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Missouri Revised Statutes

Chapter 287
Workers' Compensation Law

August 28, 2003

http://www.moga.state.mo.us/statutes/

Part 2

Sections: 1 2 3 4 5

Managed care services, department to establish program to certify organizations, procedures--effect on fees and services.

287.135. 1. The department of insurance shall establish a program whereby managed care organizations in this state shall be certified by the department for the provision of managed care services to employers who voluntarily choose to use such organizations. The department shall report to the division of workers' compensation all managed care organizations certified pursuant to the provisions of this section. The division shall maintain a registry of certified managed care organizations that can be readily accessed by employers for the provision of managed care services. For the purposes of this section, the term "managed care organizations" shall mean organizations such as preferred provider organizations, health maintenance organizations and other direct employer/provider arrangements which have been certified by the department designed to provide incentives to medical care providers to manage the cost and use of care associated with claims covered by workers' compensation insurance.

2. The director of the department of insurance shall promulgate rules which set out the approval criteria for certification of a managed care organization. Approval criteria shall take into consideration the adequacy of services that the organization will be able to offer the employer, the geographic area to be served, staff size and makeup of the organization in relation to both services offered and geographic location, access to health care providers, the adequacy of internal management and oversight, the adequacy of procedures for peer review, utilization review, and internal dispute resolution, including a method to resolve complaints by injured employees, medical providers, and insurers over the cost, necessity and appropriateness of medical services, the availability of case management services, and any other criteria as determined by the director. Thirty days prior to the annual anniversary of any current certification granted by the director, any managed care organization seeking continued certification shall file an application for recertification with the director, on a form approved by the director, accompanied by a filing fee established by the director by rule and any other materials specified by the director.

3. The director of the department of insurance shall promulgate rules which set out the criteria under which the fees charged by a managed care organization shall be reimbursed by an employer's workers' compensation insurer and which establish criteria providing for the coordination and integration between the managed care organization and the insurer of their respective internal operational systems relating to such matters as claim reporting and handling, medical case management procedures and billing. Such criteria shall require any such reimbursable fees to be reasonable in relation both to the managed care services provided and to the savings which result from those services. Such criteria shall discourage the use of fee arrangements which result in unjustified costs being billed for either medical services or managed care services. Insurers and managed care organizations shall be permitted to voluntarily negotiate and utilize alternative fee arrangements. Notwithstanding any provision of this subsection to the contrary, if an insurer and a managed care organization enter into a voluntary agreement that accomplishes the same purposes as this subsection, that insurer and that managed care organization with respect to that agreement shall not be required to meet the requirements of this subsection or regulations promulgated by the department pursuant to this subsection.

4. Any managed care organization, including any managed care organization that has been established or selected by or has contracted with a workers' compensation insurance carrier to provide managed care services to insured employers, that has previously been certified prior to August 28, 1993, by the director of the department of insurance shall be deemed to have met the criteria set forth in this section.

5. The necessity and appropriateness of medical care services recommended or provided by providers shall be subject to review by the division of workers' compensation, upon application, following a decision by the managed care organization's utilization review and dispute resolution review and appeal procedure. The decision of the managed care organization relating to payment for such medical care services shall be subject to modification by the division of workers' compensation, after mediation conference or hearing, only upon showing that it was unreasonable, arbitrary or capricious.

(L. 1993 S.B. 251)

Employer to provide medical and other services, transportation, artificial devices, reactivation of claim--duties of health care providers--refusal of treatment, effect--medical evidence --division, commission responsibilities--notice to health care provider of workers' compensation claim, contents, effect.

287.140. 1. In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. Where the requirements are furnished by a public hospital or other institution, payment therefor shall be made to the proper authorities. Regardless of whether the health care provider is selected by the employer or is selected by the employee at the employee's expense, the health care provider shall have the affirmative duty to communicate fully with the employee regarding the nature of the employee's injury and recommended treatment exclusive of any evaluation for a permanent disability rating. Failure to perform such duty to communicate shall constitute a disciplinary violation by the provider subject to the provisions of chapter 620, RSMo. When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the place of injury or the place of his residence, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; except that an injured employee who resides outside the state of Missouri and who is employed by an employer located in Missouri shall have the option of selecting the location of services provided in this section either at a location within one hundred miles of the injured employee's residence, place of injury or place of hire by the employer. The choice of provider within the location selected shall continue to be made by the employer. In case of a medical examination if a dispute arises as to what expenses shall be paid by the employer, the matter shall be presented to the legal advisor, the administrative law judge or the commission, who shall set the sum to be paid and same shall be paid by the employer prior to the medical examination. In no event, however, shall the employer or its insurer be required to pay transportation costs for a greater distance than two hundred fifty miles each way from place of treatment. In addition to all other payments authorized or mandated under this subsection, when an employee who has returned to full-time employment is required to submit to a medical examination for the purpose of evaluating permanent disability, or to undergo physical rehabilitation, the employer or its insurer shall pay a proportionate weekly compensation benefit based on the provisions of section 287.180 for such wages that are lost due to time spent undergoing such medical examinations or physical rehabilitation, except that where the employee is undergoing physical rehabilitation, such proportionate weekly compensation benefit payment shall be limited to a time period of no more than twenty weeks. For purposes of this subsection only, "physical rehabilitation" shall mean the restoration of the seriously injured person as soon as possible and as nearly as possible to a condition of self-support and maintenance as an able-bodied worker. Determination as to what care and restoration constitutes physical rehabilitation shall be the sole province of the treating physician. Should the employer or its insurer contest the determination of the treating physician, then the director shall review the case at question and issue his determination. Such determination by the director shall be appealable like any other finding of the director or the division. Serious injury includes, but is not limited to, quadriplegia, paraplegia, amputations of hand, arm, foot or leg, atrophy due to nerve injury or nonuse, and back injuries not amenable alone to recognized medical and surgical procedures.

2. If it be shown to the division or the commission that the requirements are being furnished in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, the division or the commission may order a change in the physician, surgeon, hospital or other requirement.

3. All fees and charges under this chapter shall be fair and reasonable, shall be subject to regulation by the division or the commission, or the board of rehabilitation in rehabilitation cases. A health care provider shall not charge a fee for treatment and care which is governed by the provisions of this chapter greater than the usual and customary fee the provider receives for the same treatment or service when the payor for such treatment or service is a private individual or a private health insurance carrier. The division or the commission, or the board of rehabilitation in rehabilitation cases, shall also have jurisdiction to hear and determine all disputes as to such charges. A health care provider is bound by the determination upon the reasonableness of health care bills.

4. The division shall, by regulation, establish methods to resolve disputes concerning the reasonableness of medical charges, services, or aids. This regulation shall govern resolution of disputes between employers and medical providers over fees charged, whether or not paid, and shall be in lieu of any other administrative procedure under this chapter. The employee shall not be a party to a dispute over medical charges, nor shall the employee's recovery in any way be jeopardized because of such dispute.

5. No compensation shall be payable for the death or disability of an employee, if and insofar as the death or disability may be caused, continued or aggravated by any unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the division or the commission, inconsiderable in view of the seriousness of the injury. If the employee dies as a result of an operation made necessary by the injury, the death shall be deemed to be caused by the injury.

6. The testimony of any physician or chiropractic physician who treated the employee shall be admissible in evidence in any proceedings for compensation under this chapter, subject to all of the provisions of section 287.210.

7. Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings.

8. The employer may be required by the division or the commission to furnish an injured employee with artificial legs, arms, hands, surgical orthopedic joints, or eyes, or braces, as needed, for life whenever the division or the commission shall find that the injured employee may be partially or wholly relieved of the effects of a permanent injury by the use thereof. The director of the division shall establish a procedure whereby a claim for compensation may be reactivated after settlement of such claim is completed. The claim shall be reactivated only after the claimant can show good cause for the reactivation of this claim and the claim shall be made only for the payment of medical procedures involving life-threatening surgical procedures or if the claimant requires the use of a new, or the modification, alteration or exchange of an existing, prosthetic device. For the purpose of this subsection, "life threatening" shall mean a situation or condition which, if not treated immediately, will likely result in the death of the injured worker.

9. Nothing in this chapter shall prevent an employee being provided treatment for his injuries by prayer or spiritual means if the employer does not object to the treatment.

10. The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses. For the purpose of this subsection, subsection 2 of section 287.030 shall not apply.

11. Any physician or other health care provider who orders, directs or refers a patient for treatment, testing, therapy or rehabilitation at any institution or facility shall, at or prior to the time of the referral, disclose in writing if such health care provider, any of his partners or his employer has a financial interest in the institution or facility to which the patient is being referred, to the following:

(1) The patient;

(2) The employer of the patient with workers' compensation liability for the injury or disease being treated;

(3) The workers' compensation insurer of such employer; and

(4) The workers' compensation adjusting company for such insurer.

12. Violation of subsection 11 of this section is a class A misdemeanor.

13. (1) No hospital, physician or other health care provider, other than a hospital, physician or health care provider selected by the employee at his own expense pursuant to subsection 1 of this section, shall bill or attempt to collect any fee or any portion of a fee for services rendered to an employee due to a work-related injury or report to any credit reporting agency any failure of the employee to make such payment, when an injury covered by this chapter has occurred and such hospital, physician or health care provider has received actual notice given in writing by the employee, the employer or the employer's insurer. Actual notice shall be deemed received by the hospital, physician or health care provider five days after mailing by certified mail by the employer or insurer to the hospital, physician or health care provider.

(2) The notice shall include:

(a) The name of the employer;

(b) The name of the insurer, if known;

(d) The general nature of the injury, if known; and

(e) Where a claim has been filed, the claim number, if known.

(3) When an injury is found to be noncompensable under this chapter, the hospital, physician or other health care provider shall be entitled to pursue the employee for any unpaid portion of the fee or other charges for authorized services provided to the employee. Any applicable statute of limitations for an action for such fees or other charges shall be tolled from the time notice is given to the division by a hospital, physician or other health care provider pursuant to subdivision (6) of this subsection, until a determination of noncompensability in regard to the injury which is the basis of such services is made, or in the event there is an appeal to the labor and industrial relations commission, until a decision is rendered by that commission.

(4) If a hospital, physician or other health care provider or a debt collector on behalf of such hospital, physician or other health care provider pursues any action to collect from an employee after such notice is properly given, the employee shall have a cause of action against the hospital, physician or other health care provider for actual damages sustained plus up to one thousand dollars in additional damages, costs and reasonable attorney's fees.

(5) If an employer or insurer fails to make payment for authorized services provided to the employee by a hospital, physician or other health care provider pursuant to this chapter, the hospital, physician or other health care provider may proceed pursuant to subsection 4 of this section with a dispute against the employer or insurer for any fees or other charges for services provided.

(6) A hospital, physician or other health care provider whose services have been authorized in advance by the employer or insurer may give notice to the division of any claim for fees or other charges for services provided for a work-related injury that is covered by this chapter, with copies of the notice to the employee, employer and the employer's insurer. Where such notice has been filed, the administrative law judge may order direct payment from the proceeds of any settlement or award to the hospital, physician or other health care provider for such fees as are determined by the division. The notice shall be on a form prescribed by the division.

(RSMo 1939 § 3701, A.L. 1951 p. 613, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1965 pp. 397, 413, A.L. 1977 S.B. 49, S.B. 399, A.L. 1980 H.B. 1396, A.L. 1983 H.B. 243 & 260, A.L. 1988 H.B. 1277, A.L. 1990 S.B. 751, A.L. 1992 H.B. 975, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3311

(1987) Employer is liable for medical expenses incurred by claimant even though claimant selected her own medical providers and employer was not notified of need for medical treatment until expenses had been incurred where claimant did not know she had suffered a compensable injury until after physician advised by letter that employment was suspected of causing medical condition. Sheehan v. Springfield Seed and Floral, 733 S.W.2d 795 (Mo. App.).

Physical rehabilitation, defined, division of workers' compensation to administer--procedure.

287.141. 1. The purpose of this section is to restore the injured person as soon as possible and as nearly as possible to a condition of self-support and maintenance as an able-bodied worker by physical rehabilitation. The provisions of this chapter relating to physical rehabilitation shall be under the control of and administered by the director of the division of workers' compensation. The division of workers' compensation shall make such rules and regulations as may be necessary to carry out the purposes of this section, subject to the approval of the labor and industrial relations commission of Missouri.

2. The division of workers' compensation shall continuously study the problems of physical rehabilitation and shall investigate all rehabilitation facilities, both private and public, and upon such investigation shall approve as qualified all such facilities, institutions and physicians as are capable of rendering competent physical rehabilitation service for seriously injured industrial workers. Rehabilitation facilities shall include medical, surgical, hospital and physical restoration services. No facility or institution shall be considered as qualified unless it is equipped to provide physical rehabilitation services for persons suffering either from some specialized type of disability or general type of disability within the field of industrial injury, and unless such facility or institution is operated under the supervision of a physician qualified to render physical rehabilitation service and is staffed with trained and qualified personnel and has received a certificate of qualification from the division of workers' compensation. No physician shall be considered as qualified unless he has had the experience prescribed by the division.

3. In any case of serious injury involving disability following the period of rendition of medical aid as provided by subsection 1 of section 287.140, where physical rehabilitation is necessary if the employer or insurer shall offer such physical rehabilitation to the injured employee and such physical rehabilitation is accepted by the employee, then in such case the director of the division of workers' compensation shall be immediately notified thereof and thereupon enter his approval to such effect, and the director of the division of workers' compensation shall requisition the payment of forty dollars per week benefit from the second injury fund in the state treasury to be paid to the employee while he is actually being rehabilitated, and shall immediately notify the state treasurer thereof by furnishing him with a copy of his order. But in no case shall the period of physical rehabilitation extend beyond twenty weeks except in unusual cases and then only by a special order of the division of workers' compensation for such additional period as the division may authorize.

4. In all cases where physical rehabilitation is offered and accepted or ordered by the division, the employer or insurer shall have the right to select any physician, facility, or institution that has been found qualified by the division of workers' compensation as above set forth.

5. If the parties disagree as to such physical rehabilitation treatment, where such treatment appears necessary, then either the employee, the employer, or insurer may file a request with the division of workers' compensation for an order for physical rehabilitation and the director of the division shall hear the parties within ten days after the filing of the request. The director of the division shall forthwith notify the parties of the time and place of the hearing, and the hearing shall be held at a place to be designated at the discretion of the division. The director of the division may conduct such hearing or he may direct one of the administrative law judges to conduct same. Such hearing shall be informal in all respects. The director of the division shall, after considering all evidence at such hearing, within ten days make his order in the matter, either denying such request or ordering the employer or insurer within a reasonable time, to furnish physical rehabilitation, and ordering the employee to accept the same, at the expense of the employer or insurer. When the order requires physical rehabilitation, it shall also include an order to requisition the payment of forty dollars per week out of the second injury fund in the state treasury to the injured employee during such time as such employee is actually receiving physical rehabilitation.

6. In every case where physical rehabilitation shall be ordered, the director of the division may, in his discretion, order the employer or insurer to furnish transportation to the injured employee to such rehabilitation facility or institution.

7. As used in this section, the term "physical rehabilitation" shall be deemed to include medical, surgical and hospital treatment in the same respect as required to be furnished under subsection 1 of section 287.140.

8. An appeal from any order of the division of workers' compensation hereby created to the appellate court may be taken and governed in all respects in the same manner as appeals in workers' compensation cases generally under section 287.495.

(L. 1951 p. 613, A.L. 1969 p. 391, A.L. 1971 H.B. 59, A.L. 1974 S.B. 417, A.L. 1975 H.B. 941, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1983 H.B. 243 & 260)

Vocational rehabilitation services, not mandatory.

287.143. As a guide to the interpretation and application of sections 287.144 to 287.149, sections 287.144 to 287.149 shall not be construed to require the employer to provide vocational rehabilitation to a severely injured employee.

(L. 1990 S.B. 751)

Effective 7-1-91

Definitions.

287.144. As used in sections 287.144 to 287.149, the following words mean:

(1) "Appropriate vocational testing", appropriate vocational testing may be included when a new job is necessary for consideration for an injured worker. Appropriate vocational testing may include intelligence, aptitude, achievement and interests tests, physical capacity assessment, musculoskeletal evaluation, audiometric evaluation, receptive and expressive components of language and work sample tests;

(2) "Director", the director of the division of workers' compensation;

(3) "Plan", a written proposal of services to be performed by a rehabilitation provider or practitioner which shall be based on the following objectives:

(a) Same job, same employer;

(b) Modified job, same employer;

(d) Same job, new employer;

(e) Modified job, new employer;

(f) New job, new employer;

(g) Reeducation and retraining.

The plan shall include recommendations on the coordination of physical rehabilitation services, work hardening, vocational assessment, vocational counseling, job placement and occupational skill training, and independent living, if appropriate. Every plan shall consider appropriate vocational testing;

(4) "Qualification of medical or physical rehabilitation services", each facility, institution or agency program seeking to qualify to provide medical or physical rehabilitation to employees under this chapter shall be supervised by a physician with a speciality or subspeciality in the area of medicine which deals with the type of injury or disability it intends to treat;

(5) "Rehabilitation practitioner", an individual who has provided the director with the necessary proof of eligibility for qualification to render the services outlined in sections 287.144 to 287.149, and who has received a certification of qualification from the director. Practitioners shall be qualified in current vocational rehabilitation techniques and processes and familiar with current and appropriate medical interventions as evidenced by:

(a) A masters or doctorate degree in health-support services from an accredited institution, or a masters degree based on a curriculum and coursework designed to prepare a person to practice as a vocational rehabilitation counselor or completion of a nationally accredited rehabilitation counselor internship program from a college or university, plus one year experience in vocational or physical rehabilitation;

(b) A baccalaureate degree in health-support services from an accredited institution, plus two years of experience in vocational or physical rehabilitation;

(c) Certification by the commission of rehabilitation counselor certification as a certified rehabilitation counselor. Practitioners having received their certified rehabilitation counselor certification prior to July 1, 1991, are eligible for licensure under chapter 337, RSMo; or

(d) Internship for those with the education described in paragraphs (a) to (c) of this subdivision, but not experience, who are under the supervision of a qualified rehabilitation practitioner as defined in paragraphs (a) to (c) of this subdivision;

(6) "Rehabilitation provider", a vocational rehabilitation facility, institution or agency who offers to render services outlined in sections 287.144 to 287.149, and who shall be qualified in current vocational rehabilitation techniques and current and appropriate medical intervention techniques and certified by the director. Facilities and hospitals shall be accredited by the joint commission on accreditation of hospitals or the joint commission on accreditation of rehabilitation facilities or the American Osteopathic Association or the division of workers' compensation;

(7) "Suitable, gainful employment", employment or self-employment which, in the exercise of reasonable diligence, the employee will be able to obtain, to be determined in view of the nature and extent of the injury, the ability of the employee to compete in an open labor market;

(8) "Vocational rehabilitation assessments", a written statement of an employee's condition containing relevant documentation by the treating physician and information as indicated by a rehabilitation provider or practitioner of the employee's current and projected functional capacities and limitations, a job description provided by the employer of the position held at the time of injury, and background information including education, work history, career goals and any other relevant information.

(L. 1990 S.B. 751)

Effective 7-1-91

*No continuity with § 287.144 as repealed by L. 1990 S.B. 751 § B.

Rehabilitation practitioners, providers, certification of, how.

287.145. 1. Any person who has met the requirements in section 287.144 for a rehabilitation practitioner shall request in written form certification from the division. The division shall, after confirming that such person meets the qualifications of a rehabilitation practitioner, register and certify that the person is a certified rehabilitation practitioner.

2. Rehabilitation practitioners who do not work for an approved rehabilitation provider and who enter the vocational rehabilitation workers' compensation field after January 1, 1990, must obtain certification by the national board for certified counselor certification, or such person must meet the qualifications set forth by the Missouri division of workers' compensation.

3. Rehabilitation providers, as defined in section 287.144, must request in written form certification from the division. The division shall, upon confirming that the rehabilitation provider meets the requirements set forth in section 287.144, register and certify such provider.

(L. 1990 S.B. 751)

Effective 7-1-91

Employee authorized to receive vocational rehabilitation, when --duties of director.

287.146. 1. When an employee has sustained injury of sufficient severity, as provided in section 287.148, as the result of an injury arising out of and in the course of employment, the employee may, if authorized by the employer and the insurer, receive vocational rehabilitation services that are reasonably necessary to restore him to suitable, gainful employment.

2. The director shall administer sections 287.144 to 287.149, and shall:

(1) Maintain a registry of all qualified rehabilitation providers and rehabilitation practitioners whether public or private, including practitioners directly employed by an insurer, employer or self-insurer that render rehabilitation services to injured workers in this state;

(2) Analyze and report annually the results and cost of rehabilitation assignments;

(3) Review vocational rehabilitation plans and disapprove within fourteen days of receipt, if such plans do not meet criteria set forth in subsections 1 to 5* of section 287.148. The director may review plans and supervise the completion of approved plans;

(4) Review the progress of rehabilitation under the applicable plan filed by the rehabilitation practitioner or provider to determine if such plan meets the criteria set forth in subsections 1 to 5 of section 287.148 throughout the period the plan is in force;

(5) Appoint vocational rehabilitation monitors to assist in the implementation of subdivisions (3) to (5) of this subsection. A monitor shall have the qualifications as set forth for vocational rehabilitation practitioners and at least two years of experience in the field of workers' compensation disabilities.

(L. 1990 S.B. 751)

Effective 7-1-91

*Original rolls show "7" here, but § 287.148 contains only subsections 1 to 5.

Loss of suitable, gainful employment, how determined--severe injury, defined--plan, duration, costs allowed.

287.148. 1. Within one hundred and twenty days of the date of the injury, the employer shall determine whether the injured worker has sustained an injury that results in a loss of suitable, gainful employment. If the employer can determine that a loss of suitable, gainful employment has occurred, the employer may retain the services of a rehabilitation practitioner or a rehabilitation provider. A written determination of this finding shall be sent to the division of workers' compensation with copies to the employer, insurer, employee and their representatives on forms approved by the division. In the event that a determination cannot be established, within the one hundred and twenty days of the date of injury, due to the extent of the injury, the employer shall, as regulated by the division of workers' compensation, continue to review the status of the injured employee at appropriate intervals to determine his loss of suitable, gainful employment. If a rehabilitation practitioner or provider is retained by the employer, the rehabilitation practitioner or provider shall, within ninety days:

(1) Conduct an initial consultation with the injured employee, the employer and all treating physicians; and

(2) Perform a vocational rehabilitation assessment which shall include a plan if rehabilitation services are deemed to be required. A copy of the vocational rehabilitation plan shall be sent to the employer, insurer, employee, their representatives, the treating physicians and to the division.

2. The employer may retain a rehabilitation practitioner or provider who shall perform the services stated in subdivisions (1) and (2) of subsection 1 of this section, in the event of an injury of sufficient severity as determined by the treating physician, which interferes with occupational functioning that involves:

(1) The severe mangling, crushing, amputation or nerve impairment of a major extremity;

(2) A traumatic injury to the spinal cord that has caused or may cause paralysis or severe restriction of movement;

(3) Severe burns;

(4) A serious head injury with neurological or neuropsychological involvement; or

(5) Loss of sight in one or both eyes or loss of communication skills to include loss of hearing in both ears or loss of speech, or both.

3. The director shall immediately notify the employer that an injured employee may require the services of a rehabilitation practitioner or rehabilitation provider if he receives a surgeon's report and other medical reports supplied by the employer or employer's insurer that details an injury of sufficient severity as described in this section.

4. The initial period of a plan may not exceed a period of twenty-six weeks, but only the employer may extend the period of the plan for an additional twenty-six-week period. Any extension shall be consistent with the initial plan and limited to no greater goal than restoration of the employee to suitable, gainful employment. The maximum costs for implementing the vocational testing, vocational rehabilitation plan, or subsequent tuition or retraining shall not exceed five thousand dollars, exclusive of the costs of medical treatment, medical evaluation and fees paid to the vocational rehabilitation provider or practitioner, without the approval of the division.

5. If rehabilitation services require residence at or near the facility, institution or practitioner's office and away from the employee's customary residence, reasonable and necessary costs of board, lodging and travel shall be borne by the employer or insurer. Rehabilitation services shall be performed by practitioners and providers approved by the director within this state when such facilities or practitioners are reasonably available, or elsewhere when approved by the director.

(L. 1990 S.B. 751)

Effective 7-1-91

Benefits to be paid, when--reduction of benefits, when.

287.149. 1. Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process.

2. The permanency of the employee's disability under sections 287.170 to 287.200 shall not be established, determined or adjudicated while the employee is participating in rehabilitation services.

3. Refusal of the employee to accept rehabilitation services or submit to a vocational rehabilitation assessment as deemed necessary by the employer shall result in a fifty percent reduction in all disability payments to an employee, including temporary partial disability benefits paid pursuant to section 287.180, for each week of the period of refusal.

(L. 1990 S.B. 751)

Effective 7-1-91

Subrogation to rights of employee or dependents against third person, effect of recovery--construction design professional, immunity from liability, when, exception--waiver of subrogation rights on certain contracts void.

287.150. 1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents 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. Any recovery by the employer against such third person shall be apportioned between the employer and employee or his dependents using the provisions of subsections 2 and 3 of this section.

2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a dependent under this chapter either by judgment or settlement for the wrongful death of the employee, the employer shall receive or have credit for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future installments shall be computed using the provisions of subsection 3 of this section relating to comparative fault of the employee.

3. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provision, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:

(1) The total amount paid to the employee or his dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or

(2) A percentage of the amount paid to the employee or his dependents equal to the percentage of fault assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.

4. In any case in which an injured employee has been paid benefits from the second injury fund as provided in subsection 3 of section 287.141, and recovery is had against the third party liable to the employee for the injury, the second injury fund shall be subrogated to the rights of the employee against said third party to the extent of the payments made to him from such fund, subject to provisions of subsections 2 and 3 of this section.

5. No construction design professional who is retained to perform professional services on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project shall be liable for any injury resulting from the employer's failure to comply with safety standards on a construction project for which compensation is recoverable under the workers' compensation law, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications.

6. Any provision in any contract or subcontract, where one party is an employer in the construction group of code classifications, which purports to waive subrogation rights provided under this section in anticipation of a future injury or death is hereby declared against public policy and void. Each contract of insurance for workers' compensation shall require the insurer to diligently pursue all subrogation rights of the employer and shall require the employer to fully cooperate with the insurer in pursuing such recoveries, except that the employer may enter into compromise agreements with an insurer in lieu of the insurer pursuing subrogation against another party. The amount of any subrogation recovery by an insurer shall be credited against the amount of the actual paid losses in the determination of such employer's experience modification factor within forty-five days of the collection of such amount.

(RSMo 1939 § 3699, A.L. 1955 p. 597, A.L. 1957 p. 560, A.L. 1990 S.B. 751, A.L. 1993 S.B. 251)

Prior revision: 1929 § 3309

(1962) Employers and their workmen's compensation insurer could not recover, on theory of subrogation, amount of compensation paid injured employee from third party tort-feasor and his liability insurer who had settled with employee for amount in excess of compensation paid. O'Hanlon Reports, Inc. v. Needles (A.), 360 S.W.2d 382.

(1965) In an action to compel workmen's compensation carrier for plaintiff's employer to pay to plaintiff one-half of the trial expenses incurred by plaintiff in the trial of plaintiff's action instituted against a third party, held this section does not provide for the sharing of expenses in the event the third party action is unsuccessful and there is no basis in workmen's compensation act for plaintiff's action. Veninga v. Liberty Mutual Insurance Co. (A.), 388 S.W.2d 535.

(1965) Employer and workmen's compensation insurer had right to intervene under this section in employee's action for injuries suffered while acting within scope of employment, notwithstanding possible prejudice of injection of insurance into trial. State v. Luten (A.), 390 S.W.2d 931.

(1967) The second injury fund is subrogated to the rights of the employee and entitled to credit on the awards of a portion of the recovery by the employee from the third party. Cole v. Morris (Mo.), 409 S.W.2d 668.

(1967) The employer's right against the third party tortfeasor is wholly derivative, is conditional upon the existence of a cause of action in the injured employee against the tort-feasor, and as the employer has no separate cause of action for the subrogation claim, a judgment against the employee would defeat any claimed right of subrogation. State v. Holt (A.), 411 S.W.2d 249.

(1967) Where widow cooperated and testified in action brought by compensation carrier against third party, widow had not "effected" recovery within statutory provision. Maryland Casualty Co. v. General Electric Co. (Mo.), 418 S.W.2d 115.

(1968) The workmen's compensation law is not supplemental of the common law, but is wholly substitutional, and if the accident is not covered by the compensation law, the common law action remains unaffected. Wilson v. Hungate (Mo.), 434 S.W.2d 580.

(1973) Formula for division of proceeds of suit against third party instituted by workmen's compensation claimant established by court. Ruediger v. Kollmeyer Brothers Service (Mo.), 501 S.W.2d 56.

(1995) When calculating the amount of recovery under subsection 3 of this section, medical expenses are included. McCormack v. Stewart Enterprises, Inc., 916 S.W.2d 219 (Mo.App.W.D.).

(1998) Case management group retained by employer for the purpose of directing and monitoring treatment of employer's injured employees was not a third person against whom separate tort claims may be brought because group's alleged acts were performed for the purpose of discharging employer's duty to provide treatment to employer's injured employees. Burns v. Employer Health Services, Inc., 976 S.W.2d 639 (W.D.Mo.).

(2000) Employer has a subrogation interest in employee's spouse's recovery from third-party for loss of consortium claim, unless sufficient evidence shows that part of overall settlement is allocated for that claim. Ryder Integrated Logistics, Inc. v. Royse, 125 F.Supp.2d 375 (E.D. Mo.).

Waiting period--compensation, how paid--interest, how computed--not credit to employer for wages or benefits paid, exception.

287.160. 1. Except as provided in section 287.140, no compensation shall be payable for the first three days or less of disability during which the employer is open for the purpose of operating its business or enterprise unless the disability shall last longer than fourteen days. If the disability lasts longer than fourteen days, payment for the first three days shall be made retroactively to the claimant.

2. Compensation shall be payable as the wages were paid prior to the injury, but in any event at least once every two weeks. If an injured employee claims benefits pursuant to this section, an employer may, if the employee agrees in writing, pay directly to the employee any benefits due pursuant to section 287.170. The employer shall continue such payments until the insurer starts making the payments or the claim is contested by any party. Where the claim is found to be compensable the employer's workers' compensation insurer shall indemnify the employer for any payments made pursuant to this subsection. If the employee's claim is found to be fraudulent or noncompensable, after a hearing, the employee shall reimburse the employer, or the insurer if the insurer has indemnified the employer, for any benefits received either by a:

(1) Lump sum payment;

(2) Refund of the compensation equivalent of any accumulated sick or disability leave;

(3) Payroll deduction; or

(4) Secured installment plan.

If the employee is no longer employed by such employer, the employer may garnish the employee's wages or execute upon any property, except real estate, of the employee. Nothing in this subsection shall be construed to require any employer to make payments directly to the employee.

3. Where weekly benefit payments that are not being contested by the employer or his insurer are due, and if such weekly benefit payments are made more than thirty days after becoming due, the weekly benefit payments that are late shall be increased by ten percent simple interest per annum. Provided, however, that if such claim for weekly compensation is contested by the employee, and the employer or his insurer have not paid the disputed weekly benefit payments or lump sum within thirty days of when the administrative law judge's order becomes final, or from the date of a decision by the labor and industrial relations commission, or from the date of the last judicial review, whichever is later, interest on such disputed weekly benefit payments or lump sum so ordered, shall be increased by ten percent simple interest per annum beginning thirty days from the date of such order. Provided, however, that if such claims for weekly compensation are contested solely by the employer or insurer, no interest shall be payable until after thirty days after the award of the administrative law judge. The state of Missouri or any of its political subdivisions, as an employer, is liable for any such interest assessed against it for failure to promptly pay on any award issued against it under this chapter.

4. Compensation shall be payable in accordance with the rules given in sections 287.170, 287.180, 287.190, 287.200, 287.240, and 287.250.

5. The employer shall not be entitled to credit for wages or such pay benefits paid to the employee or his dependents on account of the injury or death except as provided in section 287.270.

(RSMo 1939 § 3702, A.L. 1947 V. II p. 446, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1961 p. 423, A.L. 1965 p. 414, A.L. 1967 p. 384, A.L. 1969 p. 393, A.L. 1971 H.B. 25 & 364, A.L. 1974 S.B. 417, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1983 H.B. 243 & 260, A.L. 1984 H.B. 1106, A.L. 1990 S.B. 751, A.L. 1992 H.B. 975, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3312

(1975) Held, sums paid by self-insured employer to employee following injury where sums paid "on account of the injury" disability benefits paid employee were no "insurance of the injured employee" and employer is entitled to full amount paid to employee even if it exceeds amount which could have been allowed for total temporary disability. Cowan v. Southwestern Bell Telephone Co. (A.), 529 S.W.2d 485.

Temporary total disability, amount to be paid--method of payment --credit.

287.170. 1. For temporary total disability the employer shall pay compensation for not more than four hundred weeks during the continuance of such disability at the weekly rate of compensation in effect under this section on the date of the injury for which compensation is being made. The amount of such compensation shall be computed as follows:

(1) For all injuries occurring on or after September 28, 1983, but before September 28, 1986, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to seventy percent of the state average weekly wage, as such wage is determined by the division of employment security, as of the July first immediately preceding the date of injury;

(2) For all injuries occurring on or after September 28, 1986, but before August 28, 1990, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to seventy-five percent of the state average weekly wage, as such wage is determined by the division of employment security, as of the July first immediately preceding the date of injury;

(3) For all injuries occurring on or after August 28, 1990, but before August 28, 1991, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to one hundred percent of the state average weekly wage;

(4) For all injuries occurring on or after August 28, 1991, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to one hundred five percent of the state average weekly wage;

(5) For all injuries occurring on or after September 28, 1981, the weekly compensation shall in no event be less than forty dollars per week.

2. Temporary total disability payments shall be made to the claimant by check or other negotiable instruments approved by the director which will not result in delay in payment and shall be forwarded directly to the claimant without intervention, or, when requested, to claimant's attorney if represented, except as provided in section 454.517, RSMo, by any other party except by order of the division of workers' compensation.

3. The employer shall be entitled to a dollar-for-dollar credit against any benefits owed pursuant to this section in an amount equal to the amount of unemployment compensation paid to the employee and charged to the employer during the same adjudicated or agreed-upon period of temporary total disability.

(RSMo 1939 § 3704, A.L. 1947 V. II p. 438, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1961 p. 423, A.L. 1965 p. 414, A.L. 1967 p. 384, A.L. 1969 p. 393, A.L. 1971 H.B. 25 & 364, A.L. 1974 S.B. 417, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1983 H.B. 243 & 260, A.L. 1987 H.B. 564, A.L. 1990 S.B. 751, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3313

Temporary partial disability, amount to be paid--method of payment.

287.180. 1. For temporary partial disability, compensation shall be paid during such disability but not for more than one hundred weeks, and shall be sixty-six and two-thirds percent of the difference between the average earnings prior to the accident and the amount which the employee, in the exercise of reasonable diligence, will be able to earn during the disability, to be determined in view of the nature and extent of the injury and the ability of the employee to compete in an open labor market. The amount of such compensation shall be computed as follows:

(1) For all injuries occurring on or after September 28, 1983, but before September 28, 1986, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings as of the date of injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to seventy percent of the state average weekly wage, as such wages are* determined by the division of employment security, as of the July first immediately preceding the date of injury;

2. Temporary partial disability payments shall be made to the claimant by check, or other negotiable instrument approved by the director which will not result in delay in payment.

Prior revision: 1929 § 3314

*Word "are" does not appear in original rolls.

Permanent partial disability, amount to be paid--permanent partial disability defined.

287.190. 1. For permanent partial disability, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with sections 287.170 and 287.180, respectively, the employer shall pay to the employee compensation computed at the weekly rate of compensation in effect under subsection 5 of this section on the date of the injury for which compensation is being made, which compensation shall be allowed for loss by severance, total loss of use, or proportionate loss of use of one or more of the members mentioned in the schedule of losses.

SCHEDULE OF LOSSES

Weeks

(1) Loss of arm at shoulder ........................... 232

(2) Loss of arm between shoulder and elbow ............ 222

(3) Loss of arm at elbow joint ........................ 210

(4) Loss of arm between elbow and wrist ............... 200

(5) Loss of hand at the wrist joint ................... 175

(6) Loss of thumb at proximal joint ................... 60

(7) Loss of thumb at distal joint ..................... 45

(8) Loss of index finger at proximal joint ............ 45

(9) Loss of index finger at second joint ............. 35

(10) Loss of index finger at distal joint ............ 30

(11) Loss of either the middle or ring finger at the proximal joint 35

(12) Loss of either the middle or ring finger at second joint 30

(13) Loss of either the middle or ring finger at the distal joint 26

(14) Loss of little finger at proximal joint ......... 22

(15) Loss of little finger at second joint ........... 20

(16) Loss of little finger at distal joint ........... 16

(17) Loss of one leg at the hip joint or so near thereto as to preclude the use of artificial limb ......................... 207

(18) Loss of one leg at or above the knee, where the stump remains sufficient to permit the use of artificial limb ............. 160

(19) Loss of one leg at or above ankle and below knee joint 155

(20) Loss of one foot in tarsus ...................... 150

(21) Loss of one foot in metatarsus .................. 110

(22) Loss of great toe of one foot at proximal joint .. 40

(23) Loss of great toe of one foot at distal joint ... 22

(24) Loss of any other toe at proximal joint ......... 14

(25) Loss of any other toe at second joint ............ 10

(26) Loss of any other toe at distal joint ............ 8

(27) Complete deafness of both ears .................. 180

(28) Complete deafness of one ear, the other being normal....................................................... 49

(29) Complete loss of the sight of one eye ........... 140

2. If the disability suffered in any of items (1) through (29) of the schedule of losses is total by reason of severance or complete loss of use thereof the number of weeks of compensation allowed in the schedule for such disability shall be increased by ten percent.

3. For permanent injuries other than those specified in the schedule of losses, the compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified, but no period shall exceed four hundred weeks, at the rates fixed in subsection 1. The other injuries shall include permanent injuries causing a loss of earning power. For the permanent partial loss of the use of an arm, hand, thumb, finger, leg, foot, toe or phalange, compensation shall be paid for the proportionate loss of the use of the arm, hand, thumb, finger, leg, foot, toe or phalange, as provided in the schedule of losses.

4. If an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation. If both the employer and employee agree, the administrative law judge may utilize a photograph of the disfigurement in determining the amount of such additional sum.

5. The amount of compensation to be paid under subsection 1 of this section shall be computed as follows:

(1) For all injuries occurring on or after September 28, 1983, but before August 28, 1990, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to forty-five percent of the state average weekly wage, as such wage is determined by the division of employment security, as of the July first immediately preceding the date of injury;

(2) For all injuries occurring on or after September 28, 1981, the weekly compensation shall in no event be less than forty dollars per week;

(3) For all injuries occurring on or after August 28, 1990, but before August 28, 1991, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to fifty percent of the state average weekly wage;

(4) For all injuries occurring on or after August 28, 1991, but before August 28, 1992, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to fifty-two percent of the state average weekly wage;

(5) For all injuries occurring on or after August 28, 1992, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the employee's average weekly earnings as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to fifty-five percent of the state average weekly wage.

6. "Permanent partial disability" means a disability that is permanent in nature and partial in degree, and when payment therefor has been made in accordance with a settlement approved either by an administrative law judge or by the labor and industrial relations commission, a rating approved by an administrative law judge or legal advisor, or an award by an administrative law judge or the commission, the percentage of disability shall be conclusively presumed to continue undiminished whenever a subsequent injury to the same member or same part of the body also results in permanent partial disability for which compensation under this chapter may be due; provided, however, the presumption shall apply only to compensable injuries which may occur after August 29, 1959.

(RSMo 1939 § 3705, A.L. 1947 V. II p. 438, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1955 p. 588, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1961 p. 423, A.L. 1965 pp. 397, 414, A.L. 1967 p. 384, A.L. 1969 p. 393, A.L. 1971 H.B. 25 & 364, A.L. 1974 S.B. 417, A.L. 1975 H.B. 196, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1983 H.B. 243 & 260, A.L. 1990 S.B. 751, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3315

(1972) Where claimant whose little, ring and middle fingers and all but stub of index finger had been amputated in industrial accident could write and use hand as a prop and for pushing and prying he did not sustain complete loss of his hand and was not entitled to ten percent increase in compensation for complete disability as provided in subdivision 2. Martin v. Star Cooler Corporation (A.), 484 S.W.2d 32.

(1972) Court will take judicial notice that workman with only part of his major hand remaining would be at disadvantage in labor market and this will support award for disfigurement to claimant whose little, ring and middle fingers and all but stub of his index finger had been amputated in industrial accident as provided in subdivision 4. Martin v. Star Cooler Corporation (A.), 484 S.W.2d 32.

Claims for hernia, proof required.

287.195. In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the division or the commission:

(1) That there was an accident or unusual strain resulting in hernia;

(2) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.

(RSMo 1939 § 3705, A.L. 1947 V. II p. 438, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1955 p. 588, A.L. 1957 p. 560 § 287.191, A.L. 1965 p. 397, A.L. 1980 H.B. 1396)

(1963) Claimant not entitled to recover compensation for strangulation of preexisting inguinal hernia. Wright v. J.A. Tobin Const. Co. (A.), 365 S.W.2d 742.

Occupational deafness--tests, claims, awards, liability of employer, effect of hearing aid.

287.197. 1. Losses of hearing due to industrial noise for compensation purposes shall be confined to the frequencies of five hundred, one thousand, and two thousand cycles per second. Loss of hearing ability for frequency tones above two thousand cycles per second are not to be considered as constituting disability for hearing.

2. The percent of hearing loss, for purposes of the determination of compensation claims for occupational deafness, shall be calculated as the average, in decibels, of the thresholds of hearing for the frequencies of five hundred, one thousand, and two thousand cycles per second. Pure tone air conduction audiometric instruments, approved by nationally recognized authorities in this field, shall be used for measuring hearing loss. If the losses of hearing average fifteen decibels or less in the three frequencies, such losses of hearing shall not then constitute any compensable hearing disability. If the losses of hearing average eighty-two decibels or more in the three frequencies, then the same shall constitute and be total or one hundred percent compensable hearing loss.

3. There shall be payable as permanent partial disability for total occupational deafness of one ear forty-nine weeks of compensation; for total occupational deafness of both ears, one hundred eighty weeks of compensation; and for partial occupational deafness in one or both ears, compensation shall be paid for such periods as are proportionate to the relation which the hearing loss bears to the amount provided in this subsection for total loss of hearing in one or both ears, as the case may be. The amount of the hearing loss shall be reduced by the average amount of hearing loss from nonoccupational causes found in the population at any given age, according to the provisions hereinafter set forth.

4. In measuring hearing impairment, the lowest measured losses in each of the three frequencies shall be added together and divided by three to determine the average decibel loss. For every decibel of loss exceeding fifteen decibels an allowance of one and one-half percent shall be made up to the maximum of one hundred percent which is reached at eighty-two decibels.

5. In determining the binaural (both ears) percentage of loss, the percentage of impairment in the better ear shall be multiplied by five. The resulting figure shall be added to the percentage of impairment in the poorer ear and the sum of the two divided by six. The final percentage shall represent the binaural hearing impairment.

6. Before determining the percentage of hearing impairment, in order to allow for the average amount of hearing loss from nonoccupational causes found in the population at any given age, there shall be deducted from the total average decibel loss, one-half decibel for each year of the employee's age over forty at the time of last exposure to industrial noise.

7. No claim for compensation for occupational deafness may be filed until after six months' separation from the type of noisy work for the last employer in whose employment the employee was at any time during such employment exposed to harmful noise, and the last day of such period of separation from the type of noisy work shall be the date of disability.

8. An employer shall become liable for the entire occupational deafness to which his employment has contributed; but if previous deafness is established by a hearing test or by other competent evidence, whether or not the employee was exposed to noise within six months preceding such test, the employer shall not be liable for previous loss so established nor shall he be liable for any loss for which compensation has previously been paid or awarded.

9. No consideration shall be given to the question of whether or not the ability of an employee to understand speech is improved by the use of a hearing aid.

(L. 1959 S.B. 167 § 287.202, A.L. 1967 p. 390, A.L. 1998 H.B. 1237, et al.)

Permanent total disability, amount to be paid--suspension of payments, when.

287.200. 1. Compensation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made. The amount of such compensation shall be computed as follows:

(1) For all injuries occurring on or after September 28, 1983, but before September 28, 1986, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings during the year immediately preceding the injury, as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to seventy percent of the state average weekly wage, as such wage is determined by the division of employment security, as of the July first immediately preceding the date of injury;

(2) For all injuries occurring on or after September 28, 1986, but before August 28, 1990, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average weekly earnings during the year immediately preceding the injury, as of the date of the injury; provided that the weekly compensation paid under this subdivision shall not exceed an amount equal to seventy-five percent of the state average weekly wage, as such wage is determined by the division of employment security, as of the July first immediately preceding the date of injury;

(5) For all injuries occurring on or after September 28, 1981, the weekly compensation shall in no event be less than forty dollars per week.

2. All claims for permanent total disability shall be determined in accordance with the facts. When an injured employee receives an award for permanent total disability but by the use of glasses, prosthetic appliances, or physical rehabilitation the employee is restored to his regular work or its equivalent, the life payment mentioned in subsection 1 of this section shall be suspended during the time in which the employee is restored to his regular work or its equivalent. The employer and the division shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability. In any case where the life payment is suspended under this subsection, the commission may at reasonable times review the case and either the employee or the employer may request an informal conference with the commission relative to the resumption of the employee's weekly life payment in the case.

(RSMo 1939 § 3706, A.L. 1947 V. II p. 438, A.L. 1951 p. 620, A.L. 1953 p. 530, A.L. 1957 p. 560, A.L. 1959 S.B. 167, A.L. 1961 p. 423, A.L. 1965 pp. 397, 414, A.L. 1967 p. 384, A.L. 1969 p. 393, A.L. 1971 H.B. 25 & 364, A.L. 1974 S.B. 417, A.L. 1978 H.B. 1260, A.L. 1979 H.B. 496, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1983 H.B. 243 & 260, A.L. 1990 S.B. 751)

Prior revision: 1929 § 3316

(1953) Compensation for back injury resulting in twenty-five percent permanent partial disability is to be computed under subsection 2 of section 287.190 rather than under section 287.200. Robinson v. Beatrice Foods Co. (A.), 260 S.W.2d 346.

(1966) Under provisions of this section liability of employer at time of last injury is to be determined by application of § 287.190 where last injury results in permanent partial disability, and that injury together with a previous disability results in permanent total disability. Stewart v. Johnson (Mo.), 398 S.W.2d 850.

(1980) An award for nursing care, even where performed by the wife is proper under appropriate circumstances. Bahner v. Bahner (A.), 606 S.W.2d 484.

Termination of compensation by employer, employee right to hearing.

287.203. Whenever the employer has provided compensation under section 287.170, 287.180 or 287.200, and terminates such compensation, the employer shall notify the employee of such termination and shall advise the employee of the reason for such termination. If the employee disputes the termination of such benefits, the employee may request a hearing before the division and the division shall set the matter for hearing within sixty days of such request and the division shall hear the matter on the date of hearing and no continuances or delays may be granted except upon a showing of good cause or by consent of the parties. The division shall render a decision within thirty days of the date of hearing. Reasonable cost of recovery shall be awarded to the prevailing party.

(L. 1993 S.B. 251)

Physical examination of employee--exchange of medical records --admissibility of physician's, coroner's records--autopsy may be ordered.

287.210. 1. After an employee has received an injury he shall from time to time thereafter during disability submit to reasonable medical examination at the request of the employer, his insurer, the commission, the division or an administrative law judge, the time and place of which shall be fixed with due regard to the convenience of the employee and his physical condition and ability to attend. The employee may have his own physician present, and if the employee refuses to submit to the examination, or in any way obstructs it, his right to compensation shall be forfeited during such period unless in the opinion of the commission the circumstances justify the refusal or obstruction.

2. The commission, the division or administrative law judge shall, when deemed necessary, appoint a duly qualified impartial physician to examine the injured employee, and any physician so chosen, if he accepts the appointment, shall promptly make the examination requested and make a complete medical report to the commission or the division in such duplication as to provide all parties with copies thereof. The physician's fee shall be fair and reasonable, as provided in subsection 3 of section 287.140, and the fee and other reasonable costs of the impartial examination may be paid as other costs under this chapter. If all the parties shall have had reasonable access thereto, the report of the physician shall be admissible in evidence.

3. The testimony of any physician who treated or examined the injured employee shall be admissible in evidence in any proceedings for compensation under this chapter, but only if the medical report of the physician has been made available to all parties as in this section provided. Immediately upon receipt of notice from the division or the commission setting a date for hearing of a case in which the nature and extent of an employee's disability is to be determined, the parties or their attorneys shall arrange, without charge or costs, each to the other, for an exchange of all medical reports, including those made both by treating and examining physician or physicians, to the end that the parties may be commonly informed of all medical findings and opinions. The exchange of medical reports shall be made at least seven days before the date set for the hearing and failure of any party to comply may be grounds for asking for and receiving a continuance, upon proper showing by the party to whom the medical reports were not furnished. If any party fails or refuses to furnish the opposing party with the medical report of the treating or examining physician at least seven days before such physician's deposition or personal testimony at the hearing, as in this section provided, upon the objection of the party who was not provided with the medical report, the physician shall not be permitted to testify at that hearing or by medical deposition.

4. Upon request, an administrative law judge, the division, or the commission shall be provided with a copy of any medical report.

5. As used in this chapter the terms "physician's report" and "medical report" mean the report of any physician made on any printed form authorized by the division or the commission or any complete medical report. As used in this chapter the term "complete medical report" means the report of a physician giving the physician's qualifications and the patient's history, complaints, details of the findings of any and all laboratory, X-ray and all other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the percentage of permanent partial disability, if any. An element or elements of a complete medical report may be met by the physician's records.

6. Upon the request of a party, the physician or physicians who treated or are treating the injured employee shall be required to furnish to the parties a rating and complete medical report on the injured employee, at the expense of the party selecting the physician, along with a complete copy of the physician's clinical record including copies of any records and reports received from other health care providers.

7. The testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures. The party intending to submit a complete medical report in evidence shall give notice at least sixty days prior to the hearing to all parties and shall provide reasonable opportunity to all parties to obtain cross-examination testimony of the physician by deposition. The notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other health care providers. The party offering the report must make the physician available for cross-examination testimony by deposition not later than seven days before the matter is set for hearing, and each cross-examiner shall compensate the physician for the portion of testimony obtained in an amount not to exceed a rate of reasonable compensation taking into consideration the specialty practiced by the physician. Cross-examination testimony shall not bind the cross-examining party. Any testimony obtained by the offering party shall be at that party's expense on a proportional basis, including the deposition fee of the physician. Upon request of any party, the party offering a complete medical report in evidence must also make available copies of X rays or other diagnostic studies obtained by or relied upon by the physician. Within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of a complete medical report by providing written objections to the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof. If no objections are filed the report is admissible, and any objections thereto are deemed waived. Nothing herein shall prevent the parties from agreeing to admit medical reports or records by consent. The provisions of this subsection shall not apply to claims against the second injury fund.

8. Certified copies of the proceedings before any coroner holding an inquest over the body of any employee receiving an injury in the course of his employment resulting in death shall be admissible in evidence in any proceedings for compensation under this chapter, and it shall be the duty of the coroner to give notice of the inquest to the employer and the dependents of the deceased employee, who shall have the right to cross-examine the witness.

9. The division or the commission may in its discretion in extraordinary cases order a postmortem examination and for that purpose may also order a body exhumed.

(RSMo 1939 § 3738, A.L. 1957 p. 557, A.L. 1965 p. 397. A.L. 1980 H.B. 1396, A.L. 1990 S.B. 751, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3348

Injured employee to be furnished copy of his statement, otherwise inadmissible as evidence.

287.215. No statement in writing made or given by an injured employee, whether taken and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within fifteen days after written request for it by the injured employee, his dependents in case of death, or by their attorney. The request shall be directed to the employer or its insurer by certified mail.

(L. 1959 S.B. 167, A.L. 1965 p. 397, A.L. 1973 H.B. 215)

Compensation and payment of compensation for disability--second injury fund created, services covered, actuarial studies required--failure of employer to insure, penalty--records open to public, when --concurrent employers, effect.

287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.

2. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, and shall be entitled to defend against the claim. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.

3. If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.

4. If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.

5. If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The office of the attorney general of the state of Missouri shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280.

6. Every three years the second injury fund shall have an actuarial study made to determine the solvency of the fund, appropriate funding level of the fund, and forecasted expenditures from the fund. The first actuarial study shall be completed prior to July 1, 1988. The expenses of such actuarial studies shall be paid out of the fund for the support of the division of workers' compensation.

7. The director of the division of workers' compensation shall maintain the financial data and records concerning the fund for the support of the division of workers' compensation and the second injury fund. The division shall also compile and report data on claims made pursuant to subsection 9 of this section. The attorney general shall provide all necessary information to the division for this purpose.

8. All claims for fees and expenses filed against the second injury fund and all records pertaining thereto shall be open to the public.

9. Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.

(RSMo 1939 § 3707, A.L. 1943 p. 1068, A.L. 1945 p. 1996, A.L. 1951 p. 617, A.L. 1953 p. 524, A.L. 1955 p. 590, A.L. 1980 H.B. 1396, A.L. 1981 H.B. 324, A.L. 1982 H.B. 1605, A.L. 1987 H.B. 564, A.L. 1992 H.B. 975, A.L. 1993 S.B. 251, A.L. 1998 H.B. 1237, et al.)

Prior revision: 1929 § 3317

(1954) Fact that father of married woman made contribution of groceries and money to her and her family does not require factual finding that such woman and family were actually dependent upon him. Mossman v. St. Joseph Lead Co. (Mo.), 265 S.W.2d 335.

(1955) Employee was injured in 1947 and claim was settled for $4,850; he, thereafter, resumed work (for different employer) and in 1952 received a similar injury resulting in 30% disability; Commission computed benefits as follows: Amount paid under 1947 settlement deducted from maximum total permanent disability value; remainder divided by $30 to obtain number of weeks which would result from total disability, and then 30% of such resultant number of weeks constituted his amount of benefits. Calculation sustained. Fuytinck v. Burton W. Duenke Bldg. Co. (A.), 280 S.W.2d 449.

(1956) Where employee had been awarded benefits for thirty percent permanent partial disability to his leg and then suffered an injury to his back resu