The Missouri Supreme Court just laid a possible huge new ruling on employers in the state, thanks to a recent 4 to 3 decision in the court on the case of Fred Schoemehl. Basically, Fred, was a worker in the state who got injured while on the job at a local marina and yacht club. He was set to get workers’ compensation for his injury, but just one month into the payments, he died of an unrelated cause.
Normally, in Missouri and elsewhere, once a worker dies, especially of an unrelated cause to the disability, the payments for the workers’ comp stop. Insurance companies for years have been basing their premiums and charges on that theory and long accepted practice.
But in its 4 to 3 ruling, the Missouri Supreme Court has thrown that rule on its head. Basically, the court found that Fred’s surviving dependents are then entitled to receive his workers’ comp payments even after the death. The court found that any time a worker has been permanently and totally disabled, if they then die of an unrelated cause, their families are then entitled to continue to receive his workers’ comp benefits.
Missouri employers, you have already made it known to me and every other writer on human resource and labor law news that you are not happy with the ruling. According to the last report I saw on the issue, even the Missouri Attorney General is getting into the action and asking the Supreme Court to reconsider its finding. A state Senator by the name of Chris Koster, a Republican out of Harrisonville, has already written up a bill in the legislature to reverse the court’s decision.
Why are employers up in arms over the case? Well, for once, it could cause workers’ comp insurers perhaps, from what I’ve heard and know about insurance, to raise rates to compensate.
Why don’t you already know about these safety engineering and safety management services provided by workers’ comp insurers in the state of Missouri? I hear you ask this question, and I don’t really know the answer myself. I don’t want to offend any of my loyal readers out there, and I am a firm believer in the Golden Rule that my mom drove into my skull when I was little: If you don’t have something nice to say, don’t say anything at all.
Because let me tell you: whenever you buy workers’ comp insurance, or switch workers’ comp insurance companies, the division of workers’ comp in the state has been getting notice of this. And they follow it up by sending you a notification of all of the publicly or privately administered worker safety training and management programs out there in the Missouri. The only time they won’t send this notice to you is if you just received the same notice in the last 12 months.
Otherwise, any time you changed up or started up a workers’ comp program, you should have gotten word that all of these safety programs are out there at your disposal. Then again, if you are self insured, or if you haven’t changed an insurance carrier in some time, you may not know of this section of the updated workers’ comp law. So it probably is good that I held my tongue a few moments ago!
If that is the case, and you haven’t gotten any notice of all of these safety training programs offered by insurance companies out there, get in touch with the division of insurance and the department of workers’ comp. Not only do they have all that on record, they also have a list of the safety consultants and independent safety engineers that are certified and licensed by the state.
Here’s something that probably all employers in the Show Me State ought to know about their workers’ comp coverage. The revised and updated Missouri workers’ comp labor laws mandate that every workers’ comp insurance company in the state must provide their clients—you and other employers in the state—with comprehensive safety engineering and safety management services upon your request.
The state is so serious about this mandate that they require every insurance company selling workers’ comp in the state to prove that they have the capabilities to offer this safety engineering and safety management training. They must provide the Missouri director of insurance with a written outline of their safety engineering and safety management program.
Part of the problem is centered around educating employees like your own about safe, and unsafe, acts at the work site. This is intended to help employees learn what are the main causes of the leading workers’ comp injuries in your particular industry, and for their particular occupation. Then the insurance company has to come up with ways to educate and train employees so that they continue to avoid those unsafe acts going into the future.
Still don’t believe me? Then hear this. Not only do insurance carriers have to provide written outlines of their intended safety programs. They have to prove that they work. That means that these insurance companies in Missouri have to provide these safety services to their insureds, and then test them to see how effective they are in preventing these injuries at work sites throughout the state.
This information and their performance are available through the department of insurance as well as the department of labor and industrial relations. The insurance company also has to report to these state agencies each and every time an employer requests these safety services.
We covered no fault workers’ comp systems before. That is where it doesn’t matter if a workwr was high or drunk, or if they were doing something at work that they shouldn’t have been doing when they got injured. What matters in these no fault systems is that the injury happened, and in that case, then the employer is liable for the compensation and medical care for that injury.
In Missouri, the system makes distinctions for employees who self inflict injuries to themselves, or kill themselves. In that case, the employer is not liable to compensate for the injury or the death. But in such cases, it is entirely up to the employer to prove that the worker in fact hurt or killed themselves on purpose.
On the other hand, according to the latest Missouri workers’ comp labor laws, if the injury to the employee was caused by some failure of the employer to follow any law or statute in the state on safety, then the compensation for death or for disability is increased by 15 percent by state law. But if you the employer has followed all of the safety laws set up by the workers’ comp commission and by the state OSHA regulators, and instead the injury or death of the employee is attributable t the employee failing to follow set safety procedures or where the appropriate safety gear, then the worker can get from 25 to 50 percent less for their compensation.
That holds true for if the employee fails to follow the alcohol and drug free regulations set by your company and by the state. That is, if they are drunk or high at work and happen to get injured, then there workers’ comp benefits can also be reduced by as much as 50 percent if the injury was caused in part by the substance abuse. If the alcohol or drugs were found to be the prevailing cause of the injury, then the benefits can be entirely forfeited by the employee.
Obviously, Missouri in its latest laws is not a no fault state.
This law about workers’ comp liability and independent contractors doesn’t stop there. In workers’ comp there is such a thing as primary liability and secondary liability. In the case of the employee of the independent contractor who gets hurts doing construction type work on your work sites, we have already established that the independent contractor would be held primarily liable for any injury or illness, death, or dismemberment that occurred while he and his employees were working at one of your work sites.
But that doesn’t mean you are entirely out of the clear. You could be found a secondary liable party. Secondary liability could mean that you have to help the primary liability party make payments. That could include attorney’s fees and expenses, if you fight the charge and have to go to court to fight off the liability. But if you lose in court, you could be paying that independent contractor some of the money, plus the costs he accrued to go to court against you.
But the law also states that you cannot be liable for this secondary liability if you were insured by an immediate or any intermediate employer. You could also avoid liability if you prove that it wasn’t anything at your work site that caused the injury to the employee of the independent contractor. In other words, if you had an unsafe work environment, and the injury or death to the employee of the independent contractor can be in part linked back to that lack of safety at the work site, then you may find yourself with some of the liability.
Here’s another distinction to ponder in this newly revised labor law. If the employee is a for-hire motor carrier, or somebody who is operating under a certificate issued by the department of transportation in Missouri or the United States Department of Transportation, then none of these rules apply to the employer.