1. Can They Do That? A Guide to Navigating The Unwritten Law of Missouri Work Comp Ross A. Bridges Vessell Bridges Murphy Law Offices

2. Topics Covered  History of statutory construction  Disfigurement  Definition of Body as a Whole (BAW)  Employer’s credit for prior settlement  ALJs shall approve settlements  Extraordinary Writs

3. History of Statutory Construction  Prior to 2005:  Mo. Statute §287.800 read:  “All of the provisions of this chapter shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements... “  Case law read:  “Any question as to the right of an employee to compensation must be resolved in favor of the injured employee.” Jennings v. Station Casino, 196 S.W.3d 552 (Mo. App. 2006).

4. History cont.  Since 2005 changes:  Mo. Statute §287.800 reads:  “Administrative law judges,... the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.” and  “Administrative law judges... and the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party.”

5. Disfigurement  Many ALJs believe that they have exclusive authority to assess and award disfigurement.  Especially problematic when trying to settle a case directly with an unrepresented employee.  Some ALJs will use disfigurement as a gap filler for a low PPD settlement.

6. Disfigurement Cont.  Where is the legal authority for disfigurement?  Mo. Statute §287.190.4 reads:  “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.

7. Disfigurement Cont.  Compared to the other rights in the statutes:  §287.140 reads:  “In addition to all other compensation paid to the employee under this section, 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.”  When an employee is required to submit to medical examinations or necessary medical treatment... the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses

8. Disfigurement Cont.  Compared to the other rights in the statutes:  §287.170 reads:  “For temporary total disability the employer shall pay compensation.”  §287.180 reads:  “For temporary partial disability, compensation shall be paid during such disability.”  §287.190 reads:  “For permanent partial disability, which shall be in addition to compensation for temporary total disability or temporary partial disability paid... the employer shall pay to the employee”

9. Disfigurement Cont.  Why the difference?  Years of law leaning in favor of employees  Prior to 2005 Mo. Statute §287.800 read:  “All of the provisions of this chapter shall be liberally construed with a view to the public welfare, and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements... “  Case law read:  “Any question as to the right of an employee to compensation must be resolved in favor of the injured employee.” Jennings v. Station Casino, 196 S.W.3d 552 (Mo. App. 2006).

10. Definition of Body as a Whole (BAW)

11. Body as a Whole cont.  What is “Body as a Whole?”  This phrase is not defined in the statutes.  The term only appears three times in the whole chapter.  It appears in part of the chapter in order to explain how to calculate Second Injury Fund liability.

12. Body as a Whole cont.  The term appears to have been created as a way to explain §287.190.3  “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.

13. Body as a Whole cont.  Schedule of losses lists every extremity or appendage.  Thus, what §287.190.3 appears to say is that if you have an injury at a location somewhere other than one of the extremities or appendages listed in the schedule of losses,  Then you calculate PPD by determining how the new injury bears in proportion to the injuries on the schedule of losses.

14. Body as a Whole cont.  Examples:  Given the way the law is often interpreted, all of these body parts would have a max of 400 weeks.  Ear  Rib  Collar bone  Hernia injury  Should an ear, rib, abdominal muscle or a collar bone be worth more than a shoulder (232)?

15. Employer’s credit for prior PPD Settlement  §287.190.6 states:  When an employee has received payment for PPD on a prior work comp injury, “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.”

16. Credit cont.  The way this should work is this:  Lets say you have an employee with a prior injury that resulted in a settlement of 10% of the left knee or 16 weeks (160 X 10% = 16 weeks)  This employee has a new injury to the left knee and the parties agree to settle his new injury for 25% of the knee.

17. Credit cont.  Because the prior settlement resulted in 16 weeks of compensation, the knee is now only worth 144 weeks (160 week knee – 16 weeks = 144 weeks).  Thus the new settlement of 25% would equate to 36 weeks of compensation (144 X 25% = 36) instead of 40 weeks.

18. Credit cont.  Most judges will allow a credit for a prior injury to an extremity or appendage, but are less likely when the injury is in the body.  What about a prior settlement of 15% of BAW for an injury at the L4-L5 disc in the low back, and now has an injury at the L5-S1?  Many judges take the stance that in order to take a credit for a back injury the prior injury and the new injury must be at the same level.

19. Credit cont.  There are 23 discs in a spine (400 X 23 = 9200 weeks?)  The effect of this line of thinking is that potentially a person could, over time, receive more than 400 weeks of PPD for recurrent back injuries.

20. Credit Cont.  The problem lies in the definition of “same part of the body.”  “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.”

21. Credit Cont.  There does not appear to be direct case law on point.  Nonetheless, the case law seems to suggest that as long as the prior injury and the new injury are in the same areas of the back, then the credit should apply.

22. ALJs Shall Approve Settlements  Some ALJs will refuse to approve a settlement if they believe the offer is too low.

23. ALJs Shall Approve Settlements Cont.

24.  §287.390.1:  “An administrative law judge, or the commission, shall approve a settlement agreement as valid and enforceable as long as the settlement is not the result of undue influence or fraud, the employee fully understands his or her rights and benefits, and voluntarily agrees to accept the terms of the agreement.”  §287.400:  “The division shall inform the employee generally of his rights under this chapter.”

25. Extraordinary Writs  Solution?  Writ of Prohibition  This is an action that requests that a higher court prohibit a lower court from acting.  Writ of Mandamus  This is an action that requests that a higher court compel a lower court to act.

26. Extraordinary Writs  Writ of Mandamus:  Allowed under Missouri Supreme Court Rule 94.  Writ of Prohibition:  Allowed under Missouri Supreme Court Rule 97.  For both of these writs you would ask the circuit court judge of the county where the case is venued to tell the ALJ to either act or not act.

27. Extraordinary Writs  Neither of these writs may be used for a substitute for appeal.  Also, a writ cannot be used to prevent an ALJ from exercising discretion which has been afforded to him/her under the law.

28. Questions? ROSS A. BRIDGES Vessell Bridges Murphy Law Offices www.VBMLAW.com 573-777-4488 Ross@vbmlaw.com