Bill Text: MO HB2104 | 2012 | Regular Session | Introduced
Bill Title: Changes the laws regarding workers' compensation and the Second Injury Fund
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-04-12 - Referred: Workforce Development and Workplace Safety (H) [HB2104 Detail]
Download: Missouri-2012-HB2104-Introduced.html
SECOND REGULAR SESSION
96TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVE ELMER.
5126L.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 287.030, 287.128, 287.150, 287.220, 287.430, and 287.500, and to enact in lieu thereof six new sections relating to the second injury fund, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 287.030, 287.128, 287.150, 287.220, 287.430, and 287.500, RSMo, are repealed and six new sections enacted in lieu thereof, to be known as sections 287.030, 287.128, 287.150, 287.220, 287.430, and 287.500, to read as follows:
287.030. 1. The word "employer" as used in this chapter shall be construed to mean:
(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay;
(2) The state, county, municipal corporation, township, school or road, drainage, swamp and levee districts, or school boards, board of education, regents, curators, managers or control commission, board or any other political subdivision, corporation, or quasi-corporation, or cities under special charter, or under the commission form of government;
(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter unless election is made to become subject to the provisions of this chapter as provided in subsection 2 of section 287.090, except that construction industry employers [who erect, demolish, alter or repair improvements] , defined as entities that demolish, repair, renovate, or newly construct any building or structure, shall be deemed an employer for the purposes of this chapter if they have one or more employees. Entities providing maintenance or repair, including but not limited to plumbing and electrical work on existing buildings or structures shall not be deemed employers under this chapter unless they employ five or more employees. An employee who is a member of the employer's family within the third degree of affinity or consanguinity shall be counted in determining the total number of employees of such employer.
2. Any reference to the employer shall also include [his or her] the employer's insurer or group self-insurer.
287.128. 1. It shall be unlawful for any person to knowingly present or cause to be presented any false or fraudulent claim for the payment of benefits pursuant to a workers' compensation claim.
2. It shall be unlawful for any insurance company or self-insurer in this state to knowingly and intentionally refuse to comply with known and legally indisputable compensation obligations with intent to defraud.
3. It shall be unlawful for any person to:
(1) Knowingly present multiple claims for the same occurrence with intent to defraud;
(2) Knowingly assist, abet, solicit or conspire with:
(a) Any person who knowingly presents any false or fraudulent claim for the payment of benefits;
(b) Any person who knowingly presents multiple claims for the same occurrence with an intent to defraud; or
(c) Any person who purposefully prepares, makes or subscribes to any writing with the intent to present or use the same, or to allow it to be presented in support of any such claim;
(3) Knowingly make or cause to be made any false or fraudulent claim for payment of a health care benefit;
(4) Knowingly submit a claim for a health care benefit which was not used by, or on behalf of, the claimant;
(5) Knowingly present multiple claims for payment of the same health care benefit with an intent to defraud;
(6) Knowingly make or cause to be made any false or fraudulent material statement or material representation for the purpose of obtaining or denying any benefit;
(7) Knowingly make or cause to be made any false or fraudulent statements with regard to entitlement to benefits with the intent to discourage an injured worker from making a legitimate claim;
(8) Knowingly make or cause to be made a false or fraudulent material statement to an investigator of the division in the course of the investigation of fraud or noncompliance. For the purposes of subdivisions (6), (7), and (8) of this subsection, the term "statement" includes any notice, proof of injury, bill for services, payment for services, hospital or doctor records, X-ray or test results.
4. Any person violating any of the provisions of subsection 1 or 2 of this section shall be guilty of a class D felony. In addition, the person shall be liable to the state of Missouri for a fine up to ten thousand dollars or double the value of the fraud whichever is greater. Any person violating any of the provisions of subsection 3 of this section shall be guilty of a class A misdemeanor and the person shall be liable to the state of Missouri for a fine up to ten thousand dollars. Any person who has previously pled guilty to or has been found guilty of violating any of the provisions of subsection 1, 2 or 3 of this section and who subsequently violates any of the provisions of subsection 1, 2 or 3 of this section shall be guilty of a class C felony.
5. It shall be unlawful for any person, company, or other entity to prepare or provide an invalid certificate of insurance as proof of workers' compensation insurance. Any person violating any of the provisions of this subsection shall be guilty of a class D felony and, in addition, shall be liable to the state of Missouri for a fine up to ten thousand dollars or double the value of the fraud, whichever is greater.
6. Any person who knowingly misrepresents any fact in order to obtain workers' compensation insurance at less than the proper rate for that insurance shall be guilty of a class A misdemeanor. Any person who has previously pled guilty to or has been found guilty of violating any of the provisions of this section and who subsequently violates any of the provisions of this section shall be guilty of a class D felony.
7. (1) Any employer who knowingly fails to insure [his] the employer's liability pursuant to this chapter shall be guilty of a class A misdemeanor and, in addition, shall be liable to the state of Missouri for a penalty in an amount up to three times the annual premium the employer would have paid had such employer been insured or up to fifty thousand dollars, whichever amount is greater. Any person who has previously pled guilty to or has been found guilty of violating any of the provisions of this section and who subsequently violates any of the provisions of this section shall be guilty of a class D felony.
(2) Only upon the first offense, an employer who discharges the employee's and the second injury fund's liability for all reasonably and necessarily incurred medical expenses arising from the uninsured work injury, provides compensation, if any is owed, to the employee for either temporary total disability benefits or permanency and pays a fine not to exceed five hundred dollars, shall not be subject to further penalty for the first offense.
8. Any person may file a complaint alleging fraud or noncompliance with this chapter with a legal advisor in the division of workers' compensation. The legal advisor shall refer the complaint to the fraud and noncompliance unit within the division. The unit shall investigate all complaints and present any finding of fraud or noncompliance to the director, who may refer the file to the attorney general. The attorney general may prosecute any fraud or noncompliance associated with this chapter. All costs incurred by the attorney general associated with any investigation and prosecution pursuant to this subsection shall be paid out of the workers' compensation fund. Any fines or penalties levied and received as a result of any prosecution under this section shall be paid to the workers' compensation fund. Any restitution ordered as a part of the judgment shall be paid to the person or persons who were defrauded.
9. Any and all reports, records, tapes, photographs, and similar materials or documentation submitted by any person, including the department of insurance, financial institutions and professional registration, to the fraud and noncompliance unit or otherwise obtained by the unit pursuant to this section, used to conduct an investigation for any violation under this chapter, shall be considered confidential and not subject to the requirements of chapter 610. In any case where a violation of subsection 7 of this section is investigated and unsubstantiated, any and all reports, records, tapes, photographs, and similar materials or documentation submitted to the fraud and noncompliance unit shall be submitted to the attorney general for use in defending the second injury fund against claims filed under subsection 3 of section 287.220. Nothing in this subsection prohibits the fraud and noncompliance unit from releasing records used to conduct an investigation to the local, state, or federal law enforcement authority or federal or state agency conducting an investigation, upon written request.
10. There is hereby established in the division of workers' compensation a fraud and noncompliance administrative unit responsible for investigating incidences of fraud and failure to comply with the provisions of this chapter.
11. Any prosecution for a violation of the provisions of this section or section 287.129 shall be commenced within three years after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is not a party to the offense. As used in this subsection, the term "person who has a legal duty to represent an aggrieved party" shall mean the attorney general or the prosecuting attorney having jurisdiction to prosecute the action.
12. By January 1, 2006, the attorney general shall forward to the division and the members of the general assembly the first edition of an annual report of the costs of prosecuting fraud and noncompliance under this chapter. The report shall include the number of cases filed with the attorney general by county by the fraud and noncompliance unit, the number of cases prosecuted by county by the attorney general, fines and penalties levied and received, and all incidental costs.
287.150. 1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or [his] the employee's dependents would have been entitled to recover. Any recovery by the employer against such third person shall be apportioned between the employer and employee or [his] the employee's dependents using the provisions of subsections 2 and 3 of this section.
2. When a third person is liable for the death of an employee and compensation is paid or payable under this chapter, and recovery is had by a dependent under this chapter either by judgment or settlement for the wrongful death of the employee, the employer shall have a subrogation lien on any recovery and shall receive or have credit for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future installments shall be computed using the provisions of subsection 3 of this section relating to comparative fault of the employee.
3. Whenever recovery against the third person is effected by the employee or [his] the employee's dependents, the employer shall pay from [his] the employer's share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or [his] the employee's dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provision, the balance of the recovery may be divided between the employer and the employee or [his] the employee's dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or [his] the employee's dependents shall be paid forthwith and any part of the recovery paid to the employee or [his] the employee's dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:
(1) The total amount paid to the employee or [his] the employee's dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or
(2) A percentage of the amount paid to the employee or [his] the employee's dependents equal to the percentage of fault assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.
4. In any case in which an injured employee has been paid benefits from the second injury fund [as provided in subsection 3 of section 287.141,] and recovery is had against the third party liable to the employee for the injury, the second injury fund shall be subrogated to the rights of the employee against said third party to the extent of the payments made to [him] the employee from such fund, subject to provisions of subsections 2 and 3 of this section.
5. No construction design professional who is retained to perform professional services on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project shall be liable for any injury resulting from the employer's failure to comply with safety standards on a construction project for which compensation is recoverable under the workers' compensation law, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications.
6. Any provision in any contract or subcontract, where one party is an employer in the construction group of code classifications, which purports to waive subrogation rights provided under this section in anticipation of a future injury or death is hereby declared against public policy and void. Each contract of insurance for workers' compensation shall require the insurer to diligently pursue all subrogation rights of the employer and shall require the employer to fully cooperate with the insurer in pursuing such recoveries, except that the employer may enter into compromise agreements with an insurer in lieu of the insurer pursuing subrogation against another party. The amount of any subrogation recovery by an insurer shall be credited against the amount of the actual paid losses in the determination of such employer's experience modification factor within forty-five days of the collection of such amount.
287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last compensable injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if [a major extremity injury only] to an extremity scheduled at the one hundred fifty-fifth week level or more, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if [a major extremity injury only] to an extremity scheduled at the one hundred fifty-fifth week level or more, equals a minimum of fifteen percent permanent partial disability, [caused by] and the combined [disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities] disability is substantially greater than the simple sum of the disabilities, the employer at the time of the last compensable injury shall be liable only for the degree or percentage of disability which would have resulted from the last compensable injury had there been no preexisting disability. After the compensation liability of the employer for the last compensable injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to [all injuries or conditions] each individual injury or condition that is at least fifty weeks if to the body as a whole or at least fifteen percent permanent partial disability of an extremity scheduled at the one hundred fifty-fifth week level or more existing at the time the last compensable injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last compensable injury plus the disability resulting from the last compensable injury, if any, considered alone, shall be deducted from the combined disability, and [compensation for the balance] the remaining balance determined. If an employee previously has received compensation from the second injury fund resulting from the combination of a previous compensable injury and pre-existing disabilities that amount shall be deducted from the remaining balances, and the final balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last compensable injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last compensable injury shall be liable only for the disability resulting from the last compensable injury considered alone and of itself; except that if the compensation for which the employer at the time of the last compensable injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 payable at the applicable weekly wage rate, limited to a total payout of two hundred times one hundred and five percent of the state average weekly wage as of the date of the last compensable injury, out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in section 287.141. Maintenance of the second injury fund shall be as provided by section 287.710. The state treasurer shall be the custodian of the second injury fund which shall be deposited the same as are state funds and any interest accruing thereon shall be added thereto. The fund shall be subject to audit the same as state funds and accounts and shall be protected by the general bond given by the state treasurer. Upon the requisition of the director of the division of workers' compensation, warrants on the state treasurer for the payment of all amounts payable for compensation and benefits out of the second injury fund shall be issued.
2. In all cases in which a recovery against the second injury fund is sought for permanent partial disability, permanent total disability, or death, the state treasurer as custodian thereof shall be named as a party, [and] shall be entitled to defend against the claim, and shall be able to compel any employee seeking benefits from the second injury fund to attend an independent medical evaluation or a vocational evaluation. The state treasurer, with the advice and consent of the attorney general of Missouri, may enter into compromise settlements as contemplated by section 287.390, or agreed statements of fact that would affect the second injury fund. All awards for permanent partial disability, permanent total disability, or death affecting the second injury fund shall be subject to the provisions of this chapter governing review and appeal. For all claims filed against the second injury fund on or after July 1, 1994, the attorney general shall use assistant attorneys general except in circumstances where an actual or potential conflict of interest exists, to provide legal services as may be required in all claims made for recovery against the fund. Any legal expenses incurred by the attorney general's office in the handling of such claims, including, but not limited to, medical examination fees, expert witness fees, court reporter expenses, travel costs, and related legal expenses shall be paid by the fund. Effective July 1, 1993, the payment of such legal expenses shall be contingent upon annual appropriations made by the general assembly, from the fund, to the attorney general's office for this specific purpose.
3. [If more than one injury in the same employment causes concurrent temporary disabilities, compensation shall be payable only for the longest and largest paying disability.] In claims where permanent total disability benefits are awarded to an employee from the second injury fund, such payments from the second injury fund will begin only after the employee reaches maximum medical improvement from the compensable injury and credit has been given for the time representing the employer's liability for permanent partial disability attributed to the compensable injury. The second injury fund is liable for the difference, if any, between the employee's compensation rate for permanent partial disability paid by the employer and the permanent total disability rate during the time attributed to payment of the employer's liability for permanent partial disability attributed to the last compensable injury.
4. [If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.
5.] If an employer fails to insure or self-insure as required in section 287.280, funds from the second injury fund may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury or disability of an injured employee in the employ of an uninsured employer, or in the case of death of an employee in the employ of an uninsured employer, funds from the second injury fund may be withdrawn to cover fair, reasonable, and necessary expenses in the manner required in sections 287.240 and 287.241. No money shall be withdrawn from the second injury fund under this subsection to pay medical or burial expenses which have been paid by any source other than the employee or the employee's dependent, or have been written off of the books by the provider or otherwise show a zero balance due. Any payments made from the second injury fund under this subsection shall be paid directly to the provider of the services, after deduction of attorney fees and expenses, at the rate customarily accepted by the provider when accepting payment from a private workers' compensation carrier. Upon proof of payment being made by the employee directly, funds may be withdrawn from the second injury fund to reimburse the employee directly for amounts paid related to reasonable and necessary medical expenses. The second injury fund shall be a payor of last resort in cases where a claim is made for a covered employer's failure to properly insure under this chapter. The alleged employee or dependent shall have the burden of proving each element of the claim including but not limited to proving the existence of outstanding bills. The oral testimony of the alleged employee or dependent, without further evidence to support the claim under this subsection, shall not be sufficient to meet the required burden of proof for an award to be entered. In defense of claims arising under this subsection, the treasurer of the state of Missouri, as custodian of the second injury fund, shall have the same defenses to such claims as would the uninsured employer. Within one hundred and twenty days of filing a claim for compensation under this subsection, an employee or dependent shall file with the division of workers' compensation proof of service by certified mail through the United States post office of the claim for compensation on the alleged employer. Failure to provide such proof of service will result in immediate dismissal of the claim for compensation against the second injury fund without further action of any party. For purposes of this chapter, any employer whose principle place of business is outside the state of Missouri shall be deemed insured for purposes of this chapter if it is properly insured for workers' compensation purposes under the laws of the state where it is principally located. Any funds received by the employee or the employee's dependents, through civil or other action, must go towards reimbursement of the second injury fund, for all payments made to the employee, the employee's dependents, or paid on the employee's behalf, from the second injury fund pursuant to this subsection. The uninsured employer shall reimburse the second injury fund for the amount expended from the second injury fund on behalf of the uninsured employer. The office of the attorney general of the state of Missouri [shall bring suit in the circuit court of the county in which the accident occurred against any employer not covered by this chapter as required in section 287.280] in its capacity of representing the treasurer as the custodian of the second injury fund may file under section 287.500 in the circuit court of the county in which the accident occurred, or in the county of the principle place of the employer's business, or in the county of its registered agent, the final award of the administrative law judge or labor and industrial relations commission. The circuit court shall enter judgment upon such filing without further action, trial, or hearing, against the uninsured employer and in favor of the second injury fund in the amount expended from the second injury fund on behalf of the uninsured employer. This judgment is separate and apart from any criminal action undertaken under section 287.128 for the covered employer's failure to properly insure for purposes of chapter 287.
[6.] 5. [Every three years] Annually, the second injury fund shall have an actuarial study made to determine the solvency of the fund, appropriate funding level of the fund, and forecasted expenditures from the fund. The first actuarial study shall be completed prior to July 1, [1988] 2011. The expenses of such actuarial studies shall be paid out of the fund for the support of the division of workers' compensation.
[7.] 6. The director of the division of workers' compensation shall maintain the financial data and records concerning the fund for the support of the division of workers' compensation and the second injury fund. The division shall also compile and report data on claims made pursuant to subsection 9 of this section. The attorney general shall provide all necessary information to the division for this purpose.
[8.] 7. All claims for fees and expenses filed against the second injury fund and all records pertaining thereto shall be open to the public.
[9.] 8. Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, each of whom is individually subject to this chapter, the employer for whom the employee was working when the injury was sustained shall be responsible for [wage loss benefits] temporary total disability benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional [wage loss benefits] lost wages attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250. The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employee shall not receive a greater payment from the second injury fund under this subsection than the employee would have received had the compensable injury not occurred. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.
287.430. Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a [claim therefor] claim for compensation (currently form 21 as set forth in the division of workers' compensation regulations and forms) is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation (currently form 21 as set forth in the division of workers' compensation regulations and forms) may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death. The filing of any form, report, receipt, or agreement, other than a claim for compensation (currently form 21 as set forth in the division of workers' compensation regulations and forms), shall not toll the running of the periods of limitation provided in this section. The filing of the report of injury or death three years or more after the date of injury, death, or last payment made under this chapter on account of the injury or death, shall not toll the running of the periods of limitation provided in this section, nor shall such filing reactivate or revive the period of time in which a claim may be filed. A claim for compensation (currently form 21 as set forth in the division of workers' compensation regulations and forms) against the second injury fund shall be filed within two years after the date of the injury or within one year after [a claim] the original claim for compensation (currently form 21 as set forth in the division of workers' compensation regulations and forms) is filed against an employer or insurer pursuant to this chapter, whichever is later. In all other respects the limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a conservator shall be deemed the termination of the legal disability from minority or disability as defined in chapter 475. The statute of limitations contained in this section is one of extinction and not of repose.
287.500. Any party in interest may file in the circuit court of the county in which the accident occurred, a certified copy of a memorandum of agreement approved by the division or by the commission or of an order or decision of the division or the commission, or of an award of the division or of the commission from which an application for review or from which an appeal has not been taken, whereupon said court shall [render] enter judgment in accordance therewith without further action, trial, hearing, or further findings of fact, and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment were a final judgment which had been rendered in a suit duly heard and determined by said court. Any such judgment of said circuit court unappealed from or affirmed on appeal or modified in obedience to the mandate of the appellate court, whenever modified on account of a changed condition under section 287.470, shall be modified to conform to any decision of the commission, ending, diminishing or increasing any weekly payment under the provisions of section 287.470 upon the presentation to it of a certified copy of such decision.
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