We previously reported on June 5, 2017 that employers should expect to see further efforts to reform workers’ compensation laws in Missouri. On August 28, 2017, Missouri will see a definition for “maximum medical improvement” (MMI) and new law for positive drug tests in workers’ compensation claims. The State’s legislature recently passed a new law (originating as Senate Bill 66) that specifically states how MMI is to be determined by the administrative law judges at the Workers’ Compensation Division in Missouri and adds a defense for claims where employees test positive for illegal drugs.
As many of you know, “maximum medical improvement” is that crucial point in a workers’ compensation claim when an injured employee is deemed to have reached a plateau in the treatment of his/her work injury and the point when interim benefits generally cease and a determination of permanent partial disability can be made. This is the point when we will typically obtain a rating from the treating physician and seek to bring the claim to closure. As you would expect, this often comes down to “a battle of medical experts” as the employer secures an MMI opinion from a physician and the employee, seeking to obtain additional treatment if not simply to extend the period of temporary disability, obtains an opinion that he/she has not yet reached MMI. The administrative law judge is then left to make a determination on which medical provider to believe.
Under the new law, the legislature has chosen to specifically define this elusive turning point in a claim as follows: …”maximum medical improvement” shall mean the point at which the injured employee’s medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty. The Act will also now state that TTD shall be paid throughout the rehabilitation process until maximum medical improvement is reached or until the employee returns to work. As you can see, however, this is simply a definition and does not conclusively state “as determined by the treating physician within a reasonable degree of medical certainty.” This means that simply having this defined in the Act will not eliminate the age-old battle of the medical experts. We do not anticipate this will impact much this factual dispute in future claims.
SB 66 also creates a rebuttable presumption defense to a workers’ compensation claim when an employee has a “positive test result for a nonprescribed controlled drug or … metabolite” so long as the following occurs:
- the test must be done within 24 hours of the accident;
- notice of the test result is given to the employee within 14 days of the insurer, TPA or employer receiving the test results;
- the employee is given the opportunity to have a second test performed on the initial sample; AND
- initial or any subsequent testing that forms the basis of the presumption was confirmed by mass spectrometry using generally accepted medical or forensic testing procedures.
When these things occur with a positive drug test, the employer shall have a defense in the form of “a rebuttable presumption, which may be rebutted by a preponderance of evidence, that the “tested nonprescribed controlled drug was in the employee’s system at the time of the accident or injury and that the injury was sustained in conjunction with the use of the tested nonprescribed controlled substance.” In our opinion, this is a good start, but not a well-worded amendment to the Act. The legislature failed to use the “prevailing factor” standard or even the word “caused” in setting out the correlation between the presence of the illegal substance and the work accident or injury, instead simply stating “the injury was sustained in conjunction with the use” of the substance. This falls short of setting that the injury was caused by or the prevailing factor in the cause of the accident or injury. While it does give us a start to a defense, we believe a causation opinion will still be needed tying the presence of the illegal substance to the work accident or injury, or this defense will be subject to a fairly easy rebuttal.
The amendment to the Act will also add a provision that states an employee who voluntarily resigns his/her position with the employer at a time he/she was under medically prescribed restrictions that the employer was able to accommodate, but for that resignation, then the employer is not liable for temporary total and temporary partial disability benefits to that employee for that period during which the employee has those restrictions in place or any other periods of restrictions thereafter that the employer remained able to accommodate.
The bill makes several other changes to the Act having less impact on our defense handling of claims in Missouri, including a provision for allowing S corporation shareholders to exclude themselves from coverage, a provision allowing claimant’s 12 months to obtain a PPI rating in response to an employer-obtained rating, explicitly restricting employers from discriminating or discharging employees asserting rights under the Act, and gender-neutralization of the Act (i.e. adding “or her” and the like to the general terms of the Act). While all of these changes are positive changes for employers, we believe the overall impact in costs and defense to claims will be minimal and hope to see further employer-friendly reform efforts in the future.
Thanks to Partner G. Steven Murdock for the summary of these new developments. Steve works out of the Chicago and St. Louis offices of Inman and Fitzgibbons and chairs the Firm’s Legislative Watch Committee. .