Worker's compensation reform may not have had the effect many people intended. Whenever the court of appeals comments on legislative intent it based on "strict construction" reminds me of the scene in Annie Hall when a professor in front of Woody Allen is discussing the true intent of Marshall McLuhan's work when Allen pulls McLuhan out of no where to state that's not what he meant at all.
1. Occupational Disease.
Worker's comp is not an exclusive remedy to worker's compensation, based on strict construction.
KCP&L Greater MO Operations Co. v Hon Cook, 353 S.W.3d 14 (Mo. App. 2011).
2. Prevailing factor doesn't apply to medical treatment issues.
Surprise! An employer who admits accidental injury must argue now whether a treatment is reasonably related. Tillotson v St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. 2011). Gordon, we hardly knew ya.
3. Claimant dies but the checks keep rolling on.
The legislative "fix" didn't fix Schoemehl to anyone having a pending claim. Goad v Treasurer of State-Second Injury Fund, 2011 Mo App. 1552; affirmed 2012 Mo Lexis 186 (Aug 14, 2012).
The defense that claimant had to die before the "fix" for benefits to "vest" doesn't fly.
4. Subjective v. Objective, Objective now loses.
The legislative fix to give objective evidence more weight now goes away without "objective" tests to measure "subjective pain." Huh? Bottom line: those FCEs are a lot less important now to define work restrictions. Reicardt v Industrial Sheet Metal Erectors, 2011 MO WCLR Lexis 226 (11-10-11).
5. Getting out of the car is "on duty"
Parking lot defenses based on Hager are getting weaker every day, when the Commission concludes a claimant on property is now "on duty" to invoke benefits. Wilson v Buchanan County, 2011 MO WCLR Lexis 206, affirmed 2012 Mo App. Lexis 1428 (Nov. 13, 2012) That even means jurors, too.
6. Video is not a statement , but turn it over anyway.
A claimant can now obtain video through a subpoena, even though the same video was excluded as a statement to be produced under statutory reform. State ex rel Feltz v Bob Sight Ford Inc, 341 S.W.3d 863 (Mo. App. WD 2011). Employees up to no good can work on their excuses a lot sooner.
7. Penalties now include bills.
Parties behaving badly can be subject to penalty based on the cost of bills since bills are compensation. Hornbeck v Spectra Painting, 2011 MO App. 1145 affirmed 370 S.W.3d 624 (Mo. 2012)
8. Notice after diagnosis (more or less)
Claimant may not have duty to notify an employer until her own expert tells her the condition is work-related, even if she told her doctor she "did a lot of typing" and underwent EMG studies months earlier. The ghost of Allcorn continues to haunt. Beckton v AT&T, DOLIR 6-9-11.
9. Green card defense.
Immigration status doesn't stand in the way of collecting comp benefits. Vega-Rivera v Hyatt, 2011 Mo. WCLR Lexis 149. Illegality to work is an affirmative defense which is wavied if not pled timely. See Wolfe, The Illegal Immigrant as P.I. Plaintiff: Determining Lost Wages, 2012 IL BAR Journal 312 et seq. (June 2012)
10. Personal Comfort Doctrine.
The Supreme Court is to take on whether falling out of shoes while making coffee at work is enough for benefits in Johme v St. John's Mercy HealthCare, 2011 Mo.App. Lexis 1412; superseded 366 S.W.3d 504 (Mo 2012) and perhaps resolve whether Pile defines the standard anymore how to assess equal exposure.
