Chapter One What is Workers’ Compensation?
What is Workers’ Compensation?
Workers’ Compensation is a state law that governs on the job injuries. Every state has it and in Missouri it can be found in Missouri Revised Statutes Chapter 287. Mo. Rev. Stat. § 287 (2016). It sets out the rights and responsibilities of the worker, the employer and the employer’s insurance company. “The purpose is to provide a simple and nontechnical method of compensation for injuries sustained by employees through accident arising out of and in the course of employment and to place the burden of such losses on industry.” Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618 (Mo. 1977).
It is the only way for an employee injured on the job to recover medical care, payments for medical care, lost wages, and disability payments both during the recovery time for an injury and into the future. It’s the employee’s exclusive remedy. R.S.Mo. § 287.120.2. Except that other people or entities may be responsible for the injury – like another contractor at a job site or a car or truck driver that crashes into someone while they are working.
The Good and the Bad
This exclusive remedy is both good and bad. It is good because the employee does not have to prove that the employer was negligent or did anything wrong to cause the injury. If an on the job injury occurs, the employer is automatically liable. It is also good because there are a lot of protections and laws which ensure: that employees get benefits when they are injured; employees are protected from many games that employers can play to deny benefits; employers cannot decrease benefits; and employers cannot make an employee go back to work when they are not ready to. It guarantees a recovery to the employee, guarantees medical care and treatment, and guarantees payment for whatever disability the employee sustains.
However, it is bad because it caps the recovery for employees to a relatively low amount. We will discuss more about how this is calculated in the book, but employees can only get medical benefits, get paid temporary partial or temporary total disability, and at the end of the case after they have reached maximum medical improvement they can get permanent partial or permanent total disability. If a person dies on the job, completely loses their life, their surviving family is only entitled to 2/3 of their weekly salary – nothing for that loss other than wages. R.S.Mo § 287.240.
The other bad part about this is that even though there are protections for employees, employers really know how to work the system better than employees. Employers typically have insurance companies with savvy claims departments that really know how to work the system to minimize payouts. The employer has a lot of power in the system.
The Workers’ Compensation System
Regardless of the good and the bad, this is the system we have. If a person is injured on the job and makes a workers’ compensation claim, they are not filing a lawsuit. Rather, they are filing an administrative claim with the Division of Workers’ Compensation in the geographical area where they live. R.S.Mo § 287.140. The claim is administered in that administrative process through prehearings, mediations, and sometimes trials. Administrative law judges are appointed by the Governor of the State of Missouri to make the ultimate decisions in these cases. R.S.Mo § 287.610. If a decision is made by an administrative law judge, it can only be appealed to the Labor and Industrial Commission, and then in the Missouri Court of Appeals. R.S.Mo §287.495.1.
Even if an employee wins the workers’ compensation claim, the employer and its insurance company don’t have to pay. Rather, to enforce payment, an employee has to go to certify the workers’ compensation order in a Circuit Court of law and obtain a garnishment order by the Circuit Court to mandate payments from an employer. Usually, these cases do not go that far and they are often settled in the pre-hearing and mediation stages. However, we have tried numerous workers’ compensation claims, filed and tried hardships, and have had to enforce workers’ compensation judgments we have obtained in Circuit Courts as well.
If an employee is injured on a job, workers’ compensation law mandates certain benefits go to the employee. This is regardless of whether or not the employee has filed a claim. The employee has to have his/her medical paid, has to have 2/3 of their weekly wages paid while they are off work due to the injury (if more than 3 days), and has to get medical treatment until maximum medical improvement has been reached. R.S.Mo § 287.140. These are mandated regardless whether there is a claim filed and an attorney is involved. However, employers often fall short on these duties and refuse to pay obvious benefits.
If an employee files a claim for compensation and secures legal representation, the lawyer works to ensure these benefits are provided. The lawyer also gets to work against and prevent many of the tricks the employers and their insurance companies play, and the lawyer ensures that a lump sum disability payment is paid to the employee. Lawyers typically charge 25% of only the lump sum disability payment at the end of the case to take a workers’ compensation claim in Missouri. If an employer denies any benefits a lawyer can come in and ensure that medical care is provided, temporary total disability is paid, and retaliation does not occur. All attorneys’ fees and expenses have to be
approved by the Workers’ Compensation Division. R.S.Mo § 287.260.
The Challenges of a Workers’ Compensation Claim
The challenge in a workers’ compensation claim can come if the employer’s insurance company or the employer take an aggressive stance opposing the claim or benefits under the claim. An employer may deny the injury occurred. The insurance company may send you to a doctor that it controls or that you don’t like. The employer and its insurance company may to try to send you back to work before you are ready. They may try to send you back to work to avoid temporary total disability payment. They may say you are done treating medically before you really are. They may say that you are not disabled when you really are, and they may say you can go back to work in your old job when you really cannot. Employers (and their insurers) do this every day in Missouri, and good lawyers fight this to prevent this from happening. Employees also fight unjust treatment by instinct or in pursuing their own claim.
There is also a difference between the employer and the insurance company. A worker may have great long-term employment with a good employer who really likes them. However, that employer is not making the day to day decisions in the workers’ compensation claim. Rather, the employer buys an insurance policy and that insurance company has claims adjusters and nurse case managers who administer their workers’ compensation program.
These folks may take hard line aggressive actions towards the employee, and the employer may not really want them to. This happens very often and we encounter it many times, including now. Clients often cannot understand why they are being treated so badly when they get along so well with their employer, only to find that it is an insurance adjustor, nurse case manager, or a claims handler who is doing the bad conduct. The employer can be elicited to assist against unfair insurer action.
Employers get to control the medical care and tell you what doctors you have to see in a worker’s compensation claim. Those doctors are highly incentivized to get you back to work quickly, rate your disability very low, and tilt judgment calls towards the employer and away from serious injury or medical care that would cost more money.
Employers are also highly incentivized to dissuade their employees from making worker’s compensation claims. So, they may tell their employee to put their injury claims on their health insurance, rather than through worker’s compensation, deny that a work comp injury occurred, or deny the seriousness of an on the job injury. We regularly encounter this and it sometimes works. The challenge is two months later when the employee figures out they are very seriously injured, but the employer denies that a work place injury ever even occurred because there is no injury report. If you are injured at work the better practice is to claim it under work comp.
Missouri law mandates that if an on the job injury occurs the employer file an injury report with the Division of Workers’ Compensation of the State of Missouri. R.S.Mo § 287.380.1. Then that injury is assigned a claim number. If they get an employee to say that their back was not hurt lifting bricks, but rather was hurt at home the weekend before, employers get to avoid work comp liability. You would assume if the injury is more serious later the employer would step up – but that does not always occur.
Retaliation and Workers’ Rights
There are many good employers in Missouri, but there are some bad ones.
Another law regarding worker’s compensation is that an employer cannot
retaliate against an employee for making a worker’s compensation claim. R.S.Mo§ 287.780; See also Templemire v. W & M Welding, Inc., 433 S.W.3d 371 (Mo.2014). However, some employers do. Some employers terminate the employment of the employee who is injured on the job either right when they are injured or later on. Sometimes they make a protectoral false reason to do so, such as bad performance and evaluations, disability, or claim restrictions are too onerous.
We have represented numerous individuals in claims like this and have obtained great results. In fact, we get many complaints by employees worried that if they make a worker’s compensation claim their employer will retaliate against them. These are real concerns that workers need to attend to. But if they are working for an employer who would engage in that type of conduct they are better off getting other employment.
In addition, workers should remember that exercising their rights under the system actually helps the employer—when other workers see the employer taking care of them, they will have more trust for the employer, work harder and create a better work environment. You should never fear exercising your rights under the workers’ compensation system. Get a tough lawyer to help protect you and your family if that is needed.
Every full time or part time employee in the service of any Missouri employer with at least five employees is protected by Missouri Workers’ Compensation coverage. R.S.Mo § 287.030. If you have been injured and you are not sure if you are protected under the statute, it is probably a good idea to contact an attorney, because that determination can have huge consequences in your case. If you are not deemed to be an employee by the law, you can sue the company that injured you in civil court. This has a lot of consequences because civil damages can be much higher than those in workers’ compensation. However, it can take longer to receive them.