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Chapter 4 understanding your benefits

“Workers’ Compensation in Missouri: Succeeding in Your Injury Claim”

Understanding Your Benefits

In order to understand how the workers’ compensation system works, injured workers must know the type of benefits that they are seeking to recover. Generally, you can recover the following types of benefits.

Temporary Total Disability Benefits

Workers injured on the job can receive what are called temporary total disability benefits (TTD). These allow you to be compensated for the inability to function as a result of your workplace injury when the resulting disability is only expected to be temporary. However, you should remember that these TTD benefits, which are essentially the only way that you can recover your lost wages, only kick in after you miss 3 days of work. If your physician puts you on light duty, go back to work and work within those restrictions. But, if there is not light duty work available you do not have to work beyond your restrictions. Some employers would rather have you answering phones than off on work comp and they are entitled to have you come into the office and help. If your employer has work available, within your work restrictions, and you voluntarily refuse the work, you will not qualify for TTD payments.

TTD benefits are calculated at 2/3 of your average weekly wage, subject to certain limitations. R.S.Mo § 287.170. Overtime is factored into the amount of this payment. The usual statutory model for calculating TTD benefits, looks at the average of the last 13 weeks before the injury to determine the average weekly wage on which benefits are based. However, if this amount is greater than the maximum statutory rate, you’ll be capped at the max rate. See Appendix 1 for a chart listing the maximum rates. TTD benefits can last at most 400 weeks but usually much less. TTD benefits stop when you are not temporarily disabled or when you have reached your maximum medical improvement (and your disability is no longer permanent). R.S.Mo § 287.170. TTD benefits are paid weekly based on a formula set by Missouri Statute.

Temporary total disability payments will only begin after you are authorized to be off work for more than three regularly scheduled days off. If you take off less than three days you don’t get any TTD. If you are authorized off work on TTD for 14 or more days, then you can recoup your time for your three days of lost wages.

If an employer can provide the employee with labor that can be completed while on restrictions imposed by the treating doctor, then the employee must perform that newly assigned task until the restriction is lifted.

Employers sometimes play games with job assignments for their injured workers by reassigning them to tasks that do not comply with the restrictions. Even worse, workers are sometimes fired for exercising their rights under workers’ compensation laws. Both of these behaviors are illegal.

Sometimes, an employer will not pay TTD to an injured employee. Then a lawyer will file a Hardship request and try the issue of TTD (and other issues underlying the TTD denial). The lawyer has to show it’s a compensable injury and that the employee cannot work because of a disability. This can take time – usually at least 45 days before a judge can rule on the case. During this time, it may be difficult to meet financial responsibilities and care for your family. To get contested TTD benefits, we file a “Hardship” – which is a motion with the workers’ compensation division requesting denied benefits.

Frequent reasons an employer may stop paying TTD:

  1. Surgery for an occupational injury. If your employer pays for your medical intervention to remedy an on-the-job injury, they are no longer liable to pay you TTD while you recover from the procedure.
  2. Termination for a reason unrelated to your workers’ comp claim. It is illegal to fire you as retaliation for filing a workers’ comp claim, but if you are terminated for other reasons (i.e. tardiness, poor job performance) then your employer can stop paying TTD.
  3. Application for unemployment. If you are receiving TTD from your employer you should not apply for unemployment—that violates legal and ethical standards. Claiming unemployment benefits indicates you are able to work while receiving TTD support conveys you are injured and cannot perform your work duties.
  4. Contesting or denying the claim. The employer sometimes asserts the injury never happened, that the employee was injured somewhere else or before and no workplace injury caused disability. For example, going to and coming home from work is not compensable. This is called ingress or egress to work.

Partial Disability Benefits

When you’re initially injured on the job, you might not be able to work for a period of time. Or, you may be able to work, but only on light duty compensated at a rate lower than what you would have otherwise made if you weren’t injured. In such situations, you may be eligible for Temporary Partial Disability (TPD) benefits.

TPD payments are also determined by a statutorily set formula. R.S.Mo §287.180. TPD is ⅔ of the difference between your pre-injury AWW and your postinjury wage rate. However, just as with TTD, your TPD benefit cannot exceed the maximum weekly rate. Here is the TPD formula:

(Step 1) AWW – Post Injury Weekly Wage = Gross
(Step 2) Gross x .6667 = TPD

Permanent Disability Benefits

In the event that you become what is statutorily termed “permanently and totally disabled” as a result of a work-related injury or occupational disease, then you are entitled to receive your weekly compensation benefits for the duration of your expected lifetime. R.S.Mo § 287.180. These benefits are determined in the same way as the weekly benefits are determined. Your get your average weekly wage paid every week up to a total of 400 weeks. See appendix 1 for the current chart for temporary total disability payments.

In addition, you can receive what is called a “permanent partial disability” which is essentially a disability that will persist for the remainder of your life but also one that is not completely disabling. R.S.Mo § 287.180. If you have this type of disability, you can still work, just not as well as you could before your job-related injury or disease. If the disability remains even after you have been discharged from your medical care after having reached maximum medical improvement, then you can be compensated by your employer for that. This is calculated by taking your average weekly wage times your disability to determine your weekly payment amount. See appendix 1 for the current chart for permanent partial disability payments.

Computing Permanent Partial Disability Benefits

After you have healed as much as your body is able to heal from an injury (i.e., maximum medical improvement, or “MMI”), you may experience a degree of permanent disability with regards to that particular body part. In that case, you may be eligible for Permanent Partial Disability (PPD) benefits. Each portion of the body has been statutorily assigned a value expressed in “weekly” benefits. See Appendix 1 for the body part value chart. Disability ratings for body parts are generally determined by doctors. These ratings estimate the permanent decrease in usage the employee will experience as a result of the injury. The Rating is expressed as a percentage. To calculate the PPD benefits for a particular body part – or the body as a whole – multiply:

body part value (weeks) x AWW x disability rating (percentage) = PPD

For example, if your AWW (see definition in chapter 2) is $477.33, and you injured your leg below the knee (155 “weeks”), and your company’s doctor rated your permanent disability at ten percent (.10), then your PPD benefit would be calculated as follows:

155 (weeks) x $477.33 (AWW) x .10 (percentage) = $7,398.615

Second Injury Fund Benefits

You can receive an additional payment for any disability that you have that pre-existed your injury. R.S.Mo § 287.220. If you had a disability prior to being injured at work, even if the injury was not work-related, then you can get a payment from the Second Injury Fund in order to compensate for that disability. For instance, if you had a severe left-hand injury but then injure your right hand at work, your employer pays for the right-hand injury and the second injury fund pays for the cumulative effect of having both hands injured. Note that second injury fund claims do not pay that significantly and the fund has been without funds to pay claims in the past.

Medical Expenses

Missouri law requires that injured workers receive compensation for any medical expenses incurred as a result of workplace injury. R.S.Mo § 287.140. As explained above, employers generally have the right to choose the doctor that you will go see. This generally falls on the insurance company that has an established network or group of doctors it likes to use. These are typically medical providers that know where their business is coming from and will not excessively treat an employee or rate their disability high. Minimum and conservative treatment is usually to be expected.

However, if the employer refuses to provide medical then the employee can get medical on his own and request reimbursement in a Hardship trial or regular trial. R.S.Mo § 287.140. If the employer’s chosen medical provider does not do a good job and/or does not provide the medical care that is necessary then lawyers can request that be remedied. If that does not occur then a hardship application is appropriate.

Lump Sum Benefit Payment After Reaching Maximum Medical Improvement

The employer is only required to pay you for lost wages and medical expenses until you reach your maximum medical improvement. When the law says you will not get any better, the employer is no longer obligated to pay you any disability payments. At that point, you are entitled to a settlement that is intended to compensate you for any diminishment in your capacity to work for the remainder of your life as a result of sustaining workplace injury, i.e. your disability. This payment represents the last time the employer will compensate you for your injury and is a very important part of your claim. These are Permanent total or
Permanent partial awards (see above).

I have had many folks come to me without knowing about this right. They think if the employer paid their medical and some TTD they are done with the claim. Injured workers are often told this as well – i.e. that their claim is over. So, if you were injured on the job, got medical and thought your claim was done – you can still file a claim for a lump sum settlement as long as it is filed within the two-year (or three year if no injury report was filed) statute of limitations. R.S.Mo § 287.430.

Death Benefits

Death Benefits are intended to compensate a family after losing their loved one in a workplace injury. When death results from the injury in question, death constitutes the end of the disability and no further disability benefits are available, except for the death benefit. When an employee has sustained an injury and subsequently dies due to unrelated reasons, any compensation accrued, but unpaid at the time of the employee’s death is paid to his surviving heirs or beneficiaries. R.S.Mo § 287.240.

R.S.Mo § 287.240 deals with death benefits to be paid when the workplace injury causes the employee’s death. §287.240, (1) of Missouri worker’s compensation law provides that employers must pay reasonable burial expenses up to $5000 dollars and any outstanding treatment bills connected with the work comp injury. The employer’s obligation to pay reasonable funeral expenses, when a workplace injury results in death, exists irrespective of any money the employee leaves his dependents.

If an employee leaves qualifying dependents, as recognized under §287.240, the employer must pay death benefit payments to them as well. §287.240(2)(d) provides that for a compensable injury causing death that occurs after 1991, total dependents shall receive 2/3 of the AWW wage not exceed an amount equal to one hundred five percent of the state average weekly wage. §287.240(4) defines dependents as a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part. A spouse or child is presumptively a total dependent. This includes a dependent stepchild which the deceased employee claimed on his federal income tax return at the time of injury. Another blood relative may be found to be a total dependent “in fact” if the employee provided the sole means of support for the relative. §287.240(3) provides that a blood relative may also be a partial dependent if they were partially dependent on the decedent’s wages for support.

Total dependents receive all benefits to the exclusion of partial dependents. If there are no total dependents partial dependents can receive a portion of the total death benefit in proportion to the amount of the decedent’s AWW they relied upon. Gantner v. Fayette Brick & Tile Co., 236 S.W.2d 415 (Mo. App. W.D. 1951).For example if the decedent made $150 a week and sent $50 home to his father every week. The father could get 1/3 of the total death benefit. Therefore, it is still possible for a partial dependent to receive %100 of the death benefit if they received %100 of the decedent’s earnings. Faccone v. Busy Bee Candy Co. 216 S.W.2d 112 (Mo. App. E. D. 1948). Finally, if there are multiple partial dependents they would divide up the death benefit based on the proportion they received from the decedent’s AWW.

Normally, in a claim for death benefit claims, the Division of Workers compensation will set a hearing before an administrative law judge to determine dependency, and to potentially award a death benefit. The Division, at its discretion, may order compensation to children to be paid to a parent or guardian for their support and education. Also under “the Line of Duty Compensation Act” first responders who die in the line of duty may be eligible for additional benefits. § 287.243.

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