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Summary of the Major Revisions of
Workers’ Compensation Statute
Index of Revisions
§287.020
New: 2. The word “accident” as used in this chapter
shall mean an unexpected traumatic
event or unusual strain identifiable by time and place of occurrence and
producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was
a triggering or precipitating factor.
Old: 2.
The word “accident” as used in this chapter shall, unless a different
meaning is clearly indicated by the context, be construed to mean
an unexpected or unforeseen identifiable event or series of events
happening suddenly and violently, with or without human fault and
producing at the time objective symptoms of an injury. An
injury is compensable if it is clearly work related. An
injury is clearly work related if work was a substantial factor in the
cause of the resulting medical condition or disability. An injury is not compensable merely because
work was a triggering or precipitating factor.
New: 3. (1)
In this chapter the term “injury” is hereby defined to be an injury which
has arisen out of and in the course of employment. An
injury by accident is compensable only if the accident was the prevailing
factor in causing both the resulting medical condition and disability. The “prevailing
factor” is defined to be the primary factor, in relation to any other
factor, causing both the resulting medical condition and disability.
Old: 3. (1) In this chapter the term “injury” is
hereby defined to be an injury which has arisen out of and in the course
of employment. The injury must
be incidental to and not independent of the relation of employer and
employee. Ordinary, gradual deterioration
or progressive degeneration of the body caused by aging shall not be
compensable, except where the deterioration or degeneration follows as
an incident of employment.
New: 3. (2) An injury shall be deemed to arise out
of and in the course of employment only if:
(a) It is reasonably apparent,
upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b)
It does not come from a hazard or risk unrelated to the employment to
which workers would have been equally exposed outside of and unrelated
to the employment in normal nonemployment life.
(3) An injury resulting directly or indirectly
from idiopathic causes is not compensable.
(4) A cardiovascular, pulmonary, respiratory,
or other disease, or cerebrovascular accident or myocardial infarction
suffered by a worker is an injury only if the accident is the prevailing
factor in causing the resulting medical condition.
Old: 3. (2) An injury shall be deemed to arise
out of and in the course of employment only if:
(a) It is reasonably apparent,
upon consideration of all the circumstances, that the employment is a
substantial factor in causing the injury; and
(b) It
can be seen to have followed as a natural incident of the work; and
(c) It can be fairly traced to the employment
as a proximate cause; and
(d)
It does not come from a hazard or risk unrelated to the employment to
which workers would have been equally exposed outside of and unrelated
to the employment in normal nonemployment life.
Analysis:
The most
significant change is replacing the requirement that the accident be
a substantial factor with the requirement that the accident be the prevailing factor. Please note the statute now requires that the
accident has to be the prevailing factor not only for the resulting medical
condition, but also the disability.
The new
language also specifically states that injury resulting directly or indirectly
from idiopathic causes is not compensable, which is obviously different
from old case law, which suggests that injury resulting at least indirectly
from idiopathic causes was compensable if the work environment contributed
to the injury.
Both
the new and the old statute include the requirement that the injury produce
at the time objective symptoms of injury. This
provision in conjunction with §287.800, which requires strict construction
of the statute may require a more difficult burden for the claimant to
establish objective findings in order to prove a compensable claim.
ACCIDENTS INVOLVING COMPANY VEHICLES
New: 5. Injuries
sustained in company-owned or subsidized automobiles in accidents that
occur while traveling from the employee’s home to the employer’s principal
place of business or from the employer’s principal place of business
to the employee’s home are not compensable. The “extension
of premises” doctrine is abrogated to the extent it extends liability
for accidents that occur on property not owned or controlled by the
employer even if the accident occurs on customary, approved, permitted,
usual or accepted routes used by the employee to
get to and from their place of employment.
Old: 5. Without otherwise affecting either
the meaning or interpretation of the abridged clause, “personal injuries
arising out of and in the course of such employment”, it is hereby
declared not to cover workers except while engaged in or about the
premises where their duties are being performed, or where their services
require their presence as a part of such service.
Analysis:
This
section will prevent claims where employees are driving a company vehicle
going to or from work. Arguably,
however, because they limited the traveling only from the employee’s
home to the employer’s principal place of business and not other traveling,
there are some situations where the employees driving company vehicles
may still be found compensable if they are traveling somewhere other
than between work and home. The second half of this provision will primarily
impact the parking lot cases, where the injuries occur on non-employer
owned or maintained parking lots, sidewalks, etc.
New: 10. In applying the provisions of this chapter,
it is the intent of the legislature to reject or abrogate earlier case
law interpretations on the meaning of or definition of “accident”, “occupational
disease”, “arising out of”, and “in the course of the employment” to
include, but not be limited to, holdings in: Bennett
v. Columbia Health Care and Rehabilitation, 80 S.W.3d 524 (Mo.App.
W.D. 2002); Kasl v. Bristol Care,
Inc., 984 S.W.2d 852 (Mo.banc 1999); and Drewes
v. TWA, 984 S.W.2d 512 (Mo.banc 1999), and all cases citing, interpreting,
applying, or following those cases.
Analysis – Summary
Of Abrogated Cases
Bennett v. Columbia Health Care and Rehabilitation, 80
S.W.3d 524 (Mo. App. W.D. 2002) – The claimant was employed with the
named employer for nineteen years as a nurse’s aide. She reported injury to her knee, claiming that
her knee popped while she was walking around a bed. She felt another pop in her knee while carrying
linens up stairs. Medical providers
testified that there was a change in pathology of the right knee condition. While
the case was originally found not to be compensable because the injury
was the result of the mere act of walking or walking up steps, the Court
of Appeals reversed and remanded the decision to the Commission, which
later issued an opinion stating the case was compensable. The
Court of Appeals specifically stated that the Commission erred in concluding
that walking alone never could give rise to a compensable injury.
Kasl v. Bristol Care, Inc., 984
S.W.2d 852 (Mo.banc 1999) – In this case, the employee worked at a residential
care facility. The claimant’s
foot fell asleep while she was sitting in a chair waiting for the appropriate
time to dispense medication to a resident. The
court reasoned that without having to wait for the appropriate time to
dispense the medication, her foot would not have fallen asleep. They further determined that without having
to arise to dispense the medicine, with a foot that had fallen asleep,
she would not have fallen and fractured her ankle. This
was a decision issued by the Supreme Court of Missouri.
Drewes v. TWA, 984 S.W.2d 512 (Mo.banc
1999) – This is another Missouri Supreme Court decision finding the claimant’s
injury compensable. The claimant
worked for the employer as a reservation agent and she was allowed a
thirty minute unpaid lunch break. She
purchased food from a vending machine in a breakroom that was for the
use of TWA employees. The claimant
left this breakroom and went to a separate breakroom on another floor
that was not leased by TWA; however, employees were told they were free
to use either breakroom. The court found that the claimant was tending
to her personal comfort by carrying her lunch when she fell. There was no explanation as to exactly what
caused her to fall, simply that she was carrying her lunch to the table
to eat her meal and the court found that this was a “substantial factor” in
causing her injury.
REPETITIVE TRAUMA AND LAST EXPOSURE
§287.063
New: 2. The employer liable for the compensation
in this section provided shall be the employer in whose employment the
employee was last exposed to the hazard of the occupational disease prior to evidence of disability, regardless of the length of time
of such last exposure, subject
to the notice provision of §287.420.
Old: 2. The employer liable for the compensation
in this section provided shall be the employer in whose employment the
employee was last exposed to the hazard of the occupational disease for
which claim is made regardless of the length of time of such last
exposure.
§287.067
New: 2. An occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the
resulting medical condition and disability. The “prevailing
factor” is defined to be the primary factor, in relation to any other
factor, causing both the resulting medical condition and disability. Ordinary,
gradual deterioration or progressive degeneration of the body caused
by aging or by the normal activities of day-to-day living shall not
be compensable.
Old: 2. An injury by occupational disease
is compensable if it is clearly work related and meets the requirements
of an injury which is compensable as provided in subsections 2 and 3
of §287.020. An occupational disease is not compensable
merely because work was a triggering or precipitating factor.
New: 3. An
injury due to repetitive motion is recognized as an occupational disease
for purposes of this chapter. An
occupational disease due to repetitive motion is compensable only if
the occupational exposure was the prevailing factor in causing both
the resulting medical condition and disability. The
prevailing factor is defined to be the primary factor, in relation
to any other factor, causing both the resulting medical condition and
disability. Ordinary, gradual deterioration or progressive
degeneration of the body caused by aging or by the normal activities
of day-to-day living shall not be compensable.
New: 8. With regard to occupational disease due
to repetitive motion, if the exposure to the repetitive motion which
is found to be the cause of the injury is for a period of less than three
months and the evidence demonstrates that the exposure to the repetitive
motion with the immediate prior employer was the prevailing factor in causing the injury, the prior employer shall be liable for such
occupational disease.
Old: 8. With regard to occupational disease due
to repetitive motion, if the exposure to the repetitive motion which
is found to be the cause of the injury is for a period of less than three
months and the evidence demonstrates that the exposure to the repetitive
motion with a prior employer was the substantial contributing factor to the
injury, the prior employer shall be liable for such occupational disease.
Analysis:
As with
the definition of accident, in order for an occupational disease/repetitive
trauma injury to be compensable, the employee now has the burden of showing
that the exposure at work was the
prevailing factor, rather than simply being a substantial factor. Again, the language requires that the occupational
disease be the prevailing factor in causing both the resulting
medical condition and disability. Obviously
the legislature’s intent was to narrow the definition of compensable
occupational diseases as they did with accidents.
As for the Last Exposure Rule, the legislature has clearly written a change from the definition which was previously set forth by the Missouri Supreme Court. Case law interpreting the Last Exposure Rule has held that the employer who last exposed the employee to the hazard prior to the filing of the claim was liable. Under the more recent law, the responsible employer is the employer who last exposed the employee to the hazard prior to evidence of disability. Obviously the courts will have to define “evidence of disability”. Cases interpreting the law prior to the enactment of the Last Exposure Rule typically focused on date of diagnosis and any limitations, restrictions or significant treatment to determine disability. This will most likely reduce the intended bright line effect of the Last Exposure Rule, but should allow for more fair results to the employers.
The new
law will allow the courts to look back only to the immediate prior employer. This
essentially codifies current case law, which suggests going back only
one employer is appropriate.
NOTICE IN
REPETITIVE TRAUMA CASES
§287.420
New: No proceedings for compensation for any accident under this chapter shall
be maintained unless written notice of the time, place, and nature of
the injury, and the name and address of the person injured, has been given to the employer no later
than thirty days after the accident, unless the
employer was not prejudiced by failure to receive notice. No proceedings
for compensation for any occupational disease or repetitive trauma under
this chapter shall be maintained unless written notice of the time, place,
and nature of the injury, has been given to the employer no later than
thirty days after the diagnosis of the condition unless the employee
can prove the employer was not prejudiced by failure to receive the notice.
Old: No proceedings for compensation under this
chapter shall be maintained unless written notice of the time, place,
and nature of the injury, and the name and address of the person injured, have been
given to the employer as soon as practicable after the happening thereof
but not later than thirty
days after the accident, unless the division or the commission finds
that there was good cause for failure to give the notice, or that the
employer was not prejudiced by failure to receive notice. No defect or inaccuracy in the notice shall
invalidate it unless the commission finds that the employer was in fact
misled and prejudiced thereby.
Analysis:
The
Act will require written notice to an Employer within 30 days
of diagnosis of the condition. If
the same is not provided, proceedings cannot be maintained for a repetitive
trauma or occupational disease case. Please
note that the exception is in the case where the employer was not prejudiced
by failure to receive notice. Prior
case law held that the notice requirement did not apply to occupational
disease cases. This may bar some
cases that would have otherwise been compensable. If
there is no significant delay in the reporting, I think most likely the
courts will find the employer was not prejudiced. In the cases where an employee receives a significant
amount of treatment before filing a claim or reporting the injury, however,
this can be a viable defense.
REDUCTION
OF BENEFITS FOR CERTAIN ACTS
§287.120
New: 5. Where the injury is caused by the failure
of the employee to use safety
devices where provided by the employer, or from the employee’s failure
to obey any reasonable rule adopted by the employer for the safety of
the employees, the compensation and death benefit provided for herein
shall be reduced at least twenty-five but not more than fifty percent;
provided, that it is shown that the employee had actual knowledge of
the rule so adopted by the employer; and provided, further, that the
employer had, prior to the injury, made a reasonable effort to cause his or
her employees to use the safety device or devices and to obey or
follow the rule so adopted for the safety of the employees.
Old: 5. Where the injury is caused by the failure
of the employee to use safety devices where provided by the employer,
or from the employee’s failure to obey any reasonable rule adopted by
the employer for the safety of the employees, which rule has been
kept posted in a conspicuous place on the employer’s premises, the
compensation and death benefit provided for herein shall be reduced fifteen percent;
provided, that it is shown that the employee had actual knowledge of
the rule so adopted by the employer; and provided, further, that the
employer had, prior to the injury, made a diligent effort to cause
his employees to use the safety device or devices and to obey or follow
the rule so adopted for the safety of the employees.
New: 6. (1) Where the employee fails to obey any
rule or policy adopted by the employer relating to a drug-free workplace or the use of alcohol or non-prescribed controlled
drugs in the workplace, the compensation and death benefit provided for
herein shall be reduced fifty percent
if the injury was sustained in conjunction with the use of alcohol or
non-prescribed controlled drugs.
(2) If, however, the use of
alcohol or non-prescribed controlled drugs in violation of the employer’s
rule or policy is the proximate cause of the injury, then the benefits
or compensation otherwise payable under this chapter for death or disability
shall be forfeited.
(3) The voluntary use of alcohol to the percentage
of blood alcohol sufficient under
Old: 6. (1)
Where the employee fails to obey any rule or policy adopted by the employer
relating the use of alcohol or non-prescribed controlled drugs in the
workplace, which rule or policy has been kept posted in a conspicuous
place on the employer’s premises, the
compensation and death benefit provided for herein shall be reduced fifteen percent
if the injury was sustained in conjunction with the use of alcohol or
non-prescribed controlled drugs; provided,
that it is shown that the employee had actual knowledge of the rules
or policy so adopted by the employer and, provided further that the employer
had, prior to the injury, made a diligent effort to inform the employee
of the requirement to obey any reasonable rule or policy adopted by the
employer.
(2) If, however, the use of
alcohol or non-prescribed controlled drugs in violation of the employer’s
rule or policy which is posted and publicized as set forth in subdivision
(1) is the proximate cause of the injury, then the benefits or compensation
otherwise payable under this chapter for death or disability shall be
forfeited. The forfeiture of
benefits or compensation shall not apply when:
(a) The employer
has actual knowledge of the employee’s use of the alcohol or non-prescribed
controlled drugs and in the face thereof fails to take any recuperative
or disciplinary action; or
(b)
If, as part of the employee’s employment, he is authorized by the employer
to use such alcohol or non-prescribed controlled drugs.
Analysis:
An employee who is injured as a result of the failure to obey employer safety rules will have benefits reduced by 25% to 50%. The Act eliminates the posting requirement with respect to failure to use safety devises and the reduction in compensation. Unfortunately, there are no guidelines as to when such reductions should be taken at 25% versus 50% or somewhere in between.
The
Act increases the penalty when a violation of a drug or alcohol rule
is involved, by mandating that benefits be reduced by 50%. Posting of drug and alcohol rues is also eliminated. Intoxication
at or above the legal blood level shall create a rebuttable presumption
that the voluntary use of alcohol was the proximate cause of the injury. This presumption can be rebutted by a preponderance
of the evidence. Please also note
that the employee may be denied all benefits if they refuse to take a
test for alcohol or non-prescribed controlled substances, if the employer
had sufficient cause to suspect the use of alcohol or the controlled
substance. Unfortunately, there is nothing addressing
the situation where an employee does not report the accident until days
after the injury when often times the testing for alcohol and drugs would
be too late.
§287.140
New: 1. When an employee is required to submit
to medical examinations or necessary medical treatment at a place outside
of the local or metropolitan area from the employee’s
principal place of employment,
the employer or its insurer shall advance or reimburse the employee for
all necessary and reasonable expenses.
Old: 1. When an employee is required to submit
to medical examinations or necessary medical treatment at a place outside
of the local or metropolitan area from the place of injury or the
place of his residence, the employer or its insurer shall advance
or reimburse the employee for all necessary and reasonable expenses.
New: 14. The employer may allow or require an employee
to use any of the employee’s accumulated paid leave, personal leave,
or medical or sick leave to attend to medical treatment, physical rehabilitation,
or medical evaluations during work time. The intent of this subsection is to specifically
supercede and abrogate any case law that contradicts the express language
of this section.
Analysis:
The
new law will only require an Employer to advance or reimburse the employee
for mileage when the necessary medical treatment occurs outside of the
local or metropolitan area from the employee’s principal place of employment.
The
new law will allow an Employer to have the employee use vacation or sick
leave when medical treatment, evaluations, or physical rehabilitation
occurs during work time.
VOCATIONAL
TESTING & ASSESSMENT
§287.143
New: Sections 287.144 to 287.149 shall not be construed
to require the employer to provide vocational rehabilitation to a severely
injured employee. An employee shall submit to appropriate vocational
testing and a vocational rehabilitation assessment scheduled by an employer
or its insurer.
Analysis:
The new law will provide that an employee must submit to appropriate vocational testing and a vocational rehabilitation assessment when required by an Employer/Insurer. This will allow employers and insurers to have the employees tested rather than simply having a vocational expert review records and rely on any testing that may be done by the claimant’s vocational expert.
TTD DISQUALIFICATION FOR RECEIPT OF UNEMPLOYMENT
COMPENSATION OR POST INJURY MISCONDUCT
§287.170
New: 3. An
employee is disqualified from receiving temporary total disability
during any period of time in which the claimant applies and receives
unemployment compensation.
Old: 3. The employer shall be entitled to a
dollar-for-dollar credit against any benefits owed pursuant to this
section in an amount equal to the amount of unemployment compensation
paid to the employee and charged to the employer during the same adjudicated
or agreed-upon period of temporary total disability.
New: 4. If the employee is terminated from post injury
employment based upon the employee’s post injury misconduct, neither
temporary total disability nor temporary partial disability benefits
under this section, § 287.170, or §287.180 are payable. As
used in this section, the phrase “post injury misconduct” shall not
include absence from the work place due to an injury unless the employee
is capable of working with restrictions, as certified by a physician.
Analysis:
The
Act disqualifies an employee from receiving TTD during any time period
in which the claimant applies and receives unemployment compensation. Although arguably when an employee applies
for the unemployment benefits and holds himself or herself out as being
employable, the old law would allow only for an offset for the unemployment
benefits rather than a complete bar during the period at issue.
The
Act also provides that any employee who is terminated from post injury
employment based upon post injury misconduct shall be ineligible
to receive either TTD or TPD benefits. In
defining “post injury misconduct”, they exclude absence from work due
to an injury, unless the employee is able to work with restrictions
as certified by a physician. They
do not define what is required to be certified by a physician. In addition, it does not state that the employer
actually has to offer work.
§287.190
New: 6. (2) Permanent
partial disability or permanent total disability shall be demonstrated
and certified by a physician. Medical
opinions addressing compensability and disability shall be stated within
a reasonable degree of medical certainty. In
determining compensability and disability, where inconsistent or conflicting
medical opinions exist, objective medical findings shall prevail over
subjective medical findings. Objective
medical findings are those findings demonstrable on physical examination
or by appropriate tests or diagnostic procedures.
(3) Any award of compensation shall be reduced by an amount proportional
to the permanent partial disability determined to be a preexisting
disease or condition or attributed to the natural process of aging
sufficient to cause or prolong the disability or need of treatment.
Analysis:
The Act provides that permanent partial disability or permanent total disability be demonstrated and certified by a physician. Again, the legislature fails to explain what is required for the PPD or PTD to be “certified by a physician”. It further provides that in determining compensability and disability where there are inconsistent or conflicting medical opinions then objective medical findings shall prevail over subjective medical findings. Objective medical findings are defined as those demonstrable on physical examination or by appropriate tests or diagnostic procedures. Arguably, an employee would need objective medical findings to support their permanency; however, the statute does not address the situation when there are no objective findings and only subjective medical findings exist.
§287.253
New: A monetary
bonus, paid by an employer to an employee, of up to three percent of
the employee’s yearly compensation from such employer shall not have
the effect of increasing the compensation amount used in calculating
the employee’s compensation or wages for purposes of any workers’ compensation
claim governed by this chapter.
Analysis:
A
monetary bonus of up to 3% of an employee’s yearly compensation shall
not be included in calculating the AWW or compensation rates.
§287.380
New: 1. Every
employer or his insurer in this state, whether he has accepted or rejected
the provisions of this chapter, shall within thirty
days after knowledge of the injury, file with the division under
such rules and regulations and in such form and detail as the division
may require, a full and complete report of every injury or death to any
employee for which the employer would be liable to furnish medical aid,
other than immediate first aid which does not result in further medical
treatment or lost time from work, or compensation hereunder had he accepted
this chapter, and every employer or insurer shall also furnish the division
with such supplemental reports in regard thereto as the divisions shall
require.
Old: 1. Every employer or his insurer in this
state, whether he has accepted or rejected the provisions of this chapter,
shall within ten days after knowledge of an accident resulting in
personal injury to any employee notify the division thereof, and shall,
within one month from the date of filing of the original notification
of injury, file with the division under such rules and regulations
and in such form and detail as the division may require, a full and complete
report of every injury or death to any employee for which the employer
would be liable to furnish medical aid, other than immediate first aid
which does not result in further medical treatment or lost time from
work, or compensation hereunder had he accepted this chapter, and every
employer or insurer shall also furnish the division with such supplemental
reports in regard thereto as the divisions shall require.
Analysis:
The
Employer or Insurer will have 30 days from the date of knowledge of an
employee’s injury or death to file a full and complete report with the
Division and the 10 day reporting requirement is deleted.
VOLUNTARY
SETTLEMENT AGREEMENTS
§287.390
New: 1. Parties to claims hereunder may enter into voluntary agreements in
settlement thereof, but no agreement by an employee or his or her dependents to waive his or
her rights under this chapter shall be valid, nor shall any agreement
of settlement or compromise of any dispute or claim for compensation
under this chapter be valid until approved by an administrative law judge
or the commission, nor shall an ALJ or the commission approve any settlement
which is not in accordance with the rights of the parties as given in
this chapter. No such agreement shall be valid unless made
after seven days from the date of the injury or death. An ALJ,
or the commission, shall approve a settlement agreement as valid and
enforceable as long as the settlement is not the result of undue influence
or fraud, the employee fully understands his or her rights and benefits,
and voluntarily agrees to accept the terms of the agreement.
Old: 1. Nothing in this chapter shall be construed
as preventing the parties to claims hereunder from entering into
voluntary agreements in settlement thereof, but no agreement by an
employee or his dependents to waive his rights under this chapter shall
be valid, nor shall any agreement of settlement or compromise of any
dispute or claim for compensation under this chapter be valid until
approved by an administrative law judge or the commission, nor shall
an ALJ or the commission approve any settlement which is not in accordance
with the rights of the parties as given in this chapter. No
such agreement shall be valid unless made after seven days from the
date of the injury or death.
New: 5. In
any claim under this chapter where an offer of settlement is made in
writing and filed with the division by the employer, an employee is
entitled to one hundred percent of the amount offered, provided such
employee is not represented by counsel at the time the offer is tendered. Where such offer of settlement is not accepted
and where additional proceedings occur with regard to the employee’s
claim, the employee is entitled to one hundred percent of the amount
initially offered. Legal counsel
representing the employee shall receive reasonable fees for services
rendered.
New: 6. As
used in this chapter, “amount in dispute” means the dollar amount in
excess of the dollar amount offered or paid by the employer. An offer of settlement shall not be construed
as an admission of liability.
Analysis:
The
Act allows parties to enter into voluntary agreements to settle claims
and provides that approval shall be granted as long as the settlement
is not the result of undue influence or fraud, and the employee fully
understands his/her rights and benefits and voluntarily agrees to accept
the terms of the agreement. Obviously,
the judges (and legal advisers until the end of the year when their positions
are eliminated) can advise the claimants not to settlement. I
believe this provision was handled to remedy the frequent situation where
an employee agrees to settlement and in spite of the judge’s recommendations,
wants to proceed with the settlement, but the judge or legal advisor
refused to make the approval. They
will no longer have that option.
The
Act further provides that where a written offer is made and the employee
is not represented by counsel, then the employee is entitled to 100%
of the amount offered. Of concern
with this provision is that the language below in §287.800 requires strict
construction. Arguably if an employee receives an offer,
the offer is filed with the Division as required, but not accepted and
there is a final hearing where the case is found not to be compensable,
the employee would still be entitled to 100% of the amount initially
offered. Obviously, in disputed or questionable cases,
it is unlikely that any significant offers will be made to employees
who are unrepresented. Therefore,
there is little risk of this situation, but it is a possibility.
§287.800
New: 1. ALJs,
associate ALJs, legal advisors, the labor and industrial relations
commission, the division of workers’ compensation, and any reviewing
courts shall construe the provisions of this chapter strictly.
2. ALJs, associate ALJs, legal advisors, the labor and industrial relations
commission, and the division of workers’ compensation shall weigh the
evidence impartially without giving the benefit of the doubt to any
party when weighing evidence and resolving factual conflicts.
§287.808
New: The
burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation
under this chapter is on the employee or dependent. In asserting any claim or defense based on
a factual proposition, the party asserting such claim or defense must
establish that such proposition is more likely to be true than not
true.
Analysis:
The
Act will impose a strict construction review with regard to the law and
an impartial standard of review with regard to the facts and
evidence.