Work Comp

July 15, 2017

Good Evening James,

While some of us go on vacation or relax this time of the summer (and certainly on Sunday night), I thought I'd write about hard working people and on the job injuries. We have long represented folks in Workers' Compensation claims.

And I am excited to have finished and published my third book. This one is on Workers’ Compensation. You can download a free copy here.

The book has detailed information for lawyers and claimants on all aspects of Work Comp. Please feel free to download and use it. If I can help you, a friend or a client in a Work Comp claim, email or call me at [dynamic-phone-number]. We pay co-counsel fees to referring lawyers.

There were 104,087 on the job injuries in Missouri in 2016. Gov. Eric Greitens signed legislation banning local governments from giving preferential treatment to union contractors on public construction projects. He also signed changes to the Work Comp laws. Workers will be paid less in Missouri. Below I discuss his changes to Work Comp law, an update on the dogs we rescued last month, and some mistakes workers make in their injury claims.

Work Comp Legal Changes

Governor Greitens signed Senate Bill 66 (about which I have previously written) that was passed by the Missouri legislature. Here are the key changes workers need to understand:

• Death Benefits for the Survivors of First Responders. Changes R.S.Mo §287.243. These changes make some very substantial additions and alterations to this Section. If you are a survivor of a First Responder, you must file claims within one year of the death of the first responder.
• Retaliation Legal Claims. Changes R.S.Mo §287.780. In general, if an employer retaliates against an employee for filing or attempting to file a workers’ compensation claim, the worker may have a legal claim against the employer. The legal standard to win a case has now been changed. Previously, an employee merely had to show that the employee’s filing of a workers’ compensation claim was a contributing factor in the employer’s decision to retaliate against or fire the employee.

  The new standard requires a work comp claim to be the motivating factor for termination. This is defined as “the employee’s exercise of his or her rights under this chapter actually played a role in the discharge or discrimination and had a determinative influence.” This new standard will make it harder for employees to prove their cases. Jury instructions in MAI section 38 will be changed accordingly.

• Drug and Alcohol Testing. Changes R.S.Mo. §287.120.6. Now, employers are required to conduct drug and alcohol tests of employees within 24 hours of the workplace injury, and provide employees with the drug test results within 14 days of the employer having received the results. What’s more, the employee must be given the opportunity to do a second test on the original sample. If the test comes back positive for a non-prescribed controlled drug or its metabolites forces the employee to prove that the workplace injury did not occur as a result of the drug use.
• Hardship Hearings. Changes R.S.Mo §287.203. When employers fail to provide the benefits to which an injured worker is entitled, the worker’s only recourse is to file for Hardship Hearing. The forces a mediation and trial before an administrative law judge to provide benefits owed. This can be monetary benefits or medical treatment. The new law is actually positive for employees. It forces the Court to hear Hardship Hearings within 30 days of the request.
• Employee Disability Rating. Changes R.S.Mo §287.390. This change requires the employee to obtain an expert opinion relating to their permanent disability within 12 months of the employer’s offer of settlement based on their own expert rating.
• Death Benefits for Step Children. Changes R.S.Mo. §287.240. This law relates to death benefits available to the children of workers killed on the job. These changes amend the definition of dependent children to include “any stepchild claimable by the deceased on his or her federal income tax return at the time of the injury…” These changes should make it easier for step children to collect death benefits.

My wife Kristen and I learned that Sam, the male dog I rescued on our ride along with Stray Rescue, is on track to be a therapy dog! He left yesterday for the first leg of his training as a "Puppies for Parole" student. After he completes his time there he will move forward with the additional training he needs to be therapy certified.

Dogs' ability to heal is continually amazing to me, and I am so glad we found him that day. Way to go, Sam! His mate Diane was adopted out, too. Amazing.

Also – we found forever homes for the three puppies we fostered.

Common Work Comp Mistakes

(Excerpted from chapter 6 of my workers’ comp book)

Not filing a written injury report. You need to file a written injury report in order to properly notify your employer of your injury. Include the time, place and nature of the injury as well as the name and address of the person injured. Send an email confirmation of it. Fill out the paperwork at the work comp doctor’s office or the urgent care or wherever you are being treated and say that it is a work-related injury.

Deny the accident occurred. The truth will set you free. Always communicate and be clear about how the accident occurred and how bad your symptoms are. If your employer is trying to keep it off the books and pay for your medical with cash or put it on your own health insurance, it is improper and they are going to hurt you. They are going to use this to deny that you ever had an accident in the first place.

Not getting medical care. Get medical care right away. Go to the emergency room, urgent care, or primary care doctor and report the injury and get the medical care that you need. You have insurance and your health is important to you. If you don’t seek treatment right away, your employer and insured are going to try to say that it is because you weren’t hurt.

Accepting too little compensation for your disability at the end of the case. You are entitled to a permanent total or temporary total disability award. Too often, injured workers take too little for this. A good lawyer will advocate strongly and make sure that the employee is being fully compensated for all the levels of disability relating to the claim.

Not filing a claim within 2 years of the accident. Although you have 30 days to place your employer on written notice of your workplace injury, you only have 2 years from the date of the accident to file your claim for compensation. R.S.Mo §287.430. If your employer fails to report your injury within 30 days of knowledge of the accident, then your deadline to file claim for compensation with the State extends from 2 years to 3 years.

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Tort Lawsuits and New Mexico

July 30, 2017

Good Morning Julie,

With Governor Greitens' tort reform measures going into effect in about a month, I looked at the impact of personal injury lawsuits on courts in Missouri and around the country. My findings may surprise you.

I also went on a summer vacation with my family to New Mexico, which has a surprising history. Further down in this email I share 10 things you probably didn't know.

Lawsuits in the US

A public opinion poll taken on November 8, 2016 showed 87% of voters agreed there were “too many lawsuits filed in America." But claims that tort lawsuits clog up Courts is fake news.

In the last 15 years tort lawsuits comprise just 2-3% of cases filed each year in Missouri. Many judicial circuits and counties in Missouri go all year without a trial in a personal injury case. And the number of Missouri tort lawsuits keeps going down.

A report by the National Center for State courts stated their analysis showed tort cases declined from 16% of civil filings in state courts in 1993 to about 4% in 2015, which is a difference of more than 1.7 million cases nationwide.

Nationwide, fewer than 2 in 1,000 people filed tort lawsuits in 2015. Tort lawsuits now account for less than 5% of all civil filings in State courts. Contact cases where big corporations and creditors go against individuals to collect debts are about half of all civil cases. We don't hear politicians lamenting these cases.

In Missouri, breach of contract and collection cases accounted for over 40% of the cases filed on average since 2000. As you can see below, debt collection cases greatly outnumber personal injury cases. In fact, lawyers sit through long docket calls for creditor cases – not PI cases.

Most civil cases are filed in State Courts versus Federal Courts. (Lately – 15 million in State Courts v. 281,608 in Federal Courts). Court cases declined from 16% of civil filings in State Courts in 1993 to about 4% in 2015 – the difference of more than 1.7 million cases nationwide.

The "too many lawsuits" business and insurance lobby prompted tort reform in the late 90’s and 2000’s. This continues today with the tort reform led by governors including Governor Greitens in Missouri. I have written about this in the past.

More than 30 States have capped damages in medical malpractices cases and other cases since the 1970’s. After tort reform passed in our neighboring state of Kansas, tort filings fell by 40% from 2000 to 2015.

Tort reform often gives insurers the ability to play hard ball when dealing with small cases and drive down the value of these cases as it is expensive to pursue these cases and try these cases. I encounter this on a regular basis.

Even though I have been doing this for 25 years and think I know what I am doing, I still get adjusters on the other side low balling me on claims, forcing us to file many cases. We filed 75 lawsuits so far this year in our firm.

Most tort cases end in judgments of $12,000 or less and only 2% of civil cases result in judgments more than $500,000. Read more here.

New Mexico

We took the family to northern New Mexico for a week's vacation and had an amazing time. We went on long hikes, whitewater rafting, paddle boarding, visited pueblos new and old, went horseback riding and a bunch of other activities. Here are the top unique and interesting things I learned:

1. New Mexico’s history is older than the east coast.The oldest church in America is the San Miguel Chapel built between 1610 and 1626 in Santa Fe, New Mexico. Human habitation area dates back about 5,000 years and the Taos Pueblo has been continuously occupied since the year 980.
2. It is monsoon season in the New Mexico desert in the late summer. It rained many afternoons. The warm moist air hits the mountains and gets pushed up into the cold air which creates rain clouds. You always have to summit a mountain and be down before the afternoon because storms come and lightning strikes can be deadly.
3. My kids are amazing hikers and don’t complain. As my kids are getting older I don’t have to call hikes "walks" and we actually enjoy ourselves.
4. The history of the building of the atomic bomb is fascinating. Los Alamos has great museums. Did you know that the US went from no knowledge about atomic bombs or nuclear reactions to a bomb able to be dropped in less than 3 years?

   The US conducted an amazing effort through the Manhattan project of building 3 separate cities - in Tennessee, New Mexico and Washington State - where they created huge centrifuges to distill plutonium and uranium in an amazingly short period of time. They put up one house every 30 seconds and created these walled and secure cities. While fissionable plutonium and uranium was being made in Tennessee and Washington, the scientists in New Mexico were inventing how to make it into a bomb.

   This all coalesced and combined and the two bombs dropped on Hiroshima and Nagasaki which killed almost 400,000 people. The bombs were never tested before and their first use were on these sites.

5. The human toll from dropping these bombs was terrible on the Japanese. But it was also terrible on the Americans who worked on these projects. Many got cancer and died because of radiation exposure. The fallout from the test bombs exploded in New Mexico created radioactive fields that drifted across and affected the people in that area. The transport of plutonium and uranium to Los Alamos caused significant increased radiation at gas stations along the routes between Washington, Tennessee, and Los Alamos.
6. My wife is an amazing puzzle solver. She solved 1,998 pieces (that was 3 puzzles with 1 piece missing from two of them).
7. Santa Fe, New Mexico is the nation’s highest state capital.
8. Santa Fe was founded 10 years before the pilgrims landed at Plymouth Rock.
9. The world’s first atomic bomb exploded 200 miles north of Los Alamos, NM.
10. The New Mexico constitution officially barred “idiots” from voting. This was true until a Supreme Court ruling in September of 2016.

Responses:

“Greitens is such a putz. You are not. Nice work on this email.”

--Jim

“Gary, this was a great email!

I am well aware of the forces behind the constant calls for "tort reform," since I have been friends with Dave Ransin since law school and am on the solo and small firm listserve; this topic naturally arises often. But your charts are very graphic, though you did not include any information on the effect of caps on a catastrophically harmed person with catastrophically expensive medical needs for life. I think when people see that information it sometimes changes their minds on the need for reform; the other thing which causes a change of opinion is when something happens to oneself or one's family.

Your kids are adorable. Be grateful for #3.

Your facts are interesting. But wth is the matter with the Supreme Court? A state cannot prevent idiots from voting? Sign of the times I guess (will refrain from further editorializing).”

--Janet