Modifies the liability of employers

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. 956
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR BECK.
4151S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 287.120, 287.240, and 537.610, RSMo, and to enact in lieu thereof three new
sections relating to liability of employers.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 287.120, 287.240, and 537.610, RSMo, 1
are repealed and three new sections enacted in lieu thereof, to 2
be known as sections 287.120, 287.240, and 537.610, to read as 3
follows:4
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
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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
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 or death is caused by the failure 30
of the employer to comply with any safety standard issued by 31
the employer or the occupational safety and health 32
administration, regulation, or statute in this state or any 33
lawful order of the division or the commission, the 34
compensation and death benefit provided for under this 35
chapter shall be increased [fifteen] at least twenty-five 36
but not more than fifty percent. 37
5. Where the injury is caused by the failure of the 38
employee to use safety devices where provided by the 39
employer, or from the employee's failure to obey any 40
reasonable rule adopted by the employer for the safety of 41
employees, the compensation and death benefit provided for 42
herein shall be reduced at least twenty-five but not more 43
than fifty percent; provided, that it is shown that the 44
employee had actual knowledge of the rule so adopted by the 45
employer; and provided, further, that the employer had, 46
prior to the injury, made a reasonable effort to cause his 47
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or her employees to use the safety device or devices and to 48
obey or follow the rule so adopted for the safety of the 49
employees. 50
6. (1) Where the employee fails to obey any rule or 51
policy adopted by the employer relating to a drug-free 52
workplace or the use of alcohol or nonprescribed controlled 53
drugs in the workplace, the compensation and death benefit 54
provided for herein shall be reduced fifty percent if the 55
injury was sustained in conjunction with the use of alcohol 56
or nonprescribed controlled drugs. 57
(2) If, however, the use of alcohol or nonprescribed 58
controlled drugs in violation of the employer's rule or 59
policy is the proximate cause of the injury, then the 60
benefits or compensation otherwise payable under this 61
chapter for death or disability shall be forfeited. 62
(3) The voluntary use of alcohol to the percentage of 63
blood alcohol sufficient under Missouri law to constitute 64
legal intoxication shall give rise to a rebuttable 65
presumption that the voluntary use of alcohol under such 66
circumstances was the proximate cause of the injury. A 67
preponderance of the evidence standard shall apply to rebut 68
such presumption. An employee's refusal to take a test for 69
alcohol or a nonprescribed controlled substance, as defined 70
by section 195.010, at the request of the employer shall 71
result in the forfeiture of benefits under this chapter if 72
the employer had sufficient cause to suspect use of alcohol 73
or a nonprescribed controlled substance by the claimant or 74
if the employer's policy clearly authorizes post-injury 75
testing. 76
(4) Any positive test result for a nonprescribed 77
controlled drug or the metabolites of such drug from an 78
employee shall give rise to a rebuttable presumption, which 79
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may be rebutted by a preponderance of evidence, that the 80
tested nonprescribed controlled drug was in the employee's 81
system at the time of the accident or injury and that the 82
injury was sustained in conjunction with the use of the 83
tested nonprescribed controlled drug if: 84
(a) The initial testing was administered within twenty- 85
four hours of the accident or injury; 86
(b) Notice was given to the employee of the test 87
results within fourteen calendar days of the insurer or 88
group self-insurer receiving actual notice of the 89
confirmatory test results; 90
(c) The employee was given an opportunity to perform a 91
second test upon the original sample; and 92
(d) The initial or any subsequent testing that forms 93
the basis of the presumption was confirmed by mass 94
spectrometry using generally accepted medical or forensic 95
testing procedures. 96
7. Where the employee's participation in a 97
recreational activity or program is the prevailing cause of 98
the injury, benefits or compensation otherwise payable under 99
this chapter for death or disability shall be forfeited 100
regardless that the employer may have promoted, sponsored or 101
supported the recreational activity or program, expressly or 102
impliedly, in whole or in part. The forfeiture of benefits 103
or compensation shall not apply when: 104
(1) The employee was directly ordered by the employer 105
to participate in such recreational activity or program; 106
(2) The employee was paid wages or travel expenses 107
while participating in such recreational activity or 108
program; or 109
(3) The injury from such recreational activity or 110
program occurs on the employer's premises due to an unsafe 111
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condition and the employer had actual knowledge of the 112
employee's participation in the recreational activity or 113
program and of the unsafe condition of the premises and 114
failed to either curtail the recreational activity or 115
program or cure the unsafe condition. 116
8. Mental injury resulting from work-related stress 117
does not arise out of and in the course of the employment, 118
unless it is demonstrated that the stress is work related 119
and was extraordinary and unusual. The amount of work 120
stress shall be measured by objective standards and actual 121
events. 122
9. A mental injury is not considered to arise out of 123
and in the course of the employment if it resulted from any 124
disciplinary action, work evaluation, job transfer, layoff, 125
demotion, termination or any similar action taken in good 126
faith by the employer. 127
10. The ability of a firefighter to receive benefits 128
for psychological stress under section 287.067 shall not be 129
diminished by the provisions of subsections 8 and 9 of this 130
section. 131
11. The provisions of subsection 2 of this section 132
shall not apply to any cause of action that may be brought 133
on behalf of an unborn child or their representative in the 134
case of an injury or death which caused the death of an 135
unborn child. 136
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] fifteen 6
thousand dollars. But no person shall be entitled to 7
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compensation for the burial expenses of a deceased employee 8
unless he or she has furnished the same by authority of the 9
widow or widower, the nearest relative of the deceased 10
employee in the county of his or her death, his or her 11
personal representative, or the employer, who shall have the 12
right to give the authority in the order named. All fees 13
and charges under this section shall be fair and 14
reasonable[,] and shall be subject to regulation by the 15
division or the commission [and shall be limited to such as 16
are fair and reasonable for similar service to persons of a 17
like standard of living]. The division or the commission 18
shall also have jurisdiction to hear and determine all 19
disputes as to the charges. If the deceased employee leaves 20
no dependents, the death benefit in this subdivision 21
provided shall be the limit of the liability of the employer 22
under this chapter on account of the death, except as herein 23
provided for burial expenses and except as provided in 24
section 287.140; provided that in all cases when the 25
employer admits or does not deny liability for the burial 26
expense, it shall be paid within thirty days after written 27
notice, that the service has been rendered, has been 28
delivered to the employer. The notice may be sent by 29
registered mail, return receipt requested, or may be made by 30
personal delivery; 31
(2) The employer shall also pay to the dependents of 32
the employee a death benefit based on the employee's average 33
weekly earnings during the year immediately preceding the 34
injury that results in the death of the employee, as 35
provided in section 287.250. The amount of compensation for 36
death, which shall be paid in installments in the same 37
manner that compensation is required to be paid under this 38
chapter, shall be computed as follows: 39
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(a) If the injury which caused the death occurred on 40
or after September 28, 1983, but before September 28, 1986, 41
the weekly compensation shall be an amount equal to sixty- 42
six and two-thirds percent of the employee's average weekly 43
earnings during the year immediately preceding the injury; 44
provided that the weekly compensation paid under this 45
paragraph shall not exceed an amount equal to seventy 46
percent of the state average weekly wage, as such wage is 47
determined by the division of employment security, as of the 48
July first immediately preceding the date of injury; 49
(b) If the injury which caused the death occurred on 50
or after September 28, 1986, but before August 28, 1990, the 51
weekly compensation shall be an amount equal to sixty-six 52
and two-thirds percent of the employee's average weekly 53
earnings during the year immediately preceding the injury; 54
provided that the weekly compensation paid under this 55
paragraph shall not exceed an amount equal to seventy-five 56
percent of the state average weekly wage, as such wage is 57
determined by the division of employment security, as of the 58
July first immediately preceding the date of injury; 59
(c) If the injury which caused the death occurred on 60
or after August 28, 1990, but before August 28, 1991, the 61
weekly compensation shall be an amount equal to sixty-six 62
and two-thirds percent of the injured employee's average 63
weekly earnings as of the date of the injury; provided that 64
the weekly compensation paid under this paragraph shall not 65
exceed an amount equal to one hundred percent of the state 66
average weekly wage; 67
(d) If the injury which caused the death occurred on 68
or after August 28, 1991, the weekly compensation shall be 69
an amount equal to sixty-six and two-thirds percent of the 70
injured employee's average weekly earnings as of the date of 71
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the injury; provided that the weekly compensation paid under 72
this paragraph shall not exceed an amount equal to one 73
hundred five percent of the state average weekly wage; 74
(e) If the injury which caused the death occurred on 75
or after September 28, 1981, the weekly compensation shall 76
in no event be less than forty dollars per week; 77
(3) The word "dependent" as used in this chapter shall 78
mean: 79
(a) A wife upon a husband with whom she lives or who 80
is legally liable for her support, and a husband upon a wife 81
with whom he lives or who is legally liable for his support; 82
provided that on the death or remarriage of a widow or 83
widower, the death benefit shall cease unless there be other 84
dependents entitled to any death benefits under this 85
chapter. In the event of remarriage, a lump sum payment 86
equal in amount to the benefits due for a period of two 87
years shall be paid to the widow or widower. Thereupon the 88
periodic death benefits shall cease unless there are other 89
dependents entitled to any death benefit under this chapter, 90
in which event the periodic benefits to which such widow or 91
widower would have been entitled had he or she not died or 92
remarried shall be divided among such other dependents and 93
paid to them during their period of entitlement under this 94
chapter; or 95
(b) A natural, posthumous, or adopted child or 96
children, whether legitimate or illegitimate, including any 97
stepchild claimable by the deceased on his or her federal 98
tax return at the time of injury, under the age of eighteen 99
years, or over that age if physically or mentally 100
incapacitated from wage earning, upon the parent legally 101
liable for the support or with whom he, she, or they are 102
living at the time of the death of the parent. In case 103
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there is a wife or a husband mentally or physically 104
incapacitated from wage earning, dependent upon a wife or 105
husband, and a child or more than one child thus dependent, 106
the death benefit shall be divided among them in such 107
proportion as may be determined by the commission after 108
considering their ages and other facts bearing on the 109
dependency. In all other cases questions of the degree of 110
dependency shall be determined in accordance with the facts 111
at the time of the injury, and in such other cases if there 112
is more than one person wholly dependent the death benefit 113
shall be divided equally among them. The payment of death 114
benefits to a child or other dependent as provided in this 115
paragraph shall cease when the dependent dies, attains the 116
age of eighteen years, or becomes physically and mentally 117
capable of wage earning over that age, or until twenty-two 118
years of age if the child of the deceased is in attendance 119
and remains as a full-time student in any accredited 120
educational institution, or if at eighteen years of age the 121
dependent child is a member of the Armed Forces of the 122
United States on active duty; provided, however, that such 123
dependent child shall be entitled to compensation during 124
four years of full-time attendance at a fully accredited 125
educational institution to commence prior to twenty-three 126
years of age and immediately upon cessation of his or her 127
active duty in the Armed Forces, unless there are other 128
dependents entitled to the death benefit under this chapter; 129
(4) The division or the commission may, in its 130
discretion, order or award the share of compensation of any 131
such child to be paid to the parent, grandparent, or other 132
adult next of kin or conservator of the child for the 133
latter's support, maintenance and education, which order or 134
award upon notice to the parties may be modified from time 135
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to time by the commission in its discretion with respect to 136
the person to whom shall be paid the amount of the order or 137
award remaining unpaid at the time of the modification; 138
(5) The payments of compensation by the employer in 139
accordance with the order or award of the division or the 140
commission shall discharge the employer from all further 141
obligations as to the compensation; 142
(6) All death benefits in this chapter shall be paid 143
in installments in the same manner as provided for 144
disability compensation; 145
(7) Every employer shall keep a record of the correct 146
names and addresses of the dependents of each of his or her 147
employees, and upon the death of an employee by accident 148
arising out of and in the course of his or her employment 149
shall so far as possible immediately furnish the division 150
with such names and addresses; 151
(8) Dependents receiving death benefits under the 152
provisions of this chapter shall annually report to the 153
division as to marital status in the case of a widow or 154
widower or age and physical or mental condition of a 155
dependent child. The division shall provide forms for the 156
making of such reports. 157
537.610. 1. The commissioner of administration, 1
through the purchasing division, and the governing body of 2
each political subdivision of this state, notwithstanding 3
any other provision of law, may purchase liability insurance 4
for tort claims, made against the state or the political 5
subdivision, but the maximum amount of such coverage shall 6
not exceed [two] four million dollars for all claims arising 7
out of a single occurrence and shall not exceed [three] five 8
hundred thousand dollars for any one person in a single 9
accident or occurrence, except for those claims governed by 10
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the provisions of the Missouri workers' compensation law, 11
chapter 287, and no amount in excess of the above limits 12
shall be awarded or settled upon. Sovereign immunity for 13
the state of Missouri and its political subdivisions is 14
waived only to the maximum amount of and only for the 15
purposes covered by such policy of insurance purchased 16
pursuant to the provisions of this section and in such 17
amount and for such purposes provided in any self-insurance 18
plan duly adopted by the governing body of any political 19
subdivision of the state. 20
2. The liability of the state and its public entities 21
on claims within the scope of sections 537.600 to 537.650, 22
shall not exceed [two] four million dollars for all claims 23
arising out of a single accident or occurrence and shall not 24
exceed [three] five hundred thousand dollars for any one 25
person in a single accident or occurrence, except for those 26
claims governed by the provisions of the Missouri workers' 27
compensation law, chapter 287. 28
3. No award for damages on any claim against a public 29
entity within the scope of sections 537.600 to 537.650, 30
shall include punitive or exemplary damages, provided that 31
punitive or exemplary damages may be awarded when the 32
plaintiff shows by clear and convincing evidence that the 33
public entity violated a safety standard issued by the 34
employer or the federal occupational safety and health 35
administration, regulation, or statute in this state, or any 36
lawful order of a court or other judicial body. 37
4. If the amount awarded to or settled upon multiple 38
claimants exceeds [two] four million dollars, any party may 39
apply to any circuit court to apportion to each claimant his 40
proper share of the total amount limited by subsection 1 of 41
this section. The share apportioned each claimant shall be 42
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in the proportion that the ratio of the award or settlement 43
made to him bears to the aggregate awards and settlements 44
for all claims arising out of the accident or occurrence, 45
but the share shall not exceed [three] five hundred thousand 46
dollars. 47
5. The limitation on awards for liability provided for 48
in this section shall be increased or decreased on an annual 49
basis effective January first of each year in accordance 50
with the Implicit Price Deflator for Personal Consumption 51
Expenditures as published by the Bureau of Economic Analysis 52
of the United States Department of Commerce. The current 53
value of the limitation shall be calculated by the director 54
of the department of commerce and insurance, who shall 55
furnish that value to the secretary of state, who shall 56
publish such value in the Missouri Register as soon after 57
each January first as practicable, but it shall otherwise be 58
exempt from the provisions of section 536.021. 59
6. Any claim filed against any public entity under 60
this section shall be subject to the penalties provided by 61
supreme court rule 55.03, or any successor rule. 62
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