HOUSE BILL NO. 1709 103RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE VEIT.
3921H.02I JOSEPH ENGLER, Chief Clerk
AN ACT To repeal sections 287.200, 287.470, 287.610, 287.615, 287.812, 287.835, and 621.045, RSMo, and to enact in lieu thereof seven new sections relating to workers' compensation.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 287.200, 287.470, 287.610, 287.615, 287.812, 287.835, and 2 621.045, RSMo, are repealed and seven new sections enacted in lieu thereof, to be known as 3 sections 287.200, 287.470, 287.610, 287.615, 287.812, 287.835, and 621.045, to read as 4 follows: 287.200. 1. Compensation for permanent total disability shall be paid during the 2 continuance of such disability from the date of maximum medical improvement for the 3 lifetime of the employee at the weekly rate of compensation in effect under this subsection on 4 the date of the injury for which compensation is being made. The word "employee" as used 5 in this section shall not include the injured worker's dependents, estate, or other persons to 6 whom compensation may be payable as provided in subsection 1 of section 287.020. The 7 amount of such compensation shall be computed as follows: 8 (1) For all injuries occurring on or after September 28, 1983, but before September 9 28, 1986, the weekly compensation shall be an amount equal to sixty-six and two-thirds 10 percent of the injured employee's average weekly earnings during the year immediately 11 preceding the injury, as of the date of the injury; provided that the weekly compensation paid 12 under this subdivision shall not exceed an amount equal to seventy percent of the state 13 average weekly wage, as such wage is determined by the division of employment security, as 14 of the July first immediately preceding the date of injury;
EXPLANATION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted from the law. Matter in bold-face type in the above bill is proposed language. HB 1709 2
15 (2) For all injuries occurring on or after September 28, 1986, but before August 28, 16 1990, the weekly compensation shall be an amount equal to sixty-six and two-thirds percent 17 of the injured employee's average weekly earnings during the year immediately preceding the 18 injury, as of the date of the injury; provided that the weekly compensation paid under this 19 subdivision shall not exceed an amount equal to seventy-five percent of the state average 20 weekly wage, as such wage is determined by the division of employment security, as of the 21 July first immediately preceding the date of injury; 22 (3) For all injuries occurring on or after August 28, 1990, but before August 28, 1991, 23 the weekly compensation shall be an amount equal to sixty-six and two-thirds percent of the 24 injured employee's average weekly earnings as of the date of the injury; provided that the 25 weekly compensation paid under this subdivision shall not exceed an amount equal to one 26 hundred percent of the state average weekly wage; 27 (4) For all injuries occurring on or after August 28, 1991, the weekly compensation 28 shall be an amount equal to sixty-six and two-thirds percent of the injured employee's average 29 weekly earnings as of the date of the injury; provided that the weekly compensation paid 30 under this subdivision shall not exceed an amount equal to one hundred five percent of the 31 state average weekly wage; 32 (5) For all injuries occurring on or after September 28, 1981, the weekly 33 compensation shall in no event be less than forty dollars per week. 34 2. Permanent total disability benefits that have accrued through the date of the injured 35 employee's death are the only permanent total disability benefits that are to be paid in 36 accordance with section 287.230. The right to unaccrued compensation for permanent total 37 disability of an injured employee terminates on the date of the injured employee's death in 38 accordance with section 287.230, and does not survive to the injured employee's dependents, 39 estate, or other persons to whom compensation might otherwise be payable. 40 3. (1) All claims for permanent total disability shall be determined in accordance 41 with the facts. [When an injured employee receives an award for permanent total disability 42 but by the use of glasses, prosthetic appliances, or physical rehabilitation the employee is 43 restored to his or her regular work or its equivalent, the life payment mentioned in subsection 44 1 of this section shall be suspended during the time in which the employee is restored to his or 45 her regular work or its equivalent.] The employer and the division shall keep the file open in 46 the case during the lifetime of any injured employee who has received an award of permanent 47 total disability. 48 (2) When an injured employee receives an award for permanent total disability 49 but by the use of glasses, prosthetic appliances, or physical rehabilitation the employee 50 is restored to his or her regular work or its equivalent, the life payment mentioned in 51 subsection 1 of this section shall be suspended during the time in which the employee is HB 1709 3
52 restored to his or her regular work or its equivalent. In any case where the life payment is 53 suspended under this [subsection] subdivision, the commission may at reasonable times 54 review the case and either the employee or the employer may request an informal conference 55 with the commission relative to the resumption of the employee's weekly life payment in the 56 case. 57 (3) Upon the filing of a written agreement signed by the claimant and his or her 58 attorney, the commission shall change the name, information, or fee arrangement of the 59 attorney or law firm associated with the claimant's case. 60 4. For all claims filed on or after January 1, 2014, for occupational diseases due to 61 toxic exposure which result in a permanent total disability or death, benefits in this chapter 62 shall be provided as follows: 63 (1) Notwithstanding any provision of law to the contrary, such amount as due to the 64 employee during said employee's life as provided for under this chapter for an award of 65 permanent total disability and death, except such amount shall only be paid when benefits 66 under subdivisions (2) and (3) of this subsection have been exhausted; 67 (2) For occupational diseases due to toxic exposure, but not including mesothelioma, 68 an amount equal to two hundred percent of the state's average weekly wage as of the date of 69 diagnosis for one hundred weeks paid by the employer; and 70 (3) In cases where occupational diseases due to toxic exposure are diagnosed to be 71 mesothelioma: 72 (a) For employers that have elected to accept mesothelioma liability under this 73 subsection, an additional amount of three hundred percent of the state's average weekly wage 74 for two hundred twelve weeks shall be paid by the employer or group of employers such 75 employer is a member of. Employers that elect to accept mesothelioma liability under this 76 subsection may do so by either insuring their liability, by qualifying as a self-insurer, or by 77 becoming a member of a group insurance pool. A group of employers may enter into an 78 agreement to pool their liabilities under this subsection. If such group is joined, individual 79 members shall not be required to qualify as individual self-insurers. Such group shall comply 80 with section 287.223. In order for an employer to make such an election, the employer shall 81 provide the department with notice of such an election in a manner established by the 82 department. The provisions of this paragraph shall expire on December 31, 2038; or 83 (b) For employers who reject mesothelioma under this subsection, then the exclusive 84 remedy provisions under section 287.120 shall not apply to such liability. The provisions of 85 this paragraph shall expire on December 31, 2038; and 86 (4) The provisions of subdivision (2) and paragraph (a) of subdivision (3) of this 87 subsection shall not be subject to suspension of benefits as provided in subsection 3 of this 88 section; and HB 1709 4
89 (5) Notwithstanding any other provision of this chapter to the contrary, should the 90 employee die before the additional benefits provided for in subdivision (2) and paragraph (a) 91 of subdivision (3) of this subsection are paid, the additional benefits are payable to the 92 employee's spouse or children, natural or adopted, legitimate or illegitimate, in addition to 93 benefits provided under section 287.240. If there is no surviving spouse or children and the 94 employee has received less than the additional benefits provided for in subdivision (2) and 95 paragraph (a) of subdivision (3) of this subsection the remainder of such additional benefits 96 shall be paid as a single payment to the estate of the employee; 97 (6) The provisions of subdivision (1) of this subsection shall not be construed to 98 affect the employee's ability to obtain medical treatment at the employer's expense or any 99 other benefits otherwise available under this chapter. 100 5. Any employee who obtains benefits under subdivision (2) of subsection 4 of this 101 section for acquiring asbestosis who later obtains an award for mesothelioma shall not receive 102 more benefits than such employee would receive having only obtained benefits for 103 mesothelioma under this section. 287.470. 1. Upon its own motion or upon the application of any party in interest on 2 the ground of a change in condition, the commission may at any time upon a rehearing after 3 due notice to the parties interested review any award and on such review may make an award 4 ending, diminishing or increasing the compensation previously awarded, subject to the 5 maximum or minimum provided in this chapter, and shall immediately send to the parties and 6 the employer's insurer a copy of the award. No such review shall affect such award as regards 7 any moneys paid. 8 2. Upon the filing of a written agreement signed by the claimant and his or her 9 attorney, the commission shall change the name, information, or fee arrangement of the 10 attorney or law firm associated with the claimant's case. 287.610. 1. After August 28, 2005, the division may appoint additional 2 administrative law judges for a maximum of forty authorized administrative law judges. 3 Appropriations shall be based upon necessity, measured by the requirements and needs of 4 each division office. Administrative law judges shall be duly licensed lawyers under the laws 5 of this state. Administrative law judges shall not practice law or do law business and shall 6 devote their whole time to the duties of their office. The director of the division of workers' 7 compensation shall publish and maintain on the division's website the appointment dates or 8 initial dates of service for all administrative law judges. 9 2. [The thirteen administrative law judges with the most years of service shall be 10 subject to a retention vote on August 28, 2008. The next thirteen administrative law judges 11 with the most years of service in descending order shall be subject to a retention vote on 12 August 28, 2012. Administrative law judges appointed and not previously referenced in this HB 1709 5
13 subsection shall be subject to a retention vote on August 28, 2016. Subsequent retention 14 votes shall be held every twelve years. Any administrative law judge who has received two 15 or more votes of no confidence under performance audits by the committee shall not receive a 16 vote of retention. 17 3. The administrative law judge review committee members shall not have any direct 18 or indirect employment or financial connection with a workers' compensation insurance 19 company, claims adjustment company, health care provider nor be a practicing workers' 20 compensation attorney. All members of the committee shall have a working knowledge of 21 workers' compensation. 22 4. The committee shall within thirty days of completing each performance audit make 23 a recommendation of confidence or no confidence for each administrative law judge. 24 5.] The administrative law judges appointed by the division shall only have 25 jurisdiction to hear and determine claims upon original hearing and shall have no jurisdiction 26 upon any review hearing, either in the way of an appeal from an original hearing or by way of 27 reopening any prior award, except to correct a clerical error in an award or settlement if the 28 correction is made by the administrative law judge within twenty days of the original award 29 or settlement. The labor and industrial relations commission may remand any decision of an 30 administrative law judge for a more complete finding of facts. The commission may also 31 correct a clerical error in awards or settlements within thirty days of its final award. With 32 respect to original hearings, the administrative law judges shall have such jurisdiction and 33 powers as are vested in the division of workers' compensation under other sections of this 34 chapter, and wherever in this chapter the word "commission", "commissioners" or "division" 35 is used in respect to any original hearing, those terms shall mean the administrative law 36 judges appointed under this section. When a hearing is necessary upon any claim, the 37 division shall assign an administrative law judge to such hearing. Any administrative law 38 judge shall have power to approve contracts of settlement, as provided by section 287.390, 39 between the parties to any compensation claim or dispute under this chapter pending before 40 the division of workers' compensation. Any award by an administrative law judge upon an 41 original hearing shall have the same force and effect, shall be enforceable in the same manner 42 as provided elsewhere in this chapter for awards by the labor and industrial relations 43 commission, and shall be subject to review as provided by section 287.480. 44 [6.] 3. Any of the administrative law judges employed pursuant to this section may be 45 assigned on a temporary basis to the branch offices as necessary in order to ensure the proper 46 administration of this chapter. 47 [7.] 4. All administrative law judges shall be required to participate in, on a 48 continuing basis, specific training that shall pertain to those elements of knowledge and 49 procedure necessary for the efficient and competent performance of the administrative law HB 1709 6
50 judges' required duties and responsibilities. Such training requirements shall be established 51 by the division subject to appropriations and shall include training in medical determinations 52 and records, mediation and legal issues pertaining to workers' compensation adjudication. 53 Such training may be credited toward any continuing legal education requirements. 54 [8. (1) The administrative law judge review committee shall conduct a performance 55 audit of all administrative law judges every two years. The audit results, stating the 56 committee's recommendation of confidence or no confidence of each administrative law 57 judge shall be sent to the governor no later than the first week of each legislative session 58 immediately following such audit. Any administrative law judge who has received three or 59 more votes of no confidence under two successive performance audits by the committee may 60 have their appointment immediately withdrawn. 61 (2) The review committee shall consist of one member appointed by the president pro 62 tem of the senate, one member appointed by the minority leader of the senate, one member 63 appointed by the speaker of the house of representatives, and one member appointed by the 64 minority leader of the house of representatives. The governor shall appoint to the committee 65 one member selected from the commission on retirement, removal, and discipline of judges. 66 This member shall act as a member ex officio and shall not have a vote in the committee. The 67 committee shall annually elect a chairperson from its members for a term of one year. The 68 term of service for all members shall be two years. The review committee members shall all 69 serve without compensation. Necessary expenses for review committee members and all 70 necessary support services to the review committee shall be provided by the division.] 71 5. The director of the division may file a complaint with the administrative 72 hearing commission, as provided under chapter 621, seeking to remove an 73 administrative law judge from office if the administrative law judge: 74 (1) Has committed any felony, as defined in subdivision (26) of section 556.061, 75 or misdemeanor, as defined in subdivision (33) of section 556.061, regardless of whether 76 a criminal charge has been filed; 77 (2) Has been convicted or has entered a plea of guilty or nolo contendere in a 78 criminal prosecution under the laws of any state, the United States, or of any country, 79 regardless of whether sentence is imposed; 80 (3) Is guilty of misconduct, habitual intoxication, willful neglect of duty, 81 corruption in office, or incompetency; or 82 (4) Has committed any act that involves moral turpitude or oppression in office. 83 6. (1) Prior to the filing of the complaint, the director shall notify the 84 administrative law judge in writing of the reasons for the complaint. 85 (2) If the reason for the complaint is willful neglect of duty or incompetency, the 86 administrative law judge shall have ninety days from the date the complaint was made HB 1709 7
87 to remedy the complained of behavior. If such complained of behavior has not been 88 remedied after ninety days, the director may file the complaint with the administrative 89 hearing commission as provided by chapter 621. 90 7. After the director has filed a complaint with the administrative hearing 91 commission, the proceedings shall be conducted in accordance with the provisions of 92 chapter 621. Upon a finding by the administrative hearing commission that: 93 (1) The grounds, provided in subsection 5 of this section, for disciplinary action 94 are met, the director may, singly or in combination, issue the following disciplinary 95 actions against the administrative law judge: removal from office, suspension from the 96 performance of duties for a period of time, or other discipline as determined by the 97 director. The