Care, Inc., 984 S.W.2d 852 (Mo.banc 1999); and 122
Drewes v. TWA, 984 S.W.2d 512 (Mo.banc 1999) and all cases 123
citing, interpreting, applying, or following those cases. 124
11. For the purposes of this chapter, "occupational 125
diseases due to toxic exposure" shall only include the 126
following: mesothelioma, asbestosis, berylliosis, coal 127
worker's pneumoconiosis, brochiolitis obliterans, silicosis, 128
silicotuberculosis, manganism, acute myelogenous leukemia, 129
and myelodysplastic syndrome. 130
12. For the purposes of this chapter, "maximum medical 131
improvement" shall mean the point at which the injured 132
employee's medical condition has stabilized and can no 133
longer reasonably improve with additional medical care, as 134
determined within a reasonable degree of medical certainty. 135
SB 1385 6
287.021. 1. As used in this chapter, the term 1
"employee" includes a sheriff or deputy sheriff and the term 2
"employer" includes a county in regard to a sheriff or 3
deputy sheriff. 4
2. Each county shall provide workers' compensation 5
insurance in an insurance group licensed to write workers' 6
compensation insurance in this state, or a city also 7
recognized as a county may have at all times sufficient self- 8
insurance coverage, so that all sheriffs and deputy sheriffs 9
in the county or self-insured city recognized as a county 10
will be covered. 11
3. The "average [earnings] weekly wage" of a sheriff 12
or deputy sheriff is his annual salary, or fourteen dollars 13
per day, whichever is greater. 14
4. The provisions of this section shall not be 15
construed to create any tort liability upon a county or to 16
impose any duty upon a county other than complying with this 17
chapter in relation to sheriffs and deputy sheriffs. 18
287.063. 1. An employee shall be conclusively deemed 1
to have been exposed to the hazards of an occupational 2
disease when for any length of time, however short, he is 3
employed in an occupation or process in which the hazard of 4
the disease exists, subject to the provisions relating to 5
occupational disease due to repetitive motion, as is set 6
forth in subsection 8 of section 287.067. 7
2. The employer liable for the compensation in this 8
section provided shall be the employer in whose employment 9
the employee was last exposed to the hazard of the 10
occupational disease prior to evidence of disability, 11
regardless of the length of time of such last exposure, 12
subject to the notice provision of section 287.420. 13
SB 1385 7
3. The statute of limitation referred to in section 14
287.430 shall not begin to run in cases of occupational 15
disease until it becomes reasonably discoverable and 16
apparent that an injury has been sustained related to such 17
exposure, except that in cases of loss of hearing due to 18
industrial noise said limitation shall not begin to run 19
until the employee is eligible to file a claim as 20
hereinafter provided in section 287.197. An injury becomes 21
"reasonably discoverable and apparent" when the injured 22
employee knew or should have known his or her injury was 23
related to his or her employment. 24
287.067. 1. In this chapter the term "occupational 1
disease" is hereby defined to mean, unless a different 2
meaning is clearly indicated by the context, an identifiable 3
disease or repetitive trauma injury arising with or without 4
human fault out of and in the course of the employment as 5
defined under subsection 3 of section 287.020. Ordinary 6
diseases of life to which the general public is exposed 7
outside of the employment shall not be compensable, except 8
where the diseases follow as an incident of an occupational 9
disease as defined in this section. The disease need not to 10
have been foreseen or expected but after its contraction it 11
must appear to have had its origin in a risk connected with 12
the employment and to have flowed from that source as a 13
rational consequence. 14
2. An injury or death by occupational disease is 15
compensable only if the occupational exposure was the 16
prevailing factor in causing both the resulting medical 17
condition and disability. The "prevailing factor" is 18
defined to be the primary factor, in relation to any other 19
factor, causing both the resulting medical condition and 20
disability. Ordinary, gradual deterioration, or progressive 21
SB 1385 8
degeneration of the body caused by aging or by the normal 22
activities of day-to-day living shall not be compensable. 23
3. An injury due to repetitive motion is recognized as 24
an occupational disease for purposes of this chapter. An 25
occupational disease due to repetitive motion is compensable 26
only if the occupational exposure was the prevailing factor 27
in causing both the resulting medical condition and 28
disability. The "prevailing factor" is defined to be the 29
primary factor, in relation to any other factor, causing 30
both the resulting medical condition and disability. 31
Ordinary, gradual deterioration, or progressive degeneration 32
of the body caused by aging or by the normal activities of 33
day-to-day living shall not be compensable. The exposure to 34
injury must arise out of and in the course of the employment 35
as defined under subsection 3 of section 287.020. 36
4. "Loss of hearing due to industrial noise" is 37
recognized as an occupational disease for purposes of this 38
chapter and is hereby defined to be a loss of hearing in one 39
or both ears due to prolonged exposure to harmful noise in 40
employment. "Harmful noise" means sound capable of 41
producing occupational deafness. 42
5. "Radiation disability" is recognized as an 43
occupational disease for purposes of this chapter and is 44
hereby defined to be that disability due to radioactive 45
properties or substances or to Roentgen rays (X-rays) or 46
exposure to ionizing radiation caused by any process 47
involving the use of or direct contact with radium or 48
radioactive properties or substances or the use of or direct 49
exposure to Roentgen rays (X-rays) or ionizing radiation. 50
6. Disease of the lungs or respiratory tract, 51
hypotension, hypertension, or disease of the heart or 52
cardiovascular system, including carcinoma, may be 53
SB 1385 9
recognized as occupational diseases for the purposes of this 54
chapter and are defined to be disability due to exposure to 55
smoke, gases, carcinogens, inadequate oxygen, of paid 56
firefighters of a paid fire department or paid police 57
officers of a paid police department certified under chapter 58
590 if a direct causal relationship is established, or 59
psychological stress of firefighters of a paid fire 60
department or paid peace officers of a police department who 61
are certified under chapter 590 if a direct causal 62
relationship is established. 63
7. Any employee who is exposed to and contracts any 64
contagious or communicable disease arising out of and in the 65
course of his or her employment shall be eligible for 66
benefits under this chapter as an occupational disease. 67
8. With regard to occupational disease due to 68
repetitive motion, if the exposure to the repetitive motion 69
which is found to be the cause of the injury is for a period 70
of less than three months and the evidence demonstrates that 71
the exposure to the repetitive motion with the immediate 72
prior employer was the prevailing factor in causing the 73
injury, the prior employer shall be liable for such 74
occupational disease. 75
9. (1) (a) Posttraumatic stress disorder (PTSD), as 76
described in the Diagnostic and Statistical Manual of Mental 77
Health Disorders, Fifth Edition, published by the American 78
Psychiatric Association, (DSM-5) is recognized as a 79
compensable occupational disease for purposes of this 80
chapter when diagnosed in a first responder, as that term is 81
defined under section 67.145. 82
(b) Benefits payable to a first responder under this 83
section shall not require a physical injury to the first 84
responder, and are not subject to any preexisting PTSD. 85
SB 1385 10
(c) Benefits payable to a first responder under this 86
section are compensable only if demonstrated by clear and 87
convincing evidence that PTSD has resulted from the course 88
and scope of employment, and the first responder is examined 89
and diagnosed with PTSD by an authorized treating physician, 90
due to the first responder experiencing one of the following 91
qualifying events: 92
a. Seeing for oneself a deceased minor; 93
b. Witnessing directly the death of a minor; 94
c. Witnessing directly the injury to a minor who 95
subsequently died prior to or upon arrival at a hospital 96
emergency department, participating in the physical 97
treatment of, or manually transporting, an injured minor who 98
subsequently died prior to or upon arrival at a hospital 99
emergency department; 100
d. Seeing for oneself a person who has suffered 101
serious physical injury of a nature that shocks the 102
conscience; 103
e. Witnessing directly a death, including suicide, due 104
to serious physical injury; or homicide, including murder, 105
mass killings, manslaughter, self-defense, misadventure, and 106
negligence; 107
f. Witnessing directly an injury that results in 108
death, if the person suffered serious physical injury that 109
shocks the conscience; 110
g. Participating in the physical treatment of an 111
injury, including attempted suicide, or manually 112
transporting an injured person who suffered serious physical 113
injury, if the injured person subsequently died prior to or 114
upon arrival at a hospital emergency department; or 115
h. Involvement in an event that caused or may have 116
caused serious injury or harm to the first responder or had 117
SB 1385 11
the potential to cause the death of the first responder, 118
whether accidental or by an intentional act of another 119
individual. 120
(2) The time for notice of injury or death in cases of 121
compensable PTSD under this section is measured from 122
exposure to one of the qualifying stressors listed in the 123
DSM-5 criteria, or the diagnosis of the disorder, whichever 124
is later. Any claim for compensation for such injury shall 125
be properly noticed within fifty-two weeks after the 126
qualifying exposure, or the diagnosis of the disorder, 127
whichever is later. 128
287.120. 1. Every employer subject to the provisions 1
of this chapter shall be liable, irrespective of negligence, 2
to furnish compensation under the provisions of this chapter 3
for personal injury or death of the employee by accident or 4
occupational disease arising out of and in the course of the 5
employee's employment. Any employee of such employer shall 6
not be liable for any injury or death for which compensation 7
is recoverable under this chapter and every employer and 8
employees of such employer shall be released from all other 9
liability whatsoever, whether to the employee or any other 10
person, except that an employee shall not be released from 11
liability for injury or death if the employee engaged in an 12
affirmative negligent act that purposefully and dangerously 13
caused or increased the risk of injury. The term "accident" 14
as used in this section shall include, but not be limited 15
to, injury or death of the employee caused by the unprovoked 16
violence or assault against the employee by any person. 17
2. The rights and remedies herein granted to an 18
employee shall exclude all other rights and remedies of the 19
employee, the employee's spouse, parents, personal 20
representatives, dependents, heirs or next kin, at common 21
SB 1385 12
law or otherwise, on account of such injury or death by 22
accident or occupational disease, except such rights and 23
remedies as are not provided for by this chapter. 24
3. No compensation shall be allowed under this chapter 25
for the injury or death due to the employee's intentional 26
self-inflicted injury, but the burden of proof of 27
intentional self-inflicted injury shall be on the employer 28
or the person contesting the claim for allowance. 29
4. Where the injury is caused by the failure of the 30
employer to comply with any statute in this state or any 31
lawful order of the division or the commission, the 32
compensation and death benefit provided for under this 33
chapter shall be increased fifteen percent. 34
5. Where the injury is caused by the failure of the 35
employee to use safety devices where provided by the 36
employer, or from the employee's failure to obey any 37
reasonable rule adopted by the employer for the safety of 38
employees, the [compensation and death] indemnity benefit 39
provided for herein shall be reduced at least twenty-five 40
but not more than fifty percent; provided, that it is shown 41
that the employee had actual knowledge of the rule so 42
adopted by the employer; and provided, further, that the 43
employer had, prior to the injury, made a reasonable effort 44
to cause his or her employees to use the safety device or 45
devices and to obey or follow the rule so adopted for the 46
safety of the employees. 47
6. (1) Where the employee fails to obey any rule or 48
policy adopted by the employer relating to a drug-free 49
workplace or the use of alcohol or nonprescribed controlled 50
drugs in the workplace, the [compensation and death] 51
indemnity benefit provided for herein shall be reduced fifty 52
SB 1385 13
percent if the injury was sustained in conjunction with the 53
use of alcohol or nonprescribed controlled drugs. 54
(2) If, however, the use of alcohol or nonprescribed 55
controlled drugs in violation of the employer's rule or 56
policy is the proximate cause of the injury, then the 57
benefits or compensation otherwise payable under this 58
chapter for death or disability shall be forfeited. 59
(3) The voluntary use of alcohol to the percentage of 60
blood alcohol sufficient under Missouri law to constitute 61
legal intoxication shall give rise to a rebuttable 62
presumption that the voluntary use of alcohol under such 63
circumstances was the proximate cause of the injury. A 64
preponderance of the evidence standard shall apply to rebut 65
such presumption. An employee's refusal to take a test for 66
alcohol or a nonprescribed controlled substance, as defined 67
by section 195.010, at the request of the employer shall 68
result in the forfeiture of benefits under this chapter if 69
the employer had sufficient cause to suspect use of alcohol 70
or a nonprescribed controlled substance by the claimant or 71
if the employer's policy clearly authorizes post-injury 72
testing. 73
(4) Any positive test result for a nonprescribed 74
controlled drug or the metabolites of such drug from an 75
employee shall give rise to a rebuttable presumption, which 76
may be rebutted by a preponderance of evidence, that the 77
tested nonprescribed controlled drug was in the employee's 78
system at the time of the accident or injury and that the 79
injury was sustained in conjunction with the use of the 80
tested nonprescribed controlled drug if: 81
(a) The initial testing was administered within twenty- 82
four hours of the accident or injury; 83
SB 1385 14
(b) Notice was given to the employee of the test 84
results within fourteen calendar days of the insurer or 85
group self-insurer receiving actual notice of the 86
confirmatory test results; 87
(c) The employee was given an opportunity to perform a 88
second test upon the original sample; and 89
(d) The initial or any subsequent testing that forms 90
the basis of the presumption was confirmed by mass 91
spectrometry using generally accepted medical or forensic 92
testing procedures. 93
7. Where the employee's participation in a 94
recreational activity or program is the prevailing cause of 95
the injury, benefits or compensation otherwise payable under 96
this chapter for death or disability shall be forfeited 97
regardless that the employer may have promoted, sponsored or 98
supported the recreational activity or program, expressly or 99
impliedly, in whole or in part. The forfeiture of benefits 100
or compensation shall not apply when: 101
(1) The employee was directly ordered by the employer 102
to participate in such recreational activity or program; or 103
(2) [The employee was paid wages or travel expenses 104
while participating in such recreational activity or 105
program; or 106
(3)] The injury from such recreational activity or 107
program occurs on the employer's premises due to an unsafe 108
condition and the employer had actual knowledge of the 109
employee's participation in the recreational activity or 110
program and of the unsafe condition of the premises and 111
failed to either curtail the recreational activity or 112
program or cure the unsafe condition. 113
8. Mental injury resulting from work-related stress 114
does not arise out of and in the course of the employment, 115
SB 1385 15
unless it is demonstrated that the stress is work related 116
and was extraordinary and unusual, by comparison with 117
employees working in the same position. The amount of work 118
stress shall be measured by objective standards and actual 119
events. 120
9. A mental injury is not considered to arise out of 121
and in the course of the employment if it resulted from any 122
disciplinary action, work evaluation, job transfer, layoff, 123
demotion, termination or any similar action taken in good 124
faith by the employer. 125
10. The ability of a firefighter to receive benefits 126
for psychological stress under section 287.067 shall not be 127
diminished by the provisions of subsections 8 and 9 of this 128
section. 129
287.127. 1. Beginning January 1, 1993, all employers 1
shall post a notice at their place of employment, in a 2
sufficient number of places on the premises to assure that 3
such notice will reasonably be seen by all employees. An 4
employer for whom services are performed by individuals who 5
may not reasonably be expected to see a posted notice shall 6
notify each such employee in writing of the contents of such 7
notice. The notice shall include: 8
(1) That the employer is operating under and subject 9
to the provisions of the Missouri workers' compensation law; 10
(2) That employees must report all injuries 11
immediately to the employer by advising the employer 12
personally, the employer's designated individual or the 13
employee's immediate boss, supervisor or foreman and that 14
the employee may lose the right to receive compensation if 15
the injury or illness is not reported within thirty days or 16
in the case of occupational illness or disease, within 17
thirty days of [the time he or she is reasonably aware of 18
SB 1385 16
work relatedness of the injury or illness] when medically 19
advised of the contracture of an occupational disease; 20
employees who fail to notify their employer within thirty 21
days may jeopardize their ability to receive compensation, 22
and any other benefits under this chapter; 23
(3) The name, address and telephone number of the 24
insurer, if insured. If self-insured, the name, address and 25
telephone number of the employer's designated individual 26
responsible for reporting injuries or the name, address and 27
telephone number of the adjusting company or service company 28
designated by the employer to handle workers' compensation 29
matters; 30
(4) The name, address and the toll-free telephone 31
number of the division of workers' compensation; 32
(5) That the employer will supply, upon request, 33
additional information provided by the division of workers' 34
compensation; 35
(6) That a fraudulent action by the employer, employee 36
or any other person is unlawful. 37
2. The division of workers' compensation shall develop 38
the notice to be posted, distribute such notice free of 39
charge to employers and insurers upon request, and publish 40
the notice on the website of the department of labor and 41
industrial relations. Failure to request such notice does 42
not relieve the employer of its obligation to post the 43
notice. If the employer carries workers' compensation 44
insurance, the carrier shall provide the notice, in paper or 45
electronic format, to the insured within thirty days of the 46
insurance policy's inception date. A carrier who elects to 47
provide the notice in electronic format shall direct the 48
insured to the notice available on the website of the 49
department of labor and industrial relations. 50
SB 1385 17
3. Any employer who willfully violates the provisions 51
of this section shall be guilty of a class A misdemeanor and 52
shall be punished by a fine of not less than fifty dollars 53
nor more than one thousand dollars, or by imprisonment in 54
the county jail for not more than six months or by both such 55
fine and imprisonment, and each such violation or each day 56
such violation continues shall be deemed a separate offense. 57
287.140. 1. In addition to all other compensation 1
paid to the employee under this section, the employee shall 2
receive and the employer shall provide such medical, 3
surgical, chiropractic, and hospital treatment, including 4
nursing, custodial, ambulance and medicines, as may 5
reasonably be required after the injury or disability, to 6
cure and relieve from the effects of the injury. If the 7
employee desires, he shall have the right to select his own 8
physician, surgeon, or other such requirement at his own 9
expense. Where the requirements are furnished by a public 10
hospital or other institution, payment therefor shall be 11
made to the proper authorities. Regardless of whether the 12
health care provider is selected by the employer or is 13
selected by the employee at the employee's expense, the 14
health care provider shall have the affirmative duty to 15
communicate fully with the employee regarding the nature of 16
the employee's injury and recommended treatment exclusive of 17
any evaluation for a permanent disability rating. Failure 18
to perform such duty to communicate shall constitute a 19
disciplinary violation by the provider subject to the 20
provisions of chapter 620. When an employee is required to 21
submit to medical examinations or necessary medical 22
treatment at a place outside of the local or metropolitan 23
area from the employee's principal place of employment, the 24
employer or its insurer shall advance or reimburse the 25
SB 1385 18
employee for all necessary and reasonable expenses; except 26
that an injured employee who resides outside the state of 27
Missouri and who is employed by an employer located in 28
Missouri shall have the option of selecting the location of 29
services provided in this section either at a location 30
within one hundred miles of the injured employee's 31
residence, place of injury or place of hire by the 32
employer. The choice of provider within the location 33
selected shall continue to be made by the employer. In case 34
of a medical examination if a dispute arises as to what 35
expenses shall be paid by the employer, the matter shall be 36
presented to the legal advisor, the administrative law judge 37
or the commission, who shall set the sum to be paid and same 38
shall be paid by the employer prior to the medical 39
examination. In no event, however, shall the employer or 40
its insurer be required to pay transportation costs for a 41
greater distance than two hundred fifty miles each way from 42
place of treatment. 43
2. If it be shown to the division or the commission 44
that the requirements are being furnished in such manner 45
that there is reasonable ground for believing that the life, 46
health, or recovery of the employee is endangered thereby, 47
the division or the commission may order a change in the 48
physician, surgeon, hospital or other requirement. 49
3. The division shall establish by rule a schedule of 50
fees for any service provided pursuant to this chapter. All 51
fees and charges under this chapter shall be [fair and 52
reasonable, shall be] in accordance with the fee schedule 53
promulgated by the division and subject to regulation by the 54
division or the commission, or the board of rehabilitation 55
in rehabilitation cases. A health care provider shall not 56
charge a fee for treatment and care which is governed by the 57
SB 1385 19
provisions of this chapter greater than [the usual and 58
customary fee the provider receives for the same treatment 59
or service when the payor for such treatment or service is a 60
private individual or a private health insurance carrier] 61
that allowed pursuant to the fee schedule promulgated by the 62
division. The division or the commission, or the board of 63
rehabilitation in rehabilitation cases, shall also have 64
jurisdiction to hear and determine all disputes as to such 65
charges. A health care provider is bound by the 66
determination upon the reasonableness of health care bills. 67
4. The division shall, by regulation, establish 68
methods to resolve disputes concerning the reasonableness of 69
medical charges, services, or aids. This regulation shall 70
govern resolution of disputes between employers and medical 71
providers over fees charged, whether or not paid, and shall 72
be in lieu of any other administrative procedure under this 73
chapter. The employee shall not be a party to a dispute 74
over medical charges, nor shall the employee's recovery in 75
any way be jeopardized because of such dispute. Any 76
[application for payment of additional reimbursement, as 77
such term is used in 8 CSR 50- 2.030, as amended,] medical 78
fee dispute shall be filed not later than: 79
(1) Two years from the date the first notice of 80
dispute of the medical charge was received by the health 81
care provider if such services were rendered before July 1, 82
2013; [and] 83
(2) One year from the date the first notice of dispute 84
of the medical charge was received by the health care 85
provider if such services were rendered after July 1, 2013; 86
and 87
(3) Two years from the date of service, when no 88
payment has been made. 89
SB 1385 20
Notice shall be presumed to occur no later than five 90
business days after transmission by certified United States 91
mail. 92
5. No compensation shall be payable for the death or 93
disability of an employee, if and insofar as the death or 94
disability may be caused, continued or aggravated by any 95
unreasonable refusal to submit to any medical or surgical 96
treatment or operation, the risk of which is, in the opinion 97
of the division or the commission, inconsiderable in view of 98
the seriousness of the injury. If the employee dies as a 99
result of an operation made necessary by the injury, the 100
death shall be deemed to be caused by the injury. 101
6. The testimony of any physician or chiropractic 102
physician who treated the employee shall be admissible in 103
evidence in any proceedings for compensation under this 104
chapter, subject to all of the provisions of section 287.210. 105
7. Every hospital or other person furnishing the 106
employee with medical aid shall permit its record to be 107
copied by and shall furnish full information to the division 108
or the commission, the employer, the employee or his 109
dependents and any other party to any proceedings for 110
compensation under this chapter, and certified copies of the 111
records shall be admissible in evidence in any such 112
proceedings. 113
8. The employer may be required by the division or the 114
commission to furnish an injured employee with artificial 115
legs, arms, hands, surgical orthopedic joints, or eyes, or 116
braces, as needed, for life whenever the division or the 117
commission shall find that the injured employee may be 118
partially or wholly relieved of the effects of a permanent 119
injury by the use thereof. [The director of the division 120
shall establish a procedure whereby a claim for compensation 121
SB 1385 21
may be reactivated after settlement of such claim is 122
completed. The claim shall be reactivated only after the 123
claimant can show good cause for the reactivation of this 124
claim and the claim shall be made only for the payment of 125
medical procedures involving life-threatening surgical 126
procedures or if the claimant requires the use of a new, or 127
the modification, alteration or exchange of an existing, 128
prosthetic device. For the purpose of this subsection, 129
"life threatening" shall mean a situation or condition 130
which, if not treated immediately, will likely result in the 131
death of the injured worker.] 132
9. Nothing in this chapter shall prevent an employee 133
being provided treatment for his injuries by prayer or 134
spiritual means if the employer does not object to the 135
treatment. 136
10. The employer shall have the right to select the 137
licensed treating physician, surgeon, chiropractic 138
physician, or other health care provider; provided, however, 139
that such physicians, surgeons or other health care 140
providers shall offer only those services authorized within 141
the scope of their licenses. For the purpose of this 142
subsection, subsection 2 of section 287.030 shall not apply. 143
11. Any physician or other health care provider who 144
orders, directs or refers a patient for treatment, testing, 145
therapy or rehabilitation at any institution or facility 146
shall, at or prior to the time of the referral, disclose in 147
writing if such health care provider, any of his partners or 148
his employer has a financial interest in the institution or 149
facility to which the patient is being referred, to the 150
following: 151
(1) The patient; 152
SB 1385 22
(2) The employer of the patient with workers' 153
compensation liability for the injury or disease being 154
treated; 155
(3) The workers' compensation insurer of such 156
employer; and 157
(4) The workers' compensation adjusting company for 158
such insurer. 159
12. Violation of subsection 11 of this section is a 160
class A misdemeanor. 161
13. (1) No hospital, physician or other health care 162
provider, other than a hospital, physician or health care 163
provider selected by the employee at his own expense 164
pursuant to subsection 1 of this section, shall bill or 165
attempt to collect any fee or any portion of a fee for 166
services rendered to an employee due to a work-related 167
injury or report to any credit reporting agency any failure 168
of the employee to make such payment, when an injury covered 169
by this chapter has occurred and such hospital, physician or 170
health care provider has received actual notice given in 171
writing by the employee, the employer or the employer's 172
insurer. Actual notice shall be deemed received by the 173
hospital, physician or health care provider five days after 174
mailing by certified mail by the employer or insurer to the 175
hospital, physician or health care provider. 176
(2) The notice shall include: 177
(a) The name of the employer; 178
(b) The name of the insurer, if known; 179
(c) The name of the employee receiving the services; 180
(d) The general nature of the injury, if known; and 181
(e) Where a claim has been filed, the claim number, if 182
known. 183
SB 1385 23
(3) When an injury is found to be noncompensable under 184
this chapter, the hospital, physician or other health care 185
provider shall be entitled to pursue the employee for any 186
unpaid portion of the fee or other charges for authorized 187
services provided to the employee. Any applicable statute 188
of limitations for an action for such fees or other charges 189
shall be tolled from the time notice is given to the 190
division by a hospital, physician or other health care 191
provider pursuant to subdivision (6) of this subsection, 192
until a determination of noncompensability in regard to the 193
injury which is the basis of such services is made, or in 194
the event there is an appeal to the labor and industrial 195
relations commission, until a decision is rendered by that 196
commission. 197
(4) If a hospital, physician or other health care 198
provider or a debt collector on behalf of such hospital, 199
physician or other health care provider pursues any action 200
to collect from an employee after such notice is properly 201
given, the employee shall have a cause of action against the 202
hospital, physician or other health care provider for actual 203
damages sustained plus up to one thousand dollars in 204
additional damages, costs and reasonable attorney's fees. 205
(5) If an employer or insurer fails to make payment 206
for authorized services provided to the employee by a 207
hospital, physician or other health care provider pursuant 208
to this chapter, the hospital, physician or other health 209
care provider may proceed pursuant to subsection 4 of this 210
section with a dispute against the employer or insurer for 211
any fees or other charges for services provided. 212
(6) A hospital, physician or other health care 213
provider whose services have been authorized in advance by 214
the employer or insurer may give notice to the division of 215
SB 1385 24
any claim for fees or other charges for services provided 216
for a work-related injury that is covered by this chapter, 217
with copies of the notice to the employee, employer and the 218
employer's insurer. Where such notice has been filed, the 219
administrative law judge may order direct payment from the 220
proceeds of any settlement or award to the hospital, 221
physician or other health care provider for such fees as are 222
determined by the division. The notice shall be on a form 223
prescribed by the division. 224
14. The employer may allow or require an employee to 225
use any of the employee's accumulated paid leave, personal 226
leave, or medical or sick leave to attend to medical 227
treatment, physical rehabilitation, or medical evaluations 228
during work time. The intent of this subsection is to 229
specifically supercede and abrogate any case law that 230
contradicts the express language of this section. 231
287.150. 1. Where a third person is liable to the 1
employee or to the dependents, for the injury or death, the 2
employer shall [be subrogated to the right of the employee 3
or to the dependents] have a subrogation lien against such 4
third person, and the recovery by such employer shall not be 5
limited to the amount payable as compensation to such 6
employee or dependents, but such employer may recover any 7
amount which such employee or his dependents would have been 8
entitled to recover. Any recovery by the employer against 9
such third person shall be apportioned between the employer 10
and employee or his dependents using the provisions of 11
subsections 2 and 3 of this section. 12
2. When a third person is liable for the death of an 13
employee and compensation is paid or payable under this 14
chapter, and recovery is had by a dependent under this 15
chapter either by judgment or settlement for the wrongful 16
SB 1385 25
death of the employee, the employer shall have a subrogation 17
lien on any recovery and shall receive or have credit for 18
sums paid or payable under this chapter to any of the 19
dependents of the deceased employee to the extent of the 20
settlement or recovery by such dependents for the wrongful 21
death. Recovery by the employer and credit for future 22
installments shall be computed using the provisions of 23
subsection 3 of this section relating to comparative fault 24
of the employee. 25
3. Whenever recovery against the third person is 26
effected by the employee or his dependents, the employer 27
shall pay from his share of the recovery a proportionate 28
share of the expenses of the recovery, including a 29
reasonable attorney fee. After the expenses and attorney 30
fee have been paid, the balance of the recovery shall be 31
apportioned between the employer and the employee or his 32
dependents in the same ratio that the amount due the 33
employer bears to the total amount recovered if there is no 34
finding of comparative fault on the part of the employee, or 35
the total damages determined by the trier of fact if there 36
is a finding of comparative fault on the part of the 37
employee. Notwithstanding the foregoing provision, the 38
balance of the recovery may be divided between the employer 39
and the employee or his dependents as they may otherwise 40
agree. Any part of the recovery found to be due to the 41
employer, the employee or his dependents shall be paid 42
forthwith and any part of the recovery paid to the employee 43
or his dependents under this section shall be treated by 44
them as an advance payment by the employer on account of any 45
future installments of compensation in the following manner: 46
(1) The total amount paid to the employee or his 47
dependents shall be treated as an advance payment if there 48
SB 1385 26
is no finding of comparative fault on the part of the 49
employee; or 50
(2) A percentage of the amount paid to the employee or 51
his dependents equal to the percentage of fault assessed to 52
the third person from whom recovery is made shall be treated 53
as an advance payment if there is a finding of comparative 54
fault on the part of the employee. 55
4. In any case in which an injured employee has been 56
paid benefits from the second injury fund as provided in 57
subsection 3 of section 287.141, and recovery is had against 58
the third party liable to the employee for the injury, the 59
second injury fund shall be subrogated to the rights of the 60
employee against said third party to the extent of the 61
payments made to him from such fund, subject to provisions 62
of subsections 2 and 3 of this section. 63
5. No construction design professional who is retained 64
to perform professional services on a construction project 65
or any employee of a construction design professional who is 66
assisting or representing the construction design 67
professional in the performance of professional services on 68
the site of the construction project shall be liable for any 69
injury resulting from the employer's failure to comply with 70
safety standards on a construction project for which 71
compensation is recoverable under the workers' compensation 72
law, unless responsibility for safety practices is 73
specifically assumed by contract. The immunity provided by 74
this subsection to any construction design professional 75
shall not apply to the negligent preparation of design plans 76
or specifications. 77
6. Any provision in any contract or subcontract, where 78
one party is an employer in the construction group of code 79
classifications, which purports to waive subrogation rights 80
SB 1385 27
provided under this section in anticipation of a future 81
injury or death is hereby declared against public policy and 82
void. Each contract of insurance for workers' compensation 83
shall require the insurer to diligently pursue all 84
subrogation rights of the employer and shall require the 85
employer to fully cooperate with the insurer in pursuing 86
such recoveries, except that the employer may enter into 87
compromise agreements with an insurer in lieu of the insurer 88
pursuing subrogation against another party. The amount of 89
any subrogation recovery by an insurer shall be credited 90
against the amount of the actual paid losses in the 91
determination of such employer's experience modification 92
factor within forty-five days of the collection of such 93
amount. 94
[7. Notwithstanding any other provision of this 95
section, when a third person or party is liable to the 96
employee, to the dependents of an employee, or to any person 97
eligible to sue for the employee's wrongful death as 98
provided is section 537.080 in a case where the employee 99
suffers or suffered from an occupational disease due to 100
toxic exposure and the employee, dependents, or persons 101
eligible to sue for wrongful death are compensated under 102
this chapter, in no case shall the employer then be 103
subrogated to the rights of an employee, dependents, or 104
persons eligible to sue for wrongful death against such 105
third person or party when the occupational disease due to 106
toxic exposure arose from the employee's work for employer.] 107
287.210. 1. After an employee has received an injury 1
he shall from time to time thereafter during disability 2
submit to reasonable medical examination at the request of 3
the employer, the employer's insurer, the commission, the 4
division, an administrative law judge, or the attorney 5
SB 1385 28
general on behalf of the second injury fund if the employer 6
has not obtained a medical examination report, the time and 7
place of which shall be fixed with due regard to the 8
convenience of the employee and his physical condition and 9
ability to attend. The employee may have his own physician 10
present, and if the employee refuses to submit to the 11
examination, or in any way obstructs it, his right to 12
compensation shall be forfeited during such period unless in 13
the opinion of the commission the circumstances justify the 14
refusal or obstruction. 15
2. The commission, the division or administrative law 16
judge shall, when deemed necessary, appoint a duly qualified 17
impartial physician to examine the injured employee, and any 18
physician so chosen, if he accepts the appointment, shall 19
promptly make the examination requested and make a complete 20
medical report to the commission or the division in such 21
duplication as to provide all parties with copies thereof. 22
The physician's fee shall be [fair and reasonable, as 23
provided in] subject to subsection 3 of section 287.140, and 24
the fee and other reasonable costs of the impartial 25
examination may be paid as other costs under this chapter. 26
If all the parties shall have had reasonable access thereto, 27
the report of the physician shall be admissible in evidence. 28
3. The testimony of any physician who treated or 29
examined the injured employee shall be admissible in 30
evidence in any proceedings for compensation under this 31
chapter, but only if the medical report of the physician has 32
been made available to all parties as in this section 33
provided. Immediately upon receipt of notice from the 34
division or the commission setting a date for hearing of a 35
case in which the nature and extent of an employee's 36
disability is to be determined, the parties or their 37
SB 1385 29
attorneys shall arrange, without charge or costs, each to 38
the other, for an exchange of all medical reports, including 39
those made both by treating and examining physician or 40
physicians, to the end that the parties may be commonly 41
informed of all medical findings and opinions. The exchange 42
of medical reports shall be made at least seven days before 43
the date set for the hearing and failure of any party to 44
comply may be grounds for asking for and receiving a 45
continuance, upon proper showing by the party to whom the 46
medical reports were not furnished. If any party fails or 47
refuses to furnish the opposing party with the medical 48
report of the treating or examining physician at least seven 49
days before such physician's deposition or personal 50
testimony at the hearing, as in this section provided, upon 51
the objection of the party who was not provided with the 52
medical report, the physician shall not be permitted to 53
testify at that hearing or by medical deposition. 54
4. Upon request, an administrative law judge, the 55
division, or the commission shall be provided with a copy of 56
any medical report. 57
5. As used in this chapter the terms "physician's 58
report" and "medical report" mean the report of any 59
physician made on any printed form authorized by the 60
division or the commission or any complete medical report. 61
As used in this chapter the term "complete medical report" 62
means the report of a physician giving the physician's 63
qualifications and the patient's history, complaints, 64
details of the findings of any and all laboratory, X-ray and 65
all other technical examinations, diagnosis, prognosis, 66
nature of disability, if any, and an estimate of the 67
percentage of permanent partial disability, if any. An 68
SB 1385 30
element or elements of a complete medical report may be met 69
by the physician's records. 70
6. Upon the request of a party, the physician or 71
physicians who treated or are treating the injured employee 72
shall be required to furnish to the parties a rating and 73
complete medical report on the injured employee, at the 74
expense of the party selecting the physician, along with a 75
complete copy of the physician's clinical record including 76
copies of any records and reports received from other health 77
care providers. 78
7. The testimony of a treating or examining physician 79
may be submitted in evidence on the issues in controversy by 80
a complete medical report and shall be admissible without 81
other foundational evidence subject to compliance with the 82
following procedures. The party intending to submit a 83
complete medical report in evidence shall give notice at 84
least sixty days prior to the hearing to all parties and 85
shall provide reasonable opportunity to all parties to 86
obtain cross-examination testimony of the physician by 87
deposition. The notice shall include a copy of the report 88
and all the clinical and treatment records of the physician 89
including copies of all records and reports received by the 90
physician from other health care providers. The party 91
offering the report must make the physician available for 92
cross-examination testimony by deposition not later than 93
seven days before the matter is set for hearing, and each 94
cross-examiner shall compensate the physician for the 95
portion of testimony obtained in an amount not to exceed a 96
rate of reasonable compensation taking into consideration 97
the specialty practiced by the physician. Cross-examination 98
testimony shall not bind the cross-examining party. Any 99
testimony obtained by the offering party shall be at that 100
SB 1385 31
party's expense on a proportional basis, including the 101
deposition fee of the physician. Upon request of any party, 102
the party offering a complete medical report in evidence 103
must also make available copies of X rays or other 104
diagnostic studies obtained by or relied upon by the 105
physician. Within ten days after receipt of such notice a 106
party shall dispute whether a report meets the requirements 107
of a complete medical report by providing written objections 108
to the offering party stating the grounds for the dispute, 109
and at the request of any party, the administrative law 110
judge shall rule upon such objections upon pretrial hearing 111
whether the report meets the requirements of a complete 112
medical report and upon the admissibility of the report or 113
portions thereof. If no objections are filed the report is 114
admissible, and any objections thereto are deemed waived. 115
Nothing herein shall prevent the parties from agreeing to 116
admit medical reports or records by consent. 117
8. Certified copies of the proceedings before any 118
coroner holding an inquest over the body of any employee 119
receiving an injury in the course of his employment 120
resulting in death shall be admissible in evidence in any 121
proceedings for compensation under this chapter, and it 122
shall be the duty of the coroner to give notice of the 123
inquest to the employer and the dependents of the deceased 124
employee, who shall have the right to cross-examine the 125
witness. 126
9. The division or the commission may in its 127
discretion in extraordinary cases order a postmortem 128
examination and for that purpose may also order a body 129
exhumed. 130
287.220. 1. There is hereby created in the state 1
treasury a special fund to be known as the "Second Injury 2
SB 1385 32
Fund" created exclusively for the purposes as in this 3
section provided and for special weekly benefits in 4
rehabilitation cases as provided in section 287.141. 5
Maintenance of the second injury fund shall be as provided 6
by section 287.710. The state treasurer shall be the 7
custodian of the second injury fund which shall be deposited 8
the same as are state funds and any interest accruing 9
thereon shall be added thereto. The fund shall be subject 10
to audit the same as state funds and accounts and shall be 11
protected by the general bond given by the state treasurer. 12
Upon the requisition of the director of the division of 13
workers' compensation, warrants on the state treasurer for 14
the payment of all amounts payable for compensation and 15
benefits out of the second injury fund shall be issued. 16
2. All cases of permanent disability where there has 17
been previous disability due to injuries occurring prior to 18
January 1, 2014, shall be compensated as provided in this 19
subsection. Compensation shall be computed on the basis of 20
the average earnings at the time of the last injury. If any 21
employee who has a preexisting permanent partial disability 22
whether from compensable injury or otherwise, of such 23
seriousness as to constitute a hindrance or obstacle to 24
employment or to obtaining reemployment if the employee 25
becomes unemployed, and the preexisting permanent partial 26
disability, if a body as a whole injury, equals a minimum of 27
fifty weeks of compensation or, if a major extremity injury 28
only, equals a minimum of fifteen percent permanent partial 29
disability, according to the medical standards that are used 30
in determining such compensation, receives a subsequent 31
compensable injury resulting in additional permanent partial 32
disability so that the degree or percentage of disability, 33
in an amount equal to a minimum of fifty weeks compensation, 34
SB 1385 33
if a body as a whole injury or, if a major extremity injury 35
only, equals a minimum of fifteen percent permanent partial 36
disability, caused by the combined disabilities is 37
substantially greater than that which would have resulted 38
from the last injury, considered alone and of itself, and if 39
the employee is entitled to receive compensation on the 40
basis of the combined disabilities, the employer at the time 41
of the last injury shall be liable only for the degree or 42
percentage of disability which would have resulted from the 43
last injury had there been no preexisting disability. After 44
the compensation liability of the employer for the last 45
injury, considered alone, has been determined by an 46
administrative law judge or the commission, the degree or 47
percentage of employee's disability that is attributable to 48
all injuries or conditions existing at the time the last 49
injury was sustained shall then be determined by that 50
administrative law judge or by the commission and the degree 51
or percentage of disability which existed prior to the last 52
injury plus the disability resulting from the last injury, 53
if any, considered alone, shall be deducted from the 54
combined disability, and compensation for the balance, if 55
any, shall be paid out of a special fund known as the second 56
injury fund, hereinafter provided for. If the previous 57
disability or disabilities, whether from compensable injury 58
or otherwise, and the last injury together result in total 59
and permanent disability, the minimum standards under this 60
subsection for a body as a whole injury or a major extremity 61
injury shall not apply and the employer at the time of the 62
last injury shall be liable only for the disability 63
resulting from the last injury considered alone and of 64
itself; except that if the compensation for which the 65
employer at the time of the last injury is liable is less 66
SB 1385 34
than the compensation provided in this chapter for permanent 67
total disability, then in addition to the compensation for 68
which the employer is liable and after the completion of 69
payment of the compensation by the employer, the employee 70
shall be paid the remainder of the compensation that would 71
be due for permanent total disability under section 287.200 72
out of the second injury fund. 73
3. (1) All claims against the second injury fund for 74
injuries occurring after January 1, 2014, and all claims 75
against the second injury fund involving a subsequent 76
compensable injury which is an occupational disease filed 77
after January 1, 2014, shall be compensated as provided in 78
this subsection. 79
(2) No claims for permanent partial disability 80
occurring after January 1, 2014, shall be filed against the 81
second injury fund. Claims for permanent total disability 82
under section 287.200 against the second injury fund shall 83
be compensable only when the following conditions are met: 84
(a) a. An employee has a [medically documented] 85
preexisting disability equaling a minimum of fifty weeks of 86
permanent partial disability compensation according to the 87
medical standards that are used in determining such 88
compensation which is: 89
(i) A direct result of active military duty in any 90
branch of the United States Armed Forces; or 91
(ii) A direct result of a compensable injury as 92
defined in section 287.020 or 287.067; or 93
(iii) Not a compensable injury, but such preexisting 94
disability directly and significantly aggravates or 95
accelerates the subsequent work-related injury and shall not 96
include unrelated preexisting injuries or conditions that do 97
SB 1385 35
not aggravate or accelerate the subsequent work-related 98
injury; or 99
(iv) A preexisting permanent partial disability of an 100
extremity, loss of eyesight in one eye, or loss of hearing 101
in one ear, when there is a subsequent compensable work- 102
related injury as set forth in subparagraph b of the 103
opposite extremity, loss of eyesight in the other eye, or 104
loss of hearing in the other ear; and 105
b. Such employee thereafter sustains a subsequent 106
compensable work-related injury that, when combined with the 107
preexisting disability, as set forth in items (i), (ii), 108
(iii), or (iv) of subparagraph a. of this paragraph, results 109
in a permanent total disability as defined under this 110
chapter; or 111
(b) An employee is employed in a sheltered workshop as 112
established in sections 205.968 to 205.972 or sections 113
178.900 to 178.960 and such employee thereafter sustains a 114
compensable work-related injury that, when combined with the 115
preexisting disability, results in a permanent total 116
disability as defined under this chapter. 117
(3) When an employee is entitled to compensation as 118
provided in this subsection, the employer at the time of the 119
last work-related injury shall only be liable for the 120
disability resulting from the subsequent work-related injury 121
considered alone and of itself. 122
(4) If the employee is entitled to receive 123
compensation on the basis of the combined disabilities, the 124
employer at the time of the last injury shall be liable only 125
for the degree or percentage of disability which would have 126
resulted from the last injury had there been no preexisting 127
disability. After the compensation liability of the 128
employer for the last injury, considered alone, has been 129
SB 1385 36
determined by an administrative law judge or the commission, 130
the degree or percentage of employee's disability that is 131
attributable to all injuries or conditions existing at the 132
time the last injury was sustained shall then be determined 133
by that administrative law judge or by the commission and 134
the degree or percentage of disability which existed prior 135
to the last injury plus the disability resulting from the 136
last injury, if any, considered alone, shall be deducted 137
from the combined disability, and compensation for the 138
balance, if any, shall be paid out of a special fund known 139
as the second injury fund. 140
(5) Compensation for benefits payable under this 141
subsection shall be based on the employee's compensation 142
rate calculated under section 287.250. 143
4. (1) In all cases in which a recovery against the 144
second injury fund is sought for permanent partial 145
disability, permanent total disability, or death, the state 146
treasurer as custodian thereof shall be named as a party, 147
and shall be entitled to defend against the claim. 148
(2) The state treasurer, with the advice and consent 149
of the attorney general of Missouri, may enter into 150
compromise settlements as contemplated by section 287.390, 151
or agreed statements of fact that would affect the second 152
injury fund. All awards for permanent partial disability, 153
permanent total disability, or death affecting the second 154
injury fund shall be subject to the provisions of this 155
chapter governing review and appeal. 156
(3) For all claims filed against the second injury 157
fund on or after July 1, 1994, the attorney general shall 158
use assistant attorneys general except in circumstances 159
where an actual or potential conflict of interest exists, to 160
provide legal services as may be required in all claims made 161
SB 1385 37
for recovery against the fund. Any legal expenses incurred 162
by the attorney general's office in the handling of such 163
claims, including, but not limited to, medical examination 164
fees incurred under sections 287.210 and the expenses 165
provided for under section 287.140, expert witness fees, 166
court reporter expenses, travel costs, and related legal 167
expenses shall be paid by the fund. Effective July 1, 1993, 168
the payment of such legal expenses shall be contingent upon 169
annual appropriations made by the general assembly, from the 170
fund, to the attorney general's office for this specific 171
purpose. 172
5. If more than one injury in the same employment 173
causes concurrent temporary disabilities, compensation shall 174
be payable only for the longest and largest paying 175
disability. 176
6. If more than one injury in the same employment 177
causes concurrent and consecutive permanent partial 178
disability, compensation payments for each subsequent 179
disability shall not begin until the end of the compensation 180
period of the prior disability. 181
7. If an employer fails to insure or self-insure as 182
required in section 287.280, funds from the second injury 183
fund may be withdrawn to cover the fair, reasonable, and 184
necessary expenses incurred relating to claims for injuries 185
occurring prior to January 1, 2014, to cure and relieve the 186
effects of the injury or disability of an injured employee 187
in the employ of an uninsured employer consistent with 188
subsection 3 of section 287.140, or in the case of death of 189
an employee in the employ of an uninsured employer, funds 190
from the second injury fund may be withdrawn to cover fair, 191
reasonable, and necessary expenses incurred relating to a 192
death occurring prior to January 1, 2014, in the manner 193
SB 1385 38
required in sections 287.240 and 287.241. In defense of 194
claims arising under this subsection, the treasurer of the 195
state of Missouri, as custodian of the second injury fund, 196
shall have the same defenses to such claims as would the 197
uninsured employer. Any funds received by the employee or 198
the employee's dependents, through civil or other action, 199
must go towards reimbursement of the second injury fund, for 200
all payments made to the employee, the employee's 201
dependents, or paid on the employee's behalf, from the 202
second injury fund pursuant to this subsection. The office 203
of the attorney general of the state of Missouri shall bring 204
suit in the circuit court of the county in which the 205
accident occurred against any employer not covered by this 206
chapter as required in section 287.280. 207
8. Every year the second injury fund shall have an 208
actuarial study made to determine the solvency of the fund 209
taking into consideration any existing balance carried 210
forward from a previous year, appropriate funding level of 211
the fund, and forecasted expenditures from the fund. The 212
first actuarial study shall be completed prior to July 1, 213
2014. The expenses of such actuarial studies shall be paid 214
out of the fund for the support of the division of workers' 215
compensation. 216
9. The director of the division of workers' 217
compensation shall maintain the financial data and records 218
concerning the fund for the support of the division of 219
workers' compensation and the second injury fund. The 220
division shall also compile and report data on claims made 221
pursuant to subsection 11 of this section. The attorney 222
general shall provide all necessary information to the 223
division for this purpose. 224
SB 1385 39
10. All claims for fees and expenses filed against the 225
second injury fund and all records pertaining thereto shall 226
be open to the public. 227
11. Any employee who at the time a compensable work- 228
related injury is sustained prior to January 1, 2014, is 229
employed by more than one employer, the employer for whom 230
the employee was working when the injury was sustained shall 231
be responsible for wage loss benefits applicable only to the 232
earnings in that employer's employment and the injured 233
employee shall be entitled to file a claim against the 234
second injury fund for any additional wage loss benefits 235
attributed to loss of earnings from the employment or 236
employments where the injury did not occur, up to the 237
maximum weekly benefit less those benefits paid by the 238
employer in whose employment the employee sustained the 239
injury. The employee shall be entitled to a total benefit 240
based on the total average weekly wage of such employee 241
computed according to subsection 8 of section 287.250. The 242
employee shall not be entitled to a greater rate of 243
compensation than allowed by law on the date of the injury. 244
The employer for whom the employee was working where the 245
injury was sustained shall be responsible for all medical 246
costs incurred in regard to that injury. 247
12. No compensation shall be payable from the second 248
injury fund if the employee files a claim for compensation 249
under the workers' compensation law of another state with 250
jurisdiction over the employee's injury or accident or 251
occupational disease. 252
13. Notwithstanding the requirements of section 253
287.470, the life payments to an injured employee made from 254
the fund shall be suspended when the employee is able to 255
obtain suitable gainful employment or be self-employed in 256
SB 1385 40
view of the nature and severity of the injury. The division 257
shall promulgate rules setting forth a reasonable standard 258
means test to determine if such employment warrants the 259
suspension of benefits. 260
14. All awards issued under this chapter affecting the 261
second injury fund shall be subject to the provisions of 262
this chapter governing review and appeal. 263
15. The division shall pay any liabilities of the fund 264
in the following priority: 265
(1) Expenses related to the legal defense of the fund 266
under subsection 4 of this section; 267
(2) Permanent total disability awards in the order in 268
which claims are settled or finally adjudicated; 269
(3) Permanent partial disability awards in the order 270
in which such claims are settled or finally adjudicated; 271
(4) Medical expenses incurred prior to July 1, 2012, 272
under subsection 7 of this section; and 273
(5) Interest on unpaid awards. 274
Such liabilities shall be paid to the extent the fund has a 275
positive balance. Any unpaid amounts shall remain an 276
ongoing liability of the fund until satisfied. 277
16. Post-award interest for the purpose of second 278
injury fund claims shall be set at the adjusted rate of 279
interest established by the director of revenue pursuant to 280
section 32.065 or five percent, whichever is greater. 281
17. Notwithstanding the provisions of subsection 15 of 282
this section to the contrary, the division may pay from the 283
second injury fund any of the following second injury fund 284
liabilities prior to those liabilities listed under 285
subsection 15 of this section: 286
SB 1385 41
(1) All death benefits incurred under subsection 7 of 287
this section relating to claims for deaths occurring prior 288
to January 1, 2014, consistent with a temporary or final 289
award; and 290
(2) Ongoing medical expenses, but not past medical 291
expenses, under subsection 7 of this section relating to 292
claims for injuries occurring prior to January 1, 2014, 293
consistent with a temporary or final award that includes 294
future medical benefits. 295
287.240. If the injury causes death, either with or 1
without disability, the compensation therefor shall be as 2
provided in this section: 3
(1) In all cases the employer shall pay direct to the 4
persons furnishing the same the reasonable expense of the 5
burial of the deceased employee not exceeding five thousand 6
dollars. But no person shall be entitled to compensation 7
for the burial expenses of a deceased employee unless he or 8
she has furnished the same by authority of the widow or 9
widower, the nearest relative of the deceased employee in 10
the county of his or her death, his or her personal 11
representative, or the employer, who shall have the right to 12
give the authority in the order named. All fees and charges 13
under this section shall be fair and reasonable, shall be 14
subject to regulation by the division or the commission and 15
shall be limited to such as are fair and reasonable for 16
similar service to persons of a like standard of living. 17
The division or the commission shall also have jurisdiction 18
to hear and determine all disputes as to the charges. If 19
the deceased employee leaves no dependents, the death 20
benefit in this subdivision provided shall be the limit of 21
the liability of the employer under this chapter on account 22
of the death, except as herein provided for burial expenses 23
SB 1385 42
and except as provided in section 287.140; provided that in 24
all cases when the employer admits or does not deny 25
liability for the burial expense, it shall be paid within 26
thirty days after written notice, that the service has been 27
rendered, has been delivered to the employer. The notice 28
may be sent by registered mail, return receipt requested, or 29
may be made by personal delivery; 30
(2) The employer shall also pay to the dependents of 31
the employee a death benefit based on the employee's average 32
weekly [earnings during the year immediately preceding the 33
injury that results in the death of the employee,] wage as 34
provided in section 287.250. The amount of compensation for 35
death, which shall be paid in installments in the same 36
manner that compensation is required to be paid under this 37
chapter, shall be computed as follows: 38
(a) If the injury which caused the death occurred on 39
or after September 28, 1983, but before September 28, 1986, 40
the weekly compensation shall be an amount equal to sixty- 41
six and two-thirds percent of the employee's average weekly 42
earnings during the year immediately preceding the injury; 43
provided that the weekly compensation paid under this 44
paragraph shall not exceed an amount equal to seventy 45
percent of the state average weekly wage, as such wage is 46
determined by the division of employment security, as of the 47
July first immediately preceding the date of injury; 48
(b) If the injury which caused the death occurred on 49
or after September 28, 1986, but before August 28, 1990, the 50
weekly compensation shall be an amount equal to sixty-six 51
and two-thirds percent of the employee's average weekly 52
earnings during the year immediately preceding the injury; 53
provided that the weekly compensation paid under this 54
paragraph shall not exceed an amount equal to seventy-five 55
SB 1385 43
percent of the state average weekly wage, as such wage is 56
determined by the division of employment security, as of the 57
July first immediately preceding the date of injury; 58
(c) If the injury which caused the death occurred on 59
or after August 28, 1990, but before August 28, 1991, the 60
weekly compensation shall be an amount equal to sixty-six 61
and two-thirds percent of the injured employee's average 62
weekly earnings as of the date of the injury; provided that 63
the weekly compensation paid under this paragraph shall not 64
exceed an amount equal to one hundred percent of the state 65
average weekly wage; 66
(d) If the injury which caused the death occurred on 67
or after August 28, 1991, the weekly compensation shall be 68
an amount equal to sixty-six and two-thirds percent of the 69
injured employee's average weekly earnings as of the date of 70
the injury; provided that the weekly compensation paid under 71
this paragraph shall not exceed an amount equal to one 72
hundred five percent of the state average weekly wage; 73
(e) If the injury which caused the death occurred on 74
or after September 28, 1981, the weekly compensation shall 75
in no event be less than forty dollars per week; 76
(3) The word "dependent" as used in this chapter shall 77
mean: 78
(a) A wife upon a husband with whom she lives or who 79
is legally liable for her support, and a husband upon a wife 80
with whom he lives or who is legally liable for his support; 81
provided that on the death or remarriage of a widow or 82
widower, the death benefit shall cease unless there be other 83
dependents entitled to any death benefits under this 84
chapter. In the event of remarriage, a lump sum payment 85
equal in amount to the benefits due for a period of two 86
years shall be paid to the widow or widower. Thereupon the 87
SB 1385 44
periodic death benefits shall cease unless there are other 88
dependents entitled to any death benefit under this chapter, 89
in which event the periodic benefits to which such widow or 90
widower would have been entitled had he or she not died or 91
remarried shall be divided among such other dependents and 92
paid to them during their period of entitlement under this 93
chapter; or 94
(b) A natural, posthumous, or adopted child or 95
children, whether legitimate or illegitimate, including any 96
stepchild claimable by the deceased on his or her federal 97
tax return at the time of injury, under the age of eighteen 98
years, or over that age if physically or mentally 99
incapacitated from wage earning, upon the parent legally 100
liable for the support or with whom he, she, or they are 101
living at the time of the death of the parent. In case 102
there is a wife or a husband mentally or physically 103
incapacitated from wage earning, dependent upon a wife or 104
husband, and a child or more than one child thus dependent, 105
the death benefit shall be divided among them in such 106
proportion as may be determined by the commission after 107
considering their ages and other facts bearing on the 108
dependency. In all other cases questions of the degree of 109
dependency shall be determined in accordance with the facts 110
at the time of the injury, and in such other cases if there 111
is more than one person wholly dependent the death benefit 112
shall be divided equally among them. The payment of death 113
benefits to a child or other dependent as provided in this 114
paragraph shall cease when the dependent dies, attains the 115
age of eighteen years, or becomes physically and mentally 116
capable of wage earning over that age, or until twenty-two 117
years of age if the child of the deceased is in attendance 118
and remains as a full-time student in any accredited 119
SB 1385 45
educational institution, or if at eighteen years of age the 120
dependent child is a member of the Armed Forces of the 121
United States on active duty; provided, however, that such 122
dependent child shall be entitled to compensation during 123
four years of full-time attendance at a fully accredited 124
educational institution to commence prior to twenty-three 125
years of age and immediately upon cessation of his or her 126
active duty in the Armed Forces, unless there are other 127
dependents entitled to the death benefit under this chapter; 128
(4) The division or the commission may, in its 129
discretion, order or award the share of compensation of any 130
such child to be paid to the parent, grandparent, or other 131
adult next of kin or conservator of the child for the 132
latter's support, maintenance and education, which order or 133
award upon notice to the parties may be modified from time 134
to time by the commission in its discretion with respect to 135
the person to whom shall be paid the amount of the order or 136
award remaining unpaid at the time of the modification; 137
(5) The payments of compensation by the employer in 138
accordance with the order or award of the division or the 139
commission shall discharge the employer from all further 140
obligations as to the compensation; 141
(6) All death benefits in this chapter shall be paid 142
in installments in the same manner as provided for 143
disability compensation; 144
(7) Every employer shall keep a record of the correct 145
names and addresses of the dependents of each of his or her 146
employees, and upon the death of an employee by accident 147
arising out of and in the course of his or her employment 148
shall so far as possible immediately furnish the division 149
with such names and addresses; 150
SB 1385 46
(8) Dependents receiving death benefits under the 151
provisions of this chapter shall annually report to the 152
division as to marital status in the case of a widow or 153
widower or age and physical or mental condition of a 154
dependent child. The division shall provide forms for the 155
making of such reports. 156
287.250. 1. Except as otherwise provided for in this 1
chapter, the method of computing an injured employee's 2
average weekly earnings which will serve as the basis for 3
compensation provided for in this chapter shall be as 4
follows: 5
(1) If the wages are fixed by the week, the amount so 6
fixed shall be the average weekly wage; 7
(2) If the wages are fixed by the month, the average 8
weekly wage shall be the monthly wage so fixed multiplied by 9
twelve and divided by fifty-two; 10
(3) If the wages are fixed by the year, the average 11
weekly wage shall be the yearly wage fixed divided by fifty- 12
two; 13
(4) If the wages were fixed by the day, hour, or by 14
the output of the employee, the average weekly wage shall be 15
computed by dividing by thirteen the wages earned while 16
actually employed by the employer in each of the last 17
thirteen calendar weeks immediately preceding the week in 18
which the employee was injured or if actually employed by 19
the employer for less than thirteen weeks, by the number of 20
calendar weeks, or any portion of a week, during which the 21
employee was actually employed by the employer. For 22
purposes of computing the average weekly wage pursuant to 23
this subdivision, absence of five regular or scheduled work 24
days, even if not in the same calendar week, shall be 25
considered as absence for a calendar week. If the employee 26
SB 1385 47
commenced employment on a day other than the beginning of a 27
calendar week, such calendar week and the wages earned 28
during such week shall be excluded in computing the average 29
weekly wage pursuant to this subdivision; 30
(5) If the employee has been employed less than two 31
calendar weeks immediately preceding the injury, the 32
employee's weekly wage shall be considered to be equivalent 33
to the average weekly wage prevailing in the same or similar 34
employment at the time of the injury, except if the employer 35
has agreed to a certain hourly wage, then the hourly wage 36
agreed upon multiplied by the number of weekly hours 37
scheduled shall be the employee's average weekly wage; 38
(6) If the hourly wage has not been fixed or cannot be 39
ascertained, or the employee earned no wage, the wage for 40
the purpose of calculating compensation shall be taken to be 41
the usual wage for similar services where such services are 42
rendered by paid employees of the employer or any other 43
employer; 44
(7) In computing the average weekly wage pursuant to 45
subdivisions (1) to (6) of this subsection, an employee 46
shall be considered to have been actually employed for only 47
those weeks in which labor is actually performed by the 48
employee for the employer and wages are actually paid by the 49
employer as compensation for such labor; 50
(8) For purposes of 8 CSR 50-2.010(8)(B), an 51
allegation of the average weekly wage in a claim for 52
compensation shall not be considered a statement of fact 53
deemed admitted if an answer to the claim for compensation 54
is not timely filed. 55
2. For purposes of this section, the term "gross 56
wages" includes, in addition to money payments for services 57
rendered, the reasonable value of board, rent, housing, 58
SB 1385 48
lodging or similar advance received from the employer, 59
except if such benefits continue to be provided during the 60
period of the disability, then the value of such benefits 61
shall not be considered in calculating the average weekly 62
wage of the employee. The term "wages", as used in this 63
section, includes the value of any gratuities received in 64
the course of employment from persons other than the 65
employer to the extent that such gratuities are reported for 66
income tax purposes. "Wages", as used in this section, does 67
not include fringe benefits such as retirement, pension, 68
health and welfare, life insurance, training, Social 69
Security or other employee or dependent benefit plan 70
furnished by the employer for the benefit of the employee. 71
Any wages paid to helpers or any money paid by the employer 72
to the employee to cover any special expenses incurred by 73
the employee because of the nature of his employment shall 74
not be included in wages. 75
3. If an employee is hired by the employer for less 76
than the number of hours per week needed to be classified as 77
a full-time or regular employee, benefits computed for 78
purposes of this chapter for permanent partial disability, 79
permanent total disability and death benefits shall be based 80
upon the average weekly wage of a full-time or regular 81
employee engaged by the employer to perform work of the same 82
or similar nature and at the number of hours per week 83
required by the employer to classify the employee as a full- 84
time or regular employee, but such computation shall not be 85
based on less than thirty hours per week. 86
4. If pursuant to this section the average weekly wage 87
cannot fairly and justly be determined by the formulas 88
provided in subsections 1 to 3 of this section, the division 89
or the commission may determine the average weekly wage in 90
SB 1385 49
such manner and by such method as, in the opinion of the 91
division or the commission, based upon the exceptional facts 92
presented, fairly determine such employee's average weekly 93
wage. 94
5. In computing the compensation to be paid to an 95
employee, who, before the injury for which the employee 96
claims compensation, was disabled and drawing compensation 97
under the provisions of this chapter, the compensation for 98
each subsequent injury shall be apportioned according to the 99
proportion of incapacity and disability caused by the 100
respective injuries which the employee may have suffered. 101
6. For purposes of establishing a rate of compensation 102
applicable only to permanent partial disability, permanent 103
total disability and death benefits, pursuant to this 104
chapter, the average weekly wage for an employee who is 105
under the age of twenty-one years shall be adjusted to take 106
into consideration the increased earning power of such 107
employee until she or he attains the age of twenty-one years 108
and the average weekly wage for an employee who is an 109
apprentice or a trainee, and whose earnings would reasonably 110
be expected to increase, shall be adjusted to reflect a 111
level of expected increase, based upon completion of 112
apprenticeship or traineeship, provided that such adjustment 113
of the average weekly wage shall not consider expected 114
increase for a period occurring more than three years after 115
the date of the injury. 116
7. In all cases in which it is found by the division 117
or the commission that the employer knowingly employed a 118
minor in violation of the child labor laws of this state, a 119
fifty percent additional compensation shall be allowed. 120
8. For an employee with multiple employments, as to 121
the employee's entitlement to any temporary total or 122
SB 1385 50
temporary partial disability benefits only pursuant to 123
subsection 9 of section 287.220, and for no other purposes, 124
the employee's total average weekly wage shall be equal to 125
the sum of the total of the average weekly wage computed 126
separately for each employment pursuant to the provisions of 127
this section to which the employee is unable to return 128
because of this injury. 129
9. The parties, by agreement and with approval of an 130
administrative law judge, legal advisor or the commission, 131
may enter into a compromise lump sum settlement in either 132
permanent total or permanent partial disability cases which 133
prorates the lump sum settlement over the life expectancy of 134
the injured worker. When such an agreement has been 135
approved, neither the weekly compensation rate paid 136
throughout the case nor the maximum statutory weekly rate 137
applicable to the injury shall apply. No compensation rate 138
shall exceed the maximum statutory weekly rate as of the 139
date of the injury. Instead, the prorated rate set forth in 140
the approved settlement documents shall control and become 141
the rate for that case. This section shall be retroactive 142
in effect. 143
287.300. If [the] an employer [is] has not insured 1
[his] its liability hereunder, its liability shall be 2
primary and direct. If [he is] insured [his], its liability 3
shall be secondary and indirect, and [his] its insurer shall 4
be primarily and directly liable hereunder to the injured 5
employee, his or her dependents or other persons entitled to 6
rights hereunder. On the request of the division or the 7
commission and at every hearing the employer shall produce 8
and furnish it with a copy of his policy of insurance, and 9
on demand the employer shall furnish the injured employee, 10
or his dependents, with the correct name and address of his 11
SB 1385 51
insurer, and his failure to do so shall be prima facie 12
evidence of his failure to insure, but the presumption shall 13
be conclusively rebutted by an entry of appearance of his 14
insurer. Both the employer and his insurer shall be parties 15
to all agreements or awards of compensation, but the same 16
shall not be enforceable against the employer, except on 17
motion and proof of default by the insurer. Service on the 18
employer shall be sufficient to give the division or the 19
commission jurisdiction over the person of both the employer 20
and his insurer, and the appearance of the employer in any 21
proceeding shall also constitute the appearance of his 22
insurer, provided that after appearance by an insurer, the 23
insurer shall be entitled to notice of all proceedings 24
hereunder. 25
287.420. No proceedings for compensation for any 1
accident under this chapter shall be maintained unless 2
written notice of the time, place and nature of the injury, 3
and the name and address of the person injured, has been 4
given to the employer no later than thirty days after the 5
accident, unless the employer was not prejudiced by failure 6
to receive the notice. No proceedings for compensation for 7
any occupational disease or repetitive trauma under this 8
chapter shall be maintained unless written notice of the 9
time, place, and nature of the injury, and the name and 10
address of the person injured, has been given to the 11
employer no later than thirty days after the [diagnosis of 12
the condition] injury becomes "reasonably discoverable and 13
apparent" defined as being when employee knew or should have 14
known his or her injury was related to his or her employment 15
unless the employee can prove the employer was not 16
prejudiced by failure to receive the notice. 17
SB 1385 52
287.430. Except for a claim for recovery filed against 1
the second injury fund, no proceedings for compensation 2
under this chapter shall be maintained unless a claim 3
therefor is filed with the division within two years after 4
the date of injury or death, or the last payment made under 5
this chapter on account of the injury or death, except that 6
if the report of the injury or the death is not filed by the 7
employer as required by section 287.380, the claim for 8
compensation may be filed within three years after the date 9
of injury, death, or last payment made under this chapter on 10
account of the injury or death. The filing of any form, 11
report, receipt, or agreement, other than a claim for 12
compensation, shall not toll the running of the periods of 13
limitation provided in this section. The filing of the 14
report of injury or death three years or more after the date 15
of injury, death, or last payment made under this chapter on 16
account of the injury or death, shall not toll the running 17
of the periods of limitation provided in this section, nor 18
shall such filing reactivate or revive the period of time in 19
which a claim may be filed. A claim against the second 20
injury fund shall be filed [within two years after the date 21
of the injury or within one year after a claim is filed 22
against an employer or insurer pursuant to this chapter, 23
whichever is later] at any point prior to the conclusion by 24
settlement or final award, after appeals, of the primary 25
claim. In all other respects the limitations shall be 26
governed by the law of civil actions other than for the 27
recovery of real property, but the appointment of a 28
conservator shall be deemed the termination of the legal 29
disability from minority or disability as defined in chapter 30
475. The statute of limitations contained in this section 31
is one of extinction and not of repose. 32
SB 1385 53
287.480. 1. If an application for review is made to 1
the commission within twenty days from the date of the award 2
by any party, all parties to the case are automatically 3
retained as a party or parties to the appeal; the full 4
commission, if the first hearing was not held before the 5
full commission, shall review the evidence, or, if 6
considered advisable, as soon as practicable hear the 7
parties at issue, their representatives and witnesses and 8
shall make an award and file it in like manner as specified 9
in section 287.470. Any notice of appeal, application or 10
other paper required under this law to be filed with the 11
division or the commission shall, when mailed to or 12
transmitted by electronic facsimile meeting the requirements 13
of the division and received by the division or the 14
commission, be deemed to be filed as of the date endorsed by 15
the United States post office on the envelope or container 16
in which such paper is received, or the date received if 17
filed by facsimile. In instances where the last day for the 18
filing of any such paper falls on a Sunday or legal holiday, 19
the filing shall be deemed timely if accomplished on the 20
next day subsequent which is neither a Sunday or a legal 21
holiday. When filing by electronic facsimile meeting the 22
requirements of the division, the parties shall, on the same 23
date as the facsimile transmission, mail by the United 24
States mail the original and the requisite number of copies 25
to the commission. In addition, the commission may allow 26
filing of applications for review, briefs, motions, and 27
other requests for relief with the commission by electronic 28
means, in such manner as the commission may, by regulation, 29
prescribe. 30
2. An employer who has been determined by the division 31
to be an employer subject to and operating pursuant to this 32
SB 1385 54
chapter and has also been determined to be uninsured may 33
file an application for review but such application for 34
review shall be accompanied with and attached to the 35
application for review a bond which shall be conditioned for 36
the satisfaction of the award in full, and if for any reason 37
the appeal is dismissed or if the award is affirmed or 38
modified, to satisfy in full such modification of the award 39
as the commission may award. The surety on such bond shall 40
be a bank, savings and loan institution or an insurance 41
company licensed to do business in the state of Missouri. 42
No appeal to the commission shall be considered filed unless 43
accompanied by such bond and such bond shall also be a 44
prerequisite for appeal as provided in section 287.495 and 45
such appeal pursuant to section 287.495 shall not be 46
considered filed unless accompanied by such bond. If any 47
other employer pursuant to section 287.040 would be liable, 48
the employee shall be paid benefits from the bond until the 49
bond is exhausted before the section 287.040 employer is 50
required to pay. 51
287.510. In any case a temporary or partial award of 1
compensation may be made, and the same may be modified from 2
time to time to meet the needs of the case, and the same may 3
be kept open until a final award can be made, and if the 4
same be not complied with, the amount equal to the value of 5
compensation ordered and unpaid may be doubled in the final 6
award, if the final award shall be in accordance with the 7
temporary or partial award. The appellate court shall have 8
jurisdiction to review a temporary or partial award of 9
compensation on the issue of the employer's liability where 10
an employer claims it is not liable for paying any 11
compensation and is disputing all liability. 12
SB 1385 55
287.540. [On notice to the other] By agreement of the 1
parties, the commission [or court] may permit the employer 2
to be discharged from further liability under any agreement, 3
award or judgment for compensation by furnishing to the 4
person entitled thereto an annuity or other obligation, 5
approved by the commission [or court], by which payment is 6
assumed by some responsible person[, or by depositing the 7
commutable value thereof with the commission to be disbursed 8
to the persons entitled thereto in such manner as the 9
commission shall determine] or entity. The basis for 10
approval of any such settlement shall be the same as 11
provided for in settlements under section 287.390. 12
287.780. No employer or agent shall discharge or 1
discriminate against any employee for exercising any of his 2
or her rights under this chapter when the exercising of such 3
rights is the motivating factor in the discharge or 4
discrimination. Any employee who has been discharged or 5
discriminated against in such manner shall have a civil 6
action for damages against his or her employer. For 7
purposes of this section, "motivating factor" shall mean 8
that the employee's exercise of his or her rights under this 9
chapter actually played a role in the discharge or 10
discrimination and had a determinative influence on the 11
discharge or discrimination. An offer of settlement of a 12
worker's compensation case made contingent upon a voluntary 13
resignation of employment is not evidence that can be used 14
in any civil action brought under this section. 15
[287.530. 1. The compensation provided in 1
this chapter may be commuted by the division or 2
the commission and redeemed by the payment in 3
whole or in part, by the employer, of a lump sum 4
which shall be fixed by the division or the 5
commission, which sum shall be equal to the 6
SB 1385 56
commutable value of the future installments 7
which may be due under this chapter, taking 8
account of life contingencies, the payment to be 9
commuted at its present value upon application 10
of either party, with due notice to the other, 11
if it appears that the commutation will be for 12
the best interests of the employee or the 13
dependents of the deceased employee, or that it 14
will avoid undue expense or undue hardship to 15
either party, or that the employee or dependent 16
has removed or is about to remove from the 17
United States or that the employer has sold or 18
otherwise disposed of the greater part of his 19
business or assets. 20
2. In determining whether the commutation 21
asked for will be for the best interest of the 22
employee or the dependents of the deceased 23
employee, or so that it will avoid undue expense 24
or undue hardship to either party, the division 25
or the commission will constantly bear in mind 26
that it is the intention of this chapter that 27
the compensation payments are in lieu of wages 28
and are to be received by the injured employee 29
or his dependents in the same manner in which 30
wages are ordinarily paid. Therefore, 31
commutation is a departure from the normal 32
method of payment and is to be allowed only when 33
it clearly appears that some unusual 34
circumstances warrant such a departure.] 35
✓