February 27, 2007

Missouri's Pre-emptive Strike on Older Workers

Missouri has been living with its tough new workers comp law for about 18 months. As with all reforms, someone had to pay the price. I think it's safe to say that the burden of comp reform has fallen disproportionately on workers - and the worst is yet to come.

Much of the reform impacts all workers, regardless of age:

Safety + Personal Protective Equipment: if an injured employee fails to use personal protective equipment, or fails to follow safety rules, compensation is reduced anywhere from 25 to 50 percent. Don't waste your time looking for a corresponding burden on the employer to provide the needed equipment or to train employees in its use. Missouri, in the best tradition of "blame the victim," has placed the entire burden on the employee. Oh, the employer does have to make a "reasonable effort" to have employees follow the safety rules. I suppose a safety poster will do the trick.

Timely reporting: Employees now have just 30 days to report an injury. After that, the burden of proof shifts, with the system leaning toward denial of any late-reported claim. (By way of comparison, states usually allow one or two years to report a claim.) The short track might be reasonable for traumatic injuries, but becomes problemmatic with repetitive motion injuries, some strains and sprains and most occupational diseases.

Drugs and alcohol: The state has very tough new standards on drugs/alcohol in the workplace. If you can demonstrate that an injured employee had drugs or alcohol in his/her system, the benefits "shall" be reduced 50 per cent, even if the substances had no causal impact on the injury itself. If drugs or alcohol were the proximate cause of the injury, the claim is completely denied. Here's the kicker: even if management, prior to the injury, was aware that the employee was impaired, the claim is still denied. This is a dangerous precedent, seeming to encourage managers to abrogate their responsibilities in a very risky situation.

Recreation: Recreational activities, long an interesting "gray zone" for workers comp in most states, suddenly move into the black and white. Recreational injuries, even where the employer derives a business benefit, are excluded from coverage. The only exception occurs when participation in the event is mandatory. If I were working in Missouri, I might think twice about show-casing my "team spirit."

Retaliation: Most states bend over backwards to protect the employment rights of injured employees. Any termination following the filing of a comp claim usually places a high burden of proof on the employer to demonstrate that the termination was not retaliation. In Massachusetts, for example, any termination within one full year of a claim being filed is presumed to be retaliation, with the burden of proof on the employer. Not so in Missouri. If an employee who has filed a claim is subsequently terminated for "misconduct," all TTD and TPD benefits are also terminated.

The Burden Of Aging
The toughest parts of the new law have important implications for older workers. Sec. 287.067.3 of the revised statute reads:

Ordinary, gradual deterioration or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

We have frequently blogged the implications of an aging workforce, not just for workers comp, but for human resource management in general. We know that older workers are more at risk for specific injuries - rotator cuffs being the prime example, with knees and lower backs not far behind. With this language in the statute, Missouri has opened the door to denying claims that would be acceptable in literally every other jurisdiction in America. Indeed, you could make a case that rotator cuff injuries are almost always age related. So when a 55 year old sheet rock worker blows out his shoulder, what is Missouri going to do - deny the claim based upon age?

Let's take it a little further. The statute raises the issue of "idiopathic" conditions and states that they are not compensable. Work must be the "prevailing factor" in causing both the resulting medical condition and the disability. So how will they deal with the diabetic whose foot is crushed by a forklift? Who will pay for the medically necessary amputation? If my asthma causes a severe reaction to dust in the workplace, am I on my own for treatment? Suffer a Heart attack at work? In Missouri, this will almost never be considered "work related." In every other jurisdiction, comp requires employers (and insurers) to take people "as they are." In Missouri, payers now apparently have an invitation to separate out work and non-work factors. I may be a sceptic, but I simply cannot see how they can do this fairly.

Missouri's new statute has upped the ante in defining what is work-related. They have moved the standard from "substantially" work related (a third or more) to "prevailing" - work must be at least half the cause of the injury. It reminds me of discussions in the 1990s about mental health claims. Most states now require that work be the "predominant cause" of any mental disorders before the situation becomes compensable. By using virtually the same standard for physical problems, Missouri is moving into unchartered territory. The full weight of reform has fallen on the backs of Missouri workers. Not exactly "the Missouri compromise."



Missouri's law is a response to hearing officers that want every problem anyone with a job has to be related to work. In Illinois, we are seeing claim after claim where folks violate safety rules, get drunk and get hurt and still get benefits. We are also seeing doctors and patients getting the chain of carpal tunnel surgery, cubital tunnel surgery, shoulder repairs and then neck treatment where their work has little relation to the problem--a system that encourages such treatment courses.

It's about time for employees to be held accountable for thier screw ups. Most injuries are the result of employee carelessness, failure to follow safety rules and failure to use issued PPE. When employees know that they are accountable for their screw ups and that it's going to cost them real dollars then we will not need to baby sitters any more.

Great update on Missouri comp law changes. Please keep us updated on how things develop in Mo. based on these reforms.

This law cuts both ways. Adjusters love it; plaintiff attorneys howled. The bottom line is that both the Dems and the Republicans are at fault. The Dems refused to come to the table with reasonable reforms; the Republicans didn't want them to because they wanted to use a lack of workers' comp reform as an election hammer. The Dems got spanked; the Republicans outsmarted them. Who suffers? Some employees, no doubt. It's partisan politics at its best. The ADJs were really, in many cases, out of control, and this is the result. Missouri is a great state to do business in right now, yet you don't see businesses moving here in droves. I wonder why?

Slightly tongue in cheek, I wonder how Missouri will apply their alcohol and drug provisions. What if the employer provided the alcohol and/or drugs? I've seen at least one case (I'm sure there are many more like it) where the employer was handing out beers at the jobsite. Later that day the drunk employee drove into a ditch and drowned.
But that's only slightly odd compared to this: There was one worker's comp case - very difficult to forget - where the worker filed a claim because a co-worker spiked her coffee with meth. Talk about your morning pick-me-up!

Now, consider that Bongers' research in 2004 and 2005 found that the prevailing factors for musculoskeletal upx and low-back disorders were psychosocial.

What an attractive environment for business. Missouri may see an uptick in manufacturing jobs...no?


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This page contains a single entry by Jon Coppelman published on February 27, 2007 1:44 PM.

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